Sheila Tanner v. Windell Ray Tanner
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CA-00423-COA
SHEILA TANNER
APPELLANT
v.
WINDELL RAY TANNER
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
2/14/2006
HON. J. LARRY BUFFINGTON
SIMPSON COUNTY CHANCERY COURT
STANLEY ALEX SOREY
DANIEL DEWAYNE WARE
CIVIL - CUSTODY
FINAL JUDGMENT OF DIVORCE ENTERED.
PHYSICAL CUSTODY OF CHILD AWARDED
TO FATHER WITH VISITATION RIGHTS FOR
MOTHER.
AFFIRMED - 05/22/2007
BEFORE LEE, P.J., BARNES AND CARLTON, JJ.
LEE, P.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
Sheila and Windell Tanner were married on November 28, 1999, and separated on June 7,
2004. One child, Blair Elizabeth Tanner, was born from the union on April 14, 2002. Windell filed
his complaint for divorce on June 16, 2004, in the Simpson County Chancery Court. Windell sought
a divorce on the grounds of adultery or, in the alternative, irreconcilable differences. Sheila filed
her answer and counterclaim, wherein she alleged habitual cruel and inhuman treatment and
adultery. A temporary order was entered July 14, 2004, wherein the chancellor granted temporary
custody of Blair to Windell. On October 17, 2005, the parties entered an agreed order for divorce
on the grounds of irreconcilable differences but submitted the issue of child custody and support to
the chancellor.
¶2.
After a hearing on the matter, the chancellor made an on the record finding in regards to the
Albright factors, determining that two factors favored Sheila, two favored Windell and the remaining
factors were either equal or did not apply. The chancellor then appointed Bruce Smith as guardian
ad litem to review and report on Sheila’s health problems, Windell’s work schedule and anything
that might affect the best interest of Blair.
¶3.
On February 14, 2006, the guardian ad litem filed a report with the court stating that he did
not find Sheila’s health problems to be a danger to Blair. The guardian ad litem also found that both
parties appeared able to provide for the needs of Blair. On February 16, 2006, the chancellor entered
the final judgment of divorce, wherein he awarded the parties joint legal custody with Windell
having physical custody of Blair subject to Sheila’s visitation rights.
¶4.
Aggrieved, Sheila now appeals to this Court asserting that the chancellor’s decision was
clearly erroneous considering Windell’s work schedule and in failing to address the findings of the
guardian ad litem on the record.
STANDARD OF REVIEW
¶5.
This Court will not disturb the findings of a chancellor unless we find an abuse of discretion,
an erroneous application of law, or manifest error. Andrews v. Williams, 723 So. 2d 1175, 1176 (¶7)
(Miss. Ct. App. 1998). Thus, if we find substantial evidence in the record to support the chancellor’s
findings, we will not reverse. Wilbourne v. Wilbourne, 748 So. 2d 184, 186 (¶3) (Miss. Ct. App.
1999).
DISCUSSION
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I. WAS THE CHANCELLOR’S DECISION CLEARLY ERRONEOUS CONSIDERING
WINDELL’S WORK SCHEDULE?
¶6.
In her first issue on appeal, Sheila argues that the chancellor failed to consider the best
interests of Blair when considering Windell’s work schedule. Sheila contends that because she does
not work and Windell does, then it is in the best interest of Blair to grant custody to Sheila. It is well
settled that in child custody cases, the polestar consideration is the best interest of the child.
Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). The factors used to determine what is in
the “best interest” of a child with regard to custody are: (1) age, health and sex of the child; (2)
determination of the parent who had the continuity of care prior to the separation; (3) which parent
has the best parenting skills and which has the willingness and capacity to provide primary child
care; (4) the employment of the parents and responsibilities of that employment; (5) physical and
mental health and age of the parents; (6) emotional ties of the parent and child; (7) moral fitness of
the parents; (8) the home, school and community record of the child; (9) the preference of the child
at the age sufficient to express a preference by law; (10) stability of home environment and
employment of each parent; and (11) other factors relevant to the parent-child relationship. Id.
¶7.
An appellate court must find a chancellor in error where the chancellor improperly considers
and applies the Albright factors. Hollon v. Hollon, 784 So. 2d 943, 946 (¶11) (Miss. 2001). In
determining whether the chancellor abused his discretion in applying the Albright factors, the
appellate court “reviews the evidence and testimony presented at trial under each factor to ensure
[the chancellor’s] ruling was supported by record.” Id. at 947 (¶13).
¶8.
In weighing the employment factor, the chancellor found the following:
On first glance, you would think that would favor the father, however, the mother
does have disability in which she receives a disability check. The fact that she does
have that income and the fact that the father’s employment requires him to leave at
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4:30 in the morning and take the child somewhere, the Court finds that factor is equal
in that he has had the steady employment.
¶9.
The record supports this determination. Windell had a steady job with hours from 5:00 a.m.
until 3:30 p.m. On the way to work, Windell dropped Blair off at his mother’s house, which was
next door. His mother, Bobbie, would watch Blair until Windell picked her up after work. On the
days Bobbie had to be at work at 3:00 p.m., Windell’s aunt Debbie, who also lived on the same
property, would come watch Blair until Windell was off from work. Sheila also testified that even
prior to the separation, Sheila would drop Blair off at Bobbie’s house regularly.
¶10.
Although the chancellor found this factor to equally favor both parties, this factor alone was
not determinative of custody. We find substantial evidence to support the chancellor’s finding on
this factor and find that the chancellor conducted an on the record finding of all the Albright factors.
II. DID THE CHANCELLOR ERR IN FAILING TO ADDRESS ON THE RECORD THE
RECOMMENDATION OF THE GUARDIAN AD LITEM?
¶11.
In her second and final issue on appeal, Sheila argues that the chancellor erred in failing to
address the recommendation of the guardian ad litem on the record. The chancellor found Sheila and
Windell equal in regards to the Albright factors but delayed his custody determination pending the
guardian ad litem’s report. The only reference to the guardian ad litem’s report is at the beginning
of the final judgment of divorce wherein the chancellor says “after considering the report of the
Guardian Ad Litem . . . . Wendell [sic] Tanner . . . is awarded physical custody of the parties minor
child . . . .”
¶12.
In the recent case of Floyd v. Floyd, 2005-CA-02270-SCT (¶8) (Miss. Feb. 15, 2007), the
supreme court reversed because the chancellor failed to include his reasons for rejecting the guardian
ad litem’s recommendation. The supreme court found as follows:
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This Court has held that a chancellor shall at least include a summary review
of the recommendations of the guardian in the court’s findings of fact when the
appointment of a guardian is required by law. S.N.C. v. J.R.D., Jr., [755 So. 2d 1077,
1082 (Miss. 2000)]. Furthermore, if the court rejects the recommendations of the
guardian, the court’s findings must include its reasons for rejecting the guardian’s
recommendations. Id. While a chancellor is in no way bound by a guardian’s
recommendation, a summary of these recommendations in addition to his reasons for
not adopting the recommendations is required in the chancellor’s findings of fact and
conclusions of law. Id., Hensarling v. Hensarling, 824 So. 2d 583, 587 (Miss. 2002).
Floyd, 2005-CA-02270-SCT at (¶8).
¶13.
However, Floyd concerned allegations of child abuse, an instance in which it is mandatory
for the chancellor to appoint a guardian ad litem. In this case, the appointment of the guardian ad
litem was not required by law but was merely to assist the chancellor. As previously stated, the
guardian ad litem’s report found both parties equally capable of caring for Blair. Furthermore, the
chancellor did not explicitly reject or disagree with the report. This Court has made it clear that only
when the appointment of the guardian is mandatory and the chancellor disagrees with the guardian’s
report will we require the chancellor to summarize the guardian’s recommendation and why the
chancellor chose to disregard it. See Ponder v. Ponder, 943 So. 2d 716, 720 (¶16) (Miss. Ct. App.
2006); Balius v. Gaines, 914 So. 2d 300, 305-06 (¶13) (Miss. Ct. App. 2005); Passmore v. Passmore,
820 So. 2d 747, 751 (¶13) (Miss. Ct. App. 2002). We find no merit to this issue.
¶14. THE JUDGMENT OF THE SIMPSON COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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