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Burnham v. Burnham

Court of Appeals of Mississippi

April 8, 2014


DATE OF JUDGMENT: 06/26/2012.






¶1. This appeal follows a judgment of divorce rendered by the Covington County Chancery Court. Dana Burnham was awarded primary physical custody of the parties' two minor children, and $283, 226.87 in marital assets. Matthew Burnham was ordered to pay $600 per month in child support. Matthew appeals, rasing the following issues: (1) the trial court erred in its calculation of monthly child support; (2) the trial court erred in its equitable division of the marital assets and debts; and (3) the trial court erred its order discharging and dismissing the supersedeas bond filed by Matthew. We find the trial court abused its discretion in setting the amount of monthly child support and in its division of the marital assets and debts. However, we find the trial court properly discharged and dismissed the supersedeas bond. Therefore, the judgment of the trial court is affirmed in part and reversed and remanded in part.


¶2. Dana and Matthew were married on July 3, 1999, in Covington County, Mississippi. During the marriage, the couple had two children, Audrey, born June 2, 2006, and Mattilyn, born October 30, 2008. Dana was a stay-at-home mom, and Matthew was a biology instructor at Jones County Junior College. On June 20, 2011, Dana filed a complaint for divorce on the grounds of habitual cruel and inhuman treatment and habitual drunkenness. Matthew subsequently filed an answer and counter-complaint for divorce on the ground of habitual cruel and inhuman treatment. Both parties sought an irreconcilable-differences divorce in the alternative.

¶3. A hearing was held on August 1, 2011, in the Covington County Chancery Court. The hearing was not transcribed. After hearing the testimony of both parties and witnesses, the trial court issued a temporary order on August 18, 2011. The trial court appointed a guardian ad litem for the minor children, and awarded Dana primary physical custody. Matthew was given supervised visitation.[1] The trial court prohibited both parties from consuming alcohol in the presence of the children. The court also ordered Matthew to surrender all firearms in his possession to his attorney.

¶4. Dana was awarded exclusive use and possession of the marital home. However, the trial court permitted Matthew to access a barn adjacent to the marital home during daytime hours only. Matthew was ordered to have no contact with Dana. The trial court set child support at $600 per month, to be paid by Matthew. In the temporary order, the trial court indicated that it based this figure on Matthew's net monthly income of $2, 618, plus additional income he receives from his farming operation.[2]

¶5. The court ordered that neither party was allowed to dispose of or encumber any of the marital assets. However, the court allowed Matthew to use income generated from the sale of his agricultural products to defray an FSA note he was responsible for paying. Matthew was ordered to give an accounting of any and all receipts and cash from his farming operation. The trial court further ordered Matthew to continue to pay all marital debts until further instructed by the court.

¶6. On February 9, 2012, the parties filed a joint motion for divorce on the ground of irreconcilable differences. In the motion, the parties agreed to withdraw their alleged grounds for divorce and consented to have the trial court decide the following issues on which they could not agree: "[I]dentity and division of all marital assets; identity and division of all debts; custody of the minor children; support for the minor children; alimony, if any; attorney fees and costs, if any; and any temporary matters."

¶7. A trial was held on February 14, 2012, and June 6, 2012. Prior to trial, the parties agreed that Dana would maintain primary physical custody of the children. The parties also agreed upon a visitation schedule, which was entered into evidence. The issue of joint legal custody, which was initially reserved for the court to decide, was agreed upon by the parties during the course of trial.

¶8. The trial court identified various assets accumulated during the course of the marriage, which consisted of real estate, automobiles, and retirement accounts. The couple's marital assets had a total value of $521, 130.48. The marital debt identified by the trial court consisted of a Regions Bank mortgage, a Regions Bank farm loan, and a student loan held by Matthew. The marital debt totaled $225, 472.79.

¶9. The trial court rendered its final judgment of divorce on April 20, 2012. Dana was awarded $283, 226.87 in marital assets, which included the parties' marital home and acreage valued at $255, 000, an automobile valued at $27, 000, and a retirement account held by Dana, valued at $1, 226.87. Dana was also awarded one-half of Matthew's Mississippi Employee Deferred Compensation Plan, which was valued at $66, 658.54, in addition to one-half of his Public Employees' Retirement System (PERS) account, which was valued at $41, 164.40. Thus, Dana was awarded $53, 911.47 of Matthew's retirement accounts. Altogether, Dana was awarded $337, 138.34 in assets. The trial court did not assess any of the marital debt to Dana.

¶10. Matthew was awarded $130, 080.67 in marital assets. This included a Roth IRA account held by Matthew valued at $730.67; 51.09 acres of land located at King Place valued at $94, 350; 9.62 acres of land located at Highway 84 valued at $10, 000; a mobile home and acreage valued at $15, 000; and two automobiles valued at $5, 000 each. In addition, Matthew was allowed to retain one-half of his PERS and deferred-compensation retirement accounts, which totaled $53, 911.47. Altogether, Matthew was awarded $183, 992.14 in assets.[3] The trial court also assessed the parties' $225, 472.79 in marital debt to Matthew.

¶11. The trial court ordered all real property to be sold when Mattilyn turns twenty-one years of age. Of the sale proceeds from the marital home and acreage, the court ordered that Dana receive seventy-five percent, and Matthew receive twenty-five percent. Of the sale proceeds from the land located at King Place and Highway 84, as well as the mobile home, the court ordered that Matthew receive seventy-five percent and Dana receive twenty-five percent. Also, the trial court ordered that Matthew be responsible for the mortgage, property taxes, and insurance for each property, including the marital home awarded to Dana. The trial court further ordered that Matthew continue to pay $600 per month in child support.

¶12. Matthew filed a motion for a new trial and a motion to alter or amend the judgment. A hearing on the post-trial motion was held on June 5, 2012. The court denied in part and granted in part Matthew's motion. The court entered an amended final judgment of divorce. The judgment was amended to delete a prohibition on the dischargibility of the financial obligations in bankruptcy set out in the judgment.

¶13. Matthew filed his notice of appeal on July 20, 2012, and on July 23, 2012, he filed a supersedeas bond with the Supreme Court of Mississippi. On August 1, 2012, Dana filed an objection to the supersedeas bond. The trial court held a hearing on Dana's objection on October 16, 2012, and gave both parties an additional seven days to present case law and/or statutory law to the court. However, on October 18, 2012, the trial court entered a judgment discharging and dismissing the supersedeas bond. The judgment was amended on October 22, 2012.

¶14. On November 5, 2012, Matthew filed a Motion for Stay Pending Appeal after Trial Court Discharge of Supersedeas Bond. The trial court denied the motion on November 19, 2012. On December 14, 2012, Matthew filed another Motion for Stay Pending Appeal, and the trial court denied the motion again on January 3, 2013. Matthew now appeals raising the following issues: (1) the court erred in setting child support; (2) the court erred in the equitable distribution of marital property; and (3) the court erred in discharging and dismissing the appeal bond with supersedeas.


¶15. Usually, the scope of review of a chancellor's findings is limited in domestic-relations cases. "The chancellor's determinations will only be reversed when they were manifestly wrong [or] clearly erroneous, or when the chancellor applie[d] an incorrect legal standard." Greenwood v. Young, 80 So.3d 140, 145 (ΒΆ12) (Miss. Ct. App. 2012). "Questions of law are reviewed ...

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