Divers v. Divers
| Docket Number: | 2001-CA-01358-COA Linked Case(s): 2001-CA-01358-COA ; 2001-CT-01358-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-18-2003 Opinion Author: Myers, J. Holding: Reversed and Rendered in Part; Reversed and Remanded in Part |
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| Additional Case Information: |
Topic: Child custody - Albright factors Judge(s) Concurring: Southwick, P.J., Bridges, Thomas, Lee, Irving and Griffis, JJ. Non Participating Judge(s): McMillin, C.J. Dissenting Author : Chandler, J. Dissent Joined By : King, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 07-31-2001 Appealed from: Lowndes County Chancery Court Judge: Dorothy W. Colom Disposition: DIVORCE GRANTED, CUSTODY, VISITATION AND CHILD SUPPORT DETERMINED, ASSETS AND DEBTS DIVIDED. Case Number: 2000-0250 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Kevin Divers |
CARRIE A. JOURDAN |
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| Appellee: | Jennifer Divers | THOMAS G. WALLACE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Child custody - Albright factors |
| Summary of the Facts: | Kevin Divers and Jennifer Divers consented to an irreconcilable differences divorce with submission to the chancellor of the issues of custody and support. The court awarded Jennifer custody of the couple’s son and child support. Kevin appeals. |
| Summary of Opinion Analysis: | Kevin argues that the court’s application of the Albright factors to this case were clearly erroneous. The Albright factors that the court is to consider in a custody determination include age, health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other relevant factors. The chancellor found that age did not favor Kevin or Jennifer. The chancellor found that continuity of care favored Jennifer over Kevin, because she cared for the child more since Kevin was in the military. However, the record shows that Jennifer only cared for the child during her sporadic moments of lucidity and did not provide continuous care for the child. The chancellor found and both sides agree that willingness to provide care neither favors nor hinders either party. The chancellor found that employment favors Jennifer over Kevin since daycare would be provided where Jennifer works. However, the record indicates that Kevin would enroll the child in the base daycare once his orders had been finalized and that Jennifer had not held a job for any length of time. Although the chancellor found that this mental and physical health favors Kevin, she did not give it enough weight. The chancellor found and both sides agree that emotional ties neither favors nor hinders either party. The chancellor found and both sides agree that this moral fitness neither favors nor hinders either party. The chancellor found and both sides agree that school record of the child neither favors nor hinders either party. The chancellor found and both sides agree that the preference of the child neither favors nor hinders either party. The chancellor found that stability of home environment favors Jennifer over Kevin. However, the record shows that Jennifer had twice tried to kill herself and admitted the stress of raising a child contributes to her mental problems. While the court accused Kevin of preventing Jennifer from seeing their son when she was lucid, this was not an appropriate factor for consideration since testimony was presented that this was done to assist Jennifer in her coping with her mental disorder and is not really relevant to the parent-child relationship. Given these factors, the court’s judgment is reversed and rendered and Kevin is given custody of the child. |
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