Moore v. Moore
| Citation | 757 So.2d 1043 |
| Decision Date | 21 March 2000 |
| Docket Number | No. 1998-CA-01437-COA.,1998-CA-01437-COA. |
| Parties | Bradley Carroll MOORE, Appellant, v. Mary Ann (Heard) MOORE, Appellee. |
| Court | Court of Appeals of Mississippi |
Robert H. Broome, Batesville, Attorney for Appellant.
Mary Lee Walker Brown, Hernando, Attorney for Appellee.
BEFORE McMILLIN, C.J., BRIDGES, AND PAYNE, JJ.
PAYNE, J., for the Court:
PROCEDURAL POSTURE AND ISSUES PRESENTED
¶ 1. This case is before the Court challenging the judgment of divorce and related matters in favor of Mary Ann Heard Moore entered by the Chancery Court of DeSoto County. Feeling aggrieved, Brad Moore perfected this appeal raising the following four issues1 for our review: 1) whether the chancellor violated Brad's due process rights under the Mississippi Constitution by imposing a time limitation on testimony and evidence as to the issues of child custody, child support, property division, alimony, attorney's fees, and issues raised in Brad's counter-complaint for divorce; 2) whether the chancellor erred in granting Mary Ann a divorce on the grounds of habitual cruel and inhuman treatment; 3) whether the chancellor erred in awarding custody of the minor child, Pierce Moore, to Mary Ann in light of the child's stated preference to live with Brad and whether the chancellor further erred in not making specific findings as to why the court did not respect the wishes of the child; and 4) whether the chancellor erred in awarding Mary Ann child support in the amount of $1,238 per month, an amount in excess of the statutory guidelines.
FACTS
¶ 2. Brad, a real estate broker/developer and owner of two businesses—Noxubee Investment Corporation, Incorporated and the Marley Company—and Mary Ann, a homemaker and assistant in Brad's business ventures, were married in 1984. The union produced three children: Pierce, Stephen, and Nathan. Brad left the marital home in October 1997. However, the couple continued to have marital relations on occasion until the couple finally separated in January 1998, and Mary Ann filed for divorce on the grounds of habitual cruel and inhuman treatment, adultery, or, in the alternative, irreconcilable differences. Mary Ann's suspicions about Brad's adultery involved Brad's business associate, Kim Tatum. Mary Ann sought custody of the three minor children, child support, alimony, and legal fees. Brad answered and filed a counter-complaint alleging recrimination and provocation against Mary Ann, though admitting that the couple had irreconcilable differences. Brad sought custody of the minor children, child support, and legal fees. Mary Ann answered the counter-complaint, denying all allegations and moved for dismissal of the counter suit.
¶ 3. On March 9, 1998, DeSoto County Chancellor Percy Lynchard, Jr. entered a temporary order granting Mary Ann use of the marital home as well as custody of the minor children. In addition, Brad was ordered to have no physical contact with Mary Ann save for picking up the children for scheduled visits from the driveway of the home and returning them there. Brad was ordered to pay the operational expenses of the home (e.g., mortgage note, utility charges, insurance premiums, etc.).
¶ 4. On April 30, 1998, Brad filed for an emergency modification of the temporary order seeking custody of the minor children. Brad alleged that the children were being neglected. Further, Brad asserted that the two oldest children ran away from Mary Ann's home and called him to come and get them. Brad submitted affidavits from the two oldest children expressing their desire to live with Brad and their intention to leave home again if they were forced to stay with Mary Ann. Brad also submitted a letter from psychologist, Dr. Rebecca Caperton, which supported Brad's petition. Dr. Caperton averred that she interviewed the three children, and she related very disturbing revelations from the children about Mary Ann's behavior and treatment of them. Mary Ann answered Brad's emergency petition alleging that Brad was, in essence, manipulating the minor children in an effort to avoid having to abide by the chancellor's temporary custody and support order. Brad's emergency petition was denied.
¶ 5. A full hearing was held on the merits of marital dissolution, property division, and child custody on May 27, 1998. Pursuant to Rule 611 of the Mississippi Rules of Evidence, the chancellor limited each party's presentation of evidence to two and one-half hours, including direct examination, cross-examination, redirect examination, and the presentation of rebuttal evidence. After hearing all the testimonial evidence and reviewing the documentary evidence, the learned chancellor entered his written findings on June 12, 1998, nunc pro tunc to May 28, 1998.
¶ 6. The chancellor granted Mary Ann a divorce on the grounds of habitual cruel and inhuman treatment and denied Brad's counter-complaint for divorce. Mary Ann was awarded custody of the minor children with reasonable visitation rights afforded to Brad. Brad was ordered to pay Mary Ann $1,238 per month in child support for the care of the children, as well as to maintain health insurance on the children, and life insurance on himself for the benefit of the minor children.
¶ 7. Mary Ann was awarded the marital home for a period of three years or until the home was sold with Brad being responsible for the monthly mortgage on the property during this period. At the end of the three year period, Mary Ann was to become responsible for the house note until the property was sold and the equity divided between Brad and Mary Ann.
¶ 8. Brad was awarded sole ownership of the two corporations. An individual retirement account held by the parties with Minnesota Mutual was ordered divided equally between Mary Ann and Brad, and the cash value of a life insurance policy was ordered equally divided between the former couple. Mary Ann received an award of attorney's fees in the amount of $4,957.40.
¶ 9. Brad filed a motion to vacate the judgment of divorce and for a new trial on June 18, 1998. After Chancellor Lynchard had entered his order in this matter and after Brad filed his motion to vacate judgment, a conflict arose necessitating Judge Lynchard's recusal from further participation in this case.2 The recusal order was entered on June 29, 1998. The case was reassigned to the docket of Chancellor Dennis Baker by order entered July 24, 1998. On August 6, 1998, Chancellor Baker conducted a hearing on Brad's motion to vacate Judge Lynchard's judgment and for a new trial on the issue of divorce. On September 4, 1998, Chancellor Baker denied Brad's motion.
¶ 10. Judge Baker's denial of Brad's motion for a new trial resulted in Brad's timely perfecting this appeal. Finding no error in Judge Lynchard's decision or in Judge Baker's decision sustaining Judge Lynchard's decision, we affirm.
ANALYSIS AND DISCUSSION
I. WHETHER THE CHANCELLOR VIOLATED BRAD'S DUE PROCESS RIGHTS UNDER THE MISSISSIPPI CONSTITUTION BY IMPOSING A TIME LIMITATION ON TESTIMONY AND EVIDENCE AS TO THE ISSUES OF CHILD CUSTODY, CHILD SUPPORT, PROPERTY DIVISION, ALIMONY, ATTORNEY'S FEES, AND ISSUES RAISED IN BRAD'S COUNTER COMPLAINT FOR DIVORCE.
¶ 11. As his first assignment of error, Brad asserts that his due process rights, guaranteed by Article 3 Section 14 of the Mississippi Constitution, were violated when Judge Lynchard limited the trial of this matter to one day. While this argument is one of great import, as due process is fundamental to our judicial system, the facts in the case sub judice render meritless Brad's claim of denial of due process. Accordingly, this assignment of error is without merit.
¶ 12. The record is clear from the outset that Chancellor Lynchard placed the one day time limit on the parties. Brad could have requested a continuance, but he did not. Brad could have objected on the record to the time limit, but he did not. In fact, the record shows that Brad's counsel indicated a readiness to go forward at the end of Mary Ann's case-in-chief after Brad's motion for a directed verdict was overruled by the trial court. There is no indication in the record from Brad that the time limits placed on the trial by the chancellor were problematic.
¶ 13. "Every defendant has a right to introduce evidence at a hearing." Morreale v. Morreale, 646 So.2d 1264, 1270 (Miss.1994) (citing Edwards v. James, 453 So.2d 684, 686 (Miss.1984)). But, if there is no evidence to present or no proffer as to what would have been presented, then there is no legitimate basis for complaining on appeal about the chancellor's control of evidentiary presentations. Id.
¶ 14. The record indicates that Brad called seven witnesses during the trial, in addition to testifying himself. While Brad, as well as many other litigants we are sure, would like to have unlimited time in which to present evidence in support of their positions during litigation, Rule 611 of the Mississippi Rules of Evidence is designed to give trial judges some measure of control over the operation of trials and the smooth flow of the litigation process. Chancellor Lynchard set out the time limits at the beginning of the trial. Brad knew he only had a limited time to present his case. If Brad's trial strategy was adversely affected, then a record outlining the adverse effect should have been preserved for this Court's review. However, knowing the time limits placed by the chancellor from the beginning, Brad raised no objections in the record. Based on the record before us, we find Brad was afforded adequate due process.
II. WHETHER THE CHANCELLOR ERRED IN GRANTING MARY ANN A DIVORCE ON THE GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT.
¶ 15. We next address Brad's suggestion that the chancellor manifestly erred in granting Mary Ann's petition for divorce on the grounds of habitual cruel and inhuman treatment. Our review of the record leads us to the conclusion that Brad's citation of error in this regard is without merit. Accordingly, we a...
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