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Marin v. Stewart

Court of Appeals of Mississippi

September 24, 2013

Rafael A. MARIN, Appellant
v.
Marlo O. STEWART, Appellee.

Page 154

[Copyrighted Material Omitted]

Page 155

Brent M. Bickham, Ocean Springs, attorney for appellant.

Timothy Lee Murr, Gulfport, attorney for appellee.

Before IRVING, P.J., BARNES and MAXWELL, JJ.

IRVING, P.J.

¶ 1. On April 15, 2010, Rafael A. Marin filed a complaint in the Harrison County Chancery Court seeking joint legal custody and visitation rights regarding his child with Marlo O. Stewart and an order for him to pay a reasonable sum of child support. After the initial hearing, the chancellor entered a temporary order requiring Marin to pay $455.23 per month in child support, which the chancellor finalized in the final order. Marin filed a motion to reconsider, which the chancellor denied.

¶ 2. Feeling aggrieved, Marin appeals and argues that the chancellor erred by (1) ordering him to pay twenty-five percent of his adjusted-gross income for child support; (2) failing to consider the shared-parenting arrangement between him and Stewart; (3) failing to consider the total assets of the parties; (4) erroneously factoring in Marin's wife's work status; (5) penalizing Marin for residing for free with his mother, but ignoring the fact that Stewart also lives with her parents for free; (6) declining to consider evidence at the final hearing that Stewart failed to disclose $1,000 in Social Security benefits on her Uniform Chancery Court Rule 8.05 financial statement; and (7) declining to consider that Marin had moved from his mother's home at the time of the final hearing.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. At the time of the initial hearing, Marin worked as a bellman at the Beau Rivage Hotel and Casino in Biloxi, Mississippi. After considering testimony from Marin and Stewart that Marin regularly received cash tips, the chancellor adjusted Marin's 2009 gross income from $27,199.07 to $28,000. Stewart testified that when she and Marin lived together, Marin would earn cash tips from $50 to over $100 per day. She further testified that Marin told her that he does not report his tips to the IRS. Stewart worked as a front-office manager at the Four Points by Sheraton in Biloxi, Mississippi. Her gross income for 2010 was $25,018. Stewart lived with her parents at the time of the initial hearing and stated that she paid whatever she could in monthly rent, ranging from $100 to $300. Marin and his wife lived with his mother and did not pay rent or any other household expenses. Stewart testified that she pays $105 per week for daycare and claimed that living expenses for her child with Marin are $1,497.66 per month.

¶ 5. Marin testified that his mother was willing to take care of the child for free to eliminate the cost of daycare. However, Stewart expressed that she would rather pay for their child to attend daycare than allow the child to stay with Marin's mother because (1) Marin's mother's house is too far away from her job; (2) it would be better for the child to be in a place where he can be active around other children; and (3) she believes that Marin's mother is unreliable, sleeps most of the day, and smokes in the house, even though Marin insists that she does not.

Page 156

¶ 6. After the initial hearing, the chancellor determined that Marin should pay in child support more than the fourteen percent of his adjusted-gross income prescribed by Mississippi Code Annotated section 43-19-101 (Supp.2012). The chancellor concluded that because Marin lived at home with his mother and his wife had a separate income, Marin's " income certainly [could] be stretched much further than what would be provided for under the schedule." The chancellor further reasoned that at fourteen percent, Marin would be paying " way less than what it actually costs for [Stewart] to keep the child in the daycare." Due to time constraints, the chancellor ordered that an additional hearing be held at a later date in order for Marin to have an opportunity to ...


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