Sumrall v. Sumrall


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Docket Number: 2006-CA-01156-COA

Court of Appeals: Opinion Link
Opinion Date: 12-11-2007
Opinion Author: Barnes, J.
Holding: Affirmed

Additional Case Information: Topic: Child custody - Albright factors
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ.
Concurs in Result Only: IRVING, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CUSTODY; CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 06-20-2006
Appealed from: Jones County Chancery Court
Judge: Franklin C. McKenzie, Jr.
Disposition: DIVORCE GRANTED ON GROUNDS OF IRRECONCILABLE DIFFERENCES; CUSTODY OF MINOR CHILD AWARDED TO MOTHER.
Case Number: 2005-0986

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: VONDELL O. SUMRALL




JAY L. JERNIGAN



 
  • Appellant #1 Brief

  • Appellee: HEATHER MARIE SUMRALL MICHAEL D. MITCHELL  

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    Topic: Child custody - Albright factors

    Summary of the Facts: Heather conceived Vondell Sumrall’s child when she was sixteen and he was approximately twenty-two years old. The couple was not married at the time but subsequently married. After approximately one and one-half years of marriage, the couple separated. Heather and the couple’s son moved to Texas, where her mother lived. The couple agreed to a temporary order whereby the parties had joint legal and physical custody of their son. The parties were ordered to exchange physical custody every fourteen days until further notice. No child support payments were ordered for either party. After their son started school, Vondell and Heather had an oral agreement that he would live with Heather during the school year and visit Vondell during holidays. When their son was visiting Vondell and his parents in Jones County over the 2005 Thanksgiving holidays, Vondell refused to return him to Heather in Texas and filed a complaint for divorce and for custody of Luke. Vondell did not allow his son to visit his mother until an agreed order awarded Vondell temporary custody and Heather visitation rights over spring break. Heather counterclaimed for divorce and custody of her son. The couple agreed to and were granted a divorce based on irreconcilable differences. The chancellor awarded Heather custody of the couple’s son during the school year. The chancellor also ordered Vondell to begin paying child support at the statutory rate of fourteen percent of his take-home pay and to notify Heather of any changes in his employment status. Vondell appeals.

    Summary of Opinion Analysis: Vondell argues that the chancellor erred in applying the Albright factors regarding his son’s custody, specifically, the court finding that Heather’s two sons from two different men should not be separated. In determining child custody, the chancery court’s primary consideration is the best interest of the child, not marital fault. The court found that Vondell has really never exercised any care for his son, because Vondell’s parents basically care for him when he visits. Both Vondell and his father testified to this fact. Since Heather separated from Vondell and moved to Texas at the age of nineteen, she has taken care of herself and her son. She found a job at Wal-Mart and has continued to be employed by Wal-Mart, transferring to different stores as she moved. The chancellor considered Vondell unemployed because he did not currently hold a job in the job market, even though his parents pay him $1,000 per month and pay his bills in return for his helping around their house. Vondell argued that he had more time for the child than Heather because of his lax employment situation. However, Heather has found stable employment at Wal-Mart for several years. At trial, Heather admitted that since separating from Vondell, she had lived with two different men without the benefit of marriage. When asked why she did not divorce Vondell sooner, she stated she could not afford it. The chancellor found these facts weighed against Heather’s moral fitness as a parent. The couple’s son was doing well both at school in Texas and in Mississippi. Regarding the home front, however, because the son has a half-brother who resides with Heather also, the chancellor found it would be in the best interest of the children if the half-brothers were not separated. Based on the testimony at trial, there was substantial evidence that the two brothers are close and to separate them would be harmful, difficult, and not in their best interests. Even though Heather has moved several times, currently it appears that she has created a more stable home situation where she can stay and thrive. Additionally, her employment history has been much more stable than Vondell’s. The chancellor sufficiently articulated the rationale behind each of his findings for each Albright factor that applied, and the chancellor’s findings were supported by substantial, credible evidence from the record.


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