Anfei Luo Henrichs v. Donald Walter Henrichs
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00929-COA
ANFEI LUO HENRICHS
APPELLANT
v.
DONALD WALTER HENRICHS
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
04/29/2008
HON. VICKI B. COBB
TATE COUNTY CHANCERY COURT
DAVID L. WALKER
JOHN THOMAS LAMAR
CIVIL - DOMESTIC RELATIONS
GRANTED DIVORCE, AWARDED
CUSTODY OF THE MINOR CHILD TO
APPELLEE, AND DIVIDED THE MARITAL
PROPERTY
AFFIRMED – 09/08/2009
BEFORE MYERS, P.J., IRVING AND ROBERTS, JJ.
IRVING, J., FOR THE COURT:
¶1.
The Tate County Chancery Court granted Donald Henrichs a divorce from Anfei
Henrichs on the ground of habitual cruel and inhuman treatment. The chancellor awarded
custody of the parties’ minor child, Tai, to Donald and divided the marital estate. Feeling
aggrieved, Anfei appeals and asserts (1) that the chancellor erred in her division of the
marital property, (2) that the chancellor erred in failing to award Anfei any visitation with
Tai, (3) that the chancellor erred in failing to award her alimony, and (4) that the chancellor
erred in awarding custody of Tai to Donald.
¶2.
Finding no reversible error, we affirm the chancellor’s judgment.
FACTS
¶3.
Anfei and Donald were married on April 11, 2000, in Chengdu, People’s Republic of
China. One child, Tai, was born unto the marriage on December 26, 2000. The parties were
living together as husband and wife in Tate County, Mississippi on September 25, 2006,
when Donald filed a complaint for divorce and a motion and application for a temporary
restraining order against Anfei. In the motion for the temporary restraining order, Donald
alleged that Anfei was physically and verbally abusive toward him and that he feared that
Anfei would “possibly kill or injure him.” On September 25, 2006, Anfei was personally
served with a copy of the complaint for divorce and summons, informing her that she was
required to submit her response by mail or hand delivery within thirty days of receipt of the
complaint and summons. Also, on September 25, 2006, Anfei was served with a copy of the
motion and application for a temporary restraining order, along with a Rule 81 summons
advising her that a hearing would be held on the motion and application on October 23, 2006.
Nevertheless, Anfei did not file an answer or respond to the complaint in any way.
¶4.
A series of continuances ensued. The first order of continuance was entered on
October 6, 2006, nunc pro tunc to September 27, 2006, continuing the motion and application
for temporary restraining order “for [a] hearing to be set by this [c]ourt at a later date.” Also,
on October 6, 2006, the court entered an order continuing the motion for temporary relief to
November 6, 2006. The record reflects that the last order of continuance was filed on
2
January 7, 2008, continuing the cause until January 28, 2008.1 On March 19, 2008, the
chancellor granted the motion for the temporary restraining order.2 On April 14, 2008, the
chancellor granted a preliminary injunction against Anfei, finding that “the allegations [in
Donald’s motion and application for temporary restraining order] depict a potential
immediate dangerous situation to the welfare of [Tai] and to plaintiff/movant, Donald Walter
Henrichs.”
¶5.
On April 29, 2008, the chancellor granted Donald a divorce on the ground of habitual
cruel and inhuman treatment. The divorce was granted at an ex parte hearing due to Anfei’s
failure to appear. In the judgment of divorce, the chancellor stated that she applied the
Ferguson factors 3 and equitably distributed the marital property. The chancellor further
stated that she applied the Albright factors to determine that it was in Tai’s best interest for
Donald to have primary custody.4 The chancellor permanently enjoined Anfei from having
1
We find it important to note that the complaint for divorce and the application for
temporary restraining order were filed under the same cause number. Also, beginning with
an order of continuance dated February 27, 2007, no specific reference was made as to what
was being continued. The order simply stated that the cause was being continued. Prior to
this date, each order recited that it was the hearing on the temporary matters that was being
continued.
2
We were unable to find in the record an order continuing the motion and application
for temporary restraining order to March 19, 2008.
3
In Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994), the Mississippi Supreme
Court established a list of factors to be considered when determining the equitable
distribution of marital property.
4
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 the best interest of the child
(continued...)
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contact with Donald:
The defendant, Anfei Luo, be and is hereby permanently enjoined from having
any contact, directly or indirectly, with the plaintiff, with the only exception
being able to contact him periodically in a . . . manner with regard to the wellbeing of the minor child of the parties.
The defendant, Anfei Luo, be and is hereby permanently enjoined from
coming on, about, or around the former marital residence located at 102
Temple Cove, Senatobia, Mississippi and from removing the parties’ minor
child from the care and custody of plaintiff, Donald Walter Henrichs, and/or
his agents, or from removing the minor child from the State of Mississippi.
¶6.
On May 23, 2008, Anfei filed a motion for reconsideration of decree of divorce and
requested that the chancellor make findings of fact and conclusions of law. On May 27,
2008, Anfei filed her notice of appeal.5
¶7.
Additional facts, as necessary, will be discussed during the analysis and discussion
of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶8.
“Our standard of review for all appeals involving domestic relations matters is limited.
We will not disturb the findings of a chancellor unless the chancellor was ‘manifestly wrong,
clearly erroneous, or an erroneous legal standard was applied.’” Lauro v. Lauro, 924 So. 2d
4
(...continued)
and child custody.
5
The record indicates that the chancellor did not rule on Anfei’s motion for
reconsideration. The failure to get a ruling on the motion, however, does not affect our
jurisdiction, because the motion was filed outside of the ten-day period allowed by Rule 59
of the Mississippi Rules of Civil Procedure for seeking a modification or reconsideration of
a trial judge’s ruling.
4
584, 587 (¶7) (Miss. Ct. App. 2006) (citing Perkins v. Perkins, 787 So. 2d 1256, 1260-61(¶9)
(Miss. 2001)). “We will not reverse the chancellor’s ‘factual findings where there is
substantial evidence in the record supporting [those] 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)).
¶9.
Anfei argues that the chancellor erred in her ruling on the issues of property division,
custody, visitation, and alimony. Specifically, Anfei argues that the chancellor failed to
make findings of fact and conclusions of law under the Albright, Ferguson, and Armstrong 6
analyses. She further argues that she should have at least been awarded reasonable visitation
with the parties’ minor child.
¶10.
This Court has affirmed a chancellor’s judgment in a case factually similar to today’s
case. In Luse v. Luse, 992 So. 2d 659, 660 (¶1) (Miss. Ct. App. 2008), John Luse failed to
answer the complaint for divorce and failed to appear at the divorce hearing.
No
transcription was made in the matter. Id. at 662 (¶8). In his appeal, John argued that the
chancellor erred in failing to make specific findings of fact and conclusions of law. Id. at 663
(¶11). We affirmed the judgment of the chancellor, stating:
[W]e find that on the merits, [John] is correct in stating that there were no
specific findings made in the chancellor’s order regarding the property
distribution. However, there is a presumption that sufficient evidence was
heard to sustain a decree once it has been entered. Stinson [v. Stinson], 738
6
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
whether alimony is appropriate.
5
So. 2d [1259,] 1264-65 (¶28) [(Miss. Ct. App. 1999)]. No evidence was
presented by [John] to counter this presumption. . . .
****
[T]o require a chancellor to make specific findings of fact and conclusions of
law . . . either on the record or in an order in every uncontested chancery court
matter in this State, when the defendant already had the opportunity to have his
day in court and had chosen not to take advantage of it, is not justified. There
were no specific Ferguson findings made by the chancellor and no
transcription made of the matter because it was uncontested.
Id. at 663-64 (¶¶13-15) (emphasis added).
¶11.
The disposition of the case before us arises out of one fact—Anfei failed to defend the
case in chancery court. She is attempting to defend the case for the first time on appeal, but
our supreme court has consistently held that this is improper. Williams v. Skelton, 6 So. 3d
428, 430 (¶6) (Miss. 2009) (citing Alexander v. Daniel, 904 So. 2d 172, 183 (¶26) (Miss.
2005)). In Williams, the Mississippi Supreme Court stated:
[W]e need not consider matters raised for the first time on appeal, which
practice would have the practical effect of depriving the trial court of the
opportunity to first rule on the issue, so that we can then review such trial court
ruling under the appropriate standard of review.
Id.
¶12.
Accordingly, we find that all of Anfei’s issues are procedurally barred because they
were not raised in the court below. Furthermore, we can find no justification in this record
for considering Anfei’s issues under plain error as permitted by Rule 103(d) of the
Mississippi Rules of Evidence.
¶13. THE JUDGMENT OF THE TATE COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
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APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS
AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.
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