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Thomas v. Thomas

Court of Appeals of Mississippi

June 11, 2019


          DATE OF JUDGMENT: 01/24/2017





          J. WILSON, P.J.

         ¶1. Randy and Brandie Thomas consented to an irreconcilable differences divorce and agreed that the chancery court would determine custody of their three minor children, set visitation, award child support, equitably divide the marital estate, and decide their claims for attorney's fees. The chancery court resolved all of the stipulated issues in a final judgment and subsequent order addressing the parties' post-trial motions. Randy appealed, and Brandie cross-appealed. Randy alleges that the chancellor committed six errors, while Brandie raises seven additional issues. For purposes of analysis and discussion, we have combined a number of the parties' claims.

         ¶2. Randy argues that the chancellor erred by awarding Brandie physical custody of the children, while Brandie argues that the chancellor erred by awarding Randy too much visitation. We find no clear error or abuse of discretion in either ruling.

         ¶3. Randy argues that the chancellor overstated his income and ordered him to pay too much child support, while Brandie argues that the chancellor understated Randy's income and did not order him to pay enough support. Brandie also argues that the chancellor erred by granting Randy a credit against his child support arrearage for a lump sum payment that he received for past due Social Security benefits for their children on account of his disability. We find no clear error or abuse of discretion in the chancellor's findings regarding Randy's income or prospective child support obligation. However, we conclude that the chancellor erred in part in calculating Randy's credit against his child support arrearage. We remand for further proceedings on that issue only.

         ¶4. Randy challenges the fairness of the division of the marital estate. We find no error or abuse of discretion in the chancellor's analysis. We modify the judgment only to clarify ownership of a Yamaha "Rhino" Ranger ATV and a motorcycle.

         ¶5. Finally, on cross-appeal, Brandie argues that the chancellor erred by awarding Randy one-half of the income tax deductions for the children and by awarding her only $1, 000 in attorney's fees. We find no error or abuse of discretion in either ruling.

         ¶6. Thus, we modify the judgment of the chancery court to clarify ownership of the ATV and motorcycle, and we reverse and remand for recalculation of Randy's child support arrearage and disposition of the lump sum payment of past due Social Security benefits for the children. In all other respects, the judgment of the chancery court is affirmed.


         ¶7. Randy and Brandie were married on June 21, 1997. The couple had three children, Ashlyn, who was sixteen years old as of trial, Allyson, who was fourteen years old as of trial, and Anna, who was twelve years old as of trial.

         ¶8. Randy and Brandie first separated when Brandie filed for divorce in November 2008. Brandie was in the midst of an affair with Johnny Rayburn and had become pregnant with his child. However, after Brandie left the marital home, Randy asked her to return. Brandie told Randy that she was pregnant and had been having an affair, but she lied to Randy and told him that she was having an affair with Michael Hall. In fact, Brandie never had a sexual relationship with Hall, who was married to one of her friends. Brandie testified that she lied to Randy about the identity of her paramour because she did not want to break up Rayburn's marriage and family. Brandie also testified that she thought that there was a slight chance that Randy could be the father of her child even though Randy had undergone a vasectomy years earlier. Randy told Brandie that he wanted their family to stay together, and he forgave her. Brandie gave birth to a son, Austin, and Randy and Brandie raised him as their own.[1]

         ¶9. During the marriage Randy worked for UPS and as a real estate appraiser. In 2010, he was injured on the job at UPS. He was prescribed several medications, including opiates, for pain from the injury and resulting nerve damage. He was also prescribed medications to help him sleep and for anxiety and depression. In January 2013, Randy filed for Social Security disability benefits, and he was eventually approved for benefits retroactive to January 2012. In April 2015, Randy received lump sums of $40, 666 for past due benefits due to him and $21, 038 for past due benefits for his children. Randy claims that he spent the $40, 666 to support himself and his family over the course of the next six months, but he produced no other evidence to substantiate that claim. Randy testified that the lump sum for his children was still in a bank account. In April 2015, Randy also began receiving monthly disability benefit payments of $1, 329 for himself and $700 for his children.

         ¶10. After his injury, Randy was no longer able to work at UPS, but he continued to work as a self-employed real estate appraiser. He also leased residential properties through Thomas Properties LLC, as its sole member.[2] By the time of trial, Thomas Properties owned seven single-family homes and a trailer park with seven mobile homes.

         ¶11. Brandie worked as a real estate agent during the marriage. On her Rule 8.05 statement, she reported gross monthly income of $2, 600.50. She had earned gross commissions of $79, 240 in 2014, but her earnings decreased in 2015.

         ¶12. Brandie testified that Randy began abusing his painkillers while also drinking six to nine beers everyday in the shop behind their house. She testified that Randy liked to grill while he worked in the shop, but by dinner time he would be so intoxicated that he would drop trays of food on the ground and could not hold his eyes open at the dinner table. There was also testimony that Randy was arrested at least three times[3] while under the influence of drugs and alcohol. In addition, Randy's mother had to call an ambulance after she found him lying unresponsive on her porch. Brandie testified that Randy's drinking habits negatively impacted the children. Their youngest daughter, Anna, would lock herself in her room and cry when Randy would become drunk and angry. Brandie had to limit when the children could have friends over because the children were embarrassed by Randy's outbursts.

         ¶13. On February 21, 2014, Randy was arrested and charged with domestic violence. The parties offered different versions of the events leading up to the arrest. Randy testified that he was up late doing appraisal work and watching television in the living room while Brandie was asleep in their bedroom with Allyson and Austin. Randy claimed that Brandie came into the living room, threw a remote control at him, and slapped him in the face. Brandie then ran to the couple's bedroom where Allyson and Austin were still sleeping, locked the door, and called 911. Randy then kicked down the bedroom door. Randy testified that, at that point, he realized that he had lost his temper, so he turned around and walked back to the living room. According to Randy, he then went outside and retrieved a gun that he kept in his truck. Randy testified that he typically kept his guns locked in a safe in his bedroom closet, but this particular gun was in his truck because he had recently "traded for it." He brought the gun back inside to inspect the gun's handle, which was cracked. According to Randy, he did not have the gun in his hand when he kicked down the bedroom door; rather, he retrieved the gun only after he kicked down the door.

         ¶14. Brandie testified that she was in the bedroom asleep with Allyson and Austin when she awakened to the sound of Randy "being loud in the living room." She said that it sounded like he was arguing with someone even though he was alone. Randy suddenly walked through the bedroom to the closet where he kept his gun safe. She heard the safe open, and Randy turned on the lights in the bedroom. He stood next to the bed with a gun and asked, "Where are the kids?" Brandie asked why he had a gun and asked him several times to put it down. Randy then turned away and walked back to the living room. Brandie retrieved her phone from the kitchen, ran back to her bedroom, locked the door, and called 911. Randy followed her, and when he realized that the bedroom door was locked, he became very angry and kicked down the door. When the police arrived, Randy was sitting in a chair in the living room with a loaded gun next to him on the coffee table. Brandie testified that she took Allyson and Anna to counseling as a result of the incident.

         ¶15. After Randy's arrest, Brandie filed for a domestic abuse protection order. The justice court granted a protection order and ordered Randy to vacate the marital home. Randy moved in with his parents, who lived nearby. Randy testified that he stopped using drugs and drinking alcohol after his arrest. In April 2014, the couple reconciled, and Randy moved back into the marital home with Brandie and their children.

         ¶16. The couple separated for a final time on October 21, 2014, when Brandie filed a complaint for divorce and a motion for temporary emergency relief. Officers arrived at the marital home around 8:30 p.m. on October 21, 2014, to serve Randy with a restraining order and divorce papers. The officers' supervisor instructed them not to let Randy out of their sight because he was potentially dangerous and kept several guns in the home. When the officers arrived they explained to Randy that they "had a restraining order that was going to remove him from the house." According to the officers, Randy was angry but went to gather a few of his personal items. When he realized that the officers were following him, Randy told them to wait outside. The officers told Randy that they were under orders to not let him out of their sight. One of the officers testified that Randy "turned around angry and kind of butted me, you know, like, with his belly." Randy was arrested and pled guilty to disorderly conduct. He left the marital home and moved back in with his parents.

         ¶17. On November 19, 2014, the court entered an agreed temporary order. Brandie was granted temporary possession of the marital home and physical custody of the children. Randy was granted visitation every other weekend and ordered to pay $600 per month in temporary child support based on his reported income of $2, 500 per month. The order stated that the temporary child support award could be adjusted retroactively based on later-presented evidence. The order also provided that Randy would remain under a restraining order and was not to have any contact with Brandie except for visitation and school and church activities involving the children.

         ¶18. In a pretrial deposition, Brandie admitted the truth about her affair with Johnny Rayburn, and Rayburn subsequently filed a motion to intervene for a determination of Austin's paternity. The court granted Rayburn's motion. On April 6, 2016, the parties agreed to an order regarding the custody and paternity of Austin. Rayburn was adjudicated to be Austin's biological father. Brandie was granted physical and legal custody of Austin. Randy was granted visitation with Austin consistent with his visitation schedule with his daughters. The court dismissed Rayburn as a party but noted that he could pursue custody or visitation in a separate filing.[4]

         ¶19. On April 6, 2016, Brandie and Randy also consented to an irreconcilable differences divorce. They agreed to submit the issues of custody, visitation, child support, equitable division of the marital estate, contempt, and attorney's fees to the court for determination. The trial, which began with two days of testimony in November 2015, continued on the stipulated issues on April 6-7, 2016, April 11, 2016, and September 14, 2016.

         ¶20. Randy testified that he and Brandie shared parenting responsibilities prior to the separation. However, Brandie testified that she was primarily responsible for taking the children to school and extracurricular activities, shopping for their clothes, and helping them with homework. She testified that Randy occasionally helped her with such tasks.

         ¶21. Brandie testified that awarding Randy primary custody of their daughters would not be in the children's best interest because Randy never sought professional help for his drug and alcohol problems. Brandie opined that Randy was not sufficiently healthy or stable to be the children's primary caregiver. Brandie testified that she and her daughters have normal parent-child relationships. She also testified that her daughters may now prefer to live with Randy because he spends more money on them and spends more time with them now that he is sober. She noted that Randy had bought the girls a pet monkey since the separation.

         ¶22. Ashlyn (age sixteen at the time of trial) testified that she preferred to live with Randy because she was very close to her father and they enjoyed the same activities. She testified that she loved both of her parents equally and that she was not angry with Brandie about her affair with Rayburn.

         ¶23. Anna (age twelve) also testified that she would prefer to live with Randy, although she acknowledged that her father drank excessively prior to the separation. Anna testified, "[M]om is so busy with her job, she's on the phone a lot, and she is like going out to show houses. And whenever we're with daddy, he's like playing games with us, and he's not like working on his job usually." Anna also testified that she had not seen Randy drink at all since her parents separated. She testified that Brandie was primarily responsible for taking care of her and her siblings.

         ¶24. Allyson (age fourteen) did not state a preference as to physical custody. She did testify that Brandie was primarily responsible for taking care of her and her siblings. All three daughters testified that they wanted to stay together with each other and Austin.

         ¶25. On January 24, 2017, the chancery court entered a final judgment granting the parties a divorce based on irreconcilable differences. Both parties filed post-trial motions, and on April 7, 2017, the court entered a ruling disposing of all pending post-trial motions. In the final judgment, as amended, the court awarded the parties joint legal custody of their three children, awarded physical custody of the children to Brandie, and granted Randy "extensive visitation"-including three weekends per month, alternate weeks in the summer, and specified visitation during spring break and holidays. The court ordered Randy to pay a child support arrearage of $9, 882, with interest to accrue at an annual rate of eight percent. The court ordered Randy to pay at least $500 per month toward the arrearage. The court also ordered Randy to pay $702.50 per month in continuing child support. The court's calculations with respect to Randy's child support obligations are discussed in more detail below.

         ¶26. The chancery court also classified and valued Randy and Brandie's property. The court classified two mobile homes as Randy's separate property. Randy had purchased the mobile homes as rental properties after the entry of an agreed temporary order. All of the parties' other assets were classified as marital property. The court awarded Brandie marital assets with a total net value of $379, 771.64 and awarded Randy marital assets with a total net value of $384, 313.68. Brandie was awarded the marital home, with a net value of $250, 000, and twenty-eight percent of the value of Thomas Properties LLC. Randy was ordered to pay Brandie for her share of Thomas Properties ($113, 074.64) within 180 days. Randy was awarded ownership of Thomas Properties, which was valued at $403, 827.32, less Brandie's interest, for a net value of $290, 755.68. Randy was also awarded his $40, 666 lump sum payment from Social Security, which he claimed he had already spent.

         ¶27. Randy appealed, and Brandie cross-appealed. We have summarized their remaining disagreements above. See supra ¶¶2-5. For the reasons explained below, we affirm the chancery court's final judgment with two exceptions: we clarify ownership of an ATV and a motorcycle, and we remand for a recalculation of Randy's child support arrearage and disposition of the lump sum payment for the children's Social Security benefits.


         I. Child Custody

         ¶28. "A chancellor's custody decision will be reversed only if it was manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard." Smith v. Smith, 97 So.3d 43, 46 (¶7) (Miss. 2012). "[T]his Court cannot reweigh the evidence and must defer to the chancellor's findings of the facts, so long as they are supported by substantial evidence." Hall v. Hall, 134 So.3d 822, 828 (¶21) (Miss. Ct. App. 2014). Thus, on appeal in a child custody case, the issue is not whether this Court "agrees with the chancellor's ruling," but only whether "the chancellor's ruling is supported by credible evidence." Hammers v. Hammers, 890 So.2d 944, 950 (¶14) (Miss. Ct. App. 2004).

         ¶29. "[T]he polestar consideration in child custody cases is the best interest and welfare of the child." Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). In evaluating the child's best interest, the chancellor must consider the following factors: (1) the age, health, and sex of the child; (2) which parent had "continuity of care prior to the separation"; (3) "which has the best parenting skills"; (4) which has "the willingness and capacity to provide primary child care"; (5) both parents' employment responsibilities; (6) the "physical and mental health and age of the parents"; (7) the "emotional ties of parent and child"; (8) the "moral fitness of the parents"; (9) the "home, school and community records of the child"; (10) the child's preference, if the child is at least twelve years old; (11) the "stability of the home environment and employment of each parent"; and (12) any "other factors relevant to the parent-child relationship" or the child's best interest. Id.

         ¶30. The chancellor must address each Albright factor that is applicable to the case. Powell v. Ayars, 792 So.2d 240, 244 (¶10) (Miss. 2001). However, the chancellor need not decide that each factor favors one parent or the other. Weeks v. Weeks, 989 So.2d 408, 411 (¶12) (Miss. Ct. App. 2008). Nor does Albright require that "custody . . . be awarded to the parent who 'wins' the most factors." Blakely v. Blakely, 88 So.3d 798, 803 (¶17) (Miss. Ct. App. 2012). "[T]he chancellor has the ultimate discretion to weigh the evidence the way [she] sees fit." Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶36) (Miss. 2003). We review the chancellor's application of the factors for manifest error, giving deference to the weight that she assigned to each factor. Smith v. Smith, 206 So.3d 502, 513 (¶24) (Miss. 2016).

         ¶31. In this case, the chancellor found that age, health, and sex of the children; the physical and mental health of the parties; parenting skills; and other factors relevant to the parent-child relationship favored Brandie. The chancellor found that the preferences of Ashlyn and Anna "strongly favor[ed]" Randy with respect to Ashlyn and Anna. The chancellor found other factors to be neutral and ...

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