Cossey v. Cossey
| Docket Number: | 2008-CA-00829-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-10-2009 Opinion Author: MAXWELL, J. Holding: AFFIRMED AND REMANDED |
|
| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Section 93-5-2(3) & (5) - Visitation - College expenses - Equitable distribution Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
|
| Trial Court: |
Date of Trial Judgment: 07-11-2008 Appealed from: PONTOTOC COUNTY CHANCERY COURT Judge: John A. Hatcher Disposition: DIVORCE GRANTED ON GROUND OF IRRECONCILABLE DIFFERENCES ; EQUITABLE DISTRIBUTION OF PARTIES’ ASSETS; PARTIES ORDERED TO SUBMIT TO PATERNITY TEST; PHYSICAL AND LEGAL CUSTODY OF MINOR CHILD AWARDED TO MOTHER WITH FATHER AWARDED VISITATION; FATHER ORDERED TO PAY CHILD SUPPORT AND ONE-HALF OF ALL COLLEGE EXPENSES FOR MINOR CHILD; FATHER ORDERED TO MAINTAIN MEDICAL INSURANCE FOR MINOR CHILD; CONDITIONAL JUDGMENT IN FAVOR OF MOTHER AND AGAINST FATHER IN THE SUM OF $10,403.05 FOR PAST SCHOOL EXPENSES AND CHILD SUPPORT Case Number: 2007-0399-58-H |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | BILLY J. COSSEY |
HELEN BAGWELL KELLY,
ADAM A. PITTMAN |
|
|
| Appellee: | NANCY L. COSSEY | JOE M. DAVIS | ||
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. |
|
| Topic: | Divorce: Irreconcilable differences - Section 93-5-2(3) & (5) - Visitation - College expenses - Equitable distribution |
| Summary of the Facts: | Billy Cossey filed for a divorce from Nancy Cossey, alleging adultery, desertion, and habitual cruel and inhuman treatment as grounds for the divorce. The complaint also contained an alternative claim that irreconcilable differences existed between him and Nancy. Nancy denied the allegations, and filed a counter-complaint for divorce on the grounds of desertion, adultery, and habitual cruel and inhuman treatment. In the alternative, she argued irreconcilable differences. Thereafter, Billy and Nancy filed a consent agreement. Among the contested issues were identification, valuation, and distribution of the marital assets. Nancy also requested past and future child support, medical expenses, and college expenses for the couple's son. Billy contended that the couple's son was not his natural son, though he had raised him as his son since birth. The chancellor granted Billy and Nancy a divorce based on irreconcilable differences. The chancellor awarded legal and physical custody of the couple's son to Nancy and granted Billy visitation. The chancellor also ordered Billy to provide child support to Nancy. The child support award was based on fourteen percent of Billy’s adjusted gross income. The chancellor further held the college expenses of the son would be borne equally by Billy and Nancy. Nancy was also awarded $10,403.05 for past school expenses, child support, and medical expenses. Billy appeals. |
| Summary of Opinion Analysis: | Issue 1: Irreconcilable differences divorce Section 93-5-2(3) allows parties who desire an irreconcilable differences divorce, but cannot agree on custody, maintenance, or property division, to consent to allow the chancery court to decide the disputed issues. The consent agreement must be in writing and signed by both parties. In addition, the parties must acknowledge that the decision of the court will be a binding and lawful judgment. Section 93-5-2(5) requires withdrawal or cancellation of a party’s original denial or contest before an irreconcilable differences divorce may be granted. Billy argues the chancellor erred in granting an irreconcilable differences divorce because the parties did not withdraw or cancel their former contests or denials, as required by section 93-5-2(5). Where parties file a consent agreement in compliance with section 93-5-2(3), a chancellor may order a divorce on the ground of irreconcilable differences even though the parties did not move to withdraw their contests. In this case, the parties complied with the requirements of subsection (3) and filed a consent agreement prior to trial. Because the parties fully and properly acceded to the procedural strictures of section 95-5-2(3), the safeguards provided by subsection (5) – namely the withdrawal of any contest or denial – were no longer necessary. Issue 2: Visitation Billy argues the chancellor abused his discretion in granting Billy limited visitation with his son. Because the son is now emancipated, this issue is moot. Issue 3: College expenses Billy argues the chancellor erred in requiring him to pay one-half of his son's college expenses. In Mississippi, the duty to send a child to college is not absolute. Rather, it is dependent upon the child’s aptitude for college, the child’s behavior toward and relationship with the parent, and the parent’s ability to pay for the education without affecting his customary lifestyle. The couple's son in this case is presently enrolled in community college in his fourth semester and has attained good grades. The evidence shows Billy had the ability to pay for his son’s college expenses without substantially affecting his customary lifestyle. Prior to the couple’s separation, Billy and his son had a good relationship. The chancellor's findings on this issue is supported by the evidence. Issue 4: Equitable distribution Billy argues that the chancellor’s judgment is unclear as to which assets were subject to equitable distribution and that the chancellor erred by valuing Billy’s retirement as of the date of trial and valuing Nancy’s retirement on the date of separation. The chancellor was faced with the daunting task of untangling assets and allegations which arose over the course of a thirty-year marriage, including a six-year period of separation. The chancellor fully examined each of the Ferguson factors in reaching his determination. In addition, he was confronted with evidence that Billy concealed marital property, had friends and neighbors lie about their ownership of property, and ceased contributing to his retirement account upon his and Nancy’s separation. The chancellor specifically identified the items and value of the marital property, and then directed the disposition of the property. Billy fails to cite any authority to support his argument that the chancellor erred in valuing the retirement accounts at differing times; therefore, this issue is procedurally barred. In addition, the record shows that the chancellor valued the retirement accounts after considering undisputed evidence that upon separation from Nancy, Billy discontinued contributions to his retirement account, while Nancy continued making contributions to her retirement account. Though the chancellor did not commit reversible error in equitably dividing the property, as his calculations were properly based on all marital property, the case is remanded for the limited purpose of correcting the sole clerical error present in his corrected judgment. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
