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Baumbach v. Baumbach

Court of Appeals of Mississippi

April 3, 2018


          DATE OF JUDGMENT: 06/06/2016




         EN BANC.

          BARNES, J.,

         ¶1. Robert and Jennifer Baumbach were granted a divorce on the ground of irreconcilable differences on January 25, 2016. Subsequently, in a June 6, 2016 order determining the remaining issues, the Lowndes County Chancery Court awarded Jennifer sole physical custody of the couple's minor children, the marital residence, all of her 401(k) and Roth IRA, twenty-five percent of Robert's 401(k), and a portion of Robert's military pension. Robert was awarded the couple's other real-estate holdings, which had a negative value of $357, 000, and he was ordered to pay rehabilitative alimony, child support, private-school tuition, and mortgage payments on the marital home. Robert was also ordered to maintain a life- insurance policy with Jennifer as the primary beneficiary.

         ¶2. Robert filed a motion to alter or amend the judgment, requesting a clarification of visitation and alleging numerous errors such as the award of alimony, attorney's fees, and the equitable division of the marital assets. While the chancery court granted the motion in part on the issue of visitation, it denied the motion as to the other issues raised. Aggrieved, Robert now appeals.

         ¶3. Finding the chancery court (1) failed to make specific findings regarding the deviation from child support in excess of the statutory guidelines; (2) failed to address the specific McKee factors and whether Robert would be forced to liquidate assets to pay Jennifer's attorney's fees; and (3) erred in the equitable division of marital assets, we reverse the court's judgment in part and remand for further proceedings.


         ¶4. Robert and Jennifer were married in Florida on November 9, 2003. Jennifer was employed as a flight attendant, and Robert was a pilot with the United States Air Force. A daughter was born of the marriage on October 13, 2006. Jennifer remained employed but used her maternity and sick leave to stay home with the child.

         ¶5. In August 2008, the couple moved to Columbus, Mississippi, where Robert was stationed with the Air Force. A second daughter was born on May 23, 2009. The couple purchased a marital residence in Columbus, valued at $400, 000; they also owned four rental properties in Florida through their company, RJB Real Estate Holdings. Although both children were enrolled in school, Jennifer never returned to work. Robert retired from the Air Force on September 1, 2013, and went to work for Delta Airlines, which required him to be out of town often. Eventually, he moved into an apartment in Atlanta in April 2014, and the couple separated.

         ¶6. Jennifer filed a complaint for divorce with the chancery court on May 22, 2014, alleging habitual drunkenness and habitual cruel and inhuman treatment, or in the alternative, irreconcilable differences. In the complaint, she sought sole legal and physical custody of the couple's children, child support, medical insurance, an equitable division of marital assets, alimony, attorney's fees, and temporary support. She requested an emergency hearing for temporary relief, seeking exclusive use and possession of the marital home, sole custody of the children, and a restraining order against Robert.

         ¶7. Robert filed an answer and counterclaim for divorce, citing the same grounds. He requested sole legal and physical custody of the children, child support, reimbursement for one-half of insurance premiums, and all real property owned by the parties, except for the marital residence. He later supplemented his claim with an affidavit citing instances of Jennifer's excessive drinking, and alleging she had verbally and physically assaulted him. He also refuted Jennifer's claims of habitual drunkenness and noted he had not failed any random drug and alcohol tests by the Federal Aviation Administration over the years. ¶8. The chancellor appointed a guardian ad litem (GAL) on July 10, 2014, to investigate the allegations of heavy drinking, prescription drug use, and verbal abuse by both parties. On July 31, 2014, the chancery court temporarily awarded Jennifer "the sole use, possession and control of the marital home, the marital property and contents, " and issued a restraining order against Robert, excepting prescribed visitation with the minor children.

         ¶9. The GAL's report noted that both parties had "a history of drinking excessively." The report also expressed concern that Jennifer's drinking caused her to be "a very 'angry drunk.'" However, the report determined that both parties were sincere in their claims they were no longer drinking and "neither parent poses any risk of danger to the children." Because the children were already enrolled in school, the GAL recommended they remain in Jennifer's physical custody until a final hearing on the matter.

         ¶10. On October 14, 2014, the chancery court entered a temporary order, awarding Jennifer temporary legal and physical custody of the children, with Robert entitled to visitation. Robert was ordered to pay $3, 000 a month in temporary alimony, $2, 000 a month in child support, the mortgage and related expenses for the marital home, and any other joint debts of the parties, except utilities for the residence, which were to be paid by Jennifer. Robert filed a motion for reconsideration, which the court denied.

         ¶11. On November 14, 2014, Jennifer filed a motion for contempt, claiming Robert was $9, 400 in arrears for temporary alimony and child support.[1] On November 17, 2014, Robert also filed a petition for contempt, asserting Jennifer was denying him reasonable visitation and telephone contact with the children. Robert filed a subsequent motion for an emergency hearing and a response to Jennifer's motion for contempt, claiming he was simply "unable to pay due to a huge loss in his business." He argued that Jennifer should bear fifty percent of the costs to maintain the couple's four rental properties.

         ¶12. On June 1, 2015, Robert filed another petition for contempt. He claimed Jennifer continued to be uncooperative with visitation and was not paying the household bills or the children's school tuition. Jennifer responded that Robert had been aggressive when exchanging the children and that the children were unkempt and had not bathed after visitation with their father.

         ¶13. Two months later, Jennifer filed a motion to suspend Robert's visitation pending investigation, asserting claims that a couple of weeks after Robert's visitation with the girls in June, she found a search history of pornographic material on the iPad used by the couple's daughters. She attached an affidavit by a technology consultant, Benjamin Hurt. Robert denied the accusations, and he provided an affidavit from a computer forensic examiner who had reviewed the iPad and determined the information gathered by Hurt did "not originate from the iPad Mini under investigation but rather from an additional two iPads and an iPhone that were also associated" with Robert's Apple account. Thus, the examiner questioned the integrity of Hurt's results and concluded that he had "accessed these web sites, and, in turn, destroyed the evidence." On October 6, 2015, the chancery court appointed a second GAL to investigate the allegations. Upon recommendation by the second GAL, the chancellor reinstated temporary visitation to Robert on January 19, 2016.

         ¶14. On January 25, 2016, the parties consented to an entry of a divorce based upon irreconcilable differences. All other contested matters were submitted to the court for review. A trial was held on February 12, 2016. Jennifer filed a motion for contempt of the temporary order and to reopen the hearing on June 2, 2016, asserting that Robert was $57, 000 in arrears for alimony and $2, 225 in arrears for child support.

         ¶15. The chancery court entered a final judgment on June 6, 2016. Jennifer was awarded: (1) sole physical custody of the couple's minor children; (2) the marital residence and one-half of the equity;[2] (3) her 2008 Toyota Sequoia valued at $10, 500; (4) her 401(k) and Roth IRA fund cumulatively valued at $92, 000; (5) twenty-five percent of Robert's 401(k) which percentage was valued at $92, 000; (6) one-half of eight years of his military pension;[3] and (7) one-half of the couple's last joint income-tax refund. Robert was awarded the couple's other real-estate holdings, four rental properties in Florida with a negative value of $357, 000. He was also awarded his thrift savings plan valued at $21, 900, seventy-five percent of his 401(k) which percentage was valued at $276, 000, and a mortgage investment account valued at $6, 000. Robert was ordered to pay: (1) $1, 500 per month in rehabilitative alimony for thirty-six months for a total of $56, 000; (2) $1, 817 per month in child support;[4] (3) all tuition and fees associated with the children's private-school education;[5] (4) mortgage payments (approximately $2, 400 monthly), taxes, and insurance on the marital home. He was also ordered to provide health insurance for the children. The chancery court further directed Robert to pay $48, 000 in arrearage for temporary alimony, paying $1, 000 per month until the amount is paid in full.

         ¶16. Additionally, Robert was ordered to maintain a $500, 000 life-insurance policy with Jennifer as the primary beneficiary. Finding Jennifer in contempt for denying Robert his visitation and telephone contact, the court awarded Robert $10, 000 in attorney's fees. But he also awarded Jennifer $15, 000 in attorney's fees, finding she had no ability to pay the fees without liquidating assets.

         ¶17. Robert filed a motion to alter or amend the judgment on June 16, 2016, objecting to the "award of alimony, division of property and debts, award of attorney fees, and judgment of past[-]due alimony." He specifically argued that the monthly financial obligation imposed on him was "excessive and unreasonable, " as it exceeded seventy percent of his adjusted monthly gross income. He also claimed the chancery court's order to maintain the $500, 000 life-insurance policy would cause him to exceed his available income and created a risk of harm to him because Jennifer had previously threatened him. Lastly, he requested clarification of the visitation.

         ¶18. The chancellor granted Robert's motion to clarify visitation on June 27, 2016, but denied his motion as to the other assignments of error. Robert now appeals.


         ¶19. Our appellate standard of review in a domestic-relations matter is limited - we generally will not overturn a chancery court's findings of fact unless they are "manifestly wrong or clearly erroneous, " or it "applied an erroneous legal standard." White v. White, 208 So.3d 587, 592 (¶10) (Miss. Ct. App. 2016) (citations omitted). "In the case of a divorce decree, facts will be viewed in a light most favorable to the appellee." Id. (quoting G.B.W. v. E.R.W., 9 So.3d 1200, 1204 (¶8) (Miss. Ct. App. 2009)).


         I. Whether the chancellor erred in awarding Jennifer physical custody of the children.

         ¶20. Citing Jennifer's previous attempts to interfere with his visitation, Robert claims the chancellor's decision to award Jennifer sole physical custody of the children "was against the weight of the evidence and should be overturned." Jennifer contends that because Robert did not address the issue of custody in his motion to amend the judgment, he is procedurally barred from asserting it on appeal. However, in reference to Mississippi Rule of Civil Procedure 59, the Mississippi Supreme Court has stated:

[Although i]t is clearly the better practice to include all potential assignments of error in a motion for new trial . . . when the assignment of error is based on an issue [that] has been decided by the trial court and duly recorded in the court reporter's transcript, . . . [an appellate court] may consider it regardless of whether it was raised in the motion for new trial.

Kiddy v. Lipscomb, 628 So.2d 1355, 1359 (Miss. 1993); see also Jackson v. State, 423 So.2d 129, 131 (Miss. 1982) ("[I]t is not necessary to make a motion for a new trial grounded upon errors shown in the official transcript of the record, including the pleadings, transcribed evidence, instructions, verdict[, ] and judgment of the court."). Since the issue of child custody was clearly decided by the chancery court at trial, we find any failure to raise this issue in Robert's motion to alter or amend the judgment does not bar it from review on appeal.

         ¶21. "In reviewing a child custody decision, we will affirm unless the chancellor was manifestly wrong, the decision was clearly erroneous, or the chancellor applied an erroneous legal standard. Error arises if the chancellor's decision is not supported by substantial evidence in the record." Ethridge v. Ethridge, 226 So.3d 1261, 1262 (¶5) (Miss. Ct. App. 2017) (quoting Limbaugh v. Limbaugh, 749 So.2d 1244, 1246 (¶9) (Miss. Ct. App. 1999)). In Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983), the supreme court held that "the polestar consideration in child custody cases is the best interest and welfare of the child." Factors to be considered in determining an award of custody are:

[the] health[] and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school[, ] and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of [the] home environment and employment of each parent[;] and other factors relevant to the parent-child relationship.

Id. In this case, the chancellor thoroughly considered the applicable Albright factors and determined that the following factors favored Jennifer: continuity of care; employment of the parent and responsibilities of that employment; home, school, and community record of the children; and stability of the home environment. As to the remaining factors, including parenting skills and moral fitness, the chancellor found neither party was favored.

         ¶22. We find no manifest error in the chancellor's determination to award sole physical custody to Jennifer. As the chancellor mentioned, the children had grown up in Columbus, with Jennifer as the primary caregiver. Robert lived in Atlanta, and was frequently traveling due to his job as a pilot, with little support to help him with the children. Accordingly, this issue is without merit.

         II. Whether the chancery court erred in ordering Robert to pay the children's tuition and fees in addition to child support.

         ¶23. The chancery court ordered Robert to pay $1, 817 per month in child support. This amount represents twenty percent of his adjusted gross income per the statutory guidelines in Mississippi Code Annotated section 43-19-101(1) (Rev. 2015). Additionally, the court determined that Robert should pay the children's tuition and fees for private school. The children attend a private school in Columbus with a monthly tuition cost of $780.

         ¶24. Robert argues that this was a deviation from the child-support guidelines and required additional findings of fact by the court. Therefore, he argues this award should be reversed. We agree. Ordinarily, "[p]re-college tuition is considered part of child support, not an extraordinary expense, " and the chancery court may not require a parent to pay said tuition in excess of the statutory percentage "without a written or specific finding . . . as to why the deviation is needed." Moses v. Moses, 879 So.2d 1043, 1048 (¶14) (Miss. Ct. App. 2004) (citing Southerland v. Southerland, 816 So.2d 1004, 1006 (¶11) (Miss. 2002) & § 43-19-101(2)). Since the chancery court failed to make specific findings as to why Robert should be obligated to pay the children's tuition in excess of the ordered child support, we reverse the judgment as to this issue and remand for further findings, especially as Robert's court-ordered monthly financial obligations of over $6, 500 exceed, as he notes in his brief, "seventy percent (70%) of his monthly income." Jennifer even acknowledges that "Robert is paying a large percentage of his income to support [her] and [the] children." While we acknowledge that Robert's adjusted gross income exceeded $100, 000, as noted by Judge Fair in his dissent, section 43-19-101(4) requires in such cases that the chancery court "make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable." Here, the chancellor simply determined that Robert ...

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