Morris v. Morris
| Docket Number: | 2006-CA-01488-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-07-2008 Opinion Author: BARNES, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce - Child custody - Equitable distribution - Contempt - Child support guidelines - Section 43-19-101(1) Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Ishee, and Roberts, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 05-31-2006 Appealed from: Forrest County Chancery Court Judge: Johnny Lee Williams Disposition: CHANCELLOR ENTERED FINAL JUDGMENT OF DIVORCE THAT AWARDED CUSTODY TO TAMMY MORRIS, ORDERED DAVID MORRIS TO PAY CHILD SUPPORT, AND DIVIDED MARITAL ASSETS Case Number: 03-0505-GN-W |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | DAVID MORRIS |
RENEE MCBRIDE PORTER |
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| Appellee: | TAMMY INMAN MORRIS | MARTY CRAIG ROBERTSON, MICHAEL CHADWICK SMITH | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Divorce - Child custody - Equitable distribution - Contempt - Child support guidelines - Section 43-19-101(1) |
| Summary of the Facts: | Tammy Morris filed a complaint for divorce from David Morris alleging habitual cruel and inhuman treatment and adultery or, in the alternative, irreconcilable differences. In a temporary decree, the chancellor ordered that David and Tammy have joint legal and physical custody of the couple’s two children. David, an officer in the military, was subsequently called to active duty and required to leave the country for an extended period of time; therefore, the chancellor subsequently amended the temporary decree to award temporary custody of the children to Tammy. The amended decree also required David to pay $750 per month in child support. Tammy later filed a complaint requesting that the chancellor hold David in contempt based on the fact that he was two months delinquent in his child support obligation. After he had returned from active duty, David filed a motion seeking visitation rights and a reduction in his child support obligation. The chancellor issued an amended temporary order that reduced David’s child support obligation to $500 per month. Tammy filed another complaint for citation of contempt based on her allegation that David continued to be delinquent in his child support obligation. The chancellor awarded Tammy custody of the children subject to David’s visitation rights and ordered David to pay $1,000 per month in child support. The chancellor also found that David was delinquent in his child support payments, found him in contempt, and ordered that he pay $3,950 in back child support and attorney’s fees. David appeals. |
| Summary of Opinion Analysis: | Issue 1: Custody David argues that the chancellor erred in awarding custody of the children to Tammy, because the chancellor punished him on account of his military service and misapplied the Albright factors of willingness and capacity to provide primary childcare, employment and responsibilities of that employment, and moral fitness of the parents. With regard to willingness and capacity to provide primary care, the chancellor found this factor favored Tammy due to the fact that David was on full active military duty and had previously been deployed to Iraq. David acknowledged that he was on call twenty-four hours a day, seven days a week. Moreover, he had been deployed overseas two times since the birth of his oldest child, and it remained possible that he could be deployed again, in which case his mother would take care of the children. Given these facts, the chancellor did not err in finding that Tammy was more capable of providing primary care to the children. With regard to employment, the chancellor found that this factor favored Tammy over David because David’s work for the Hattiesburg Police Department sometimes required him to work odd hours and on account of David’s active military service. While Tammy’s job history may not have been the most stable, Tammy testified that in her current job she worked regular business hours, Monday through Friday from 8:00 a.m. to 5:00 p.m., while David’s job required that he always be on call. Moreover, David was on active military duty and could be deployed at any time. Thus, there was no error. With regard to moral fitness, the chancellor noted that David had admitted to having had an affair in the early 1990s and that after the separation, but prior to the divorce, Tammy had been dating another man. David notes that Tammy forgave him for his affair; however, while this might be relevant to whether one party is entitled to a divorce, David cites no authority for the proposition that an individual’s forgiving his or her spouse’s affair is of any relevance to the moral fitness factor of a custody determination. Thus, the chancellor did not err in finding this factor did not favor either party. The chancery court’s judgment awarding custody to Tammy subject to David’s visitation rights is affirmed. Issue 2: Equitable distribution David argues that the chancellor erred in failing to specifically address each of the Ferguson factors. The chancellor divided David and Tammy’s marital assets into five categories and made detailed findings as to each category regarding the value of the items in the category and the contribution of each party thereto. Therefore, contrary to David’s contention, the chancellor considered numerous Ferguson factors, namely the parties’ contribution to the marriage, the market value of the assets, and the parties’ earning capacities. He was not required to discuss every factor in detail. David also argues that the chancellor erred in finding the Old Highway 49 property to be marital property. The fact that the Old Highway 49 property was titled in David’s name is irrelevant as title is no longer determinative in deciding a party’s rights to the property. David testified that while the money for the payments on the property may have come from the checking account he shared with Tammy, the money was provided by his mother. Tammy, on the other hand, testified that while David’s mother may have paid some on the Old Highway 49 property, she and David primarily paid for it. Where there is conflicting testimony, the chancellor, as the trier of fact, is the judge of the credibility of the witnesses. Moreover, although the chancellor deemed the property to be marital, he ultimately awarded the property to David. David also takes issue with the fact that the chancellor awarded Tammy the Dixie property and the Jasper County property, which had a combined value of $77,300, while David was awarded only the Old Highway 49 property, which had a value of $32,000. Although the value of the marital real property awarded to Tammy exceeded the value of that awarded to David, it is well established that equitable distribution does not require equal distribution. Moreover, according to the chancellor’s distribution chart, David was awarded approximately $50,000 more in marital assets than was Tammy. Issue 3: Contempt David argues that the chancellor erred in finding him in contempt when it was not clear what order of the court he directly disobeyed or if he had any knowledge of such order. In a contempt action involving unpaid child support, a prima facie case is achieved when the party entitled to receive child support introduces evidence that the party required to pay the support has failed to do so. A finding that one party is in contempt renders the opposing party eligible for an award of attorney’s fees; however, an award of attorney’s fees is not contingent on a finding of contempt. Tammy demonstrated at trial, through her own testimony and through exhibit forty-seven, that David failed to pay the $750 payment in April 2005 and the $500 payment in June 2005. David admitted at trial that he did not make the June 2005 payment, and he did not know if he paid the April 2005 payment. Moreover, David made no claim that he was unaware of the requirement that he make the $750 and $500 payments, and the chancellor’s orders setting the payments appear in the record. Therefore, Tammy established a prima facie case of contempt and David failed to show by clear and convincing evidence that this failure was not willful. Issue 4: Child support guidelines David argues that the chancellor erred in failing to make a written finding that the statutory child support guidelines were inappropriate under the circumstances of this case and, thus, would not be followed. Pursuant to the child support guidelines set forth in section 43-19-101(1), a parent with two children should pay child support in the amount of twenty percent of his or her adjusted gross income. Although the chancellor did not make a written finding as to whether the application of the guidelines was reasonable pursuant to section 43-19-101(4), it is clear that the chancellor considered the twenty percent statutory guideline figure set forth in section 43-19-101(1) in setting David’s child support obligation. Also, the chancellor’s opinion reflects that the amount of the monthly child support that David was ordered to pay was $386 per month less than the amount set forth by the guidelines. |
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