Wilson v. Wilson
| Docket Number: | 2009-CA-01910-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 02-08-2011 Opinion Author: Roberts, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Child custody - Property settlement agreement - Section 93-5-2(2) - M.R.E. 408 Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Carlton and Maxwell, JJ. Concurs in Result Only: King, C.J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 08-11-2009 Appealed from: DESOTO COUNTY CHANCERY COURT Judge: MITCHELL M. LUNDY, JR. Disposition: CHILD CUSTODY AWARDED TO FATHER, FATHER AWARDED MARITAL HOME, AND FATHER REQUIRED TO PAY ALL GUARDIAN AD LITEM FEES Case Number: 07-09-1831 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Tara Wilson |
DAVID L. WALKER |
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| Appellee: | Kelly Don Wilson | ELIZABETH PAIGE WILLIAMS | ||
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 - Property settlement agreement - Section 93-5-2(2) - M.R.E. 408 |
| Summary of the Facts: | The chancellor granted Kelly Don Wilson (Wilson) and Tara Wilson a divorce on the ground of irreconcilable differences. The chancellor awarded full custody of the couple’s child to Wilson. The chancellor did not award Tara any alimony, and she was not required to pay child support. The couple had previously entered into a property-settlement agreement, which was found to be a binding contract between the parties as to the property-division portion. The court enforced the property-division portion of their agreement giving Wilson sole ownership of the home and removing Tara’s ownership and equity interest in the property. The chancery court ordered Wilson to pay all the GAL’s fees incurred as a result of the divorce. Tara appeals. |
| Summary of Opinion Analysis: | Issue 1: Custody In awarding custody, the polestar consideration is the best interest of the child. Tara argues that the chancellor did not properly consider the Albright factors when awarding custody of their child to Wilson. The divorce judgment entered by the chancellor makes clear that the Albright factors were considered when coming to the decision regarding custody. The chancellor listed which factors favored Wilson, found that none favored Tara, and found which factors were neutral as to Wilson or Tara. There is substantial evidence to support the chancellor’s assessment of the Albright factors and the award of child custody to Wilson. Issue 2: Property settlement agreement Wilson and Tara entered into a property-settlement agreement containing several provisions, including provisions regarding disposition of the marital home, child custody, and visitation. The agreement was signed by both parties in the courthouse, in the presence of their lawyers, and with a chancellor available for a hearing. Based on this agreement, the chancellor found that it was an enforceable contract as to the property-division portion, and pursuant to the agreement, the chancellor awarded Wilson the marital home and stripped Tara of all interest and equity in the home. Tara argues that she was under duress when she signed the agreement because she had not had access to her child in more than three months. She also argues that the agreement is void because the chancellor never found the agreement to be “adequate and sufficient” which is required under section 93-5-2(2). A property-settlement agreement is a binding contract between the parties. Once the agreement is incorporated into the judgment, they are not modifiable absent fraud, duress, or a contract provision allowing for modification. However, there are instances, as in the current case, in which the agreement is not made subject to the approval of the chancery court and is not incorporated into the judgment. In these instances, all of the provisions, except those pertaining to spousal support, child support, and child custody retain their contractual nature and are not subject to modification. Since property-settlement agreements are considered contractual, it follows that contract defenses are available to parties. Duress may be found when the dominant party uses threats to overpower the will of the other and must in fact deprive the other to act to his detriment. It does not appear that Tara was under duress when she signed the property-settlement agreement. She was in the presence of her own attorney, his advice was readily available to her, and she was told that a chancellor would hold a hearing the same day if the parties wished. Tara also argues that the chancellor erred in admitting the property-settlement agreement into evidence as an exhibit over her objection that it violated M.R.E. 408. Since this property settlement agreement is a binding contract between the parties concerning an agreed equitable division of their marital property, it is not a settlement or an offer to settle. Thus, Rule 408 is not applicable. |
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