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Robles v. Gonzalez

Court of Appeals of Mississippi

May 15, 2018

MARCIA LOPEZ ROBLES APPELLANT
v.
JOSE FRANCISCO GONZALEZ APPELLEE

          DATE OF JUDGMENT: 11/01/2016

          RANKIN COUNTY CHANCERY COURT, HON. JOHN C. MCLAURIN JR. TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: JOHN MICHAEL DUNCAN CHRISTOPHER TYLER KENT

          ATTORNEYS FOR APPELLEE: NATHAN HENRY ELMORE JANE E. TUCKER

          BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.

          CARLTON, J.

         ¶1. Marcia Robles filed a complaint for divorce against her husband, Jose Gonzalez. The Rankin County Chancery Court entered a judgment granting Robles and Gonzalez an irreconcilable-difference divorce. In his judgment, the chancellor also made an equitable division of the martial property and awarded Robles and Gonzalez joint legal and physical custody of their two minor children.

         ¶2. Robles now appeals the chancellor's final judgment, arguing that the chancellor erred by failing to make an on-the-record finding of each applicable Albright[1] factor when awarding Robles and Gonzalez joint custody of the minor children. Finding error in the chancellor's final judgment, we reverse this case and remand to the chancellor for further proceedings consistent with this opinion.

         FACTS

         ¶3. Robles and Gonzalez were married in Mexico in September 2006. After their marriage ceremony, Robles and Gonzalez resided in Rankin County, Mississippi. On October 28, 2015, Robles filed a complaint for divorce against Gonzalez based on irreconcilable differences and habitual cruel and inhuman treatment. She also requested sole legal and physical custody of the parties' two minor children, J.P. and J.[2] The record reflects that Robles has two additional biological children from a previous relationship, and Gonzalez has three additional biological children from a previous relationship. Robles's two additional biological children lived in the marital home along with Robles, Gonzalez, J.P., and J. Gonzalez filed his answer and counterclaim to the complaint on December 17, 2015.[3]

         ¶4. On August 3, 2016, the parties executed a stipulation where they withdrew all enumerated fault grounds for divorce and agreed for the entry of a divorce on the grounds of irreconcilable differences. At a trial on the matter held August 3, 2016 and October 31, 2016, the chancellor heard testimony from Robles and Gonzalez, as well as Maribel Valdez and Liliana Alcazar Cepeda.

         ¶5. At the trial, Robles testified that during her marriage to Gonzalez, she stayed home and cared for the children. Robles explained that after that she and Gonzalez separated, she obtained employment performing roofing work and cleaning houses, but she maintained a flexible work schedule. Robles testified that J.P. and J. had a good relationship with Robles's two older biological children, and she stated that J.P. and J. would be upset if they had to live apart from their older half-siblings.

         ¶6. Robles testified that due to a no-contact order issued by the justice court, Gonzalez had only restricted visitation with J.P. and J. Robles explained that she sought the no-contact order after an incident on September 10, 2015, when Gonzalez hit her and "grabbed [her] . . . and . . . threw [her] against a fence." Robles stated that as a result of the alleged assault, she suffered bruising and scrapes on her arms. Robles also stated that she believed that Gonzalez had an anger problem, and she did not feel safe around him. Counsel for Robles entered photographs into evidence, and Robles testified that the photographs depicted the injuries she suffered as a result of Gonzalez's alleged assault on September 10, 2015. Robles denied that she was seeking immigration status based on Gonzalez's alleged assault.

         ¶7. During cross-examination, Robles confirmed that surrounding the time of the alleged assault, she "commonly text[ed] people up to a hundred or more times a day" and made "sometimes 40, 50 telephone calls a day." When questioned about her parenting skills, Robles admitted that J., who was almost six years old at the time of trial, suffered several injuries, including head and leg injuries and a broken arm, while in her care. Robles testified that J. also suffered extensive tooth decay which resulted in dental work, including nineteen crowns placed on his decayed teeth. Robles admitted that she has slapped one of her older children across the face on one occasion, but she denied ever slapping J.P. or J.

         ¶8. Robles also testified that when she attends parties, "the children always go with [her]." Robles admitted that people often consume alcohol at the parties, which often last past midnight. Robles stated that on occasion, she drove home with her children after she had consumed alcohol, but she denied ever driving while intoxicated. Robles also testified that she has a Mexican driver's license, but does not have a Mississippi driver's license. The following exchange occurred during cross-examination:

Q. So you are not licensed to drive in the State of Mississippi.
A. Yes.
Q. And yet you drink and drive. ...

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