Love v. Love
| Docket Number: | 2010-CA-00450-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-15-2011 Opinion Author: Maxwell, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Child custody - Albright factors - Exclusion of photographs Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts and Russell, JJ. Non Participating Judge(s): Myers and Carlton, JJ. Concur in Part, Dissent in Part 1: Irving, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 09-29-2009 Appealed from: Washington County Chancery Court Judge: Marie Wilson Disposition: GRANTED ID DIVORCE AND AWARDED CUSTODY OF MINOR SON TO MOTHER Case Number: 0800019 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Aaron Love |
RABUN JONES |
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| Appellee: | Jennifer Lynn Love | J. MACK VARNER PENNY B. LAWSON | ||
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 factors - Exclusion of photographs |
| Summary of the Facts: | Aaron and Jennifer Love were granted an irreconcilable differences divorce. The chancellor determined their young son’s best interest would be served by awarding custody to Jennifer. Aaron appeals. |
| Summary of Opinion Analysis: | Issue 1: Child custody Aaron argues that the chancellor misapplied the law and misinterpreted the facts when she awarded Jennifer two Albright factors—parenting skills and emotional ties of the parent and child; failed to award Aaron two factors—age, sex, and health of the child and continuity of care; and determined it was in their son’s best interest that Jennifer have custody. The chancellor devoted the majority of the discussion in her order to parenting skills. While finding neither to be a perfect parent, the chancellor found Aaron’s evidence about Jennifer’s mistakes—much of which the chancellor did not find credible—was outweighed by Jennifer’s care and concern for her son. Aaron argues the chancellor manifestly erred in believing Jennifer’s explanations over his. While concerned with some of Jennifer’s actions—such as keeping a latch on her son’s door—the chancellor was also impressed with Jennifer’s acceptance of responsibility for herself and her child and her adaption of her work-life to accommodate her son. The chancellor also found it important that Jennifer had established her own household while Aaron continued to live with his parents. Based on this evidence, the chancellor did not manifestly err in deciding this factor favored Jennifer. Aaron argues the chancellor improperly gave more weight to Jennifer’s ties to their son than the son’s ties to each of his parents. The chancellor found that Jennifer demonstrated “how interwoven their lives and schedules have become.” There is substantial evidence to support this conclusion. Aaron argues the chancellor misappropriated a divorce defense to child custody. In her bench ruling, the chancellor reasoned, because Aaron knew Jennifer was a smoker before he had a child with her and married her, he should not be able to “benefit” from her smoking which considering the health of the child. He also argues that the chancellor, in her original analysis of this factor, improperly focused on Jennifer’s present condition as an ex-smoker. While one spouse’s knowledge of the other’s habits at the time of marriage has no place in best interest-of-the-child analysis, this was not the chancellor’s reason for finding this factor did not weigh against Jennifer. Contrary to Aaron’s assertion, the chancellor did consider Jennifer’s past as a smoker. But the chancellor believed Jennifer when she maintained she had quit smoking. The chancellor weighed both Jennifer’s past and present conduct and determined this factor should favor neither parent. Substantial evidence supports this conclusion. With regard to continuity of care, Aaron argues the chancellor failed to acknowledge that the temporary order gave him more time with the couple’s son — four days to Jennifer’s three. However, Aaron’s additional day did not necessitate the chancellor find Aaron provided a greater continuity of care. The chancellor’s interpretation of the temporary order—that it gave both parents shared custody, not Aaron custody and Jennifer visitation—was supported by substantial evidence. Much of the chancellor’s rationale for favoring Aaron on the moral-fitness factor was based on Jennifer’s testimony she had become pregnant with her boyfriend, whom she did not intend to marry. The chancellor also favorably considered Aaron’s initial testimony that he was not in a sexual relationship, which he later admitted was false at a post-trial hearing. While not changing any specific Albright findings at the reconsideration hearing, the chancellor did weigh Aaron’s previous perjured testimony along with his additional photographic evidence of Jennifer’s drinking, proximity to drug use, and keeping a gun within their son’s reach. However, there was no error in the chancellor’s decision that custody should not be altered. Issue 2: Photographs Aaron argues that the chancellor erred in excluding photographs taken by an investigator hired by Aaron. After hearing testimony from the investigator, the chancellor admitted the photographs. The chancellor also allowed additional testimony from both parties about whether Jennifer indeed drank, did drugs, and had a loaded gun in her home. But the chancellor excluded additional photographs taken from Jennifer’s camera showing Jennifer taking shots of liquor and her brother apparently smoking pot in her house, which Aaron sought to introduce to impeach Jennifer. The chancellor expressly limited her reconsideration to the admission and reliability of the investigator’s photographs. While the investigator, Aaron, and Jennifer were permitted to testify, the chancellor sustained objections by both parties to evidence that could have been offered at the custody hearing but was not. There is no reversible error in this decision. |
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