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Brown v. Brown

Court of Appeals of Mississippi

December 3, 2013

KIMBERLYE ESTES BROWN, APPELLANT
v.
HICKMAN SCOTT BROWN, APPELLEE

Page 426

COURT FROM WHICH APPEALED: CHICKASAW COUNTY CHANCERY COURT. DATE OF JUDGMENT: 10/24/2011. TRIAL JUDGE: HON. DOROTHY WINSTON COLOM. TRIAL COURT DENIED BOTH APPELLANT'S AND APPELLEE'S PETITIONS FOR DIVORCE; DENIED APPELLANT'S REQUEST FOR SEPARATE MAINTENANCE; APPELLANT GRANTED CUSTODY.

FOR APPELLANT: REX F. SANDERSON.

FOR APPELLEE: JAMES E. BROWN JR., MATTHEW DANIEL WILSON.

LEE, C.J. IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

OPINION

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

Page 427

EN BANC.

LEE, C.J.

FACTS AND PROCEDURAL HISTORY

¶1. Kimberlye Estes Brown (Kim) and Hickman Scott Brown (Scott) were married on December 6, 2002. They have one child together, and Kim has two children from a previous marriage. Scott left the marital home in Okolona, Mississippi, on December 30, 2009.

¶2. On January 6, 2010, Kim filed a petition for child custody and separate maintenance. The parties entered an agreed temporary order addressing marital property and child custody, support, and visitation. Subsequently, Scott filed his answer and counter-petition for child custody and separate maintenance. On April 23, 2010, Scott filed his complaint for divorce on the ground of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. The chancellor consolidated the separate maintenance action and the divorce action. On February 2, 2011, Kim filed her counterclaim for divorce on the grounds of desertion and habitual cruel and inhuman treatment.

¶3. After numerous hearings on discovery issues, as well as motions for contempt and motions for modification, the case was heard in the Chickasaw County Chancery Court on May 24, 2011, and July 7, 2011. The chancellor found that both parties failed to show by a preponderance of the evidence any credible evidence to meet their burdens of proof and failed to present any corroborating evidence for their respective habitual-cruel-and-inhuman-treatment claims. As for the desertion claim, the chancellor found that although Kim testified that she repeatedly asked Scott to resume the marriage, her actions proved differently. Therefore, the chancellor denied and dismissed both petitions for divorce. After addressing each Albright [1] factor and considering the totality of the circumstances, the chancellor awarded custody of the couple's child to Kim and granted Scott visitation. The chancellor did not award Kim separate maintenance.

¶4. On October 29, 2011, Scott filed a motion to alter or amend the judgment to reflect the previous visitation schedule the parties had agreed to. Kim filed a motion

Page 428

for a new trial on November 3, 2011. Those motions, along with each party's motions for contempt, were heard on January 19, 2012. The chancellor denied the motion for a new trial and motions for contempt.

¶5. Kim appeals, arguing the chancellor erred in (1) denying her a divorce, (2) denying separate maintenance, (3) failing to order a division of the marital assets and debts, and (4) denying her motion for contempt. Kim does not appeal any issue regarding child custody.

STANDARD OF REVIEW

¶6. " This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong [or] clearly erroneous, or [applied] an erroneous legal standard . . . ." Dupre v. Dupre, 71 So.3d 1226, 1228 (¶ 11) (Miss.Ct.App. 2011). However, " [l]egal questions are reviewed de novo." Id.

DISCUSSION

I. DIVORCE

¶7. Kim claims that the chancellor erred in refusing to grant her petition for divorce on the grounds of desertion and ...


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