Webb v. Webb
| Docket Number: | 2010-CA-01626-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 01-24-2012 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Albright factors - Child custody - Joint custody Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Ishee, Carlton and Russell, JJ. Non Participating Judge(s): Fair, J. Concur in Part, Concur in Result 1: Barnes and Maxwell, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 05-20-2010 Appealed from: Monroe County Chancery Court Judge: Talmadge Littlejohn Disposition: CUSTODY OF DAUGHTER AWARDED TO APPELLEE Case Number: 2007-000296-48-TDL |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Brian Keith Webb |
JASON D. HERRING
HENDERSON MCKELVY JONES |
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| Appellee: | Patricia Alice Webb | LUANNE STARK THOMPSON | ||
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 - Albright factors - Child custody - Joint custody |
| Summary of the Facts: | Brian Webb and Patricia Webb were granted a divorce based on irreconcilable differences. They left the issue of custody for the chancery court to decide. The chancellor awarded sole legal and physical custody of the parties’ daughter to Patricia. Brian appeals. |
| Summary of Opinion Analysis: | Issue 1: Albright factors Brian argues that the chancellor erred in finding that certain Albright factors favored Patricia over him. In child custody cases, the polestar consideration is the best interest and welfare of the child. Brian argues the chancellor erred in relying on the evidence presented of Brian’s smoking, alcohol consumption, and drug use when finding in favor of Patricia on the moral fitness factor. Brian also argues Patricia testified that she had also consumed alcohol, used illegal drugs, and had two abortions, which the chancellor failed to consider in this factor. The chancellor held the factor favored Patricia based on the cumulative effect of Brian’s prior drug use and alcohol consumption. There is evidence in the record to support the chancellor’s findings. Brian argues the chancellor erred in finding in favor of Patricia on the factor involving parent’s employment and employment responsibilities. Brian is currently disabled, and his income is primarily from monthly social security disability checks. Brian argues he has more time to spend with their daughter as opposed to Patricia who has a spotty employment history, but when Patricia is employed she has to work long hours away from her daughter. The chancellor erred in finding this factor in favor of Patricia, since Brian has a stable income and still has the flexibility to spend time with the child. The next factor Brian argues should have been found in his favor is the physical and mental health of the parent. Brian is currently considered disabled and receives social security disability checks. As to Patricia’s health, there was testimony at the hearing that she had taken Zocor at one time and possibly has a heart murmur. There was substantial evidence to support the chancellor’s finding that this factor favored Patricia. Brian argues the chancellor failed to consider all the evidence presented when he found the parenting-skills factor favored Patricia. The key evidence that the chancellor relied on when awarding this factor in favor of Patricia was the chancellor’s concerns about Brian’s temper. Evidence was presented that there was a large hole in the wall and that the pantry doors were torn off the wall. The chancellor’s decision to award this factor in favor of Patricia was not manifestly wrong or clearly erroneous. Brian argues that the chancellor erred in finding that the factor of the home, school, and community record favored neither parent. The chancellor found Brian had diligently helped prepare his daughter for school and that Patricia had also helped as well; therefore, this factor was neutral. The chancellor did not err on this factor. Brian disputes the chancellor’s finding the home-and-employment-stability factor favored neither party. However, the record shows that the chancellor based his decision on substantial evidence. Brian argues that the chancellor focused too much on the impact of separating the daughter from her half sister and not enough on separating her from her paternal grandmother. There was testimony at trial that the daughter was close to her half sister. Thus, the chancellor did not err in finding that it was in the daughter’s best interest not to be separated from her sister. Issue 2: Joint custody Brian argues that the chancellor erred in refusing to grant him and Patricia joint custody of their daughter. The decision to award or not award joint custody is for the chancellor to determine as he or she is in the best position to evaluate the credibility, sincerity, capabilities, and intentions of the parties. Thus, this issue is without merit. |
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