Klink v. Brewster
| Docket Number: | 2006-CA-01827-COA Linked Case(s): 2006-CA-01827-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-24-2008 Opinion Author: GRIFFIS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Child custody - Albright factors - Exclusion of witnesses - M.R.C.P. 37(b)(2)(B) Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Concurs in Result Only: KING, C.J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 08-23-2006 Appealed from: DeSoto County Chancery Court Judge: Percy L. Lynchard, Jr. Disposition: PATERNITY ESTABLISHED AND NATURAL FATHER AWARDED CUSTODY OF MINOR CHILD. MOTHER AWARDED VISITATION AND ORDERED TO PAY CHILD SUPPORT. Case Number: 05-06-947 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | KATHRYN C. KLINK |
LESLIE B. SHUMAKE |
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| Appellee: | MARC V. BREWSTER | JAMES W. AMOS, MALENDA HARRIS MEACHAM |
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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 - Exclusion of witnesses - M.R.C.P. 37(b)(2)(B) |
| Summary of the Facts: | While dating, Katie Klink and Marc Brewster had a child out of wedlock. Both parents filed for sole physical custody of the child. The chancellor awarded sole physical custody of the child to Marc. Katie appeals. |
| Summary of Opinion Analysis: | Issue 1: Custody The polestar consideration in child custody cases is the best interest and welfare of the child. Katie argues that the chancellor did not give sufficient weight to the fact that her son is of tender years. The chancellor merely weighed the age of the child as he would any other Albright factor. In fact, he weighed this factor in favor of Katie. The chancellor did not commit manifest error in determining that the child’s age favored Katie. Katie argues that the chancellor gave undue weight to the sex of the child. Albright clearly provides that the sex of the child may be considered by a chancellor when awarding custody. Katie argues that the chancellor erred by finding that Marc is the parent with the better parenting skills. The record shows that Marc routinely takes his son to the doctor, that he bathes his son, and that he plays with him. The record also reveals that Katie often forgot to give the child his medicine, that he often had diaper rash while he was in her care, and that he ingested lighter fluid while in her care. Thus, the chancellor’s ruling on this factor was supported by substantial evidence. Katie argues that the chancellor erred by finding that the employment responsibilities favored Marc. Marc has held the same job for five years. Katie testified that she works ten hours a week cleaning the houses of family and friends. The chancellor based his determination on the stability of Marc’s daily routine and this determination is supported by substantial evidence. Katie argues that the chancellor committed reversible error by determining that the moral fitness of the parties favored Marc. The evidence shows that Katie sometimes drank alcohol in front of her children. Also, she allowed individuals whom she knew used drugs to live in her house. Thus, there was sufficient evidence to support the chancellor’s findings regarding this factor. Katie argues that the chancellor erred by separating Jonathan from his three half sisters. However, he also has a half brother, another child of his father. Issue 2: Exclusion of witnesses Katie argues that the chancellor erred when he excluded all of her witnesses as a discovery violation, because this was against the best interest of the child. M.R.C.P. 37(b)(2)(B) provides that the court may enter an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence. Katie did not respond to Marc’s discovery request until two days before trial. The Mississippi Rules of Civil Procedure were promulgated to avoid such actions. |
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