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Delozier v. Delozier

December 18, 1998

MELISSA LEA DELOZIER APPELLANT
v.
DANIEL WINFRED DELOZIER APPELLEE



Before Thomas, P.j., Diaz, And Southwick, JJ.

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

DATE OF JUDGMENT: 05/28/97

TRIAL JUDGE: HON. W. HOLLIS MCGEHEE II

COURT FROM WHICH APPEALED: FRANKLIN COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

TRIAL COURT DISPOSITION: DIVORCE GRANTED ON GROUNDS OF IRRECONCILABLE DIFFERENCES

DISPOSITION: REVERSED AND REMANDED - 12/18/98

¶1. Melissa and Daniel Delozier were granted a divorce on the grounds of irreconcilable differences. Melissa appeals the terms of the chancellor's order (1) awarding joint physical custody of the minor child to both Melissa and Daniel, (2) requiring Melissa to pay a sum of child support which violated the Mississippi child support award guidelines, and (3) requiring Melissa to obtain an appraisal establishing the value of the marital home. Finding error only in the chancellor's award of child support, we reverse and remand for proceedings consistent with this opinion.

FACTS

¶2. Melissa and Daniel Delozier were granted a divorce on May 28, 1997. The chancellor determined that since Daniel worked from Thursday evening until Sunday each week and since Melissa was enrolled in school, that the best arrangement for child custody would be to place Dakota, the minor child of the marriage, with Melissa each weekend and with Daniel each week during the school year. Melissa would also have physical custody of Dakota during the entire summer vacation, except for the first and last week of summer vacation and the first week of July, at which time Dakota would be with Daniel. Although at the time of the divorce, Melissa was living four hours away from where the parties had previously resided and the custody arrangement would require Melissa and Daniel to travel a great distance each week, the chancellor concluded that the situation warranted such an arrangement. The chancellor then determined that Melissa should pay $100 per month in child support from August until May of each year and Daniel should pay $100 in child support during the months of June and July. The court also directed both Melissa and Daniel to maintain health insurance coverage on Dakota. Finally, in response to the parties' motion to alter the judgment, the chancellor ordered the parties to either reach an agreement concerning the division of the marital home or, in the alternative, for Melissa to submit an appraisal to the court establishing the value of the home. Melissa appealed the chancellor's order to this Court.

DISCUSSION

I. DID THE CHANCELLOR ERR IN AWARDING JOINT PHYSICAL CUSTODY?

¶3. The supreme court has repeatedly held that "[t]he polestar consideration in custody matters is the best interest and welfare of the child." Mercier v. Mercier, 717 So. 2d 304 (¶10) (Miss. 1998). In any child custody proceeding, the chancellor must consider (1) the age, health, and sex of the child; (2) which parent has had the continuity of care prior to the separation; (3) the parties' parenting skills and their willingness and capacity to provide primary child care; (4) the parents' employment and responsibilities of that employment; (5) the physical and mental health and the age of the parents; (6) the emotional ties of the parents and the child; (7) the moral fitness of the parents; (8) the home, school, and community record of the child; (9) the child's preference, if the child is at such an age as the law permits to express a preference; (10) the stability of the home and the employment of each parent; and (11) other factors relevant to the parent-child relationship. Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). It is clear from a careful review of the chancellor's order that he considered the Albright factors before rendering his decision that both Melissa and Daniel should share joint physical custody of Dakota, their minor child.

¶4. Melissa also complains that the chancellor erred in separating Dakota from his half-brother, Dustin, who lives primarily with Melissa. While we recognize that courts should attempt to keep siblings together when possible, "[t]here is no per se rule against the separation of children." Bowen v. Bowen, 688 So. 2d 1374, 1380 (Miss. 1997). Although the custody arrangement in this case is far from ideal in light of the fact that Melissa, Daniel, and Dakota will be forced to travel a great distance each week and that Dakota will often be separated from his half-brother, there appears to be no better solution considering Daniel's work schedule and the fact that Melissa and Daniel now live four hours apart. Furthermore, child custody matters are solely within the chancellor's discretion, and this Court will not reverse absent a finding that the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. ...


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