Henderson v. Henderson


<- Return to Search Results


Docket Number: 2004-CA-01277-COA
Linked Case(s): 2004-CT-01277-SCT ; 2004-CA-01277-COA

Court of Appeals: Opinion Link
Opinion Date: 11-21-2006
Opinion Author: Myers, P.J.
Holding: The motion for rehearing is denied, and the original opinion is withdrawn and the present opinion is substituted in lieu thereof. The judgment of the Chancery Court of Madison County is affirmed.

Additional Case Information: Topic: Divorce - Continuances - Recusal of judge - Custody - Visitation - Child support - Spousal support - Contempt - Attorney’s fees
Judge(s) Concurring: King, C.J., Lee, P.J., Southwick, Irving, Chandler, Griffis, Barnes, Ishee and Roberts, JJ.,
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 05-28-2004
Appealed from: Madison County Chancery Court
Judge: William Joseph Lutz
Case Number: 2002-058

  Party Name: Attorney Name:  
Appellant: James Leslie Henderson








 

Appellee: Stacey Gordon Henderson  

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.

Topic: Divorce - Continuances - Recusal of judge - Custody - Visitation - Child support - Spousal support - Contempt - Attorney’s fees

Summary of the Facts: The motion for rehearing is denied, and this opinion is substituted for the original opinion. After filing an original complaint for divorce, Stacey Henderson filed an amended complaint for divorce from Jim Henderson adding grounds of uncondoned adultery and constructive desertion. The chancellor ruled that Stacey failed to prove any of her grounds for divorce, so that portion of the case was dismissed. After hearing testimony from both parents, the guardian ad litem and other witnesses, the chancellor granted legal and physical custody of both children to Stacey with standard visitation given to Jim. The chancellor also ordered Jim to pay child support in the amount of $2,000 monthly and temporary spousal support in the amount of $1,000. The chancellor held Jim in contempt for past due alimony in the amount of $7,000 and for allowing someone of the opposite sex to spend the night when he had the children in violation of a court order. As a result of this contempt, Jim was ordered to pay Stacey’s attorney’s fees for the contempt proceedings. Jim appeals.

Summary of Opinion Analysis: Issue 1: Continuances Jim argues that he was prejudiced as a result of the chancellor denying his three motions for continuance (when he hired different attorneys). The only time the denial for a continuance will be overturned is when manifest injustice has occurred. This case had been pending for over a year giving Jim ample time to prepare witnesses, and Jim changed attorneys numerous times. The chancellor did not err in denying his motions. Issue 2: Recusal Jim argues that he was entitled to an ore tenus motion for recusal because the chancellor would not allow the results of DNA testing into evidence. Jim had a strand of hair which allegedly came from Stacey’s hairbrush tested for cocaine use. The chancellor’s rulings do not preference either party. The chancellor may have ruled in favor of Stacey in granting her custody of the children, but the chancellor denied Stacey’s petition for divorce stating that she had not proved her grounds. Issue 3: Custody Jim argues that the chancellor did not analyze the Albright factors correctly in determining the best interest of the children. The chancellor went through an analysis of the Albright factors, and did not erroneously apply them in determining the best interests of the children. The chancellor listened to testimony of witnesses including the recommendation of the guardian ad litem. The chancellor committed no error in analyzing these factors and awarding custody of the children to Stacey. Issue 4: Visitation Jim argues that, since the guardian ad litem recommended Jim should have liberal visitation and the chancellor agreed with this recommendation, the chancellor erred in only giving Jim standard visitation with his children. Shifting custody only accommodates the parent and is not in the best interest of the child. Therefore, this issue is without merit. Issue 5: Child support Jim argues that the child support award exceeds the guidelines. The chancellor deducted the amount Jim pays for medical malpractice insurance and determined that his monthly adjusted gross income is $9,370. Twenty percent of that amount is $1,874, and the chancellor ordered Jim to pay $2,000. The chancellor pointed out that Jim is a doctor; therefore, he has the ability to earn more income but he voluntarily chooses not to. After reviewing the record it is obvious that Jim is capable of supporting himself and paying the amount of child support ordered by the chancellor. Issue 6: Spousal support Jim argues that because Stacey has returned to fulltime employment, he should not be required to pay spousal support. There is no error in the chancellor awarding temporary spousal support. The chancellor reviewed the financial situation of both parties and after doing so awarded temporary alimony. Because Jim refused to follow a court order for seven months and pay the support, the chancellor did not err in holding Jim in contempt. Issue 7: Contempt Jim argues that the court erred in holding him in contempt for allowing a woman to spend the night in his home. Because Jim blatantly disregarded a court order, it was not error for the chancellor to hold him in contempt. Issue 8: Attorney’s fees Jim argues that he should not have been held in contempt; therefore, he should not have to pay Stacey’s attorney’s fees. When one party is held in contempt for violating a court order, attorney’s fees should be awarded to the party that has been forced to see the court’s enforcement of its own judgment. Had Jim not failed to pay this alimony in accordance with the court order, Stacey would not have incurred these expenses.


Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court