Boyd v. Boyd


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Docket Number: 2010-CA-00200-COA
Linked Case(s): 2010-CA-00200-COA

Court of Appeals: Opinion Link
Opinion Date: 10-11-2011
Opinion Author: Ishee, J.
Holding: Affirmed

Additional Case Information: Topic: Divorce: Irreconcilable differences - Requests for admission - M.R.C.P. 36 - Albright analysis - Child custody - Preference of child - Domestic violence - Section 93-5-24(9)(a)(i)
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Roberts, Carlton, Maxwell and Russell, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 01-05-2010
Appealed from: Leake County Chancery Court
Judge: Cynthia Brewer
Disposition: GRANTED DIVORCE ON THE GROUND OF IRRECONCILABLE DIFFERENCES AND AWARDED CUSTODY OF CHILDREN TO MATTHEW BOYD
Case Number: CH07-0480

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Lisa King Boyd




JAMES C. MAYO



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: Edward Matthew Boyd ALAN D. RHEA  

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    Topic: Divorce: Irreconcilable differences - Requests for admission - M.R.C.P. 36 - Albright analysis - Child custody - Preference of child - Domestic violence - Section 93-5-24(9)(a)(i)

    Summary of the Facts: Lisa Boyd filed for divorce from Matthew Boyd, citing Matthew’s habitual cruel and inhuman treatment toward her and, in the alternative, irreconcilable differences. Matthew filed a counterclaim for divorce, claiming that Lisa was guilty of habitual cruel and inhuman treatment and adultery and, alternatively, that irreconcilable differences had arisen and existed between the parties. The parties eventually withdrew their fault grounds and submitted the following issues to be determined by the court: custody and visitation of the children; child support; who would claim the children as a tax deduction for federal and state income taxes; who would pay health insurance for the minor children; use and ownership of the three marital vehicles; and payment of the GAL’s fees. The chancellor granted the divorce and awarded primary custody of the couple’s five younger girls to Matthew, with Lisa receiving liberal visitation. Lisa was awarded primary custody of the oldest daughter, with Matthew receiving liberal visitation. Lisa appeals.

    Summary of Opinion Analysis: Issue 1: Requests for admission Lisa argues that the chancery court erred by deeming Matthew’s requests for admission admitted, by overruling Lisa’s motion to reconsider, and by considering Lisa’s admissions as a major factor in its reasoning for awarding custody of the children to Matthew. Matthew originally sent his requests for admission to Lisa on April 16, 2008. She failed to respond to the requests within the required time under M.R.C.P. 36. The first agreed-upon scheduling order, which was signed by the chancellor and both parties’ counsel, required the answers to the requests for admission be served on each party by February 1, 2009. Lisa again failed to meet the deadline. Instead, she filed a motion for a continuance on February 18, 2009, which continued the case until March 25, 2009. On April 1, 2009, a second agreed-upon scheduling order was filed, which provided a general requirement that the parties were to provide “all responses to requests for admissions” by July 1, 2009. Again, the chancellor, as well as both parties’ counsel, signed this order. Operating under this second scheduling order, Lisa finally submitted her responses to Matthew’s requests for admission on April 16, 2009. Rule 36(a) states that a party has thirty days in which to submit a response to a request for admission, or within forty-five days after service of the summons upon a defendant. Matters will be deemed admitted after this time period, unless the court allows for either a shorter or longer period of time in which to answer. A certain amount of discretion is vested in the chancellor with respect to whether he or she will take matters as admitted. Matthew argues that Lisa did not seek any relief provided under Rule 36(b) to amend or withdraw the admissions. Moreover, Matthew asserts that the second scheduling order in 2009 does not apply to his initial request for admissions, because the deadline for Lisa to answer that request had already passed in 2008. The record is clear that Lisa filed her responses to Matthew’s requests for admission almost one year after they were due. She failed to request a withdrawal or amendment of the admissions prior to trial, nor did she provide the chancery court with any excuse to justify the dilatory response. Thus, the operation of the rules deems the matters admitted. Although the chancellor erred in stating that Rule 36 does not support an oral request at trial for the amendment, the chancery court did not abuse its discretion in denying Lisa’s oral request to amend the admissions. She had multiple opportunities to answer the requests for admission, or seek the withdrawal of or to amend the admissions, but she failed to avail herself of the remedies provided under Rule 36(b). Issue 2: Albright analysis Lisa argues that the chancery court erred by relying on the admissions to determine custody of the five minor children. Child custody is a judicial determination, and is never to be regarded as a merely evidentiary matter. Thus, basing a determination of child custody solely on a Rule 36 admission is improper. Here, the chancellor used three admissions as part of her Albright analysis to determine child custody. Lisa admitted that Matthew was the children’s primary caregiver prior to the separation. Lisa admitted that Matthew’s mother had to deliver and pick up the children from school, daycare, and church because she was not dependable and that the children requested Matthew deliver them to school because she was unable to have them there on time. Lisa admitted that she had committed adultery and that her habitual cruel and inhuman treatment toward Matthew had led to the parties’ separation. While three of the ten admissions were used in the chancery court’s analysis, it is clear that the admissions were not the sole basis for the custody decision. The chancellor heard all of the testimony at trial and used the GAL’s report as part of her consideration, in addition to the admissions by Lisa. Therefore, this issue is without merit. In addition, the chancellor did not abuse her discretion in weighing the Albright factors. Issue 3: Custody preference Lisa argues that the chancellor erred by awarding custody of Mariah, age fourteen, to Matthew, after Mariah had stated a preference to live with her biological mother, Lisa. Mariah initially told the GAL that she did not have a preference for either parent. However, the day before trial, Mariah filed a preference statement choosing to live with Lisa. The chancellor is not bound by the election of a minor child. However, if a chancellor refuses to follow a child’s election, the chancellor must place into the record the reasons for the refusal. From the language of the chancery court’s judgment, it appears that the chancellor was concerned with separating the minor siblings. While there is a strong preference for keeping siblings together unless unusual circumstances justify their separation, keeping siblings together is not required. Although the chancery court did not honor Mariah’s preference to live with her mother, the chancery court did not manifestly err by awarding custody of Mariah to Matthew. Issue 4: Domestic violence Lisa argues that the chancery court failed to make written findings to document how and why the presumption of Matthew having a history of family violence was rebutted under section 93-5-24(9)(a)(i). Lisa argues that the chancellor ignored numerous incidents of Matthew’s violence over a prolonged period of time, which should have triggered the presumption. Instead, the chancery court found the statute was triggered by only one incident where Matthew broke Lisa’s tail bone. Although intent is not required in order to trigger the presumption, the chancellor held that the presumption had been overcome by Matthew voluntarily completing anger management counseling, seeing a counselor at times when issues arose, and by abstaining from alcohol in the presence of the children. She also noted that the incident with Lisa occurred several years ago, and no further acts of violence had been reported. The chancellor’s decision is not an abuse of discretion.


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