Hensarling v. Hensarling, No. 2000-CA-00252-SCT

• Decision Date: 20 June 2002
• Docket Number: No. 2000-CA-00252-SCT, No. 2000-CA-00333-SCT.
• Citation: 824 So.2d 583
• Parties: James Kenneth HENSARLING v. Brenda Roxanne Gray HENSARLING.
• Court: Mississippi Supreme Court

824 So.2d 583

James Kenneth HENSARLING v. Brenda Roxanne Gray HENSARLING.

Nos. 2000-CA-00252-SCT, 2000-CA-00333-SCT.

Supreme Court of Mississippi.

June 20, 2002.

Rehearing Denied September 5, 2002.

Janice T. Jackson, John R. McNeal, Jr., attorneys for appellant.

William D. Ketner, Jr., W. David Ross, attorneys for appellee.

EN BANC.

GRAVES, J., for the court.

¶ 1. On December 7, 1995, James Kenneth Hensarling ("Ken") initiated divorce proceedings against his wife, Brenda Roxanne Gray Hensarling ("Brenda"), by filing a Complaint for Divorce in the Chancery Court of Hinds County. In the Final Judgment of Divorce dated November 5, 1999, the chancellor awarded Ken a divorce on the grounds of adultery. Among other things, Brenda was given custody of the parties' three children, $2,500.00 per month in child support, rehabilitative alimony in the amount of $1,500.00 per month for six years, 35% of the marital estate and attorney fees. On appeal, both Ken and Brenda allege error. Ken maintains that the chancellor erred by giving custody of the children to their mother; awarding child support without specific findings of fact; conveying 35% of the marital estate to Brenda; granting attorney fees to Brenda; allowing Brenda relief pursuant to the court's motion sua sponte; and failing to grant a new trial, amend the Final Judgment or set it aside. Brenda, in her cross-appeal, contends that Ken should not have been granted a divorce on the grounds of adultery; rather, she should have been awarded a divorce on the basis of habitual cruel and inhuman treatment. She also alleges that the chancery court undervalued the marital estate and that the chancellor erred in limiting her share to 35%

¶ 2. We find that the chancellor erred with regard to the valuation of the marital estate and the interest awarded and that the record does not justify the amount of the award of attorney's fees to Brenda. We therefore affirm in part and reverse and remand in part.

FACTS AND PROCEEDINGS BELOW

¶ 3. Ken and Brenda were married on July 20, 1974. When they met, Brenda was working at the V.A. Medical Center in Jackson and taking night classes at Hinds Community College, while Ken was a fourth year medical student.¹ Brenda thinks she worked full-time for five of the first seven years of their marriage. She quit work prior to the conception of Lauren and went back to the V.A. on a part-time basis for two years, at most, after Lauren was born. Following medical school, Ken completed a residency during which he moonlighted for extra money. The couple pooled their incomes while they were both working and when Brenda stopped working, Ken supported the family.

¶ 4. They were married for twenty-one years, during which time three children were born: Lauren (d/o/b Aug. 26, 1982), Gray (d/o/b Oct. 14, 1989) and Kate (d/o/b Nov. 9, 1990). Brenda claims that after some early difficulties prior to the birth of the children, there was no major marital discord until the summer of 1995. In July of that year, Ken announced that he wanted a divorce.

¶ 5. Ken filed for divorce on December 7, 1995. The grounds for divorce were changed from irreconcilable differences to adultery, habitual cruelty and constructive desertion in the amended complaint. An agreed temporary order regulating temporary custody, visitation, alimony, child support, insurance, mortgage payments, etc. was entered in May of 1996. Brenda counterclaimed for divorce based on habitual cruel and inhuman treatment on April 17, 1997.

¶ 6. Beginning in 1997, litigation of this case took nineteen (19) days over a period of about two and a half years. The chancellor, in his first opinion, declined to grant the parties a divorce. At this point, Brenda amended her counterclaim for divorce to include constructive desertion as grounds for divorce. On October 5, 1999, the chancellor amended his original opinion and awarded Ken a divorce on the grounds of adultery. The next day, in a third opinion entitled "Order on Motion Sua Sponte To Reconsider The Court's Ruling And Opinion Dated October 5, 1999, And Amending Said Opinion," the chancellor made some changes in the valuation of the marital estate and ordered that Brenda was to receive 35% of these additional assets plus any interest thereon from the date of the order. After his Motion For A New Trial Or Amendment Of Judgment was denied, a notice of appeal was timely filed by Ken on February 25, 2000. Brenda filed her cross-appeal the same day. Thereafter, Ken filed an amended notice of appeal on March 16, 2000.

STANDARD OF REVIEW

¶ 7. In domestic relations cases the scope of review is limited by the substantial evidence/manifest error rule. Magee v. Magee, 661 So.2d 1117, 1122 (Miss. 1995). This Court may reverse a chancellor's finding of fact only when there is no "substantial credible evidence in the record" to justify his finding. Henderson v. Henderson, 757 So.2d 285, 289 (Miss.2000). "Our scope of review in domestic relations matters is limited under the familiar rule that this Court will not disturb a chancellor's findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard." Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994) (citing McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994)).

DISCUSSION

I. Whether the chancellor misapplied the law and committed manifest error in (1) finding against the substantial weight of the evidence in awarding custody to Defendant; (2) finding the court-appointed guardian ad litem did not have the skills necessary to draw conclusions about custody; and (3) striking the testimony given by the court-appointed therapist from May 13, 1998 and forward.

¶ 8. We may not always agree with a chancellor's decision as to whether the best interests of a child have been met, especially when we must review that decision by reading volumes of documents rather than through personal interaction with the parties before us. However, in custody cases, we are bound by the limits of our standard of review and may reverse only when the decision of the trial court was manifestly wrong or clearly erroneous, or an erroneous legal standard was employed. Wright v. Stanley, 700 So.2d 274, 280 (Miss.1997); Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). Our standard of review in child custody cases is very narrow. Like the chancellor, our polestar consideration must be the best interest of the child. However, it is not our role to substitute our judgment for his.

¶ 9. In his opinions of November 18, 1998, and October 5, 1999, the chancellor, using the factors listed in Albright v. Albright, 437 So.2d 1003 (Miss.1983), made an on-the-record finding as to which parent should have custody of the parties' two minor children.² (R. 399-402; 560-62). Although the chancellor did not separately discuss each Albright factor, he gave his rationale along with his holding as to the five factors which were found to favor Brenda.³ Of the remaining six factors, five are neutral or evenly divided between Brenda and Ken⁴; the sixth, preference of the children, is not applicable due to the ages of the children involved in this case. We find that the chancellor properly applied the Albright factors and find no manifest error in his decision as to custody of the parties' children.

¶ 10. Ken also maintains that the chancellor erred in determining that the court-appointed guardian ad litem ("GAL"), Melissa Gardner, did not have the skills necessary to draw conclusions about custody. The GAL was specifically appointed by the court to determine what would be in the best interest of the children. She recommended that Ken be given custody of the two minor children, and the chancellor rejected her suggestion. The chancellor was in no way bound to follow the recommendation made by the GAL. See S.N.C. v. J.R.D., 755 So.2d 1077 (Miss.2000) (we held that the "view of the guardian [ad litem] and the reasoning behind that view are nothing more than additional information to aid the chancellor in making the decision on the merits of the matter in dispute, which ultimately lies with the chancellor ..."). Instead, it is his role, as fact-finder, to consider the evidence presented by the GAL as well as all other relevant evidence and to give it such weight as he determines it deserves. Id. The chancellor did not say that he found the GAL's findings irrelevant, just that he placed "greater weight" upon the conclusions of the other experts. We find no error in the decision of the trial court as to the testimony of the GAL.

¶ 11. Ken argues that the chancellor erred when he struck the testimony of the court-appointed therapist from the record. Paul Davey ("Davey") was designated, pursuant to M.R.E. Rule 706, as a court-appointed therapist on May 8, 1997, and continued to have contact with the Hensarling children until June 2, 1999. During this time, he evaluated the home environments of the parties' and the mental/emotional health of the parties and their children. At the end of his investigation, Davey made a report to the chancellor recommending that Ken be granted custody of the children.

¶ 12. Brenda avers that Davey completed his court-appointed assignment on May 13, 1998, after which time he became a privately retained therapist, paid by Ken. If this is true, then any disclosures made to Davey after May 13, 1998, are protected by the doctor-patient privilege set out in M.R.E. 503. Brenda made a motion to strike any information of which Davey learned after May 13, 1998, and the court granted this motion. Based on M.R.E. 503, we find that such information was properly omitted from the record.

II. Whether the chancellor erred in the amount of child support awarded without specific findings of fact.

¶ 13. Ken alleges that the chancellor failed to apply the statutory guideline set out in Miss.Code Ann. § 43-19-101 (2000) when he determined the amount of child support owed. The award of $2,500 per month;...