Cuccia v. Cuccia
| Docket Number: | 2010-CA-00083-COA Linked Case(s): 2010-CA-00083-COA2010-CT-00083-SCT2010-CT-00083-SCT |
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| Oral Argument: | 02-22-2011 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-14-2011 Opinion Author: Ishee, J. Holding: Affirmed in part, reversed and rendered in part, remanded |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Child custody - Division of marital property - Rehabilitative alimony Judge(s) Concurring: Lee, C.J., Griffis, P.J., Myers and Barnes, JJ. Non Participating Judge(s): Irving, P.J., and Russell, J. Concur in Part, Concur in Result 1: Roberts and Maxwell, JJ. Concurs in Result Only: Carlton, J. Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 10-16-2009 Appealed from: DESOTO COUNTY CHANCERY COURT Judge: Percy L. Lynchard, Jr. Disposition: DIVORCE ENTERED, CUSTODY AWARDED TO MOTHER AND CHILD SUPPORT AND REHABILITATIVE ALIMONY AWARDED Case Number: 08-01-0191 |
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| Note: | On June 28, 2012, the Supreme Court remanded the case after affirming the Court of Appeals in part and reversing in part and reversing the chancery court. The Supreme Court opinion can be found at http://courts.ms.gov/Images/Opinions/CO77325.pdf . | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Anthony Joseph Cuccia |
JERRY WESLEY HISAW, RACHAEL EMILY PUTNAM |
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| Appellee: | Julie Anne (Reavy ) Cuccia | JOY W. GRAVES, CHARLES E. WINFIELD | ||
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| Topic: | Divorce: Irreconcilable differences - Child custody - Division of marital property - Rehabilitative alimony |
| Summary of the Facts: | Tony Cuccia and Julie Anne Cuccia were granted a divorce based on irreconcilable differences. The chancery court awarded Julie Anne sole custody of the Cuccias’ two children, subject to standard visitation rights granted to Tony. The chancery court concluded that Tony’s bonus he had received at work after the Cuccias’ separation was marital property and ordered Tony to pay Julie Anne half of the bonus. The chancery court further determined that a residence purchased by Julie Anne post separation but acquired with and paid for, in part, by Tony’s temporary support payments, was Julie Anne’s separate property. Additionally, acreage owned by Tony and Julie Anne, as well as Tony’s parents, was determined to be marital property. The chancery court awarded the parties’ interest in the property to Tony and ordered him to pay Julie Anne one half of the value of the parties’ interest in the property. After assessing the parties’ fiscal conditions and the marital estate, the chancery court also ordered Tony to pay Julie Anne $2,000 a month in alimony for forty-eight months. Tony appeals. |
| Summary of Opinion Analysis: | Issue 1: Child custody Tony argues that the chancery court erred in granting Julie Anne sole legal and physical custody. Tony also argues that the chancery court committed manifest error in reducing Tony’s visitation rights from those granted in the temporary order to more restricted visitation rights under the standard Farese Visitation Schedule. The polestar consideration in child custody cases is the best interest and welfare of the child. The Albright factors are considered in making that determination. In this case, several of the chancery court’s conclusions and the court’s overall decision is manifestly wrong. The chancery court found that the three factors of “continuity of care,” “best parenting skills,” and “willingness to provide primary childcare” favored Julie Anne and that the remaining factors favored neither party. Regarding “continuity of care,” the chancery court failed to point out that Tony obtained sole custody of the children for several weeks in early 2008, and from March 2008 until October 2009 — over a year and a half — the parties shared joint legal and physical custody of the children. The stability and continuity of a child’s home environment between the time of the parents’ separation and the entry of divorce is an important consideration when determining custody. Additionally, the record also indicates that Tony took an active role in the children’s lives prior to the separation. It appears that Tony continues to participate in his children’s lives to the extent possible given his custodial restrictions. Due to Tony’s active role in the children’s lives before, during, and after the parties’ separation, the factor of “continuity of care” does not favor either party. The chancery court further determined that Julie Anne exhibited the best parenting skills due to the same reasoning the chancery court used in concluding that Julie Anne would provide better continuity of care. However, the record shows that neither party exhibits better parenting skills than the other. The chancery court found that Julie Anne exhibited more of a willingness to provide primary childcare to the children. However, to hold that the accomplishments of the parties’ children are the result of Julie Anne’s efforts alone is a misstatement. The chancery court referenced the fact that Tony voluntarily consented to joint custody of his children with Julie Anne as evidence that Julie Anne was willing and able to care for the children. Under such reasoning, Julie Anne likewise agreed to joint custody with Tony and, therefore, provided evidence as to Tony’s willingness and ability to care for the children. Nonetheless, a parent’s desire to allow his child the opportunity to enjoy the presence of both parents in the child’s life should not later be used against the parent to support a theory that the parent is unwilling to care for the child. A review of the record supports Tony’s willingness to be a primary caregiver to his children. His job-flexibility is favorable, and he has expressed an unequivocal desire to care for his children. The factor of “willingness to provide primary childcare” favors neither party. In reference to the Albright factor of “stability of the home environment,” the chancery court stated that “[a]lthough the mother’s home prior to and immediately following the separation of the parties showed evidence of lack of care and cleanliness, after investigation by the Department of Human Services [(DHS)], it was found to be appropriate for the children.” This is blatantly incorrect. Counsel for both parties admitted on the record that an investigation by DHS was never completed due to confusion as to Julie Anne’s proper address. Furthermore, regarding Tony’s parental involvement, the record indicates that after the parties’ separation, Tony took an active, primary role in the children’s health. The record shows that prior to Tony’s taking the children to the doctor, neither child had been to see a doctor for a physical wellness checkup in approximately four years. While Julie Anne’s self-employment and role in the children’s lives prior to the parties’ separation support her adequacy as a parent, a thorough review of the record presents serious questions as to the safety of the Cuccias’ children at Julie Anne’s residence due to the unrestricted presence of numerous dogs on the property and in the residence. The chancery court’s original temporary order was a proper adjudication of the issues. Accordingly, the chancery court’s final order regarding custody of the parties’ children is reversed and joint legal and physical custody of the children to Tony and Julie Anne is rendered. On remand, the chancery court must determine the specifics of each party’s physical custody time-divisions, including weekly schedules as well as special occasions and vacations. Issue 2: Marital property Tony argues that the chancery court erred in classifying a work bonus he received in July 2008 as marital property because it was received outside of the marriage and was used to pay marital debt. Tony also notes that the chancery court failed to address the parties’ marital debt anywhere in its order. Tony further argues that the court incorrectly classified a residence purchased by Julie Anne after the parties’ separation as her separate property because it was obtained and paid for, at least in part, by Tony’s temporary support payments. In dividing property, a chancery court must first determine which assets are marital property and, therefore, subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage. Tony received a bonus of approximately $43,460 as a result of his company’s exceptional performance. The record indicates that the bonus was not the result of Tony’s individual efforts or any specific work done by Tony during the marriage. Rather, the bonus was received outside of the marriage for reasons independent of Tony’s doing. Hence, it would appear at the outset that the bonus was improperly classified as marital property. However, a party’s separate assets are considered part of the marital estate when commingled for the use of the family. Tony testified that he used the bonus money to pay off some of the parties’ marital debt, as he had historically done in years past. In doing so, Tony commingled the funds and made his bonus money subject to the marital estate. Nonetheless, because the funds were used to pay off marital debt — including but not limited to the mortgage on the marital residence and the children’s tuition — Tony should not have been forced to somehow regain that amount and place it into a trust for division in the marital estate. Additionally, the chancery court failed to consider the parties’ marital debt in its analysis and conclusions. The debt in question was enough to warrant Tony’s historical practice of using his bonus money, most recently an amount in excess of $40,000, to pay off marital debt each year. This issue must also be remanded. With regard to the residence Julie Anne purchased for herself and the parties’ children after the sale of the marital residence, it is clear that Julie Anne commingled much of the $3,750 a month that Tony paid to her in temporary support in order to acquire the loan and pay her monthly mortgage. The chancery court’s classification of Tony’s bonus money paid toward marital debt as marital property and Julie Anne’s residence obtained by and paid for in large part by Tony’s temporary support payments as separate property is conflicting, and this issue is remanded for reexamination. Issue 3: Property Tony argues that the chancery court erred in its award to Julie Anne of the monetary equivalent of one-half interest of acreage located in Tennessee. The property in question constitutes approximately one hundred acres of undeveloped woodland. Several years prior to the divorce proceedings, the land was deeded with joint ownership and rights of survivorship between Tony, Julie Anne, and Tony’s parents. The chancery court properly classified the acreage as marital property. The record indicates that at least two appraisals were performed, but one of the initial appraisals was completed on the wrong property. The appraisal used by Tony valued the property at approximately $70,000 in 2009 with approximately $33,900 in mortgage debt, allowing net equity on the property in the amount of approximately $36,100. The appraisal used by Julie Anne totaled approximately $125,000 in 2009 with no mention of mortgage debt. In the chancery court’s order, the court listed the property’s net equity as to Tony and Julie Anne’s interest in the property at $45,237. The chancery court further noted that the appraiser used by the court had been agreed upon by both parties. However, the chancery court did not explain the specifics of the appraisal used or the amount of debt held on the property. The chancery court was not manifestly wrong in its analysis. The chancery court merely utilized figures given to it by an appraiser who the parties had previously agreed to use. Issue 4: Rehabilitative alimony Tony argues that the chancery court erred in awarding rehabilitative alimony to Julie Anne in the amount of $2,000 a month for forty-eight months. Tony argues that his monthly expenses are too great for him to meet all of his required payments for himself, his children, and Julie Anne. A glance at Tony’s monthly monetary responsibilities reflects numerous expenses including various types of insurance for himself and his children; loan payments based on his replacement of the 2008 bonus money used to pay off marital debt; tuition payments for his children; child support; alimony; and personal expenses such as rent, utilities, food, gas, and car payments. Given Julie Anne’s awards to date, her personal income, and Tony’s cumbersome monthly obligations, the chancery court’s award of alimony was manifestly erroneous. |
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