Sharon Lynne Armstrong Morris v. Joey Franklin Morris ( 1999 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 1999-CA-01767-SCT
SHARON LYNNE ARMSTRONG MORRIS
v.
JOEY FRANKLIN MORRIS
DATE OF JUDGMENT: 09/22/1999
TRIAL JUDGE: HON. PERCY L. LYNCHARD, JR.
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: JOHN V. HUNTER, IV
ATTORNEYS FOR APPELLEE: DEBRA D. P. BRANAN
KELLY HAGAN SMITH
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 04/12/2001
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 5/3/2001
BEFORE PITTMAN, C.J., SMITH AND EASLEY, JJ.
SMITH, JUSTICE, FOR THE COURT:
¶1. This case comes before this Court on appeal by Sharon Lynne Armstrong-Morris ("Sharon"), defendant
in the court below. This matter encompassed a complaint for divorce on the grounds of adultery, habitual
cruel and inhuman treatment, and in the alternative, irreconcilable differences. The plaintiff, Joey Franklin
Morris ("Joey"), also requested relief for related matters, including, without limitation, custody of three
minor children. Sharon appeals the granting of and grounds for divorce, as well as the analysis of the
Albright factors against her in the trial court below. Finding that there is no evidence that the chancellor's
findings are clearly erroneous or that an erroneous legal standard was applied, we affirm the judgment of the
chancery court.
PROCEDURAL HISTORY
¶2. On January 18, 1999, Joey, filed a complaint for divorce from Sharon in the Chancery Court of
DeSoto County, Mississippi. On February 1, 1999, the parties entered into a consent order as to
temporary matters. On February 17, 1999, Sharon, by and through her counsel, M. Darin Vance, filed her
answer to complaint for divorce and counter-complaint for divorce. On February 17, 1999, M. Darin
Vance filed his motion to allow attorney to withdraw, and the court below granted that motion on February
22, 1999. John V. Hunter IV entered his appearance as Sharon's counsel on April 5, 1999.
¶3. This case was tried before Honorable Percy Lee Lynchard, Jr. on June 9, 1999. The court issued its
opinion on September 13, 1999, and on September 22, 1999, entered a decree of divorce in favor of Joey
and against Sharon on the ground of cruel and inhuman treatment. Joey received sole legal and physical
custody of the minor children, subject to visitation rights of Sharon in accordance with specific visitation
schedule, said visitation to be supervised by the father (Joey) or an agreed third party.
¶4. On October 1, 1999, Sharon timely filed a motion for new trial. This motion asserted, inter alia, that the
chancery court erred in excluding from its consideration the deposition testimony of Edwina Hackett,
Sharon's therapist from 1996 until the present. The court denied the motion on October 11, 1999. On
October 21, 1999, Sharon filed a timely notice of appeal from the trial court's (1) evidentiary rulings at trial
to Sharon's substantial prejudice; (2) findings of fact; (3) conclusions of law; (4) final decree, including, but
not limited to, the restrictions placed upon Sharon's visitation with her minor children; (5) award of
attorney's fees to plaintiff; and (6) denial of her motion for a new trial.
FACTS
¶5. Joey and Sharon married on August 8, 1981, in Memphis, Shelby County, Tennessee. They lived
together as husband and wife until or about December 31, 1998, at which time they separated in
Southaven, DeSoto County, Mississippi. The parties had three children together, namely Mallory Simone
Morris, a female child born November 5, 1988; Amanda Marie Morris, a female child born March 2,
1990, and Andrew Stephen Morris, a male child born September 29, 1992.
¶6. Sharon was the primary caregiver for Mallory, Amanda, and Andrew throughout her marriage to Joey.
Sharon adjusted her schedule at work so that she could take the children and pick them up at school.
Sharon also took the children to activities outside of school, including tap and ballet classes, gymnastics,
Girl Scouts, and baseball. During their marriage, Sharon and Joey both were equally active in taking the
children to church and Sunday school.
¶7. In her testimony, Sharon revealed that she is a 36-year-old registered surgical nurse with a salary of
approximately $24 per hour working 30 hours a week. Joey is employed with Quebecor, Inc., making
$15.67 per hour. He was forced to seek bankruptcy protection approximately two years ago because of
debts largely incurred as a result of medical expenses for his wife.
¶8. Each party claims acts of violence by the other during the marriage. Sharon alleges that Joey physically
abused her on several occasions. In the summer of 1986, Joey shoved Sharon into the bathtub. Joey admits
he did shove her that night. He was angry because she came home with hickeys on her neck, and she had
an affair that night with a man she met at a bar. There is some dispute as to whether Sharon actually did
have sexual relations with a man from a bar. In her journal she describes in detail the events of that night,
even admitting that she had sex with a stranger. Later in her testimony, however, she retracted that
admission insofar as the sex was concerned. Sharon claims that on another occasion, Joey choked Sharon,
leaving fingerprints on her neck. However, Sharon admitted hitting Joey with a phone during that incident.
Joey testified that he did not remember grabbing or choking her at all, but that they did push each other.
Sharon further admitted at testimony that she hit Joey with an iron on another occasion. Also, evidence
indicates that Sharon told her doctor that she had homicidal thoughts of killing her husband.
¶9. Sharon further contends that throughout their marriage, Joey mentally abused her. When Sharon and
Joey had problems conceiving, Joey repeatedly threatened to divorce Sharon and marry a real woman who
could have his children. Sharon, however, also insulted Joey. When they discovered that Joey's low sperm
count was the reason that she and Joey had not been able to conceive, Sharon told Joey that she would
divorce him and marry a real man.
¶10. Sharon also claims that Joey forced her to have sex against her will throughout the marriage. In her
testimony, she stated that Joey initiated sexual intercourse or other sexual relations with Sharon while she
was asleep. Sharon stated in her testimony that she was forced to hide while changing her clothes in order
to prevent Joey from touching her or initiating unwanted sexual contact with her. Joey, however, contends
that every time he had sex with Sharon, it was consensual.
¶11. During Sharon's pregnancy with Amanda, Sharon's physician cautioned the couple that Joey was not
to engage in unprotected sex because of the danger that such unprotected sex could cause Sharon to
experience premature labor. Despite such warning, Sharon alleges that Joey forced or coerced her to
engage in unprotected sex approximately once a week during her pregnancy with Amanda which caused
Sharon to experience premature labor on thirteen or fourteen different occasions. On several occasions,
Sharon was admitted to the hospital and was given the drug Terbutaline to stop her premature labor. In his
testimony, Joey denied forcing Sharon to have unprotected sex during her pregnancy. Although there is no
record of the thirteen or fourteen occasions of premature labor, Sharon's attorney proffered a nursing
record from one time that Sharon went into premature labor.
¶12. It seems clear that Sharon experienced difficulties with sexual relations with her husband throughout the
marriage. As a result of what Sharon indicates was Joey's ongoing insistence on sex on demand, Sharon
testified that "[i]t ended up getting to the point where I didn't want him [Joey] to touch me, to look at me."
On several occasions during one of her pregnancies, Sharon even told her husband that sex with him is like
what it must be like to be raped.
¶13. Throughout her life, Sharon has experienced numerous mental and emotional problems. During the
marriage, she experienced periods of confusion, panic attacks, blackouts, and depression. Sharon has
attempted suicide on at least two occasions. On one occasion, she stole from the hospital where she
worked the prescription medication to stop her heartbeat. Sharon readily admitted during her questioning
that she even had a "suicide kit" which she kept at home. Further, she has engaged in self-mutilation,
resulting in severe scarring of her limbs. She testified that on two separate occasions she awoke with "will to
die" and "no way out" carved on her legs, with no memory of having performed this act. These self-
mutilation acts occurred in the family home when the children were present. In an effort to prevent these
actions, Joey would search the house for hidden blades, as well as remove the locks from inside the doors.
Additionally, Sharon's living will stated the following telling words:
My body is to be cremated and under no circumstances will there be a grave site to mourn. Celebrate
my life, my freedom, my happiness. Never mourn my death. It is something I've waited for all my life.
In addition to having suicidal thoughts, Sharon has further revealed thoughts of killing Joey and her mother.
¶14. Sharon has been hospitalized for psychological problems several times. At the time of trial, she had
been prescribed and was taking three medications for depression and anxiety. Further, she has experienced
hallucinations and extreme paranoia. Joey testified that on several occasions when they would be in bed
together, Sharon would be talking to her grandfather or claim her grandfather was at the end of the bed
talking to her. According to Joey, another time when the children were present, Sharon claimed they had
been followed. When Joey got out of the van to investigate, no one was in the parking lot, but Sharon
continued to scream for the person to get away from her. Also, Sharon revealed urges to throw Andrew,
her son, over the balcony. Sharon further had problems with blackouts where she did not know how to get
home and would not recognize her husband and children. At the time of trial, Sharon continued to be under
psychological care.
¶15. The record indicates that such problems with the sexual relationship of marriage, as well as her mental
problems, likely stem from Sharon's sexual abuse by her grandfather from the ages of 8 to 12. As far
fetched as it might seem, Sharon also admits a history of satanic cult involvement. Her involvement in the
cult, according to her, was at the insistence of her grandfather. This involvement included group sex, animal
sacrifices, cannibalism, and perhaps causing the death of at least one individual. Sharon was also raped
once in her adult life by a former patient. In her deposition, Sharon's therapist, Edwina Hackett, stated that
in her professional opinion, women who have been the victim of rape or sexual abuse "frequently do not
enjoy sex with men." Shortly after Sharon and Joey were married, Sharon told Joey that she believed that
she should be with a woman instead of a man.
¶16. During the course of the marriage, Sharon became involved in an extra-marital relationship with Ms.
Brandy Schroyer. The relationship became sexual in nature in or before December of 1998. This
relationship resulted in Sharon proclaiming her love for Brandy to Joey. Sharon openly engaged in this
extra-marital relationship which resulted in upsetting the minor children and her husband. The court below
found this relationship caused the final separation of the parties. The parties separated on or about
December 31, 1998. At the time of trial, Sharon lived with Brandy and her two sons. Sharon has expressed
that she intends to remain in this relationship indefinitely. At the onset of trial, Sharon's lover was also
married.
¶17. Aggrieved, the Sharon appeals to this Court and assigns the following issues as error:
I. WHETHER THE CHANCELLOR ERRED BY AWARDING A DIVORCE TO JOEY
FROM SHARON ON THE GROUND OF HABITUAL CRUEL AND INHUMAN
TREATMENT?
II. WHETHER THE CHANCELLOR ERRED IN EXCLUDING THE DEPOSITION
TESTIMONY OF EDWINA HACKETT, SHARON'S THERAPIST?
III. WHETHER THE CHANCELLOR ERRED IN HIS ANALYSIS OF THE ALBRIGHT
FACTORS?
STANDARD OF REVIEW
¶18. This Court has repeatedly stated that it will examine the record and accept the evidence reasonably
tending to support the findings made below, along with all reasonable inferences which may be drawn
therefrom and which favor the lower court's finding of fact. In re Estate of Taylor v. Thompson, 609
So. 2d 390, 392 (Miss. 1992); Williams v. Evans, 547 So. 2d 54, 58 (Miss. 1989); Clark v. Myrick,
523 So. 2d 79, 81 (Miss. 1988). The chancery court sitting as the trier of fact has the primary authority and
responsibility to assess the credibility of witnesses. Bryan v. Holzer, 589 So. 2d 684, 659 (Miss. 1991).
Moreover, where we find substantial evidence in the record supporting the findings of fact, we will seldom
reverse, whether those findings be of ultimate fact or evidentiary fact. Mullins v. Ratcliff, 515 So. 2d
1183, 1189 (Miss. 1987). Put another way, unless the chancellor's determination of fact in a divorce case is
manifestly wrong, this Court will uphold the chancellor's decision. See Dillon v. Dillon, 498 So. 2d 328,
329 (Miss. 1986).
¶19. As this Court has stated, these standards are general and elusive of precise meaning and application,
and this Court has struggled to articulate precisely what is meant. See Thompson, 609 So. 2d at 392. The
Court has held that the findings of a chancellor are upheld unless those findings are clearly erroneous or an
erroneous legal standard was applied. Hill v. Southeastern Floor Covering Co., 596 So. 2d 874, 877
(Miss. 1992). Furthermore, this Court has held that a finding of fact is "clearly erroneous" when "although
there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm
conviction that a mistake has been made." Thompson, 609 So. 2d at 392 (quoting UHS-Qualicare v.
Gulf Coast Community Hosp., Inc., 525 So. 2d 746, 754 (Miss. 1987)).
ANALYSIS
I.
¶20. Joey filed for divorce on the grounds of adultery, habitual cruel and inhuman treatment, and, in the
alternative, irreconcilable differences pursuant to Miss Code Ann § § 93-5-1 & -2 (1994). As support for
these grounds, Joey alleged the actions of (1) Sharon's self-mutilation and suicide attempts, (2) making him
fearful of hurting his children, (3) her relationship with Brandy Schroyer, and (4) statements that she did not
love him. Sharon counterclaimed on the grounds of habitual cruel and inhuman treatment and in the
alternative, irreconcilable differences. After a trial on the merits of the case, the chancery court granted the
divorce to Joey on the ground of habitual cruel and inhuman treatment based on the continuous open
relationship between Sharon and Brandy.
¶21. This Court has held the following:
The ground for habitual cruel and inhuman treatment may be established by a preponderance of the
evidence, rather than clear and convincing evidence, and the charge "means something more than
unkindness or rudeness or mere incompatibility or want of affection." Smith v. Smith, 614 So. 2d
394, 396 (Miss. 1993)(quoting Wires v. Wires, 297 So. 2d 900, 902 (Miss. 1974)).
Daigle v. Daigle, 626 So. 2d 140, 144 (Miss. 1993). This Court has held that it no longer requires that a
specific act must be the proximate cause of a separation before a divorce may be granted on grounds of
habitual cruel and inhuman treatment. Robison v. Robison, 722 So. 2d 601, 603 (Miss. 1998) (citing Bias
v. Bias, 493 So. 2d 342, 345 (Miss. 1986)); Richard v. Richard, 711 So. 2d 884, 890 (Miss. 1998).
Instead, the conduct both before and after the separation may be considered in determining whether
sufficient evidence was presented to support the chancellor's award of divorce upon grounds of habitual
cruel and inhuman treatment. Robison, 722 So. 2d at 603; Richard, 711 So. 2d at 890.
¶22. We have further held:
Evidence sufficient to establish habitual, cruel and inhuman treatment should prove conduct that: either
endanger[s] life, limb, or health, or create[s] a reasonable apprehension of such danger,
rendering the relationship unsafe for the party seeking relief or, in the alternative, be so
unnatural and infamous as to make the marriage revolting to the offending[ed] spouse and
render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis
for its continuance.
Rawson v. Buta, 609 So. 2d 426, 431 (Miss. 1992) (citations omitted) (emphasis added). Our cases
require more than mere unkindness, rudeness, or incompatibility to support the granting of a divorce on the
ground of cruel and inhuman treatment. Brooks v. Brooks, 652 So. 2d 1113, 1124 (Miss. 1995). Personal
violence is not required to constitute cruel and inhuman treatment. See Pierce v. Pierce, 38 So. 46 (Miss.
1905). This Court has further held that the impact on the plaintiff caused by the other spouse is crucial; thus,
we employ a subjective standard. See Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992).
¶23. Sharon relies on Bowen v. Bowen, 688 So. 2d 1374 (Miss. 1997), for her contention that the
chancellor should not have awarded the divorce to Joey based on the ground of habitual cruel and inhuman
treatment simply because she was engaged in a homosexual relationship with another woman. In Bowen,
both parties filed for divorce on the ground of habitual cruel and inhuman treatment. Id. at 1376. The
chancellor denied a divorce to either party, and the wife appealed. Id. In Bowen, rumors and speculation
were rampant in the parties' community that Mrs. Bowen was a lesbian, that she was engaged in a
homosexual affair with another woman, and that Mrs. Bowen never denied being a lesbian and refused to
break off her relationship with the woman in order to prevent her family from being embarrassed by the
rumors. Id. at 1376-77. In Bowen, this Court held that the evidence did not establish habitual cruel and
inhuman treatment. Id. at 1380.
¶24. As Joey accurately points out, although Bowen is a case that concerns a divorce and allegations
similar to the ones in this case that the wife was engaged in a homosexual affair, it is easily distinguishable
from the case sub judice. Unlike in the case at bar, the Court in Bowen was not called upon to determine
whether such evidence as self-mutilation, recurring attempts at suicide, blackouts, hallucinations, and
engaging in a lesbian affair constituted cruel and inhuman treatment. Indeed, the Bowen Court affirmed the
chancellor's finding that the problems with the Bowens was mere incompatibility. Id. at 1380. The case at
bar contains findings that indicate much more than mere incompatibility. Therefore, Bowen can easily be
distinguished from the case presently before the Court.
¶25. Joey relies on Robison v. Robison, 722 So. 2d 601 (Miss. 1998), for support that an extra-marital
relationship could be used to support a charge of habitual cruel and inhuman treatment. In Robison, this
Court addressed the issue of whether sufficient evidence was produced to support the granting of divorce
on habitual cruel and inhuman treatment to the wife when the evidence indicated that the husband engaged
in sexual relations with women at work, moved in with his girlfriend, and neglected his family. Id. at 603.
¶26. The facts in Robison are applicable to the case at bar. As in the case before the Court at present, the
chancellor in Robison declined to decide the case on grounds of adultery, and instead, used the extra-
marital relationship to support the habitual cruel and inhuman treatment charge. Id. at 602. In both Robison
and in the present case, the parties were involved in open relationships with at least one third party. Id. at
602. Both cases further incorporate other evidence, in addition to extra-marital affairs, to support the
charge of habitual cruel and inhuman treatment. The husband in Robison neglected his family to the point
that they could not afford groceries, and the wife's co-workers had to hold a food drive for her. Id. at 603.
As a result of her husband's neglect, criticism, and affairs, the wife in Robison was treated for depression
and anxiety. Id. The Court found that the husband's neglect, combined with his verbal and emotional abuse
toward his wife which resulted in her needing treatment for depression, was sufficient to support a finding of
habitual cruel and inhuman treatment. Id. Similarly, in the case at bar, Joey testified that his wife's behavior
and actions have caused him to seek counseling. Additionally, as a result of having to pay his wife's bills for
her stays at various hospital for her psychological problems, Joey was forced to file bankruptcy.
Additionally, Joey has had problems collecting child support from Sharon.
¶27. The only case where this Court has specifically held that a homosexual affair, by itself, constituted
habitual cruel and inhuman treatment was in the 1905 case of Crutcher v. Crutcher, 86 Miss, 231, 38 So.
337 (1905). In that case, the Court held that the crime of pederasty (improper intimacy with male sex) is
cruel and inhuman treatment within the meaning of the divorce statutes. Specifically, the Court applied the
following reasoning, "[u]nnatural practices of the kind charged here are an infamous indignity to the wife,
and which would make the marriage relation so revolting to her that it would become impossible for her to
discharge the duties of wife, and would defeat the whole purpose of the relation." Id. at 337.
¶28. This Court affirms the chancellor's granting the divorce on the ground of habitual cruel and inhuman
treatment. However, such a ground for divorce should be granted due to the combination of factors that (1)
endanger life, limb, or health of Joey and render the relationship unsafe both for himself and for his children,
and (2) conduct that is unnatural and infamous as to make the marriage revolting. As the facts so indicate,
Sharon has a history of violence and homicidal thought towards her husband, as well as numerous mental
and emotional problems. As this Court has stated, impact of the conduct on the plaintiff is crucial. Fairies,
607 So. 2d 1209. Following Robison, it seems clear that a combination of continuing course of conduct and
actions exhibited by Sharon have contributed to making Joey's life, and that of his children, in danger, as
well as making the marriage a sham and the marital relation revolting.
¶29. The record indicates several incidents of violence by Sharon throughout the marriage. She admitted
hitting Joey with a phone. Also, further testimony by Sharon revealed that she hit Joey with an iron on
another occasion. Other evidence in the record indicates that Sharon had homicidal thoughts of killing her
husband and mother.
¶30. Although the tendency towards physical acts of violence by Sharon is certainly disturbing, it is the
repeated evidence in this case that this woman is severely and emotionally disturbed that renders this an
excellent case on the facts in which to grant a divorce on the ground of habitual cruel and inhuman
treatment. Joey withstood years of trauma in his marriage as he tried to help his wife cope with her various
mental problems and limit the effect of such mental disturbance on his children. Sharon attempted suicide on
at least two occasions, and on one occasion she stole medication from the hospital in order to stop her
heartbeat. Disturbing both to this Court and to Joey was the fact that Sharon is a self-mutilator, and
performs such acts in the family home when her children and husband are present. Sharon has been
hospitalized as a result of her psychological problems on multiple occasions. As a result of her chronic
medical needs and the large costs involved, Joey was forced to file bankruptcy. Moreover, in addition to
her depression, Sharon was also prone to blackouts, paranoia, and hallucinations, even to the extent that
she had urges to throw her son over the balcony and would not recognize her children and husband.
¶31. It is particularly telling that when asked to tell the trial court why Sharon should be guilty of cruel and
inhuman treatment, Joey responded with the following:
Cutting herself quite often, wanting to kill herself, having an affair with Brandy Schroyer, telling me
about it, saying, you know, she saw nothing wrong with it, cutting herself with my children present in
the house, making myself fearful that she'd hurt my kids, too, in the process.
In sum, the combination of acts of violence, mental problems, and the extra-marital affair with Brandy leads
this Court to affirm the chancellor's grant of a divorce to Joey from Sharon on the ground of habitual cruel
and inhuman treatment.
¶32. As a result of the above discussion, Sharon's argument that she is entitled to divorce on the ground of
habitual cruel and inhuman treatment due to (1) forced sex during pregnancy and sex on demand; (2) other
physical abuse; (3) mental abuse, can be summarily dismissed. From the overwhelming evidence in the
record, it is clear that Sharon Morris is a disturbed woman. It is equally clear that much of her emotional
problems stem from the fact that she was sexually abused as a child by her grandfather, allegedly forced to
participate in group sex during Satanic cult rituals, and raped as an adult. Clearly, this is a woman who
views the sexual relations between a husband and wife as a constant reminder of past trauma.
¶33. In the record, it is simply Sharon's word that Joey forced her to have sex against Joey's denial that
they never had sexual relations against her will. It is for the chancellor, not this Court, to assess such facts.
While Joey did admit to having unprotected sex on at least two occasions during pregnancy, there was no
evidence that the unprotected sex actually caused her to go into labor just because they occurred in close
proximity. In fact, Sharon produced no medical records supporting such sex as the cause of the labor.
Although there is evidence that Joey did push Sharon on one or two occasions, there is also evidence that
Sharon exhibited violent tendencies towards Joey. Additionally, Sharon alleges that Joey subjected her to
mental abuse by making such statements concerning her inability to conceive and having an affair with a
woman. Sharon, however, also admitted making a statement to Joey about him being the reason they were
having problems conceiving, as well as the fact that she was the one having an affair.
¶34. Although it does seem apparent that neither party in this marriage was innocent of wrongdoing, the
"habitual" cruel and inhuman conduct clearly was conduct by Sharon. The accusations and proof thereof
standing alone are extreme enough to constitute cruel and inhuman treatment against Joey. Moreover, when
all things complained of are viewed as a whole, keeping in mind the habitual nature of the facts, the acts by
Sharon certainly amount to habitual cruel and inhuman treatment.
II.
¶35. In its decree of divorce, the chancery court ordered, "[i]n order to avoid harm to the children,
visitation to be exercised by the Defendant/natural mother shall be exercised only during the day and at
times in which the Plaintiff and natural father shall be present." Such a restriction was based upon the
chancellor's findings that throughout Sharon's life, she has experienced numerous mental and emotional
problems, and such psychological problems provide the court concern with respect to her abilities to care
for the children. Sharon alleges such findings are tainted by the chancellor's refusal to consider the expert
testimony of Sharon's therapist, Edwina Hackett. Hackett is a licensed social worker not a psychologist or
psychiatrist.
¶36. On May 13, 1999, Hackett, practicing in Memphis, Tennessee, was deposed in this matter concerning
her treatment of Sharon from 1996 to the present. Joey was represented at the taking of the deposition by
counsel. The chancellor considered testimony about Sharon's mental health from both parties, from the lay
witness Donna Olds, and from the lay witness Brandy Schroyer. There is evidence, however, that indicates
that the chancellor refused to consider the deposition of Hackett when it was proffered at the hearing in this
matter, and when Sharon moved for a new trial on the ground that the court had failed to consider
Hackett's testimony.
¶37. We have repeatedly stated that the admissibility of evidence rests within the trial court's discretion.
Hall v. State, 611 So. 2d 915, 918 (Miss. 1993); Wade v. State, 583 So. 2d 965, 967 (Miss. 1991).
Unless judicial discretion is abused, the Supreme Court of Mississippi will not reverse his ruling. Hall, 611
So. 2d at 918 (citing Lewis v. State, 573 So. 2d 719, 722 (Miss. 1990)). Whether or not an individual is
qualified as an expert in a field of scientific knowledge is within the trial judge's discretion. Hall, at 918. The
judge's determination on the issue will not be reversed unless it clearly appears that the witness is not
qualified. Id. (citing Wilson v. State, 574 So. 2d 1324, 1334 (Miss. 1990); Smith v. State, 530 So. 2d
155, 162 (Miss. 1988)).
¶38. Sharon contends that the chancellor committed manifest error by his refusal to allow Hackett to be
qualified as an expert witness. Sharon's counsel stated, "within that meaning of that rule of evidence, I would
offer her testimony as expert testimony as a licensed professional within the state of Tennessee." The
chancellor's reasoning for denying the use of Hackett's deposition is clear:
I cannot accept her [Hackett's] testimony as an expert unless she is qualified even though, of course,
the deposition was taken. I strongly question whether or not a licensed social worker like Ms. Branan
just said could be qualified as an expert, but be that as it may, without that predicate being laid, I can't
allow her [Sharon Morris] to read any opinion testimony from that deposition.
It is this Court's view that the chancellor was correct in determining that Hackett's deposition testimony
could not be used without the proper predicate being laid. The test for expert testimony is clearly
enumerated:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion of otherwise.
Miss. R. Evid. 702. In the case at bar, Sharon simply did not identify Hackett as an expert or qualify her as
an expert to give an opinion as required under Miss. R. Evid. 702.
¶39. Hackett was not listed as an expert by Sharon in discovery responses. Trial by ambush cannot be
condoned by this Court, nor can this Court find abuse of discretion by the chancellor when Sharon did not
give advance notice that she intended to call Hackett as a witness and qualify her as an expert in a specific
field. Indeed, in response to interrogatories, Sharon's attorney only listed one expert witness, Dr. Phillip
Cooker.
¶40. Also, in her briefs, Sharon refers to the deposition testimony of Hackett as if she has been qualified as
an expert. Neither at trial, nor in her briefs has Sharon stated in what precise area Hackett should be
qualified as an expert. The fact that she gave testimony and the deposition was taken does not make her an
expert, nor does it put her in a position to give an opinion unless Sharon's attorney was able to lay the
proper predicate and qualify her as an expert. Sharon's counsel at trial admitted that he could not "sit here
and qualify her as an expert because she is not here today."
¶41. The trial judge has discretion over whether or not a witness is qualified as an expert. Hall, 611 So. 2d
at 918. The chancellor was not presented with the qualifications of Hackett, or the precise area of expertise
in which Sharon wanted her qualified. There is simply no evidence that the exclusion of the deposition of
Edwina Hackett, a licensed social worker, resulted in prejudice to Sharon or would have resulted in a
different result. Clearly, even if the chancellor erred in not allowing the deposition into evidence, which we
find he did not, it would have been harmless error as there is no indication that admitting the deposition into
evidence would have changed the outcome of this case. In sum, with all the questions left open regarding
Hackett, combined with the fact that she was not listed as an expert witness in discovery responses, nor
present at trial, it cannot be said that the chancellor abused his discretion in not qualifying her as an expert.
III.
¶42. The standard of review this Court invokes in a child custody case is well-settled. The review is "quite
limited in that the chancellor must be manifestly wrong, clearly erroneous, or apply an erroneous legal
standard in order for this court to reverse." Wright v. Stanley, 700 So. 2d 274, 280 (Miss. 1997) (citing
Williams v. Williams, 656 So. 2d 325, 330 (Miss. 1995)). This Court will not disturb the findings of a
chancellor when supported by substantial evidence in the record. Smith v. Jones, 654 So. 2d 480, 485
(Miss. 1995).
¶43. In all child custody cases, the polestar consideration is the best interest of the child. Sellers v. Sellers,
638 So. 2d 481, 485 (Miss. 1994). In making a child custody determination, it is well-settled law that the
trial court is to consider several facts which include: age of the children; health and sex of the children;
which parent had the continuity of care prior to the separation; which parent has the best parenting skills and
which has the willingness and capacity to provide primary child care; employment of the parents and their
responsibilities in that employment; physical and mental health and age of the parents; emotional ties of
parent and child; moral fitness if parents; the home, school, and community record of the child; the
preference of the child if sufficient age; stability of home environment and employment of each parent; and
other relevant factors. Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).
¶44. In its opinion, the trial court clearly set out the Albright factors and applied the relevant facts to the
factors. The chancellor followed the guidelines set out in Albright and accordingly resolved the custody
issue in favor of the best interest of the children. Sharon contends that the chancellor erred in his analysis of
the Albright factors (1) by resolving the factor of moral fitness against Sharon because of her relationship
with another woman and (2) by refusing to consider the testimony of Sharon's therapist concerning Sharon's
mental health in his analysis of the factor of the mental health of the parents.
A. Whether the chancellor erred in resolving the factor of moral fitness against Sharon
noting her homosexual relationship?
¶45. In his analysis of the moral fitness of the parents, the chancellor stated, "[b]y engaging in a homosexual
relationship which this Court finds to be violative of Mississippi statutes, and continuing in that relationship at
this time, the Court finds that the element of moral fitness must be resolved against the natural mother." As a
basis for his reasoning, the chancellor cited Weigand v. Houghton, 730 So. 2d 581 (Miss. 1999).
¶46. In Weigand, the father was an openly admitted homosexual who was engaged in a relationship with
another man. Id. at 586. The lower court determined the factor of morality against the father based on his
homosexual lifestyle. Id. This Court affirmed the lower court's analysis of the factor and stated, "[al]though
the morality of David's [father's] lifestyle was one important factor to consider in the eyes of the Chancellor,
this was not the sole basis for his custody decision." Id. at 586-87 (emphasis added).
¶47. This Court has clearly held that the chancellor can consider a homosexual lifestyle as a factor relevant
in the custody determination of the child, as long as it is not the sole factor. Sharon's extra-marital affair with
Brandy was not the only factor considered by the chancellor in making his determination that the best
interest of the children was for them to be in the custody of the father. The chancellor also considered the
following: the children's age and health; the fact that due to the emotional problems of Sharon, evidence
indicated that the continuity of care was largely exhibited by the father; although both parents took active
role in rearing the children, the emotional problems of the mother inhibited her ability to care for the children;
both parents exhibited willingness to care for the children; both parents have stable employment; mental and
emotional problems of the mother caused the chancellor great concern; nothing to indicate that either party
loves the children more than the other or that the children love one parent more than the other; both parties
have seen fit to involve the children in community activities; children are not at an age to make a preference;
the father continues to live with the children in the marital home, while the mother resides with her
homosexual lover who herself remains married at this time. In making his custody determination in the case
sub judice, the chancellor thoroughly discussed the Albright factors. He applied the evidence before him
and there is nothing to support an allegation that his result was manifestly wrong or clearly erroneous as
required by Wright.
B. Whether the chancellor erred by refusing to consider the testimony of Sharon's therapist
concerning Sharon's mental health in his analysis of the factor of the mental health of the
parents?
¶48. In his analysis of the Albright factor of physical and mental health of the parents, the chancellor
observed that "the mental and emotional problems suffered by the Defendant [Sharon] give this court great
concern with respect to her ability to care for the children." Sharon alleges that the chancellor committed
error by stating concern over Sharon's mental and emotional problems when evaluating the Albright
factors. Essentially, she makes the exact same argument as seen in issue II herein above. Therefore, as this
issue has already been discussed and dismissed, it is unnecessary to repeat the discussion. In short, the
chancellor had plenty of evidence in the record on which to base his concern over the children's best
interest. Sharon admitted a history of mental problems, Joey reaffirmed such problems, and Donna Olds
and Brandy Schroyer testified to knowing of Sharon's psychological difficulties.
CONCLUSION
¶49. This Court affirms the chancery court. Sharon first argues against the granting of the divorce to Joey
rather than to Sharon. Specifically, she alleges that she should be granted the divorce based on the same
ground due to miscellaneous allegations. The combination of acts of violence, mental problems, and the
extra-marital affair leads this Court to affirm the chancellor's grant of divorce to Joey from Sharon on the
ground of habitual cruel and inhuman treatment. Although we affirm the chancellor's opinion and ground for
divorce, it is on different reasoning. Second, the chancellor did not err in excluding the deposition testimony
of Edwina Hackett, the licensed social worker. There is no indication that the chancellor abused his
discretion in excluding Hackett's deposition or in refusing to admit her as an expert witness. Third, the
chancellor did not commit error in his analysis of the Albright factors in determining child custody. In
conclusion, this Court upholds the chancellor's decision because there is no evidence that the chancellor's
findings are clearly erroneous or that an erroneous legal standard was applied. The judgment of the DeSoto
County Chancery Court is affirmed.
¶50. AFFIRMED.
PITTMAN, C.J., BANKS AND McRAE, P.JJ., MILLS, WALLER, COBB, DIAZ AND
EASLEY, JJ., CONCUR.