Craft v. Craft
| Docket Number: | 2009-CA-00204-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-20-2010 Opinion Author: Myers, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Adultery - Visitation - Alimony - Contempt - Attorney's fees Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, 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: 01-06-2009 Appealed from: Jones County Chancery Court Judge: Franklin C. McKenzie, Jr. Disposition: CHILD CUSTODY AWARDED TO WIFE, WITH HUSBAND RECEIVING SUPERVISED VISITATION; WIFE AWARDED ALIMONY AND ATTORNEY’S FEES Case Number: 2005-0032E |
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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: | Timothy Sean Craft |
TERRY L. CAVES |
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| Appellee: | Donna Gayle Cooper Craft | PRO SE, HARRY RAY LANE | ||
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 - Visitation - Alimony - Contempt - Attorney's fees |
| Summary of the Facts: | Donna Craft filed for divorce from Tim Craft, in the Forrest County Chancery Court, alleging habitual cruel and inhuman treatment, adultery, and, in the alternative, irreconcilable differences. Tim filed for divorce in Jones County, alleging habitual cruel and inhuman treatment, adultery, and, in the alternative, irreconcilable differences. Donna’s complaint was dismissed for lack of subject-matter jurisdiction. She then timely filed an answer to Tim’s complaint, and she counterclaimed for divorce and filed a motion for temporary relief, alleging the same grounds asserted in her initial complaint. The chancery court entered a final judgment, granting Donna a divorce on the ground of adultery, with all other matters (custody and visitation, child support, alimony, and attorney’s fees) to be taken under advisement. In its final judgment, the court granted Donna primary physical custody of the minor children. The court ordered that Tim shall continue to have supervised visitation with the children at DHS in Jones County each Friday from 3:30 p.m. until 5:00 p.m. The court ordered Tim to pay Donna $243 per month in child support and one-half of all health-related expenses. Donna was awarded $100 per month in permanent periodic alimony and $17,859 in attorney’s fees, in addition to the $4,438 amount previously ordered in attorney’s fees. Tim appeals. |
| Summary of Opinion Analysis: | Issue 1: Visitation Tim argues that the chancery court’s imposition of a visitation period restricted to one day a week for one-and-a half hours was manifest error and an abuse of discretion in light of undisputed testimony that he is a good father and has never created any apprehension of harm toward his children. When determining visitation, the best interest of the child is the main concern, keeping in mind the rights of the non-custodial parent and the objective that parent and child should have as close and loving relationship as possible, despite the fact that they may not live in the same house. There is no indication in the record that Tim and Donna’s three minor children have ever been subjected to physical harm while in Tim’s care. As noted in the facts, coinciding with this case, was a serious criminal matter in which Tim, to whatever extent, was involved. Mindful of the potentiality of Tim having to defend himself in a criminal proceeding, the chancellor exercised caution throughout this case to ensure that Tim’s constitutional rights were safe guarded, while simultaneously carrying out the responsibilities ascribed to him and his court. Not surprisingly, Tim often refused to answer questions touching on the criminal matter. Tim still managed to get numerous innuendos into the record, despite his Fifth Amendment invocations, obviously, for the purpose of insinuating that his troubles in the criminal matter were the result of some sort of scheme orchestrated by Donna. The chancellor did not believe any of it, and the record fully supports the chancellor’s conclusion. What clearly caused concern for the chancellor, however, was the likelihood of Tim having involved the children–wittingly or not–in his transparent case against Donna. The chancellor properly took into consideration the children’s best interests in his decision, leaving open the possibility that Tim may be granted some form of unsupervised visitation with his children in the future. There was no error with his decision to restrict Tim’s visitation to one day a week for one-and-a half hours at DHS. Issue 2: Alimony Tim argues that he is unable to determine how the chancellor arrived at an alimony award of $100 per month. According to the record, the family had a reasonably comfortable middle-class standard of living during the course of the fifteen-year marriage, with Tim making upwards of $87,000 per year as an industrial engineer. The parties bought a house, and Donna was able to be a stay-at-home mother. Both parties were in good health–Tim, in his early forties, and Donna, in her mid-thirties. Tim has a bachelor of science degree in mechanical engineering and technology, with two years of graduate-school studies. Donna has three years of college experience, with no degree. As he reiterated throughout the case, Tim has much more earning capacity than Donna, who has been struggling to pay bills and to feed their three children. Donna now works as an administrative assistant and makes approximately $1,400 per month. The record reflects that both parties have significant debts, with no significant assets. Through no one’s fault but his own, Tim was terminated from BJ Services, and he is now working as a truck driver, with a net monthly pay of $1,000 per month. Accordingly, there was no abuse of discretion in the chancellor’s decision to award Donna $100 per month in permanent periodic alimony. Issue 3: Contempt Tim argues that Donna interfered with his visitation rights. But, the only evidence contained in the record corroborating Tim’s claims is his testimony, which the chancellor found to be less than credible. In each of Tim’s contempt claims, the chancellor determined that Donna had not deliberately ignored the court’s order. The record supports the chancellor’s findings. Issue 4: Attorney’s fees Tim argues that the chancellor erred in awarding Donna, $22,297 in attorney’s fees. This case has spanned more than four years. Even though the divorce claim itself was resolved in short order, the custody matter was both lengthy and trying. The amount charged per hour was standard, and the time put in was justified. While Tim currently claims to be in dire financial straits, he has nonetheless found the means necessary to force Donna into court to defend herself against a number of meritless contempt motions. And although Donna has already paid more than half of the fees, she has had to borrow the funds to do so. Accordingly, there is no abuse of discretion in the chancellor’s decision to award Donna attorney’s fees in the amount so ordered. |
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