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McCarley v. McCarley

Court of Appeals of Mississippi

August 21, 2018

RICKEY MCCARLEY APPELLANT
v.
KELLIE MCCARLEY APPELLEE

          DATE OF JUDGMENT: 12/19/2016

          PRENTISS COUNTY CHANCERY COURT TRIAL JUDGE: HON. JACQUELINE ESTES MASK

          ATTORNEYS FOR APPELLANT: DAVID O. BUTTS JR. WILLIAM WAYNE HOUSLEY JR.

          ATTORNEY FOR APPELLEE: GREG E. BEARD

          BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

          CARLTON, JUDGE

         ¶1. Rickey McCarley appeals the Prentiss County Chancery Court's judgment awarding his wife, Kellie McCarley, separate maintenance. Rickey asserts the following assignments of error: (1) the chancellor erred by failing to make the transcript of her telephonic hearing part of the record and (2) the chancellor erred in awarding Kellie separate maintenance. Finding no error, we affirm the chancellor's judgment.

         FACTS

         ¶2. Rickey and Kellie were married in November 1979 and separated in October 2015. At the time of their separation, Rickey and Kellie had two adult children.

         ¶3. On February 5, 2016, Rickey filed a complaint for divorce from Kellie on the grounds of constructive desertion, habitual cruel and inhuman treatment, and irreconcilable differences. Rickey also set forth his specific requests regarding the division of marital property.

         ¶4. On February 11, 2016, Kellie filed a complaint alleging that she and Rickey separated due to Rickey's adultery and habitual cruel and inhuman treatment. Kellie requested that the chancellor award her temporary alimony and permanent separate maintenance during the term of the separation, as well as continued coverage under Rickey's insurance policy and one-half of Rickey's retirement. On March 28, 2016, the chancellor entered an order consolidating the cases. The chancellor then entered a "Temporary Agreed Order" on June 15, 2016, requiring Rickey to maintain Kellie's health insurance and pay her $250 every two weeks; the chancellor also granted Kellie exclusive use and possession of the marital home.

         ¶5. At a trial held on October 24, 2016, the chancellor heard testimony from Kellie and Rickey, as well as Rickey's brother, Roger McCarley, and Penny Gravedoni, Rickey's girlfriend.[1] After the trial, the chancellor informed the parties that although she would like to make a ruling from the bench that same day, she needed time to review the exhibits presented by the parties. The chancellor then scheduled a telephone conference with the attorneys, explaining that she would give her opinion at that time and also ask one of the attorneys to prepare the order. The transcript of the telephone conference does not appear in the record.

         ¶6. On December 2, 2016, the chancellor entered an order denying Rickey's complaint for divorce on the ground of habitual cruel and inhuman treatment. However, the chancellor found that Kellie met her burden of proving that she was entitled to separate maintenance. The chancellor awarded Kellie the marital home and $500 per month for spousal support. The chancellor also divided the other marital property.

         ¶7. On December 19, 2016, the chancellor entered an amended order clarifying that because she found Kellie "is without material fault in the separation and that [Rickey] abandoned [Kellie] and has refused to provide any support," Kellie met her "burden of proof necessary to support her claim for separate maintenance." ¶8. Rickey timely appealed the chancellor's order.

         STANDARD ...


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