Before Sullivan, P.j., Banks And Roberts , JJ.
The opinion of the court was delivered by: Sullivan, Presiding Justice
DATE OF JUDGMENT: 08/14/96
TRIAL JUDGE: HON. JON M. BARNWELL
COURT FROM WHICH APPEALED: TALLAHATCHIE COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 12/17/98
¶1. This is an appeal brought by Sharon Rushing seeking reversal of the trial court's decision granting a divorce to Todd Rushing on the ground of adultery and awarding him sole legal and physical custody of the minor child.
STATEMENT OF THE CASE AND SURROUNDING FACTS
¶2. Sharon Lynn Goodwin and Todd Russell Rushing were married on December 27, 1989. One child was born of the marriage on August 23, 1990. On December 11, 1995, Mrs. Rushing left the marital home, taking the minor child with her.
¶3. On December 20, 1995, Mr. Rushing filed a complaint for divorce on the grounds of adultery, habitual cruel and inhuman treatment, and habitual use of narcotic drugs, or, in the alternative, on the ground of irreconcilable differences. Mr. Rushing further alleged Mrs. Rushing is unfit to have physical custody of the minor child and requested he be granted physical custody. Mrs. Rushing admitted irreconcilable differences existed between Mr. Rushing and herself, but she denied the allegations of misbehavior and unfitness in her answer dated February 8, 1996.
¶4. On February 23, 1996, the chancellor entered a judgment providing temporary child custody to Mrs. Rushing and child visitation to Mr. Rushing. On May 31, 1996, Mr. Rushing filed a motion to modify the court's temporary order for child visitation. By order entered July 9, 1996, the court awarded Mr. Rushing week long visitations with the minor child during the summer of 1996.
¶5. At the divorce hearing held on August 13 and 14, 1996, Mr. Rushing testified he believed Mrs. Rushing was having an extramarital affair with Mr. Terry Carr. Mr. Rushing testified that he had invited Mrs. Rushing and the minor child to return to the marital home while he was out of town, and that he had installed a voice activated recording device on his home telephone so that he could intercept Mrs. Rushing's phone conversations.
¶6. Mr. Rushing then introduced into evidence an audio tape allegedly containing evidence of Mrs. Rushing's unfaithfulness. Mr. Rushing identified the voices on the tape recording as those of his wife and her alleged lover Mr. Carr. Over Mrs. Rushing's objection, the trial court admitted the tape recording into evidence.
¶7. Thereafter, Mrs. Rushing's counsel made this announcement:
"After the plaintiff rested, I have conferred with my client, Mrs. Rushing, and we concede that the proof on behalf of the plaintiff establishes the grounds for the divorce of adultery, and we concede that. . . the court can award the custody of [the minor child] to Mr. Rushing, subject to the reasonable visitation rights of Mrs. Rushing. . . ."
¶8. On August 14, 1996, the court entered a Final Judgment of Divorce, on agreement by both parties, granting Mr. Rushing a divorce on the ground of adultery and granting Mr. Rushing sole legal and physical custody of the minor child. Mrs. Rushing was awarded restricted scheduled visitations with the minor child and ordered to pay child support in the sum of $280.00 per month.
¶9. Mrs. Rushing's Motion for Reconsideration or, In the Alternative, a Motion for a New Trial was denied by the trial court on November 20, 1996. Mrs. Rushing filed her Notice of Appeal to this Court on December 19, 1996, but her appeal was dismissed for failure to timely file Appellant's brief. On October 27, 1997, Mrs. Rushing filed her motion to reinstate the appeal, and this Court entered an order reinstating said appeal on January 28, 1998.