149 So. 3d 508
Miss. Ct. App.2014Background
- Russell and Teri O’Brien married in 2002, separated in 2010; they have one minor child and adult children from prior marriages.
- Teri filed for divorce in 2011; parties withdrew fault-based grounds and proceeded on irreconcilable differences; trial held March 2012.
- Chancellor adopted parties' custody agreement (joint legal custody; Teri physical custody); awarded Teri $600/month alimony and $900/month child support; divided marital property and debts largely assigning debts to Russell.
- Chancellor found Russell in contempt for violating a temporary support order and ordered payment of $7,439.05 in arrears at $200/month, but did not find wilful contempt.
- Disputes on appeal: contempt finding, child-support award (lack of written findings as required when income over $50,000), admission/consideration of fault for alimony and property division, and equity of property division (including inconsistent income figures used).
Issues
| Issue | O’Brien's Argument | Teri's Argument | Held |
|---|---|---|---|
| Contempt for violating temporary support order | Chancellor erred; motion for relief unresolved before final decree | Chancellor may enforce arrearages after final decree; Russell admitted nonpayment | Affirmed: arrearage award and contempt finding within chancellor's discretion; not wilful contempt; payments allowed in installments |
| Child support calculation and required written findings under Miss. Code §43-19-101(4) | Chancellor failed to make required written findings justifying guideline application for incomes > $50,000 | Points to Russell's incomplete financial disclosures; urges affirmance | Reversed and remanded: chancellor's brief remarks insufficient; must state income basis and reasonableness of guideline application |
| Admissibility/consideration of marital fault for alimony and property division | Fault evidence irrelevant because parties proceeded on irreconcilable differences | Fault is relevant to Armstrong factors and equitable distribution | Affirmed: fault is admissible and properly considered for alimony and property division |
| Equity of marital property division and inconsistent income findings | Division inequitable; chancellor used inconsistent and unsupported income figures (e.g., $68,000 vs. $156,000) affecting debt assignment and alimony | Chancellor made Ferguson/Armstrong findings and relied on evidence presented | Reversed in part and remanded: chancellor's analysis regarding Russell's income and ability to pay debts was clearly erroneous and must be revisited |
Key Cases Cited
- Rolison v. Rolison, 105 So.3d 1136 (Miss. Ct. App. 2012) (standard of appellate review in domestic relations)
- Price v. Price, 22 So.3d 331 (Miss. Ct. App. 2009) (questions of law reviewed de novo)
- Strong v. Strong, 981 So.2d 1052 (Miss. Ct. App. 2008) (allowing retroactive temporary support awards after final decree)
- Bond v. Bond, 355 So.2d 672 (Miss. 1978) (temporary support ends at final judgment)
- Lewis v. Lewis, 586 So.2d 740 (Miss. 1991) (arrearages of temporary support enforceable after final decree)
- Peters v. Peters, 906 So.2d 64 (Miss. Ct. App. 2004) (appellant cannot complain about income used when caused by lack of candor)
- Armstrong v. Armstrong, 618 So.2d 1278 (Miss. 1993) (factors to consider in awarding alimony)
- Ferguson v. Ferguson, 639 So.2d 921 (Miss. 1994) (Ferguson factors for equitable division of marital property)
- Hemsley v. Hemsley, 639 So.2d 909 (Miss. 1994) (classification of marital vs. non-marital property)
- Johnson v. Johnson, 650 So.2d 1281 (Miss. 1994) (procedure for applying Ferguson factors)
- Singley v. Singley, 846 So.2d 1004 (Miss. 2002) (fault considered in equitable distribution)