Opinion
No. 2009-CA-00994-COA.
February 1, 2011.
TRIAL JUDGE: HON. TALMADGE D. LITTLEJOHN, DATE OF JUDGMENT: 08/08/2008
COURT FROM WHICH APPEALED: TISHOMINGO COUNTY CHANCERY COURT
TRIAL COURT DISPOSITION: ENTERED A FINAL JUDGMENT OF DIVORCE AND AWARDED CUSTODY OF THE MINOR CHILD TO BRADLEY WAYNE SMULLINS
DISPOSITION: REVERSED AND REMANDED
ATTORNEYS FOR APPELLANT: KIMBERLY DROWN KITCHENS, CHRISTOPHER E. KITCHENS
ATTORNEY FOR APPELLEE: PHILLIP M. WHITEHEAD
BEFORE KING, C.J., BARNES AND CARLTON, JJ.
¶ 1. Bradley Wayne Smullins filed for a divorce from his wife Shellie Smullins and requested custody of their son, Devinn Smullins. The Chancery Court of Tishomingo County granted the divorce and awarded custody of Devinn to Bradley. Aggrieved, Shellie appeals raising two issues:
In the briefs and trial transcript regarding this case, the child's first name is repeatedly spelled "Devon." However, the pleadings suggest that the child's first name is legally spelled "Devinn."
I. Whether the chancellor erred in his analysis of the Albright factors and by awarding custody of Devinn to Bradley; and
II. Whether the chancellor erred by denying her motion for a new trial or, alternatively, motion for reconsideration in spite of new DNA evidence proving that Bradley is not Devinn's biological father.
Finding error, we reverse and remand this case for a new trial.
FACTS AND PROCEDURAL HISTORY
¶ 2. Bradley and Shellie were married on March 26, 2001. Shellie already had two daughters from a previous relationship. Later that year, Shellie gave birth to Devinn, a baby boy, on November 24, 2001.
¶ 3. In March 2008, Shellie left Bradley, leaving the children in the home with him. On April 8, 2008, Shellie took the children out of school and did not return them to Bradley. The same day, Bradley filed a complaint for divorce alleging adultery and requesting emergency custody of the children. The chancellor found that the children had been in Bradley's care, and Bradley did not know Shellie's whereabouts. Thus, the chancellor found that it was in the children's best interests to be temporarily placed in Bradley's custody.
¶ 4. Shellie filed a motion to set aside the emergency custody order and a complaint for divorce, alleging cruel and inhuman treatment and habitual drunkenness and drug use. In regard to custody, Shellie argued that Bradley's request for custody of her daughters should be dismissed because he is not their biological father. The chancellor dismissed Bradley's request for custody of the girls. Shellie also argued that she should be awarded custody of Devinn.
¶ 5. Shellie and Bradley agreed to a divorce based on irreconcilable differences. The chancellor held a hearing on the issues of the custody of Devinn, visitation, and child support. The following evidence was presented during the hearing.
I. Shellie's Testimony
¶ 6. Shellie testified that she left Bradley because of his drinking and because he urinated in the bed. Shellie stated that everyday when Bradley returned home from work, he drank beer and smoked marijuana outside in the shed. According to Shellie, Bradley's addictions prevented him from interacting with the family. When Shellie worked the nightshift, Jacie Jones, her twelve-year-old daughter, baby-sat the children. Shellie testified that when she took the children away from Bradley in April 2008, they stayed with her friend Brian Hill for a few days. Shellie denied having an affair with Hill.
¶ 7. At the time of the hearing, Shellie was renting a house from her brother for $400 per month. Her grandparents lived nearby. However, because of their age, Shellie stated that she did not ask her grandparents for help. Shellie testified that Jacie baby-sits while she is working.
II. Bradley's Testimony
¶ 8. Bradley testified that Shellie left him for Hill, and he learned about their affair by viewing Shellie's phone records. According to Bradley, this was not Shellie's first affair; she had an affair with Chris Banks in 2003. Bradley also testified that Shellie had a profile on an Internet-dating web site, which he did not approve. Bradley expressed concern about Shellie having the children around other men. Also, because Shellie had filed for bankruptcy in 2003, Bradley stated that he was more financially stable than Shellie.
¶ 9. Bradley admitted to drinking six to eight beers per day, and he admitted using marijuana on a daily basis. However, Bradley testified that he never drank or smoked in front of the children, and he claimed that he had been sober ever since he had obtained custody of the children. He stated that he had taken four drug tests over the past year, and all tests results were negative. Bradley stated that when Shellie worked the night shift, he was the primary caretaker for the children: feeding them, bathing them, and taking care of their other needs. Lastly, Bradley testified that he had the ability to take care of Devinn and that his parents, who lived next door to him, were willing to help.
III. Other Testimony
¶ 10. Banks, Shellie's former boyfriend, testified that he and Shellie had an affair in 2003. Banks stated that he and Shellie had sex on back roads and at friends' houses. Banks testified that Shellie brought her children to two of his baseball games, and they never did anything inappropriate in front of the children.
¶ 11. Elizabeth Smullins, Bradley's mother, testified that Bradley normally took care of the children because Shellie worked the night shift. She affirmed that Bradley had not had a drink or smoked marijuana since he had obtained temporary custody of the children. Elizabeth stated that Bradley had not attended a rehabilitation program, but he had sought counseling from his pastor. Elizabeth also voiced her willingness to assist Bradley in Devinn's care.
¶ 12. Chris Murrah, Bradley's friend, observed Bradley taking care of the children. Murrah never saw Bradley drink or smoke marijuana in front of the children. Murrah also testified that he had given Bradley urine for a drug test once because Bradley had been smoking marijuana.
¶ 13. Debbie Netherly, Shellie's mother, testified that she would call to check on the children when Shellie worked the night shift, and it sounded like a circus in the home. Netherly stated that Bradley was always outside in the shed when she called the home. Netherly maintained that whenever she visited Shellie and Bradley's home, Bradley always had a cup in his hand, and he smelled of beer.
¶ 14. Jacie testified that Shellie would take them to and from school. Jacie stated that in the afternoons, they would go to Bradley's parents' house or stay at home alone, where Jacie would look after her siblings. Jacie testified that Bradley would get home from work between 3:00 p.m. and 5:00 p.m., and he would go to the shed to drink. Jacie maintained that Bradley would not check on them, and he did not spend a lot of time with them. Jacie stated that she was responsible for making dinner and getting the children ready for bed. Sometimes, Bradley would help Jacie make dinner.
IV. The Chancellor's Order
¶ 15. The chancellor analyzed the Albright factors in a bench opinion, which we have summarized as follows:
(1) Age, Sex, and Health of the Child — The chancellor determined that Devinn was six years old and in the first grade. Besides occasional sunburns, Devinn was in good health. The chancellor determined that Devinn was no longer of tender years and could be equally cared for by either parent. The chancellor determined that this factor favored Bradley.
(2) Continuity of Care Prior to the Separation — The chancellor found that although Bradley did not drink in front of the children, he was too drunk to take care of the children. Thus, the chancellor determined that this favor factored Shellie.
(3) Parenting Skills — The chancellor noted that Bradley's drinking problem and Shellie's promiscuity made them equally deficient in this area.
(4) Employment — The chancellor found that this factor was equal to both parents.
(5) Emotional Ties of the Parent to the Child — The chancellor found this factor equal to both parents.
(6) Moral Fitness — Because of Bradley's drinking and drug use and Shellie's multiple affairs, the chancellor found that both parents were equally deficient in this area.
(7) Home, School, and Community Record — The chancellor found that both parents had helped Devinn with his schoolwork, and Devinn had good grades. Thus, this factor was equal to both parents.
(8) Preference of the Child — The chancellor found that Devinn was too young to establish a preference.
(9) Stability of the Home — The chancellor noted that with Shellie, the children were being juggled back and forth. The chancellor also noted that Shellie had filed for bankruptcy. In regard to Bradley, the chancellor found that although he had a drug and alcohol problem, his home was more stable. Thus, the chancellor found that this factor favored Bradley.
(10) Other Factors — The chancellor noted that Bradley's mother lived next door to him and offered to assist Bradley with Devinn's care. Shellie did not have the same support because her grandparents were elderly, and her parents lived far away. The chancellor noted that Jacie looked after her siblings, but he stated that this was not Jacie's responsibility. The chancellor noted that Bradley worked closer to home and Devinn's school. Thus, the chancellor found that this factor favored Bradley.
The chancellor expressed his belief that this was a close case and stated that he had placed equal emphasis on Bradley's drug and alcohol use and Shellie's adultery. Considering the best interest of Devinn, the chancellor awarded joint legal custody of Devinn to Shellie and Bradley and awarded primary physical custody to Bradley. Shellie was awarded visitation and ordered to pay $372 per month in child support.
¶ 16. The chancellor expressed to Bradley that he did not want Devinn to grow up and become an alcoholic. Thus, the chancellor appointed a guardian ad litem to review the case in a year and ordered Bradley to take four drug tests over the next year. However, this language was later stricken from the judgment.
V. Post-trial Proceedings
¶ 17. On March 12, 2009, Shellie filed a motion to reconsider or, alternatively, a motion for a new trial. Shellie argued that the chancellor erred in his Albright analysis and that new DNA evidence was available, proving that Bradley was not Devinn's biological father. During the hearing, Shellie testified that she and Bradley always knew that there was a possibility that Bradley was not Devinn's biological father. However, Bradley declined to take a DNA test when Devinn was born.
¶ 18. The DNA test determined that Wendell Hunt was Devinn's biological father. Hunt testified that he and Shellie were once engaged several years ago, and he was unaware that he had fathered a son by Shellie. Hunt expressed a desire to establish a relationship with Devinn. However, the chancellor prohibited further questions regarding Hunt's desire to have visitation with or custody of Devinn.
¶ 19. After hearing the evidence, the chancellor ruled that Shellie had failed to exercise due diligence in bringing this matter to the court's attention. Based on the doctrine of in loco parentis, the chancellor determined that Bradley had a right to have custody of Devinn. The chancellor noted that he had previously addressed the Albright factors in great length and did not reconsider the issue. With that, the chancellor denied Shellie's motions. Now, Shellie appeals the chancellor's decision.
ANALYSIS
I. Albright Analysis
¶ 20. Shellie argues that the chancellor erred in his Albright analysis and by granting Bradley custody of Devinn. This Court will not disturb a chancellor's decision regarding custody matters unless the chancellor has abused his discretion, was manifestly wrong, or applied an erroneous legal standard. Taylor v. Taylor, 909 So. 2d 1280, 1281 (_7) (Miss. Ct. App. 2005). The chancellor's findings of fact will stand as long as they are supported by substantial evidence. Id.
¶ 21. In determining child custody, the polestar consideration is the best interest of the child, which is analyzed under the Albright factors. Norman v. Norman, 962 So. 2d 718, 720 (_6) (Miss. Ct. App. 2007) (citing Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983)). Shellie challenges the chancellor's reasoning under several Albright factors, which are listed below.
A. Age, Sex, and Health of the Child
¶ 22. Devinn is a boy and was six years old at the time of the custody hearing. Because Devinn was no longer of tender years, the chancellor determined that he could be equally cared for by either parent. But the chancellor found that Bradley demonstrated the ability to care appropriately for Devinn while Devinn was temporarily in his care. Thus, the chancellor ruled that the age, sex, and health of Devinn favored Bradley.
¶ 23. Shellie argues that the chancellor placed too much emphasis on Bradley's temporary care of Devinn and ignored the fact that she had taken care of Devinn prior to the parties' separation. However, we find no reversible error in the chancellor's decision on this factor.
B. Parenting Skills
¶ 24. The chancellor found that Shellie's promiscuity and Bradley's alcohol and drug use made both parents equally deficient in the area of parenting skills. Shellie argues that the chancellor should have weighed this issue in her favor because Bradley's drug and alcohol use limited his ability to parent. We agree.
¶ 25. There is no evidence that Shellie's alleged extramarital affair(s) had any bearing on her parenting skills. In addition, the law is clear that "marital fault should not be used as a sanction in custody awards." Brekeen v. Brekeen, 880 So. 2d 280, 287 (_20) (Miss. 2004). However, Bradley's drug and alcohol use can be very detrimental to his parenting skills. Bradley admitted that he daily drank six to eight beers and smoked marijuana. There was also other testimony that Bradley routinely drank and smoked in the shed, leaving the children inside the home alone.
¶ 26. Bradley testified that he had been sober for one year. But it is clear that the chancellor still had concerns about Bradley's drug and alcohol use, stemming from Bradley's previous unsuccessful attempts to remain sober. In his bench opinion, the chancellor said that:
Now Mr. Smullins, the bee is on your back. Your father, according to your testimony, is an alcoholic and so are you. I don't want this child to grow up to be an alcoholic. As a result, I'm going to appoint [a guardian ad litem] to review this whole situation over the next year. . . . I'm going to require you to take at least four drug tests between now and one year from now to show conclusively to this Court whether or not you've lived up to what you have told this Court under oath you're going to do.
In his bench opinion, the chancellor also appointed a guardian ad litem to the case, ordered an evaluation of the case in one year, and ordered Bradley to take four drug tests within the next year. The chancellor requested Bradley's trial counsel to prepare the proposed judgment, and those requirements were included in the judgment. However, for reasons not explained, the chancellor struck that language from his judgment.
¶ 27. After acknowledging Bradley's problematic alcohol and drug use, the chancellor still chose to award him custody of Devinn. The chancellor's findings are contradictory. When considering the continuity-of-care-prior-to-the-separation factor, the chancellor found that Bradley's drug and alcohol use prevented him from appropriately taking care of the children, and he found that this factor favored Shellie.
¶ 28. The chancellor's ruling on the issue of parenting skills is quite troubling to this Court. We are baffled as to why the chancellor struck the language from his judgment that required a review of this case and ordered Bradley to take drug tests, and we are not satisfied with the evidence presented regarding Bradley's sobriety. This Court is in no way attempting to substitute its judgment for that of the chancellor's. However, more evidence must be presented regarding these issues.
C. Physical and Mental Health of Parents
¶ 29. The chancellor noted that Shellie had a prescription for Zoloft for depression, but she had only taken one pill. In regard to Bradley, the chancellor found that his alcohol and drug use negatively affected his mental health. Ultimately, the chancellor ruled that this factor was equal to both parents. We cannot say that the chancellor erred in this determination.
D. Emotional Ties
¶ 30. The chancellor found that Devinn had strong emotional ties to both Shellie and Bradley; thus, this factor favored both parents. Shellie argues that the chancellor should have found this factor in her favor. We disagree. The chancellor did not err by finding that Devinn had strong emotional ties to both parents. See Collins v. Collins, 20 So. 3d 683, 690 (_34) (Miss. Ct. App. 2008).
E. Moral Fitness
¶ 31. Because of Shellie's extramarital affairs and Bradley's drug and alcohol use, the chancellor found that both Shellie and Bradley were equally deficient in the area of moral fitness. Shellie argues that her adultery alone should not disqualify her as the custodial parent. While this is true, as previously discussed, the chancellor expressed that he was concerned with both Shellie's and Bradley's moral fitness. We cannot say that the chancellor erred in his decision on this issue.
F. Stability of the Home
¶ 32. Because Bradley lived in the marital home, the chancellor found that Bradley's home was more stable than Shellie's home, except for Bradley's alcohol and drug use. Several cases support the finding that remaining in the marital home is a factor which weighs in favor of the stability of the home environment. See, e.g., Woodham v. Woodham, 17 So. 3d 153, 158 (_17) (Miss. Ct. App. 2009) (finding that the stability-of-the-home factor favored the father because he remained in the marital home). However, Bradley's alcohol and drug use is a huge exception that the chancellor did not account for in his reasoning. There is no evidence showing that Shellie's home is unstable. The evidence simply shows that Shellie is renting a three-bedroom home from her brother. Thus, we find that the chancellor's reasoning on this point is not supported by the evidence.
¶ 33. The chancellor also determined that Shellie's home was unstable because she had filed for bankruptcy. The evidence only shows that Shellie had filed for bankruptcy in 2003. Shellie testified that, since that time, she has had no problems paying her bills. We find that there is not enough evidence in the record to support the chancellor's position on this issue. Further inquiry into Shellie's financial status must be done.
G. Other Factors
¶ 34. 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.
¶ 35. This Court has held that "the presence of extended family is a legitimate factor to support awarding custody to a parent." Collins, 20 So. 3d at 690 (_31). Thus, we find that the chancellor could have legitimately considered this factor in favor of Bradley.
¶ 36. In regard to the chancellor's separation of the children, "there is no general rule in this state that the best interest[s] of siblings [are] served by keeping them together." Id. at 691 (_37) (quoting C.W.L. v. R.A., 919 So. 2d 267, 273 (_21) (Miss. Ct. App. 2005)). However, "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." Id. (quoting Owens v. Owens, 950 So. 2d 202, 207 (_16) (Miss. Ct. App. 2006)).
¶ 37. In this case, we see no unusual or compelling circumstance that justify separating Devinn from his sisters. See Sootin v. Sootin, 737 So. 2d 1022, 1027 (_15) (Miss. Ct. App. 1998). This decision is not supported by the evidence.
II. Motion to Reconsider or Motion for a New Trial
¶ 38. Shellie argues that the chancellor erred by denying her motion to reconsider his Albright analysis. Alternatively, Shellie argues that the chancellor erred by denying her motion for a new trial based on newly discovered DNA evidence. Conversely, Bradley argues that the chancellor did not abuse his discretion by denying Shellie's motions because (1) Shellie did not exercise due diligence in obtaining the DNA evidence, and (2) this evidence did not warrant a new trial. We review a chancellor's denial of a motion to reconsider or a motion for a new trial for an abuse of discretion. See Wade v. Wade, 967 So. 2d 682, 684 (_7) (Miss. Ct. App. 2007).
¶ 39. In pertinent part, Mississippi Rule of Civil Procedure 59(a)(2) allows a chancellor to "open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment." A new trial may be granted if the following are all satisfied: (1) new evidence is discovered following the trial; (2) due diligence on the part of the movant to discover the new evidence is shown or may be inferred; (3) the evidence is material and not cumulative or impeaching; and (4) the evidence is such that a new trial would probably produce a new result. Id.
¶ 40. The chancellor denied Shellie's motions, finding that she had failed to exercise due diligence. The chancellor refused to consider that Hunt, Devinn's biological father, was willing and interested in establishing a relationship with Devinn, finding that it was not properly before the court. The chancellor also refused to consider evidence that Devinn's grades were suffering, ruling that the issue was more appropriate for a motion to modify custody. When the best interest of a child is at stake, the mechanics of how the issues are raised is not important. "In child custody cases, the chancellor's duty is to determine what is in the best interest of the child. As such, chancellors should consider any and all evidence which aids them in reaching the ultimate custody decision." Logan v. Logan, 730 So. 2d 1124, 1126 (_11) (Miss. 1998).
¶ 41. In regard to Shellie's motions, the chancellor focused on Bradley's best interest. However, Bradley's best interest is not the primary analysis in this situation. We determine that the chancellor should have taken this new information under review to determine what would be in Devinn's best interest.
¶ 42. Ultimately, we find that the chancellor erred by denying Shellie's motion to reconsider or, alternatively, a new trial. Over two years has passed since this custody hearing. Thus, we direct the chancellor to conduct a new Albright analysis to determine Devinn's best interest and to consider fully the present circumstances of Shellie, Bradley, and Hunt when determining custody and visitation rights.
¶ 43. THE JUDGMENT OF THE CHANCERY COURT OF TISHOMINGO COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE. LEE AND MYERS, P.JJ., BARNES, ISHEE AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS AND MAXWELL, JJ.
¶ 44. I respectfully dissent. I would affirm the chancellor's ruling.
¶ 45. I find that the chancellor's decision was within his discretion, was not manifestly wrong, and did not apply an erroneous legal standard. Taylor v. Taylor, 909 So. 2d 1280, 1281 (¶ 7) (Miss. Ct. App. 2005). Based on the chancellor's Albright analysis and the totality of the circumstances, I conclude that there was no reversible error in the chancellor's decision to grant custody to Bradley.
¶ 46. I also cannot join the majority's decision to find reversible error in the chancellor's denial of the motion to reconsider or, alternatively, a new trial. The newly discovered evidence is the paternity test. The real issue is whether Shellie either knew or should have known that Bradley was not Devinn's biological father. However, there are several reasons that I cannot find this to be newly discovered evidence that would permit relief under Rule 59 of the Mississippi Rules of Civil Procedure.
¶ 47. First, Shellie's brief admits that "Shellie knew at [Devinn]'s birth that Bradley could not be the father." This is a clear and emphatic admission that there was no newly discovered evidence. Indeed, from the beginning of Devinn's life, Shellie was aware of the fact that Bradley either was not or may not be Devinn's biological father. How can it be newly discovered evidence if she knew of it prior to the commencement of this legal action? It cannot, and it was not. The chancellor was correct that Shellie failed to exercise diligence in this matter.
¶ 48. Second, on April 18, 2008, Shellie served her responsive pleading and counterclaim. In her responsive pleading, Shellie admitted that Devinn was "born of the marriage." In her counterclaim, Shellie asserted that "there was one (1) child born unto the union of this marriage, namely, Devinn Wayne Smullins." Shellie signed and attached an affidavit that stated "the allegations and charges in said Answer and Counter-Complaint are true and correct." The Mississippi Supreme Court has held:
Our law has long presumed a child born during the course of a marriage to have been fathered by the husband. See Herring v. Goodson, 43 Miss. 392 (1870). We have called the presumption of legitimacy as "one of the strongest known to our law." Karenina By Vronsky v. Presley, 526 So. 2d 518, 523 (Miss. 1988); Coleman v. Hudson, 396 So. 2d 1024, 1026 (Miss. 1981); Madden v. Madden, 338 So. 2d 1000, 1001 (Miss. 1976).
In re Estate of Taylor, 609 So. 2d 390, 394 (Miss. 1992).
¶ 49. At the hearing, Shellie did not testify that Bradley was not Devinn's father. Thus, based on the pleadings and admissions, the chancellor's August 8, 2008 opinion properly established that Bradley was Devinn's father. The next day, on August 9, 2008, Shellie had a DNA test performed on Devinn.
¶ 50. Based on the admission in her brief and the pleadings that were filed, I am of the opinion that the chancellor did not err when he denied Shellie's Rule 59 motion. I simply cannot conclude that Shellie's claim that Bradley was not Devinn's biological father was newly discovered evidence. Therefore, I am of the opinion that there is no basis to grant her Rule 59 motion. Shellie's claim that this was newly discovered evidence, in my opinion, should be barred by the doctrine of judicial estoppel or constitute a fraud on the court.
¶ 51. As for Hunt, the majority relies on the fact that he was "willing and interested in establishing a relationship with" Devinn. I am not sure what procedural vehicle the majority expects the chancery court to follow to bring Hunt into this divorce proceeding. Hunt was neither a party to this lawsuit nor did he attempt to intervene. Indeed, if Hunt would like to assert his parental standing, the proper action would be in the form of a paternity action. He will then be subject to the applicable limitations periods.
¶ 52. Two things could have occurred but did not. First, Shellie could have made an issue in the divorce proceeding that Bradley was not Devinn's father. She did not then, and she should not be able to now. Second, either Shellie or Hunt could have filed a paternity action. Either of them could have then made a motion to consolidate the paternity action with Shellie's and Bradley's divorce action. However, they did not. The majority's motive in remanding this case may be noble, but it is not based on the case authority or the rules of procedure.
¶ 53. I find no authority for the majority's conclusion. Accordingly, I cannot join the majority, and I respectfully dissent.