Christopher Paul Seghini v. Kristy Lee Sullivan Seghini
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-00833-COA
CHRISTOPHER PAUL SEGHINI
APPELLANT
v.
KRISTY LEE SULLIVAN SEGHINI
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
10/02/2008
HON. JOE DALE WALKER
SIMPSON COUNTY CHANCERY COURT
CHRISTOPHER DOUGLAS HENNIS
W. TERRELL STUBBS
CIVIL - DOMESTIC RELATIONS
DIVORCE GRANTED; CHILD CUSTODY,
SUPPORT, AND VISITATION AWARDED;
ALIMONY AWARDED; AND MARITAL
ESTATE AND DEBTS DISTRIBUTED
AFFIRMED IN PART; VACATED AND
REMANDED IN PART: 08/17/2010
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE MYERS, P.J., IRVING AND MAXWELL, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Christopher (Chris) and Kristy Seghini were married on February 19, 2000, and they
resided in Simpson County, Mississippi. They separated on May 31, 2007, approximately
six months after the birth of their second child. On August 7, 2007, Kristy filed a complaint
seeking divorce for adultery.
¶2.
During the marriage, Chris was self-employed as a trim carpenter. He also had
worked, for a time, as a police officer in Mendenhall, Mississippi, under Kristy’s father, who
was the chief of police for the town. Kristy held various jobs during the marriage, including
working at a bank and a daycare, before becoming a licensed practical nurse (LPN). The
Seghinis had financed their marital home through a loan from Kristy’s grandfather. They
also had borrowed approximately $25,000 from the grandfather to pay for medical expenses.1
¶3.
An agreed temporary order awarded Kristy custody of the children and Chris
visitation. The order provided for $484 per month as temporary child support. It also
awarded Kristy temporary use and possession of the marital home, with Chris being
responsible for an additional $516 for the monthly mortgage note and other incidental bills.
The temporary order also provided that Chris would pay approximately $650 per month for
the note and insurance on Kristy’s vehicle, a 2004 Chevrolet Tahoe.
¶4.
At trial, Kristy testified that the separation had been very difficult because she first
discovered Chris’s infidelity while pregnant with their second child. Repeated attempts to
reconcile had failed, and Chris was now living with his paramour. Chris admitted his
adultery. The only significant factual dispute at the divorce trial was Chris’s income as a
self-employed carpenter. Chris had reported take-home income of approximately $2,400 per
month in his Rule 8.05 2 financial disclosure, but Kristy alleged that he made significantly
more. She stated that during the marriage Chris had been taking home between $1,000 and
1
It was stated that this loan was used to pay for heart surgery for Kristy, but no
further details were offered regarding the nature of her condition or treatment.
2
UCCR 8.05.
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$2,500 per week. Chris testified that he did not know how much money he made, but he
admitted that it was more than he had reported on his 8.05 statement. Chris even went so far
as to describe his 8.05 statement as a “lie” under cross-examination. But it also appears from
his testimony that Chris was uncertain as to how the number should be calculated – he
testified that he believed his employees were paid from his take-home pay. Chris testified
that he could not afford the approximately $1,900 per month he had been paying under the
temporary order.
¶5.
Immediately after both parties rested, the chancellor asked Kristy several questions
regarding the status of the marital home and her employment. The court indicated that it was
interested in documentation regarding the home and indicated that it intended to order an
appraisal. It is unclear from the record what prompted it, but during this questioning Kristy’s
attorney stated:
Judge, I’ve been informed that the house is in [Kristy’s grandfather’s] name
because it’s been foreclosed on. The note was not paid, so it’s been foreclosed
on.
Chris’s attorney replied that he wanted to know why the mortgage had not been paid, or,
specifically, what the temporary award that was supposed to pay the mortgage had been used
for. He also stated that he suspected that the foreclosure was fraudulent.
¶6.
The chancellor called for a recess and a discussion in chambers. After that discussion
– held off the record – was completed, the chancellor stated on the record that he had
received several deeds and other documents relating to the home. He recited that Kristy’s
grandfather had held a deed of trust to the property signed by both Chris and Kristy on May
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2, 2001. Chris had executed a quitclaim deed transferring his interest in the property to
Kristy on August 15, 2005. The foreclosure sale had been completed about ten days after
Kristy had filed for divorce, and Kristy’s grandfather had purchased the home at auction for
$50,000. The court then placed those documents into the record as an exhibit. The
chancellor then announced his decision from the bench as to the divorce, property settlement,
and other issues.
¶7.
The court awarded Kristy custody of the children and ordered Chris to pay $500 per
month in child support.3 Chris was granted standard visitation with the children. Both
parties were awarded the marital property currently in their possession, and Chris was
ordered to pay all the marital debt – about $30,000 – except for Kristy’s credit card. Chris
also was ordered to pay for the insurance on Kristy’s vehicle, and each of the parties was to
maintain life insurance on the other. The order granting Kristy’s divorce for adultery was
filed on October 2, 2008.
¶8.
Chris filed a post-trial motion under Mississippi Rule of Civil Procedure 60(b) to set
aside the judgment.
Chris alleged that Kristy had made material misrepresentations
regarding the status of the marital home prior to and during the divorce trial. At the hearing
on the motion, Chris suggested that the foreclosure had been fraudulent but admitted that he
could not substantiate the allegation. The chancellor denied the motion, stating that he had
been aware of the foreclosure at the time he rendered his decision and that no new evidence
3
The chancellor’s order also provided that child support would increase from $500
per month to $650 per month after Chris paid off Kristy’s vehicle.
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had been offered.
¶9.
On appeal, Chris does not challenge the divorce or custody awards, but he alleges that
the chancery court erred in awarding child support and alimony without a specific finding
of fact regarding his income.4 He also argues that the chancellor erred in failing to consider
the excess bid from the foreclosure sale of the marital home – about $27,000 – in effecting
the property division and alimony. Chris also argues that the chancellor erred in denying his
post-trial motions and in finding him in contempt of the divorce judgment.
STANDARD OF REVIEW
¶10.
“In domestic relations cases, [the appellate court's] scope of review is limited by the
substantial evidence/manifest error rule.” Samples v. Davis, 904 So. 2d 1061, 1063-64 (¶9)
(Miss. 2004) (citing Jundoosing v. Jundoosing, 826 So. 2d 85, 88 (¶10) (Miss. 2002)). We
“will not disturb the chancellor's opinion when [it is] supported by substantial evidence
unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an
erroneous legal standard was applied.” Id. at 1064 (¶9) (quoting Holloman v. Holloman, 691
So. 2d 897, 898 (Miss. 1996)). However, questions of law are reviewed de novo. Amiker v.
Drugs for Less, Inc., 796 So. 2d 942, 945 (¶7) (Miss. 2000).
DISCUSSION
1. Chris’s Income; Child Support and Alimony
4
Chris also argues that the chancellor erred in ordering the child support to increase
after Kristy’s vehicle is paid off. Because we reverse and remand on the child support issue,
we find these arguments moot.
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¶11.
The chancellor made no specific finding regarding Chris’s income in awarding either
the $500 per month in child support – increasing to $650 – or the $500 per month in periodic
alimony; he noted only that Chris made more money than Kristy. The court did make some
findings of fact under the familiar Armstrong factors 5 in awarding alimony. The chancellor
noted that Kristy would need a place to live and would have to pay for daycare for the
couple’s youngest child. The chancellor also noted Chris’s adultery and held that the
approximately eight-year marriage “touche[d] on a long-term marriage.” Finally, the court
found that Kristy’s past heart surgery indicated that she may incur future medical expenses.
¶12.
On appeal, Chris argues that the chancellor’s awards cannot stand on appeal without
a specific finding of Chris’s adjusted gross income. He also contends that the chancery court
erred in its analysis of several Armstrong factors. We agree in both respects.
¶13.
“A chancellor's deviation from the Mississippi child support guidelines must be
supported by an on the record finding that said deviation is warranted.” White v. White, 722
So. 2d 731, 734 (¶23) (Miss. Ct. App. 1998). For two children, the guidelines set child
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Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). The factors to be
considered by the chancellor in arriving at findings and entering judgment for alimony are:
(1) the income and expenses of the parties; (2) the health and earning capacities of the
parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length
of the marriage; (6) the presence or absence of minor children in the home, which may
require that one or both of the parties either pay, or personally provide, child care; (7) the age
of the parties; (8) the standard of living of the parties, both during the marriage and at the
time of the support determination; (9) the tax consequences of the spousal support order;
(10) fault or misconduct; (11) wasteful dissipation of assets by either party; or (12) any other
factor deemed by the court to be “just and equitable” in connection with the setting of
spousal support.
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support at twenty percent of the payor’s adjusted gross income. Miss. Code Ann. § 43-19101(1) (Rev. 2009). As to alimony, “[w]hether to award alimony and the amount of alimony
are largely within the discretion of the chancellor.” Parsons v. Parsons, 678 So. 2d 701, 703
(Miss. 1996).
¶14.
The chancellor did not make a finding that deviation from the guidelines was
warranted. Taking the child support at $500 per month, we might conclude that the
chancellor found Chris’s adjusted gross income to be five times that amount, or $2,500 –
approximately what Chris had listed on his 8.05 declaration (or $3,250, if we take child
support to be $650 per month). But we find it difficult to reconcile either derived number
with the alimony awarded, which suggests a greater income disparity between the parties.
At the time of the divorce, Kristy earned approximately $2,040 per month, or about $1,800
after taxes.
¶15.
The remaining factors cannot support the alimony awarded by themselves. The
marriage, at eight years, was not particularly long, and Kristy – twenty-nine years of age at
the time of the divorce – worked full time as an LPN. And while it is undisputed that Kristy
had undergone heart surgery some time during the marriage, the record is silent as to exactly
what kind of heart surgery it was. There was no evidence offered that Kristy suffered from
continuing health problems or that she would incur the future difficulties or medical expenses
that the chancellor had sought to protect against with the alimony award.
¶16.
The chancellor likewise did not directly address Chris’s ability to pay and still provide
for his own basic expenses. Under the temporary order, Chris had paid approximately $2,000
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per month between alimony, child support, and marital debts. Chris testified that he had
lived with his girlfriend or his parents since the separation and was unable to afford to live
on his own under the separate order. Under the final judgment of divorce, Chris’s monthly
obligations were comparable to those under the temporary order, although they would be
reduced significantly after Kristy’s vehicle was paid off. Chris was also ordered to assume
nearly all of the marital debt.
¶17.
In Gray v. Gray, 745 So. 2d 234, 237 (¶14) (Miss. 1999), the supreme court held that
without an express finding of fact as to the payor’s income, “it cannot be said that the [child
support] guidelines were either followed or not followed.” The child support award was
therefore vacated and the issue remanded to the chancery court. Because of the uncertainty
regarding the husband’s income, the court likewise vacated and remanded the alimony award
for the chancellor to make more detailed findings of fact regarding the Armstrong factors.
We find Gray instructive, and we vacate and remand on both issues.
2. Property Division
¶18.
Chris argues that the chancellor erred in not making express findings of fact regarding
the Ferguson factors 6 and in failing to consider money received from the foreclosure sale of
the marital home.
¶19.
As we have said, the marital estate contained few assets. The parties had divided the
marital property between themselves after separation, and the disposition of much of it was
6
Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994).
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not contested at trial. The chancellor ordered that the parties would receive the property
currently in their possession. It was specifically ordered that Kristy would receive the
remaining contents of the marital home, her vehicle, and an ATV; Chris would receive his
primary automobile (a late-model Ford truck used in his business, a net liability), two older
automobiles, and a motorcycle. This appears to track the parties’ own distribution of the
assets after separation. Other than the notes on the two primary vehicles, the marital debt
stemmed primarily from the recent birth of the couple’s second child and Kristy’s heart
surgery. The unsecured debt amounted to about $30,000, and Chris was ordered to assume
the great majority of it.
¶20.
Regarding Chris’s allegations that the marital estate should have also included
significant funds received by Kristy as part of the excess bid on the marital home from the
foreclosure sale, Chris simply failed to develop this issue at trial. No testimony was elicited
as to what was received or whether any of this sum remained at the time of the divorce. We
cannot hold the chancellor in error for not considering an asset if its present disposition or
even its very existence was not established at trial.
¶21.
As to the Ferguson factors, the supreme court has held that the chancellor is only
required to address those factors that are relevant to the case at hand. Weathersby v.
Weathersby, 693 So. 2d 1348, 1354 (Miss. 1997). Moreover, this Court has held that failure
to make an explicit factor-by-factor analysis does not necessarily require reversal where we
are satisfied that the chancellor considered the relevant facts. Palmer v. Palmer, 841 So. 2d
185, 190 (¶18) (Miss. Ct. App. 2003). Here, there was no dispute that the property at issue
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was marital, and both parties offered valuations of nearly everything in their 8.05 statements.
Chris has failed to cite to any specific facts the chancellor failed to consider or to show any
abuse of discretion in the chancellor’s award. This issue is without merit.
3. Rule 60(b)(1) Motion for Relief from Judgment
¶22.
About one year before the divorce trial (and shortly after Kristy filed for divorce),
Kristy’s grandfather foreclosed on the marital home. This fact did not come to light during
the trial until after both parties had rested and Kristy’s attorney revealed it to the court. The
attorney stated that he had just been informed of the foreclosure, but the record is silent as
to who informed him or why it had not been done previously.
¶23.
It appears that Kristy was either ignorant of the foreclosure or had deliberately
concealed it. She identified the home as marital property in her 8.05 statement, and she
testified during the trial that she had continued, off and on, to reside there. Her property
remained in the home, and she continued to maintain it. Although she was living with her
parents at the time of the trial, Kristy testified that she intended to return to the marital home.
She asked the court to award it to her in the property division.
¶24.
On appeal, Chris alleges that Kristy deliberately misrepresented the status of the
home. He argues that the chancellor abused his discretion in failing to grant the post-trial
motion for relief from the judgment under Rule 60(b)(1) of the Mississippi Rules of Civil
Procedure.
¶25.
“Appellate review of a trial court’s ruling upon a Rule 60(b)(1) is limited to abuse of
discretion.” Williamson v. Williamson, 964 So. 2d 524, 528 (¶13) (Miss. Ct. App. 2007)
10
(citing Stringfellow v. Stringfellow, 451 So. 2d 219, 221-22 (Miss. 1984)). “Among the
findings necessary to support granting relief is that, a trial court must find both that a witness
intended to misrepresent some fact in order to influence the decision by the finder of fact, and
that the finder of fact did rely upon the misrepresentation in its decision.” Id.
¶26.
As the chancellor noted, this argument fails because the trial court was aware of the
foreclosure at trial, before it made its ruling. Chris’s complaint on appeal is actually centered
around the consequences of the late disclosure – he argues that he was effectively precluded
from cross-examining Kristy about the foreclosure and the money she should have received
from the sale. But the fact is that Chris made no attempt to further question Kristy at trial.
He made no motion to reopen the evidence or for a continuance, no proffer, and, indeed, no
objection of any sort after Kristy’s attorney revealed the foreclosure. Even at the hearing
on the post-trial motions, Chris made no effort to substantiate his allegations through
testimony or other evidence. Instead, he speculated – as he now speculates – about what had
occurred after the foreclosure.
¶27.
Chris has failed to show that the chancellor abused his discretion in denying the Rule
60(b)(1) motion. This issue is without merit.
4. Contempt
¶28.
After the divorce, Chris failed to pay numerous awards under the divorce decree –
including all of the alimony payments and all but one of the monthly payments to Kristy’s
grandfather. He had, however, stayed current on the child support and had paid off Kristy’s
automobile. On April 30, 2009, the chancellor heard Kristy’s motion for contempt. Chris
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admitted he had not paid; he stated that he was unable to pay all of his obligations because
work had been slow and he could not find other employment. Chris stated that he had earned
only about $6,600 since the beginning of 2009. He offered an incomplete amended tax return
from 2008 and a ledger from his business to support his defense.
The chancellor,
unimpressed, found Chris in contempt and ordered him to pay approximately $5,700 within
twenty-four hours. The chancellor also awarded Kristy $3,000 in attorney’s fees. Chris did
not pay, and he was imprisoned for contempt for about forty days before posting bond.
¶29.
On appeal, Chris argues that the chancellor erred in not accepting his defense that he
was genuinely unable to pay.
¶30.
The court’s power to imprison a person until he complies with the terms of a decree
depends on that person’s present ability to comply with the decree. Wilborn v. Wilborn, 258
So. 2d 804, 805 (Miss. 1972). “Where the contemnor is unable to pay, even if that present
inability is due to his misconduct, imprisonment cannot accomplish the purpose of a civil
contempt decree, which is to compel obedience.” Jones v. Hargrove, 516 So. 2d 1354, 1358
(Miss. 1987) (citing Miss. Const. art 3, § 30). But the defendant has the burden of proving
his inability to pay and must make such showing with particularity and not in general terms.
Clements v. Young, 481 So. 2d 263, 271 (Miss. 1985).
¶31.
Here, Chris’s claims of an inability to pay lacked independent corroboration. Chris
prepared both the tax return and the business ledger, the only evidence he offered suggesting
an inability to pay. Testimony at the divorce trial indicated that Chris was often paid in cash,
and his prior statements regarding his income had lacked candor, at best. Moreover, prior
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to the divorce judgment, Chris had been paying a significant amount under the temporary
order. But after the divorce, he immediately began paying less, suggesting an unwillingness
rather than an inability to pay. We can find no abuse of discretion in the chancellor’s finding
of contempt or award of attorney’s fees. This issue is without merit.
CONCLUSION
¶32.
We vacate the chancery court’s judgment with respect to child support and alimony,
and we remand the case to that court for further proceedings consistent with this opinion.
Otherwise, the chancellor’s judgment is affirmed.
¶33. THE JUDGMENT OF THE CHANCERY COURT OF SIMPSON COUNTY IS
AFFIRMED IN PART AND VACATED AND REMANDED IN PART FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF
THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND
THE APPELLEE.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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