Terry F. Swiderski v. Cyprianna Ellen (Hormanski) Swiderski
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-01517-COA
TERRY F. SWIDERSKI
APPELLANT
v.
CYPRIANNA ELLEN
(HORMANSKI) SWIDERSKI
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
08/01/2007
HON. KENNETH M. BURNS
OKTIBBEHA COUNTY CHANCERY COURT
JACKSON M. BROWN
CARRIE A. JOURDAN
CIVIL - CUSTODY
GRANTED DIVORCE ON GROUND OF
IRRECONCILABLE DIFFERENCES
AFFIRMED – 03/24/2009
BEFORE KING, C.J., IRVING AND GRIFFIS, JJ.
IRVING, J., FOR THE COURT:
¶1.
Cyprianna and Terry Swiderski were granted a divorce on the ground of irreconcilable
differences by the Oktibbeha County Chancery Court. The chancellor awarded primary
custody of the parties’ minor children to Cyprianna, ordered Terry to pay child support, and
divided the marital estate. Aggrieved, Terry appeals and alleges (1) that the chancellor erred
in refusing to issue findings of fact to support his legal conclusions, (2) that the chancellor
erred in awarding primary custody of the children to Cyprianna, (3) that the chancellor erred
in awarding inadequate visitation, (4) that the chancellor erred in basing the child support
award on Terry’s earning potential, (5) that the chancellor erred in his division of the marital
estate, and (6) that the chancellor erred in refusing to award Terry alimony.
¶2.
Finding no reversible error, we affirm.
FACTS
¶3.
Cyprianna and Terry were married on August 15, 1992. At the time of their marriage,
Terry and Cyprianna were equestrian veterinarians. Terry had a veterinary practice in
Magnolia, Mississippi, and Cyprianna was finishing her Ph.D. program at Louisiana State
University. Three children were born to the marriage.
¶4.
During their marriage, the parties moved several times from Mississippi. At times,
Cyprianna and the children would be in one city or state, and Terry would be in another. In
2004, the parties moved to Starkville, Mississippi. Cyprianna became employed with
Mississippi State University, and Terry started a part-time veterinary practice that required
him to travel extensively. Cyprianna secured temporary staff housing for the family on the
university’s campus. The parties purchased a house on Highway 12 in Starkville with the
intention of remodeling and making it the family home.
¶5.
On June 22, 2006, the parties separated, and Terry filed for divorce. He requested
child custody, child support, alimony, and an equitable division of the marital estate. On
August 25, 2006, the chancellor, in a temporary order, awarded Cyprianna primary physical
custody of the minor children. He also ordered her to maintain health insurance for the
children and to pay seventy-five percent of the mortgage on the Highway 12 property. The
chancellor ordered Terry to pay the remaining twenty-five percent of the mortgage as rent,
2
since he took up residence there after the parties separated.
¶6.
The parties were granted a divorce on December 29, 2006. On April 24-25, 2007, a
hearing was held on the issues of child custody, child support, visitation, division of the
marital estate, alimony, and attorney’s fees.
¶7.
The chancellor found that it was in the children’s best interest for Cyprianna to have
primary physical custody and for Terry to have standard visitation. Further, the chancellor
ordered Terry to pay $750 per month for child support. In regard to the division of the
property, the chancellor awarded Terry assets valued at $181,322.21 and awarded Cyprianna
assets valued at $166,548.09. The chancellor held that Terry was not entitled to alimony, and
both parties were ordered to pay their own attorney’s fees.
¶8.
Terry filed a motion urging the chancellor to amend his judgment by making
additional findings of fact and legal conclusions. The chancellor overruled this motion.
Additional facts, as necessary, will be related during our analysis and discussion of the
issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶9.
Terry argues that the chancellor erred in refusing to make additional findings of fact
and conclusions of law as requested by him in his posttrial motion. Additionally, Terry
argues that the chancellor erred in essentially every finding and conclusion that he reached,
namely: child custody, visitation, child support, division of property, and alimony.
¶10. “Where a [c]hancellor has applied the correct legal standard and made findings of fact
which are supported by substantial evidence, [the appellate court] will not reverse [the]
decision.” In re Custody of M.A.G., 859 So. 2d 1001, 1004 (¶8) (Miss. 2003) (citing
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Touchstone v. Touchstone, 682 So. 2d 374, 377 (Miss. 1996)). “We will not reverse the
chancellor’s ‘factual findings where there is substantial evidence in the record supporting
these findings of fact.’” J.P. v. S.V.B., 987 So. 2d 975, 979 (¶7) (Miss. 2008) (quoting Floyd
v. Floyd, 949 So. 2d 26, 28 (¶5) (Miss. 2007)).
1. Denial of Motion to Amend
¶11.
After the conclusion of the trial, Terry filed a document entitled “MRAP Rule 4(d)
and MRCP Rules 52 and 59 Motions.” 1 In this pleading, Terry requested that the chancellor
“reconsider [his] August 2, 2007, Judgment and amend it by making additional findings and
legal conclusions.” Terry suggested additional findings and legal conclusions that favored
him on each issue. The chancellor denied Terry’s motion.
¶12.
Rule 52(a) of the Mississippi Rules of Civil Procedure states:
In all actions tried upon the facts without a jury the court may, and shall upon
the request of any party to the suit or when required by these rules, find the
facts specially and state separately its conclusions of law thereon and judgment
shall be entered accordingly.
Essentially, “[this rule] vests in the trial court discretion whether findings of fact and
conclusions of law should be made, absent . . . a request of a party.” Tricon Metals & Servs.,
Inc. v. Topp, 516 So. 2d 236, 239 (Miss. 1987). However, the Mississippi Supreme Court
also has held that a trial court has technically complied with the mandate of Rule 52 where
it makes general findings of fact and conclusions of law, even though a party has made a
request for specific findings. Century 21 Deep S. Props., Ltd. v. Corson, 612 So. 2d 359, 367
1
On appeal, Terry argues that this document was a motion pursuant to Rule 52 of the
Mississippi Rules of Civil Procedure. Therefore, we analyze this issue pursuant to the
requirements of Rule 52.
4
(Miss. 1992).
¶13.
For each issue, the chancellor made findings of fact while addressing the applicable
legal considerations. For child custody, the chancellor addressed each Albright factor2 in
detail to determine what was in the children’s best interests. In determining the division of
the marital assets, the chancellor addressed each Ferguson factor.3 In determining whether
to award alimony, the chancellor stated that he had considered “every Armstrong factor4
except fault or misconduct and [had] made findings of fact concerning those factors in [his]
discussion of property division or child support.” The chancellor encouraged the parties to
agree on Terry’s visitation with the children but put in place a standard visitation schedule
for the parties should they not be able to agree.
¶14.
The chancellor denied Terry’s requests to make further findings of fact and
conclusions of law. We find that he did not err, as he had already made particularized
findings of fact and conclusions in his fourteen-page judgment of divorce. Therefore, this
contention of error is without merit.
2. Child Custody
¶15.
In matters involving a chancellor’s award of child custody, the appellate court’s
2
In Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983), the Mississippi
Supreme Court established a list of factors relevant to a determination of a child’s best
interest in custody matters .
3
In Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994), the Mississippi Supreme
Court established a list of factors to be considered by chancellors when determining equitable
distribution of marital property.
4
In Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993), the Mississippi
Supreme Court established a list of factors to be considered by chancellors when determining
the appropriateness of an alimony award.
5
standard of review is limited. J.P., 987 So. 2d at 978-79 (¶7) (citing Floyd v. Floyd, 949 So.
2d at 28 (¶5)).
¶16.
In Albright, 437 So. 2d at 1005, the Mississippi Supreme Court determined that the
“polestar consideration in child custody cases is the best interest and welfare of the child”
and set out several factors relevant to that determination: the age of the child; the health of
the child; the sex of the child; continuity of care for the child prior to the separation;
parenting skills; employment of the parent; the physical and mental health and the age of the
parent; moral fitness of the parent; the home, school, and community record of the child; the
preference of the child of sufficient age to express a preference; stability of home
environment and employment of the parent; and other factors relevant to the parent-child
relationship.
¶17.
Terry argues that the chancellor erred in awarding primary custody of the children to
Cyprianna in light of the Albright factors. Specifically, Terry argues that he should have
been favored in the eight factors the chancellor found to be neutral.
¶18.
“It is the role of the chancellor to ascertain whether witnesses and evidence are
credible and the weight to give each.” Robison v. Lanford, 841 So. 2d 1119, 1122 (¶9)
(Miss. 2003) (citing Chamblee v. Chamblee, 637 So. 2d 850, 860 (Miss. 1994)). The
chancellor addressed each Albright factor and determined whom each factor favored after
considering the testimonies of the witnesses and the evidence. We find that the chancellor
applied the correct legal standard and that there is sufficient evidence in the record to support
his findings. Therefore, this contention of error is also without merit.
3. Visitation
6
¶19.
On visitation issues, the chancery court enjoys considerable discretion in making its
determination of what is in the best interest of the child. Haddon v. Haddon, 806 So. 2d
1017, 1020 (¶12) (Miss. 2000) (citing Harrell v. Harrell, 231 So. 2d 793, 797 (Miss. 1970)).
Further, “[t]he specification of times for visitation rights is [also within] the broad discretion
of the chancellor.” Id. (citing Cheek v. Ricker, 431 So. 2d 1139, 1146 (Miss. 1983)).
¶20.
Terry argues that the chancellor erred in ordering alternate weekend visitation. He
cites Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986) which states that “[a]ll that need be
shown is that there is a prior decree providing for reasonable visitation rights which isn’t
working and that it is in the best interests of the children as fostering a positive and
harmonious relationship between them and their divorced parents to have custody provisions
made specific rather than flexible and attendantly vague.” In his brief, Terry states:
[T]he court again encouraged Terry and [Cyprianna] to agree to Terry’s
visitation considering their respective schedules but if not, then Terry had
specified visits as outlined. This ruling basically mirrored the court’s
“Temporary Order” which was overwhelmingly shown unworkable since
Cyprianna unilaterally decided that only the minimum visitation would be
allowed . . . . Apparently, the [c]ourt believes that having repeated [that] the
parties are encouraged to agree to other visitation that Cyprianna will now do
right by the children.
¶21.
In accordance with Cox, Terry would have to show that the visitation schedule ordered
by the chancellor is not working and that the provisions are flexible or vague. However,
Terry does not allege that the visitation schedule is not working or that it is too vague; rather,
he alleges that Cyprianna only allowed him to have “minimum” visitation with the children.
The chancellor gave Terry and Cyprianna two options regarding the visitation with the
children: (1) they could agree to come up with their own visitation schedule, or (2) they
7
would follow a specific standard visitation schedule implemented by the chancellor.
Apparently, the parties could not agree on their own visitation schedule; therefore, Cyprianna
abided by the visitation schedule ordered by the chancellor.
¶22.
The visitation schedule ordered by the chancellor is in accordance with Cox, as it is
specific. Further, we find that the visitation schedule falls within the range of discretion
afforded the chancellor. Therefore, this contention of error is without merit.
4. Child Support
¶23.
The findings of fact of the chancery court, particularly in the area of child support,
will generally not be overturned by an appellate court on appeal unless they are manifestly
wrong, clearly erroneous, or an incorrect legal standard was applied. Barton v. Barton, 790
So. 2d 169, 175 (¶17) (Miss. 2001).
¶24.
Terry argues that the chancellor committed manifest error when he based the amount
of the child support on Terry’s potential earning capacity instead of the financial declaration
that he presented to the court. He further argues that the chancellor calculated his earning
potential by using speculative testimony.
¶25.
It is well settled that an obligor’s financial position cannot be voluntarily worsened
in an attempt to lessen his child support obligation. Parker v. Parker, 645 So. 2d 1327, 1331
(Miss. 1994). Where a chancellor is not convinced of the honesty or veracity of the parent
concerning the parent’s ability to abide by his or her financial obligations, the chancellor is
not precluded from factoring this skepticism in the equation when determining the amount
of the child support award. Dunn v. Dunn, 695 So. 2d 1152, 1156-57 (Miss. 1997); see also
Grogan v. Grogan, 641 So. 2d 734, 741 (Miss. 1994). Furthermore, “[t]he chancellor can
8
base child support on the parent’s potential earning capacity.” Suber v. Suber, 936 So. 2d
945, 949 (¶8) (Miss. Ct. App. 2006) (citing White v. White, 722 So. 2d 731, 734 (¶21) (Miss.
Ct. App. 1998)).
¶26.
Here, the chancellor found that Terry was not truthful in the representations that he
made in his Rule 8.05 financial statement.5 In reaching this conclusion, the chancellor stated
in his order:
Terry’s Rule 8.05 financial statement states that his adjusted monthly income
is $1,633.00. The Court believes that Terry has grossly underestimated his
income. Exhibit D4, Terry’s 2006 tax return, shows that Terry has had gross
receipts of $156,685.00. He also had taxable interest of $1,669.00 which
shows that he has as much as $20,000.00 in taxable savings accounts. The
Court believes that Terry is capable of earning at least $3,750.00 per month
adjusted gross income and therefore sets his child support at $750.00 per
month . . . .
¶27.
In addition to reviewing the tax return and financial declaration mentioned in the
chancellor’s order, we also reviewed several deposit slips from Terry’s business checking
account submitted at trial by Cyprianna. Keeping in mind that Terry claimed on his financial
declaration that his monthly gross income was $2,300, we totaled up the deposit slips
submitted by Cyprianna to reflect the following monthly totals:6
February 2007
January 2007
December 2006
November 2006
$10,600.00
$ 2,866.00
$ 7,702.15
$ 5,623.00
5
Rule 8.05 of the Uniform Chancery Court Rules requires all parties in domestic
cases to file a financial disclosure statement.
6
The record does not reflect whether the deposit slips submitted by Cyprianna
represented all of the deposits that Terry had made or whether these were the only ones that
she had evidence of. Also, there are two undated deposit slips, totaling $3,316 which are
not reflected in these totals.
9
October 2006
September 2006
August 2006
July 2006
¶28.
$
$
$
$
3,736.50
8,051.50
6,385.00
6,701.00
The deposit slips themselves represent that Terry grossed well over $2,300 per month
for eight consecutive months. Therefore, we find that the chancellor’s determination of
Terry’s earning potential was not based on speculation, as there was substantial evidence
presented to the court that proved that Terry’s gross income greatly exceeded $2,300 per
month. This issue is without merit.
5. Equitable Distribution
¶29.
In a divorce case, an appellate court employs a limited standard of review of a
chancellor’s order for the division and distribution of the marital estate. Bowen v. Bowen,
982 So. 2d 385, 393 (¶32) (Miss. 2008) (citing Owen v. Owen, 928 So. 2d 156, 160 (¶10)
(Miss. 2006)). “[T]he chancellor’s division and distribution will be upheld if it is supported
by substantial credible evidence.” Id. at 394 (¶32) (quoting Carrow v. Carrow, 642 So. 2d
901, 904 (Miss. 1994)). “The ‘chancery court has authority, where equity demands, to order
a fair division of property accumulated through the joint contributions and efforts of the
parties.’” Owen, 928 So. 2d at 160 (¶10) (quoting Savelle v. Savelle, 650 So. 2d 476, 479
(Miss. 1995)). Even if the appellate court disagrees with the chancery court’s findings of fact
and conclusions of law, the appellate court will not substitute its judgment for that of the
chancery court. Bowen, 982 So. 2d at 394 (¶32) (citing Owen v. Owen, 798 So. 2d 394, 39798 (¶10) (Miss. 2001)).
¶30.
As previously noted, the Mississippi Supreme Court in Ferguson established a list of
10
factors that should be considered when determining the equitable distribution of marital
property.7 Ferguson, 639 So. 2d at 928. Terry asserts that the chancellor erred in dividing
the marital estate. He specifically argues that a proper analysis of the evidence indicates that
several factors disfavor Cyprianna and that the chancellor should have made the proper
findings in accordance with the evidence on each factor. Terry further asserts that the
chancellor incorrectly evaluated the marital property and that utilizing Terry’s evaluation
would have resulted in Terry having total assets valued at $72,913.25 and Cyprianna having
total assets valued at $133,981.34, leaving him a deficit of $61,068.09.
¶31.
As mentioned above, it is the chancellor’s role to “ascertain whether witnesses and
evidence are credible and the weight to give each.” Robison, 841 So. 2d at 1122 (¶9). The
chancellor weighed the evidence, evaluated the assets of the marital estate, and made the
7
These factors stated generally are:
(1) Substantial contribution to the accumulation of the property which
includes: (a) Direct or indirect economic contribution to the acquisition of the
property; (b) Contribution to the stability and harmony of the marital and
family relationships as measured by quality, quantity of time spent on family
duties, and the duration of the marriage; (c) Contribution to the education,
training, or other accomplishment bearing on the earning power of the spouse
accumulating the assets; (2) The degree to which each spouse has expended,
withdrawn, or otherwise disposed of marital assets and any prior distribution
of such assets by agreement, decree, or otherwise; (3) The market value and
the emotional value of the assets subject to distribution; (4) The value of assets
not ordinarily, absent equitable factors to the contrary, subject to distribution,
such as property brought to the marriage by the parties and property acquired
by inheritance or inter vivos gift by or to an individual spouse; (5) Tax and
other economic consequences to third parties, of the proposed distribution; (6)
The extent to which property division may, with equity to both parties, be
utilized to eliminate periodic payments and other potential sources of future
friction between the parties; (7) The needs of the parties for financial security
with due regard to the combination of assets, income, and earning capacity;
and (8) Any other factor which in equity should be considered .
11
following awards: assets to Terry that were valued at $181,322.11 and assets to Cyprianna
that were valued at $166,548.08, leaving Cyprianna a deficit of $14,774.03. We find no error
in the chancellor’s refusal to accept Terry’s evaluations.
¶32.
In addition to his argument that the chancellor incorrectly evaluated the marital estate,
it appears that Terry also argues that the marital estate should have been equally divided
instead of being equitably divided. In Hensarling v. Hensarling, 824 So. 2d 583, 590 (¶¶2021) (Miss. 2002), the Mississippi Supreme Court discussed the significant difference between
equitable distribution states and community property states:
Equitable distribution does not always mean an equal division of property.
Mississippi is not a community property state. Chamblee v. Chamblee, 637
So. 2d 850, 863-64 (Miss. 1994); Dillon v. Dillon, 498 So. 2d 328, 330 (Miss.
1986); Rives v. Rives, 416 So. 2d 653, 657 (Miss. 1982). The community
property system and Mississippi’s system of equitable division are very
dissimilar. In a community property state, the court may not look at the
background of the marriage and/or the behavior of the married couple to
decide what would constitute a just distribution of property. Instead the law
in a community property state mandates an even division of all marital
property, regardless of each parties’ respective contributions. Under the
system of equitable distribution, the courts in Mississippi are not so inhibited.
“The matter rather is committed to the discretion and conscience of the Court,
having in mind all of the equities and other relevant facts and circumstances.”
Chamblee, 637 So. 2d at 864 (citing Brown v. Brown, 574 So. 2d 688, 691
(Miss. 1990)). This Court’s holdings in the aforementioned cases show that
the chancellor’s discretion in the area of equitable distribution is exceedingly
broad and he “has the flexibility to do what equity and justice requires.”
Chamblee, 637 So. 2d at 864.
¶33.
We find that the chancellor did not err in determining the value of the marital assets
and in dividing the assets. Accordingly, this contention of error is also without merit.
6. Alimony
¶34.
“Alimony awards are also within the discretion of the chancellor, and his discretion
12
will not be reversed on appeal unless the chancellor was manifestly in error in his findings
of fact and abused his discretion.” Ethridge v. Ethridge, 648 So. 2d 1143, 1145-46 (Miss.
1995) (quoting Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993)). “In the case
of a claimed inadequacy or outright denial of alimony, we will interfere only where the
decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of
discretion.” Armstrong, 618 So. 2d at 1280 (citing McNally v. McNally, 516 So. 2d 499, 501
(Miss. 1987); Martin v. Martin, 271 So. 2d 391, 394 (Miss. 1972)).
¶35.
Terry asserts that he should have at least been awarded lump sum or rehabilitative
alimony. However, “[a]limony is considered only after the marital property has been
equitably divided and the chancellor determines one spouse has suffered a deficit.” Lauro
v. Lauro, 847 So. 2d 843, 848 (¶13) (Miss. 2003). To assist the chancellor in making the
determination as to whether an award of alimony is appropriate, the chancellor is required
to consider the Armstrong factors.8 Armstrong, 618 So. 2d at 1280. Here, the chancellor
stated in his order that “the [c]ourt has considered every ‘Armstrong factor’ except fault or
misconduct and [has] made findings of fact concerning those factors . . . .” After considering
8
These factors include:
(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.
13
the Armstrong factors, the chancellor concluded that Terry was not entitled to alimony.
Since Terry did not suffer a deficit after the chancellor equitably divided the marital property,
we cannot find that the chancellor abused his discretion in denying him an award of alimony.
Therefore, this contention of error is without merit.
¶36. THE JUDGMENT OF THE OKTIBBEHA COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
14
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