Amanda Woodham v. Richard Woodham
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-01940-COA
AMANDA WOODHAM
APPELLANT
v.
RICHARD WOODHAM
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
9/6/2007
HON. JANACE H. GOREE
NEWTON COUNTY CHANCERY COURT
ROBERT M. LOGAN
TANYA L. PHILLIPS
THOMAS L. TULLOS
CIVIL - CUSTODY
DIVORCE GRANTED; CUSTODY
AWARDED TO FATHER
AFFIRMED: 3/31/2009
BEFORE MYERS, P.J., ISHEE AND CARLTON, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
The Chancery Court of Newton County granted Richard Woodham a divorce from
Amanda Woodham on the grounds of adultery and further awarded him custody of the
couple’s minor child. Amanda, aggrieved by the chancellor’s decision regarding custody,
now appeals. Finding no error, we affirm.
FACTS
¶2.
Amanda and Richard were married on September 21, 1996. One child, Rachael, was
born of the marriage on June 12, 2003. In October 2005, Amanda began an adulterous affair
that would continue through the trial. In March 2006, she moved out of the marital home
into an apartment. On May 17, 2006, Richard confronted Amanda and her paramour, John
Ashley Thrash, at her apartment.
¶3.
Shortly thereafter, Richard filed a complaint for divorce alleging adultery and seeking
custody of the couple’s child. Amanda counterclaimed for divorce on the ground of habitual
cruel and inhuman conduct and also sought custody. Following the separation, a temporary
order provided that the parties would share joint legal and physical custody, with actual
physical custody alternating week-to-week.
¶4.
Trial commenced with a special chancellor on May 17, 2007. The trial could not be
completed in the first setting and was ultimately concluded on June 18, 2007. The primary
issue at trial was the custody of Rachael, as Amanda dropped her counterclaim for divorce
and conceded that her adultery provided the ground for divorce. Property matters were
resolved by agreement of the parties.
¶5.
The trial court issued a memorandum opinion on August 8, 2007, and entered
judgment on October 15, 2007. It granted Richard divorce on the grounds of adultery and
gave him full physical and legal custody of Rachael. Amanda was ordered to pay $240.40
per month in child support. Aggrieved by this judgment, Amanda now appeals, asserting that
the trial court’s award of sole physical and legal custody to Richard (1) resulted from an
erroneous analysis of the Albright factors amounting to a “penalty” for Amanda’s adultery
and (2) was not in the child’s best interest.
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STANDARD OF REVIEW
¶6.
In a child custody case, an appellate court “will not disturb a chancellor’s judgment
when supported by substantial evidence unless the chancellor abused his discretion, was
manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Chapel
v. Chapel, 876 So. 2d 290, 292-93 (¶8) (Miss. 2004) (citing Townsend v. Townsend, 859 So.
2d 370, 371-72 (¶7) (Miss. 2003)). Where the chancellor improperly considers and applies
the Albright factors, we are obliged to find the chancellor in error. Hollon v. Hollon, 784 So.
2d 943, 946 (¶11) (Miss. 2001) (citing Jerome v. Stroud, 689 So. 2d 755, 757 (Miss. 1997)).
Nonetheless, “our limited scope of review directs that we will not arbitrarily substitute our
judgment for that of the chancellor who is in the best position to evaluate all factors relating
to the best interests of the child.” Copeland v. Copeland, 904 So. 2d 1066, 1074 (¶30) (Miss.
2004) (citations and internal quotations omitted). Therefore, “[u]nless the evidence demands
a finding contrary to the chancellor’s decision, [an appellate court] will not disturb a custody
ruling.” Id. (citing Philips v. Philips, 555 So. 2d 698, 700 (Miss. 1989)).
DISCUSSION
1.
¶7.
Whether the chancellor erred in awarding custody to Richard.
In child custody cases, the polestar consideration is the best interest and welfare of the
child. See, e.g., Brekeen v. Brekeen, 880 So. 2d 280, 283 (¶5) (Miss. 2004). The familiar
Albright factors are used by our courts to determine the child’s best interest as to custody.
See Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).
¶8.
On appeal, Amanda challenges the chancellor’s findings on many of the Albright
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factors. As our standard of review requires us to consider not only the chancellor’s findings
on each individual factor but also the chancellor’s ultimate conclusion as to the child’s best
interest, we shall discuss each factor.
1.
¶9.
Age, Health, and Sex of the Child
Amanda argues that the chancellor erred in finding that this factor favored neither
parent. She asserts that it is in Rachael’s best interest to be placed with her mother, because
Rachael is a young, female child. The supreme court has stated:
In the past, this Court espoused what has come to be know [sic] as the tender
years doctrine, which essentially states that if the mother of a child of tender
years (i.e. early in development) is fit, then she should have custody.
However, as previously stated, the age and sex of a child are merely factors to
be considered under Albright, and this Court has significantly weakened the
once strong presumption that a mother is generally best suited to raise a young
child. In Mercier v. Mercier, 717 So. 2d 304, 307 [(¶14)] (Miss. 1998), we
held that the tender years doctrine has been gradually weakened in Mississippi
jurisprudence to the point of now being only a presumption.
Lee v. Lee, 798 So. 2d 1284, 1289 (¶17) (Miss. 2001) (internal citation omitted). The
supreme court has also held that a child of four “may not be subject to the tender years idea
any longer.” Id. at (¶18). A child is no longer of tender years when she can be equally cared
for by persons other than the mother. Mercier, 717 So. 2d at 307 (¶15).
¶10.
The record reflects that Rachael was four years old at the time of the trial. Amanda
returned to work six to eight weeks after Rachael was born, and Amanda testified that she
began bottle-feeding the child around this time. There was also ample testimony from which
the chancellor could find that both parents could and did take care of the child’s basic needs.
Although Rachael is a female child, the record reflects that Richard’s mother and
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grandmother are very active in her life. Therefore, we cannot say that the chancellor was
without sufficient evidence to find that this factor favored neither party.
2.
¶11.
Continuity of Care
The chancellor found that this factor favored neither parent. At trial, Amanda claimed
to be the primary caregiver; Richard testified that he played an equal role in providing for the
needs of the child. The chancellor found that Richard’s grandmother, Ruth Woodham
(Ruth), had provided a majority of the childcare services prior to trial, usually spending most
of every workday with Rachael. The chancellor noted that prior to separation, Richard would
take Rachael to Ruth in the mornings, and Amanda would usually pick her up in the
evenings. When the child was home, both parents provided for her needs. “Because the
testimony indicates that both [parents] cared for the child[] while receiving assistance from
family members, we can find no error in the chancellor’s ruling that this factor did not favor
either party.” Mayfield v. Mayfield, 956 So. 2d 337, 343 (¶14) (Miss. Ct. App. 2007).
Sufficient evidence supports the chancellor’s finding that this factor favored neither parent.
3.
¶12.
Employment of the Parents and Responsibilities of the Employment
The chancellor found that this factor favored Amanda because Richard presently
works from 6:30 a.m. to 6:30 p.m., often five days a week. Prior to this, Richard worked on
call and his working hours fluctuated greatly. He also testified that it was possible he may
return to working on call in the future. Amanda, on the other hand, works fewer hours and
would be able to take the child to and from school herself. The chancellor’s finding is
supported by substantial evidence.
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4.
¶13.
Emotional Ties of Parent and Child
The chancellor found that Rachael was close to both her parents, and neither party
disputes this on appeal.
5.
¶14.
Moral Fitness of the Parents
The chancellor found that this factor favored Richard because of Amanda’s adultery.
Amanda testified that she tried to avoid exposing Rachael to her affair, but she admitted that
Rachael was present on some occasions when she was with Thrash. She also acknowledged
that on one occasion the child came into her bedroom and climbed into the bed while she
shared it with Thrash. The chancellor’s finding that this factor favors Richard is supported
by substantial evidence in the record.
6.
¶15.
The Home, School, and Community Record of the Child
The chancellor found that this factor favored Richard, because Richard remained in
the marital home and because Ruth, Richard’s grandmother, would continue to spend seven
or eight hours a day with the child, five days a week or more. There was testimony that Ruth
taught the child how to count, how to write her name, and how to recite the alphabet. The
chancellor found Rachael to have benefitted immensely from a “structured regiment [sic] of
daily activities” established by Ruth, and she attributed the child’s above-average
achievements in large part to Ruth’s tutelage. Furthermore, following the separation,
Amanda’s relationship with Richard’s family, including Ruth, had degraded. Amanda
attempted to place Rachael into daycare when she was at work and disregarded a temporary
order that Ruth continue to provide the childcare for Rachael on workdays. There was also
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testimony that Rachael had regularly attended church with Richard or Ruth on Wednesdays
and Sundays, but Amanda had not, and that this was a source of contention during the
marriage. Richard would keep Rachael in familiar surroundings, because he continued to
live in the marital home. Considering all the evidence, the chancellor did not abuse her
discretion in finding that this factor favored Richard.
7.
¶16.
Neither party disputes the chancellor’s finding that this factor does not apply.
8.
¶17.
Preference of the Child
Stability of Home Environment and Employment of Each Parent
The chancellor found that Amanda had continuously held the same job over the last
eight years and worked regular hours. On the other hand, Richard, while never idle, had
worked at six jobs and had a potentially irregular work schedule. The chancellor found that
stability of employment favored Amanda. However, the chancellor found that the stability
of the home environment favored Richard, because he remained in the marital home and
accepted the support offered by his family. The chancellor’s findings on this issue are
supported by substantial evidence.
9.
¶18.
Physical and Mental Health of the Parents
The chancellor found that this factor favored Richard. The chancellor noted that both
parents were in their early thirties. Richard is in generally good health, but Amanda
underwent thyroid surgery in 2004. Shortly after the surgery, she began taking the anti-
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depressant Lexapro.1
¶19.
The chancellor found that this factor favored Richard because Amanda manifested
poor judgment in combining alcohol with the anti-depressants. The chancellor noted that
there was no evidence that this caused Amanda harm, but she nonetheless found it to reflect
poor judgment. Additionally, there was testimony that Rachael had a generally low energy
level and often appeared unusually tired in the afternoons. Considering all the evidence, we
cannot say the chancellor abused her discretion in finding that this factor favored Richard.
10.
¶20.
Parenting Skills; Willingness and Capacity to Provide Primary
Childcare
The chancellor found that this factor favored Richard because he showed greater
willingness and capacity to provide primary childcare. On appeal, Amanda argues that this
finding amounted to a “punishment” for her adultery.
She cites the chancellor’s
memorandum opinion which noted that, other than his employment, Richard appeared to
have no interests he placed above the child. The chancellor contrasted this with Amanda,
who on occasion would either carry on her extramarital affair in Rachael’s presence, or leave
the child with family so she could spend the night alone with Thrash. In particular, Amanda
takes issue with the chancellor’s condemnatory language, stating in her memorandum
opinion that Amanda “sacrificed both the relationship with her child and her marriage to be
with John Ashley Thrash.”
1
Some testimony indicated that Amanda was prescribed Lexapro to treat depression;
Amanda maintained that it was for general anxiety only. The chancellor apparently gave
greater weight to the former.
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¶21.
Our supreme court has warned on many occasions that adultery is not to be used as
a sanction against a guilty parent in awarding custody of children. See, e.g., Bower v. Bower,
758 So. 2d 405, 412 (¶29) (Miss. 2000) (citing Carr v. Carr, 480 So. 2d 1120, 1121 (Miss.
1985)). The polestar consideration in vesting custody in one parent over the other must be
the best interest and the welfare of the child. Id. Nonetheless, this does not preclude a
chancellor from considering conduct associated with the adultery when it is relevant to one
of the Albright factors. Our supreme court has on several occasions permitted a chancellor
to consider a parent’s choice to spend time with a lover rather than her children. See
Copeland v. Copeland, 904 So. 2d 1066, 1076 (¶40) (Miss. 2004); Bower, 758 So. 2d at 408
(¶8). We are satisfied that the chancellor’s findings on this issue are supported by the
evidence and do not amount to a sanction against Amanda for her adultery.
11.
Other Factors
¶22.
The chancellor did not consider other factors relevant to the parent-child relationship.
¶23.
We are satisfied from our review of the record that the chancellor’s decision is
supported by substantial, credible evidence. We find the argument on appeal that the
chancellor improperly weighed the Albright factors is without merit. Accordingly, given our
limited scope of review, we cannot say that the chancellor, who was in the best position to
evaluate the evidence, was manifestly wrong in finding that Rachael’s best interests would
be served by awarding custody to Richard. This assignment of error is without merit.
2.
Whether the chancellor erred in awarding Richard full legal and physical
custody.
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¶24.
Amanda argues on appeal that the chancellor abused her discretion in awarding full
legal and physical custody of Rachael to Richard. Amanda asserts that the child’s interests
would be better served if her parents were to share joint legal or joint physical custody.
¶25.
This decision, however, also rests within the sound discretion of the chancellor.
Amanda’s assertion that joint legal or physical custody would benefit the child is belied by
testimony that the relationship between the parents has been strained by adultery.
Furthermore, the supreme court has stated “it is not in the best interest of a small child to be
shifted from parent to parent.” Case v. Stolpe, 300 So. 2d 802, 804 (Miss. 1974). Rachael
will soon begin kindergarten, and we have also held that the stability of one home “is crucial
at the beginning stages of [a child’s] education.” Daniel v. Daniel, 770 So. 2d 562, 567 (¶15)
(Miss. Ct. App. 2000). We can find no abuse of discretion in the chancellor’s decision to
grant sole legal and physical custody of Rachael to Richard.
¶26. THE JUDGMENT OF THE CHANCERY COURT OF NEWTON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND
CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.
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