Seghini v. Seghini
| Docket Number: | 2009-CA-00833-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-17-2010 Opinion Author: Myers, P.J. Holding: Affirmed in part, vacated and remanded in part. |
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| Additional Case Information: |
Topic: Divorce: Adultery - Amount of income - Child support - Section 43-19-101(1) - Equitable distribution of property - M.R.C.P. 60(b)(1) - Contempt Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 10-02-2008 Appealed from: SIMPSON COUNTY CHANCERY COURT Judge: Joe Dale Walker Disposition: DIVORCE GRANTED; CHILD CUSTODY, SUPPORT, AND VISITATION AWARDED; ALIMONY AWARDED; AND MARITAL ESTATE AND DEBTS DISTRIBUTED Case Number: 2007-0301-P2 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Christopher Paul Seghini |
CHRISTOPHER DOUGLAS HENNIS |
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| Appellee: | Kristy Lee Sullivan Seghini | W. TERRELL STUBBS | ||
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 - Amount of income - Child support - Section 43-19-101(1) - Equitable distribution of property - M.R.C.P. 60(b)(1) - Contempt |
| Summary of the Facts: | Kristy Seghini filed a complaint for divorce for adultery from Christopher Seghini. Chris admitted his adultery. The only significant factual dispute at the divorce trial was Chris’s income as a self-employed carpenter. Chris had reported take-home income of approximately $2,400 per month, but Kristy alleged that he made significantly more. Chris testified that he did not know how much money he made, but he admitted that it was more than he had reported on his 8.05 statement. The court awarded Kristy a divorce. The court awarded Kristy custody of the children and ordered Chris to pay $500 per month in child support. Chris was granted standard visitation with the children. Both parties were awarded the marital property currently in their possession, and Chris was ordered to pay all the marital debt – about $30,000 – except for Kristy’s credit card. Chris also was ordered to pay for the insurance on Kristy’s vehicle, and each of the parties was to maintain life insurance on the other. Chris appeals. |
| Summary of Opinion Analysis: | Issue 1: Income Chris argues that the chancellor’s awards for child support and alimony cannot stand on appeal without a specific finding of Chris’s adjusted gross income. He also argues that the chancery court erred in its analysis of several Armstrong factors. A chancellor's deviation from the Mississippi child support guidelines must be supported by an on the record finding that said deviation is warranted. For two children, section 43-19-101(1) sets child support at twenty percent of the payor’s adjusted gross income. Here, the chancellor did not make a finding that deviation from the guidelines was warranted. It’s difficult to reconcile the support amount with the alimony awarded, which suggests a greater income disparity between the parties. At the time of the divorce, Kristy earned approximately $2,040 per month, or about $1,800 after taxes. The remaining factors cannot support the alimony awarded by themselves. The marriage, at eight years, was not particularly long, and Kristy – twenty-nine years of age at the time of the divorce – worked full time as an LPN. And while it is undisputed that Kristy had undergone heart surgery some time during the marriage, there was no evidence offered that Kristy suffered from continuing health problems or that she would incur the future difficulties or medical expenses that the chancellor had sought to protect against with the alimony award. The chancellor likewise did not directly address Chris’s ability to pay and still provide for his own basic expenses. Without an express finding of fact as to the payor’s income, it cannot be said that the child support guidelines were either followed or not followed. Both issues of child support and alimony are vacated and remanded. Issue 2: Property division Chris argues that the chancellor erred in not making express findings of fact regarding the Ferguson factors and in failing to consider money received from the foreclosure sale of the marital home. The chancellor ordered that the parties would receive the property currently in their possession. It was specifically ordered that Kristy would receive the remaining contents of the marital home, her vehicle, and an ATV; Chris would receive his primary automobile (a late-model Ford truck used in his business, a net liability), two older automobiles, and a motorcycle. This appears to track the parties’ own distribution of the assets after separation. Regarding Chris’s allegations that the marital estate should have also included significant funds received by Kristy as part of the excess bid on the marital home from the foreclosure sale, Chris simply failed to develop this issue at trial. No testimony was elicited as to what was received or whether any of this sum remained at the time of the divorce. The chancellor cannot be held in error for not considering an asset if its present disposition or even its very existence was not established at trial. Chris alleges that Kristy deliberately misrepresented the status of the home and argues that the chancellor abused his discretion in failing to grant the post-trial motion for relief from the judgment under M.R.C.P. 60(b)(1). Among the findings necessary to support granting relief is that, a trial court must find both that a witness intended to misrepresent some fact in order to influence the decision by the finder of fact, and that the finder of fact did rely upon the misrepresentation in its decision. This argument fails because the trial court was aware of the foreclosure at trial, before it made its ruling. Chris’s complaint on appeal is actually centered around the consequences of the late disclosure – he argues that he was effectively precluded from cross-examining Kristy about the foreclosure and the money she should have received from the sale. But the fact is that Chris made no attempt to further question Kristy at trial. He made no motion to reopen the evidence or for a continuance, no proffer, and, indeed, no objection of any sort after Kristy’s attorney revealed the foreclosure. Issue 3: Contempt After the divorce, Chris failed to pay numerous awards under the divorce decree – including all of the alimony payments and all but one of the monthly payments to Kristy’s grandfather. He had, however, stayed current on the child support and had paid off Kristy’s automobile. At the hearing, Chris stated that he was unable to pay all of his obligations because work had been slow and he could not find other employment. Chris stated that he had earned only about $6,600 since the beginning of 2009. He offered an incomplete amended tax return from 2008 and a ledger from his business to support his defense. Chris now argues that the chancellor erred in not accepting his defense that he was genuinely unable to pay. The defendant has the burden of proving his inability to pay and must make such showing with particularity and not in general terms. Here, Chris’s claims of an inability to pay lacked independent corroboration. Chris prepared both the tax return and the business ledger, the only evidence he offered suggesting an inability to pay. Testimony at the divorce trial indicated that Chris was often paid in cash, and his prior statements regarding his income had lacked candor, at best. Chris had been paying a significant amount under the temporary order. But after the divorce, he immediately began paying less, suggesting an unwillingness rather than an inability to pay. Thus, there was no abuse of discretion. |
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