Benal v. Benal
| Docket Number: | 2008-CA-01181-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-17-2009 Opinion Author: MYERS, P.J. Holding: AFFIRMED IN PART; REVERSED AND REMANDED IN PART |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Child custody - Credibility of witnesses - Visitation - Section 93-5-2 - Section 93-27-102(c) Judge(s) Concurring: KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 06-30-2008 Appealed from: MADISON COUNTY CHANCERY COURT Judge: Cynthia Brewer Disposition: GRANTED DIVORCE, AWARDED CHILD SUPPORT, AND DIVIDED THE MARITAL ASSETS Case Number: 2007-1150 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JOHN PATRICK BENAL |
JULIE ANN EPPS,
E. MICHAEL MARKS |
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| Appellee: | ANGELA JEAN BENAL | FORD ANDREW HOWELL | ||
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: Irreconcilable differences - Child custody - Credibility of witnesses - Visitation - Section 93-5-2 - Section 93-27-102(c) |
| Summary of the Facts: | John and Angela Benal were granted a divorce based on irreconcilable differences. The chancellor awarded Angela sole physical and legal custody of the couple's three children. John appeals. |
| Summary of Opinion Analysis: | Issue 1: Custody When determining which parent should be awarded primary custody of a child, the court should consider age, health, and sex of the child; a determination of the parent who had the continuity of care prior to the separation; which parent has the best parenting skills and which has the willingness and capacity to provide primary childcare; the employment of the parent and the responsibilities of that employment; the physical and mental health and age of the parents; the emotional ties of parent and child; moral fitness of the 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; the stability of the home environment; and other relevant factors. John argues that the chancellor improperly applied the “tender years” doctrine, discriminated against him based upon his gender, and placed too much emphasis on the gender of the children. Age is merely one factor to be considered in a best-interest analysis. The chancellor does not mention the tender years doctrine anywhere in her opinion and final judgment. Moreover, the chancellor did not discriminate against John based upon his gender or placed too much emphasis on the gender of the children. Additionally, there was testimony that two of the children had expressed their desire to live with Angela. John also argues he provided continuous care for his children while they were living with him in Nebraska and Mississippi. The chancellor found that Angela had been a more constant factor in the girls’ lives, and the record supports this finding. John argues the chancellor should have found that parenting skills strongly favored him. Given that John was somewhat more involved in the children’s schoolwork and their extracurricular activities, the chancellor did not err in weighing this factor slightly in his favor. John argues that the court erred in not finding the willingness to provide primary care in his favor. However, the chancellor was not erroneous in her finding that this factor favored neither parent. Both parents were employed at the time of the hearing. Both parents were petitioning the court for custody, which evidences a willingness to provide primary care. John argues that the chancellor should have found that employment stability weighed in his favor. However, the chancellor was correct in holding that this factor favored neither party. The evidence showed that both parents have held a variety of jobs, some longer than others. John argues the chancellor erred in weighing home and school factor strongly in favor of Angela. Because the children had lived in Nebraska for ten years prior to them moving to Mississippi, where they had stayed for approximately six months, and John and Angela both had parents and relatives in or near their home in Nebraska, the chancellor did not err in finding this factor strongly favored Angela. John argues that his home is more stable than Angela’s. However, there was no evidence presented that called into question the stability of Angela’s home. Issue 2: Credibility John argues the trial court erred in discounting his testimony and the testimonies of his mother and brother that John was the primary caretaker of the children. As the sole trier of fact, the chancellor determines the credibility of the witnesses and what weight to give to the evidence. Issue 3: Visitation The chancellor found that she lacked the authority to order specific visitation because it was not an issue that was submitted to the court by the parties for determination. John argues the trial court erred in not ordering a specific visitation schedule. Pursuant to section 93-5-2(3), the trial court must review a separation agreement and find it to be adequate and sufficient with regard to the custody and maintenance of any child and the property rights between the parties. The chancellor erred in not ordering a specific visitation schedule. Although section 93-5-2 does not explicitly state that visitation must be agreed upon by the parties or adjudicated by the court before an irreconcilable differences divorce is granted, it is implicit in the statute’s language that visitation must be addressed if the issue of custody is submitted to the trial court for resolution. Additionally, section 93-27-102(c) defines “child custody determination” as “a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child." |
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