Baumbach v. Baumbach, 2016–CA–00978–COA

• Decision Date: 03 April 2018
• Docket Number: NO. 2016–CA–00978–COA,2016–CA–00978–COA
• Parties: Robert O. BAUMBACH, Appellant v. Jennifer Anne BAUMBACH, Appellee
• Court: Mississippi Court of Appeals

242 So.3d 193

Robert O. BAUMBACH, Appellant

v.Jennifer Anne BAUMBACH, Appellee

NO. 2016–CA–00978–COA

Court of Appeals of Mississippi.

April 3, 2018

TIFFANY ALAYNE YATES RACHEL LEE HODGES, ATTORNEYS FOR APPELLANT

CARRIE A. JOURDAN, ATTORNEY FOR APPELLEE

EN BANC.

BARNES, J., FOR THE COURT:

¶ 1. Robert and Jennifer Baumbach were granted a divorce on the ground of irreconcilable differences on January 25, 2016. Subsequently, in a June 6, 2016 order determining the remaining issues, the Lowndes County Chancery Court awarded Jennifer sole physical custody of the couple's minor children, the marital residence, all of her 401(k) and Roth IRA, twenty-five percent of Robert's 401(k), and a portion of Robert's military pension. Robert was awarded the couple's other real-estate holdings, which had a negative value of $357,000, and he was ordered to pay rehabilitative alimony, child support, private-school tuition, and mortgage payments on the marital home. Robert was also ordered to maintain a life-insurance policy with Jennifer as the primary beneficiary.

¶ 2. Robert filed a motion to alter or amend the judgment, requesting a clarification of visitation and alleging numerous errors such as the award of alimony, attorney's fees, and the equitable division of the marital assets. While the chancery court granted the motion in part on the issue of visitation, it denied the motion as to the other issues raised. Aggrieved, Robert now appeals.

¶ 3. Finding the chancery court (1) failed to make specific findings regarding the deviation from child support in excess of the statutory guidelines; (2) failed to address the specific McKee factors and whether Robert would be forced to liquidate assets to pay Jennifer's attorney's fees; and (3) erred in the equitable division of marital assets, we reverse the court's judgment in part and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 4. Robert and Jennifer were married in Florida on November 9, 2003. Jennifer was employed as a flight attendant, and Robert was a pilot with the United States Air Force. A daughter was born of the marriage on October 13, 2006. Jennifer remained employed but used her maternity and sick leave to stay home with the child.

¶ 5. In August 2008, the couple moved to Columbus, Mississippi, where Robert was stationed with the Air Force. A second daughter was born on May 23, 2009. The couple purchased a marital residence in Columbus, valued at $400,000; they also owned four rental properties in Florida through their company, RJB Real Estate Holdings. Although both children were enrolled in school, Jennifer never returned to work. Robert retired from the Air Force on September 1, 2013, and went to work for Delta Airlines, which required him to be out of town often. Eventually, he moved into an apartment in Atlanta in April 2014, and the couple separated.

¶ 6. Jennifer filed a complaint for divorce with the chancery court on May 22, 2014, alleging habitual drunkenness and habitual cruel and inhuman treatment, or in the alternative, irreconcilable differences.

In the complaint, she sought sole legal and physical custody of the couple's children, child support, medical insurance, an equitable division of marital assets, alimony, attorney's fees, and temporary support. She requested an emergency hearing for temporary relief, seeking exclusive use and possession of the marital home, sole custody of the children, and a restraining order against Robert.

¶ 7. Robert filed an answer and counterclaim for divorce, citing the same grounds. He requested sole legal and physical custody of the children, child support, reimbursement for one-half of insurance premiums, and all real property owned by the parties, except for the marital residence. He later supplemented his claim with an affidavit citing instances of Jennifer's excessive drinking, and alleging she had verbally and physically assaulted him. He also refuted Jennifer's claims of habitual drunkenness and noted he had not failed any random drug and alcohol tests by the Federal Aviation Administration over the years.

¶ 8. The chancellor appointed a guardian ad litem (GAL) on July 10, 2014, to investigate the allegations of heavy drinking, prescription drug use, and verbal abuse by both parties. On July 31, 2014, the chancery court temporarily awarded Jennifer "the sole use, possession and control of the marital home, the marital property and contents," and issued a restraining order against Robert, excepting prescribed visitation with the minor children.

¶ 9. The GAL's report noted that both parties had "a history of drinking excessively." The report also expressed concern that Jennifer's drinking caused her to be "a very ‘angry drunk.’ " However, the report determined that both parties were sincere in their claims they were no longer drinking and "neither parent poses any risk of danger to the children." Because the children were already enrolled in school, the GAL recommended they remain in Jennifer's physical custody until a final hearing on the matter.

¶ 10. On October 14, 2014, the chancery court entered a temporary order, awarding Jennifer temporary legal and physical custody of the children, with Robert entitled to visitation. Robert was ordered to pay $3,000 a month in temporary alimony, $2,000 a month in child support, the mortgage and related expenses for the marital home, and any other joint debts of the parties, except utilities for the residence, which were to be paid by Jennifer. Robert filed a motion for reconsideration, which the court denied.

¶ 11. On November 14, 2014, Jennifer filed a motion for contempt, claiming Robert was $9,400 in arrears for temporary alimony and child support.¹ On November 17, 2014, Robert also filed a petition for contempt, asserting Jennifer was denying him reasonable visitation and telephone contact with the children. Robert filed a subsequent motion for an emergency hearing and a response to Jennifer's motion for contempt, claiming he was simply "unable to pay due to a huge loss in his business." He argued that Jennifer should bear fifty percent of the costs to maintain the couple's four rental properties.

¶ 12. On June 1, 2015, Robert filed another petition for contempt. He claimed Jennifer continued to be uncooperative with visitation and was not paying the household bills or the children's school tuition. Jennifer responded that Robert had been aggressive when exchanging the children and that the children were unkempt and had not bathed after visitation with their father.

¶ 13. Two months later, Jennifer filed a motion to suspend Robert's visitation pending investigation, asserting claims that a couple of weeks after Robert's visitation with the girls in June, she found a search history of pornographic material on the iPad used by the couple's daughters. She attached an affidavit by a technology consultant, Benjamin Hurt. Robert denied the accusations, and he provided an affidavit from a computer forensic examiner who had reviewed the iPad and determined the information gathered by Hurt did "not originate from the iPad Mini under investigation but rather from an additional two iPads and an iPhone that were also associated" with Robert's Apple account. Thus, the examiner questioned the integrity of Hurt's results and concluded that he had "accessed these web sites, and, in turn, destroyed the evidence." On October 6, 2015, the chancery court appointed a second GAL to investigate the allegations. Upon recommendation by the second GAL, the chancellor reinstated temporary visitation to Robert on January 19, 2016.

¶ 14. On January 25, 2016, the parties consented to an entry of a divorce based upon irreconcilable differences. All other contested matters were submitted to the court for review. A trial was held on February 12, 2016. Jennifer filed a motion for contempt of the temporary order and to reopen the hearing on June 2, 2016, asserting that Robert was $57,000 in arrears for alimony and $2,225 in arrears for child support.

¶ 15. The chancery court entered a final judgment on June 6, 2016. Jennifer was awarded: (1) sole physical custody of the couple's minor children; (2) the marital residence and one-half of the equity;² (3) her 2008 Toyota Sequoia valued at $10,500; (4) her 401(k) and Roth IRA fund cumulatively valued at $92,000; (5) twenty-five percent of Robert's 401(k) which percentage was valued at $92,000; (6) one-half of eight years of his military pension;³ and (7) one-half of the couple's last joint income-tax refund. Robert was awarded the couple's other real-estate holdings, four rental properties in Florida with a negative value of $357,000. He was also awarded his thrift savings plan valued at $21,900, seventy-five percent of his 401(k) which percentage was valued at $276,000, and a mortgage investment account valued at $6,000. Robert was ordered to pay: (1) $1,500 per month in rehabilitative alimony for thirty-six months for a total of $56,000; (2) $1,817 per month in child support;⁴ (3) all tuition and fees associated with the children's private-school education;⁵ (4) mortgage payments (approximately $2,400 monthly), taxes, and insurance on the marital home. He was also ordered to provide health insurance for the children. The chancery court further directed Robert to pay $48,000 in arrearage for temporary alimony, paying $1,000 per month until the amount is paid in full.

¶ 16. Additionally, Robert was ordered to maintain a $500,000 life-insurance policy with Jennifer as the primary beneficiary. Finding Jennifer in contempt for denying Robert his visitation and telephone contact, the court awarded Robert $10,000 in attorney's fees. But he also awarded Jennifer $15,000 in attorney's fees, finding she had no ability to pay the fees without liquidating assets.

¶ 17. Robert filed a motion to alter or amend the judgment on June 16, 2016, objecting to the "award of alimony, division of property and debts, award of attorney fees, and judgment of past[-]due alimony." He...