Arrington v. Arrington

• Decision Date: 07 February 2012
• Docket Number: No. 2010–CA–00782–COA.,2010–CA–00782–COA.
• Parties: Andrew F. ARRINGTON, Appellant v. Shannon ARRINGTON, Appellee.
• Court: Mississippi Court of Appeals

80 So.3d 160

Andrew F. ARRINGTON, Appellant
v.
Shannon ARRINGTON, Appellee.

No. 2010–CA–00782–COA.

Court of Appeals of Mississippi.

Feb. 7, 2012.

[80 So.3d 162]

James A. Williams, Brookhaven, Leslie C. Gates, Meridian, attorneys for appellant.

Thomas L. Tullos, attorney for appellee.

Before IRVING, P.J., BARNES and ROBERTS, JJ.

BARNES, J., for the Court:

¶ 1. The Chancery Court of Clarke County approved Shannon and Andrew Arrington's consent to a divorce based on irreconcilable differences. Andrew agreed to pay $656 per month in child support for the couple's two children. Shannon received possession of the marital home and responsibility for paying the mortgage. The chancery court awarded Shannon rehabilitative alimony in the amount of $450 per month for forty-eight months. Andrew appeals the chancery court's judgment. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Andrew and Shannon were married in December 1995 in Heidelberg, Mississippi. Their first son was born in October 1995. In December 1997, Andrew fathered an illegitimate child from an extra-marital affair. Shannon, however, forgave Andrew; and in June 2000, their second son was born.

¶ 3. Andrew has been employed as a truck driver for Clarkco Oil Field Service since 2005. For several years the couple enjoyed a measure of financial comfort-Andrew's income was over $100,000 in 2007 and 2008. He also did extra work for Hayes Petroleum from 2006 until 2008. For several years the family's finances allowed them to improve their marital home, purchase multiple vehicles, and take regular vacations. Shannon has been employed full-time as a coil helper at Howard Industries since 2005. Her net income, at $1,772.28 per month, is considerably less than Andrew's. However, near the end of 2008, the Arringtons suffered financial difficulties. Andrew's hours were reduced, and subsequently, tension increased in the marriage. In 2009, Andrew was still not making as much money as he was prior to 2008, but the situation was improving. At the time of the hearing, his actual gross income was $5,817.61 per month.

¶ 4. In November 2008, Shannon discovered an e-mail where Andrew professed his love to a new female companion. Additionally, Andrew's mobile telephone records (which were introduced at trial) showed that in January and February 2009, there were approximately 200 telephone calls between Andrew and this other woman. Not surprisingly, in February 2009, Andrew and Shannon separated.

¶ 5. Andrew filed for a divorce based on habitual, cruel and inhuman treatment at the end of January 2009. He requested to

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receive possession of the marital home and its furnishings and alimony, among other things. Shannon, in turn, filed a complaint for legal separation and separate maintenance, accusing Andrew of uncondoned adultery. She requested custody of the children, child support, and possession of the marital home.

¶ 6. In June 2009, Shannon hired a private investigator to conduct surveillance on Andrew. Shannon and her private investigator caught Andrew and the other woman together in a vehicle at a rendezvous point after a card party at approximately 1:00 a.m. Shannon claims this intervention interrupted Andrew's opportunity to fulfill his adulterous inclinations. After this encounter, in July 2009, the chancery court granted Shannon permission to amend her complaint of separate maintenance to one of divorce on the grounds of uncondoned adultery and habitual, cruel and inhuman treatment or, in the alternative, irreconcilable differences.

¶ 7. Despite both parties' fault-based complaints, on October 14, 2009, before trial, Andrew and Shannon executed a consent to divorce on the ground of irreconcilable differences. The parties agreed that Shannon would have primary custody of the minor children, and Andrew would pay Shannon $656 per month in child support. They also agreed that Shannon would receive ownership of the house and pay its mortgage. Andrew was ordered to provide health insurance for the children, and Shannon was ordered to provide dental insurance for the children. Each party would be allowed to claim one child for tax purposes. The remaining contested issues between the parties were whether Andrew would pay Shannon alimony and her attorney's fees and whether Andrew would be awarded part of the parties' real property for his sister's benefit.¹

¶ 8. At the outset of the hearing, the chancery court accepted and approved the parties' consent to divorce and all other agreed upon matters. The court also heard testimony on the remaining contested matters and issued an opinion on October 21, 2009. Regarding Andrew's adulterous behavior, the chancellor noted that under Mississippi law, Shannon's forgiveness of Andrew's first adulterous affair and the resulting birth of a child “was conditioned upon Andrew's continued good behavior.” However, the chancery court found this initial affair showed Andrew had an adulterous disposition. Then, the chancellor noted that, in November 2008, Andrew “professed [his] love and affection” for a new female companion, and he “put himself in at least one situation where he and she were together in circumstances where his adulterous disposition could be carried out.” Therefore, the chancellor found that Andrew's behavior could “support a finding that, circumstantially, he [was] again guilty of adultery .... [r]egardless of whether he [was] actually guilty of adultery [this time]....” The chancellor concluded that Andrew's conduct in November 2008 was “misconduct of such a serious nature that it revive[d] and reinstate[d] his prior adultery.” The chancellor also noted that the amount the parties agreed to for child support was below the statutory guideline amount; however, the chancellor did not make a specific ruling that the child-support obligation was insufficient.

¶ 9. Regarding the contested issues, the chancellor analyzed the factors for alimony in detail under Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993) and awarded Shannon $450 per month in rehabilitative alimony for forty-eight months. The chancellor took into account Andrew's

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misconduct, which had caused the breakup of the marriage. The chancellor also found Shannon was entitled to a judgment for her attorney's fees in the amount of $5,744.40, plus interest from the entry of the judgment.

¶ 10. A final judgment of divorce was entered in November 2009, granting the parties a divorce based on irreconcilable differences. After his post-trial motions were denied, Andrew timely appealed, raising several issues relating to the grant of an irreconcilable-differences divorce, rehabilitative alimony, and child support.

STANDARD OF REVIEW

¶ 11. The standard of review in domestic-relations cases is limited. In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss.2010). The findings of a chancellor will not be disturbed “when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Under the standard of review utilized to review a chancery court's findings of fact, particularly in the areas of divorce, alimony and child support, [an appellate court] will not overturn the court on appeal unless its findings were manifestly wrong. For questions of law, our standard of review is de novo.” Id. (internal citations omitted).

ANALYSIS OF THE ISSUES

¶ 12. For judicial economy and clarity, we will combine several of Andrew's issues in our discussion.

1. Divorce on the Ground of Irreconcilable Differences

¶ 13. Andrew argues that the chancellor should have granted him the opportunity to withdraw his consent to a divorce on the ground of irreconcilable differences because the chancellor, in effect, changed the terms of the consent divorce in his final judgment. Andrew maintains his agreement for a no-fault divorce was based on the premise that the chancery court would approve the $656 per month in child support, the parties' distribution of the marital property, and would then consider alimony. He argues the chancellor changed the parties' agreed-upon terms by finding the child-support obligation did not comply with the statutory guideline amount, and the deficient child-support obligation would be a factor to consider regarding alimony. He also claims the chancellor changed the irreconcilable-differences divorce to one of marital fault by making a finding of adultery in the analysis for alimony. Relatedly, Andrew raises a separate issue that he was deprived of due process of law in violation of the United States and Mississippi constitutions because he was not given notice that his agreement to an irreconcilable-differences divorce was not binding on the chancery court. Thus, he was unable to defend himself against a divorce based on adultery.

¶ 14. We find no merit to these arguments. We first note that Andrew never requested his consent to the divorce be withdrawn. Andrew is correct in noting that a divorce decree is quasi-contractual: the chancellor always has the discretion to modify the decree's terms, and all such decrees are subject to the court's approval. Varner v. Varner, 666 So.2d 493, 496–97 (Miss.1995) (citing Grier v. Grier, 616 So.2d 337, 340 (Miss.1993)). However, the chancellor did not modify any of the agreed-upon matters in the parties' consent to divorce; the chancellor merely stated Andrew was at fault for the breakdown of the marriage in his analysis

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of the Armstrong factors for alimony.² In doing so, the chancellor did not change the irreconcilable-differences divorce to one of fault.

¶ 15. In Driste v. Driste, 738 So.2d 763, 765–66 (¶¶ 8–9) (Miss.1999), the Mississippi Supreme Court determined a discussion of fault was proper in an Armstrong analysis, even if the divorce was based on irreconcilable differences.³ “[L]imited testimony regarding all the Armstrong factors can be...