Watts v. Watts
| Docket Number: | 2010-CA-00613-COA Linked Case(s): 2010-CA-00613-COA ; 2010-CT-00613-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-24-2012 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Albright factors - Child custody - Joint custody - Alimony - Attorney’s fees - Admission of evidence - Post-trial motions - M.R.C.P. 59(a) - M.R.C.P. 60(b)(3) Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts and Maxwell, JJ. Concurs in Result Only: Fair, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 03-11-2010 Appealed from: Harrison County Chancery Court Judge: Carter Bise Disposition: JOINT CUSTODY OF CHILD AWARDED; ALIMONY AWARDED TO WIFE; ATTORNEY’S FEES ASSESSED AGAINST HUSBAND Case Number: 08-01816-4 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Thomas Dale Watts |
GAIL D. NICHOLSON
MICHAEL B. HOLLEMAN
CHESTER D. NICHOLSON |
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| Appellee: | Kimberly J. Watts | DEAN HOLLEMAN | ||
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 - Albright factors - Child custody - Joint custody - Alimony - Attorney’s fees - Admission of evidence - Post-trial motions - M.R.C.P. 59(a) - M.R.C.P. 60(b)(3) |
| Summary of the Facts: | Thomas Watts filed for a divorce from his wife, Kimberly Watts. The chancellor granted the parties an irreconcilable-differences divorce. The chancellor awarded Kimberly one-half of the marital assets, and he also awarded attorney’s fees to Kimberly. The chancellor awarded the parties joint physical and legal custody of the parties’ minor son. Thomas appeals. |
| Summary of Opinion Analysis: | Issue 1: Albright factors Thomas argues that the chancellor abused his discretion regarding his findings and application of the Albright factors. Where the chancellor improperly considers and applies the Albright factors, an appellate court is obliged to find the chancellor in error. In all child-custody cases the polestar consideration shall remain the best interest and welfare of the child. The record shows that the chancellor found the factor of age favored neither parents, since the couple’s son was twelve-years old at the time of the trial. After examining the following factors, the chancellor found these factors favored neither party: health of the child; age of the parents; willingness and ability to provide care; continuity of care; home, school, and community record. Thomas argues the chancellor abused his discretion by failing to find that the factors of willingness and ability to provide care and the son’s home, school, and community record favored Thomas. According to Thomas, there was overwhelming testimony presented that showed Thomas’s involvement in school and extracurricular activities. Thomas points out that the chancellor possessed awareness that, due to her work schedule, Kimberly is not able to participate in their son’s school and extracurricular activities to the extent that Thomas participates. Noting that both parents exhibited a willingness and ability to provide care, albeit with differing work-schedule demands, the chancellor did not commit manifest error in determining that this factor favored neither parent. Regarding the health of the parents, the chancellor noted that Kimberly suffers from ankylosing spondylitis and reactive arthritis, and she had been diagnosed with certain mental and emotional tendencies, for which she received treatment. The chancellor acknowledged that the evidence demonstrated Thomas suffered from a drug addiction. Thus, the chancellor found the health-of-the-parents factor ultimately favored Kimberly. Thomas argues that this finding was an abuse of the chancellor’s discretion and constitutes manifest error, because the chancellor’s post-trial finding, that neither doctor found that Kimberly possessed any mental illness that would prevent her from exercising custody or unrestricted visitation, is inaccurate. Thomas cites to Dr. Miller’s testimony, where he stated if Kimberly had continued to act inappropriately, he would not have recommended that she have custody. The record shows that the chancellor possessed awareness that both parties used alcohol. The record also shows that Thomas previously suffered a relapse of his prescription drug abuse. Additionally, Dr. Miller explained, although Kimberly had acted inappropriately in the past due to marital stress and the death of her father, she had changed emotionally. Thus, the chancellor did not commit manifest error in finding that the factor of health of the parents favored Kimberly. In examining the factor of continuity of care, the chancellor found that both parents shared the responsibility of raising their son. The chancellor also acknowledged that the son desired to live with Thomas. Thomas argues that the chancellor minimized the evidence favorable to Thomas in finding that the factor of continuity of care favored neither parent. The record supports the chancellor’s determination that both parents shared the responsibility of raising Trevor. With regard to parenting skills, Thomas argues that the chancellor should have found that this factor favored him. Thomas argues that the evidence presented at trial support Thomas’s assertions that he is an excellent parent. Thomas maintains that the record contains no comparable testimony for Kimberly. However, the record also includes favorable testimony from relatives and friends regarding Kimberly’s parenting skills. The chancellor held that the factor of moral fitness favored Kimberly. Thomas argues the evidence in the record shows that Kimberly engaged in abusive, alienating conduct and attempted to manipulate the couple’s son. Thus, Thomas claims that the chancellor’s finding that the moral-fitness factor favored Kimberly supports his assertion that the chancellor possessed bias in favor of Kimberly. However, the chancellor also based his finding regarding moral fitness on Thomas’s manipulation of Kimberly’s relationship with their son. There is no evidence in the record to support Thomas’s claim regarding bias due to the fact that Kimberly’s brother worked as a substitute bailiff for the chancellor. The chancellor reiterated that Kimberly’s brother was not employed as the chancellor’s bailiff, but he had served as a substitute bailiff for the chancellor on occasion. Issue 2: Child custody Thomas argues that the chancellor erred in awarding joint physical and legal custody of the couple’s son to both Thomas and Kimberly. The polestar consideration in all custody cases shall remain the best interest and welfare of the child. The chancellor must determine what is in the best interest of the child, and it is the chancellor who determines the level of commitment parents have to sharing joint custody. Here, the chancellor was in the best position to determine whether Thomas and Kimberly followed the custody arrangement agreed upon in the First Amended Order for Temporary Relief and also whether the parties could continue to share joint custody of their son. Issue 3: Alimony Thomas argues that the chancellor erred in awarding Kimberly alimony in the amount of $1,000 per month, in addition to one-half of all martial assets, including Thomas’s retirement. Thomas points out that Kimberly testified she needed only $500 per month in a alimony. The Armstrong factor regarding the fault or misconduct of a party is part of the criteria a chancellor should use in determining an award of alimony, even in a no-fault, or irreconcilable-differences, divorce. Here, the chancellor properly considered the Armstrong factors in his determination of the award of alimony. There is no indication that the factor of fault was the driving factor in establishing the award of alimony. The record shows that the chancellor noted Thomas’s earning capacity of $150,000 per year based on his master’s degree in nurse anesthesia, while estimating Kimberly’s earning capacity to be at best $43,000 per year. Thus, this issue is without merit. Issue 4: Attorney’s fees Thomas argues that the chancellor erred by awarding Kimberly attorney’s fees she had incurred in defending against the affidavit and TRO. Attorney's fees may only be awarded to a party who has shown an inability to pay his or her own fees. When awarding attorney's fees, chancellors are instructed to make specific findings regarding the recipient's ability to pay. Here, the parties agreed the attorney’s fees requested by both sides were reasonable and necessary. The parties then waived an analysis of the McKee factors to determine the proper amount of attorney’s fees. In his order denying Thomas’s post-trial motions, the chancellor performed a McKee analysis in response to Thomas’s argument that the chancellor erred in awarding attorney’s fees to Kimberly. Defending the TRO required Kimberly to incur expenses in responding to the allegations, submitting to psychiatric and psychological evaluations, and responding to the results of these evaluations, as well as examining the doctors at trial who had performed these evaluations. An award of attorney’s fees and expenses is proper where a party's intentional misconduct causes the opposing party to expend time and money needlessly. Although there are no findings by the chancellor to explain how he arrived at the specific amount of $15,000, the fee statement from Kimberly’s attorney which was admitted into evidence shows that Kimberly incurred roughly the amount awarded to her by the chancellor. Thus, there is no abuse of discretion. Issue 5: Admission of evidence Thomas argues that the chancellor abused his discretion in ruling that Thomas’s journal, which Thomas’s attorney instructed him to maintain, lacked trustworthiness. Thomas maintained a journal from November 2007 until late July 2008 in which he would document his interactions and conversations with Kimberly. Thomas also documented conversations between himself and his son, and also the son’s comments about his mother. The chancellor determined the journal “was prepared in anticipation of litigation and, therefore, is not trustworthy.” There was no abuse of discretion in this ruling. Issue 6: Post-trial motions Thomas argues that the chancellor applied the wrong standard to Thomas’s post-judgment motions under M.R.C.P. 59(a) and M.R.C.P. 60(b)(3). In ruling on Thomas’s post-trial motions, the chancellor restated that the polestar consideration in child-custody cases is the best interest of the child. The chancellor also readdressed his findings under the Albright factors. The chancellor also made findings regarding attorney’s fees based on his analysis of the McKee factors. Thomas failed to present newly discovered evidence warranting relief from the final judgment under Rule 60(b)(3). Therefore, the chancellor did not abuse his discretion in denying Thomas’s post-trial motions. |
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