Louk v. Louk

Decision Date22 June 2000
Docket NumberNo. 1998-CA-01644-SCT.,1998-CA-01644-SCT.
Citation761 So.2d 878
PartiesPatricia A. LOUK v. John Mark LOUK.
CourtMississippi Supreme Court

Maura D. McLaughlin, Hattiesburg, Attorney for Appellant.

John W. Lee, Jr., Hattiesburg, Paul Richard Lambert, Gulfport, Attorneys for Appellee.

BEFORE BANKS, P.J., WALLER AND DIAZ, JJ.

WALLER, Justice, for the Court:

¶ 1. This case involves a divisive and emotionally charged suit for divorce. Patricia A. (Patty) Louk and John Mark (John) Louk were married in September of 1980. They had three children: Jessica Donnell, born in 1981, Amanda Lea, born in 1984, and Jonica Renea, born in 1988. Patty had a child, Jeremy, born in 1976, from a previous marriage, and John adopted Jeremy following his marriage to Patty.

¶ 2. John and his father, R.L. Louk, began a business enterprise in 1989 manufacturing 01' Man Tree Stands, a portable tree stand used by hunters. The business was incorporated as L & L Enterprises, Inc. Patty was employed by the corporation and performed a wide range of jobs from bookkeeping to cleaning. Patty had been a homemaker prior to her employment with her husband's company.

¶ 3. In February of 1997, Patty sued John for divorce on the grounds of habitual cruel and inhuman treatment. John counterclaimed for divorce on grounds of adultery. During the 20-month period following the filing of the initial complaint and the Chancellor's entry of final judgment for divorce, the parties were continuously filing motions and appearing for hearings in the Chancery Court. They sought temporary orders concerning child custody and support, visitation for John, maintenance for Patty, and several contempt citations because neither party complied with the temporary orders.

¶ 4. Eventually, the parties consented to a divorce on the ground of irreconcilable differences, reserving the following issues for the Chancellor's consideration and judgment: (1) whether Patty had any interest or entitlement in L & L Enterprises; (2) John's visitation with the children; (3) the amount of child support to be paid by John; (4) the division of household furnishings and appliances; and (5) who should claim the minor children for purposes of state and federal income taxation. The parties included the following language in their consent agreement:

The parties do further agree to submit the above referenced issues to the Court for determination based on the matters contained in the pleadings, the documents and other items of evidence stipulated into evidence by the parties and sworn affidavits of the parties as to all issues and upon sworn affidavits of the expert witnesses listed by both parties with regard to the issue of visitation by Mr. Louk with the minor children of the parties....

¶ 5. The following facts are revealed by the pleadings and filed affidavits:

A. Patty claimed that John had been physically and verbally abusive towards both the children and her. She further claimed that John had killed cats and beaten dogs in the presence of the children, and the children feared their father and feared for the well-being of the family pets.

B. Throughout the pendency of the divorce, the Chancellor ordered that all visitation between John and his children be supervised. Often the children chose not to attend scheduled visitation; neither parent forced the children to visit with John.

C. Dr. Beverly Smallwood, the psychologist who treated John and the children, opined by affidavit that John was well on his way to establishing a productive relationship with his children and that supervised visitation was unnecessary, although continued counseling was necessary.

D. Patty lived in the home with the children after the separation and received $750 a month in child support from John.

E. Patty was unemployed from the date her employment with L & L Enterprises was terminated until the time of the divorce. F. John claimed a net monthly income of $3,950. His affidavit alleges that he owns 7,000 shares of stock in L & L Enterprises. The stock was valued at $98.29 per share by May & Company, experts retained by John. John's stock, therefore, was worth $688,030.

G. Patty claimed an interest in L & L Enterprises, which she requested be paid to her in the form of lump sum alimony. Patty disputes the value of L & L Enterprises, pointing out the CPA firm of Nicholson & Co. showed that L & L Enterprises had a total assets value of $2,646,245 for the company, of which 70% or $1,852,371, belonged to John.

H. Since Patty had no income other than temporary child support during 1997, John claimed the minor children as dependents for purposes of federal and state income taxation.

I. Patty and John agreed to the following: they should have joint legal custody of all three children, with Patty enjoying primary, physical custody; John should provide medical insurance for the children, and life insurance on himself with the children as beneficiaries; John should pay all of the children's medical bills and joint debts of the marriage; Patty would convey her interest in the real property in return for $32,500, or one-half of its equity; Patty would keep the 1993 family van, and John would make the last payments; Patty would receive ownership of the 1992 Mazda driven by Jessica; John and Patty would be responsible for their own legal fees; Patty waived all rights to periodic or rehabilitative alimony, but not a lump sum payment in exchange for her interest in L & L Enterprises; and John was not the father of Patty's child born during the pendency of the divorce, and should bear no financial responsibility for same.

¶ 6. The Chancellor's judgment incorporated the above agreed-upon provisions and a memorandum opinion. His findings as to the disputed issues were as follows: John received unsupervised visitation as set out in the schedule, namely every other weekend and some holidays. John and the children were ordered to continue their counseling sessions with Dr. Smallwood. Custody and visitation rights would be revisited by the court 180 days after the judgment was entered. John would pay to Patty $500 a month for each child for support, totaling $1,500 a month. John would claim the three children as dependents for purposes of income taxation. Patty received $398,080.20 in lump sum alimony, representing 40% of John's interest in L & L Enterprises based on the stockholder's equity; $100,000 of the award was to be paid within 30 days of the final judgment, the remainder to be paid annually in four equal installments. The parties should equally divide the furnishings and appliances of the marital home.

¶ 7. Dissatisfied with the judgment, Patty has appealed to this Court raising five issues:

I. The court erred by awarding unsupervised visitation to John without addressing the emotional and physical abuse of the minor children.
II. The court erred by failing to consider, and make findings on, the tax consequences of the equitable distribution and the needs of the parties for financial security.
III. The court erred by granting the dependency exemptions for the minor children to John.
IV. The court erred in finding that John owned 70% of L & L Enterprises, Inc.
V. The court erred in accepting the parties' stipulation that the contested issues would be determined on the pleadings, the documents, other items stipulated into evidence and the affidavits, when there was no hearing or trial before the Chancellor on any issue.

STANDARD OF REVIEW

¶ 8. "Our scope of review in domestic relations matters is limited by our familiar substantial evidence/manifest error rule." Magee v. Magee, 661 So.2d 1117, 1122 (Miss.1995). An appellate court may reverse a chancellor's finding of fact only when there is not "substantial, credible evidence" justifying his finding. Williams v. Rembert, 654 So.2d 26, 28 (Miss.1995) (quoting Snow Lake Shores Property Owners Corp. v. Smith, 610 So.2d 357, 360 (Miss.1992)). "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. The court erred by awarding unsupervised visitation to John without addressing the emotional and physical abuse of the minor children.

¶ 9. Patty argues that the Chancellor did not make sufficient findings or a reasoned explanation for his decision to grant unsupervised, as opposed to supervised, visitation to John, given the allegations of John's abuse towards his family. Patty believes that the Chancellor should have entered specific findings of fact on the issue. Mississippi Rule of Civil Procedure 52(a) provides: "In all actions tried upon the facts without a jury the court may, and shall upon the request of either party to the suit or when required by these rules, find the facts specifically and state separately its conclusions of law thereon and judgment shall be entered accordingly." The Chancellor, therefore, has discretion to make specific findings absent a request by the parties. In this case, Patty did not make a request for findings of fact and conclusions of law.

¶ 10. Patty cites Tricon Metals & Servs., Inc. v. Topp, 516 So.2d 236 (Miss. 1987), where this Court held that trial courts should enter specific findings of fact and conclusions of law in matters of great complexity, even absent a request from the parties involved. In Tricon Metals, the Court stated, "Where, however, a case is hotly contested and the facts greatly in dispute and where there is any complexity involved therein, failure to make findings of ultimate fact and conclusions of law will generally be regarded as an abuse of discretion." Id. at 239. While it is arguable that any matter regarding child custody is a matter of great complexity, in this case the facts do not seem to be in...

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