Marcia Lopez Robles v. Jose Francisco Gonzalez

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01727-COA MARCIA LOPEZ ROBLES APPELLANT v. JOSE FRANCISCO GONZALEZ APPELLEE DATE OF JUDGMENT: 11/01/2016 TRIAL JUDGE: HON. JOHN C. MCLAURIN JR. COURT FROM WHICH APPEALED: RANKIN COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: JOHN MICHAEL DUNCAN CHRISTOPHER TYLER KENT ATTORNEYS FOR APPELLEE: NATHAN HENRY ELMORE JANE E. TUCKER NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: REVERSED AND REMANDED - 05/15/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ. CARLTON, J., FOR THE COURT: ¶1. Marcia Robles filed a complaint for divorce against her husband, Jose Gonzalez. The Rankin County Chancery Court entered a judgment granting Robles and Gonzalez an irreconcilable-difference divorce. In his judgment, the chancellor also made an equitable division of the martial property and awarded Robles and Gonzalez joint legal and physical custody of their two minor children. ¶2. Robles now appeals the chancellor’s final judgment, arguing that the chancellor erred by failing to make an on-the-record finding of each applicable Albright1 factor when 1 Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). awarding Robles and Gonzalez joint custody of the minor children. Finding error in the chancellor’s final judgment, we reverse this case and remand to the chancellor for further proceedings consistent with this opinion. FACTS ¶3. Robles and Gonzalez were married in Mexico in September 2006. After their marriage ceremony, Robles and Gonzalez resided in Rankin County, Mississippi. On October 28, 2015, Robles filed a complaint for divorce against Gonzalez based on irreconcilable differences and habitual cruel and inhuman treatment. She also requested sole legal and physical custody of the parties’ two minor children, J.P. and J.2 The record reflects that Robles has two additional biological children from a previous relationship, and Gonzalez has three additional biological children from a previous relationship. Robles’s two additional biological children lived in the marital home along with Robles, Gonzalez, J.P., and J. Gonzalez filed his answer and counterclaim to the complaint on December 17, 2015.3 2 For anonymity purposes, this Court has chosen to use the initials of the children. 3 Robles served Gonzalez with a copy of her complaint for divorce on November 10, 2015. Gonzalez filed his answer and counterclaim on December 17, 2015, more than thirty days after he had been served with the complaint for divorce. Robles filed a motion to strike Gonzalez’s answer and counterclaim as untimely filed. Gonzalez filed a response to Robles’s motion to strike, wherein he alleged that Robles “did not file her Affidavit of Service, dated November 10, 2015, until January 6, 2016 . . . ; therefore, [Gonzalez’s] counsel had no way of knowing on which date the summons was actually served.” The record contains no ruling on this motion. The Mississippi Supreme Court has held that “the affirmative duty to obtain a ruling on a motion rests upon the party filing the motion to follow up his action by bringing it to the attention of the trial court.” Ramsey v. ...

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