271 So. 3d 494
Miss. Ct. App.2018Background
- Christina and Billy Leblanc married in 1991 and had four children; Christina filed for divorce in 2014; parties consented to an irreconcilable-differences divorce after trial began.
- Billy has a history of methamphetamine use, lost a prior dosimetrist job after positive tests, later worked at Keesler with gross monthly pay near $10,000 and net pay around $7,138.39.
- Temporary orders required supervised visitation, mortgage payments, and drug testing; Billy tested positive twice during proceedings.
- Chancery court awarded Christina physical custody of three minor children, joint legal custody, unsupervised visitation for Billy, equitable division (home awarded to Christina), child support of $1,040/month, and rehabilitative alimony $250/month for 18 months.
- Christina appealed, arguing miscalculation of child support, errors in equitable division, inadequate alimony, improper unsupervised visitation given drug use, failure to hold Billy in contempt for mortgage arrearage, and that Billy’s late answer should have been stricken.
- Court of Appeals affirmed equitable division, reversed/remanded on child support and alimony, and directed reconsideration of visitation and drug testing; other complaints were waived or without merit.
Issues
| Issue | Plaintiff's Argument (Leblanc) | Defendant's Argument (Leblanc) | Held |
|---|---|---|---|
| Child support calculation | Court used 20% of net pay; should be 22% of adjusted gross income and 8.05 understated Billy's income | Court relied on Billy's 8.05 showing $5,201 net monthly | Reversed: child support must be recalculated at 22% of true adjusted gross income (~$7,138.39) and remanded |
| Equitable division of marital estate | Challenged insufficient financial info, failure to address dissipation of IRA, and unequal debt allocation | Chancellor considered Ferguson factors, counted $33,000 IRA withdrawals to Billy, and division overall equitable | Affirmed: no abuse of discretion in overall equitable division |
| Alimony amount | Rehabilitative alimony of $250/mo for 18 months is grossly inadequate given disparity in earning capacity and long marriage | Chancellor found both had sufficient income and awarded limited rehabilitative alimony | Reversed/remanded: award inadequate under Armstrong factors; court must reconsider lump-sum or periodic alimony |
| Visitation (supervision) | Given positive drug tests and history, visitation should remain supervised and require ongoing drug testing | Chancellor awarded unsupervised visitation without explaining removal of supervision | Remanded: on remand court must reassess best interests, supervision necessity, and whether additional drug testing is required |
| Contempt for mortgage arrearage | Court twice ordered Billy to pay arrearage but did not find contempt or enter judgment for arrearage | Billy claimed inability to pay; parties later consented to irreconcilable-differences issues | Waived: contempt issue not preserved for decision when parties limited issues by consent; no ruling to review |
| Timeliness of answer/counterclaim | Billy answered nearly a year after service; answer should have been stricken as untimely | Billy filed answer/counterclaim; no prejudice shown and issue not raised below | Waived/meritless: not raised in chancery court and divorce practice contains no default judgments; issue forfeited |
Key Cases Cited
- Mabus v. Mabus, 890 So. 2d 806 (Miss. 2003) (standard of review for chancery court decisions)
- Rogillio v. Rogillio, 101 So. 3d 150 (Miss. 2012) (failure to file appellee brief not automatic reversal; may be treated as confession of error)
- Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994) (Ferguson factors for equitable distribution)
- Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993) (factors for awarding alimony)
- Rodrigue v. Rodrigue, 172 So. 3d 1176 (Miss. Ct. App. 2014) (comparable facts where limited alimony was held grossly inadequate)
- McLemore v. McLemore, 762 So. 2d 316 (Miss. 2000) (court may require continued drug testing)
- Harrington v. Harrington, 648 So. 2d 543 (Miss. 1994) (best interest standard and restrictions on visitation require evidence of necessity)
- Sellers v. Sellers, 22 So. 3d 299 (Miss. Ct. App. 2009) (erroneous adjusted gross income calculation requires reversal for child support recalculation)