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Vandenbrook v. Vandenbrook

Court of Appeals of Mississippi

March 26, 2019

CHRISTOPHER PAUL VANDENBROOK APPELLANT
v.
CHARLOTTE EMMA (MCKINNEY) VANDENBROOK APPELLEE

          DATE OF JUDGMENT: 01/03/2017

          DESOTO COUNTY CHANCERY COURT HON. VICKI B. DANIELS JUDGE

          ATTORNEYS FOR APPELLANT: D. PACE BRANAN T. SWAYZE ALFORD KAYLA FOWLER WARE

          ATTORNEYS FOR APPELLEE: CHARLES E. WINFIELD MALENDA HARRIS MEACHAM ASHLYN BROWN MATTHEWS

         EN BANC.

          CARLTON, P.J.

         ¶1. Christopher Vandenbrook (Chris) appeals the judgment of the DeSoto County Chancery Court that, among other things, (1) awarded custody of the parties' minor children to his wife, Charlotte Emma Vandenbrook[1] (Emma), (2) ordered Chris to pay Emma child support, but denied him the right to claim any of the children on his tax return, and (3) adjudicated Chris in contempt and awarded attorney's fees to Emma.

         ¶2. After our review, we find as follows: we affirm the chancellor's custody determination; we reverse and remand the chancellor's award of child support and retroactive child support; we affirm the chancellor's award of the tax exemption to Emma and denial of Chris's motion for reconsideration with respect to Chris's request to offer additional evidence regarding his W-2; we affirm the chancellor's decision to exclude the photographs of the marital home from evidence; and we reverse and render the chancellor's judgment finding Chris in contempt as well as the chancellor's award of attorney's fees to Emma in the contempt action.

         FACTS

         ¶3. Emma and Chris were married on January 14, 2000, in Paducah, Kentucky. Three male children were born to the parties. During the marriage, the parties lived in Kentucky, North Carolina, Missouri, and Mississippi. Chris worked during the marriage and was the primary breadwinner, while Emma was primarily a stay-at-home parent.

         ¶4. On April 23, 2014, Emma filed a complaint for divorce and temporary relief on the grounds of habitual cruel and inhuman treatment, constructive desertion, or irreconcilable differences. Emma requested custody of the parties' three minor children, child support, permanent alimony, and an equitable division of the marital assets. She also requested separate maintenance. Chris filed an answer and a counterclaim but later withdrew it. The chancellor entered a temporary order on April 5, 2016, ordering Chris to pay Emma temporary child support in the amount of $1, 400 per month and to pay for Emma's automobile note and insurance. The temporary order also allowed Emma to move back into the marital home with Chris if she chose to do so, and both parties were enjoined from removing any property from the marital home.

         ¶5. After several continuances, the matter was set for trial, and Emma filed a petition for contempt against Chris, alleging that he had violated the temporary order by exercising stock options. Emma's petition was set for hearing on the date of the trial.

         ¶6. A trial was held on December 13, 2016. Emma presented her case and evidence to support her grounds for divorce, and at the conclusion of Emma's case, Chris moved for an involuntary dismissal of Emma's complaint pursuant to Rule 41 of the Mississippi Rules of Civil Procedure.

         ¶7. On December 15, 2016, the chancellor made a bench ruling granting Chris's Rule 41 motion and dismissing Emma's complaint for divorce on the grounds of habitual cruel and inhuman treatment. The chancellor also found Chris in contempt of the temporary order for selling stock options without obtaining approval or permission of the court.

         ¶8. Regarding child custody, the chancellor conducted an Albright[2] analysis and found it was in the children's best interest to grant Chris and Emma joint legal custody, with Emma having physical custody and Chris having certain periods of visitation. The chancellor ordered Chris to pay Emma $3, 690 per month in child support; maintain health, vision, and dental insurance on the minor children, and be responsible for seventy-five percent of all medical expenses not covered by insurance. The chancellor also ordered Chris to pay Emma $49, 730 in retroactive child support. Additionally, the chancellor ordered Chris to pay Emma attorney's fees in the amount of $29, 346.06 for the divorce and $2, 500 in attorney's fees for the contempt action. On January 3, 2017, the chancellor entered an order memorializing her bench ruling.

         ¶9. Both Emma and Chris filed motions for reconsideration, seeking to alter or amend the judgment pursuant to Rule 59 of the Mississippi Rules of Civil Procedure. Emma also filed a motion for additional attorney's fees, and Chris filed a separate motion for relief from the judgment pursuant to Mississippi Rule of Civil Procedure 60(b). Following a hearing on the motions, the chancellor took them under advisement, and on June 1, 2017, the chancellor entered her order denying Chris's motions and granting in part and denying in part Emma's motion, stating that the denial of a divorce was proper. The order also denied Emma's request for additional attorney's fees. Chris appeals from the final order and the denial of his posttrial motions.

         DISCUSSION

         ¶10. "A chancellor's findings will not be disturbed on appeal 'when supported by substantial evidence unless the chancellor abused [her] discretion, was manifestly wrong, clearly erroneous[, ] or an erroneous legal standard was applied.'" Powell v. Powell, 976 So.2d 358, 361 (¶10) (Miss. Ct. App. 2008) (quoting Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶8) (Miss. 2002)). "However, where the chancellor improperly considers and applies the Albright factors, an appellate court is obliged to find the chancellor in error." Collins v. Collins, 98 So.3d 506, 507 (¶7) (Miss. Ct. App. 2012). "It is for the chancellor to determine the credibility and weight of the evidence." Divers v. Divers, 856 So.2d 370, 373 (¶9) (Miss. Ct. App. 2003).

         I. Custody

         ¶11. In custody matters, the Mississippi Supreme Court has established the following guidelines to assist chancellors in making considerations regarding the best interest of children:

We reaffirm the rule that the polestar consideration in child[-]custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: 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 [the] 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 home environment and employment of each parent[;] and other factors relevant to the parent-child relationship.

Albright, 437 So.2d at 1005.[3]

         ¶12. With these guidelines in mind, Chris concedes that the chancellor used the correct legal standard set forth in Albright to determine child custody, but he contends that she failed to consider all of the evidence introduced at trial on those factors. He further contends that the chancellor failed to give the appropriate weight to several factors. As a result, Chris argues that the chancellor erred when she awarded physical custody of the children to Emma.[4] Emma, however, asserts that the chancellor employed her subjective judgment of the witnesses' credibility, assessed the wide-ranging evidence before her, and acted within her discretion in awarding custody of the minor children.

         ¶13. The chancellor found that five of the Albright factors favored Emma (continuity of care; parenting skills; employment and responsibilities of employment; emotional ties with children; and preference of two oldest children) and that only one of the factors favored Chris (sex of the children).[5] The chancellor found that the remaining six factors favored neither parent over the other (health of the children; willingness and capacity to be the primary care giver; age, physical health, and mental health of each parent; moral fitness; home, school, and community records of children; and stability of home environment and employment).

         A. Age, Health, and Sex of the Children

         ¶14. Chris contends that this factor clearly favored him because all of the children are male. He relies on Flowers v. Flowers, 90 So.3d 672, 680 (¶32) (Miss. Ct. App. 2012), which states that "when the health aspect is neutral, the child's gender in relation to that of the parent is clearly relevant. Furthermore, this Court has upheld a chancellor's determination on this factor based solely on gender."

         ¶15. The chancellor in the present case reasoned that all the children appeared to be in good health, because she did not hear any evidence to the contrary. She adduced that the health of the children did not favor either party. Since the children are all male, she found that this "factor might slightly favor [Chris]." She found that the health of the children did not favor either party. We find no abuse of discretion as to this factor.

         B. Continuity of Care

         ¶16. The chancellor stated the following: "[This] factor strongly favors the mother. The mother [has been] a stay-at-home mom for the majority of the life of these children. And so she continued to have the children, even during periods of separation she has still seemed to exercise the continuity of care of the children." Chris asserts that this factor should not default to a stay-at-home mom. He further asserts that although Emma was a stay-at-home mom, "she spent much time during the marriage traveling back and forth to Kentucky, partying with friends, pursuing extramarital relationships, and on her phone texting or calling individuals."

         ¶17. Emma responds that the chancellor's finding on this factor is supported by substantial evidence and therefore should be affirmed. Despite Chris's arguments, it is the chancellor's job to determine the credibility and weight of the evidence. Based our review of the ...


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