270 So. 3d 218
Miss. Ct. App.2018Background
- Rickey and Kellie McCarley married in 1979 and separated in October 2015 after ~36 years; two children were adults at separation.
- Each filed competing complaints in early 2016; the chancery court consolidated the matters and entered temporary support (home use to Kellie, insurance, $250 biweekly).
- A bench trial occurred in October 2016; the chancellor later conducted a telephonic conference to announce her ruling—no transcript of that phone conference is in the record.
- Chancellor’s written amended order (Dec. 2016) denied Rickey’s complaint for divorce (habitual cruel and inhuman treatment) for lack of proof, found Kellie without material fault, found Rickey abandoned her and refused support, awarded Kellie the marital home and $500/month separate maintenance, and divided marital property.
- Rickey appealed, arguing (1) the court erred by not including the telephonic opinion transcript in the record and (2) Kellie materially contributed to the separation so separate maintenance was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the transcript of the chancellor’s telephonic ruling must be part of the record | Rickey: absent transcript, the amended order is conclusory and record incomplete; UCCR 4.02 requires transcription of oral opinions | Kellie: chancellor produced a written (amended) order reflecting findings; no party requested separate written findings or dictated them on the record per UCCR 4.01/Rule 52 | Court: No error. Appellant bears the burden to provide an adequate record; no request for findings appears, and the written amended order is in the record. |
| Whether separate maintenance was improper because Kellie materially contributed to the separation | Rickey: Kellie’s lack of intimacy and hostility materially contributed to the breakup and bars separate maintenance | Kellie: evidence shows Rickey’s alcohol use, secrecy about loans/credit, abandonment, and dating after separation; she did not materially contribute | Court: No abuse of discretion. Substantial credible evidence supports finding that Kellie did not materially contribute and that Rickey abandoned and refused to support her; separate maintenance affirmed. |
Key Cases Cited
- Jackson v. Jackson, 114 So. 3d 768 (Miss. Ct. App. 2013) (standard for separate maintenance; wife must not have materially contributed to separation)
- Knighten v. Hooper, 71 So. 3d 1208 (Miss. Ct. App. 2011) (appellate standard of review for chancery findings)
- Williams v. Williams, 224 So. 3d 1282 (Miss. Ct. App. 2017) (elements and factors for awarding separate maintenance)
- Daigle v. Daigle, 626 So. 2d 140 (Miss. 1993) (wife’s misconduct that materially contributes to separation can bar maintenance)
- King v. King, 152 So. 2d 889 (Miss. 1963) (wife’s fault equal or greater than husband’s may defeat separate maintenance)
- Tackett v. Tackett, 967 So. 2d 1264 (Miss. Ct. App. 2007) (wife need not be blameless; award may stand if her conduct did not materially contribute)
- Wells v. Price, 102 So. 3d 1250 (Miss. Ct. App. 2012) (appellant must provide a complete record; absent transcripts, court will assume trial court’s ruling correct)
- Baggett v. Baggett, 246 So. 2d 887 (Miss. Ct. App. 2017) (no error where appellant did not request written findings and the facts were not complex)
- Turner v. Turner, 744 So. 2d 332 (Miss. Ct. App. 1999) (party must request separate findings in acceptable manner)
- Daley v. Daley, 909 So. 2d 106 (Miss. Ct. App. 2005) (lack of transcript or factual/legal foundation in record undermines appellate review)