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O'Brien v. O'Brien

Court of Appeals of Mississippi

February 11, 2014

RUSSELL GARY O'BRIEN, APPELLANT
v.
TERI SUZANNE O'BRIEN, APPELLEE

DATE OF JUDGMENT: 03/19/2012.

Page 509

[Copyrighted Material Omitted]

Page 510

COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT, TRIAL JUDGE: HON. JOHNNY LEE WILLIAMS. TRIAL COURT DISPOSITION: ENTERED FINAL JUDGMENT OF DIVORCE; DIVIDED MARITAL ASSETS; AND AWARDED ALIMONY, CHILD SUPPORT, AND ATTORNEY'S FEES.

FOR APPELLANT: CAROL ANN ESTES BUSTIN.

FOR APPELLEE: JONATHAN MICHAEL FARRIS.

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

OPINION

Page 511

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

GRIFFIS, P.J.

¶1. Russell Gary O'Brien appeals the chancellor's judgment of divorce. He argues that the decree " reads like a honky tonk chorus," and he refers to Jerry Reed's hit song " She Got The Goldmine (I Got The Shaft)." We affirm in part and reverse and remand in part.

FACTS

¶2. Russell and Teri Suzanne O'Brien were married on January 2, 2002, and separated in October 2010. Russell and Teri both had children from prior marriages, who are now adults.

¶3. On February 2, 2011, Teri filed for divorce on the grounds of adultery, habitual cruel and inhuman treatment, and in the alternative, irreconcilable differences. Russell answered and filed a counterclaim for divorce on the ground of habitual cruel and inhuman treatment. The chancellor entered a temporary order on child custody, child support, spousal support, payment of bills and medical expenses, and homestead rights.

¶4. Russell and Teri agreed to withdraw their fault grounds and proceed with an irreconcilable-differences divorce. They submitted certain issues for the chancellor to decide. The trial was held in March 2012.

¶5. Russell testified that he worked as a welder. In his 2011 tax return, Russell's adjusted gross income was $121,483 (his gross income was reduced by $4,500 for alimony paid), and his taxable income was $68,814. He also testified that he had been unemployed but recently began work in the pipeline business.

Page 512

¶6. Teri testified that she was a high-school graduate who completed one semester of studies in electronics. She worked off and on during the marriage as a pharmacy technician, medical assistant, substitute teacher, and part-time cashier. At the time of the trial, she was working at Fred's pharmacy and as a part-time tutor at the Lamar County Schools. She testified that her gross income was $1,567.91 per month, and she received $1,900 per month from Russell, pursuant to the temporary support order.

¶7. In the final judgment, the chancellor granted a divorce on the ground of irreconcilable differences. The chancellor also adopted Russell and Teri's agreement on the issues of child custody and visitation; Teri and Russell would share joint legal custody of their minor child, Teri would have physical custody, and Russell would be allowed reasonable visitation based on his uncertain work schedule. The judgment divided the marital property and debt, it awarded Teri periodic alimony in the amount of $600 per month, and it awarded Teri child support of $900 per month. The chancellor also made other awards that are not contested here. It is from this judgment that Russell now appeals.

STANDARD OF REVIEW

¶8. In domestic-relations cases, normally, this Court " will not disturb a chancellor's judgment when it is 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[.]" Rolison v. Rolison, 105 So.3d 1136, 1137 (§ 4) (Miss. Ct. App. 2012) (citations and quotations omitted). " If the chancellor's findings are supported by substantial evidence, then we will affirm." Id. (citation omitted). Questions of law, however, are reviewed de novo. Price v. Price, 22 So.3d 331, 332 (¶ 8) (Miss. Ct. App. 2009).

ANALYSIS

1. Whether the chancellor erred in finding Russell in contempt for violating the temporary support order.

¶9. Russell argues that it was error to find him in contempt for violating the temporary support order. Russell claims that the chancellor did not rule on his motion for relief from the temporary support order before the final divorce decree was entered.

¶10. Mississippi Code Annotated section 93-5-17(2) (Rev. 2013) provides that a chancellor may " hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon." Further, this Court may allow retroactive awards of temporary support even after a divorce judgment is entered. Strong v. Strong, 981 So.2d 1052, 1055 (¶ 15) (Miss. Ct. App. 2008). Temporary support ends when a final judgment is entered. Bond v. Bond, 355 So.2d 672, 674-675 (Miss. 1991). However, a payor still has a duty to pay past-due temporary support, as a final decree of divorce does not preclude a chancellor from entering a judgment for arrearages of temporary support without having to express the right to enforce the judgment in the final divorce decree. Lewis v. Lewis, 586 So.2d 740, 742 (Miss. 1991).

¶11. The chancellor determined that Russell owed Teri the sum of $7,439.05, which was the arrearage of the temporary support order. The chancellor also determined that Russell was not in wilful contempt, and Russell was ordered to pay the $7,439.05 ...


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