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[T] Upton v. Upton

June 09, 1998

PATRICIA T. UPTON, APPELLANT
v.
JOHNNY P. UPTON, APPELLEE



Before McMILLIN, P.j., Diaz, And King, JJ.

The opinion of the court was delivered by: Diaz, J., For The Court:

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 08/02/94

TRIAL JUDGE: HON. W. E. BEARDEN JR.

COURT FROM WHICH APPEALED: NEWTON COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - CUSTODY

TRIAL COURT DISPOSITION: THE PARTIES WERE EACH AWARDED CUSTODY OF ONE OF THE TWO MINOR CHILDREN

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

Patricia Upton appeals from a ruling of the Chancery Court of Newton County where the court split custody of her and Johnny Upton's two children. The chancellor gave custody of the son, John David, to Johnny and awarded custody of the daughter, Brandi, to Patricia. Aggrieved, Patricia appeals to this Court.

FACTS

Johnny and Patricia were married in March 1981, and separated on June 9, 1992. They had two children, Brandi, 11, and John David, 5. Johnny owned and operated a pest control business. Patricia helped with the books at Johnny's business and later went to work as a secretary for B & W Feed Service. B & W was owned by Sam Bounds who was also Patricia's alleged paramour.

Patricia's mother, Anita Thompson, helped with the kids. When Brandi was younger, Mrs. Thompson would pick Brandi up from day care and keep her until Patricia came home from work. Johnny fixed breakfast and took Brandi to school, because Patricia had to be at work early.

There is some disagreement as to the amount of housework each party performed. Yet, this is not really relevant at this point since the Judge found that both are fit to be parents and neither party has made this an issue.

In 1991, Sam Bounds' wife, Cathy, suspected Sam and Patricia of having an affair. Cathy confronted Patricia who denied any romantic involvement with Sam. Cathy and Johnny hired a private investigator to get proof of adultery, but the investigator was unsuccessful.

Johnny filed for divorce on June 9, 1992. Johnny accompanied the process server to B & W Feeds to serve Patricia. Afterward, Johnny allegedly threatened Patricia and took back a diamond ring which he had given her several years prior. Patricia also alleges that Johnny beat her several times over the following few days.

Patricia was granted temporary custody of the two children and use of the marital home pending the divorce and custody trial. At trial, the chancellor granted Johnny a divorce on the ground of adultery. He then split the custody of the two ...


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