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: 11-29-2011 Opinion Author: Griffis, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Child custody - Newly discovered evidence - M.R.C.P. 59 - Albright factors Judge(s) Concurring: Lee, C.J., Myers, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Non Participating Judge(s): Russell, J. Dissenting Author : Irving, P.J. 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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| Note: | The motion for rehearing is granted. The court’s original opinion is withdrawn, and this opinion is substituted in lieu thereof. | |
| 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 - Newly discovered evidence - M.R.C.P. 59 - Albright factors |
| Summary of the Facts: | The motion for rehearing is granted, and this opinion is substituted for the original opinion. Bradley Smullins filed for a divorce from his wife Shellie Smullins and requested custody of their son. The chancery court granted the divorce and awarded custody of the couple’s son to Bradley. Shellie filed a Motion for New Trial or, in the alternative, Motion for Reconsideration. Shellie asked the chancellor to grant a hearing on the “newly discovered evidence as to the paternity” of her son, and she requested that he determine “who is the appropriate person to be the custodial parent,” and to reconsider his findings on the Albright factors. DNA test results determined that Wendell Hunt was the son's biological father. The chancellor ruled that Shellie had failed to exercise due diligence in bringing this matter to the court's attention. The chancellor also ruled that he had previously addressed the Albright factors in great length, and that he would not reconsider the issue. Shellie appeals. |
| Summary of Opinion Analysis: | Issue 1: Newly discovered evidence A motion for a new trial based on new evidence is an extraordinary motion, and the requirements of the rule must be strictly met. The motion may not be granted unless the evidence was 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 not merely cumulative or impeaching; the evidence is material; the evidence is such that a new trial would probably produce a new result. Facts implying reasonable diligence must be provided by the movant. Prior to the chancellor’s decision and the judgment of divorce, the son’s paternity was not an issue that was litigated. Indeed, Bradley’s initial complaint alleged that the son was “born of the marriage.” Shellie’s answer admitted this allegation. The parties agreed to an order that dismissed the fault grounds and asked the chancery court to award a divorce based on the ground of irreconcilable differences. At the trial, the parties understood and agreed that the custody of the son would be decided by the chancellor. Shellie’s testimony indicated that Bradley was her son's father. Shellie did not testify, or otherwise imply, that Bradley was not the son’s biological father. Shellie argues that she was diligent in bringing this new evidence before the chancellor. In the motion for new trial, Shellie alleged that her son was conceived prior to the marriage, and that the parties knew of the possibility that Bradley was not his biological father. In her brief, Shellie admits that she knew at her son's birth that Bradley could not be the father. Both of these allegations are clear and emphatic admissions that there was no newly discovered evidence. Thus, the chancellor did not abuse his discretion when he denied Shellie's M.R.C.P. 59 motion for a new trial. Issue 2: Albright factors Shellie argues that the chancellor placed too much emphasis on Bradley's temporary care of their son and ignored the fact that she had taken care of him prior to the parties' separation. However, Shellie has cited no authority that compels the Court to find the chancellor in error on this finding. The chancellor was concerned with Bradley’s alcohol use and Shellie’s sexual promiscuity. The chancellor found them both equally deficient in the area of parenting skills. Shellie argues that the chancellor should have weighed this issue in her favor because Bradley's alcohol and drug use limited his ability to parent. However, Bradley testified that he had been sober for one year. There was also other testimony that Bradley cooked, cleaned, and washed clothes. The chancellor expressed his concerns about Shellie’s absence from her parental duties while she was involved in a non-marital relationship. Thus, the chancellor’s findings on this factor were not a sanction against an adulterous parent but instead considered the time and attention each parent paid to the children. The chancellor found that both parents loved their son, and this factor was equal to both parents. Shellie argues that the chancellor should have found this factor in her favor. However, the chancellor did not err when he determined that the son had strong emotional ties to both parents. Shellie argues that her adultery alone should not disqualify her as the custodial parent. This is true. However, this Albright factor requires the chancellor to consider the moral fitness of the parents. The chancellor was concerned with both Shellie's and Bradley's moral fitness. The chancellor determined that Bradley’s home was stable, and Shellie’s home environment was not stable. This finding is challenged by Shellie. It appears that the chancellor’s ultimate conclusion was based on the fact that Bradley continued to live in the marital home while Shellie had moved around often. There are several cases that support the finding that remaining in the marital home is a factor which weighs in favor of the stability of the home environment. 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. The presence of extended family is a legitimate factor to support awarding custody to a parent. While the placement of children with their siblings is not a concern that overrides the best interest of the child, our case law makes it clear that keeping siblings together is assumed to be in the best interest of a child, absent a showing that the circumstances in a particular case are to the contrary. Here, the chancellor recognized that this was a very close issue. He included a detailed discussion in which he considered whether it would be in the best interest of the couple’s son to separate him from his half-sisters. The chancellor’s consideration of this factor was proper and was supported by the evidence. Thus, the record provides sufficient evidence to support the chancellor’s decision to grant Bradley custody of the couple’s son. |
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