Holloway v. Holloway
| Docket Number: | 2008-CA-00676-COA Linked Case(s): 2008-CA-00676-COA ; 2008-CT-00676-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-27-2009 Opinion Author: ROBERTS, J. Holding: AFFIRMED IN PART; REVERSED AND REMANDED IN PART |
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| Additional Case Information: |
Topic: Divorce: Adultery - Child support - Section 43-19-101(3)(a)-(b) - Attorney's fees Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS AND BARNES, JJ. Concur in Part, Concur in Result 1: IRVING, ISHEE AND MAXWELL, JJ. (WITHOUT SEPARATE WRITTEN OPINION) Concurs in Result Only: CARLTON, J. (WITHOUT SEPARATE WRITTEN OPINION) Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 03-11-2008 Appealed from: Jones County Chancery Court Judge: Franklin C. McKenzie, Jr. Disposition: GRANTED EX-WIFE’S REQUEST FOR A DIVORCE BASED ON UNCONDONED ADULTERY, ORDERED EX-HUSBAND TO PAY CHILD SUPPORT, AND ORDERED EX-HUSBAND TO PAY EX-WIFE’S ATTORNEYS’ FEES Case Number: 2006-0591 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JOEL D. HOLLOWAY |
THOMAS T. BUCHANAN,
JOHN D. SMALLWOOD |
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| Appellee: | TWYLA M. HOLLOWAY | TERRY L. CAVES, JERRY DEAN SHARP |
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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: Adultery - Child support - Section 43-19-101(3)(a)-(b) - Attorney's fees |
| Summary of the Facts: | Joel Holloway filed a complaint for divorce from Twyla Holloway based on Twyla’s alleged cruel and inhuman treatment. Alternatively, Joel claimed that he and Twyla should divorce because they had irreconcilable differences. Twyla filed a counterclaim for a divorce based on uncondoned adultery or habitual cruel and inhuman treatment. Alternatively, Twyla also requested a divorce based on irreconcilable differences. The chancellor found that Twyla was entitled to a divorce based on Joel’s uncondoned adultery. The chancellor ordered Joel to pay Twyla $1,400 per month in child support and approximately $11,000 in attorneys’ fees. Joel appeals. |
| Summary of Opinion Analysis: | Issue 1: Child support Joel argues that the chancellor erred by incorrectly calculating his adjusted gross income and in finding certain facts that influenced the chancellor’s child support determination. Section 43-19-101(3)(a)-(b) provides the parameters for determining a party’s adjusted gross income for child support purposes. Joel’s year-to-date earnings of $31,912 as of June 6, 2007, were his gross earnings, and none of the mandatory deductions set forth in section 43-19-101(3)(b) were subtracted from that figure. The pay stub that the chancellor used to form his calculations clearly indicated that Joel’s gross earnings up to that date were $31,912, and it also clearly reflected that, as of that date, Joel had paid a total of $6,904.65 in federal and state taxes, social security, and Medicare payments. The chancellor did not deduct those figures from Joel’s gross income of $31,912. The failure to do so is clear error, as section 43-19-101(3)(b) requires that those figures be deducted from a non-custodial parent’s gross income. This matter is remanded to the chancery court for a recalculation of Joel’s child support obligation. With regard to Joel's argument that the chancellor improperly deviated from the statutory child support guidelines, they will not be addressed because any such comments may be unintentionally taken as directions on remand. Issue 2: Attorney's fees Joel argues that Twyla did not present sufficient evidence that she could not pay her attorneys’ fees. A chancellor does not abuse his or her discretion when he or she awards a former wife attorneys’ fees where, if she were to pay such fees herself, she would severely deplete her savings. Additionally, Twyla testified that she was unable to pay her attorneys’ fees and that she had to borrow money from her mother to pay a portion of her attorneys’ fees. In addition, Joel’s numerous deceptions throughout the proceedings forced Twyla to incur additional attorneys’ fees. Twyla has filed a motion for attorneys’ fees on appeal. Generally, attorneys’ fees on appeal are awarded in the amount of one-half of what was awarded in the lower court. Thus, Twyla is awarded $5,535.86 – one-half of $11,071.72. |
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