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Johnston v. Johnston

September 24, 1998

JOSEPH RHODES JOHNSTON
v.
JUANITA PAHNKA JOHNSTON



Prather, C.j., Banks And Smith, JJ.

The opinion of the court was delivered by: Smith, Justice, For The Court

DATE OF JUDGMENT: 01/09/97

TRIAL JUDGE: HON. WILLIAM L. GRIFFIN, JR.

COURT FROM WHICH APPEALED: WARREN COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION AFFIRMED IN PART; REVERSED AND REMANDED IN PART- 9/24/98

¶1. This case comes to this Court on appeal of Joseph Rhodes Johnston from the Chancery Court of Warren County. Joseph and Juanita consented to divorce based on irreconcilable differences and submitted all unsettled issues to the chancellor. On November 25, 1996, the chancellor granted a divorce based on the grounds of irreconcilable differences, ordered joint legal custody of the children with physical custody to Juanita, and ordered a temporary award of child support and alimony until a final order approximating equitable distribution of the marital estate could be entered. On December 9, 1996, the chancellor entered a final decree, and on January 10, 1997, the chancellor entered an amended final decree ordering joint legal custody and physical custody of the children to Juanita, ordering Joseph to pay $750 child support per month and to maintain health and dental insurance on the children, ordering Joseph to pay Juanita $30,000 lump sum alimony to be paid at $250 per month for 120 months, and dividing equally the marital estate. Joseph, aggrieved by the chancellor's decision, appeals to this Court and raises the following issues: I. WHETHER THE CHANCELLOR COMMITTED ERROR IN IMPLEMENTING A FINAL JUDGMENT OF DIVORCE BASED ON IRRECONCILABLE DIFFERENCE WHEREIN THE PARTIES HAD NOT AGREED ON ALL ISSUES INVOLVING CUSTODY AND MAINTENANCE OF CHILDREN AND PROPERTY RIGHTS BETWEEN THE PARTIES. II. WHETHER THE CHANCELLOR ERRED BY AWARDING ALIMONY TO JUANITA WHEN THE MATTER OF ALIMONY WAS NOT AN ISSUE AGREED UPON BY THE PARTIES TO BE DECIDED BY THE COURT. III. WHETHER THE CHANCELLOR ABUSED ITS DISCRETION IN AWARDING ALIMONY BASED UPON INSUFFICIENT EVIDENCE ESTABLISHING THE ASSETS AND LIABILITY OF THE PARTIES. IV. WHETHER THE CHANCELLOR COMMITTED ERROR IN NOT ALLOWING EVIDENCE OF FAULT TO BE CONSIDERED AT A SUBSEQUENT HEARING WHEREIN THE CHANCELLOR DETERMINED AN EQUITABLE DISTRIBUTION OF THE PROPERTY. V. WHETHER THE CHANCELLOR ERRED IN DETERMINING THE NET MONTHLY INCOME OF JOSEPH. VI. WHETHER THE CHANCELLOR'S AWARD OF CHILD SUPPORT AND MAINTENANCE WAS AN ABUSE OF DISCRETION. VII. WHETHER THE CHANCELLOR ERRED BY REQUIRING JOSEPH TO PAY JUANITA $32,898.50 BY MARCH 1997. VIII.WHETHER THE CHANCELLOR ERRED BY GIVING ONE OF THE CHILDREN AS A TAX DEDUCTION TO JUANITA WHEN SUCH ISSUE WAS NOT SUBMITTED TO BE DECIDED BY THE COURT. IX. WHETHER THE CHANCELLOR ERRED BY CONSIDERING GIFTS FROM JUANITA TO JOSEPH AS MARITAL PROPERTY.

FACTS

¶2. Joseph Rhodes Johnston and Juanita Pahnka Johnston were married June 16, 1979 and separated June 14, 1996. There were two children born to the marriage: a son, Andrew Joseph Johnston, born April 3, 1984 and a daughter, Abigail Christine Johnston, born June 28, 1988. On July 12, 1996, Joseph filed a complaint for divorce alleging habitual cruel and inhuman treatment, uncondoned adultery and irreconcilable differences. On July 30, 1996, Juanita filed her answer and counterclaim for divorce based on the grounds of habitual cruel and inhuman treatment and irreconcilable differences. On October 23, 1996, Joseph and Juanita filed a Consent to Divorce on Irreconcilable Differences and Submission of Other Issues to the Court. Joseph and Juanita submitted the following issues to Chancellor William L. Griffin, Jr. for determination: (1) the amount of child support to be awarded to the wife; (2) an equitable division of the marital assets; (3) the equity position of each party; and (4) the payment of insurance premiums for the children.

¶3. After a hearing on November 21, 1996, the chancellor entered a final decree on November 26, 1996 adjudicating a divorce absolute on the grounds of irreconcilable differences and ordered the joint legal custody of the minor children with the wife being granted primary physical custody. The chancellor ordered Joseph to pay temporary child support in the amount of $500 per month and additionally ordered Joseph to pay $500 per month as alimony until a final order approximating an equitable distribution of the marital estate could be entered.

¶4. On December 9, 1996, the chancellor entered a ruling making specific findings and entered a final decree resolving the issues submitted before the court. In the final decree, the chancellor ordered Joseph to pay $750 per month as child support with half payable on the first of each month and half payable on the 15th of each month. Joseph was allowed to claim the older child as an exemption for state and federal tax purposes, and Juanita was allowed to claim the younger child. Joseph was additionally required to maintain the children as beneficiaries on his health and dental insurance policies and to maintain a life insurance policy on each child in the amount of not less than $50,000 per child. The chancellor further equally divided the marital estate with each receiving an award valued at $150,521. In addition, the chancellor awarded lump sum alimony in the amount of $30,000 to the wife payable at the rate of $250 per month for a period of 120 months.

¶5. On December 17, 1996, Joseph filed a Motion to Reconsider Final Decree, and the chancellor overruled the motion on January 7, 1997. However, due to certain typographical and mathematical errors, the chancellor entered an amended final decree on January 10, 1997. Aggrieved by the chancellor's decision, Joseph filed a notice of appeal on January 3, 1997 and an amended notice of appeal on January 17, 1997.

DISCUSSION OF THE LAW

I. WHETHER THE CHANCELLOR COMMITTED ERROR IN IMPLEMENTING A FINAL JUDGMENT OF DIVORCE BASED ON IRRECONCILABLE DIFFERENCE WHEREIN THE PARTIES HAD NOT AGREED ON ALL ISSUES INVOLVING CUSTODY AND MAINTENANCE OF CHILDREN AND PROPERTY RIGHTS BETWEEN THE PARTIES.

¶6. On November 21, 1996, after the trial, the chancellor ordered the grant of a divorce absolute based on the grounds of irreconcilable differences, the award of joint legal custody of the children with physical custody to the wife, the temporary award of child support of $500 per month, and the temporary award of alimony to the wife in the amount of $500 per month, and the chancellor took all other issues including the equitable division of the property under advisement. On November 26, 1996, a final decree was filed in the Warren County Chancery Court in accordance with the chancellor's ruling after trial. Then on December 3, 1996, the chancellor issued his final ruling resolving all issues of child support and property rights between the parties. A final decree was entered on December 9, 1996 in accordance with the chancellor's ruling. On December 17, 1996, Joseph filed a Motion to Reconsider Final Decree assigning numerous errors. On January 7, 1997, the chancellor entered an order overruling the motion to reconsider, and also entered an amended ruling due to certain typographical and mathematical errors. Additionally, on January 10, 1997, an Amended Final Decree was entered.

¶7. Joseph contends that the chancellor erred by granting a divorce absolute on November 26, 1996 without adjudicating all matters involving custody and maintenance of any child of that marriage and property rights between the parties. Juanita asserts that it would be inequitable to overturn the entire divorce decree especially in light of the fact that this was an uncontested divorce.

¶8. Miss. Code Ann. § 93-5-2(3) provides a procedure whereby the parties may divorce based on irreconcilable differences and submit to the chancellor all issues not agreed on. Miss. Code Ann. § 93-5-2(3) provides in pertinent part: If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree.... No divorce shall be granted pursuant to this subsection until all matters involving custody and maintenance of any child of that marriage and property rights between the parties raised by the pleadings have been either adjudicated by the court or agreed upon by the parties and found to be adequate and sufficient by the court and included in the judgment of divorce.

Miss. Code Ann. § 93-5-2(3) (1994) (emphasis added). Thus, it is clear that this procedural aspect of Miss. Code Ann. § 93-5-2(3) provides that before a divorce can be granted by the chancellor all matters involving custody and maintenance of any child of that marriage and property rights between the parties must either be adjudicated by the court or agreed to by the parties and found to be adequate and sufficient by the court.

ΒΆ9. In Massingill v. Massingill, this Court stated: Divorce is a creature of statute; it is not a gift to be bestowed by the chancellor based upon a perception that declining to grant the divorce will not restore the couple to a harmonious relationship. It is a statutory act and the ...


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