Lawrence v. Lawrence
| Docket Number: | 2004-CA-02387-COA Linked Case(s): 2004-CA-02387-COA ; 2004-CT-02387-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-29-2006 Opinion Author: Griffis, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Divorce: Adultery - Partial summary judgment - M.R.C.P. 56(c) - M.R.C.P. 6(b) - Child custody - Albright factors - Domestic violence - Section 93-5-24(9) Judge(s) Concurring: King, C.J., Lee, P.J., Southwick, Chandler, Barnes, Ishee and Roberts, JJ. Dissenting Author : Myers, P.J. 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: 11-03-2004 Appealed from: Lowndes County Chancery Court Judge: Robert L. Lancaster Disposition: FORMER HUSBAND GRANTED DIVORCE. CHANCELLOR AWARDED CUSTODY, GRANTED VISITATION, ORDERED CHILD SUPPORT AND DIVIDED MARITAL ASSETS. Case Number: 2003-0205 |
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| Party Name: | Attorney Name: | |||
| Appellant: | April Thornell Lawrence |
MARK A. CHINN, LEE ANN TURNER |
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| Appellee: | William Andrew Lawrence | ROBERT B. MARSHALL, JR. |
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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: Adultery - Partial summary judgment - M.R.C.P. 56(c) - M.R.C.P. 6(b) - Child custody - Albright factors - Domestic violence - Section 93-5-24(9) |
| Summary of the Facts: | April Lawrence filed an initial complaint for divorce from Andy Lawrence on the grounds of adultery or, in the alternative, irreconcilable differences. Even though the complaint for divorce was filed, the couple continued to reside together and were not legally separated. Eventually, April began to ask Andy to leave the marital residence, and the divorce proceedings were resumed. They continued to reside in the same household until April moved from the marital home into a rental home. The chancellor entered a temporary order that granted April custody of the two minor children and ordered Andy to pay child support. Andy filed a motion for summary judgment, claiming that he was entitled to judgment on the claim of adultery because April condoned his affair. The chancellor granted the motion, and the parties proceeded to trial on Andy’s complaint for divorce on the grounds of adultery. The chancellor granted Andy a divorce and awarded him custody of the two minor children. April appeals. |
| Summary of Opinion Analysis: | Issue 1: Partial summary judgment M.R.C.P. 56(c) requires that all matters upon which a party or the court may rely must be filed with the clerk and served on the other party prior to the hearing. Failure to do so is fatal to the motion under M.R.C.P. 56(c) and M.R.C.P. 6(b). Andy claimed that April condoned Andy’s adultery by resuming marital relations. April offered her affidavit where she testified about her belief that Andy resumed the marital relationship “merely as a ploy to defeat the grounds of adultery” and that he “has continued to have an affair.” Any subsequent conduct within a reasonable time after resumption of cohabitation which evidences an intent not to perform the conditions of the condonation in good faith, may be sufficient to avoid the defense of condonation, even though the conduct so complained of in and of itself may not be grounds for divorce. Thus, April’s personal belief that Andy resumed the marital relationship “merely as a ploy to defeat the grounds of adultery” presents a genuine issue of material fact in dispute that does not entitle Andy to a judgment as a matter of law. Issue 2: Albright factors The chancellor awarded custody of the couple’s children to Andy. April argues that the chancellor erred in his application of the Albright factors. April argues that the chancellor failed to properly address the continuity of care prior to separation. The chancellor simply relied on who was the caregiver at a particular date, the date of separation. The chancellor did not consider Andy’s actions that led to the separation, i.e. his infidelity. In fact, the evidence indicated that, during the course of the marriage, April was the primary caregiver. It was clearly erroneous for the chancellor to weigh this factor in favor of Andy. The chancellor found that each parent has the necessary basic parenting skills but then weighed the factor in favor of Andy. If neither parent appears to have superior parenting skills, the factor should favor neither. With regard to capacity to provide primary care, the chancellor places much greater emphasis on April’s infidelity, while seemingly ignoring Andy’s prior acts of infidelity. This is clearly in error. The record shows that both parents are willing to provide primary care for the children. With regard to moral fitness, the chancellor correctly found that both parties are guilty of adultery and recognized Andy’s violent behavior towards April. However, the chancellor then inexplicably disregarded Andy’s violence and relied on April’s extramarital affair to determine that the factor favored Andy. There is no evidence in the record to support this conclusion. Where both parties engage in extramarital affairs, neither should get the benefit of a finding of moral fitness. Additionally, it is error to ignore Andy’s past violent behavior toward April. With regard to the school and community record of the children, the chancellor found that the record supported the children remaining in the community, and he then determined that April was more likely to leave the community. There was no evidence in the record to support this conclusion. April did not testify to any plans to move from the community. April’s mother, brother and grandparents live in the community. From the evidence, April is just as likely to remain in the community as Andy. The chancellor determined that Andy demonstrated that he will subordinate his interest to the interest of his children. The chancellor concluded that April is not so willing to sacrifice. These conclusions are wholly unsupported by the record. There is no requirement that following a divorce the custodial parent remain single and devote his or her entire life only to the children. Indeed, after the termination of the marriage, it should be expected that single parents will socialize and will possibly remarry. Issue 3: Domestic violence April argues that the chancellor was in error when determining custody by not making specific findings of violence by Andy, as required by section 93-5-24(9). Andy argues that this issue is not appropriate because it is first argued on appeal. Based on the chancellor’s specific findings of violence and a history of violence, section 93-5-24(9) is applicable. The chancellor should comply with the statute on remand. |
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