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MARY ANN MOORE TORRENCE v. QUINTON ALVIN MOORE

SEPTEMBER 05, 1984

MARY ANN MOORE TORRENCE
v.
QUINTON ALVIN MOORE



BEFORE HAWKINS, PRATHER AND SULLIVAN

SULLIVAN, JUSTICE, FOR THE COURT:

This case rises on appeal from the Chancery Court of Scott County, Mississippi. These parties were married each to the other on May 14, 1976. One son, Quinton Ryan Moore, was born to them on October 11, 1977. The parties separated July 7, 1980, and were divorced on grounds of irreconcilable differences on December 2, 1980. By agreement, they had joint custody of their son, with each of them being the paramount custodian for equal periods of time on a monthly basis. Both parties have now remarried to other people. Appellee has one child by his marriage, who was six months old at the time of the hearing, and two step-children, a boy aged eight and a girl aged five at the time of the hearing. The appellant has no children from her marriage to Mr. Torrence.

As their son approached school age, both parties sought modification of the custody arrangement as the alternating custody would be detrimental to the child during his school years. Appellant testified that it would be in the child's best interest to be in the custody of only one of the parents, and appellee testified to the same thing, except he conceded that it would be best for his son that one parent have custody of the child even if the appellant was granted custody though he preferred it.

 At trial both sides conceded the fitness of the other. The issue, therefore, was squarely presented to the chancellor of what was in the best interest of the child.

 The appellant relied on the presumption of the "tender years" doctrine, the fact that she was the mother of the child, and the testimony of Linda Wilbourn, Ph.D in clinical psychology, who testified that the child was experiencing anxiety about his unstable home environment and difficulty in adjusting to the other children in the home. Dr. Wilbourn testified further that traditionally the mother is the better custodian of a child up to the age of twelve

 or thirteen. She further opined that it is better for a child to live with the mother than a stepmother.

 Dr. Wilbourn's testimony was based on one interview with the child and with the appellant as well as a series of tests given to the child. She did not interview appellant's new husband, nor did she interview the appellee nor the appellee's new wife. On this background information, Dr. Wilbourn testified:

 1. That a clinical history is important in diagnosis but her entire knowledge of the child came from that one session and her opinion, insofar as it is based upon individual factors is based upon the information gathered at that one session;

 2. That her opinion is primarily based upon her predisposition toward maternal custody of young children;

 3. That the fact that appellant frequently kept the child in the presence of appellant's father, who drank regularly and heavily, would not alter her opinion that appellant should be granted paramount custody of the child;

 4. That the child's close emotional ties to his half-brother, stepbrother and stepsister would make no difference in her opinion that appellee should have the paramount custody of the child.

 Dr. Wilbourn admitted that the child, Ryan, suffered no adverse effects as the result of living with his father, stepmother, stepbrother, stepsister and half-brother.

 Appellant contends that the chancellor ignored the testimony of the expert. Appellant cites Ballard v. Ballard, 434 So.2d 1357 (Miss. 1983), and Cheek v. Ricker, 431 So.2d 1139 (Miss. 1983), which we appreciate to be sound law, but which are inapplicable to the facts of the present case.

 Appellant urges that of the eleven factors to be considered in determining custody, as set out in Albright v. Albright, 437 So.2d 1003 (Miss. 1983), the chancellor ignored and did not consider the following six: (1) the age of the child; (2) the health and sex of the child; (3) the determination of the parent that has had the continuity of care prior to the separation; (4) which parent has the best ...


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