Emory Hobbs Hutchison, Jr. v. Rutchel Clarin Hutchison
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-01672-COA
EMORY HOBBS HUTCHISON, JR.
APPELLANT
v.
RUTCHEL CLARIN HUTCHISON
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
09/09/2009
HON. H.J. DAVIDSON JR.
LOWNDES COUNTY CHANCERY COURT
HAL H. H. MCCLANAHAN III
MARK G. WILLIAMSON
CIVIL - CUSTODY
AWARDED CUSTODY OF THE MINOR
CHILDREN TO THE MOTHER
AFFIRMED - 03/29/2011
BEFORE LEE, C.J., BARNES AND MAXWELL, JJ.
LEE, C.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
On September 15, 2008, Emory Hobbs Hutchison Jr. filed a complaint for divorce in
the Lowndes County Chancery Court. Emory sought a divorce from his wife, Rutchel Clarin
Hutchison, on the grounds of habitual cruel and inhuman treatment, adultery, and in the
alternative, irreconcilable differences. Rutchel filed an answer and cross-complaint alleging
habitual cruel and inhuman treatment, adultery, and in the alternative, irreconcilable
differences. On November 5, 2008, the chancellor entered an order awarding temporary
custody of the couple’s two minor children to Emory.
¶2.
Emory and Rutchel ultimately withdrew their fault grounds for divorce. After a two-
day hearing, the chancellor granted an irreconcilable-differences divorce. The chancellor
awarded the parties joint legal custody of the minor children, with Rutchel to have physical
custody and Emory to have reasonable visitation. The chancellor also divided the marital
property and determined child support, but denied Emory any alimony.
¶3.
Emory now appeals, asserting that the chancellor erred in awarding custody of the
minor children to Rutchel.
FACTS
¶4.
Emory and Rutchel were married in 1999. They had two sons, one born in 2000 and
the other born in 2003. While on active duty in the United States Armed Forces, Emory
suffered a back injury for which he initially underwent surgery in 2001. Emory has been
effectively disabled since then and receives compensation from both the Social Security
Administration (SSA), effective June 11, 2001, and the Department of Veteran Affairs (VA),
effective August 22, 2001. The two minor children receive a total of $514 in social-security
benefits due to Emory’s disability.
¶5.
Rutchel worked for the Army and Air Force Exchange Service (AAFES). Emory has
been unemployed since 2001. Due to Emory’s service in the military and Rutchel’s
employment with AAFES, the parties moved several times before buying a house in
Columbus, Mississippi, in April 2006. Following their move to Mississippi, Rutchel’s
2
mother moved from the Philippines to live with them and help raise the two minor children.
According to Rutchel, the couple decided Rutchel should work in Iraq for a year at a
significantly higher pay rate in order to pay off approximately $60,000 in credit-card debt.
Rutchel worked in Iraq from October 2007 through late 2008.
Rutchel sent home
approximately $58,000, some of which Emory used to pay the couple’s credit-card debt.
However, Rutchel testified that when she came home from Iraq, the couple’s credit-card debt
had increased due to Emory’s spending habits. At the time of the trial, Rutchel lived in
Georgia and was still working for AAFES. Emory was living in the marital home in
Columbus. Other facts pertinent to the issue on appeal will be discussed as necessary.
STANDARD OF REVIEW
¶6.
The standard of review in child-custody cases is quite limited, and in order to reverse
the chancellor’s findings, the chancellor must be manifestly wrong, clearly erroneous, or
have applied an erroneous legal standard. Hensarling v. Hensarling, 824 So. 2d 583, 586
(¶7) (Miss. 2002).
DISCUSSION
¶7.
In his only issue on appeal, Emory argues that the chancellor erred in awarding
custody of the two minor children to Rutchel. 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) the age, health, and sex of the child; (2) a determination of
the parent who has had the continuity of care prior to the separation; (3) which parent has
3
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) the
physical and mental health and age of the parents; (6) the 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)
the stability of the home environment and employment of each parent; and (11) other factors
relevant to the parent-child relationship. Id.
¶8.
In determining whether the chancellor abused his discretion in applying the Albright
factors, the appellate court “review[s] the evidence and testimony presented at trial under
each factor to ensure [the chancellor’s] ruling was supported by record.” Hollon v. Hollon,
784 So. 2d 943, 947 (¶13) (Miss. 2001). The chancellor found three factors to be neutral,
four factors favored Rutchel, three factors favored Emory, and one factor only slightly
favored Emory. Emory does not challenge the chancellor’s findings in regard to every
Albright factor. Rather, Emory specifically contends that the chancellor abused his
discretion in determining the amount of care Rutchel’s mother provided the children and in
overstating the severity of his disability.
¶9.
Emory first argues that the chancellor ignored the testimony of his first cousin,
Charlton Lester. Lester testified that he was around the family on a weekly basis from the
summer of 2001 through February 2002. According to Lester, during this period Emory’s
disability did not affect his ability to take care of his oldest child. However, Emory filled
out a form used in his military disability claim in which he described his physical condition
4
at the time. Emory described his pain as constant and that his contributions to child care
were limited. Emory stated that: he could not stand or sit too long; he loses his balance
easily; he could not bathe or dress himself; he could not contribute to housework; and he was
on approximately ten different medications to manage his condition.
¶10.
Lester did not see the family regularly again until he moved in Emory’s home in
September 2008 to live with Emory and the two children. Lester testified that Rutchel’s
mother, who was still living with Emory and the children, did not take care of the children.
Lester also testified that Emory handled everything involving the children and everything
involving housework and yard work. Lester did admit that his schedule was different from
Rutchel’s mother, and he was not always awake when she was at the house.
¶11.
In July 2007, Emory completed a continuing-disability-review report for the SSA in
which he stated that his health was deteriorating and that he was forced to remain in bed
most of the day. Emory admitted that while Rutchel was working, her mother did all the
cooking and housework. Emory admitted that the conditions he described in the 2001 and
2007 forms were still the same conditions he was experiencing at the time of trial.
¶12.
Rutchel testified that she asked her mother to come live with them because she was
unable to care for a disabled husband, raise two children, work full time, and keep up the
housework by herself. Emory’s own filings with the SSA and VA reveal that Rutchel was
handling everything by herself. Rutchel testified that her mother assumed approximately
eighty percent of the housework, including laundry, ironing, cooking, yard work, and
helping with the children.
5
¶13.
The chancellor was of the opinion that Rutchel’s mother played a larger role than was
represented by Emory. The chancellor also questioned Emory’s credibility in regard to the
discrepancies between his trial testimony and the description of his disability in the SSA and
VA reports. The chancellor stated that “[e]ither this Court or those agencies do not have a
true picture of [Emory’s] physical condition.” We cannot find that the chancellor erred in
questioning Emory’s credibility. It is clear from the record that Rutchel’s mother played a
role in raising the children and helping around the house, especially when Rutchel was in
Iraq.
¶14.
Emory also argues that the chancellor erred in overstating the severity of his
disability. Emory refers to a disability report by the VA dated May 21, 2009, which was
submitted to the chancellor after trial. This report states that Emory’s condition remained
unchanged and that his disability rating was the same. Emory contends this report refutes
the chancellor’s concern that Emory’s condition would deteriorate as he aged. Although the
chancellor was concerned about Emory’s future health, it is clear that Emory’s current health
was a big factor in awarding custody of the children to Rutchel. As previously stated, the
chancellor was concerned about Emory’s credibility. The chancellor stated the following:
“[Emory] cannot have it both ways, i.e., allege he can adequately care for his children,
assuming the necessary physical duties, or being virtually helpless and dependent on his wife
or mother-in-law.” Upon review of the record and exhibits, we cannot find that the
chancellor erred in awarding custody of the children to Rutchel. This issue is without merit.
¶15.
THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IS
6
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
