238 So. 3d 1204
Miss. Ct. App.2018Background
- Robert and Kimberlana Elkins married in 1999, separated in 2010, and Kimberlana filed for divorce (initially alleging irreconcilable differences, later amended to include adultery and other grounds).
- A July 22, 2011 temporary chancery order granted Kimberlana exclusive use of the marital home and required Robert to pay temporary child support ($350/mo) and house-related expenses; Robert later contested notice of that hearing.
- Multiple motions for contempt and enforcement were filed over alleged arrearages for child support and mortgage payments; the chancery court found arrearages and entered a divorce judgment on February 10, 2015 awarding Kimberlana primary physical custody and ordering the marital home sold to satisfy debts.
- The chancery court initially assessed large arrearages (totaling $65,895.96) and awarded attorney’s fees; on Robert’s motion for reconsideration the court concluded the temporary order was void ab initio as child support was not pleaded, reduced the arrearage to $23,291.49, but upheld attorney’s fees.
- Kimberlana appealed, raising issues about equitable distribution (including alleged adultery), calculation of Robert’s income (alleged inheritance), child support amount, educational expenses, ownership of the home, alimony, modification of contempt/arrearage, valuation of a business trailer, and life insurance for the children.
Issues
| Issue | Plaintiff's Argument (Elkins) | Defendant's Argument (Robert) | Held |
|---|---|---|---|
| Whether chancellor should consider Robert’s extramarital affairs in equitable distribution | Kimberlana: adultery caused emotional harm and should affect division | Robert: adultery occurred after separation and did not affect marital estate | Court: procedurally barred and meritless; adultery after separation not weighty for distribution |
| Calculation of Robert’s income (inheritance/Franklin-Templeton account) | Kimberlana: Robert has inheritance/accounts that increase income | Robert: no present vested interest; sister holds title; no evidence of account | Court: no credible evidence of vested inheritance; income finding ($1,904.33/mo) affirmed |
| Reduction of child-support arrearage on reconsideration | Kimberlana: December 2013 order awarding $42,604.47 should stand | Robert: temporary order was entered without his notice and child support was not pleaded | Court: temporary order void ab initio because child support not pled and not tried by consent; arrearage reduced accordingly |
| Request for $1,500/yr tuition (homeschooling) and other extraordinary expenses | Kimberlana: child’s medical/education needs justify tuition payment | Robert: such tuition is a deviation beyond statutory support; parents cannot afford it | Court: denied; no specific written finding to justify deviation from statutory child-support guidelines |
Key Cases Cited
- Bond v. Bond, 69 So. 3d 771 (Miss. 2011) (marital misconduct may be considered but is not a means to punish in equitable distribution)
- Carrow v. Carrow, 642 So. 2d 901 (Miss. 1994) (misconduct considered only when it burdens marital stability)
- Jenkins v. Jenkins, 278 So. 2d 446 (Miss. 1973) (lump-sum award and monthly alimony where spouse contributed to accumulation of property)
- Moses v. Moses, 879 So. 2d 1043 (Miss. Ct. App. 2004) (pre-college tuition is generally part of child support; deviation requires written specific findings)
- Rogillio v. Rogillio, 57 So. 3d 1246 (Miss. 2011) (appellate relief on alimony only where denial is oppressive or grossly inadequate)
- Massey v. Huggins, 799 So. 2d 902 (Miss. Ct. App. 2001) (child support cannot be awarded without pleading, consent, or notice that issue will be addressed)
- In re Estate of Forrest, 165 So. 3d 548 (Miss. Ct. App. 2015) (failure to cite authority is a procedural bar)