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Thomas C. Wooten v. Ashley L. Simmons Wooten
Date: 02-06-2022
Case Number: 2020-CA-00353-COA
Judge: Jim M. Greenlee
Court:
N THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
On appeal from The CLAY COUNTY CHANCERY COURT
Plaintiff's Attorney:
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Defendant's Attorney: AMANDA SUSAN BEARD
Description:
Thomas and Ashley Wooten were married on June 18, 2011. They had two children,
B.W. and C.W., before they separated in October 2015.1 On March 19, 2018, Thomas filed
for divorce from Ashley on the statutory ground of desertion and/or habitual cruel and
inhuman treatment or, alternatively, on the ground of irreconcilable differences. On
September 14, 2018, Ashley filed her answer and counter-complaint for divorce. She alleged
that she was entitled to a divorce on the ground of uncondoned adultery and/or habitual cruel
and inhuman treatment. Alternatively, Ashley requested a divorce on the ground of
irreconcilable differences.
¶4. In October 2019, the parties agreed and entered a consent to divorce on the ground of
irreconcilable differences. Before the commencement of trial, the parties agreed that they
would leave the issues of child custody, child support, and property division to the court's
determination.2 The two-day trial began on October 29, 2019, and concluded on January 15,
2020. Both Thomas and Ashley introduced evidence and presented several witnesses.
¶5. The chancellor issued an order on January 31, 2020, and a supplemental opinion and
final judgment on February 4, 2020. The chancellor awarded Ashley sole physical custody
1
We use initials to protect the identities of the minor children.
2 The parties agreed that the line of demarcation date for the equitable distribution
was October 14, 2015.
2
of the children and joint legal custody to both parties. The chancellor ordered that Thomas'
monthly child-support payments be increased from $239 for one child to $780 for two
children. The chancellor also awarded Ashley a retroactive increase in the child support
payments and declined Thomas' request to reduce the statutory support.3
¶6. As to the propertydivision,the chancellor determined that the parties' marital property
included (1) two vehicles— a 2000 Ford F250 and a 2015 Dodge Ram; (2) any of Ashley's
retirement funds accumulated with BancorpSouth Bank from July 2011 to October 14, 2015;
(3) BancorpSouth Bank credit-card debt in the amount of $880; and (4) Discover credit-card
debt in the amount of $1,938.15. According to the chancellor's findings, the parties' separate
property consisted of (1) Thomas' checking and retirement accounts with Kinder Morgan
Gas Company; (2) Ashley's BancorpSouth Loan; (3) Ashley's PERS and Cadence Bank
retirement account; and (4) Ashley's student loan.
¶7. Thereafter, the chancellor awarded Ashley the 2015 Dodge Ram, the BancorpSouth
Bank credit-card debt, and the Discover credit-card debt. Thomas was awarded the 2000 Ford
F250. Subsequently, the chancellor denied Ashley's request for reimbursement of the
children's medical expenses and denied her request for attorney's fees after determining that
Ashley failed to show a financial inability to pay.
¶8. Thomas now appeals from the chancellor's judgment, arguing that the chancellor
erred by (1) disregarding Ashley's retirement savings in the equitable-distribution analysis;
3 Thomas and Ashley previously separated in 2009. During the separation, Ashley
went to the Department of Human Services seeking child support assistance from Thomas.
Thomas agreed to pay child support in the amount of $239 a month for B.W.
3
(2) granting physical custody of the children to Ashley; and (3) refusing to deviate from the
statutory child-support guidelines.
STANDARD OF REVIEW
¶9. "This Court has a limited standard of review in examining and considering the
decisions of a chancellor.†Ravenstein v. Ravenstein, 167 So. 3d 210, 215 (¶8) (Miss. 2014).
If supported by substantial evidence, a chancellor's factual findings will not be disturbed
unless "the chancellor abused [her] discretion, was manifestly wrong, clearly erroneous, or
applied an erroneous legal standard.†Varnell v. Rogers, 198 So. 3d 1278, 1280 (¶7) (Miss.
Ct. App. 2016). On appeal, this Court "is required to respect the findings of fact made by a
chancellor supported by credible evidence and not manifestly wrong.†Newsom v. Newsom,
557 So. 2d 511, 514 (Miss. 1990). "This is particularly true in the areas of divorce and child
support.†Ferguson v. Ferguson, 639 So. 2d 921, 930 (Miss. 1994) (citing Nichols v. Tedder,
547 So. 2d 766, 781 (Miss. 1989)).
DISCUSSION
I. Equitable Distribution
¶10. Our supreme court has "long recognized that, incident to a divorce, the [c]hancery
[c]ourt has authority, where the equities so suggest, to order a fair division of property
accumulated through the joint contributions and efforts of the parties.†Ferguson, 639 So.
2d at 924 (quoting Brown v. Brown, 574 So. 2d 688, 690 (Miss. 1990)). Therefore, the court
adopted guidelines in Ferguson for the equitable-distribution method for dividing marital
assets. Id. at 928. "There is no automatic right to an equal division of jointly-accumulated
4
property, but rather, the division is left to the discretion of the court.†Brown, 574 So. 2d at
691.
¶11. Thomas argues that the chancellor erred by failing to classify Ashley's retirement
account as marital property. We reexamine the chancellor's application of the Ferguson
factors, but in doing so, we do not conduct a new Ferguson analysis. Phillips v. Phillips, 904
So. 2d 999, 1001 (¶8) (Miss. 2004). Instead, we "review[] the judgment to ensure that the
chancellor followed the appropriate standards and did not abuse [her] discretion.†Id. In the
present case, we must decide whether the chancellor's denial of a portion of Ashley's
retirement benefits to Thomas, which was acquired during their marriage, complies with the
Ferguson standards. We find that it does not.
¶12. "Marital assets include any and all property acquired or accumulated during the
marriage.†Carrow v. Carrow, 741 So. 2d 200, 202 (¶10) (Miss. 1999) (citing Hemsley v.
Hemsley, 639 So. 2d 909, 915 (Miss. 1994)). "Retirement plans are considered marital
assets.†Phillips, 904 So. 2d at 1002 (¶9) (citing Coggin v. Coggin, 837 So. 2d 772, 775 (¶5)
(Miss. Ct. App. 2003)); see also Owens v. Owens, 798 So. 2d 394, 400 (¶16) (Miss. 2001).
¶13. At the hearing, Ashley admitted that her BancorpSouth retirement savings, in the
amount of $15,018.19, was accrued during the course of the marriage:4
Q: So whatever retirement you generated at BancorpSouth Bank, that was
during the marriage and before you separated, right?
A: Yes.
4 The record reflects that the value of Ashley's BancorpSouth retirement account was
submitted in her Rule 8.05 financial statement. See UCCR 8.05.
5
Although Ashley admitted that the BancorpSouth retirement account was accrued during the
marriage, the chancellor made the following determination regarding the account:
The Court values the 2000 Ford F250 at $500.00 and the 2015 Dodge Ram at
$6,102.00; and $0.00 value for [Ashley's] BancorpSouth Bank retirement
account. Each party has requested their respective vehicle. [Ashley] has
requested thatshe retain her BancorpSouth retirement account. [Thomas]made
no specific claim to this account.
¶14. On appeal, Ashley fails to address this issue and does not rebut Thomas' contention
that the chancellor failed to properly value or account for Ashley's retirement account in the
equitable-distribution analysis. As a result of the chancellor's findings, we reverse and
remand for the chancellor to revise the distribution of Ashley's retirement account in the
division of marital assets.
II. Child Custody
¶15. "[T]he polestar consideration in child custody cases is the best interest and welfare
of the child.†Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). To meet these goals,
courts evaluate the following factors introduced in Albright:
1. The age, sex, and health of the child;
2. The continuity of care prior to the separation;
3. The parenting skills of each parent;
4. The willingness and capacity to prove primary child care;
5. The employment of the parents and the responsibilities of that employment;
6. The physical and mental health and age of the parents;
7. The emotional ties of the parent and the child;
6
8. The moral fitness of each parent;
9. The home, school, and community record of the child;
10. The preference of the child;
11. The stability of the home environment; and
12. The other factors relevant to the parent-child relationship.
Id.
¶16. "The Albright factors are intended to ensure that the chancellor follows a process that
considers all facts relevant to the child's best interest.†Baumann v. Baumann, 304 So. 3d
175, 179 (¶13) (Miss. Ct. App. 2020) (citing Vassar v. Vassar, 228 So. 3d 367, 375 (¶27)
(Miss. Ct. App. 2017)). However, "an Albright analysis is not a mathematical formula.â€
Bingham v. Johnson, 322 So. 3d 948, 952 (¶19) (Miss. Ct. App. 2021) (citing Lee v Lee, 798
So. 2d 1284, 1288 (¶15) (Miss. 2001)). While all the Albright factors are essential, "the
chancellor has the ultimate discretion to weigh the evidence the way she sees fit.†Id. (citing
Johnson v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003)). "We give deference to the
weight that the chancellor assigns to each Albright factor.†Baumann, 304 So. 3d at 179 (¶14)
(citing Smith v. Smith, 206 So. 3d 502, 513 (¶24) (Miss. 2016)). "This Court cannot re-weigh
the evidence and must defer to the chancellor's findings of facts, including her decision
regarding the evidence's weight and credibility.†Id. (citing Hall v. Hall, 134 So. 3d 822, 828
(¶21) (Miss. Ct. App. 2014)). We may not substitute our judgment for the chancellor's.
Brewer v. Brewer, 919 So. 2d 135, 141 (¶23) (Miss. Ct. App. 2005). Rather, we must decide
if substantial evidence supports the ruling. Id.
7
¶17. Thomas claims the chancellor erred in her analysis of several Albright factors. In
particular, he maintains the chancellor improperly found that the following factors were
neutral: (1) the age, sex, and health of the children, (2) the parties' physical and mental health
and age, (3) the parents' moral fitness, and (4) the home, school, and community record of
the children. Thomas also contends (5) the chancellor erred when she found that the
emotional-ties factor favored Ashley.
1. Age, Sex, and Health of the Children
¶18. Thomas asserts that the chancery court erred by not finding that this factor favored
him because the children were male and above the age of tender years. "[A] chancellor may
find that [the child's sex] does or does not weigh in favor of the parent of the same sex as the
children, depending on the specific facts of the case.†Barbaro v. Smith, 282 So. 3d 578, 597
(¶85) (Miss. Ct. App. 2019) (citing Jackson v. Jackson, 82 So. 3d 644, 646 (¶8) (Miss. Ct.
App. 2011)). Therefore, "a chancellor may determine that the sex of a male child weighs in
favor of granting custody to the father.†Id.; see, e.g., Klink v. Brewster, 986 So. 2d 1060,
1063-64 (¶13) (Miss. Ct. App. 2008). "What weight to assign to this fact in the Albright
analysis is entrusted to the chancellor's sound discretion . . . . This is a finding of fact that
cannot be disturbed on appeal absent a clear showing of an abuse of discretion . . . .†Id.
¶19. In analyzing the children's age, sex, and health, the chancellor recognized that the
minor children were male and in relatively good health. In finding this factor neutral, the
chancellor explained that since the boys were ages eight and ten, they were "long†past the
age that required any special type of care due to a tender age. We cannot say that the
8
chancellor abused her discretion and find no manifest error in the chancellor's conclusion
that this factor was neutral.
2. Physical and Mental Health of the Parties
¶20. Thomas asserts that the chancellor erred by concluding that this factor was neutral in
light of Ashley's history of panic attacks. Here, the issue is whether a parent's panic attacks
should count against that parent in a custody proceeding when there is no evidence that the
attacks impair the parent's ability to care for the child.
¶21. In analyzing this factor, the chancellor took into account that Ashley has suffered "one
or more panic attacks in her lifetime.†However, with this fact in mind, the chancellor also
found, and the record reflects, that the panic attacks did not alter Ashley's ability to care for
her children. The chancellor is "vested with the responsibility to hear the evidence, assess the
credibility of witnesses, and determine ultimately what weight and worth to afford any
particular aspect of proof.†Hackler v. Hackler, 296 So. 3d 773, 778 (¶35) (Miss. Ct. App.
2020) (quoting Garner v. Garner, 283 So. 3d 120, 140 (¶84) (Miss. 2019)). The chancellor's
findings are supported by substantial evidence, and we find no error or abuse of discretion
in the chancellor's finding that this factor was neutral.
3. Moral Fitness of Each Parent
¶22. Thomas claims the chancellor erred by finding the moral-fitness factor neutral.
Specifically, Thomas claims that if the chancellor had appropriately considered Ashley's
admitted pre-separation adultery, this factor would have favored him.
¶23. Our supreme court has held that "marital fault should not be used as a sanction in
9
custody awards.†Albright, 437 So. 2d at 1005. "Adultery of a parent may be an
unwholesome influence and an impairment to the child's best interest, but on the other hand,
may have no effect. The trial court should consider this factor along with all others when
making original custody determinations.†Kimbrough v. Kimbrough, 76 So. 3d 715, 725
(¶55) (Miss. Ct. App. 2011) (quoting Carr v. Carr, 480 So. 2d 1120, 1123 (Miss. 1985)).
¶24. The chancellor was not presented with any evidence that Ashley's pre-separation
adultery impaired the children's best interest. Even though the chancellor did not mention
Ashley's pre-separation adultery under her findings for the moral-fitness factor, we cannot
say the chancellor erred in finding this factor neutral. The chancellor noted that Thomas had
another child during the marriage with his current girlfriend, and the chancellor found that
both parties had "moved on with their lives and have pursued new romantic interests.†We,
therefore, find no error with respect to the chancellor's findings on this factor.
4. Home, School, and Community Records of the Children
¶25. Thomas also challenges the chancellor's finding that the children's home, school, and
community records were a neutral factor. Thomas claims that the chancellor disregarded the
children's connection to Clay County and the tenuous connection with Ashley's county of
residence, Monroe County.
¶26. To the contrary, the chancellor did not disregard these connections. While Thomas
remains in Clay County and Ashley resides in Monroe County, there was ample testimony
that both parents were involved in the children's school and extracurricular activities, the
children had good grades, and both parents had extended family and support systems nearby.
10
The chancellor also heard testimony that even after Ashley moved to Monroe County, she
continues to spend most of her time in ClayCounty, and her living in Monroe did not prevent
the children from visiting their friends or family who reside in Clay County. Furthermore,
in analyzing this factor, the chancellor noted that both parents had households that appeared
to be "quite crowded†but did not find that it had any adverse effect on the children. Based
on a review of the record, we cannot say the chancellor abused her discretion or manifestly
erred in finding that the children's home, school, and community records were a neutral
factor. Since substantial evidence supports the chancellor's determination as to this factor,
we find no error.
5. Emotional Ties
¶27. Thomas claims the chancellor erred by finding the emotional-ties factor favored
Ashley. Specifically, Thomas claims that no evidence existed to support the chancellor's
determination. However, the chancellor noted that both Ashley's and her witnesses'
testimonyestablished she had strong emotional ties to the children. The chancellor found that
Thomas' testimony centered more around the parties' eldest child, B.W. The chancellor
expressed her concern that the couple's youngest child, C.W., "may have to fight for the
attention of his father and his family due to the arrival of his younger sibling and the
favoritism that [Thomas] shows towards [B.W.]†After considering the testimony and
evidence presented, the chancellor found this factor favored Ashley. The record contains
substantial evidence to support the chancellor's findings. Therefore, we find no error.
¶28. Upon review, we cannot say that the chancellor was manifestly wrong, was clearly
11
erroneous, or applied an incorrect legal standing in her Albright analysis. Because substantial
evidence supported the chancellor's findings, we affirm the chancellor's grant of sole
physical custody of the parties' children to Ashley and joint legal custody to both parents.
III. Child Support
¶29. For his final assignment of error, Thomas claims that the chancellor abused her
discretion by refusing to deviate from the statutory child-support guidelines. Specifically,
Thomas claims that since he would have custody of the children forty percent of the time, the
chancellor should have deviated from the statutory support guidelines.
¶30. "A chancery court has discretion in determining an award of child support.†Gunter
v. Gunter, 281 So. 3d 283, 285 (¶8) (Miss. Ct. App. 2019) (citing Harden v. Scarborough,
240 So. 3d 1246, 1255 (¶26) (Miss. Ct. App. 2018)). This Court "will not find an abuse of
discretion when the required support [is] equal to the amount that is presumptively correct
under the child-support guidelines.†Id. (quoting Mosher v. Mosher, 192 So. 3d 1118, 1126
(¶38) (Miss. Ct. App. 2016)). However, the guidelines are merely guidelines, and they "do
not control per se the amount of an award of child support.†Id. at 286 (¶10). Since the
chancery court "has special knowledge of the actual circumstances,†McEachern v.
McEachern, 605 So. 2d 809, 814 (Miss. 1992), a departure is permissible when the chancery
court makes "a written finding on the record that the application of the guidelines would be
unjust or inappropriate . . . .†Id. (citing Dunn v. Dunn, 695 So. 2d 1152, 1155 (Miss. 1997)).
¶31. Here, the chancellor ordered Thomas to pay twenty percent of his adjusted gross
income as reflected by his Rule 8.05 financial statement and in accordance with the statutory
12
guidelines. See Miss. Code Ann. § 43-19-101(1) (Rev. 2021) (establishing a rebuttable
presumption that twenty percent of the payor's adjusted gross income should be awarded for
the support of two children). We find that the chancellor did not abuse her discretion by
setting child support based on the statutory guidelines.
Jackson, MS - Divorce lawyer represented appellant with appealing from the chancellor's judgment.
Thomas and Ashley Wooten were married on June 18, 2011. They had two children,
B.W. and C.W., before they separated in October 2015.1 On March 19, 2018, Thomas filed
for divorce from Ashley on the statutory ground of desertion and/or habitual cruel and
inhuman treatment or, alternatively, on the ground of irreconcilable differences. On
September 14, 2018, Ashley filed her answer and counter-complaint for divorce. She alleged
that she was entitled to a divorce on the ground of uncondoned adultery and/or habitual cruel
and inhuman treatment. Alternatively, Ashley requested a divorce on the ground of
irreconcilable differences.
¶4. In October 2019, the parties agreed and entered a consent to divorce on the ground of
irreconcilable differences. Before the commencement of trial, the parties agreed that they
would leave the issues of child custody, child support, and property division to the court's
determination.2 The two-day trial began on October 29, 2019, and concluded on January 15,
2020. Both Thomas and Ashley introduced evidence and presented several witnesses.
¶5. The chancellor issued an order on January 31, 2020, and a supplemental opinion and
final judgment on February 4, 2020. The chancellor awarded Ashley sole physical custody
1
We use initials to protect the identities of the minor children.
2 The parties agreed that the line of demarcation date for the equitable distribution
was October 14, 2015.
2
of the children and joint legal custody to both parties. The chancellor ordered that Thomas'
monthly child-support payments be increased from $239 for one child to $780 for two
children. The chancellor also awarded Ashley a retroactive increase in the child support
payments and declined Thomas' request to reduce the statutory support.3
¶6. As to the propertydivision,the chancellor determined that the parties' marital property
included (1) two vehicles— a 2000 Ford F250 and a 2015 Dodge Ram; (2) any of Ashley's
retirement funds accumulated with BancorpSouth Bank from July 2011 to October 14, 2015;
(3) BancorpSouth Bank credit-card debt in the amount of $880; and (4) Discover credit-card
debt in the amount of $1,938.15. According to the chancellor's findings, the parties' separate
property consisted of (1) Thomas' checking and retirement accounts with Kinder Morgan
Gas Company; (2) Ashley's BancorpSouth Loan; (3) Ashley's PERS and Cadence Bank
retirement account; and (4) Ashley's student loan.
¶7. Thereafter, the chancellor awarded Ashley the 2015 Dodge Ram, the BancorpSouth
Bank credit-card debt, and the Discover credit-card debt. Thomas was awarded the 2000 Ford
F250. Subsequently, the chancellor denied Ashley's request for reimbursement of the
children's medical expenses and denied her request for attorney's fees after determining that
Ashley failed to show a financial inability to pay.
¶8. Thomas now appeals from the chancellor's judgment, arguing that the chancellor
erred by (1) disregarding Ashley's retirement savings in the equitable-distribution analysis;
3 Thomas and Ashley previously separated in 2009. During the separation, Ashley
went to the Department of Human Services seeking child support assistance from Thomas.
Thomas agreed to pay child support in the amount of $239 a month for B.W.
3
(2) granting physical custody of the children to Ashley; and (3) refusing to deviate from the
statutory child-support guidelines.
STANDARD OF REVIEW
¶9. "This Court has a limited standard of review in examining and considering the
decisions of a chancellor.†Ravenstein v. Ravenstein, 167 So. 3d 210, 215 (¶8) (Miss. 2014).
If supported by substantial evidence, a chancellor's factual findings will not be disturbed
unless "the chancellor abused [her] discretion, was manifestly wrong, clearly erroneous, or
applied an erroneous legal standard.†Varnell v. Rogers, 198 So. 3d 1278, 1280 (¶7) (Miss.
Ct. App. 2016). On appeal, this Court "is required to respect the findings of fact made by a
chancellor supported by credible evidence and not manifestly wrong.†Newsom v. Newsom,
557 So. 2d 511, 514 (Miss. 1990). "This is particularly true in the areas of divorce and child
support.†Ferguson v. Ferguson, 639 So. 2d 921, 930 (Miss. 1994) (citing Nichols v. Tedder,
547 So. 2d 766, 781 (Miss. 1989)).
DISCUSSION
I. Equitable Distribution
¶10. Our supreme court has "long recognized that, incident to a divorce, the [c]hancery
[c]ourt has authority, where the equities so suggest, to order a fair division of property
accumulated through the joint contributions and efforts of the parties.†Ferguson, 639 So.
2d at 924 (quoting Brown v. Brown, 574 So. 2d 688, 690 (Miss. 1990)). Therefore, the court
adopted guidelines in Ferguson for the equitable-distribution method for dividing marital
assets. Id. at 928. "There is no automatic right to an equal division of jointly-accumulated
4
property, but rather, the division is left to the discretion of the court.†Brown, 574 So. 2d at
691.
¶11. Thomas argues that the chancellor erred by failing to classify Ashley's retirement
account as marital property. We reexamine the chancellor's application of the Ferguson
factors, but in doing so, we do not conduct a new Ferguson analysis. Phillips v. Phillips, 904
So. 2d 999, 1001 (¶8) (Miss. 2004). Instead, we "review[] the judgment to ensure that the
chancellor followed the appropriate standards and did not abuse [her] discretion.†Id. In the
present case, we must decide whether the chancellor's denial of a portion of Ashley's
retirement benefits to Thomas, which was acquired during their marriage, complies with the
Ferguson standards. We find that it does not.
¶12. "Marital assets include any and all property acquired or accumulated during the
marriage.†Carrow v. Carrow, 741 So. 2d 200, 202 (¶10) (Miss. 1999) (citing Hemsley v.
Hemsley, 639 So. 2d 909, 915 (Miss. 1994)). "Retirement plans are considered marital
assets.†Phillips, 904 So. 2d at 1002 (¶9) (citing Coggin v. Coggin, 837 So. 2d 772, 775 (¶5)
(Miss. Ct. App. 2003)); see also Owens v. Owens, 798 So. 2d 394, 400 (¶16) (Miss. 2001).
¶13. At the hearing, Ashley admitted that her BancorpSouth retirement savings, in the
amount of $15,018.19, was accrued during the course of the marriage:4
Q: So whatever retirement you generated at BancorpSouth Bank, that was
during the marriage and before you separated, right?
A: Yes.
4 The record reflects that the value of Ashley's BancorpSouth retirement account was
submitted in her Rule 8.05 financial statement. See UCCR 8.05.
5
Although Ashley admitted that the BancorpSouth retirement account was accrued during the
marriage, the chancellor made the following determination regarding the account:
The Court values the 2000 Ford F250 at $500.00 and the 2015 Dodge Ram at
$6,102.00; and $0.00 value for [Ashley's] BancorpSouth Bank retirement
account. Each party has requested their respective vehicle. [Ashley] has
requested thatshe retain her BancorpSouth retirement account. [Thomas]made
no specific claim to this account.
¶14. On appeal, Ashley fails to address this issue and does not rebut Thomas' contention
that the chancellor failed to properly value or account for Ashley's retirement account in the
equitable-distribution analysis. As a result of the chancellor's findings, we reverse and
remand for the chancellor to revise the distribution of Ashley's retirement account in the
division of marital assets.
II. Child Custody
¶15. "[T]he polestar consideration in child custody cases is the best interest and welfare
of the child.†Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). To meet these goals,
courts evaluate the following factors introduced in Albright:
1. The age, sex, and health of the child;
2. The continuity of care prior to the separation;
3. The parenting skills of each parent;
4. The willingness and capacity to prove primary child care;
5. The employment of the parents and the responsibilities of that employment;
6. The physical and mental health and age of the parents;
7. The emotional ties of the parent and the child;
6
8. The moral fitness of each parent;
9. The home, school, and community record of the child;
10. The preference of the child;
11. The stability of the home environment; and
12. The other factors relevant to the parent-child relationship.
Id.
¶16. "The Albright factors are intended to ensure that the chancellor follows a process that
considers all facts relevant to the child's best interest.†Baumann v. Baumann, 304 So. 3d
175, 179 (¶13) (Miss. Ct. App. 2020) (citing Vassar v. Vassar, 228 So. 3d 367, 375 (¶27)
(Miss. Ct. App. 2017)). However, "an Albright analysis is not a mathematical formula.â€
Bingham v. Johnson, 322 So. 3d 948, 952 (¶19) (Miss. Ct. App. 2021) (citing Lee v Lee, 798
So. 2d 1284, 1288 (¶15) (Miss. 2001)). While all the Albright factors are essential, "the
chancellor has the ultimate discretion to weigh the evidence the way she sees fit.†Id. (citing
Johnson v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003)). "We give deference to the
weight that the chancellor assigns to each Albright factor.†Baumann, 304 So. 3d at 179 (¶14)
(citing Smith v. Smith, 206 So. 3d 502, 513 (¶24) (Miss. 2016)). "This Court cannot re-weigh
the evidence and must defer to the chancellor's findings of facts, including her decision
regarding the evidence's weight and credibility.†Id. (citing Hall v. Hall, 134 So. 3d 822, 828
(¶21) (Miss. Ct. App. 2014)). We may not substitute our judgment for the chancellor's.
Brewer v. Brewer, 919 So. 2d 135, 141 (¶23) (Miss. Ct. App. 2005). Rather, we must decide
if substantial evidence supports the ruling. Id.
7
¶17. Thomas claims the chancellor erred in her analysis of several Albright factors. In
particular, he maintains the chancellor improperly found that the following factors were
neutral: (1) the age, sex, and health of the children, (2) the parties' physical and mental health
and age, (3) the parents' moral fitness, and (4) the home, school, and community record of
the children. Thomas also contends (5) the chancellor erred when she found that the
emotional-ties factor favored Ashley.
1. Age, Sex, and Health of the Children
¶18. Thomas asserts that the chancery court erred by not finding that this factor favored
him because the children were male and above the age of tender years. "[A] chancellor may
find that [the child's sex] does or does not weigh in favor of the parent of the same sex as the
children, depending on the specific facts of the case.†Barbaro v. Smith, 282 So. 3d 578, 597
(¶85) (Miss. Ct. App. 2019) (citing Jackson v. Jackson, 82 So. 3d 644, 646 (¶8) (Miss. Ct.
App. 2011)). Therefore, "a chancellor may determine that the sex of a male child weighs in
favor of granting custody to the father.†Id.; see, e.g., Klink v. Brewster, 986 So. 2d 1060,
1063-64 (¶13) (Miss. Ct. App. 2008). "What weight to assign to this fact in the Albright
analysis is entrusted to the chancellor's sound discretion . . . . This is a finding of fact that
cannot be disturbed on appeal absent a clear showing of an abuse of discretion . . . .†Id.
¶19. In analyzing the children's age, sex, and health, the chancellor recognized that the
minor children were male and in relatively good health. In finding this factor neutral, the
chancellor explained that since the boys were ages eight and ten, they were "long†past the
age that required any special type of care due to a tender age. We cannot say that the
8
chancellor abused her discretion and find no manifest error in the chancellor's conclusion
that this factor was neutral.
2. Physical and Mental Health of the Parties
¶20. Thomas asserts that the chancellor erred by concluding that this factor was neutral in
light of Ashley's history of panic attacks. Here, the issue is whether a parent's panic attacks
should count against that parent in a custody proceeding when there is no evidence that the
attacks impair the parent's ability to care for the child.
¶21. In analyzing this factor, the chancellor took into account that Ashley has suffered "one
or more panic attacks in her lifetime.†However, with this fact in mind, the chancellor also
found, and the record reflects, that the panic attacks did not alter Ashley's ability to care for
her children. The chancellor is "vested with the responsibility to hear the evidence, assess the
credibility of witnesses, and determine ultimately what weight and worth to afford any
particular aspect of proof.†Hackler v. Hackler, 296 So. 3d 773, 778 (¶35) (Miss. Ct. App.
2020) (quoting Garner v. Garner, 283 So. 3d 120, 140 (¶84) (Miss. 2019)). The chancellor's
findings are supported by substantial evidence, and we find no error or abuse of discretion
in the chancellor's finding that this factor was neutral.
3. Moral Fitness of Each Parent
¶22. Thomas claims the chancellor erred by finding the moral-fitness factor neutral.
Specifically, Thomas claims that if the chancellor had appropriately considered Ashley's
admitted pre-separation adultery, this factor would have favored him.
¶23. Our supreme court has held that "marital fault should not be used as a sanction in
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custody awards.†Albright, 437 So. 2d at 1005. "Adultery of a parent may be an
unwholesome influence and an impairment to the child's best interest, but on the other hand,
may have no effect. The trial court should consider this factor along with all others when
making original custody determinations.†Kimbrough v. Kimbrough, 76 So. 3d 715, 725
(¶55) (Miss. Ct. App. 2011) (quoting Carr v. Carr, 480 So. 2d 1120, 1123 (Miss. 1985)).
¶24. The chancellor was not presented with any evidence that Ashley's pre-separation
adultery impaired the children's best interest. Even though the chancellor did not mention
Ashley's pre-separation adultery under her findings for the moral-fitness factor, we cannot
say the chancellor erred in finding this factor neutral. The chancellor noted that Thomas had
another child during the marriage with his current girlfriend, and the chancellor found that
both parties had "moved on with their lives and have pursued new romantic interests.†We,
therefore, find no error with respect to the chancellor's findings on this factor.
4. Home, School, and Community Records of the Children
¶25. Thomas also challenges the chancellor's finding that the children's home, school, and
community records were a neutral factor. Thomas claims that the chancellor disregarded the
children's connection to Clay County and the tenuous connection with Ashley's county of
residence, Monroe County.
¶26. To the contrary, the chancellor did not disregard these connections. While Thomas
remains in Clay County and Ashley resides in Monroe County, there was ample testimony
that both parents were involved in the children's school and extracurricular activities, the
children had good grades, and both parents had extended family and support systems nearby.
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The chancellor also heard testimony that even after Ashley moved to Monroe County, she
continues to spend most of her time in ClayCounty, and her living in Monroe did not prevent
the children from visiting their friends or family who reside in Clay County. Furthermore,
in analyzing this factor, the chancellor noted that both parents had households that appeared
to be "quite crowded†but did not find that it had any adverse effect on the children. Based
on a review of the record, we cannot say the chancellor abused her discretion or manifestly
erred in finding that the children's home, school, and community records were a neutral
factor. Since substantial evidence supports the chancellor's determination as to this factor,
we find no error.
5. Emotional Ties
¶27. Thomas claims the chancellor erred by finding the emotional-ties factor favored
Ashley. Specifically, Thomas claims that no evidence existed to support the chancellor's
determination. However, the chancellor noted that both Ashley's and her witnesses'
testimonyestablished she had strong emotional ties to the children. The chancellor found that
Thomas' testimony centered more around the parties' eldest child, B.W. The chancellor
expressed her concern that the couple's youngest child, C.W., "may have to fight for the
attention of his father and his family due to the arrival of his younger sibling and the
favoritism that [Thomas] shows towards [B.W.]†After considering the testimony and
evidence presented, the chancellor found this factor favored Ashley. The record contains
substantial evidence to support the chancellor's findings. Therefore, we find no error.
¶28. Upon review, we cannot say that the chancellor was manifestly wrong, was clearly
11
erroneous, or applied an incorrect legal standing in her Albright analysis. Because substantial
evidence supported the chancellor's findings, we affirm the chancellor's grant of sole
physical custody of the parties' children to Ashley and joint legal custody to both parents.
III. Child Support
¶29. For his final assignment of error, Thomas claims that the chancellor abused her
discretion by refusing to deviate from the statutory child-support guidelines. Specifically,
Thomas claims that since he would have custody of the children forty percent of the time, the
chancellor should have deviated from the statutory support guidelines.
¶30. "A chancery court has discretion in determining an award of child support.†Gunter
v. Gunter, 281 So. 3d 283, 285 (¶8) (Miss. Ct. App. 2019) (citing Harden v. Scarborough,
240 So. 3d 1246, 1255 (¶26) (Miss. Ct. App. 2018)). This Court "will not find an abuse of
discretion when the required support [is] equal to the amount that is presumptively correct
under the child-support guidelines.†Id. (quoting Mosher v. Mosher, 192 So. 3d 1118, 1126
(¶38) (Miss. Ct. App. 2016)). However, the guidelines are merely guidelines, and they "do
not control per se the amount of an award of child support.†Id. at 286 (¶10). Since the
chancery court "has special knowledge of the actual circumstances,†McEachern v.
McEachern, 605 So. 2d 809, 814 (Miss. 1992), a departure is permissible when the chancery
court makes "a written finding on the record that the application of the guidelines would be
unjust or inappropriate . . . .†Id. (citing Dunn v. Dunn, 695 So. 2d 1152, 1155 (Miss. 1997)).
¶31. Here, the chancellor ordered Thomas to pay twenty percent of his adjusted gross
income as reflected by his Rule 8.05 financial statement and in accordance with the statutory
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guidelines. See Miss. Code Ann. § 43-19-101(1) (Rev. 2021) (establishing a rebuttable
presumption that twenty percent of the payor's adjusted gross income should be awarded for
the support of two children). We find that the chancellor did not abuse her discretion by
setting child support based on the statutory guidelines.
Outcome:
We reverse the judgment in part and remand this case for further proceedings
consistent with this opinion. On remand, the chancellor must reconsider the equitable
division of Ashley’s retirement account under Ferguson. Finding no error in the chancellor’s child support order or in the award of child custody, we affirm the judgment in part
consistent with this opinion. On remand, the chancellor must reconsider the equitable
division of Ashley’s retirement account under Ferguson. Finding no error in the chancellor’s child support order or in the award of child custody, we affirm the judgment in part
Plaintiff's Experts:
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Comments:
About This Case
What was the outcome of Thomas C. Wooten v. Ashley L. Simmons Wooten?
The outcome was: We reverse the judgment in part and remand this case for further proceedings consistent with this opinion. On remand, the chancellor must reconsider the equitable division of Ashley’s retirement account under Ferguson. Finding no error in the chancellor’s child support order or in the award of child custody, we affirm the judgment in part
Which court heard Thomas C. Wooten v. Ashley L. Simmons Wooten?
This case was heard in <center><h4><b> N THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI </b> <br><br> <font color="green"><i>On appeal from The CLAY COUNTY CHANCERY COURT </i></font></center></h4>, MS. The presiding judge was Jim M. Greenlee.
Who were the attorneys in Thomas C. Wooten v. Ashley L. Simmons Wooten?
Plaintiff's attorney: Jackson, MS - Best Divorce Lawyer Directory Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World. Re: MoreLaw National Jury Verdict and Settlement Counselor: MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public. MoreLaw will publish litigation reports submitted by you free of charge Info@MoreLaw.com - 855-853-4800. Defendant's attorney: AMANDA SUSAN BEARD.
When was Thomas C. Wooten v. Ashley L. Simmons Wooten decided?
This case was decided on February 6, 2022.