CHILD CUSTODY AND ADULTERY

In all child custody cases, judges are tasked with figuring out what custody arrangement is in the best interests of the child. In making this determination, Mississippi judges are required to look at 11 factors (known as the Albright factors). When considering evidence of sexual misconduct and adultery, the Mississippi Supreme Court (in the case of Borden vs. Borden) has reaffirmed that “[d]eterminations of child custody, however, are not an opportunity to punish a parent for misconduct.” In this case the Mississippi Supreme Court found, among other things, that the judge gave undue weight to the evidence of sexual misconduct by the mother when it awarded custody to the husband. Specifically, the trial judge found that evidence that the mother sent sexual communications, went out of town and partied with men, and met a man at a hotel could not be used to support the conclusion that the moral fitness, parenting skills and stable home environment favored the husband. In reversing the judge’s decision to award the father custody, the Mississippi Supreme Court reiterated that while evidence of adultery by one parent does weigh on that parent’s moral fitness, the same evidence could not be used as a basis for findings on other Albright factors. This decision serves as a reminder in custody disputes to present specific evidence on each of the Albright factors as opposed to simply relying on marital...

PERIODIC ALIMONY — SELF HELP NOT ALLOWED

A recent decision handed down by the Mississippi Supreme Court is a clear warning for any ex-spouse unilaterally deciding to reduce his court ordered periodic alimony payments due to financial hardship. The facts of the case are fairly straightforward. Leslie and Katarina Shumake divorced in February 2009. In the Divorce Judgment, the Chancellor ordered Leslie to pay $5,750 in periodic alimony. However, Leslie only paid $650.00 a week and at some point filed for Chapter 13 bankruptcy.  Katarina was apparently not in agreement with this unilateral reduction and asked the Chancellor to hold Leslie in contempt. In response, Leslie claimed that he was unable to pay the full $5,750.00 a month and belatedly asked for a modification. After several hearings, the Chancellor declined to hold Leslie in contempt but concluded that Leslie owed Katarina $58,550 plus interest. On appeal the Mississippi Supreme Court stated that “[p]eriodic alimony is subject to modification; a party, however, may not modify on his own.” The Court went on to explain that periodic alimony vests on the date each payment becomes due.  Therefore, a court cannot give any relief from civil liability for any payments that have already accrued. As for the bankruptcy filing, the Mississippi Supreme Court stated that it was “without legal effect.”  So if you are under an order to pay periodic alimony, it is critical that you seek a modification order as soon as you realize that there is a problem making the required payments. To read the full opinion click here Leslie B. Shumake, Jr. v. Katarina Sitton...