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Stout v. Stout

Court of Appeals of Mississippi

December 10, 2013

HENRY STOUT, APPELLANT
v.
TRACEY STOUT, APPELLEE

DATE OF JUDGMENT: 07/24/2012.

Page 178

COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT. TRIAL JUDGE: HON. JENNIFER T. SCHLOEGEL. TRIAL COURT JUDGMENT OF DIVORCE ON THE GROUND OF IRRECONCILABLE DIFFERENCES GRANTED AND PROPERTY EQUITABLY DIVIDED; APPELLEE AWARDED PAST-DUE CHILD SUPPORT, ALIMONY, AND ATTORNEY'S FEES; APPELLANT FOUND IN CONTEMPT FOR FAILURE TO COMPLY WITH TEMPORARY ORDER.

FOR APPELLANT: D. SCOTT GIBSON.

FOR APPELLEE: PATRICIA C. CHAMPAGNE.

BEFORE IRVING, P.J., ROBERTS AND JAMES, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 179

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

ROBERTS, J.

¶1. After over twenty-five years of marriage, Henry Stout and Tracey Stout agreed to an irreconcilable-differences divorce. They submitted several issues for the chancellor to decide, such as child support, property division, and alimony. Displeased with the chancellor's decision on the issues, Henry filed the present appeal. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Henry and Tracey were married on October 28, 1983. They had three children: Timothy, born August 9, 1985; Rachel, born November 5, 1988; and Kendall, born June 25, 1993. Henry and Tracey separated on April 18, 2009. At the time

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of separation, Timothy was over twenty-one years old, Rachel was twenty years old, and Kendall was fifteen years old. On July 1, 2009, Tracey filed a complaint for divorce, a motion for temporary relief, and a motion for a temporary restraining order. A week later, Henry filed his answer to Tracey's complaint and a counterclaim for divorce. Both claimed fault-based grounds for divorce. [1] The chancellor entered an agreed temporary order on July 20, 2009. Henry was ordered to pay 20% of his adjusted gross income (AGI) as child support for Rachel and Kendall, for a total of $1,303 per month. Henry was also ordered to pay Tracey spousal support in the amount of $1,000 every two weeks and also to pay any joint marital debts. Tracey was given temporary, exclusive use and possession of the marital home and the responsibility to pay the mortgage.

¶3. Then, on January 7, 2011, Henry filed a motion to modify the temporary order and a motion for citation of contempt. Some of the requests in his motion included: a reduction in his child support due to the emancipation of Rachel, reimbursement/credit for the times he continued paying child support for Rachel after the date she was emancipated, and removal of the spousal-support obligations. Tracey filed a motion for contempt and other relief on April 13, 2011. On April 18, 2011, the chancellor held a hearing on the motion. According to the bench ruling, recited into the record by Henry's attorney, the chancellor ordered Tracey to attend Alcoholics Anonymous meetings twice a week, enjoined her from drinking alcohol to excess, and reduced child support owed by Henry to 14% without applying the statutory cap.

¶4. Henry and Tracey ultimately dropped their fault-based complaints for divorce and agreed to an irreconcilable-differences divorce, but they submitted the following issues for the chancellor to decide: the classification of property as marital, separate, or commingled; the demarcation date that the property and debt was no longer considered marital; the equitable distribution of marital and commingled property; the date of emancipation of the two minor children and any credits/reimbursements of support associated with them; the entitlement of either party to credit/reimbursement for overpayment of spousal support, child support, or other payments made to the other spouse; a determination of any owed spousal support, child support, or other payments due under the previous temporary order and bench ruling; the appropriateness of alimony; and the appropriateness of attorney's fees.

¶5. Following a multi-day trial in March 2012, the chancellor granted the irreconcilable-differences divorce and ruled on the issues presented. The parties stipulated that all children of the marriage were emancipated. In regard to child-support issues, the chancellor found that Henry's child-support obligations ended February 2012 when Kendall became emancipated. He was denied credit or reimbursement for any payments he made before his child-support obligation was modified from 20% to 14% of his AGI as a result of Rachel's emancipation. The chancellor denied a credit or reimbursement because she determined that Rachel and Kendall continued living with Tracey even after Rachel reached the age of majority. Further, Henry had exercised hardly any visitation with the children since Henry and

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Tracey separated in 2009. Tracey's monthly income was much smaller in comparison to Henry's. Also, the temporary order did not specify that the child-support obligation would be reduced when Rachel reached the age of majority. Next, the chancellor denied Henry's request that he receive a credit on the 14% of his AGI he paid for the remaining child, Kendall, because he paid $861 monthly instead of $583 monthly. The chancellor found Henry in arrears on that issue because 14% of his monthly AGI should have been $1,057.19 from May-December 2011 and $1,028.40 from January-February 2012. All of these amounts were above the $861 he actually paid.

¶6. After classifying property as separate or marital, the chancellor divided the marital property. She determined the following property to be marital: the marital home; all vehicles purchased prior to the temporary order; 92.5% of Henry's military retirement benefits; the Federal Employees Retirement System retirement account in Henry's name valued in 2009; the Public Employees' Retirement System retirement account in Tracey's name valued in 2009; Henry's Thrift Savings Plan valued in 2009; the checking and savings accounts of the parties as of 2009; Henry's life insurance policy; insurance refunds from USAA Insurance and Wells Fargo; and all other personal property. The chancellor awarded Tracey assets worth $80,952.48, consisting of the marital home, including its $60,000 mortgage; 50% of Henry's Thrift Savings Plan; Tracey's PERS retirement account; and her vehicle, also including the debt on the vehicle. Tracey also received 64.75% of Henry's total monthly retirement benefits. Henry received $50,938.48, including two vehicles and four motorcycles, and 50% of his Thrift Savings Plan. Henry received 35.25% of his total monthly retirement benefits. The remainder of the personal property was split equally at a value of $5,260 to each party. Henry also had to pay half of the credit card bills owed at the time of the temporary order and the full amount of two loans he obtained. Tracey was ordered to pay Henry $200 as half of the cost of the appraisal of the marital home.

¶7. The chancellor then considered the issue of alimony, and after applying the Armstrong factors, determined that Tracey was entitled to $1,226 in permanent alimony. Henry was also found in contempt of the temporary order in the amount of $16,446.83. This sum came from past-due child support, the failure to pay Rachel's car loan, and the failure to pay for half of the children's college expenses. The chancellor also ordered Henry to pay $8,000 in Tracey's attorney's fees after finding him in contempt of the July 20, 2009 temporary order.

¶8. Aggrieved by the chancellor's findings and decision, Henry appeals and raises six issues:

I. The chancellor abused her discretion, committed manifest error, and applied an erroneous legal standard in denying Henry credit for the child support he paid on behalf of Rachel after she became emancipated in November 2009.
II. The chancellor abused her discretion, committed manifest error and applied an erroneous legal standard when after the trial, she set the monthly amount of child support for Kendall retroactively back to May 1, 2011[,] above 14% of $50,000 annual income contrary to the child support statute and putting Henry in contempt and arrears.
III. The chancellor's finding that Kelly Carr and Henry's relationship was

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the ultimate demise of the marriage is not supported by the evidence.
IV. The chancellor's division of the marital estate was not equitable and should be reversed, specifically: the chancellor's determination of the value of marital home was improperly based on 2012 values as opposed to the 2009 value of the temporary order; the chancellor's award to Tracey of 70% of the marital portion of Henry's military retirement and FERS retirement; the chancellor's ...

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