Burcham v. Burcham, No. 2002-CA-01868-COA.
| Decision Date | 23 March 2004 |
| Docket Number | No. 2002-CA-01868-COA. |
| Parties | William David BURCHAM, Appellant, v. Lisa Johnson BURCHAM, Appellee. |
| Court | Mississippi Court of Appeals |
Earl P. Jordan, James A. Williams, Meridian, attorneys for appellant.
Lawrence Primeaux, Meridian, attorney for appellee.
Before McMILLIN, C.J., IRVING and MYERS, JJ.
McMILLIN, C.J., for the Court:
¶ 1. Lisa Burcham and David Burcham ended their marriage by consenting to a divorce on the ground of irreconcilable differences. Unable to resolve certain financial aspects of the dissolution of the marriage, the parties entered into a written stipulation submitting the unresolved issues to the chancellor for determination. Mr. Burcham, finding himself dissatisfied with certain aspects of the chancellor's ruling, has appealed to this Court and raises three issues. In summary, they are (a) that the chancellor erred in establishing a level of child support that exceeded the statutory guidelines; (b) that the chancellor abused her discretion by being unreasonably generous in making provision for the post-divorce support of Mrs. Burcham both as to the equitable distribution of marital assets and the requirement of permanent periodic alimony; and (c) that the chancellor erred in requiring Mr. Burcham to pay attorney's fees for Mrs. Burcham's representation in the divorce proceeding.
¶ 2. We find that the issue of the judicially-determined level of child support is not properly preserved for appellate review and affirm on that basis. We determine that the remaining provisions of the chancellor's ruling relating to financial matters complained of by Mr. Burcham fall within the realm of discretionary authority afforded the chancellor in resolving a domestic relations case and, for that reason, we affirm as to them also. Finally, we affirm the award of attorney's fees.
I.
Facts
¶ 3. The parties were married on November 6, 1993. They obtained a judgment for divorce on January 30, 2002. One child was born of the marriage on March 3, 1995. The child's name is William Bradly Burcham. Mr. Burcham was forty-two years of age at the time of divorce and worked on an off-shore oil rig as a tool pusher. Mrs. Burcham had formerly worked as a cosmetologist prior to the marriage but was not engaged in employment outside the home during most of the marriage, instead devoting herself to the care of the couple's child and her two other children from a previous marriage. After the parties separated, Mrs. Burcham had worked in several different fields and was earning approximately $12,000 per year. She has not returned to the field of cosmetology. Mr. Burcham's employment resulted in earnings of approximately $72,000 annually. Mr. Burcham had accumulated substantial sums in several retirement related accounts with his employer which totaled in the aggregate approximately $40,000. The proof further showed that he had exercised several stock purchase options available through his employer, one prior to the parties' separation and one after, and that he realized a combined sum of approximately $25,000 cash from those transactions. In addition, he withdrew approximately $8,700 from his pension fund after the separation and used approximately $5,400 of the money to pay existing family debts and a fine and legal fees in conjunction with his arrest on charges of driving while intoxicated. The remaining balance of just over $3,200 was divided between the parties.
¶ 4. The chancellor, in resolving the various matters entrusted to her for decision under the required written stipulation filed by the parties, established child support at the rate of $650 per month. As for the equitable division of marital assets, the parties agreed that the house would ultimately be sold and the proceeds divided equally. Additionally, the chancellor determined that all funds in Mr. Burcham's various retirement funds accumulated during the marriage should be divided equally. In an effort to equalize somewhat Mr. Burcham's receipt of stock option funds and retirement withdrawals, the chancellor ordered Mr. Burcham to assume sole responsibility for all indebtedness listed in his statement of economic interest except the home mortgage-a total debt figure of approximately $31,000—while requiring Mrs. Burcham to assume sole liability for less that $7,000 of existing indebtedness.
II.
Issue One: Child Support
¶ 5. Mr. Burcham now complains that the chancellor erred in setting child support at the figure of $650 per month because the proof showed that Mr. Burcham's income exceeded the $50,000 annual sum mentioned in Section 43-19-101(4) and the chancellor did not make specific findings of fact as to the needs of the child and the justification for setting child support according to the statutory percentage or on some other basis, thus making the award a purely arbitrary amount and an abuse of the chancellor's discretion.
¶ 6. We find that Mr. Burcham is barred from raising this issue on appeal. During the course of his testimony, both on direct and on cross-examination, Mr. Burcham agreed that the proposed figure of $650 per month was a fair and reasonable sum for him to pay as child support. The following exchange occurred between Mr. Burcham and his attorney:
¶ 7. In the chancellor's memorandum opinion, which was entered at the conclusion of this matter without objection from Mr. Burcham, the chancellor found as follows:
[Mr. Burcham] is employed off shore on an oil rig, and makes a gross monthly income of $7,127.00. He [Mr. Burcham] opined that $650.00 per month is reasonable child support, and prefers to pay his child support directly rather than through the Twelfth Chancery Court District Bank Plan for Child Support.
¶ 8. The ensuing formal judgment, plainly based upon the chancellor's memorandum opinion, set child support in that amount. No post judgment motion seeking reconsideration or urging some misapprehension on the part of the chancellor in making these findings was filed; rather, the judgment was followed only by Mr. Burcham's notice of appeal.
¶ 9. It is a fundamental concept of appellate law that matters, in the normal course, may not be raised for the first time on appeal, but rather have to be presented for decision first to the trial court. Scally v. Scally, 802 So.2d 128(¶ 27) (Miss.Ct.App. 2001).
¶ 10. In Seeley v. Stafford, this Court said that Seeley v. Stafford, 840 So.2d 111(¶ 16) (Miss.Ct.App.2003). In Seeley, the agreement to pay more than the guidelines require was formally incorporated into a written agreement executed by the parties whereas in this instance Mr. Burcham's agreement is evidenced...
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