Hammers v. Hammers, No. 2002-CA-01671-COA.

• Court: Court of Appeals of Mississippi
• Writing for the Court: Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
• Citation: 890 So.2d 944
• Decision Date: 03 August 2004
• Docket Number: No. 2002-CA-01671-COA.
• Parties: Timothy Bun HAMMERS, Appellant v. Stephanie Evonne (Gilliam) HAMMERS, Appellee.

890 So.2d 944

Timothy Bun HAMMERS, Appellant
v.
Stephanie Evonne (Gilliam) HAMMERS, Appellee

No. 2002-CA-01671-COA.

Court of Appeals of Mississippi.

August 3, 2004.

Rehearing Denied October , 2004.

Certiorari Denied January 6, 2005.

890 So.2d 948

Kay Farese Turner, attorney for appellant

John Thomas Lamar, Senatobia, attorney for appellee.

Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.

GRIFFIS, J., for the Court.

¶ 1. Stephanie Evonne (Gilliam) Hammers and Timothy Bun Hammers were granted a divorce by the DeSoto County Chancery Court. Timothy now appeals and argues that the chancellor erred: (1) in awarding custody; (2) in awarding alimony; (3) in his equitable division of marital property; (4) in excluding the appellant's expert witness; (5) in allowing the appellee to present proof of attorney's fees after the conclusion of the trial on the matter; and (6) in awarding attorney's fees. We affirm issues one through five and reverse and render the chancellor's award of attorney's fees.

FACTS

¶ 2. Timothy and Stephanie were married on October 26, 1985. Their marriage produced two children: a son born on February 4, 1991, and a daughter born on May 7, 1993. Timothy and Stephanie claim to have separated on April 6, 2000, yet they both continued to reside in the marital residence throughout the divorce litigation. Timothy filed a complaint for divorce on June 23, 2000.

¶ 3. Timothy and Stephanie executed a written agreement, pursuant to Mississippi Code Annotated § 93-5-2 (Rev.1994), that authorized the chancellor to grant a divorce on the ground of irreconcilable differences. The agreement specifically provided that the chancellor would decide child custody and support, division of marital

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property, Stephanie's entitlement to alimony, if any, and Stephanie's entitlement to attorney's fees, if any

¶ 4. On July 25, 2002, the chancellor issued the ruling of the court, which set forth the chancellor's detailed findings of fact and conclusions of law. The chancellor entered a final decree of divorce on August 14, 2002.

¶ 5. In his ruling, the chancellor found that the best interests of the children would be served by awarding Stephanie primary physical custody of the parties' two minor children, with the parties having joint legal custody, and ordered Timothy to pay $1,316.30 a month in child support.

¶ 6. Timothy and Stephanie stipulated that they had no separate assets, and, as such, all of their property was classified as marital property. The chancellor found the contributions of the parties to be equal and divided all of their assets in half. After awarding Stephanie possession and ownership of the marital home and all furnishings within the home, her vehicle, and her individual retirement account, the chancellor determined that a payment of the sum of $337,741.82 was necessary to convey Stephanie her one-half share of the marital estate. Timothy was ordered to immediately pay Stephanie $150,000, with the balance to be paid over ninety-six months in equal installments.

¶ 7. The chancellor also awarded Stephanie rehabilitative alimony in the amount of $65,000, payable in ninety-six monthly installments of $677, and her attorneys' fees in the amount of $51,174.60.

STANDARD OF REVIEW

¶ 8. The standard of review employed by this Court in domestic relations cases is well settled. Chancellors are vested with broad discretion, and this Court will not disturb the chancellor's findings unless the court was manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Andrews v. Williams, 723 So.2d 1175, 1177(¶ 7) (Miss.Ct.App.1998) (citing Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997)). However, we will not hesitate to reverse should we find that a chancery court was manifestly wrong, abused its discretion, or applied an erroneous legal standard. Glass v. Glass, 726 So.2d 1281, 1284 (¶ 11) (Miss.Ct.App.1998) (citing Bowers Window & Door Co., Inc. v. Dearman, 549 So.2d 1309 (Miss.1989)).

ANALYSIS

I. Whether the chancellor erred in his application of the Albright factors.

¶ 9. In matters pertaining to child custody, the chancellor must consider the guidelines set forth in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Timothy argues that the chancellor erred in his application of the Albright factors.

¶ 10. The chancellor found that seven Albright factors favored neither parent: the age of the children, the health and sex of the children, which parent has the willingness and capacity to provide primary child care, the physical and mental health of the parents, the age of the parents, the existing emotional ties between the children and their parents, the moral fitness of the parents, and the stability of the employment of each parent. Also, the preference of the children were inapplicable because neither child was above the age of twelve.

¶ 11. The chancellor found that one factor favored Timothy — the home, school, and community record of the children, and the remaining four factors favored Stephanie — continuity of care, parenting skills, employment and responsibilities of that employment, and the stability of the home

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environment of each parent. Timothy argues that the chancellor erred in finding that those factors favored Stephanie

¶ 12. Determining custody of children is one of the most difficult decisions that courts must make. In Buchanan v. Buchanan, 587 So.2d 892, 898 (Miss.1991), the supreme court held that:

The law affords no mathematical formula for deciding such cases, and, even when the trial judge sensitively assesses the factors noted in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) and progeny, the best the judiciary can offer is a good guess. We doubt it would be contrary to these children's best interests if [their parents] were to sit down and talk as the intelligent and mature adults they profess to be and resolve these matters without further civil warfare.

On the other hand, for one reason or another, we know and accept that there are times when people cannot agree, and the reason we have courts is to decide these cases.

¶ 13. Simply looking at the number of Albright factors that the chancellor determined favored neither Stephanie nor Timothy, we can see that the chancellor considered the decision on custody as a close question. The evidence presented at trial discussed both positive and negative characteristics that both parents must work to improve to ensure that they properly raise their children. We recognize that there is room for error in such decisions and allow for a modification of custody under the appropriate circumstances.

¶ 14. Our task as an appellate court is limited. In Lee v. Lee, 798 So.2d 1284, 1288(¶ 14) (Miss.2001), the court held that in child custody cases, the appellate court does not need to re-examine all of the evidence to see if it agrees with the chancellor's ruling; rather, the appellate court's duty is merely to see if the chancellor's ruling is supported by credible evidence. "So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor's decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor." Bower v. Bower, 758 So.2d 405, 412 (¶ 33) (Miss.2000). According to this standard, we review the chancellor's findings on the Albright factors that Timothy claims to be error.

¶ 15. Whether one parent, as compared to the other, has provided the continuity of care for the children prior to the separation. The chancellor found that both parents were actively involved in the day-to-day care of the children. However, the chancellor determined that because of Timothy's work schedule and the demands of his self-employment, the ultimate responsibility for the children's care rested primarily with Stephanie. The chancellor found that the testimony of Timothy's mother was credible and corroborated Stephanie's testimony. Timothy's mother testified that Stephanie made the children's doctor's appointments and cared for them when Timothy was often away on non-work related activities. The chancellor found that this factor favored Stephanie.

¶ 16. Timothy claims that the chancellor failed to recognize his parental role in the care of the children. Timothy argues that he was the parent who took the children to school, picked them up from school, and helped them with their homework. He said that he often took the children to events and activities on the weekend, without Stephanie.

¶ 17. Timothy also argues that the chancellor erred in giving any weight and credibility to his mother's testimony. Timothy claims that his mother had no first

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hand knowledge of the children's day-to-day routine. Even so, she acknowledged that Timothy had attended all of his son's doctor's appointments and often took the children to weekend events. Timothy testified that he and his mother have been estranged for over two years and that her testimony reflects that she believed that she would not get to visit the children if Timothy were to get custody.

¶ 18. A substantial difference between the chancellor's consideration and this appellate court's consideration is that the parties appeared before the chancellor. The chancellor observed the parties and heard the witnesses testify. Thus, the chancellor is in a much better position to determine what is in the best interest of the children than is the appellate court. Mosley v. Mosley, 784 So.2d 901, 905 (¶ 15) (Miss.2001). Unless the evidence demands a finding contrary to the chancellor's decision, the appellate court will not disturb a ruling of custody. Phillips v. Phillips, 555 So.2d 698, 700 (Miss.1989).

¶ 19. From the precedent cited above, we recognize the limited nature of our review. We cannot, and will not, reweigh the evidence or reconsider the credibility of the witnesses. The...