Phillips v. Phillips
| Docket Number: | 2008-CA-02019-COA Linked Case(s): 2008-CA-02019-COA ; 2008-ct-02019-sct ; 2008-CT-02019-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-06-2010 Opinion Author: Barnes, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Child custody - Section 93-11-65 - Section 93-5-24(2) - Equitable distribution Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Ishee, Roberts and Maxwell, 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: 05-08-2008 Appealed from: Jones County Chancery Court Judge: Franklin C. McKenzie, Jr. Disposition: GRANTED DIVORCE, EQUITABLY DIVIDED THE MARITAL ESTATE, AND AWARDED JOINT PHYSICAL CUSTODY OF THE MINOR CHIL Case Number: 2007-0017 |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | MICHAEL PHILLIPS |
TERRY L. CAVES |
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| Appellee: | SARAH PHILLIPS | SHERRY L. LOWE | ||
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: Irreconcilable differences - Child custody - Section 93-11-65 - Section 93-5-24(2) - Equitable distribution |
| Summary of the Facts: | Michael and Sarah Phillips were awarded a divorce on the ground of irreconcilable differences. Because of the similarity in the parties’ incomes, no child support or alimony was awarded. The chancellor granted the parties joint legal and physical custody of the two minor children, with the parents alternating physical custody on a week-to-week basis. The court determined the value of the Phillipses’ marital property to be $220,000. This figure included the appraisal value of the marital homestead and one acre ($157,500), and the 10.4 acre and five acre tracts of land surrounding the homestead ($62,500). The chancellor ordered Michael to purchase Sarah’s one-half interest in the marital property’s equity, or $55,278.88, within thirty days; otherwise, the parties were to sell the property. The court also awarded Michael one-half of the value, at the time of separation, of Sarah’s 401k retirement account with Wayne Farms, and ordered Michael to reimburse Sarah for one-half of the children’s health and dental insurance premiums, as long as she provided their medical and dental insurance through her employer. Michael filed a motion to reconsider the chancellor’s judgment, for a new trial, or to alter and amend the judgment. The chancellor granted Michael’s request to open the evidence solely on the custody issues, as the court became aware that Michael had contacted the Department of Human Services, alleging Sarah had committed child abuse. Additionally, the court ruled that the $15,000 debt to Michael’s parents was valid, and Sarah would be responsible for half of it. Sarah filed a complaint for citation for contempt, in which she stated that Michael was not requiring the children to obey the custody order. The chancellor considered several options from youth court proceedings to counseling for Shayla and Samantha, and ultimately he recommended family counseling to resolve the conflict. Michael appeals. |
| Summary of Opinion Analysis: | Issue 1: Custody Michael argues that the chancellor failed to make on-the-record findings as to why the older daughter’s preference was not honored and that awarding custody on an alternating basis was not in the best interests of the children. In child custody matters, the polestar consideration is the best interest and welfare of the child. The chancellor found two Albright factors favored Sarah: the age, health and sex of the children and her continuity of care prior to separation. According to the opinion of the court, the chancellor took into account the older daughter’s preference for Michael, and noted the younger daughter was not old enough to testify as to a preference. The other remaining factors were all found to be neutral. Section 93-11-65 was amended in 2006, weakening the power of a child’s preference in custody determination. Before this amendment, a child over the age of twelve had the “privilege” of choosing which parent to live with, as long as both parents were fit and it correlated with the best interest of the child, instead of merely being able to express that preference, as the statute currently reads. The child’s preference is not outcome determinative. Further, the trial court is not obligated to follow the child’s stated preference. The ultimate issue is the best interest of the child. According to his analysis of the Albright factors, the chancellor found more factors favored Sarah than Michael; so the chancellor could have granted Sarah primary legal and physical custody of the children with Michael receiving only weekend visitation. Instead, he granted the parents joint custody. There is no case law based on the current statute where the chancellor’s custodial ruling has been reversed for failure to give a detailed explanation on the record. Section 93-5-24(2) allows the award of joint custody in the case of an irreconcilable differences divorce, at the discretion of the chancellor, “upon application of both parents.” Michael states that neither party requested joint physical custody. However, this is incorrect. It is logical that when both parties consent for the court to determine custody, they fulfill the “application of both parents” requirement of section 93-5-24(2). Therefore, it was proper for the chancellor to consider and award joint custody here, even though Michael did not request it. Issue 2: Equitable distribution Michael argues that the chancellor did not take into account the marital misconduct of Sarah because the chancellor found the marital property should be divided equally. It is true that the chancellor is entitled to weigh marital misconduct as a viable factor in his analysis of the Ferguson factors, but only when the misconduct places a burden on the stability and harmony of the marital and family relationship. Here, there was no open, continuous, and adulterous misconduct which broke up the stability and harmony of the marriage before the parties separated. Thus, there was no error. Michael also argues that he and Sarah had a “pre-separation agreement” initiated because of Sarah’s alleged financial irresponsibility. The chancellor found that Michael anticipated the divorce and had Sarah sign the deeds to put him at an advantage regarding the division of the marital assets. The essence of equitable distribution is the authority of the courts to award property legally owned by one spouse to the other. General principles of fraudulent conveyances apply to pre-divorce transfers of property as well. Due to the timing and circumstance surrounding the transfer of title, Michael’s actions were in anticipation of his divorce. Thus, the chancellor did not abuse his discretion in finding the property at issue remained marital, despite the transfer of title to Michael. Michael argues that the chancellor should have considered the entire $40,000 he claims the parties borrowed from his parents as marital debt, not merely the $15,000 unpaid promissory note. Additionally, he argues the chancellor should have considered the entire $20,000 loan with the Bank of Jones County as a marital debt, not just $12,201.65. Regarding the loan from Michael’s parents, the chancellor was correct in finding that the $15,000 promissory note was a valid debt, and Sarah was responsible for half of it. Indeed, this note was entered into evidence with all parties having executed it. However, Michael made no mention until trial of an additional $25,000 debt owed to his parents. However, Michael did not offer any further evidence regarding this additional debt owed to his parents. Sarah testified that her parents loaned them money as well, but she did not give a specific amount or offer any further evidence. The chancellor did not err in treating the additional $25,000 of alleged debt to Michael’s parents in the same way he treated the alleged debt to Sarah’s parents. With regard to the $20,000 loan, Michael offered no evidence on the exact expenditure of proceeds from this loan. Thus, there is no error in the chancellor attributing $12,201.65 of the debt as marital. |
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