Forthner v. Forthner


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Docket Number: 2009-CA-00916-COA
Linked Case(s): 2009-CA-00916-COA

Court of Appeals: Opinion Link
Opinion Date: 10-19-2010
Opinion Author: King, C.J.
Holding: Affirmed.

Additional Case Information: Topic: Divorce: Habitual cruel and inhuman treatment - Child custody - Separate maintenance - Freedom of religion - Attorney's fees
Judge(s) Concurring: Lee and Myers, P.JJ., Ishee, Roberts and Carlton, JJ.
Dissenting Author : Irving, J., dissents without separate written opinion.
Concur in Part, Concur in Result 1: Barnes, J., concurs in part and in the result without separate written opinion.
Concur in Part, Dissent in Part 1: Griffis, J., concurs in part and dissents in part without separate written opinion.
Concurs in Result Only: Maxwell, J., concurs in result only without separate written opinion.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 03-09-2009
Appealed from: Jasper County Chancery Court
Judge: H. David Clark
Disposition: DENIED THE PETITION FOR DIVORCE, DENIED THE MOTION FOR SEPARATE MAINTENANCE AND AWARDED CUSTODY OF THE CHILDREN TO THE MOTHER
Case Number: 2008-A054

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Desmond Forthner, Sr.




THOMAS L. TULLOS



 
  • Appellant #1 Brief

  • Appellee: LaKenya Bonner Forthner MICHAEL DUANE MITCHELL  

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    Topic: Divorce: Habitual cruel and inhuman treatment - Child custody - Separate maintenance - Freedom of religion - Attorney's fees

    Summary of the Facts: The chancery court denied LaKenya Forthner a divorce on the ground of cruel and inhuman treatment, granted her custody of the minor children, and denied the request of her husband, Desmond Forthner Sr., for separate maintenance. Desmond appeals.

    Summary of Opinion Analysis: Issue 1: Child custody Desmond argues that the chancellor erred in evaluating the Albright factors. The polestar consideration in child custody cases is the best interest and welfare of the child. The chancellor heard the evidence related to custody of the minor children and determined that it was in the best interests of the children that their custody be awarded to LaKenya. The chancellor, in accordance with Albright, conducted an analysis and determined that LaKenya should be awarded custody of the minor children. The chancellor found that while many factors favored both parents equally; the factors of employment and physical health favored LaKenya, while the continuity-of-care factor slightly favored Desmond. Additionally, the chancellor also considered: the more stable environment LaKenya could provide where both of her children would be raised together, the substantial involvement of the maternal grandmother, Desmond’s attitude toward the children and Desmond’s negative behavior regarding the family finances. The chancellor’s determination of custody was fully supported by the substantial evidence in the record. Issue 2: Separate maintenance Desmond argues that the trial court erred in refusing to grant his request for separate maintenance. Separate maintenance is a court-created equitable relief based upon the marriage relationship and is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her until such time as they may be reconciled to each other. Whether the party requesting separate maintenance has engaged in significant conduct that negatively impacted the enjoyment of the marriage contract is a question of fact to be resolved by the chancellor. The record indicates that when the parties married, LaKenya attended a Methodist church, and Desmond attended a Baptist church. After they married, each retained his/her own religious faith. According to Desmond, at some point, he joined a Pentecostal church, which held beliefs significantly different from those of the Baptist church. This difference in religious beliefs became a matter of significant contention between the parties. According to LaKenya, after Desmond joined the Pentecostal church, he became controlling, indicating that things were to be done his way or no way, and constantly stating unless she accepted the tenets of his religion, she was doomed to “hellfire.” According to LaKenya, Desmond’s actions made her feel as if she were merely a piece of property. The chancellor found that the changes in Desmond as a result of his current religious affiliation created marital discord and was a factor in LaKenya’s decision to leave the marital home. This type of conduct may be found as fault sufficient to deny separate maintenance, and as such, the chancellor held that Desmond was not entitled to separate maintenance. The record does in fact contain substantial evidence which supports that finding. Issue 3: Freedom of religion Desmond argues that the chancellor’s custody determination and denial of separate maintenance is a violation of his constitutional right to freedom of religion. The chancellor was careful to point out that Desmond had the right to practice any religion, and the court found no fault in Desmond’s religious beliefs. Stating an opinion regarding a party’s religious practices is not sufficient to prove bias, or a constitutional violation, without further supporting evidence. The record simply does not support the contention that the chancellor’s decision regarding the issues of custody and separate maintenance were in any way influenced by Desmond’s religion. Issue 4: Attorney’s fees Desmond argues the chancellor erred in failing to grant his request for attorney’s fees. Generally, attorney’s fees are not awarded unless the party requesting such fees has demonstrated an inability to pay. However, attorney’s fees may also be properly awarded where one party’s actions have caused the opposing party to incur additional legal fees. As neither party prevailed on all issues, there is no suggestion that one party caused the other to incur additional legal fees. Furthermore, Desmond failed to present any evidence concerning the amount of attorney’s fees accrued or his inability to pay.


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