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Neville v. Neville

February 23, 1999

GEORGE WADDELL NEVILLE APPELLANT
v.
TINA FOLEY NEVILLE APPELLEE



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

The opinion of the court was delivered by: McMILLIN, P.j.

DATE OF JUDGMENT: 12/27/96 TRIAL JUDGE: HON. WILLIAM SINGLETARY COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

TRIAL COURT DISPOSITION: DIVORCE GRANTED TO APPELLANT; CHILD CUSTODY AWARDED TO APPELLEE

DISPOSITION: AFFIRMED - 2/23/99

¶1. George Neville, an attorney, was granted a divorce from his wife, Tina Neville, a medical doctor, in the Chancery Court of Hinds County on the ground of uncondoned adultery. After finding the proof sufficient to grant the divorce, the chancellor turned to the matters of determining child custody and adjudicating the various financial considerations that attend the dissolution of a marriage. He granted primary physical custody of the parties' child to Dr. Neville and Mr. Neville has appealed that decision. Mr. Neville also claims that he was ill-treated by the chancellor in various ways relating to matters of finance and the division of personalty. He also raises two issues regarding perceived errors in evidentiary rulings by the chancellor.

¶2. Dr. Neville has filed a cross-appeal, claiming that the chancellor was unduly generous to Mr. Neville in awarding him $1,400 per month for a fixed term of 120 months in an award the chancellor termed rehabilitative alimony. Dr. Neville also suggests that the chancellor abused his discretion in setting child support to be paid by Mr. Neville below the applicable statutory guidelines without offering adequate justification for doing so.

¶3. We conclude, based upon our review of the record and the applicable law, that the chancellor acted within the range of discretion given in such matters in all aspects of his ruling, and we, therefore, affirm the judgment, subject only to a change we make on our own motion in the terminology the chancellor used to describe Mr. Neville's alimony award.

I.

Facts

¶4. Mr. Neville and Dr. Neville were married in 1988 at a time when he was working as an attorney for the Office of the Attorney General and Dr. Neville was a medical school student. He was 31 years old and she was 23 years of age at the time of the marriage. A female child was born to the couple in December 1991. In 1995, the couple anticipated moving from Jackson to Long Beach to permit Dr. Neville to begin practicing in her area of specialty. The record indicates that, during this time, Dr. Neville had become romantically involved with a physician from the coast area that ultimately led to an adulterous affair. It was the evidence of this affair that formed the basis of the chancellor's decision to grant Mr. Neville a divorce.

¶5. As a result of the marital difficulties brought on by Dr. Neville's adulterous conduct, Mr. Neville did not relocate to Long Beach, though the parties had already purchased a home in anticipation of the move. At the time of the divorce trial, Mr. Neville continued to actively practice law with an income of approximately $55,000 per year. Dr. Neville was earning in the range of $165,000 per year at the time of the separation. The evidence suggests that both parties are healthy and reasonably capable of continuing their respective gainful employment for the foreseeable future.

II.

Child Custody

¶6. As his first issue, Mr. Neville urges this Court to conclude that the chancellor abused his discretion in awarding primary physical custody of the parties' daughter to Dr. Neville.

¶7. In a contested child custody case, the chancellor is often confronted with a difficult decision. The Mississippi Supreme Court has listed a number of factors that ought properly to enter into the decision process. These criteria have, through long use, come to be familiarly known as the Albright factors. Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). The critical issue underlying all the Albright factors is the welfare of individuals that, in the great bulk of cases, are not parties to the litigation - namely, the children of the litigants. The supreme court has stressed this point by saying that the child's best interest is the "polestar" consideration in any custody determination. M.C.M.J. v. C.E.J., 715 So. 2d 774 (ΒΆ11) (Miss. 1998). Thus, though the dispute is between the litigants, the determination of custody does not particularly concern itself with the parents' competing claims that to deprive one or the other of custody would be unduly harsh to that parent. It is for that reason, for example, ...


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