Flowers v. Flowers


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Docket Number: 2010-CA-01957-COA
Oral Argument: 04-17-2012
 

 

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Court of Appeals: Opinion Link
Opinion Date: 06-19-2012
Opinion Author: Ishee, J.
Holding: Affirmed

Additional Case Information: Topic: Divorce: Irreconcilable differences - Child custody - Albright factors - Moral fitness - Age and sex/health factors - Parenting skills - Home, school and community record - Other relevant factors
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Roberts, Maxwell and Russell, JJ.
Non Participating Judge(s): Fair, J.
Concurs in Result Only: Carlton, J., Concurs in Result Only Without Separate Written Opinion.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CUSTODY

Trial Court: Date of Trial Judgment: 09-01-2010
Appealed from: Forrest County Chancery Court
Judge: J. Buffington
Disposition: PRIMARY PHYSICAL CUSTODY AWARDED TO APPELLEE
Case Number: 08-1093-GN-W

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Sharon Thompson Flowers




OLIVER E. DIAZ JR. DAVID NEIL MCCARTY



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: Allen Flowers KATE S. EIDT  

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    Topic: Divorce: Irreconcilable differences - Child custody - Albright factors - Moral fitness - Age and sex/health factors - Parenting skills - Home, school and community record - Other relevant factors

    Summary of the Facts: Sharon Flowers and Allen Flowers were granted a divorce based on irreconcilable differences. The chancery court awarded the parties joint legal custody of the two minor children and awarded primary physical custody of the children to Allen, with Sharon receiving liberal visitation. Sharon appeals.

    Summary of Opinion Analysis: Issue 1: Moral fitness With regard to the court’s custody decision, Sharon argues the trial court improperly sanctioned her for a post-separation liaison. While adultery may be considered, the appropriate consideration is its effect on the children. In this case, the chancellor found four Albright factors favored Allen and one Albright factor favored Sharon. Thus, the adultery was but one factor in the overall consideration. Even if the chancellor had not found the moral-fitness-of-the-parents factor favored Allen, he nonetheless would have had three factors in his favor. Therefore, Sharon’s adultery was not the decisive factor regarding custody. Issue 2: Age and sex/health factors The chancery court found the age-of-the-child factor was neutral “in that both children are now in school.” With regard to the sex-and-health-of-the-child factor, the chancery court stated: “Both children are male children[,] and therefore this factor favors the father.” Sharon argues the chancery court erred by finding the sex-and-health factor favored Allen solely on the basis of the children’s gender. She further argues the two factors should have been grouped together as one factor, instead of treating them as two separate factors. It is correct that many cases group “age, sex, and health” together into one Albright factor. There are also a variety of cases that continue to divide the factors into two separate categories. Thus, either approach is an acceptable analysis of the Albright factors. Sharon also argues that because she was the primary caretaker for the children’s health, the health factor should have been found in her favor. However, there was ample evidence that Allen was the parent who maintained the children’s mental health by having them tested and maintaining a tutoring schedule. Sharon’s argument that the chancellor improperly analyzed the sex factor is also without merit. When the health aspect is neutral, the child’s gender in relation to that of the parent is clearly relevant. Issue 3: Parenting skills Sharon argues the chancery court failed to determine which parent has the capacity to provide primary care, thus ignoring a major component of the analysis as required by Albright. There is no evidence in the record to suggest that Allen does not have the capacity to provide primary care. While both parties acknowledge that Sharon was the primary caregiver when the children were infants, Allen’s role in the child rearing has increased as the children have grown older. He is actively involved in the children’s religious training and schooling and is the primary disciplinarian. Moreover, although Allen admitted to using various caregivers, the facts establish that many of those individuals were used prior to the separation by both parties. Issue 4: Home, school and community record Although Sharon argues the chancery court failed to make a proper determination regarding the school district her children would attend if she received primary custody, she made it almost impossible for the chancery court or GAL to do so. It was not until the fourth day of trial that Sharon informed the chancery court where she would be living. When she did inform the chancery court where her new residence was located, it was determined that the home was, in fact, outside of the children’s current school district. While Sharon’s living arrangement remained uncertain, Allen remained in possession of the only house in which the children had ever resided. Issue 5: Other relevant factors Because one of the children requires consistent tutoring and Sharon did not take him to tutoring during the summer months, the chancellor found this factor favored Allen. Sharon argues this should have been considered under a part of the factor for the child’s home, school, and community record; therefore, the chancery court improperly split that consideration into two factors, which favored Allen. While Sharon claims that this consideration should fall under the child’s home, school, and community record, the issue is not his need for tutoring, but Sharon’s refusal to follow court orders and take her son to tutoring. Accordingly, the son’s unique tutoring situation was properly analyzed under “other factors relevant to the parent-child relationship.”


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