Brooks v. Brooks


<- Return to Search Results


Docket Number: 2010-CA-00416-COA

Court of Appeals: Opinion Link
Opinion Date: 12-13-2011
Opinion Author: Lee, C.J.
Holding: Affirmed as modified

Additional Case Information: Topic: Divorce: Adultery - Child support - Section 43-19-101(1) - Equitable division - Rehabilitative alimony - Attorney’s fees - Visitation
Judge(s) Concurring: Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton, Maxwell and Russell, JJ.
Non Participating Judge(s): Myers, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 02-03-2010
Appealed from: Jones County Chancery Court
Judge: Lawrence "Larry" Primeaux
Disposition: GRANTED DIVORC E ON GROUND OF ADULTERY AND DIVIDED THE MARITAL ESTATE AND DEBTS AND AWARDED CHILD SUPPORT AND VISITATION
Case Number: 2009-0092-E

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Brandon L. Brooks




WILLIAM MATTHEW THOMPSON



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: Dawn Jackson Brooks RENEE M. PORTER  

    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: Adultery - Child support - Section 43-19-101(1) - Equitable division - Rehabilitative alimony - Attorney’s fees - Visitation

    Summary of the Facts: Brandon Brooks and Dawn Brooks were granted a divorce on the ground of adultery. Dawn was awarded custody of the couple’s four children, and Brandon was awarded visitation. Dawn was also awarded the exclusive use of the marital residence until the youngest child turns eighteen years old. Brandon was ordered to pay the mortgage on the house, rehabilitative alimony, child support, and the outstanding medical bills associated with the births of the children. Brandon appeals.

    Summary of Opinion Analysis: Issue 1: Child support The chancellor ordered Brandon to pay $958 per month in child support based on his monthly adjusted gross income of $3,686.84. In doing so, the chancellor stated: “Neither party has rebutted the presumption that the statutory child support guidelines are applicable in this case. The percentage of statutory guideline child support for four children is 26%.” The percentage stated by the chancellor is incorrect. Pursuant to section 43-19-101(1), the statutorily recommended child support for four children is 24% of adjusted gross income. But it is apparent from the record that the child-support award of 26% was a clerical error. The chancellor did not make a finding that the statutory guidelines were inappropriate. Thus, this aspect of the chancellor’s judgment is affirmed but modified. Applying the statutorily recommended amount of 24% for four children to Brandon’s adjusted gross income of $3,686.84, the correct amount of child support is $885. In addition to the incorrect percentage being applied, Brandon argues that the chancellor based child support on an incorrect amount of income. The chancellor found Brandon’s monthly adjusted gross income to be $3,686.84. Brandon argues that he correctly reported his adjusted gross income of $3,320 on his Rule 8.05 financial statement. After considering the evidence, the chancellor found Brandon had understated his income in 2007 by approximately $30,000. As for Brandon’s argument that the chancellor weighed his 2007 income too heavily, Brandon failed to provide income tax returns for 2008 and 2009. The chancellor properly relied on the evidence presented. Brandon argues that the chancellor converted the mortgage payments into additional child support by ordering that he pay the mortgage until the youngest child turned eighteen years old. The mortgage payment was not a form of additional child support. The award in the chancellor’s order was given under the heading, “Equitable Distribution,” and it was ordered after a discussion of the Ferguson factors. Since the mortgage payment was part of the equitable distribution of the assets and Brandon will receive a portion of the equity back when the house is sold, the house payment is not the equivalent of child support. Issue 2: Equitable division Brandon argues the chancellor failed to take the couple’s liabilities into account when dividing the marital property. Brandon also argues the chancellor sought to punish him through the property division for having an affair. The chancellor found that although both parties contributed to the marital and family relationships, Brandon ultimately destabilized the marital and family relationships through his affair and attempts to place blame on Dawn. The chancellor appropriately considered the affair, and there is no evidence that the chancellor weighed it too heavily in dividing the property. Brandon argues he will suffer severe tax consequences if the mortgage payments are deemed to be child support. However, the mortgage payments are not part of child support. Brandon argues the chancellor’s findings left him with insufficient funds to support himself. He argues Dawn does not need to rely heavily on him for financial support because she has a college degree and can work. The parties agree it is not feasible for Dawn to return to her part-time job in Brandon’s law office given the divorce and the presence of his paramour in the office. The chancellor found Dawn was afforded great flexibility while working in Brandon’s law office, and it is unlikely she would find another job that allows such flexibility. Brandon contends that his mother could keep the children while Dawn works. However, there was no testimony that Brandon’s mother was willing or able to do so. Issue 3: Alimony The chancellor ordered Brandon to pay $325 per month in rehabilitative alimony from March 1, 2010, until December 31, 2013. Brandon argues that he is unable to pay this amount. He also argues rehabilitative alimony is unnecessary as Dawn is able to work. Rehabilitative periodic alimony is an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim. The chancellor should also consider the reasonable needs of the wife and the right of the husband to lead as normal a life as possible with a decent standard of living. The chancellor found that Dawn could not meet her expenses without assistance from Brandon. Even working part time, she would not be able to meet her obligations. Further, the chancellor correctly found that Brandon failed to show evidence that he was unable to pay alimony. Issue 4: Attorney’s fees Brandon was ordered to pay Dawn’s attorney’s fees of $3,498 plus interest of 6% per annum, payable at $150 per month. Brandon argues that he is unable to pay Dawn’s attorney’s fees and that Dawn was capable of paying her own attorney’s fees. At the time of the hearing, Dawn had been unable to make any payments toward her attorney’s fees. This issue is without merit. Issue 5: Visitation Brandon argues the visitation schedule set by the chancellor unnecessarily restricts his visitation with the children. The chancellor’s opinion adopts the temporary order setting visitation, which states that Brandon should have the children the first, second, and third weekends of each month. He also has visitation on alternating holidays, half of the summer and spring breaks, and any other reasonable time agreed to by the parties. Dawn and her mother testified Brandon was a good father. However, several incidents occurred during the marriage that raised concerns. Dawn testified Brandon kicked in the door of the marital home on several occasions. She testified that on one occasion after kicking in the door, he pulled out a gun. Brandon was charged with driving under the influence in 2009. Dawn testified that Brandon drove with the children in the car while his driver’s license was suspended. Dawn testified Brandon left the children with others to take trips to the Mississippi Gulf Coast and to go to a Halloween party. Also, Brandon admitted he had allowed his girlfriend to be present while he had visitation with the children. He admitted this was inappropriate. The chancellor is charged with fashioning a visitation schedule that is in the best interests of the children. Here, the visitation schedule set by the chancellor is not unnecessarily restrictive. The chancellor considered the best interests of the children in setting visitation.


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