Michael Phillips v. Sarah Phillips
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-02019-COA
MICHAEL PHILLIPS
APPELLANT
v.
SARAH PHILLIPS
DATE OF 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:
MANDATE ISSUED:
APPELLEE
05/08/2008
HON. FRANKLIN C. MCKENZIE, JR.
JONES COUNTY CHANCERY COURT
TERRY L. CAVES
SHERRY L. LOWE
CIVIL - DOMESTIC RELATIONS
GRANTED DIVORCE, EQUITABLY
DIVIDED THE MARITAL ESTATE, AND
AWARDED JOINT PHYSICAL CUSTODY
OF THE MINOR CHILDREN
AFFIRMED - 04/06/2010
BEFORE KING, C.J., BARNES AND ROBERTS, JJ.
BARNES, J., FOR THE COURT:
¶1.
The Chancery Court of Jones County granted Michael and Sarah Phillips a divorce
on the ground of irreconcilable differences. Michael appeals the chancery court’s custody
determination regarding the parties’ two children and division of certain marital assets and
liabilities. Regarding child custody, Michael claims the chancellor: (1) failed to make onthe-record findings as to why the eldest child’s preference should not be honored and (2)
erred in awarding joint legal and physical custody to the parties. Regarding the distribution
of the parties’ assets and debts, he claims the chancellor erred in (1) not taking into
consideration Sarah’s alleged misconduct during the marriage, (2) not enforcing the parties’
“pre-separation agreement” concerning the disposition of certain real property, and (3) failing
to properly classify and equitably divide certain debts of the parties. Finding no error, we
affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2.
Michael and Sarah married in 1984. Two daughters were born of the marriage:
Shayla and Samantha, who, at the time of trial, were fourteen and ten years old, respectively.
In 1989, the parties moved to a house then owned by Sarah’s grandparents on Duck Hill
Road in Soso, Mississippi. In 1996, the parties bought 10.4 acres on Union Line Road in
Soso, and lived in an old homestead until Michael completed the building of the new marital
home on the property in 2001. The parties financed the construction of the new house
through Trustmark National Bank. Later, they bought another five acres which adjoins the
10.4 acres, which was financed through the Bank of Jones County, which initially held a lien
on both tracts of land, excluding the house and one acre. Also, the parties purchased a onehalf-acre strip of land separate from their homestead property for $800, which adjoins
property owned by Sarah’s parents.
¶3.
In November 2005, Michael approached Sarah about an exchange of quitclaim deeds
on a portion of their property after he claimed that she had refused to pay the family’s bills
and that creditors were harassing him. Michael stated that they agreed each person would
be responsible for his or her own bills. Michael claims Sarah did not want anything to do
with the property at issue. Therefore, they agreed Sarah would deed the 10.4 acre and five-
2
acre parcels of land to him, excluding the house and one acre. In return, Sarah would receive
a one-third interest in the one-half acre strip of land, jointly deeded to her and her two
children. Michael would assume responsibility for the loan at the Bank of Jones County, and
Sarah’s name would be taken off this note.
At the time, the note had a balance of
$12,201.65. The parties would retain joint ownership of the marital homestead and one acre.
Michael had an attorney draw up the quitclaim deeds, and Sarah eventually signed them.
¶4.
During the course of the marriage, the parties separated several times. Michael
admitted that once the children were born, he left them with Sarah whenever the couple
separated. Also, Michael stipulated to an affair with a woman from 1995 to 1996, but Sarah
subsequently condoned his adultery.
In March 2006, however, Sarah and Michael
permanently separated. Sarah moved back into the Duck Hill home, which her parents now
owned, and Michael stayed at the Union Line home. On this property, he has a shop related
to his construction business which he built with the original proceeds from the loan with the
Bank of Jones County.
¶5.
In January 2007, Michael filed for a divorce in the Jones County Chancery Court
under the ground of habitual, cruel and inhuman treatment or, in the alternative,
irreconcilable differences. He requested custody of the two children, child support, and
ownership of the Union Line marital home. In March 2007, the chancellor executed a
temporary order granting temporary physical custody of the children to Michael on the
weekdays and to Sarah on the weekends. Michael was also granted temporary use and
possession of the Union Line homestead.
¶6.
In June 2007, Sarah’s counsel sent a letter to Michael’s counsel stating her refusal to
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agree to an irreconcilable differences divorce, and that Michael would have to prove a
ground for divorce. Therefore, Michael hired private investigators, who had Sarah under
surveillance for several days in September. The investigators testified at trial that Sarah was
seen in the company of a man with whom Michael suspected she was having an affair. At
trial, Sarah admitted to having sexual relations with this man after she had separated from
Michael; however, she denied having sexual relations with any man prior to the separation.
¶7.
At the end of September 2007, Michael amended his complaint for divorce to allege
adultery. In October 2007, the parties agreed to an irreconcilable differences divorce. A
two-day trial was held in March and April 2008 on the matters of child custody and property
distribution.
¶8.
Testimony revealed both parties held a variety of jobs during the course of the
marriage and made similar incomes. From 1990 to 1999, Michael entered into a series of
businesses, including diesel repair, a “quick stop,” and mobile home repairs.
Some
businesses were not successful. Since November 2007, Michael had been working for his
brother in the construction business. For most of the marriage, Sarah worked outside of the
home for various employers. For the past nine years, she has worked at Wayne Farms in
Laurel, Mississippi as a payroll clerk. Sarah provides for the children’s health and dental
insurance through her employer. During the marriage, she was usually responsible for
paying the parties’ bills. Sarah testified that many of Michael’s business ventures were not
profitable or failed; therefore, the family had to rely solely on her income.
¶9.
Regarding child custody, Shayla, the eldest child, who was fourteen at the time,
testified that she preferred living with her father during the week and her mother during the
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weekend. She found her father’s home “safer” than her mother’s, and the heat in her
bedroom at her mother’s home inadequate. Additionally, at her mother’s home, Shayla
complained that everyone shares a bathroom, and that she and her sister share a bedroom.
However, at her father’s home, the girls have their own bedrooms and bathrooms. Shayla
also stated that they have a better daily routine at their father’s house. Additionally, Shayla
mentioned some incidents which made her feel uncomfortable under her mother’s care. She
testified that once she and her mother and sister got into an argument, and Shayla sustained
a small bruise where her maternal grandfather grabbed her wrist. Another time, she stated
her mother drank half a beer while driving her to a football game.
¶10.
Michael stated that he desired primary custody of both children during the week, with
Sarah having visitation during the weekends. He testified Sarah takes the girls to school, and
in the afternoon, Sarah either picks the girls up or they ride the bus and are taken to the home
of Michael’s parents, which is five miles from his Union Line home. He stated Sarah mostly
takes the girls to their after-school activities, such as softball, T-ball, basketball, or
cheerleading; however, he attempts to attend the various games and activities when he was
not working. He was the children’s “disciplinarian.” Because of his parents’ involvement
in the children’s lives after school, he took credit for eighty percent of the children’s care.
Michael claimed to have a more stable routine for the children, a more flexible work
schedule, and a better home than Sarah. He noted the Union Line home is much larger than
Sarah’s Duck Hill residence. Further, Michael complained of the “environment” and
“atmosphere” of the Duck Hill home, which is in a historically African American area of
Soso. Michael also testified that Sarah has “bad parenting skills” because she drinks alcohol
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around the children, and he does not.
¶11.
Sarah testified that she desires primary custody or, in the alternative, joint legal and
physical custody. If she were granted only weekend custody, she noted she would have less
time with the girls, because they were at an age where they were engaging in social activities
on the weekend. Sarah contends her employment hours are from 7:30 a.m. to 4:40 p.m., but
flexible for child care. Her supervisor corroborated these facts. She has days off for family
emergencies. Prior to the separation, Sarah estimated that Michael had had two affairs, while
she was faithful until after the separation. She claims since separation, Michael has been in
a relationship with another woman, who has spent time around the children. While the
residence at Union Line is newer and larger, Sarah denied the Duck Hill home is in an unsafe
neighborhood. In fact, it is the home she grew up in and where the parties started their
family at the beginning of their marriage. Sarah maintains her home has adequate heat. She
felt that since her daughters are near the age of puberty, they need their mother. Regarding
the incident of driving and drinking beer which Shayla mentioned, Sarah explained that she
had had a bad day and had poured half of a beer in a cup, but she only drank half of that,
while taking Shayla to a ballgame. She has never received a DUI, and stated she does not
normally drink around the children. Evidence showed Sarah did most of the housework for
the family and was “the nurturer.” At trial, several relatives and friends testified to the fact
both Michael and Sarah were good parents.
¶12.
Additionally, there was a great deal of testimony regarding the parties’ assets and
debts. The marital home on Union Line Road and one acre was appraised at $157,500. The
surrounding 10.4 and five acres of “raw land” were appraised at $62,500. At the time of trial,
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the parties owed $92,875.15 on their mortgage note with Trustmark National Bank and
$14,767.10 on a loan from the Bank of Jones County for the 10.4 acres and five acres
surrounding the marital homestead.1 Michael requests ownership of the 10.4 and five acres,
the marital home, and the one acre upon which the home is situated.
¶13.
Michael borrowed $20,000 from the Bank of Jones County shortly after the parties
separated in April 2006 for family bills. Michael also claimed that Sarah had charged a great
deal on his credit card before their separation. Sarah denied this claim. The credit card’s
balance was approximately $12,000. However, after six months of working with the credit
card company, Michael “settled it out” for $3,800. The parties also borrowed $15,000 from
Michael’s parents in April 2003 to pay family bills, signing a promissory note to that effect,
which was entered into evidence. Both parties admitted the note is still unpaid; there was no
proof of payments after November 2004. Michael also testified that the parties borrowed an
additional $25,000 from his parents over the course of the marriage for bills and home
improvements, but the only proof of debt presented was the $15,000 promissory note. Sarah
stated she also borrowed money from her parents, but again, no proof was entered into
evidence.
¶14.
Regarding the quitclaim deeds executed in November 2005, Michael denied that Sarah
was coerced into signing the deeds. He states, and Sarah concurs, that an attorney was hired
to represent them both in the transaction, and Sarah voluntarily went to the attorney’s office
1
Michael also testified that he used part of this loan to build a large shop on the
property and for land improvements. Additionally, the pay-off amount increased since he
took Sarah’s name off the loan because Michael refinanced the loan in order to have smaller
monthly payments.
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to execute the deeds. However, Sarah testified that she signed them because “he told me to
sign it” and to “get [Michael] off [her] back.” At the time, she did not understand why they
were splitting up the property, but she felt that by signing the deeds, she was saving her
marriage.
¶15.
In April 2008, the chancellor issued an opinion analyzing the factors for child custody
and property distribution. Regarding the quitclaim deeds, the chancellor found that Michael
was anticipating the divorce, and his intent was to put himself at an advantage over Sarah
regarding the division of the marital assets. Accordingly, the chancellor found all of the real
property in the deeds, excluding the half-acre strip of land, marital property, and he awarded
Sarah an undivided fifty-percent share in this property and the marital home. Regarding the
$15,000 debt to Michael’s parents, the chancellor found no evidence that there was an actual
promissory note that set up a payment plan or obliged either spouse to make payments;
therefore, it was not a marital debt. Additionally, he ruled that the statute of limitations had
run on the collection of the debt.2
¶16.
In May 2008, the court entered a judgment granting the parties a divorce based on
irreconcilable differences. Because of the similarity in the parties’ incomes, no child support
or alimony was awarded. The chancellor granted the parties joint legal and physical custody
of the two minor children, with the parents alternating physical custody on a week-to-week
basis. The court determined the value of the Phillipses’ marital property to be $220,000.
This figure included the appraisal value of the marital homestead and one acre ($157,500),
2
The promissory note, executed on April 28, 2003, provided for fifty payments,
commencing on May 15, 2004.
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and the 10.4 acre and five acre tracts of land surrounding the homestead ($62,500). The
chancellor deducted the following debts from the value of the marital property: the balance
on the Trustmark National Bank mortgage on the home in the amount of $90,875.15; the note
with the Bank of Jones County in the amount of $14,767.10; and credit-card debt in the
amount of $3,800, resulting in $110,557.75 in equity for the marital property. The chancellor
ordered Michael to purchase Sarah’s one-half interest in the marital property’s equity, or
$55,278.88, within thirty days; otherwise, the parties were to sell the property. The court
also awarded Michael one-half of the value, at the time of separation, of Sarah’s 401k
retirement account with Wayne Farms, and ordered Michael to reimburse Sarah for one-half
of the children’s health and dental insurance premiums, as long as she provided their medical
and dental insurance through her employer.
¶17.
Michael filed a motion to reconsider the chancellor’s judgment, for a new trial, or to
alter and amend the judgment. He argued for sole custody of the two children and denied he
had defrauded Sarah by having her sign the quitclaim deeds. Further, he argued that the
$15,000 debt owed to Michael’s parents was a valid debt, and Sarah should pay half of it.
Michael also moved to reopen the evidence regarding custody, as the younger daughter did
not testify about her parental preference for custody.
¶18.
In June 2008, the chancellor granted Michael’s request to open the evidence solely on
the custody issues, as the court became aware that Michael had contacted the Department of
Human Services (DHS), alleging Sarah had committed child abuse. Additionally, the court
ruled that the $15,000 debt to Michael’s parents was valid, and Sarah would be responsible
for half of it.
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¶19.
In September 2008, a hearing was held on the custody issues that had occurred since
the trial, which consisted of Michael’s calling DHS about two incidents involving Shayla
while under Sarah’s care. In the first incident, Shayla and Samantha had a disagreement;
Sarah grabbed Shayla to stop the fight, and Sarah and Shayla fell to the floor. Shayla
described the incident as a “fight” between her and her mother. Sarah, however, denied any
allegations of abuse to either daughter. Photographs were entered into evidence of Shayla’s
knee, which was bruised.
¶20.
In the second incident, Shayla testified that while at her mother’s home, her maternal
grandfather, who lived across the street, pulled down his shorts and exposed his naked
buttocks. Shayla claimed that both she and her sister were very upset by the incident.
Shayla’s maternal grandmother (Sarah’s mother and the grandfather’s wife) witnessed the
event, and testified that Shayla and her grandfather had been joking about the warm weather
when the grandfather pulled down his shorts. She stated that the grandfather was joking, and
Shayla was not emotionally upset. In response to the incident, Shayla had laughed at her
grandfather.
However, the grandmother admitted that her husband’s actions were
inappropriate; and he did apologize to Shayla. Sarah stated that Shayla and her grandfather
were “picking back and forth.” The grandfather declined to testify about any details of the
incident, as criminal charges were pending in justice court. A DHS investigative report was
admitted into evidence for both incidents. It found no evidence of emotional abuse, neglect,
or physical abuse by Sarah.
¶21.
The chancellor entered a final order in November 2008, recalculating the debts
deducted from the appraised values to include a sum of $12,201.65, which represents the
10
amount the court found as marital debt out of the second loan Michael borrowed from the
Bank of Jones County in the amount of $20,000. In December 2008, the court held a hearing
on Sarah’s complaint for citation for contempt, in which she stated that Michael was not
requiring the children to obey the custody order. At the hearing, Sarah testified that the
children were only coming to her residence on the weekends, in spite of the chancellor’s
week-to-week custody order. Shayla refused to stay with Sarah during the week. Also,
Michael cooperates with the children’s request to be picked up from their mother’s home
early. The chancellor considered several options from youth court proceedings to counseling
for Shayla and Samantha, and ultimately he recommended family counseling to resolve the
conflict.
¶22.
Michael timely filed his notice of appeal.
STANDARD OF REVIEW
¶23.
This Court’s standard of review in domestic relations matters is extremely limited.
The findings of the chancellor will not be disturbed unless the chancellor was “manifestly
wrong, clearly erroneous or an erroneous legal standard was applied.” Perkins v. Perkins,
787 So. 2d 1256, 1260-61 (¶9) (Miss. 2001) (quoting Montgomery v. Montgomery, 759 So.
2d 1238, 1240 (¶5) (Miss. 2000)). Further, the chancellor’s findings of fact will not be
reversed where there is substantial evidence supporting those findings. Floyd v. Floyd, 949
So. 2d 26, 28 (¶5) (Miss. 2007) (citing Cooper v. Crabb, 587 So. 2d 236, 239 (Miss. 1991)).
ANALYSIS OF THE ISSUES
1.
¶24.
Child Custody
Michael raises two issues regarding child custody. He contends that the chancellor
11
failed to make on-the-record findings as to why Shayla’s preference was not honored and that
awarding custody on an alternating basis was not in the best interests of the children.
Therefore, Michael concludes that the chancellor erred in awarding joint legal and physical
custody.
¶25.
In child custody matters, “the polestar consideration . . . is the best interest and welfare
of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). Factors the
chancellor must consider when determining the child’s best interest are:
(1) the age, health, and sex of the child; (2) a determination of the parent who
had the continuity of care prior to the separation; (3) which parent has the best
parenting skills and which has the willingness and capacity to provide primary
childcare; (4) the employment of the parent and the responsibilities of that
employment; (5) the physical and mental health and age of the parents; (6) the
emotional ties of parent and child; (7) moral fitness of the parents; (8) the
home, school, and community record of the child; (9) the preference of the
child at the age sufficient to express a preference by law; (10) the stability of
the home environment; and (11) other factors relevant to the parent-child
relationship.
Benal v. Benal, 22 So. 3d 369, 372 (¶5) (Miss. Ct. App. 2009) (citing Albright, 437 So. 2d
at 1005). The chancellor found two Albright factors favored Sarah: the age, health and sex
of the children and her continuity of care prior to separation. According to the opinion of the
court, the chancellor took into account Shayla’s preference for Michael, and noted Samantha
was not old enough to testify as to a preference. The other remaining factors were all found
to be neutral. The chancellor concluded that joint custody would be in the best interest of the
children, alternating weeks with each parent.
a.
¶26.
Shayla’s Preference
Michael argues that Shayla’s preference was not taken into account by the chancellor
12
when she testified at trial that she would prefer to live with her father, and the chancellor
erred in not making an on-the-record finding as to why her preference was not honored.
Since the temporary custody order of March 2007 until the trial one year later, the children
had been staying with their father during the week and their mother during the weekend.
Shayla stated her preference was to continue this schedule. Before the temporary order,
Shayla acknowledged that they had tried various custody arrangements, and this one seemed
to work the best.
¶27.
The applicable statute, Mississippi Code Annotated section 93-11-65(1)(a) (Supp.
2006), states “the chancellor may consider the preference of a child of twelve (12) years of
age or older as to the parent with whom the child would prefer to live in determining what
would be in the best interest and welfare of the child. The chancellor shall place on the
record the reason or reasons for which the award of custody was made and explain in detail
why the wishes of any child were or were not honored.” Id. (Emphasis added.)
¶28.
We note section 93-11-65 was amended in 2006, weakening the power of a child’s
preference in custody determination. Before this amendment, a child over the age of twelve
had the “privilege” of choosing which parent to live with, as long as both parents were fit and
it correlated with the best interest of the child, instead of merely being able to express that
preference, as the statute currently reads. See Miss. Code Ann. § 93-11-65 (Rev. 2004). We
also note Michael only cites to cases which deal with the old version of the statute before it
was amended. However, even before the 2006 amendment, the child’s preference was but
one factor which was considered for custody purposes. Brown v. Brown, 764 So. 2d 502,
505 (¶8) (Miss. Ct. App. 2000) (quoting Westbrook v. Oglesbee, 606 So. 2d 1142, 1147
13
(Miss. 1992)). The child’s preference is not outcome determinative. Holmes v. Holmes, 958
So. 2d 844, 848 (¶15) (Miss. Ct. App. 2007). Further, the trial court is not obligated to
follow the child’s stated preference. Anderson v. Anderson, 961 So. 2d 55, 58-59 (¶7) (Miss.
Ct. App. 2007) (citing D.A.P. v. C.A.P.R., 918 So. 2d 809, 824 (¶62) (Miss. Ct. App. 2005)).
The ultimate issue is the best interest of the child. Id.
¶29.
Shayla was fourteen years old at the time of trial; her sister Samantha was ten years
old. Accordingly, Shayla was allowed to testify as to her custodial preference; Samantha was
not. In his opinion, the chancellor clearly took into account Shayla’s preference to live with
her father. The chancellor has broad discretion to determine the best interest of the child
after all of the evidence is presented. We find no error in this regard.
¶30.
As far as Michael’s contention that the chancellor erred in not providing a detailed
explanation as to why Shayla’s preference was not honored, we cannot say from the record
that her preference was not honored. According to his analysis of the Albright factors, the
chancellor found more factors favored Sarah than Michael; so the chancellor could have
granted Sarah primary legal and physical custody of the children with Michael receiving only
weekend visitation. Instead, he granted the parents joint custody, finding it in the best
interests of the children to spend equal time with both parents. Further, even if the judgment
is interpreted as not honoring Shayla’s preference because Michael was not awarded primary
custody, the chancellor explained his reasoning when he stated:
This appears to be a classic case in which the Court should consider – and does
consider – an award of joint physical custody of these children. They need
both their parents in their lives. At this point in time, I think the better thing
to do for them and what would be in their best interest would be to provide for
a joint physical custody arrangement where they would be with their father for
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a week and be with their mother for a week.
¶31.
Michael cites to Polk v. Polk, 589 So. 2d 123 (Miss. 1993) to support his contentions.
In Polk, the supreme court held the chancellor erroneously denied the child’s custodial
preference without an explanation on the record. Id. at 130. The supreme court reversed the
case for further consideration of this matter, as well as others. Id. at 124. Polk, however,
dealt with a modification of child custody and was based on the pre-amendment section 9311-65, which gave children twelve years of age and older the stronger privilege of choosing
their custodial parent.
We find no case law based on the current statute where the
chancellor’s custodial ruling has been reversed for failure to give a detailed explanation on
the record. Accordingly, we find no error.
b.
¶32.
Joint Physical Custody on an Alternating Basis
Michael contends that awarding joint physical custody on an alternating basis each
week is not in the best interests of the children. He also notes the chancellor’s opinion did
not reference certain specific facts, such as: Michael has a nicer home for the children; Sarah
lives across the street from her father (the children’s maternal grandfather), who pulled his
pants down in front of Shayla; both Sarah and the maternal grandfather have physically
grabbed and pushed Shayla; and Sarah drove while drinking beer with the children in the car
on one occasion. Michael also states the chancellor erred in finding the Albright factor of
moral fitness of the parents neutral since there was no evidence Michael had had an affair
once the parties separated, but there was evidence that Sarah had had an affair postseparation.
¶33.
Although neither party addresses this issue specifically, we must first address whether
15
it was proper for the chancellor to award joint custody in an irreconcilable differences
divorce. Mississippi Code Annotated section 93-5-24(2) (Rev. 2004) allows the award of
joint custody in the case of an irreconcilable differences divorce, at the discretion of the
chancellor, “upon application of both parents.” Michael states that neither party requested
joint physical custody. However, this is incorrect. At trial, Sarah testified that she desired
primary custody or, in the alternative, joint custody. Further, we find Michael did not need
to request joint custody in order for the chancellor to award it. Recently, in Crider v. Crider,
904 So. 2d 142, 146-47 (¶¶8-11) (Miss. 2005), the supreme court held that the phrase “upon
application of both parents” in section 93-5-24(2) can have more than one interpretation
because of the history of divorce and custody statutes. The Crider court held that it is logical
that when both parties consent for the court to determine custody, they fulfill the “application
of both parents” requirement of section 93-5-24(2). Id. at 147 (¶12). “[T]he fact that the
parties request that the court determine which parent is to receive ‘primary custody’ does not
alter this.” Id. The supreme court concluded that the statute should be interpreted to allow
the chancellor to award joint custody in an irreconcilable differences divorce if it is in the
best interest of the child. Id. at 148 (¶16). Therefore, it was proper for the chancellor to
consider and award joint custody here, even though Michael did not request it.
¶34.
That said, we note that Crider stresses that the chancellor should not award joint
custody unless the parents are capable of sharing joint custody cooperatively. Id. at 147
(¶13). Mississippi Code Annotated section 93-5-24(5) (Rev. 2004) explains: “[a]n award
of joint physical and legal custody obligates the parties to exchange information concerning
the health, education and welfare of the minor child, and unless allocated, apportioned or
16
decreed, the parents or parties shall confer with one another in the exercise of
decision-making rights, responsibilities and authority.” The chancellor is in the best position
to evaluate the parties’ capabilities to cooperate. Crider, 904 So. 2d at 147 (¶13).
¶35.
Here, while the chancellor awarded joint custody to the parents in his May 2008
judgment, apparently finding their ability to cooperate adequate at the time, several events
transpired since that time which could have brought that determination into question; yet, the
chancellor did not alter his ruling. Certainly, the DHS reports, criminal charges against
Sarah’s father, complaint for citation of contempt by Sarah, and the failure of Michael and
the children to adhere to the custody schedule, all point toward a possible inability of the
parties to cooperate. At the end of the hearing in September 2008, the chancellor surmised
that it was obvious the two parties harbored great animosity toward one another, and the two
children were “being harmed by the conduct of their parents”; and in the future, the court
may “have to intervene in the best interest for the children.”
¶36.
In December 2008, at the hearing on Sarah’s complaint for contempt against Michael,
the family’s discord apparently increased with the estrangement of Shayla from her mother
because of Shayla’s refusal to stay with her mother during the week pursuant to the custody
order. The chancellor maintained that he did not want to take any action that might make the
situation worse; however, he did not rescind his order of joint custody. Instead, he reiterated
that at this point it would be in the best interests of the children to do whatever it took for the
parents to maintain joint custody. He ordered family counseling as a starting point. We find
that the chancellor was in the best position to determine the best interests of the children at
that time, and the chancellor thoroughly considered the issues and ramifications of
17
maintaining joint custody. Therefore, we can find no error in his judgment.
¶37.
Regarding Michael’s argument that the chancellor did not consider certain negative
facts against Sarah in his Albright analysis, we fail to see how Michael would presume to
know what facts the chancellor did or did not consider. Further, we are not aware of any
requirement that the chancellor must acknowledge all of the facts in his analysis of the
Albright factors that were presented at trial. The chancellor obviously listened to the
testimony at trial – negative and positive for both parties – and made his opinion accordingly.
We find no error.
¶38.
As to the chancellor’s finding the moral fitness factor neutral, again, we find no error.
The chancellor heard testimony from both parties about moral misconduct. Michael went
to great lengths and expense to hire several private investigators to prove that Sarah had
entered into a relationship with a man after the parties had separated, but before the divorce
was final. Sarah finally did admit to this fact, although she stated the individual did not
spend time around the children. The only evidence presented of Michael’s post-separation
relationship was Sarah’s testimony, and Michael denied it. Sarah also contended that
Michael’s female companion spent time around the children. Importantly, Sarah denied any
pre-separation affairs during the course of the marriage, whereas Michael admitted to one
significant affair, and a detailed affidavit from his mistress was entered into evidence. Also,
the parties separated several times during the marriage, both before and after they had
children. Each time, Michael would leave the children with Sarah during the separation
period. Accordingly, we find no merit to Michael’s argument that he is more morally fit to
raise the children than Sarah.
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¶39.
We conclude that the chancellor did not abuse his discretion in awarding joint custody
of the children to Michael and Sarah on an alternating basis.
2.
¶40.
Equitable Distribution of Marital Property and Debts
Michael raises several issues regarding the equitable distribution of the parties’
property and debts. We shall discuss each issue in turn.
¶41.
“[T]he chancellor must first classify the assets and liabilities as belonging to the
marriage, to the husband, or to the wife.” Smith v. Smith, 856 So. 2d 717, 719 (¶8) (Miss.
Ct. App. 2003) (citing Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994)). “Assets
acquired or accumulated during the course of the marriage are subject to equitable division
unless it can be shown by proof that such assets are attributable to one of the parties’ separate
estates prior to the marriage or outside the marriage.” Pearson v. Pearson, 761 So. 2d 157,
162 (¶15) (Miss. 2000) (quoting Hemsley, 639 So. 2d at 914). The supreme court established
several factors for chancellors to consider when determining the equitable division of marital
property. Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994). The chancellor need not
make findings regarding all of the Ferguson factors, but may consider only those factors
“applicable” to the property in question. Carrow v. Carrow, 741 So. 2d 200, 202 (¶10)
(Miss. 1999) (citing Weathersby v. Weathersby, 693 So. 2d 1348, 1354 (Miss. 1997)).
a.
¶42.
Marital Misconduct
Michael claims that the chancellor did not take into account the marital misconduct
of Sarah because the chancellor found the marital property should be divided equally. As he
stated in his argument regarding child custody, Michael maintains that Sarah committed
adultery, and the chancellor erroneously found that Michael was having an affair at the time
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of trial due to the statement in his opinion (in reference to his analysis of the Albright factors)
that “apparently both of these parents have now found significant others in their lives.”
Michael denies having a post-separation affair.
¶43.
It is true that the chancellor is entitled to weigh “[m]arital misconduct” as a “viable
factor” in his analysis of the Ferguson factors, but only “when the misconduct places a
burden on the stability and harmony of the marital and family relationship.” Carrow v.
Carrow, 642 So. 2d 901, 904-05 (Miss. 1994) (citing Ferguson, 639 So. 2d at 927). Michael
cites to Watson v. Watson, 882 So. 2d 95 (Miss. 2004) in support of his contention. The
Watson court held that the chancellor erred in the irreconcilable differences divorce by
dividing the assets equally and not taking into account Mr. Watson’s adulterous conduct
which broke up the parties’ twenty-one year marriage. Id. 108-09 (¶¶67-68). The supreme
court explained Mr. Watson’s affair was not a “slip-up” or “occasional indiscretion” but an
open, continuous affair where he left his ill wife and moved in with a younger woman. Id.
at 98 (¶12), 108 (¶67). In Singley v. Singley, 846 So. 2d 1004, 1005 (¶3) (Miss. 2002), the
supreme court also found the chancellor erred when he divided the marital estate equally in
an uncondoned adultery case, and reversed for rehearing on the issue of marital fault and the
equitable distribution of the marital property. In Singley, the parties had been married for
twenty-three years, and Mrs. Singley admitted to having numerous affairs during the
marriage. Id. at 1006 (¶4).
¶44.
In the instant case, there was no such open, continuous, and adulterous misconduct
which broke up the stability and harmony of the marriage before the parties separated, unless
we were to consider Michael’s own adulterous affair in 1995 through 1996, which the
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chancellor declined to do. The evidence indicates that the Phillipses’ marriage had already
deteriorated at the time of Sarah’s affair; the parties had been separated well over a year
when Michael’s private investigators obtained proof Sarah was seeing another man. There
was no evidence Sarah moved in with the man, nor did she have the children around him.
Additionally, we cannot ignore that, although Sarah did not hire her own private
investigators, she insists that Michael had begun a relationship with another woman since
separation as well. Neither situation is analogous to the extreme misconduct of engaging in
either a long-term open affair or numerous affairs during the course of the marriage, such as
is found in Watson and Singley, which actually contributed to the demise of those marriages.
We find no error in the chancellor’s equal division of the marital property.
b.
¶45.
The “Pre-Separation Agreement”
Michael contends that he and Sarah had a “pre-separation agreement” initiated
because of Sarah’s alleged financial irresponsibility. Michael is referring to the exchange
of the deeds to their property. Michael argues that the chancellor erroneously found he had
committed fraud or deceived Sarah into signing the deed. He claims they employed an
attorney to handle the transaction, which was explained to her. Indeed, Sarah admitted at
trial that she freely signed the deed; however, she denies that she signed it in anticipation of
divorce, but in the hopes of saving her marriage.
¶46.
If the chancellor honored this “agreement,” it would have given Sarah considerably
less property than she received through the chancellor’s fifty-fifty distribution of the marital
property. The chancellor opined that Michael anticipated the divorce and had Sarah sign the
deeds to put him at an advantage regarding the division of the marital assets. The court noted
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that even after the deeds were executed, the parties continued to occupy and use all of the
property as they had prior to execution of the deeds. The chancellor concluded that the
property was clearly marital in character, regardless of title; therefore, the chancellor deemed
all of the real property, other than the one-half acre tract of land, marital.
¶47.
While Mississippi follows the title system for determining property rights during
marriage, upon divorce, equitable distribution governs property rights, and allows for the
division of property earned by either spouse during the marriage, despite whoever holds title.
Deborah Bell, Bell on Mississippi Family Law § 6.10 (2005) (citing Ferguson, 639 So. 2d
at 928). Therefore, the essence of equitable distribution is “the authority of the courts to
award property legally owned by one spouse to the other.” Ferguson, 639 So. 2d at 927 n.
4. Of course, general principles of fraudulent conveyances apply to pre-divorce transfers of
property as well. Bell on Mississippi Family Law § 6.10.
¶48.
We note the chancellor did not charge Michael with fraudulent conveyance. We agree
with the chancellor that due to the timing and circumstance surrounding the transfer of title,
Michael’s actions were in anticipation of his divorce. The testimony at trial indicated the
transfers were initiated by Michael, not Sarah. Sarah testified Michael kept pestering her
until she finally relented and went to the attorney’s office, alone, to sign the documents. We
find the chancellor did not abuse his discretion in finding the property at issue remained
marital, despite the transfer of title to Michael.
c.
¶49.
Classification of Certain Debts as Marital
Michael contends that the chancellor erred in two instances regarding the marital
debts. He claims the chancellor should have considered the entire $40,000 he claims the
22
parties borrowed from his parents as marital debt, not merely the $15,000 unpaid promissory
note. Additionally, he argues the chancellor should have considered the entire $20,000 loan
with the Bank of Jones County as a marital debt, not just $12,201.65. Michael claims he
borrowed these funds after the parties separated in order to pay family expenses and bills
which resulted from Sarah’s financial irresponsibility.
¶50.
Regarding the loan from Michael’s parents, we find the chancellor was correct in
finding that the $15,000 promissory note was a valid debt, and Sarah was responsible for half
of it. Indeed, this note was entered into evidence with all parties having executed it on April
28, 2003. However, Michael made no mention until trial of an additional $25,000 debt owed
to his parents. On his Rule 8.05 financial statement, he lists $15,000 debt to his father, not
$40,000. At trial, however, Michael mentioned for the first time that his parents loaned them
a total of $40,000 over the twenty-year marriage to use for “paying family bills or home
improvements.”
However, Michael did not offer any further evidence regarding this
additional debt owed to his parents. We note that Sarah testified that her parents loaned them
money as well, but she did not give a specific amount or offer any further evidence.
Accordingly, the debt owed by Sarah and Michael to Sarah’s parents was not considered in
the chancellor’s division of liabilities. We find that the chancellor did not err in treating the
additional $25,000 of alleged debt to Michael’s parents in the same way he treated the
alleged debt to Sarah’s parents.
¶51.
Concerning the $20,000 loan with the Bank of Jones County, the chancellor did not
initially make a ruling on this debt, but later he entered an order finding $12,201.65 of the
debt to be marital. Michael borrowed this second of two loans from the Bank of Jones
23
County in April 2006, one month after the parties finally separated, using the homestead
property as collateral. Sarah did not sign any documents regarding the loan, and her name
did not appear on the loan.
Michael testified he used the money on “family bills,”
presumably incurred during the marriage. However, Michael offered no evidence on the
exact expenditure of proceeds from this loan. We find no error in the chancellor attributing
$12,201.65 of the debt as marital.
CONCLUSION
¶52.
The chancellor did not err in either his determinations of child custody or equitable
distribution. Therefore, we affirm the chancellor’s judgment.
¶53. THE JUDGMENT OF THE CHANCERY COURT OF JONES COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS
AND MAXWELL, JJ., CONCUR.
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