Messer v. Messer
| Docket Number: | 2001-CA-01761-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-10-2003 Opinion Author: Chandler, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Child custody - Visitation - Equitable distribution Judge(s) Concurring: Chandler, J., as to Issues I, II, IIIA, B, D and E: McMillin, C.J., King and Southwick, P.JJ., Bridges, Thomas, Lee, Irving, Myers and Griffis, JJ. McMillin, C.J., as to Issue IIIC: Southwick, P.J., Thomas, Lee and Myers, JJ. Dissenting Author : Chandler, J., as to Issue IIIC Dissent Joined By : King, P.J., Bridges, Irving and Griffis, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 10-11-2001 Appealed from: Lamar County Chancery Court Judge: Sebe Dale, Jr. Disposition: THE PARTIES WERE GRANTED AN IRRECONCILABLE DIFFERENCES DIVORCE AND THE COURT AWARDED CUSTODY OF MINOR CHILD TO FATHER, APPELLEE. THE COURT DISTRIBUTED MARITAL ASSETS BETWEEN THE PARTIES. Case Number: 2000-0060 D |
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| Party Name: | Attorney Name: | |||
| Appellant: | Joan McCoy Messer |
SHIRLEE MARIE FAGER-BALDWIN |
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| Appellee: | Glen David Messer | NANCY E. STEEN |
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| Topic: | Divorce: Irreconcilable differences - Child custody - Visitation - Equitable distribution |
| Summary of the Facts: | Glen and Joan Messer were granted a divorce on the ground of irreconcilable differences. They agreed to submit issues of child custody, support, visitation and division of marital assets to the court for resolution. Joan appeals. |
| Summary of Opinion Analysis: | Issue 1: Custody The chancellor awarded Glen and Joan joint legal custody of their son with primary physical custody granted to Glen. Joan argues that the chancellor erred in not granting her primary custody. Factors the court should consider in determining what is in the best interest of the child include age, health and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of the parents; home, school and community record of the child; preference of the child; stability of home environment; and any other relevant factors. Although the chancellor found that both parents were willing to provide primary care to their child, the chancellor concluded that this factor slightly favored Glen because he exhibited more of the primary caretaker role. The chancellor found that the continuity of care factor slightly favored Glen because Joan has business interests which could potentially interfere with her ability to care for the child. When Glen is absent from home, the child is watched by his seventy-one-year-old sister. The presence of the sister may help provide stability in the child's life following the trauma of his parent's divorce and is an important factor in weighing the determination of child custody. The fact that the son is ten years old and needs the guidance and influence of the father is a valid concern in determining custody. Given these factors, the court did not abuse its discretion with regard to custody. Issue 2: Visitation Joan argues that the court erred in reducing her visitation in the final order from the temporary order. The final judgment provided that Joan shall have liberal visitation consisting of at the minimum, alternating weekends, six weeks in the summer, and certain holidays. Because liberal visitation has been held to mean, at a minimum, two weekends a month and five weeks during the summer, there is no merit to this issue. Issue 3: Equitable distribution Joan argues that the court erred in dividing the parties’ assets. Only marital property is subject to equitable division. The court should consider economic and domestic contributions by each party to the marriage; expenditures and disposal of the marital assets by each party; the market value and emotional value of the marital assets; the value of the non-marital property; tax, economic, contractual, and legal consequences of the distribution; elimination of alimony and other future frictional contact between the parties; income and earning capacity of each party; and any other relevant factor. Joan argues that the chancellor erred in ruling that only the parties' unfinished home located on property Glen had inherited prior to his marriage was a marital asset. Non-marital assets such as inheritances, may be converted into marital assets if they are commingled with marital property or utilized for domestic purposes. Although the property was co-mingled with the parties' marital assets and the chancellor therefore erred in finding that it was a non-marital asset, there is no error because Joan received an equitable distribution of the marital property considering the overall distribution. Joan also argues that the chancellor erred in not awarding her more than half of the value of the house due to her financial contribution of $30,000 to the remodeling of the home. The property and the residence were acquired through Glen's inheritance. This significant contribution cannot be outweighed by Joan's deposit into the parties' joint account. Joan also argues that the court erred in holding that a condominium the parties acquired nine months prior to their separation was a marital asset because of her payments on the property following the separation. The record shows that numerous payments were made on the property out of a joint account, and Glen made significant improvements to the property. In addition, the judge distributed all of the equity to Joan, and gave her complete ownership and possession of the property. Joan also argues that the judge erred in accepting $7,500 as the appraised value of the parties' mobile home. However, the evidence supports the court’s determination in that a licensed appraiser of sixteen years testified that the mobile home was worth $7,500. Joan also argues that the chancellor erred when he failed to divide in some way a marital asset consisting of 110 acres of land in Covington County which the parties had purchased and held title to as joint tenants. The court decided to leave the parties as joint tenants. It is not uncommon for a divorce judgment to leave the parties as joint owners of property for the present, with the anticipation that, at some point in the future, common ownership will be dissolved as the situation changes. Here, the decision leaves the parties with some flexibility to continue to hold the property as a potential investment and to dispose of the property by some mutually agreeable means in the future. |
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