DeVito v. DeVito
| Docket Number: | 2006-CA-01108-COA Linked Case(s): 2006-CA-01108-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-16-2007 Opinion Author: MYERS, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce - Child custody Judge(s) Concurring: KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 06-07-2006 Appealed from: RANKIN COUNTY CHANCERY COURT Judge: Thomas L. Zebert Disposition: CHILD CUSTODY AWARDED TO APPELLEE. Case Number: 55,958 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | EMILY LOUISE PARKER DEVITO |
MICHAEL P. YOUNGER |
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| Appellee: | THOMAS PETER DEVITO, JR. | J. EDWARD RAINER JOHN H. EMFINGER |
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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: | Divorce - Child custody |
| Summary of the Facts: | Emily DeVito and Thomas DeVito, Jr. divorced after a six-year marriage, from which one minor child was born. Thomas was awarded custody of the child, and Emily appeals. |
| Summary of Opinion Analysis: | Emily argues that the chancellor failed to consider under the Albright analysis certain evidence put forth regarding Thomas’ moral fitness and employment history, i.e., his viewing of pornography on two family computers, his veracity, his adultery in the presence of the child, and his spotty job history. With regard to the pornography, both parties’ experts testified that they were unable to identify the computer user responsible for downloading the images. Thus, the chancellor did not err in finding that this testimony was insufficient to base a finding that Thomas’ viewing of internet pornography weighed against him. With regard to an affair Thomas was alleged to have, Thomas, as well as the person alleged to be his lover, denied having ever participated in a sexual or romantic relationship, and Emily put forward no evidence proving otherwise. While the chancellor did mention Emily’s admitted affair in the context of analyzing her moral fitness under Albright, the entire finding that Thomas was favored was not solely based on her adultery. The chancellor also noted her alcohol use and traffic violations. With regard to employment, the chancellor found that Thomas had been employed with the same employer since December of 2003, as opposed to Emily’s five to six job transitions since that time. Further, the chancellor noted that Emily was required to work late two evenings a week. Given the findings on the Albright factors, the chancellor did not err in finding that the interests of the child are better served in the custody of the father. |
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