Leblanc v. Leblanc, 2017-CA-00600-COA

• Citation: 271 So.3d 494
• Decision Date: 23 October 2018
• Docket Number: NO. 2017-CA-00600-COA,2017-CA-00600-COA
• Parties: Christina Lynn Sullivan LEBLANC, Appellant v. William Clarence LEBLANC, III, Appellee
• Court: Court of Appeals of Mississippi

271 So.3d 494

Christina Lynn Sullivan LEBLANC, Appellant

v.William Clarence LEBLANC, III, Appellee

NO. 2017-CA-00600-COA

Court of Appeals of Mississippi.

October 23, 2018

ATTORNEY FOR APPELLANT: CAROL ANN ESTES BUSTIN, HATTIESBURG

ATTORNEY FOR APPELLEE: NANCY STEEN, HATTIESBURG

BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.

WILSON, J., FOR THE COURT:

¶ 1. After twenty-three years of marriage, Christina Leblanc filed for a divorce from William (Billy) Leblanc on the grounds of habitual cruel and inhuman treatment, habitual use of illegal drugs, and uncondoned adultery or, in the alternative, irreconcilable differences. Billy eventually answered and filed a counterclaim for an irreconcilable differences divorce. After the first day of trial, the Leblancs consented to an irreconcilable differences divorce and agreed that the chancery court would decide issues related to custody and support of their children, equitable division of the marital estate, and alimony. The court granted Christina physical custody of the parties' three minor children, with joint legal custody and visitation for Billy. The court also divided the marital estate and ordered Billy to pay rehabilitative alimony of $250 per month for eighteen months and child support of $1,040 per month.

¶ 2. On appeal, Christina argues that the chancery court (1) miscalculated Billy's child support obligation, (2) committed multiple errors in the equitable division of the marital estate, (3) awarded inadequate alimony, (4) erred by awarding Billy unsupervised visitation despite his history of drug use, (5) erred by not holding Billy in contempt for failing to pay the mortgage on the marital home, and (6) erred by allowing Billy to answer the complaint for divorce more than a year after he was served. Billy failed to file a brief on appeal.

¶ 3. We find no error or abuse of discretion in the chancery court's equitable division of the marital estate. However, we hold that the chancery court miscalculated Billy's child support obligation and awarded inadequate alimony. Accordingly, on those two issues, we reverse and remand the case for further proceedings consistent with this opinion. In addition, on remand the chancery court should determine whether unsupervised visitation is consistent with the children's best interests and whether Billy should be ordered to submit to additional drug testing. The remaining issues raised by Christina on appeal are procedurally barred and/or without merit.

FACTS AND PROCEDURAL HISTORY

¶ 4. Christina and Billy married in 1991. They subsequently had four children, sons born in 1996 and 2002 and daughters born in 2010 and 2011.

¶ 5. Billy has worked as a medical dosimetrist since approximately 2000. Billy testified that a medical dosimetrist creates "treatment plans for radiation therapy treatments for cancer

patients." From about 2006 to 2013, Billy worked at the Laurel Cancer Center, but in 2013 he lost his job there because he failed a drug test.

¶ 6. Billy's former supervisor, Dr. Cameron Pimperl, a radiation oncologist at the Laurel Cancer Center, testified at trial. Dr. Pimperl was close to the Leblanc family. In 2012 or 2013, Dr. Pimperl became aware that Billy was using drugs. A lawyer advised him to terminate Billy's employment, but Dr. Pimperl offered Billy the option of entering a drug rehabilitation program. Billy entered the program, but in October 2013 he failed another drug test. At that point, the Laurel Cancer Clinic terminated Billy's employment.

¶ 7. Billy was then unemployed for over a year before he found work in Alaska. He lived in Alaska between 2014 and 2016. At the time of trial, Billy was working as a medical dosimetrist at Keesler Medical Center in Biloxi.

¶ 8. Christina filed for divorce in July 2014 on the grounds of habitual cruel and inhuman treatment, habitual use of illegal drugs, and uncondoned adultery or, in the alternative, irreconcilable differences. Billy was living in Alaska at the time and was eventually served with a summons and copy of the complaint on August 27, 2015.

¶ 9. On August 25, 2015, Christina obtained an ex parte emergency domestic abuse protection order from the Forrest County Justice Court. On July 6, 2016, the justice court entered a second protection order. Christina testified that she allowed the first protection order to expire without further action because Billy had returned to Alaska in the interim. The justice court extended the second order once.

¶ 10. Billy filed an answer on July 18, 2016. He denied Christina's allegation of cruel and inhuman treatment, and he claimed that he had "reformed and discontinued [his drug] habit" and was willing to submit to court-ordered drug tests. "On the allegation of adultery, [Billy] demand[ed] strict proof and assert[ed] the defense of condonation." Billy also filed a counterclaim for an irreconcilable differences divorce.

¶ 11. On August 2, 2016, Christina filed a motion for temporary relief seeking custody of the parties' children, child support, spousal support, use and possession of the marital home, and an order of protection from abuse. Christina also asked the court to limit Billy to supervised visitation, require Billy to take random drug tests, and require Billy to account for certain marital funds. Finally, Christina asked the court to order Billy to pay the mortgage arrearage on the marital home, as the home was at risk of foreclosure.

¶ 12. In August 2016, Christina and Billy filed their Uniform Chancery Court Rule 8.05 financial statements. Christina's statement showed that she earned $1,380 per month and received $771 per month in public assistance. Billy's statement showed that he earned $11,330.50 per month as a dosimetrist and received rental income of $91 per month.

¶ 13. On August 19, 2016, the chancery court entered a temporary order granting physical custody of the children to Christina with Billy to have supervised visitation. The court also granted Christina possession of the marital home and ordered Billy to bring the mortgage current and to continue to pay the mortgage. The court ordered Billy to pay Christina $600 per month in spousal support and $1,000 per month in child support. The court also ordered both parties to submit to drug testing.

¶ 14. On October 22, 2016, Christina filed a motion for contempt based on Billy's failure to pay the mortgage arrearage. Christina also requested modification of the temporary order because Billy had tested positive for methamphetamine and admitted that he was still using drugs. In response, Billy claimed that he "struggled just to make the monthly mortgage payments" and could not afford to pay the arrearage. He also denied that he was abusing drugs, alleged that Christina had denied him visitation, and requested additional visitation.

¶ 15. On December 1, 2016, the chancery court entered an order continuing Billy's supervised visitation with conditions. The court also ordered Billy to continue to pay the mortgage, and the court again ordered Billy to pay the arrearage immediately. Finally, the court ordered Billy to provide the court with his most recent drug test results, as the court had ordered him to be tested again by November 14, 2016.

¶ 16. Christina filed a second motion for contempt and modification on January 6, 2017. Billy still had not paid the mortgage arrearage, and Christina alleged that he was in arrears on child support and spousal support as well. Christina alleged that Billy was earning more than $8,800 a month as a dosimetrist at Keelser and could afford to pay the arrearage. Christina also alleged that Billy had tested positive for methamphetamine twice and had admitted to her that he was still using drugs. The hearing on Christina's motion was set for January 12, 2017, the first day of the trial on Christina's complaint for divorce.

¶ 17. In response, Billy again claimed that he was unable to pay the mortgage arrearage, and he denied that he earned $8,800 per month. Billy's most recent 8.05 statement, which he submitted in December 2016, showed that his gross monthly income was $8,500, but Billy claimed that his true monthly income was only $7,562. The day before trial, Billy filed an updated 8.05 statement showing that he was working as dosimetrist at Keesler, that he earned $7,562 per month, and that his net monthly income was $5,201.

¶ 18. Christina has an associate's degree from a community college and works as a dental hygienist. On the first day of trial, Christina testified that she worked for a dental clinic in Hattiesburg and that her net income was approximately $2,100 per month.

¶ 19. At trial, Christina testified that she first suspected that Billy was using drugs in 2010. She testified that Billy began lying about his whereabouts—e.g., falsely claiming that he was at work or at St. Jude's with their daughter.¹ Christina testified that Billy also began having mood swings and sleeping for days at a time. Christina testified that Billy admitted that he was using drugs when they learned that she was pregnant in 2011, but he assured her that he would stop. Despite Billy's assurances, Christina later found drug paraphernalia hidden in their home, and in 2013 Billy lost his job as a result of failed drug tests.

¶ 20. Billy was unemployed for more than a year thereafter. During this period, he began withdrawing savings from the couple's Northwestern Mutual IRA. Evidence presented at trial indicated that the IRA had a balance of about $60,000 in 2014, but by July 2016 only $0.54 remained. Christina believed that some of the money that Billy withdrew went to maintain their household, but she was unsure "where all of the money went." She testified that she was unable to work at times while Billy was in Alaska because she "had too many obligations to take care of [their] children." She testified that she began relying on credit cards and a bank loan to make ends meet.

¶ 21. Christina also testified that in 2013 or 2014 she discovered that Billy was having an affair....