53 So. 3d 865
Miss. Ct. App.2011Background
- Wilson filed for divorce on Sept. 18, 2007; grounds included habitual cruel treatment, uncondoned adultery, or irreconcilable differences.
- Divorce was granted on Aug. 14, 2009 on irreconcilable differences; they have one son born Feb. 10, 2003.
- Chancellor decided custody using Albright factors, granting full custody to Wilson with Tara having visitation.
- Parts of the divorce judgment incorporated a property-settlement agreement, awarding Wilson sole ownership of the Durango Drive home and removing Tara’s equity interests, and ordering Tara to return property and Wilson to pay the GAL fees.
- Post-judgment, Tara challenged custody, child support, and the GAL-fee allocation; visitation was suspended pending counseling; Tara did not challenge the overall divorce but appealed specific provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Custody award based on Albright factors correct? | Tara argues Albright factors were not properly applied; request to reverse custody. | Wilson contends proper consideration of Albright factors; best interest supported. | No reversible error; substantial evidence supports Wilson custody. |
| Enforceability of the property-settlement agreement for property division. | Tara contends duress and lack of court approval to deem the agreement adequate and sufficient. | Wilson asserts a binding contract as to property division; agreement valid even if not fully approved as to all terms. | Enforceable as to property division; no duress shown; agreement incorporated to the extent of property division. |
| Admission of property-settlement agreement under Rule 408. | Tara argues the agreement constitutes a settlement offer and is inadmissible under Rule 408. | Agreement is a binding contract about property division, not a settlement offer; Rule 408 inapplicable. | Rule 408 inapplicable; exhibit properly admitted as contract material to property division. |
Key Cases Cited
- Albright v. Albright, 437 So.2d 1003 (Miss. 1983) (establishes Albright factors for custody determinations)
- Smith v. Smith, 614 So.2d 394 (Miss. 1993) (review of Albright factors if properly applied; cannot find manifest error)
- Stone v. Stone, 385 So.2d 610 (Miss. 1980) (property-division provisions contractual and not modifiable; supports separation of property terms from custody)