Amaria Vassar v. David Vassar
228 So. 3d 367
| Miss. Ct. App. | 2017Background
- David and Amaria Vassar consented to an irreconcilable-differences divorce but submitted custody, child support, property division, alimony, attorney's fees, and contempt to the chancellor.
- Their son, Martin, was three at trial. A guardian ad litem (GAL) found Martin healthy and emotionally attached to both parents and recommended David for custody; the chancellor awarded David custody after applying Albright factors.
- Amaria (a USAR Captain) had net monthly income around $2,341 at trial; she had lost prior higher-paying employment after a short civil commitment and later worked for minimal wages plus modest deployment-related disability pay.
- The marital home (mortgage ~ $185,000 with ~ $12,997 arrearage) remained solely on Amaria’s promissory note; the chancellor gave David exclusive use of the home but ordered Amaria to pay the full mortgage (both halves), characterized half as periodic alimony.
- The decree required Amaria to pay $443/month child support (14% of an erroneously high income figure), $1,276/month mortgage, ~$13,000 in arrears immediately, and $10,058 in David’s attorney’s fees; when Amaria stopped paying mortgage/utilities earlier, the chancellor found contempt and ordered incarceration until she paid the arrearage.
- On appeal the Court of Appeals affirmed custody but reversed and remanded the property division, child support, alimony, and attorney-fee awards for errors (incorrect income, failure to make Ferguson findings, and obligations beyond Amaria’s ability to pay) and held incarceration improper given inability to pay.
Issues
| Issue | Plaintiff's Argument (Amaria) | Defendant's Argument (David) | Held |
|---|---|---|---|
| Custody | Chancellor erred in awarding David custody; alleged abuse by David and statutory presumption against sole custody for perpetrators of family violence | David sought custody; GAL recommended David | Affirmed — chancellor conducted Albright analysis, substantial evidence supports custody to David; presumption under §93-5-24 did not apply given inconclusive evidence of serious injury or pattern |
| Child support calculation | Support based on correct (lower) income; chancellor used inflated income figure | Support as ordered ($443/mo) based on chancellor’s income finding | Reversed — chancellor used incorrect income (mathematical error); child-support determination must be recalculated on remand |
| Property division / Alimony | Division (requiring Amaria to pay full mortgage while David had exclusive possession) and alimony are inequitable and beyond her ability to pay; requested sale of home | Court ordered David the home use and Amaria to pay mortgage (half as equitable division, half as periodic alimony) | Reversed — chancellor failed to make Ferguson findings and imposed financial obligations beyond Amaria’s ability to pay; property division and alimony must be reconsidered (sale of home likely necessary absent changed finances) |
| Attorney's fees & Contempt incarceration | Fees award and incarceration for failure to pay arrearage improper because Amaria cannot pay | David obtained attorney-fees award and incarceration order until arrearage paid | Fees reversed — award beyond Amaria’s ability to pay; remand to consider only reasonable fees attributable to contempt. Incarceration reversed — inability to pay is defense to incarceration; order improper and reviewable under capable-of-repetition-yet-evading-review doctrine |
Key Cases Cited
- Albright v. Albright, 437 So. 2d 1003 (Miss. 1983) (sets listing and purpose of custody factors used to determine child’s best interest)
- Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994) (requires chancellors to make findings when dividing marital property)
- Riser v. Peterson, 566 So. 2d 210 (Miss. 1990) (inability to pay is a continuing defense to incarceration for civil contempt)
- Turner v. Rogers, 564 U.S. 431 (2011) (addresses due-process considerations and reviewability of incarceration for failure to pay support)
- Adams v. Adams, 467 So. 2d 211 (Miss. 1985) (courts cannot impose support obligations beyond payor’s ability to provide)
- McEachern v. McEachern, 605 So. 2d 809 (Miss. 1992) (alimony must be considered in conjunction with property division and payor’s ability to pay)