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Bruenderman v. Bruenderman

Court of Appeals of Mississippi

January 10, 2017

TYRONE RON BRUENDERMAN APPELLANT
v.
ANNA TERESA LATOURNEY BRUENDERMAN APPELLEE

          DATE OF JUDGMENT: 12/04/2014

         FORREST COUNTY CHANCERY COURT HON. JOHNNY LEE WILLIAMS Judge

          ATTORNEYS FOR APPELLANT: DONALD WAYNE MEDLEY DAVID NEIL MCCARTY

          ATTORNEYS FOR APPELLEE: STEVEN JOEL JOHNSON DANIEL MYERS WAIDE

         EN BANC.

          GREENLEE, J.

         ¶1. This is an appeal from Forrest County Chancery Court where the chancellor awarded sole physical custody of the minor child to Anna Teresa Latourney Bruenderman (Anna). The chancellor also awarded to Anna all of the equity realized in the sale of the marital home. On appeal, Tyrone Ron Bruenderman (Ty) asserts that, in the chancellor's custody analysis, the chancellor erred by (1) sanctioning him for his adultery, (2) barring admission of Anna's medical records, and (3) not properly weighing certain testimony. Ty further asserts the chancellor erred in its property division by awarding one-hundred percent of the equity of the sale of the marital home to Anna. Because the chancery court conducted a proper and complete Albright[1] and Ferguson[2] analysis, and because Ty did not timely seek admission of Anna's medical records under Mississippi Rule of Evidence 503, we affirm.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2. Anna and Ty were married on December 22, 2002, in Reno, Nevada.[3] At the time of their marriage, both were active-duty military. Anna agreed to terminate her military career in order to facilitate Ty's career and to care for Ty's children from a previous marriage.[4]They relocated to Petal, Mississippi, after Ty was ordered to Camp Shelby. After the relocation, Anna began nursing-prerequisite studies at the University of Southern Mississippi, [5] and, by the time of trial, Ty had achieved retirement from the military. One child ("the minor child") was born of the marriage, who was five years old at the time of trial. ¶3. On November 07, 2013, Anna filed for divorce on the grounds of adultery. On May 20, 2014, Anna was granted a divorce from Ty on the grounds of adultery. Anna was awarded full physical custody with Ty being awarded visitation rights, and both parties being awarded joint legal custody. The chancellor found Anna was entitled to, among other things, all of the equity realized from the sale of the marital home[6] and one-third of Ty's military-retirement benefits, [7] and ordered Ty to pay Anna one-half[8] of the $11, 300 in marital property that he had transferred into his mother's personal bank account. As part of Ty and Anna's asset-settlement agreement, Anna received $14, 525 in household items, two vehicles totaling $21, 688 in value, and $18, 000 from a life-insurance policy. As part of the same agreement, Ty received $5, 849 in household items, two vehicles totaling $37, 197 in value, a boat valued at $6, 965, and $18, 000 from the life-insurance policy. On December 31, 2014, Ty appealed to this Court.

         DISCUSSION

         ¶4. A chancellor's findings will be upheld unless he was manifestly wrong, clearly erroneous, or employed an erroneous legal standard. Heiter v. Heiter ex rel. Sheffield, 192 So.3d 992, 994 (¶4) (Miss. 2016). A chancellor's judgment is reviewed for abuse of discretion. Id. at 994-95 (¶4). The chancellor is charged with weighing the evidence; thus, his determination will not be reversed absent manifest error or an abuse of discretion. Id. at 995 (¶4).

         ¶5. On appeal, Ty asserts that, in the chancellor's custody analysis (under Albright), he erred by (1) sanctioning him for his adultery, (2) barring any evidence of Anna's medical records, and (3) not properly weighing certain other testimony. Ty further asserts the chancellor erred in his property-division analysis (under Ferguson) by awarding one-hundred percent of the equity of the sale of the marital home to Anna.

         I. The Court's Albright Custody Analysis

         ¶6. Ty asserts the chancellor erred in his child-custody Albright analysis by (1) sanctioning him for his adultery, (2) barring any evidence of Anna's medical history, and (3) not properly weighing other testimony.

         ¶7. In all child-custody cases, the polestar consideration is the best interests of the child. Sellers v. Sellers, 638 So.2d 481, 485 (¶4) (Miss. 1994). The Mississippi Supreme Court set forth the following factors to be considered by the chancellor in custody matters: (1) age, health, and sex of the child; (2) "continuity of care prior to the separation"; (3) parenting skills and "willingness and capacity to provide primary child care"; (4) "employment of the parent and responsibilities of that employment"; (5) "physical and mental health and age of the parents"; (6) "emotional ties of parent and child"; (7) moral fitness of the parents; (8) "the home, school[, ] and community record of the child"; (9) "the preference of the child at the age sufficient to express a preference by law"; (10) stability of the home and employment of each parent; and (11) any other factors relevant to the relationship between the parent and the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).

         A.Ty's ...


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