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Huseth v. Huseth

Supreme Court of Mississippi

April 10, 2014

MICHAEL A. HUSETH
v.
TAVIA M. HUSETH

Page 847

[Copyrighted Material Omitted]

Page 848

COURT FROM WHICH APPEALED: CHANCERY COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY. DATE OF JUDGMENT: 09/14/2012. TRIAL JUDGE: HON. DENISE OWENS. TRIAL COURT ATTORNEYS: MARK. A CHINN, WILLIAM R. WRIGHT.

FOR APPELLANT: MARK A. CHINN, MATTHEW THOMPSON.

FOR APPELLEE: AMANDA JANE PROCTOR, WILLIAM R. WRIGHT.

BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ. WALLER, C.J., DICKINSON, P.J., KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. PIERCE, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., LAMAR AND CHANDLER, JJ.

OPINION

Page 849

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

KITCHENS, JUSTICE:

¶1. Michael Huseth (Mike) appeals the judgment of the Chancery Court of the First Judicial District of Hinds County which granted his wife Tavia Huseth (Tavia) an award of separate maintenance, full physical custody of their son, and attorney fees. Tavia has requested attorney fees on appeal equal to half of the fees she was awarded at trial. We affirm the chancellor's judgment in part, reverse it in part and remand the case to the chancery court, and we deny Tavia's request for attorney fees on appeal.

FACTS AND PROCEDURAL HISTORY

¶2. Mike and Tavia have been married since 1998. They have one child together, who was born April 9, 1999. The couple separated in October 2011. Mike claims that the couple's stormy relationship ended " when Tavia punched Mike in the side" and told him to pack his bags and get out. Mike claims that he had a number of pictures on his phone from previous instances of Tavia's hitting him, which Tavia had found and erased. On the night in question, Mike took a picture of a bruise he claims to have suffered when Tavia " sucker punched" him in the kidney. According to him, when Mike said to Tavia that she could not delete the picture, she told him to pack his bags and " get the hell out of there." At that point, Mike left. He claims that, after their separation, Tavia prevented him from seeing his son, at one point forcing him to leave the school the son attends and telling Mike that he shouldn't be there.

¶3. Tavia's version of events, which generally was not disputed by Mike, provides a more expansive story. In October 2011, the couple went to San Diego to see Mike's son from a previous marriage as he returned home from Afghanistan. When they returned to Jackson, Mike left home and told Tavia he needed to " cool off for no more than two weeks" and get some marital therapy. Mike returned on October 27, 2011, and met Tavia for lunch. According to Tavia, when she sat down, Mike handed her his divorce attorney's business card and told her, " It's over." They continued discussing the matter in the driveway of their home, and Mike kept repeating to Tavia that the marriage was over. Later that evening, Mike returned and told Tavia that he was going to come home and live with her again. That night, the two had sexual relations. The next day, Mike took their son to school and did not return. When Tavia asked him what was going on, Mike again told her that it was over.

¶4. The next month, Mike filed a petition for divorce based upon irreconcilable differences. He continued to pay the household bills through January 2012. Tavia claims that she did not want a divorce, and after two postponed mediations, Mike dismissed the complaint for divorce and filed a petition seeking sole legal and physical custody of the couple's son. He did not ask for joint custody. Tavia filed a countercomplaint, seeking separate maintenance and custody. Prior to this separation, Mike had paid most of the household bills, but he admitted that his parents had loaned him the money to pay almost all of these amounts. Tavia alleged that she did not in any way cause Mike to leave the marital home and relationship, that she depended upon Mike to support and maintain herself and their child, and that she was therefore entitled to separate maintenance until Mike returned home. She also asked for physical custody of their son and attorney fees. Mike argued that she was completely at fault for his departure from the home, and that she specifically had

Page 850

asked for him to leave with no intention of reconciling.

¶5. The chancellor held a hearing on both parties' pleadings on August 8 and 9, 2012. Extensive testimony was elicited regarding Mike's income, work history, and earning potential. Over the course of the marriage, Mike held several different jobs. Mike has a degree in economics, a master's degree in public administration, and a master's degree in Biblical studies. He currently is the president of Lakin Enterprises, a company owned by his mother and stepfather. At the time of trial in August 2012, that company owned one rental property. Mike's duties as president include " communicating with the attorneys . . . we have and then also the CPA, and the accountant and then with the folks that lease our building over on Highway 18." When asked whether usually there was a day in the week when he had anything to do with Lakin Enterprises, he replied, " There is not a whole lot, no. I mean I have to balance the accounts and I check the balance every day." For this job, Mike is paid $3,709.06 per month. From 2006 to 2010, Mike also worked at the Lutheran Episcopal Services Agency (" LES" ). When he was terminated in 2010, Mike was being paid $114,000 a year by LES. Since losing that job, Mike's only source of income has been from Lakin Enterprises. Tavia is a social worker at Baptist Medical Center. She is paid approximately $5,122.16 per month after taxes.

¶6. Mike and Tavia gave testimony regarding their respective fitness to have custody of their son, each person's relative earning capacity and present income, and the reasons for their separation. Mike and Tavia were cross examined thoroughly. At the hearing, Mike testified that he really wanted joint custody of their child, but had filed for sole custody on the advice of his attorney. Tavia and Mike agreed that Mike was a good father, and Tavia said she was seeking joint legal and sole physical custody of their son, with provisions for reasonable visitation for Mike. Beyond testifying about his income, Mike elaborated concerning the money he had borrowed from his parents to pay his bills, as well as the more than $200,000 house his parents had purchased for him so his son could have a good environment while visiting his father. He testified that, after the separation, Tavia would not allow him in the marital home, she had dumped all of his clothes in the driveway, and she would not permit him to retrieve his personal effects, including his bicycle. Tavia testified that she verbally had asked Mike several times to come home and he had refused. She testified that, if he asked to come home that night, she would let him.

¶7. The chancellor found that Tavia's fault in causing the separation was not equal to or greater than Mike's and awarded her separate maintenance in the amount of $3,000 per month and child support in the amount of $988 per month. The chancellor ordered Mike to bring the mortgage current and instructed Tavia to pay the $2,248 per month mortgage out of the $3,000 monthly separate maintenance payment, leaving $752 per month in additional support. To determine the amounts of these awards, the chancellor looked beyond Mike's income from Lakin Enterprises and included the regular loans he received from his parents as well as his earning capacity to impute to him an income of $7,058 per month. The chancellor granted full physical custody of their son to Tavia and set up a visitation schedule for Mike. The chancellor also awarded attorney fees of $25,000 to Tavia, based upon her attorney's billing sheet and testimony regarding the representation. Mike timely perfected his appeal.

Page 851

TAVIA HUSETH'S MOTION TO STRIKE MIKE HUSETH'S SUPPLEMENTAL BRIEF

¶8. On October 1, 2013, Mike filed a supplemental brief to inform this Court of the recent decision of the Court of Appeals in Houston v. Houston, 121 So.3d 283 (Miss. Ct. App. 2013). The case involved imputation of income based upon parental financial assistance. On October 7, 2013, Tavia filed a motion to strike the supplemental brief from the record. Tavia argues that citation to supplemental authority should be made only through a letter to the Court pursuant to Mississippi Rule of Appellate Procedure 28(k).[1] She also notes that Mississippi Rule of Appellate Procedure 28(d) states that, after the appellant has filed a reply brief, " [n]o further briefs may be filed except with leave of the Court." M.R.A.P. 28(d). Tavia also has filed with this Court a letter notifying the Court of the Houston decision, in compliance with Rule 28(k).

¶9. Tavia is correct. Mike filed his supplemental brief in violation of Rule 28(d) and failed to comply with the procedures of supplemental citation provided by Rule 28(k). Further, Tavia has complied with those rules and has made the Court aware of the supplemental authority at issue. We therefore grant Tavia's motion to strike Mike's supplemental brief.

STANDARD OF REVIEW

¶10. Decisions to allow separate maintenance and amounts awarded are " matters within the discretion of the chancellor. Further, these decisions will not be reversed unless they are against the overwhelming weight of the evidence." Honts v. Honts, 690 So.2d 1151, 1153 (Miss. 1997). " On appeal, this Court will not overturn the chancery court unless its findings were manifestly wrong." Daigle v. Daigle, 626 So.2d 140, 144 (Miss. 1993).

ANALYSIS

¶11. On appeal, Mike raises the following issues:

I. The chancellor erred in awarding separate maintenance.
II. The chancellor erred in imputing income to Mike and awarding separate maintenance in the amount of $3,000 per month.
III. The chancellor erred in awarding child support as a percentage of gross income instead of adjusted gross income and failed to properly calculate the taxes on such incorrect and imputed income for both support and maintenance.
IV. The chancellor erred in failing to award Mike joint custody, or at least more than standard time of visitation with his son.
V. The chancellor erred in awarding attorney fees and in awarding them in the amount of $25,000.

¶12. Tavia disputes all of this and further argues that she should be awarded attorney fees on appeal of one-half the amount awarded at trial, or $12,500.

I. Whether the chancellor erred in awarding separate maintenance.

¶13. " Separate maintenance is 'a court-created equitable relief' based upon the marriage relationship." Lynch v. Lynch, 616 So.2d 294, 296 (Miss. 1993) (quoting Robinson v. Robinson, 554 So.2d 300, 303 (Miss. 1989)). It is a command from the court that the married couple

Page 852

resume cohabitation, and, failing that, the party at fault for the separation must provide suitable maintenance to his or her spouse until they are reconciled. Lynch, 616 So.2d at 296.

While the law does not require a wife who leaves her husband to be blameless, misconduct on her part which materially contributes to the separation, so that it may be said that the fault of the wife is equal to or greater than that of the husband, or that his fault was not sufficient to justify her leaving the domicile, is a defense to her suit for separate maintenance.

Robinson v. Robinson, 554 So.2d 300, 304 (Miss. 1989) (quoting King v. King, 246 Miss. 798, 801, 152 So.2d 889, 891 (1963)). In other words, the chancellor may grant separate maintenance if the wife can show separation without fault on her part combined with wilful abandonment by the husband and the husband's refusal to support her. Lynch, 616 So.2d at 296.

¶14. Mike argues that the evidence shows that Tavia requested the separation, and therefore, she is completely at fault for the separation. Tavia did testify that, one night, when Mike was taking a photograph of a bruise from a punch he said was administered by Tavia, she told him something along the line of, " if you are just going to sit around the house and take silly pictures like this then leave." He also argues that she would not let him back into the home to recover his possessions, see his son, or otherwise show any indication that she wanted to resume cohabitation. He also emphasizes that, one day, Tavia told their lawn man to " tell Mike to kiss my ass." Mike argues that Tavia's complaints about his behavior, whether it be his drinking, affinity for pornography, or general ...


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