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Clark v. Clark

Court of Appeals of Mississippi

November 12, 2013

Douglas C. CLARK, Appellant
v.
Brittany Danielle CLARK, Appellee.

Cynthia Ann Re, Joseph E. Fillingane, attorneys for appellant.

S. Christopher Farris, attorney for appellee.

Before LEE, C.J., ROBERTS and CARLTON, JJ.

ROBERTS, J.

¶ 1. The Lamar County Chancery Court granted an irreconcilable-differences divorce to Douglas Clark and Brittany Clark. The parties agreed as to the distribution of property and assets, and that they would share joint legal custody of their son, Brayden Clark; however, the issue of physical custody was left for the chancery court to decide. Brittany was awarded primary physical custody of Brayden, and Douglas was granted visitation. Douglas filed the present appeal of the chancery court's decision to award primary physical custody of Brayden to Brittany. Finding that the chancery court did not consider the propriety of granting joint physical custody, we reverse the chancery

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court's judgment and remand this case for the chancery court to reconsider physical custody of Brayden.

FACTS AND PROCEDURAL HISTORY

¶ 2. Brittany and Douglas were married on January 14, 2006, and their son, Brayden, was born on May 19, 2008. Brittany initially filed for divorce on August 31, 2009, citing habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences, as the grounds for divorce. Thereafter, the chancery court entered a temporary order on December 15, 2009, awarding the couple joint physical and legal custody of Brayden. A subsequent order amended the custody rotation and explained the holiday-visitation schedule.

¶ 3. Then, on June 28, 2010, Brittany and Douglas filed a joint motion to cancel the trial date, and for separate maintenance and temporary features. The chancery court granted the motion on July 7, 2010, and awarded full legal and physical custody to Douglas. An agreed order to dismiss the divorce complaint was entered on September 21, 2010. Over four months later, Brittany again filed for divorce, alleging the same grounds for divorce as were raised in her initial complaint.

¶ 4. Brittany and Douglas ultimately agreed to an irreconcilable-differences divorce, but submitted the following issues for the chancery court to decide: the statutory amount of child support; the primary physical custody of Brayden; the visitation schedule of the noncustodial parent; and the right to claim Brayden for income-tax purposes.[1] The chancery court resolved these issues at the trial held on June 12, 2012.

¶ 5. At the trial, the chancellor heard testimony from Brittany; her mother, Selena McLaurin; Douglas; and his father, Tommy Clark. Brittany testified that she was currently in nursing school and living with her parents. Even though she was living at home, she had her own room, as did Brayden. She testified that she had no objection to joint legal custody. According to the July 7, 2010 order, Brittany agreed to Douglas having full physical custody and that he was a fit and suitable person to have custody of Brayden. However, she testified that she did this in an attempt to reconcile with Douglas, as this was a requirement imposed by him as part of their reconciliation. Her primary concerns about Douglas are his inability or unwillingness to communicate with her about Brayden, his derogatory comments about her and her family, and his failure to provide sufficiently for Brayden on a financial or emotional level. Next, McLaurin, Brittany's mother, testified. According to McLaurin, she and her husband help provide financially for Brayden and babysit him when needed. She explained that she has a flexible schedule and can take care of Brayden while Brittany is in nursing-school classes. McLaurin testified that Brittany is a good mother to Brayden and that Brittany tries to work with Douglas on issues concerning Brayden. But it is difficult to communicate with Douglas about these issues. McLaurin also stated that the current custody schedule was stressful for Brayden due to the constant moving between households.

¶ 6. Clark, Douglas's father, testified next. Clark testified that Douglas is an

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excellent father and " takes care of [Brayden] physically, emotionally, and spiritually." Clark also explained that he and his wife had flexible schedules and could take care of Brayden when necessary. Douglas was the last to testify. He stated he was in school part-time to obtain his master of divinity degree, and his class schedule, combined with his lawn-care business, provided him a flexible schedule. Douglas also testified that the visitation schedule is always at Brittany's discretion, and ...


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