John Patrick Benal v. Angela Jean Benal
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-01181-COA
JOHN PATRICK BENAL
APPELLANT
v.
ANGELA JEAN BENAL
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEE
06/30/2008
HON. CYNTHIA L. BREWER
MADISON COUNTY CHANCERY COURT
JULIE ANN EPPS
E. MICHAEL MARKS
FORD ANDREW HOWELL
CIVIL - DOMESTIC RELATIONS
GRANTED DIVORCE, AWARDED CHILD
SUPPORT, AND DIVIDED THE MARITAL
ASSETS
AFFIRMED IN PART; REVERSED AND
REMANDED IN PART: 11/17/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE MYERS, P.J., IRVING AND GRIFFIS, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
John and Angela Benal were granted a divorce based on irreconcilable differences by
the Madison County Chancery Court. John and Angela submitted four issues for the trial
court to resolve: (1) custody of their three children, (2) division of the marital assets, (3)
liability for payment of the marital debts, and (4) use of the marital home and furnishings.
Aggrieved by the chancellor’s ruling, John appeals and asserts three assignments of error:
(1) the trial court committed error in evaluating the credibility of John and his witnesses; (2)
the trial court erred in not granting John custody of his children; and (3) the trial court erred
in finding that it lacked authority to order visitation. Finding error, we affirm in part and
reverse and remand in part.
FACTS
¶2.
John and Angela were married in 1991 in Cedar County, Nebraska. They had three
children during their marriage: Sarah, Katherine, and Erin. In April 2007, John moved to
Ridgeland, Mississippi after he obtained a position with Cellular South. Angela and the three
children remained in Nebraska until the end of the school year; they then followed John to
Mississippi. The Benals bought a house in Ridgeland, and stayed together until John filed
a complaint for divorce in December 2007 in the Madison County Chancery Court based
upon habitual cruel and inhuman treatment and irreconcilable differences.
¶3.
After being served with process, Angela took the three children and returned to
Nebraska. She then filed a divorce action against John in Nebraska. However, the Nebraska
court refused to hear Angela’s action due to the pending action in Madison County,
Mississippi. Thereafter, John withdrew his complaint for a fault-based divorce, and John and
Angela entered a complaint for divorce based upon irreconcilable differences.
They
submitted four issues to the trial court to determine: (1) custody of their three children, (2)
division of the marital assets, (3) liability for payment of marital debts, and (4) use of the
marital home and furnishings. After conducting a hearing in which John, his mother, his
brother, and Angela testified, the chancellor awarded Angela sole physical and legal custody
of the three children.
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STANDARD OF REVIEW
¶4.
“[The 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 (¶8) (Miss. 2004) (citations omitted). Under this standard of review, our purpose
is to determine whether the chancellor's ruling was supported by credible evidence, not
whether we agree with that ruling. Lee v. Lee, 798 So. 2d 1284, 1290 (¶22) (Miss. 2001).
DISCUSSION
I.
¶5.
CUSTODY OF THE CHILDREN
“[T]he polestar consideration in child custody cases is the best interest and welfare
of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). In Albright, the
Mississippi Supreme Court established a list of factors that a chancellor must consider when
determining which parent should be awarded primary custody of a child. The factors used
to determine the child's best interests are: (1) age, health, and sex of the child; (2) a
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 childcare; (4) the employment of the parent and the responsibilities of that
employment; (5) the physical and mental health and age of the parents; (6) the emotional ties
of 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) the stability of the home environment; and (11) other factors relevant to the
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parent-child relationship. Id.
¶6.
John argues the chancellor erred in finding that the following factors favor Angela:
(1) age, health, and sex of the children; (2) continuity of care; (3) home, school, and
community record of the children; and (4) stability of the home environment. John also
argues on appeal the chancellor erred when she found his parenting skills were only slightly
favorable to Angela’s. Finally, John claims the chancellor erred in finding that the will and
capacity to provide primary childcare and the responsibility of employment factors favored
neither party.
A.
¶7.
Age, Health, and Sex of the Children
The chancellor found that this factor favored Angela. John argues that the chancellor
improperly applied the “tender years” doctrine, discriminated against him based upon his
gender, and placed too much emphasis on the gender of the children. He argues that he is
as equally qualified as Angela to raise their children.
¶8.
“The tender years doctrine is a presumption that in all cases where any child is of such
tender age as to require the mother's care for [the child’s] physical welfare, [he or she] should
be awarded to her custody, at least until [he or she] reaches that age and maturity where [the
child] can be equally well cared for by other persons.” Gilliland v. Gilliland, 969 So. 2d 56,
66 (¶32) (Miss. Ct. App. 2007) (citation and internal quotations omitted). “The ‘tender
years’ doctrine has not been completely abandoned by our court, but age is merely one factor
to be considered in a best-interest analysis.” Masino v. Masino, 829 So. 2d 1267, 1271 (¶15)
(Miss. Ct. App. 2002).
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¶9.
The supreme court has held that a child of seven years of age is long past the age prior
to which he or she requires attention of such a character from the mother. Mayfield v.
Mayfield, 956 So. 2d 337, 342 (¶11) (Miss. Ct. App. 2007). At the time of the hearing, John
and Angela’s children were fourteen, eleven, and eight years old, making the “tender years”
doctrine inapplicable.
¶10.
Upon our review of the record, the chancellor did not apply the tender years doctrine.
The chancellor does not mention the tender years doctrine anywhere in her opinion and final
judgment. Moreover, we do not find the chancellor discriminated against John based upon
his gender or placed too much emphasis on the gender of the children.
¶11.
On the contrary, the chancellor cited Parker v. South, 913 So. 2d 339 (Miss. Ct. App.
2005) as the basis for her decision. In Parker, a father was seeking custody of his nine-yearold son. Id. at 341 (¶1). This Court found that a chancellor did not err in finding that the age,
health, and sex factor in favor of the father based upon the implicit fact that “a young male
will need the guidance and care of his father as he matures.” Id. at 348 (¶29).
¶12.
Similar to a son needing the guidance and care of his father as he matures, daughters
will often need the guidance and care of their mothers as they mature. See id. Also, “there
is still a presumption that a mother is generally better suited to raise a young child.”
Passmore v. Passmore, 820 So. 2d 747, 750 (¶9) (Miss. Ct. App. 2002) (quoting Hollon v.
Hollon, 784 So. 2d 943, 947 (¶14) (Miss. 2001)).
¶13.
Additionally, in the case at bar, although not entered into evidence, there was
testimony that two of the children had expressed their desire to live with Angela. Given their
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desire, coupled with the instruction that Mississippi courts should attempt to keep children
together,1 we do not find that the chancellor manifestly erred in weighing this factor in favor
of Angela.
B.
¶14.
Continuity of Care
John argues the chancellor erred when she found that this factor strongly favored
Angela. John claims he provided continuous care for his children while they were living
with him in Nebraska and Mississippi. He supports his argument by pointing out that he
stayed in contact with his children after they moved back to Nebraska through telephone
calls, e-mails, and Internet-chat sessions.
¶15.
The chancellor found that Angela had been a more constant factor in the girls’ lives.
Angela was a stay-at-home mother while the family resided in Nebraska. She was employed
on two separate occasions in Nebraska with part-time jobs, one lasting from the time John
was let-go from one job until he found employment elsewhere. When John moved to
Mississippi, Angela stayed with the children until their school year was completed.
Moreover, since John and Angela’s separation, the children have resided with Angela in
Nebraska. Accordingly, we do not find that the chancellor erred in weighing this factor
strongly in favor of Angela.
C.
¶16.
Parenting Skills
John argues the chancellor should have found that this factor strongly favored him,
1
See Owens v. Owens, 950 So. 2d 202, 207 (¶15) (Miss. Ct. App. 2006).
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rather than only slightly favoring him. John claims he was more involved in his children’s
schoolwork and extracurricular activities than Angela. Additionally, he prepared most of
the family’s dinners.
¶17.
Angela admitted that John was very involved in the children’s lives. John testified
that he helped and tutored his children regarding their schoolwork, and he assisted them with
their science projects. John also testified that he learned to play with Barbies and to have
tea parties with his girls. John taught them how to play golf and referee football and
basketball games. John claimed he was very involved in the parent-teacher association
(PTA) and with his children’s teachers. Lastly, John testified that he did the majority of the
disciplining in his house by denying and restricting the children’s access to television and the
Internet.
¶18.
Angela stated that John’s characterization, during his testimony, of his involvement
was slightly exaggerated. While John may have attended a few PTA meetings, he was not
an active member of the group. Additionally, Angela, and not John, prepared most of the
family meals at night. Angela stated John’s involvement with the cooking was preparing
breakfast on Saturday mornings and helping prepare meals and clean up on holidays and
other family gatherings. Much like John, Angela ensured their children completed their
homework, and she would quiz them periodically. While the family resided in Mississippi,
Angela took two of the children to school each morning, and John took one.
¶19.
Given that John was somewhat more involved in the children’s schoolwork and their
extracurricular activities, we find the chancellor did not err in weighing this factor slightly
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in favor of John.
D.
¶20.
Willingness and Capacity to Provide Primary Care
John argues the chancellor erred in not weighing this factor in his favor. John had
previously taught gifted children in the Nebraska public school system, which he argues,
gives him the ability to help with his children’s schoolwork better than Angela could. His
house in Mississippi was much larger and more suitable for the children than Angela’s
apartment in Nebraska. Lastly, John argues that he could better support his children
financially than Angela.
¶21.
We do not find the chancellor was erroneous in her finding that this factor favored
neither parent. Both parents were employed at the time of the hearing. Both parents were
petitioning the court for custody, which evidences a willingness to provide primary care.
Moreover, both John’s and Angela’s extended families resided close to Angela’s apartment
in Nebraska; neither parent’s family lived in Mississippi. Accordingly, we find that the
chancellor did not err.
E.
¶22.
Employment Responsibilities and Stability of Employment
John argues that the chancellor should have found that this factor weighed in his
favor. John is currently employed as a project manager at Cellular South. He works from
8:00 a.m. to 5:00 p.m. each day, Monday through Friday, with weekends and all major
holidays off from work. He testified that he thoroughly enjoys his job. To the contrary,
Angela was only employed in temporary positions while the family resided in Nebraska. She
did not work while the family was in Mississippi, and at the time of the hearing, she had been
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employed as a customer service representative for only a few months. This evidence, John
argues, shows the chancellor was in error by finding this factor favored neither parent.
¶23.
Angela testified that, while the family lived in Nebraska, John had several jobs. She
also stated that she once worked in a temporary position when John was fired from a job, and
she stayed in that temporary position until John was hired at another company. Angela also
worked at another temporary job in Nebraska up until the time she moved to Mississippi.
She testified that when she moved to Mississippi that John discouraged her from accepting
a job offer with Comcast. Since Angela has returned to Nebraska, she has been working as
a customer service representative.
¶24.
Upon our review of the record, we find that the chancellor was correct in holding that
this factor favored neither party. The evidence showed that both parents have held a variety
of jobs, some longer than others. While John’s current job is a higher paying and more stable
position, Angela stated that her job allows her to be home shortly after the children arrive
home from school. Therefore, we find the chancellor did not err in weighing this in favor
of neither parent.
F.
¶25.
Home, School, Community Record of the Children
John argues the chancellor erred in weighing this factor strongly in favor of Angela.
He argues this factor should have been weighed in his favor; the children were making
excellent grades in Mississippi, involved in extracurricular activities, and making new
friends. Moreover, John claims that his house in Mississippi is more conducive to the
children because it has a swimming pool, and each child had her own room, while Angela
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is living in an apartment in Nebraska. John also points out that Angela’s two brothers, who
visited their home in Nebraska for special occasions, were both charged with sex-related
crimes, which led to one conviction. Lastly, John argues he ensured that his children
attended church and encouraged them to become involved in church youth groups.
¶26.
Prior to the family moving to Mississippi, the family had lived in Nebraska for ten
years. The children made excellent grades in school while in Nebraska, and they were
involved in extracurricular activities. There was testimony that Sarah, the oldest child, was
having trouble adjusting to her new school and community in Mississippi. Additionally,
John’s and Angela’s parents and relatives live in or near Nebraska, which could provide a
support group if needed. There was no evidence presented that John or Angela had any
relatives near Mississippi. There was also evidence that the children were involved in a
church in Nebraska, with Erin, the youngest child, having her first communion in Nebraska
after John and Angela’s separation.
¶27.
Because the children had lived in Nebraska for ten years prior to them moving to
Mississippi, where they had stayed for approximately six months, and John and Angela both
had parents and relatives in or near their home in Nebraska, we find the chancellor did not
err in finding this factor strongly favored Angela.
G.
¶28.
Stability of the Home Environment
The chancellor found that this factor weighed in favor of Angela based on the fact that
John’s ties to the community in Mississippi are minimal, while Angela had her relatives as
well as the connections she had made in the ten years she had lived in Nebraska. John argues
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that his home is more stable than Angela’s, and the chancellor should have awarded him this
factor.
¶29.
John claims the chancellor was in error in finding that his ties to the community were
minimal. He testified that he loved his community, his job, and was very active in his
church. John again points to Angela brothers’ criminal problems to support his argument,
claiming that her brothers pose a threat to the children.
¶30.
Contrary to John’s assertions, Angela testified that John only occasionally attended
church with the family while they lived in Mississippi. Angela also testified about two
troubling episodes. In November 2006, John threatened to kill himself with a knife in front
of the children. After a neighbor called 911, John was taken to the mental ward at a local
hospital for treatment. Angela also testified that, after the couple had an argument, John
went to their basement and placed a gun to his head. John stopped when Sarah came down
to the basement. Angela was not sure if Sarah had seen John with the gun to his head.
¶31.
There was no evidence presented that called into question the stability of Angela’s
home. Accordingly, we find that the chancellor did not err in finding this factor favored
Angela. This issue is without merit.2
II.
¶32.
CREDIBILITY OF JOHN AND HIS WITNESSES
John argues the trial court erred in discounting his testimony and the testimonies of
his mother and brother that John was the primary caretaker of the children. The chancellor
2
John does not challenge the chancellor’s finding on the remaining Albright factors.
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found that John’s statements, along with his mother’s and brother’s statements that John “did
absolutely everything for the family while Angela made no contributions, raised suspicions
as to their credibility.” John claims this finding is not supported by substantial evidence.
¶33.
“As the sole trier of fact, the chancellor determines the credibility of the witnesses and
what weight to give to the evidence.” Griffith v. Griffith, 997 So. 2d 218, 223 (¶17) (Miss.
Ct. App. 2008). Given our deferential standard of review provided to a chancellor’s
determination of the credibility of the witnesses, and based on our review of the facts in this
case, we find that this issue lacks merit.
III.
¶34.
AUTHORITY TO ORDER VISITATION
The chancellor found that she lacked the authority to order specific visitation because
it was not an issue that was submitted to the court by the parties for determination. The trial
court stated that it could “only decide issues jointly submitted unto it.”
¶35.
John argues the trial court erred in not ordering a specific visitation schedule. As
stated above, John and Angela submitted the issue of custody to the court for it to decide.
John argues that in requesting the trial court to determine custody, he and Angela were
implicitly requesting the trial court to order specific visitation.
¶36.
Pursuant to Mississippi Code Annotated section 93-5-2(3) (Supp. 2008), the trial court
must review a separation agreement and find it to be “adequate and sufficient” with regard
to the custody and maintenance of any child and the property rights between the parties.
¶37.
In Lowrey v. Lowrey, 919 So. 2d 1112 (Miss. Ct. App. 2005), this Court addressed
whether a separation agreement was adequate and sufficient under the statute. Relevant to
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the issue at hand, the separation agreement in Lowrey provided that, the husband would be
awarded legal and physical custody of the children, his wife would receive “reasonable
visitation rights with the minor children conditioned on reasonable time line notice of 48
hours” to the husband, and the wife would receive “further visitation rights with the minor
children as may be reasonable under all relevant circumstances, and which may be agreed
upon” by the parents. Id. at 1115 (¶6) (internal quotation omitted). Upon reviewing the
separation agreement, this Court found that the separation agreement was not adequate and
sufficient under Mississippi Code Annotated section 93-5-2 because it provided the children
no specific visitation period with their mother, formerly the primary caregiver of the children,
and thus “was not in the best interest of the children.” Id. at 1120 (¶32).
¶38.
Turning to the case at hand, we find the chancellor erred in not ordering a specific
visitation schedule. Although Mississippi Code Annotated section 93-5-2 does not explicitly
state that visitation must be agreed upon by the parties or adjudicated by the court before an
irreconcilable differences divorce is granted, we find that it is implicit in the statute’s
language that visitation must be addressed if the issue of custody is submitted to the trial
court for resolution.
¶39.
Additionally, the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA) defines “child custody determination” as “a judgment, decree, or other order of
a court providing for the legal custody, physical custody, or visitation with respect to a
child.” Miss. Code Ann. § 93-27-102(c)(Rev. 2004). While Mississippi has not expounded
on this definition, other states have interrupted this language. The Texas Court of Appeals
13
has stated that, under the UCCJEA, “child custody determination” means “custody of a child,
including visitation rights.” Coots v. Leonard, 959 S.W.2d 299, 302 (Tex. Ct. App. 1997).
¶40.
It only seems logical that when a court grants custody to one parent, they must address
whether the non-custodial parent gets visitation and to what extent. Accordingly, we reverse
the chancellor’s judgment and remand this case with instructions that the trial court order a
specific visitation schedule.
¶41. THE JUDGMENT OF THE MADISON COUNTY CHANCERY COURT IS
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF
THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND
THE APPELLEE.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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