Denham v. Denham

Decision Date01 February 2022
Docket Number2020-CA-00675-COA
CourtMississippi Court of Appeals

DATE OF JUDGMENT: 06/18/2020






¶1. Rebecca Pruett Denham (Becky) filed a complaint for divorce against Jason Clint Denham (Jason) after fifteen years of marriage. The Lamar County Chancery Court granted Becky a divorce on the ground of uncondoned adultery. The court also granted Becky physical custody of the parties' three minor children, divided the marital estate, and ordered Jason to pay rehabilitative alimony to Becky in the amount of $350 per month for twenty-four months.

¶2. Jason now appeals. On appeal, Jason asserts the following assignments of error: (1) the chancellor erred by failing to grant a continuance for good cause; (2) the chancellor erred by failing to include evidence adverse to Becky in the Albright[1] analysis; (3) the chancellor erred by failing to award joint custody; (4) the chancellor erred by awarding Jason less visitation than the amount Becky testified to as being in the children's best interest (5) the chancellor erred by failing to award standard visitation consistent with Mississippi law; (6) the chancellor erred in her determination of child support; and (7) the chancellor erred in her distribution of the marital property; and (8) the chancellor erred by awarding alimony without making appropriate findings and without a sufficient legal basis.

¶3. After our review, we affirm the chancellor's judgment.


¶4. Becky and Jason were married on July 9, 2002. Three children were born to their marriage.

¶5. Becky and Jason separated on July 31, 2017, and Becky filed her complaint for divorce on November 7, 2017. In her initial complaint for divorce, Becky alleged only irreconcilable differences. In December 2017, the chancellor entered a temporary order granting the parties joint legal custody and joint physical custody of the three minor children. The chancellor also entered an order appointing a guardian ad litem (GAL).

¶6. On February 6, 2018, Becky filed an amended complaint for divorce, adding allegations of the fault-based grounds of adultery and habitual cruel and inhuman treatment. Jason did not file an answer or assert any affirmative defenses to Becky's initial complaint or her amended complaint.

¶7. On May 29, 2018, the chancellor entered an agreed order setting a trial date of November 14, 2018.

¶8. On October 15, 2018, approximately one month before trial, Jason's counsel filed a motion to withdraw as counsel. On October 26, 2018, the GAL also filed a motion to withdraw. In her motion to withdraw, the GAL asserted that she had "recently received communication from one of the litigants which caused the [GAL] to be unable to proceed in this case." The GAL explained that "[t]he communication was, at the worst, threatening, and at the best, improper." After a hearing on November 5, 2018, the chancellor entered an order that same day allowing the withdrawal of Jason's counsel and an order allowing the GAL to withdraw after the offering of the GAL's preliminary report at the beginning of the trial in this matter.

¶9. A three-day trial was held in November 2018. On November 14, 2018, the first day of trial, the chancellor heard testimony from the GAL. Jason had not obtained new counsel at this time, and he moved for a continuance. The chancellor denied his motion, and Jason represented himself pro se. After the GAL's testimony, the chancellor then ordered that the trial reconvene on Tuesday, November 27, 2018. By the time the trial reconvened, Jason had retained new counsel.

¶10. On November 27 and 28, 2018, the chancellor heard testimony from Jason; Becky; Becky's sister, Lissa Ortego; the Denhams' neighbor, Brett Bean; Paula Henderson, the wife of Jason's co-worker; Bryan Page, Jason's former co-worker; and Jason's aunt, Cindy Belcher. Jason requested that the chancellor interview the children on-the-record. Becky objected to the children being interviewed and to the interview being on-the-record. The chancellor agreed to interview the children in camera, but the chancellor denied Jason's request for the interview to be on-the-record. Jason objected, but he made no proffer of what the children would have said if a record had been made. Prior to interviewing the children, the chancellor asked the parties if they had questions for the children, and none were submitted. The chancellor ultimately interviewed the children off the record and out of the presence of the parties, with only the parties' counsel and a court staff attorney present.

¶11. On December 17, 2018, the chancellor entered her findings of fact, conclusions of law, opinion, and final judgment. In her order, the chancellor granted Becky a divorce on the ground of uncondoned adultery. The chancellor awarded the parties joint legal custody of the three minor children. The chancellor awarded Becky sole physical custody of the children and awarded Jason "visitation as may be agreed upon between the parties/parents." The chancellor "encourage[d] the parties to work together to schedule visitation that is beneficial to the children and agreeable to all involved." The chancellor provided, however, that if the parties were "unable to agree on reasonable visitation times and circumstances for the children with Jason, then Jason shall be entitled to the following visitation: Weekend custodial visitation commencing on Thursday at 6:00 p.m. and ending on Sunday at 6:00 p.m. on every other weekend." The chancellor also set forth a holiday visitation schedule, which included four weeks of summer visitation for Jason.

¶12. In making her custody determination, the chancellor considered and applied the factors as set forth in Albright. The chancellor found that the factors were either neutral or favored Becky. The chancellor did not adopt the findings and recommendation of the GAL, explaining:

Because the [c]ourt allowed [the GAL] to withdraw and testify at the outset of trial (and thus the GAL was not privy to the rest of the testimony and evidence presented at trial and had no opportunity to weigh in on whether such would alter her preliminary recommendation), the [c]ourt shall not adopt the findings and recommendations of the [GAL] as presented in her Report (Exhibit 2) and per her testimony. The Albright analysis below is thus the [c]ourt's own.

¶13. The chancellor ordered Jason to pay child support in the amount of $1, 736.64 per month. The chancellor determined that Jason's adjusted gross income for child support purposes was $7, 893.81. She explained that pursuant to Mississippi Code Annotated section 43-19-101(1) (Rev. 2015), the statutory percentage for computing child support for three children was twenty-two percent of the non-custodial parent's adjusted gross income, which in this case amounted to $1, 736.64 per month.

¶14. After determining what property was marital and then determining the value of the marital estate, the chancellor applied the factors in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994), and held that "Becky shall be entitled to 60 [percent] of the total value of the marital estate at issue . . . and Jason shall be entitled to 40 [percent] of the total value of the marital estate at issue." In order to effectuate these percentages, the chancellor ordered Jason to pay Becky a lump sum of $24, 487.31. The chancellor clarified that this payment was for the equitable distribution of the marital estate and did not constitute alimony. The chancellor also explained that Becky "is carrying a much greater share of the marital debt in the division above, even considering the lump sum payment."

¶15. After dividing the marital estate, the chancellor conducted an analysis of the Armstrong[2] factors and the Cheatham[3] factors and awarded Becky rehabilitative alimony in the amount of $350 per month for 24 months.

¶16. Jason filed a motion for a new trial or, in the alternative, to alter or amend the judgment and to stay the judgment, asserting the following: the chancellor erred in denying Jason's request to grant a continuance; the chancellor erred by only allowing Jason less than half of a day to present evidence and witnesses in support of his case; the chancellor erred and unfairly prejudiced Jason when she excluded Jason's evidence of Becky's marital misconduct relating directly to the Ferguson, Armstrong, and Albright factors; the chancellor erred by excluding the testimony of the minor children, specifically the parties' eldest child; the chancellor erred in her application of the Albright factors; the chancellor erred by not awarding the parties joint physical custody; the chancellor erred in her determination and division of the marital estate; the chancellor erred by summarily ordering Jason to pay health insurance and maintain life insurance without making on-the-record findings as to the cost; and the chancellor erred in her determination as to the child support award and alimony award. The parties both filed several post-trial motions relating to the chancellor's December 17, 2018 order.

¶17. After hearings on the post-trial motions, the chancellor entered an order on June 5, 2020, addressing the motions and amending the final judgment. In her amended final order, the chancellor included Jason's student loan debt, and she accordingly adjusted the total value of the marital estate. The chancellor noted that Jason's Federal Employees Retirement System (FERS) account would have been included in the calculation of the marital estate, but "neither p...

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