Linda Y. Barnes v. George Neil Barnes
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00168-COA
LINDA Y. BARNES
APPELLANT
v.
GEORGE NEIL BARNES
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
12/23/2002
HON. JOHN C. ROSS, JR.
TISHOMINGO COUNTY CHANCERY COURT
JOHN R. WHITE
JAK MCGEE SMITH
CIVIL - DOMESTIC RELATIONS
DIVORCE GRANTED ON THE GROUNDS OF
IRRECONCILABLE DIFFERENCES WITH NO
ALIMONY, JOINT CUSTODY OF THE MINOR
CHILD AND DIVISION OF THE MARITAL
ASSETS.
REVERSED AND RENDERED - 05/25/04
BEFORE KING, C.J., BRIDGES, P.J., AND CHANDLER, J.
BRIDGES, P.J., FOR THE COURT:
¶1.
In August of 2000 Linda Y. Barnes filed a complaint for divorce from George N. Barnes on the
grounds of adultery, habitual cruel and inhuman treatment and habitual drunkenness. She also requested
a hearing for temporary relief and a temporary restraining order. In February of 2001 Linda filed a motion
for contempt based on George’s failure to pay the ordered temporary support.
¶2.
In George’s answer he alleged habitual cruel and inhuman treatment and irreconcilable differences.
The case was continued six times due to George’s failure to appear at the hearing. Finally, in August of
2002, George appeared in court. Linda gave testimony on both direct and cross- examination, while
George only gave testimony on direct before the court was adjourned for the day. George failed to appear
at the next hearing date in October and the judge determined no additional testimony would be heard,
leaving Linda without an opportunity to cross-examine George.
¶3.
In a letter to the trial judge, Linda requested the testimony of George not be considered since she
did not have an opportunity to cross-examine but the trial judge handed down his final decree without
indicating whether or not the testimony of George was considered or excluded.
STATEMENT OF THE ISSUES
I. WAS IT REVERSIBLE ERROR FOR THE CHANCELLOR TO REFUSE TO ALLOW THE
PLAINTIFF TO CROSS-EXAMINE THE DEFENDANT?
II. DID THE TRIAL COURT PROPERLY APPLY EQUITABLE DIVISION PRINCIPLES UNDER
FERGUSON WHEN DIVIDING THE MARITAL ASSETS?
III. DID THE TRIAL COURT ERR IN NOT AWARDING LINDA BARNES ALIMONY?
FACTS
¶4.
Linda and George were married in July of 1986, in Covington, Tennessee. They have one child
from the marriage, George N. Barnes, II, born in November of 1987. The couple initially resided in
Memphis, Tennessee, until they moved to Iuka, Mississippi. The couple resided there and George opened
a dental practice until the separation when George moved to Germantown, Tennessee.
¶5.
A divorce was granted on the grounds of irreconcilable differences. In the divorce decree the
chancellor ordered the marital home sold and the proceeds divided between them. Linda retained sole use
and possession of the 1998 Mercedes Benz. Linda retained possession of her personal property which
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was moved to Germantown and George retained possession of his personal property remaining in Iuka.
No alimony was awarded and the couple received joint custody of their minor child.
ANALYSIS
¶6.
The standard of review in domestic relations case is well settled in the areas of divorce, alimony
and child support. An appellate court is required to respect the findings of facts made by a chancellor if they
are supported by credible evidence and are not manifestly wrong or clearly erroneous, provided that the
proper legal standard was applied. Sumrall v. Munguia, 757 So.2d 279, 282 (¶ 12) (Miss. 2000).
I. WAS IT REVERSIBLE ERROR FOR THE CHANCELLOR TO REFUSE TO ALLOW THE
PLAINTIFF TO CROSS-EXAMINE GEORGE BARNES?
¶7.
George Barnes was not cross-examined because he failed to appear at the hearing. This was one
of numerous times George had failed to appear at a scheduled court hearing. The chancellor determined
that the cross-examination of George was the only testimony remaining in the case and he could render his
decision fairly without a cross-examination. The chancellor did allow both sides an opportunity to submit
“findings and conclusions of law on the matter.” Linda did submit a letter to the chancellor requesting the
direct examination of George to be excluded from consideration and the letter also listed numerous findings
of fact.
¶8.
There is no ruling on whether or not the chancellor considered the testimony of George or excluded
it like Linda requested in her letter. This Court would like to note that Linda’s request was never put into
the form of a motion. Linda in her brief refers to Wisdom v. Stegall, 70 So.2d 43 (Miss 1954), which
holds a chancellor cannot base his finding and renderings on personal knowledge of the facts of a case but
can only rely upon the evidence adduced before him at the trial. Cross- examination is a useful tool “against
fabrication and falsehood” as well “as a test of the accuracy, truthfulness, and credibility of testimony.”
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Baker v. State, 307 So.2d 545 (Miss. 1975). The cross- examination of George, who was not only a
witness but a party, was necessary for the chancellor’s complete deliberation of the Barnes’ marriage and
assets without a one-sided slant on the facts and circumstances. The chancellor’s decision to grant the
divorce and division of the marital assets without Linda having an opportunity to cross-examine George is
reversed and rendered.
II. DID THE TRIAL COURT PROPERLY APPLY EQUITABLE DIVISION PRINCIPLES UNDER
FERGUSON WHEN DIVIDING THE MARITAL ASSETS?
¶9.
When dividing marital property the chancellor is to “make specific findings of fact and conclusions
of law in support of her division of the assets, as this Court has required in Ferguson v. Ferguson, 639
So.2d 921, 929 (Miss. 1994); Sandlin v. Sandlin, 699 So.2d 1198, 1203-04 (Miss. 1997); Kilpatrick
v. Kilpatrick, 732 So.2d 876, 880 & 882 (Miss. 1999); and Heigle v. Heigle, 771 So.2d 341, 346-48
(Miss. 2000). In his final decree the chancellor listed no specific findings relating to the Ferguson factors
in regard to the division of marital assets.
¶10.
The Court’s ruling on the issue above renders this issue moot; however, we would like to note that
the Court is aware that George Barnes has since passed away. Therefore, Linda will inherit assets of
George either through intestate succession or by his will rather than being awarded property through
equitable division.
III. DID THE TRIAL COURT ERR IN NOT AWARDING LINDA BARNES ALIMONY?
¶11.
The chancellor did not indicate in the record why he chose not to award Linda alimony. The
decision to award alimony is within the discretion of the chancellor who shall consider the following factors:
(1) the health of the husband and his earning capacity; (2) the health of the wife and her earning capacity;
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(3) the entire sources of income for both parties; and (4) the reasonable needs of the wife. Helmsley v.
Helmsley, 639 So.2d 909, 912-13 (Miss. 1994). This Court’s ruling makes this issue moot.
¶12. THE JUDGMENT OF THE CHANCERY COURT OF TISHOMINGO COUNTY IS
REVERSED AND RENDERED. ALL COSTS OF APPEAL ARE ASSESSED TO THE
APPELLEE.
KING, C.J., THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
SOUTHWICK, P.J., CONCURS IN RESULT ONLY. IRVING, J., NOT PARTICIPATING.
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