Kelly Bertha Bingham v. Kenneth Johnson

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CA-00402-COA

KELLY BERTHA BINGHAM APPELLANT

v.

KENNETH JOHNSON APPELLEE

DATE OF JUDGMENT: 11/01/2018
TRIAL JUDGE: HON. EDWARD E. PATTEN JR.
COURT FROM WHICH APPEALED: LINCOLN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: JEFFERY KENDRICK HARNESS
ATTORNEY FOR APPELLEE: JOSEPH A. FERNALD JR.
NATURE OF THE CASE: CIVIL - CUSTODY
DISPOSITION: AFFIRMED - 06/15/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., LAWRENCE AND SMITH, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. Kelly Bingham appeals from the Lincoln County Chancery Court’s judgment of

divorce awarding her ex-husband Kenneth (Ken) Johnson full physical and legal custody of

their daughter, K.J.1 Kelly’s sole argument on appeal is that the chancellor abused his

discretion in his Albright2 analysis, which served as the basis for his custody award. After

review, we find substantial evidence in the record to support the chancellor’s decision to

award Ken custody of K.J. Accordingly, we affirm.

FACTS

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Initials are used to protect the identity of the minor child.
2
Albright v. Albright, 437 So. 2d 1003 (Miss. 1983).
¶2. Ken and Kelly married on November 1, 2014. They had one child together, K.J., born

in 2015. The couple separated on September 18, 2017, and Ken filed for divorce on

November 8, 2017.

¶3. On December 20, 2017, the parties entered into an agreed temporary order, which

gave Kelly temporary custody of K.J. The order also allowed Ken visitation every other

weekend and required him to pay $352 per month in child support. Further, the agreed

temporary order specified, among other things, that neither party was to leave K.J. with

anyone not related by blood or marriage, expose her to any immoral or illegal activity, or take

her out of state without at least twenty-four hours’ notice.

¶4. On January 11, 2018, Kelly filed her answer, defenses to the complaint for divorce,

and a motion for temporary relief and counter-complaint. Ken filed an answer to Kelly’s

counterclaim. On the day of trial, May 3, 2018, the parties consented to a divorce on the

ground of irreconcilable differences. The parties reached an agreement as to the division of

property but proceeded to trial on the issues of child custody and child support.

¶5. At trial, Kelly testified that she had one older daughter from a previous relationship

and that the child’s father was in prison for child neglect. She also testified that she lived

with her daughter at 23 Reba Christian Road in Natchez, Mississippi, in a trailer with three

bedrooms and two bathrooms. Kelly stated her cousin owned the trailer and that it was fully

furnished with adequate room for both her daughters. However, she provided no pictures of

the home. Kelly also testified she slept at friends’ houses if she was out visiting. As for

work, Kelly testified that she worked as a receptionist for a doctor in Natchez, Mississippi.

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She testified that she worked forty hours a week, Monday to Friday, and made $10 an hour.

Prior to that, Kelly stated that she worked for her cousin as a child-care provider and made

$200 a week. When asked about her alleged relationship with a man named Fred Mayberry,

Kelly denied that the relationship was romantic. She further testified that she would

sometimes go out with Mayberry while she was still married but maintained that they were

just friends. Kelly denied that there was a picture on Facebook of her and Mayberry kissing.

When Ken’s attorney introduced the picture into evidence for impeachment, Kelly denied she

was the woman in the picture.

¶6. Kelly testified that she drove a Nissan Altima with no tag. However, the vehicle she

drove to court that day had a Claiborne County tag. A picture of her license plate was

introduced as an exhibit at trial. When the court asked Kelly why she lied about the vehicle’s

tag, she said she did not know. Ken’s attorney then introduced an exhibit into evidence

showing a vehicle that looked identical to Kelly’s vehicle at Mayberry’s trailer. Kelly denied

that was her vehicle and stated she could not remember anything about that specific event.

When asked how many times she had been to Mayberry’s trailer, she responded with, “I

don’t know.” Kelly admitted that there was video footage of her and K.J. leaving Mayberry’s

trailer at 5:15 a.m. one morning. When asked why they were there so early, Kelly claimed

she and K.J. “were feeding the horses or letting them out.”

¶7. Kelly also denied ever going out of Mississippi with Mayberry. Ken’s attorney

introduced a photo from Kelly’s Facebook account showing her and Mayberry in New

Orleans, Louisiana, but Kelly denied she posted that picture. In addition, she admitted to

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attending a rodeo with Mayberry but denied that it was out of state.

¶8. Kelly claimed that Ken once tried to run her off the road with his car, shot at her

another time, and choked her in 2017. However, Kelly did not provide any corroborating

evidence for any of those accounts. Additionally, Kelly admitted that she withheld K.J. from

Ken for thirty-eight days after the separation and that she never called Ken to let him know

K.J. was safe. Kelly denied ever calling Ken a derogatory name in front of K.J. At that

point, Ken’s attorney introduced a video where K.J. exited Kelly’s vehicle, walked over to

Ken, and called him a “punk ass.” K.J. then added that her mother calls him a “punk ass.”

In the video, Ken responded, “Your mother is a joke.” Kelly also testified that she got into

a fist fight with Ken in 2016 at his father’s repast3 and that K.J. witnessed the fight.

¶9. Ken testified that he worked at Dickerson and Bowen, a paving contracting company,

as a welder and made $16.50 an hour and worked forty hours a week. He also testified that

he still lived in the marital home, which had three bedrooms and two bathrooms and was

fully furnished. Ken stated that K.J. had her own room, clothes, and toys there. He testified

that his cousin owned the home but that he had a written agreement allowing him to occupy

the home as long as he paid the taxes and insurance for the property.

¶10. Ken testified that he and K.J. had a great relationship, and he provided details about

what K.J. liked to do for fun. For example, he testified that she liked to feed horses, be

around other children, and play outside. He stated that they also practiced the alphabet and

used flash cards to practice colors and shapes. Ken testified that he and K.J. spent time with

3
A repast is a meal gathering after a funeral.

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extended family when they were able.

¶11. Ken testified that he worked in Odessa, Texas, as a welder during K.J.’s first year of

life. He explained that Kelly did not want to go back to work that first year, so he needed a

job that paid well to provide for Kelly, K.J., and his stepdaughter. Ken stated that he left

work in Odessa when K.J. was four months old to be closer to Kelly and the children. Ken

testified that there were at least ten times during his marriage when he would be outside

doing chores and Kelly would leave without warning. When that happened, Ken would go

inside to be with the girls or bring them outside with him.

¶12. Ken denied ever trying to run over Kelly with his vehicle, shoot Kelly, or choke Kelly.

He admitted, however, that he got angry and hit the back of Kelly’s vehicle window when

she withheld K.J. from him for thirty-eight days. Ken stated that since the separation, Kelly

had not kept him informed about K.J.’s whereabouts or how she was doing when she was in

Kelly’s care.

¶13. Ken testified that saw Kelly’s vehicle parked outside of Mayberry’s trailer on more

than one occasion. One time, he saw Kelly and K.J. leave Mayberry’s trailer around 5:15

a.m. Ken recorded the incident, and that video was introduced at trial during Kelly’s

testimony. Another time, he drove by Mayberry’s trailer at night and saw Kelly’s vehicle

parked outside. He testified that when he returned later that morning, he saw Kelly walk

outside and get in the vehicle. In regard to Kelly’s alleged home at 23 Reba Christian Road,

Ken claimed that when he drove by there on three or four occasions the home was not

occupied.

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¶14. Other witnesses, including Kelly’s cousin, Ken’s aunts, and Ken’s mother, testified

at trial. To the extent these witnesses’ testimony was relevant to the chancellor’s decision,

that portion of their testimony will be discussed below in the analysis.

¶15. On November 1, 2018, the chancellor entered a judgment of divorce on the ground

of irreconcilable differences. Regarding custody, the chancellor thoroughly discussed the

Albright factors to determine the best interest of the child. The chancellor found the factor

of the age, sex, and health of the child slightly favored Kelly. The chancellor found the

following factors favored Ken: moral fitness of the parents; the home, school, and

community record of the child; and stability of the home environment and employment of

each parent. The chancellor found that the remaining applicable factors were neutral.

Ultimately, the chancellor found that awarding Ken physical and legal custody was in K.J.’s

best interest. The court awarded Kelly visitation rights and ordered her to pay $243 a month

in child support.

¶16. On November 12, 2018, Kelly filed a motion for reconsideration, arguing that the

chancellor erred in his Albright analysis. The court denied Kelly’s motion on January 24,

2019. Kelly appealed.

STANDARD OF REVIEW

¶17. The standard of review for a child-custody case is limited. We will not reverse unless

the trial court made findings that are manifestly wrong or clearly erroneous or applied an

improper legal standard. Smith v. Smith, 97 So. 3d 43, 46 (¶7) (Miss. 2012). “So long as

there is substantial evidence in the record that, if found credible by the chancellor, would

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provide support for the chancellor’s decision, this Court may not intercede simply to

substitute our collective opinion for that of the chancellor.” Hammers v. Hammers, 890 So.

2d 944, 950 (¶14) (Miss. Ct. App. 2004) (quoting Bower v. Bower, 758 So. 2d 405, 412

(¶33) (Miss. 2000)). Finally, “our polestar consideration,” like the chancellor’s, “must be the

best interest of the child.” Montgomery v. Montgomery, 20 So. 3d 39, 42 (¶9) (Miss. Ct.

App. 2009) (quoting Hensarling v. Hensarling, 824 So. 2d 583, 587 (¶8) (Miss. 2002)).

ANALYSIS

¶18. The Albright factors are as follows: (1) age, health, and sex of the child; (2) continuity

of care prior to the separation; (3) parenting skills and the willingness and capacity to provide

primary child care; (4) the employment of the parent and responsibilities of that employment;

(5) the physical and mental health and age of the parents; (6) the emotional ties of parent and

child; (7) the moral fitness of the parents; (8) the home, school, and community record of the

child; (9) the preference of the child at the age sufficient to express a preference by law; (10)

the stability of the home environment and employment of each parent; and (11) other factors

relevant to the parent-child relationship. Albright, 437 So. 2d at 1005.

¶19. An Albright analysis is not a “mathematical formula.” Lee v. Lee, 798 So. 2d 1284,

1288 (¶15) (Miss. 2001). Further, the factors are not meant to be weighed equally in every

case. Divers v. Divers, 856 So. 2d 370, 376 (¶27) (Miss. Ct. App. 2003). Our supreme court

has held that “[a]ll the [Albright] factors are important, but the chancellor has the ultimate

discretion to weigh the evidence the way he sees fit.” Johnson v. Gray, 859 So. 2d 1006,

1013-14 (¶36) (Miss. 2003). “The chancellor, by his presence in the courtroom, is best

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equipped to listen to witnesses, observe their demeanor, and determine the credibility of the

witnesses and what weight ought to be ascribed to the evidence given by those witnesses.”

Mabus v. Mabus, 890 So. 2d 806, 819 (¶56) (Miss. 2003) (citing Rogers v. Morin, 791 So.

2d 815, 826 (Miss. 2001)). “In order to determine whether or not the chancellor was

manifestly wrong [or] clearly erroneous[,] or abused his discretion in applying the Albright

factors, we review the evidence and testimony presented at trial . . . to ensure his ruling was

supported by the record.” Hollon v. Hollon, 784 So. 2d 943, 947 (¶13) (Miss. 2001).

a. Age, Health, and Sex of the Child

¶20. The chancellor found this factor favored Kelly slightly but acknowledged that Ken

proved he was well-equipped to care for K.J. At the time of trial, K.J. was three-and-a-half

years old. The chancellor noted that K.J. was in good health and was well-behaved. In

addition, the chancellor found that the tender years doctrine did not apply because K.J. could

be “equally cared for by persons other than the mother.” See Woodham v. Woodham, 17 So.

3d 153, 157 (¶19) (Miss. Ct. App. 2009) (rejecting the tender years doctrine where a four-

year-old girl was equally cared for by both parents). This Court finds no clear error or abuse

of discretion in the chancellor’s finding.

b. Continuity of Care Prior to Separation

¶21. The chancellor found this factor to be neutral. He based his decision on the fact that

Kelly stayed at home alone with K.J. from two days after she was born until she was almost

four months old while Ken worked in Texas. Ken testified that after four months of working

in Texas, he returned home to be with his family and worked to provide for Kelly and K.J.

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Ken also testified that on numerous occasions he would come home from work and

participate in the caretaking role. For example, there were times when Kelly would leave,

and he would take care of K.J. and his stepdaughter. Testimony also revealed that there was

a period of time when Kelly left K.J. with Ken’s mother. The court noted that although Kelly

was the primary caregiver for K.J., Ken should not be punished for being the “primary

breadwinner” of the family. The court further noted that since the separation, both parents

were employed and willing to provide the primary care for K.J. This Court finds no clear

error or abuse of discretion in the chancellor’s finding this factor to be neutral.

c. Parenting Skills

¶22. The chancellor also found this factor to be neutral. He based his finding on the fact

that Ken and Kelly were both willing to provide child care for K.J. Ken testified that he

bathed K.J. on occasion, and he could braid K.J.’s hair and paint her nails. He also testified

that he cooked and cleaned and would get K.J. ready for bed. Ken’s mother corroborated

Ken’s account of his parenting skills and testified that Kelly exhibited some parenting

behavior that was concerning to her. For example, Ken’s mother testified that Kelly would

hit the children for very little reason and would curse in front of them. This account was

corroborated through a video played for the court, where K.J. was heard cursing, and telling

Ken, “My mama said you’re a punk ass.” Kelly admitted she did not correct K.J. Ken

testified that Kelly would leave the children in the house alone, without informing him of

where or why she was leaving. Ken would be in the yard working, and he would stop what

he was doing to go inside with the children.

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¶23. Both Ken and Kelly testified that they were in relatively good health and had no

mental-capacity issues or mental illnesses. Both parties had witnesses testify to their “great”

parenting. Ken even admitted that Kelly was a good mother and that K.J. loved her mom.

Kelly would not admit the same about Ken’s parenting skills but did testify that K.J. loved

her father.

¶24. Further, the chancellor stated, “Kelly was caught on multiple occasions, where she

lied, even about things that would not ordinarily affect the outcome of this case.

Truthfulness is an important parenting skill in rearing a child, and Kelly has proven herself

not to be truthful.” It is well-settled that the chancellor “has sole authority to determine the

credibility of the witnesses.” Joel v. Joel, 43 So. 3d 424, 433 (¶28) (Miss. 2010). Thus, the

chancellor was within his discretion to find Kelly’s testimony lacked credibility. This Court

finds no clear error or abuse of discretion in the chancellor’s finding on this factor.

d. Employment Responsibilities

¶25. The chancellor found this factor favored neither party. At the time of trial, Ken had

worked for Dickerson and Bowen for two years. He worked forty hours a week, Monday

through Friday from 7 a.m. to 5 p.m. He testified he may have to work on some weekends,

but that was rare. Ken also testified that his job was flexible. In regard to Kelly, she had

multiple different employers over the years and had failed to keep steady employment

throughout K.J.’s life. At one point, her cousin employed Kelly as a sitter. At the time of

trial, she worked as a receptionist for a doctor in Natchez on Monday through Friday from

8:30 a.m. to 5 p.m. Kelly testified that her cousin took care of K.J. when she was at work.

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This Court finds no clear error or abuse of discretion in the chancellor’s application of this

factor.

e. Physical and Mental Health and Age of the Parents

¶26. The chancellor found this factor to be neutral. At the time of trial, Kelly was thirty

years old and had no mental or physical health issues. Ken was thirty-one years old and

likewise had no mental or physical health issues, other than his medication-controlled high

blood pressure. Ken testified that his blood pressure issue did not affect his ability to provide

child care. This Court finds no clear error or abuse of discretion in the chancellor’s finding

that this factor was neutral.

f. Emotional Ties of Parent and Child

¶27. The chancellor found this factor to be neutral because K.J. was emotionally tied to

each parent equally. Kelly testified that K.J. loved her father, and Ken testified that K.J.

loved her mother. Additionally, multiple witnesses testified that Ken and K.J. had a great

father/daughter relationship and that Kelly and K.J. had a great mother/daughter relationship.

This Court finds no clear error or abuse of discretion in the chancellor’s finding on this

factor.

g. Moral Fitness of the Parents

¶28. The chancellor found this factor favored Ken. The chancellor based his decision in

part on that fact that “Kelly had multiple inconsistencies in her testimony which [led] this

Court to conclude that she was not a truthful person, and that this is a character flaw.” For

example, “Kelly denied having an extramarital relationship with []Mayberry, while other

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witnesses provided testimony that would lead a reasonable person to another conclusion.”

When presented with a picture of her and Mayberry kissing, Kelly denied it was her in the

picture. The chancellor stated that it was his opinion that Kelly was the woman in the

picture. The chancellor also stated that “Kelly was evasive as to how many times she was

at Mayberry’s home, and would not even admit to a car, described exactly as her car, being

parked in [] Mayberry’s yard.” Further, “Kelly was untruthful about having a Claiborne

County tag on her vehicle, at her deposition and again in open Court, perhaps to cover up the

fact that it was her vehicle at []Mayberry’s home overnight.”

¶29. Kelly testified that she lived at 23 Reba Christian Road, Natchez, Mississippi.

However, multiple witnesses testified that the property appeared to be abandoned. One

witness testified that the electricity meter had barely moved when he visited the property on

multiple occasions. He also testified that he found Kelly’s car at Mayberry’s home on

multiple occasions, where she appeared to stay overnight.

¶30. In a video played at trial, K.J. called Ken a “punk ass” and said, “My mama said you

was a punk ass.” Kelly denied cursing in front of her child, but the court did not believe her.

Kelly admitted that she got into a fist fight in front of K.J. at Ken’s father’s repast after his

funeral. She also admitted that she did not tell K.J. after the fact that violence was not an

appropriate way to resolve conflict.

¶31. Ken admitted that he lost his temper at one point and hit the back glass of Kelly’s car.

Ken was also seen on video telling K.J., “Your mother is a joke.” The chancellor gave no

credibility to the allegations that Ken shot at Kelly, that Ken choked Kelly, or that he

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attempted to run Kelly off the road. As previously stated, the chancellor was well within his

discretion to find Kelly’s testimony was not credible, and there was substantial evidence to

support his weighing of this factor. Thus, this Court finds no clear error or abuse of

discretion in the chancellor’s finding on this factor.

h. Home, School, and Community Record of the Child

¶32. The chancellor found this factor favored Ken. At the time of trial, K.J. was three-and

a-half years old and had no prior school record. Ken took K.J. to church with him on his

weekend visitation periods, where multiple family members testified they attended. Ken

testified that he had multiple family members near him willing to assist him if necessary.

Multiple family members corroborated his testimony. Ken and multiple family members

testified that they were a close family and that K.J. was involved in various family functions.

Kelly testified that she rarely went to church. Further, she failed to produce testimony of any

relatives with close ties living in close proximity to her, besides a cousin whom she paid to

watch K.J. For these reasons, this Court finds no clear error or abuse of discretion in the

chancellor’s finding on this factor.

i. Stability of Home and Employment of Each Parent

¶33. The chancellor found this factor favored Ken. The chancellor based his decision in

part on Kelly’s untruthfulness about where she lived. Although she claimed to live at 23

Reba Christian Road, multiple witnesses testified that the home at 23 Reba Christian Road

was abandoned. No pictures were offered of the property at 23 Reba Christian Road, and

only Kelly’s cousin offered any credible evidence that she allowed Kelly to use the home.

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¶34. At the time of trial, Ken still resided in the marital home, which his cousin owned.

Ken’s home was a three bedroom, two bathroom home, and K.J. had her own room. As

previously stated, Kelly and Ken were both employed at the time of trial. After review, we

find no clear error or abuse of discretion in the chancellor’s finding on this factor.

j. Other Relevant Factors

¶35. Finally, the chancellor considered K.J.’s relationship with her half-sister, Kelly’s other

daughter who lived with them. The chancellor explained that although the court was

“hesitant” to split up siblings, the facts warranted a split in this case. The record shows that

K.J. had a close bond with her half-sister, and Ken testified that he would foster that

relationship. This Court finds no clear error or abuse of discretion in the chancellor’s

conclusion.

CONCLUSION

¶36. In summary, the chancellor’s Albright analysis and his determination of K.J.’s best

interest were neither clearly erroneous nor an abuse of discretion and were supported by

substantial evidence produced at trial. Therefore, we affirm the chancery court’s judgment.

¶37. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.
McDONALD, J., NOT PARTICIPATING.

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