Julie Daley Jones v. Donald Glenn Jones
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00035-COA
JULIE DALEY JONES
APPELLANT
v.
DONALD GLENN JONES
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
12/06/2007
HON. JOE DALE WALKER
JEFFERSON DAVIS COUNTY CHANCERY
COURT
HARRY RAY LANE
APRIL DAWN TAYLOR
CIVIL - CUSTODY
CHILD CUSTODY AWARDED TO FATHER
AFFIRMED-03/31/2009
BEFORE MYERS, P.J., ISHEE AND CARLTON, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Donald Glenn Jones (“Don”) and Julie Daley Jones (“Julie”) were granted a divorce
on the ground of irreconcilable differences on November 6, 2007, and Don was awarded
custody of their daughter, Samantha. Aggrieved, Julie now appeals the judgment of the
Jefferson Davis County Chancery Court. Finding no error, we affirm.
FACTS
¶2.
Don and Julie were married on August 10, 1996. They had one child, a daughter
named Samantha, who was born on February 5, 1997. Throughout their marriage, they lived
in Prentiss, Mississippi, directly across the street from Don’s father. Julie stayed at home and
cared for Samantha for the first three years after she was born. When Julie went back to
work, the couple shared the household and parenting responsibilities, and Don’s family
helped care for Samantha after school when needed.
¶3.
On September 19, 2001, the parties filed a joint complaint for divorce, citing
irreconcilable differences as the ground, in the Chancery Court of Jefferson Davis County.
The filed divorce papers provided that Don would maintain the family residence and would
have custody of Samantha. Very soon after the complaint was filed, Julie moved to Rhode
Island to live with a man she had met on the Internet named Joe; however, the relationship
between Julie and Joe ended within several weeks of her arrival. Don traveled to Rhode
Island approximately two months after Julie had left Prentiss to ask her to try and reconcile
their marriage. She agreed, and they returned home and resumed their marriage for the next
six years. During that time, they both worked outside of the home and shared in the parental
responsibilities. Don’s family lived nearby, and they continued to help care for Samantha.
¶4.
Julie spent a great deal of time on the computer, where she met people in internet
forums. In 2004, she began corresponding in a chat room with Steve Ashton and his wife,
who lived in England. Their correspondence continued for over a year, and eventually, Julie
and Don made plans to take Samantha to visit the Ashtons in England for a week in 2006.
The plans changed, however, from a one-week trip to a two-week trip, and Don was not able
to take that much time off from work. As a result, Julie and Samantha made the trip, while
Don stayed home. Unbeknownst to Don, when they were in England, Julie stayed at the
Ashtons’ home, and Samantha stayed at the home of the Ashtons’ relatives. Julie returned
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home with a nude portrait of herself that Steve had painted, which caused suspicions to arise
over the nature of her relationship with Steve, but Julie insisted that their relationship was
strictly one of friendship. She argued that Steve was an artist, and the portrait was actually
of another person with Julie’s head superimposed on the body.
¶5.
On March 28, 2007, Don filed a complaint for divorce, child custody, and other relief,
alleging uncondoned adultery, habitual cruel and inhuman treatment, and, in the alternative,
irreconcilable differences as grounds for divorce. Julie filed her answer to the complaint on
May 9, 2007, asserting recrimination and condonation, and she counterclaimed for a divorce,
alleging the grounds of uncondoned adultery, habitual cruel and inhuman treatment, and, in
the alternative, irreconcilable differences. The following month, the chancery court entered
a temporary order granting joint legal and physical temporary custody of Samantha to both
parties. Under the order, custody was alternated every two weeks. Don remained in the
marital home after the separation, and Julie moved to her mother’s home in Hattiesburg,
Mississippi.
¶6.
The parties filed a property settlement agreement, joint motion to withdraw fault
grounds for divorce, and joint consent for judicial determination of outstanding issues on
August 21, 2007, and a hearing was held that day on the issues of custody, visitation, and
child support. On August 23, 2007, the chancery court entered a temporary order of
visitation, whereby Don was awarded physical custody of Samantha so she could continue
attending Prentiss Christian School as she had prior to the separation.
¶7.
The chancery court’s bench ruling was rendered on October 8, 2007, and Julie filed
a motion for reconsideration on October 14, 2007. The judgment of divorce was entered on
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November 6, 2007, by which Don was awarded physical custody of Samantha with Julie
receiving visitation rights. Don filed a motion to dismiss the motion for reconsideration on
December 3, 2007. The chancery court denied the motion for reconsideration on December
4, 2007, and Julie filed this appeal. Finding no error, we affirm the judgment of the chancery
court.
STANDARD OF REVIEW
¶8.
“An appellate court is to affirm findings of fact by chancellors in domestic cases when
they are ‘supported by substantial evidence unless the chancellor abused [his] discretion, was
manifestly wrong, clearly erroneous or an erroneous legal standard was applied.’” Parker
v. South, 913 So. 2d 339, 343 (¶9) (Miss. Ct. App. 2005) (quoting Robison v. Lanford, 841
So. 2d 1119, 1122 (¶9) (Miss. 2003)).
ANALYSIS
¶9.
The polestar consideration in child custody cases is the best interest of the child.
Rushing v. Rushing, 724 So. 2d 911, 916 (¶24) (Miss. 1998). A court determines which
parent will be awarded custody by analyzing the factors set forth in the case of Albright v.
Albright, 437 So. 2d 1003, 1005 (Miss. 1983). Norman v. Norman, 962 So. 2d 718, 720 (¶6)
(Miss. Ct. App. 2007). The Albright factors include:
1) age, health and sex of the child; 2) determination of the parent that had the
continuity of care prior to the separation; 3) which has the best parenting skills
and which has the willingness and capacity to provide primary child care; 4)
the employment of the parent 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
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parent-child relationship.
Brekeen v. Brekeen, 880 So. 2d 280, 283-84 (¶5) (Miss. 2004) (citations omitted). In the
event that a chancellor improperly considers and applies the Albright factors, we are
obligated to find him in error. Hollon v. Hollon, 784 So. 2d 943, 946 (¶11) (Miss. 2001).
¶10.
The chancellor conducted an Albright analysis and found the following:
1.
Age, health and sex of child: neutral
2.
Continuity of care prior to the separation: neutral
3.
Best parenting skills: neutral
4.
Willingness and capacity to provide for child: favors Don. This
decision was based on Don’s flexible work schedule and the fact that
he would continue to reside in the home where Samantha had been
reared, which is located near the home of his father, who helps look
after Samantha. Julie, on the other hand, moved into her mother’s
home in Hattiesburg, where she intended to live for approximately one
year until she was able to find a place of her own.
5.
Employment of the parents and responsibilities of employment: neutral
6.
Emotional ties of the parent/child: neutral
7.
Moral fitness factor: favors Don. The chancellor stated: “I find the
moral fitness favors Mr. Jones more. I find that Mrs. Jones has, on at
least two occasions, met people over the [I]nternet. And on one
occasion left, and went to Rhode Island to live with a man whom she
had only met, prior to her leaving, on the [I]nternet. . . . On another
occasion, Mrs. Jones went to England to stay with some people,
[whom] she only knew by meeting them over the [I]nternet. Mrs. Jones
came home with a nude drawing of herself which she says was done by
the man known as ‘Lobo,’ which she says was a nude drawing of some
other person’s body that had her head on it. Lobo was the man whose
house she resided in while she was staying in England.”
8.
Home, school, and community record of the child: favors Don. Don
continued to live in the home and community where Samantha had
lived prior to the separation. In addition, she would be able to attend
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Prentiss Christian School, as she had done since beginning school.
Julie planned on enrolling Samantha in Oak Grove School in
Hattiesburg.
9.
Preference of the child: neutral
10.
Stability of home environment: favors Don. The chancellor found that
if Don was awarded custody, Samantha would “be able to remain in the
family home, and attend school at her school, and stay close [to] their
relatives.” To the contrary, if Julie was awarded custody, Samantha
“would live in the home of [Julie’s] mother in Hattiesburg; would be
uprooted from her surroundings; and, when [Julie] found a place of her
own, Samantha would again be uprooted.”
11.
Parenting and the parent/child relationship: favors Don. The chancellor
expressed concern over Julie’s using the Internet to meet and form
relationships with people.
DISCUSSION
I.
¶11.
The chancery court properly considered and applied the Albright factors
in deciding that the parenting skills factor did not favor either parent and
that the parent/child relationship factor favored Don.
Julie argues that the chancellor erred in finding that the best parenting skills factor did
not favor either parent, as they both exhibited good parenting skills, and then in finding that
the parenting and parent/child relationship factor favored Don. With regard to the parenting
and parent/child relationship factor, the chancellor stated:
I am concerned about [Julie’s] use of the Internet to meet people, [whom] she
gains trust in, and on the spur of the moment picks up and go[es] [to] meet
them. On the trip to England, she took [Samantha] with her to meet people
[whom] she had only talked with on the [I]nternet. And while [Julie] was
residing in the home of this man, she let [Samantha] stay with other people she
had just met, in another location, away from the home where she was staying.
On the other occasion, [Julie] took off to Rhode Island to meet and stay with
another person she had only met on the [I]nternet. And, at that time, she left
her husband and child to live with this man. When the Court asked her if she
met another person over the [I]nternet, would she, again, take off and meet this
person? Her answer was, she did not know. I’m concerned about what could
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happen to [Samantha] and [Julie] if she takes off to far away places to meet
someone [whom] she only knows through the [I]nternet; or, even if she meets
these people and they come here to her house in Hattiesburg, or wherever she
will be living. I don’t believe this is in the best interest and welfare of the
child for this to happen.
¶12.
Although Julie may have exhibited good parenting skills, we share in the chancery
court’s concern of Julie’s using the Internet to meet people and her taking Samantha with her
to meet these people. Accordingly, we find that the chancellor properly applied the Albright
factors, and the results favored physical custody of Samantha being awarded to Don. This
issue is without merit.
II.
¶13.
The chancery court properly applied the evidence to the Albright factors
and properly awarded Don custody of Samantha.
Julie complains that the chancellor placed too much emphasis on her use of the
Internet to meet people and on her trips to Rhode Island and England. She alleges that the
chancellor overlooked “voluminous evidence” that weighed in favor of her receiving custody
of Samantha, and she asserts that the chancellor devoted almost half of his ruling and
Albright analysis to Julie’s moral fitness. She further asks this Court to consider applying
a theory of attenuation to remove the “taint” of any of her earlier behavior that may adversely
affect present considerations.
¶14.
According to the theory of stare decisis, “absent powerful countervailing
considerations, like cases ought to be decided alike,” and “long[-]established legal
interpretations ought not lightly be disturbed.” State ex rel. Moore v. Molpus, 578 So. 2d
624, 634 (Miss. 1991). The theory of attenuation has never before been used in child custody
cases; therefore, we will adhere to the existing law and utilize the Albright factors.
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¶15.
It is true that a chancellor may be found to have abused his discretion by placing too
much emphasis on one Albright factor. See Brekeen, 880 So. 2d at 287 (¶21). However, we
do not find that to have occurred in this case. Moral fitness was just one of the five Albright
factors that the chancellor found to weigh in favor of Don, while finding the remaining six
factors to be neutral. The chancellor took into account numerous benefits that would result
from Samantha’s living with Don, which included: remaining in the same home and city in
which she had been reared, continuing to attend the same school that she had attended prior
to the separation, living across the street from relatives who help in caring for her, and
avoiding being uprooted from her home once now and then again in a year, as she would be
with Julie when Julie found her own place.
¶16.
Accordingly, this Court finds that the chancellor properly considered and applied the
Albright factors in making his decision to award custody of Samantha to Don. We, therefore,
affirm the judgment of the chancery court.
¶17. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CHANCERY
COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES,
ROBERTS AND CARLTON, JJ., CONCUR.
MAXWELL, J., NOT
PARTICIPATING.
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