Watts v. Watts, 2001-CA-01181-COA.
| Decision Date | 11 March 2003 |
| Docket Number | No. 2001-CA-01181-COA.,2001-CA-01181-COA. |
| Citation | 854 So.2d 11 |
| Parties | Hollie Jean WATTS, Appellant, v. Mark Harrison WATTS, Appellee. |
| Court | Mississippi Court of Appeals |
James R. Hayden, Hattiesburg, attorney for appellant.
Dempsey M. Levi, Ocean Springs, attorney for appellee.
En Banc.
MODIFIED OPINION ON MOTION FOR REHEARING
LEE, J., for the Court.
¶ 1. The motion for rehearing on this matter is denied. The original opinion issued in this case is withdrawn, and the following opinion is substituted as the opinion of this Court.
PROCEDURAL HISTORY AND FACTS
¶ 2. Hollie Jean Watts and Mark Harrison Watts were married on May 24, 1986, and two daughters were born to their marriage, Jessica, in 1988, and Megan, in 1992. Hollie and Mark separated on January 20, 2000, and were granted a divorce on the grounds of irreconcilable differences on June 20, 2001. The special judge awarded custody of the children to Mark with liberal visitation to Hollie, denied alimony to Hollie, ordered Hollie to pay child support, and ordered the division of marital assets and liabilities. Hollie appeals to this Court asserting the following issues: (1) the special judge should have recused himself voluntarily; (2) the decision of the special judge was not in the best interest of the children due to the length of time between the trial and the judge's final decision; (3) the special judge erred in not awarding alimony to Hollie; and (4) the special judge erred in granting primary custody of the minor children to Mark. As further described, we find that the special judge erroneously awarded primary custody of the children to Mark and we reverse and remand.
DISCUSSION OF ISSUES
¶ 3. The standard of review in child custody cases is similar to the standard in all domestic relations cases. A reversal is proper if the chancellor is manifestly in error or has applied an erroneous legal standard. Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). Appellate courts need only to determine if the chancellor's decision was supported by credible evidence. Lee v. Lee, 798 So.2d 1284(¶ 22) (Miss.2001). ¶ 4. It is well settled that in child custody cases, the polestar consideration is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The factors used to determine what is in the "best interests" of a child with regard to custody are: (1) age, health and sex of the child; (2) determination of the parent that had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of the parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Id.
¶ 5. However, an appellate court must find a chancellor in error where the chancellor improperly considers and applies the Albright factors. Hollon v. Hollon, 784 So.2d 943(¶ 11) (Miss.2001). In determining whether the chancellor abused his discretion in applying the Albright factors, the appellate court "reviews the evidence and testimony presented at trial under each factor to ensure [the chancellor's] ruling was supported by record." Hollon, 784 So.2d at (¶ 13). Furthermore, differences in religion, personal values, and lifestyles should not be the sole basis for custody decisions. Albright, 437 So.2d at 1005.
¶ 6. We must now review the evidence and testimony presented at trial under each Albright factor to determine whether the ruling by the special judge was supported by the record.
Age, health and sex of the children
¶ 7. Jessica was born in 1988 and Megan was born in 1992. The special judge weighed this factor in Hollie's favor because the children are females. According to Mark's testimony, he admitted that Hollie would be better equipped to handle certain issues as the girls matured. We find the record supported the special judge's decision that this factor favors Hollie.
Continuity of care
¶ 8. The special judge found Mark to be more credible on this factor. However, Hollie has had physical custody of the children since the separation for over a year and a half. The special judge neglected to point out that Mark had neither paid child support to Hollie since the separation nor attempted to take custody of the children. Furthermore, the special judge inexplicably placed excessive weight on the fact that Mark occasionally cut the girls' hair and trimmed their nails. We fail to see how occasional grooming by Mark or his mother outweighs Hollie's proven record of continued care for the children. We find the determination by the special judge to be unsupported by the evidence.
Parenting skills and willingness and capacity to provide primary child care
¶ 9. The special judge recognized that both Hollie and Mark are close to the children and each desires to be the primary caregiver of the children. However, this factor was also weighed heavily in Mark's favor, despite evidence requiring the contrary. The special judge completely discredited any testimony citing to the fact that Hollie is a good mother and only focused on unsubstantiated testimony against Hollie. Mark testified that Hollie is a good mother, even though he constantly tried to discredit her abilities. Hollie gets the girls ready for school, takes them to school, picks them up after school, participates directly in their extracurricular activities, and takes them to the doctor. On the other hand, Mark's hectic work schedule prevents him from participating in the children's extracurricular activities. Mark claims to have the better parenting skills, but his only reason in support of this statement is the fact that he occasionally trims their fingernails or his mother gets their hair cut. According to the record, Mark has made no effort to retain custody of the children since the separation. In fact, the record shows that Mark's mother takes care of the children more than he does. We find the record does not support weighing this factor in Mark's favor, and the special judge abused his discretion in so finding.
The employment of the parent and the responsibilities of that employment
¶ 10. We find it inexplicable as to why the special judge found in favor of Mark on this factor. Hollie is a middle school teacher with work hours ideal for raising children, including having summers free to spend with the children. Hollie is able to pick the children up from school and take them to any activities in which they are involved. Mark is an attorney and is also the Jackson County prosecuting attorney. He has long work hours and would not be able to pick the children up from school. Mark testified that he would have to pay his secretary or someone else to pick the children up and keep them until he got off work. If that failed, his mother would have to pick them up, take them to any extracurricular activities and keep them until Mark got home. According to Mark's testimony, he had problems staying up at night with the children when they were sick if he had to be in court the next day. The special judge was certainly made aware that Mark has a professional degree and a higher salary than Hollie; however, this higher salary is not beneficial to the children if Mark's work schedule necessitates the employment of others to care for the children. There was sufficient evidence in the record to weigh this factor in favor of Hollie, and, again, the special judge's finding to the contrary was error.
Physical and mental health and age of the parents
¶ 11. Hollie is thirty-nine years old and Mark is thirty-seven years old. Although both are in good health, the special judge weighed this factor in favor of Mark because evidence was present that Hollie takes antidepressants and occasionally drinks alcohol.
Emotional ties of the parent and child
¶ 12. The special judge determined that because both parents clearly love the children, there are equally strong emotional ties between each child and each parent. However, Jessica, the eldest child, told the special judge she wanted to live with Hollie because Mark works all the time, he has a temper, and she does not like Mark's girlfriend.
Moral fitness of the parents
¶ 13. The special judge determined that, because there was no evidence to prove either parent to be morally unfit, the parties were equal in this regard. However, Hollie's initial complaint for divorce alleged adultery and, although the adultery grounds were later withdrawn, there were subtle references throughout the trial to an improper relationship between Mark and his secretary.
The home, school and community record of the child
¶ 14. The children have lived in the Vancleave community all their lives, they attend schools in that community, and they are active in extracurricular activities at school and in the community. In weighing this factor in favor of Mark, the special judge found that Mark has an extended family living in the area who would be supportive. Although Hollie does not have family in the area, she testified that she would continue to ask Mark's mother for help. We find Hollie should not be penalized because she does not have a large family nearby. Furthermore, we find the special judge placed too much weight on a statement Hollie supposedly made declaring that she would move from Mississippi and take the children. Hollie testified that she said this before the separation and only in anger, immediately afterwards telling Mark that she would not move with the...
To continue reading
Request your trial
- Wilson v. Wilson
- Davis v. Stevens
-
Glissen v. Glissen
...must review the evidence and testimony presented at trial under each factor to insure the ruling was supported by the record. Watts v. Watts, 854 So.2d 11, 13(¶ 5) (Miss.Ct.App.2003). Our review of the chancellor's findings is limited. This Court may reverse only if the chancellor was manif......
-
Gilliland v. Gilliland
...the court weighed this factor in favor of Roger. ¶ 52. Kim argues that the chancellor's finding was improper pursuant to Watts v. Watts, 854 So.2d 11 (Miss.Ct.App.2003). In Watts, the chancellor weighed this factor in the husband's favor because he had an extended family in the area who wou......