Gray v. Gray, 98-CA-00389-SCT.
| Decision Date | 22 July 1999 |
| Docket Number | No. 98-CA-00389-SCT.,98-CA-00389-SCT. |
| Citation | 745 So.2d 234 |
| Parties | James P. GRAY, Sr. v. Shirley A. GRAY. |
| Court | Mississippi Supreme Court |
David R. Daniels, Biloxi, Attorney for Appellant.
Gary L. Roberts, Attorney for Appellee.
BEFORE PRATHER, C.J., BANKS AND SMITH, JJ.
SMITH, Justice, for the Court:
¶ 1. This case comes to this Court on appeal by James P. Gray, Sr. from a judgment of the Chancery Court of Jackson County, which awarded James's wife, Shirley, a divorce, child support, periodic alimony, a 50% equitable lien on all real property acquired by the couple, during the marriage, and attorney's fees. Because the chancellor was apparently skeptical about James's income, made no specific findings of fact as to James's income and did not state any particular reason why the award of child support exceeded the 20 percent of adjusted income presumption or state findings regarding the award of alimony, we must vacate in part and, remand for these specific findings. We also remand for a clarification by the chancellor regarding whether the real property lien awarded to Shirley was a fixed or a growing value lien. We affirm in all other respects.
FACTS
¶ 2. James and Shirley Gray were married in 1980. Two children, James Gray, Jr. and Jonathan Michael Gray, were born of the marriage. During their seventeen year marriage, the Grays accumulated income-generating real property.
¶ 3. On February 2, 1996, Shirley filed suit for divorce, alleging habitual cruel and inhuman treatment by James. James filed a counterclaim for divorce on February 28, 1996. A judgment of divorce was granted to Shirley on the ground of habitual cruel and inhuman treatment.
¶ 4. The judgment of divorce awarded Shirley $600 per month child support and $300 per month periodic alimony. The Judgment awarded that until the minor children are emancipated, Shirley would have sole use and possession of the marital home in which James would pay the mortgage. Additionally, Shirley received fifty percent equitable lien on all of the real property and $5,000 in attorney's fees. James received income from the income-producing properties and is responsible for the debt associated therewith. Further, James was ordered to manage the properties and provide monthly reports to Shirley.
¶ 5. Following entry of the judgment of divorce, James filed a Motion for New Trial or to Alter or Amend Judgment or in the Alternative for Findings by the Court. This motion was heard on July 22, 1997, and denied on February 2, 1998. Feeling aggrieved, James appeals and raises the following issues:
¶ 6. James contends that his gross income was established at trial to be $14,000.00 annually or $912 per month. With this income James argues that the child support ordered by the court below amounts to more than sixty percent.
¶ 7. James argues that having made such a radical departure from the statutory guidelines, the court below failed to make the required findings of fact to justify it which constitutes manifest error.
¶ 8. Shirley argues that James had no verification of his alleged income. In fact, contends Shirley, the record is replete with evidence that James made substantially more than he related to the court. Shirley argues that James' testimony showed that he repeatedly traded cash back and forth with his sister's husband to the point where just four days prior to the filing of the Complaint for Divorce, he gave his brother-in-law approximately $32,000. While trial was pending, James loaned his brother-in-law $19,843.33.
¶ 9. Shirley contends that his purported income cannot be remotely believed since he has twenty-eight apartment units to manage and can expect an average monthly income of $350 per month per unit. Further, Shirley contends that James is living in one of the apartments without paying any rent for the benefit of both parties. Additionally, Shirley contends that if James had only been generating an income of $912 per month, he most certainly would not have purchased a new truck while litigation was pending. In short, Shirley contends that the chancellor had obvious skepticism about the true earnings and earning potential of the obligor and to reverse the chancellor on this issue would be to not only encourage fraud and concealment, but to reward the evasiveness of James Gray for his obviously clouded history of shady financial dealings.
¶ 10. An award of child support is a matter within the discretion of the chancellor and that determination will not be reversed unless the chancellor was manifestly wrong in his findings of fact or manifestly abused his discretion. Clausel v. Clausel, 714 So.2d 265, 266 (Miss.1998); Gillespie v. Gillespie, 594 So.2d 620, 622 (Miss.1992). Furthermore, "[t]he process of weighing evidence and arriving at an award of child support is essentially an exercise in fact-finding, which customarily significantly restrains this Court's review." Id.
¶ 11. Miss.Code Ann. § 43-19-101 provides:
¶ 12. In the case sub judice, the court does not relate in its decree or otherwise give proof of financial ability to the award, nor does the court make findings with regard to the needs of the children. Although, it may appear that the chancellor took into consideration the fluctuation of the income of James. James testified that his annual income is $14,000 or $912 per month adjusted. However, that was an income statement prepared in 1996 for the apartments that were rented for the particular year. James has twenty-eight rental units, the average rent is $350 per month. Further, James lives in one of the apartments without paying rent. At trial James testified that seven of the units were vacant. An average of $350 per unit would make the gross monthly (rental) income $7,350 which is an amount more than James calculated on his income statement. Additionally, the fact that James wrote out a check for $32,000 to his brother-in-law just prior to the divorce complaint stating that he was paying back what was loaned to him was not corroborated by any evidence of an actual loan. Also, during litigation, James cashed a CD worth $20,000 stating that he loaned it to his brother-in-law which necessarily sounds suspicious when James alleges that he cannot meet his child support obligation ordered by the court.
¶ 13. In Grogan v. Grogan, 641 So.2d 734, 740 (Miss.1994), we upheld a chancellor's upward deviation from the guidelines due, in part, to the chancellor's skepticism about the parent's true earning capacity. That case is not dissimilar to the situation confronted by the chancellor in the case at bar.
¶ 14. However, without an accurate finding as to what James Gray's salary is, it cannot be determined whether the award was in excess of the statutory guidelines. The only information provided in the record is that James' adjusted income is $912 per month. Given that income, an award of $300 per month per child exceeds the statutory guidelines of 20%. If the chancellor found the application of the guidelines to be unjust or inappropriate, a deviation is permitted if it is accompanied by a written finding or specific finding on the record detailing the reasons for said deviation. It appears that the chancellor was skeptical of James' adjusted income, and rightfully so, nevertheless, he failed to specifically determine on the record the adjusted gross income. Without having the benefit of the chancellor's findings of fact, it cannot be said that the guidelines were either followed or not followed. Therefore, we vacate the judgment in part as to the award of child support, and we remand so that the chancellor may reconsider this issue and provide specific findings of fact to support his award.
¶ 15. Next, James contends that by awarding Shirley $300 per month in periodic alimony, ordering James to pay the note on the marital home, and by ordering him to pay $600 per month child support the court completely disregarded the factors set forth by this Court in Brabham v. Brabham, 226 Miss. 165, 176, 84 So.2d 147, 153 (1955). James argues that in Brabham, this Court adjured chancellors to consider nine separate factors in awarding periodic alimony, including the earning capacity of each party, the income of each party, the necessary living expenses of the husband and the fact that "the wife has free use of the home, furnishings and automobile." Brabham, 226 Miss. at 176, 84 So.2d at 152. James contends that clearly the court below failed to consider these factors, given that, taken together with child support, the judgment required him to pay Shirley substantially...
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