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Pogue v. Pogue

Court of Appeals of Mississippi

November 26, 2013

Trayce Deanne Martin POGUE, Appellant
v.
Gerald Phillip POGUE Jr., Appellee.

Page 968

Timothy J. Evans, attorney for appellant.

Mark Vincent Watts, Biloxi, attorney for appellee.

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

ISHEE, J.

¶ 1. Trayce Deanne Martin Pogue and Gerald Phillip Pogue Jr. (Phillip), were divorced by the Pearl River County Chancery Court in 2010. The parties agreed on a property-settlement and custody agreement (the agreement), which was incorporated into the chancery court's judgment. Trayce later filed a motion for contempt against Phillip, claiming he failed to uphold his duties under the agreement. Phillip counterclaimed seeking sole physical custody of their three minor children. The chancery court denied Trayce's motion for contempt and granted Phillip's motion for sole physical custody. Aggrieved, Trayce appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. Trayce and Phillip were granted a divorce based on irreconcilable differences on April 14, 2010. The chancery court incorporated the agreement into the judgment

Page 969

of divorce. The agreement included terms regarding the division of the marital home, as well as custody of the Pogues' children. Phillip was awarded the marital home in Poplarville, Mississippi, but agreed to refinance the home and pay Trayce $50,000 within six months of the date the divorce judgment was entered. If Phillip did not refinance the home and pay Trayce within six months, he was ordered to quitclaim his interest in the marital home to Trayce.

¶ 3. With regard to the children, Trayce and Phillip shared joint legal and physical custody pursuant to the terms of the agreement. The agreement ordered the children to spend alternating weeks, including weekends, with each parent. Neither parent paid child support as long as Phillip paid the children's private-school tuition.

¶ 4. Phillip and the children lived in the home for some time after the divorce, but he eventually moved out. Trayce admitted that she went to the abandoned house and removed several ceiling fans. However, later, Phillip discovered that the home had been stripped of the air-conditioning unit, wiring, and copper pipes. Trayce denies any involvement in these destructive activities.

¶ 5. Phillip attempted to refinance the home both before and after the vandalism, but was unable to do so. Accordingly, he offered to quitclaim the property to Trayce. The record indicates that Trayce refused the conveyance, stating she did not want the home. She testified that she agreed to negate the terms of the agreement and allow Phillip additional time to pay her the $50,000 instead of having him convey the property to her. She also testified that Phillip did not offer to quitclaim the home to her until after it had been vandalized. She stated that she wants the money, not the property; but, if Phillip had offered to quitclaim the home to her before the vandalism, she would have considered it.

¶ 6. In September 2011, Trayce filed a complaint in the chancery court citing Phillip's alleged contempt for failure to pay her the $50,000. Her complaint initially also sought a modification of the custody agreement to grant her sole physical custody of the children. She soon dismissed her claim for sole physical custody.

¶ 7. Phillip denied the allegation of contempt. He later counterclaimed in February 2012 with his own motion to modify the custody agreement, seeking sole physical custody of the children. He asserted that since the divorce, Trayce had only exercised alternating weekend visitation, as opposed to the week-long visitation ordered in the judgment and consented to in the agreement. He ...


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