Smullins v. Smullins
| Docket Number: | 2009-CA-00994-COA Linked Case(s): 2009-CA-00994-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-01-2011 Opinion Author: King, C.J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Child custody - Albright analysis - Newly discovered evidence - M.R.C.P. 59(a)(2) Judge(s) Concurring: Lee and Myers, P.JJ., Barnes, Ishee and Carlton, JJ. Dissenting Author : Griffis, J. Dissent Joined By : Roberts and Maxwell, JJ. Concurs in Result Only: Irving, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 08-08-2008 Appealed from: TISHOMINGO COUNTY CHANCERY COURT Judge: TALMADGE LITTLEJOHN Disposition: ENTERED A FINAL JUDGMENT OF DIVORCE AND AWARDED CUSTODY OF THE MINOR CHILD TO BRADLEY WAYNE SMULLINS Case Number: 2008-0151-71-L |
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| Party Name: | Attorney Name: | |||
| Appellant: | Shellie Smullins |
KIMBERLY DROWN KITCHENS, CHRISTOPHER E. KITCHENS |
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| Appellee: | Bradley Wayne Smullins | PHILLIP M. WHITEHEAD |
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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: Irreconcilable differences - Child custody - Albright analysis - Newly discovered evidence - M.R.C.P. 59(a)(2) |
| Summary of the Facts: | Bradley Smullins filed for a divorce from his wife Shellie Smullins and requested custody of their son. The court granted a divorce based on irreconcilable differences and awarded custody to Bradley. Shellie appeals. |
| Summary of Opinion Analysis: | Issue 1: Albright analysis Shellie argues that the chancellor erred in his Albright analysis and by granting Bradley custody of their son. In determining child custody, the polestar consideration is the best interest of the child, which is analyzed under the Albright factors. The chancellor found that Shellie’s promiscuity and Bradley’s alcohol and drug use made both parents equally deficient in the area of parenting skills. Shellie argues that the chancellor should have weighed this issue in her favor because Bradley’s drug and alcohol use limited his ability to parent. There is no evidence that Shellie’s alleged extramarital affair(s) had any bearing on her parenting skills. In addition, the law is clear that marital fault should not be used as a sanction in custody awards. However, Bradley’s drug and alcohol use can be very detrimental to his parenting skills. Bradley admitted that he daily drank six to eight beers and smoked marijuana. After acknowledging Bradley’s problematic alcohol and drug use, the chancellor still chose to award him custody. The chancellor’s findings are contradictory. When considering the continuity-of-care-prior-to-the-separation factor, the chancellor found that Bradley’s drug and alcohol use prevented him from appropriately taking care of the children, and he found that this factor favored Shellie. More evidence must be presented regarding these issues. Because Bradley lived in the marital home, the chancellor found that Bradley’s home was more stable than Shellie’s home, except for Bradley’s alcohol and drug use. Several cases support the finding that remaining in the marital home is a factor which weighs in favor of the stability of the home environment. However, Bradley’s alcohol and drug use is a huge exception that the chancellor did not account for in his reasoning. There is no evidence showing that Shellie’s home is unstable. The chancellor also determined that Shellie’s home was unstable because she had filed for bankruptcy. The evidence only shows that Shellie had filed for bankruptcy in 2003. There is not enough evidence in the record to support the chancellor’s position on this issue. Further inquiry into Shellie’s financial status must be done. Shellie argues that the chancellor should not have penalized her because her family does not live nearby. She also argues that the chancellor should have favored keeping the children together instead of separating them. There are no unusual or compelling circumstance that justify separating the couple’s son from his sisters (Shellie’s daughters from another marriage). Issue 2: Newly discovered evidence Shellie argues that the chancellor erred by denying her motion for a new trial based on newly discovered DNA evidence that Bradley was not the biological father of the couple’s son. A new trial under M.R.C.P. 59(a)(2) may be granted if the following are all satisfied: new evidence is discovered following the trial; due diligence on the part of the movant to discover the new evidence is shown or may be inferred; the evidence is material and not cumulative or impeaching; and the evidence is such that a new trial would probably produce a new result. The chancellor denied found that Shellie had failed to exercise due diligence. The chancellor refused to consider that the biological father of the couple’s son was willing and interested in establishing a relationship with him, finding that it was not properly before the court. The chancellor focused on Bradley’s best interest. However, Bradley’s best interest is not the primary analysis in this situation. The chancellor should have taken this new information under review to determine what would be in the child’s best interest. |
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