Mosley v. Mosley, No. 1999-CA-01920-SCT.

Decision Date19 April 2001
Docket NumberNo. 1999-CA-01920-SCT.
Citation784 So.2d 901
PartiesPhillip MOSLEY, Sr. v. Angela MOSLEY.
CourtMississippi Supreme Court

Attorneys for Appellant: Lisa Mishune Ross, Jackson, Bridgett M. Clayton.

Attorney for Appellee: Leigh Ann Key.

Before PITTMAN, C.J., SMITH and EASLEY, JJ.

SMITH, Justice, for the Court:

¶ 1. This case comes to this Court on appeal from the Chancery Court of Lauderdale County. Phillip Mosley, Sr. filed for divorce from Angela Mosley on the grounds of adultery, cruel and inhuman treatment, and irreconcilable differences. The couple finally agreed to divorce on the ground of irreconcilable differences with certain property divisions and child custody left for the court to decide. The chancery court granted the divorce and awarded custody of the two minor children to Angela. Phillip was required to pay $600.00 per month in child support, $150.00 per month in permanent periodic alimony, and $150.00 per month in lump sum alimony. From this ruling, Phillip appeals to this Court.

FACTS

¶ 2. Phillip Mosley, Sr. ("Phillip") and Angela Mosley ("Angela") were married on Christmas Eve, 1982 in Lauderdale County, Mississippi, and finally separated in June of 1997. At the time of their divorce, they were the parents of two minor children, Phyllis Roshonda Mosley ("Roshonda"), born October 26, 1981, and Phillip Mosley, Jr. ("P.J."), born February 28, 1994.

¶ 3. This case began on September 5, 1997 when Phillip filed a Complaint for Divorce against Angela on the grounds of habitual cruel and inhuman treatment, adultery, and irreconcilable differences. On the same day, Phillip filed a Motion for Temporary Relief asking the court for temporary custody of both children, child support, use of the marital residence, and control of all personal property. A summons was issued on this motion, and Angela was summonsed to appear in court on September 29, 1997. Angela did not appear on that day, and the temporary judgment for relief was granted to Phillip. Three days later, attorney Jim Williamson, representing Angela, attempted to set aside the temporary judgment for fraud. It is the policy of the Chancery Court of Lauderdale County not to modify temporary judgments. Therefore, there was never a modification.

¶ 4. This case was set for trial on numerous dates due to several substitutions of counsel, discovery matters, and other pending issues that delayed final adjudication of this matter. There is a dispute as to how the temporary judgment came about in the first place. Phillip argues that Angela just left the home, did not return, did not appear in court, and therefore, he was awarded temporary relief. Angela claims that there was a reconciliation between the couple that led her to believe Phillip had dismissed the court action. After hearing the testimony, the chancellor concluded that Angela had been misled by Phillip and as a result, lost temporary custody of her children whom she had been taking care of for years.

¶ 5. At the end of this long trial, the chancellor granted the couple their divorce on the grounds of irreconcilable differences. Phillip previously agreed that he would maintain health insurance on the minor children at his expense and that the parties shall each pay 50 percent of the expenses not covered by the medical insurance. Phillip was awarded exclusive use, ownership, and equity of the marital home. After making a record consideration of the Albright factors, the chancellor awarded custody of the minor children to Angela. Angela was awarded permanent periodic alimony in the amount of $150.00 per month, and lump sum alimony in the amount of $150.00 per month until those payments amounted to $10,000.00. Angela was awarded the living room suit, the mirrors, the washer and dryer, two televisions, and the microwave. Phillip was awarded exclusive use and control of the Toyota pickup truck. Phillip was ordered to pay $600.00 per month in child support for both minor children. Both parties were required to pay toward the sum of attorney's fees.

¶ 6. Aggrieved by the findings of the chancellor, Phillip raises the following assignments of error to this Court:

I. WHETHER THE CHANCELLOR ABUSED HER DISCRETION WHEN SHE ORDERED PHILLIP TO PAY $600.00 PER MONTH IN CHILD SUPPORT BUT PERMITTED ROSHONDA TO REMAIN IN PHILLIP'S CARE FOR AN INDEFINITE PERIOD?
II. WHETHER THE CHANCELLOR ABUSED HER DISCRETION BY FAILING TO ADDRESS EACH OF THE ALBRIGHT FACTORS ON THE RECORD?
III. WHETHER THE CHANCELLOR ABUSED HER DISCRETION WHEN SHE CONSIDERED MARITAL FAULT AND PRE DIVORCE RELATIONSHIPS OF THE FATHER IN A CUSTODY HEARING?
IV. WHETHER THE CHANCELLOR ABUSED HER DISCRETION IN CONCLUDING THAT THE BEST INTEREST OF THE COUPLE'S DAUGHTER WOULD BE SERVED IN THE CUSTODY OF HER MOTHER
BUT DID NOT ORDER A DATE FOR THE CHILD TO JOIN HER MOTHER?
V. WHETHER THE CHANCELLOR ABUSED HER DISCRETION BY AWARDING AN EXCESSIVE AMOUNT OF PERIODIC ALIMONY, LUMP SUM ALIMONY, AND CHILD SUPPORT?
VI. WHETHER THE CHANCELLOR ABUSED HER DISCRETION IN REQUIRING PHILLIP TO PAY $500.00 IN ATTORNEY'S FEES AFTER SHE HAD AWARDED AN $1,800.00 INSURANCE CHECK TO ANGELA?

DISCUSSION

¶ 7. The standard of review in a domestic relations case is well-settled. This Court applies the familiar substantial evidence/manifest error rule. Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990). "This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). See also Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994)

; Faries v. Faries, 607 So.2d 1204, 1208 (Miss.1992). This is particularly true in the areas of divorce, alimony and child support. Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989). The word "manifest," as defined in this context, means "unmistakable, clear, plain, or indisputable." Black's Law Dictionary 963 (6th ed.1990). Turpin v. Turpin, 699 So.2d 560, 564 (Miss.1997) (quoting Magee v. Magee, 661 So.2d 1117, 1122 (Miss.1995)).

I.

¶ 8. The first question presented to this Court is whether the chancellor abused her discretion when she ordered Phillip to pay $600.00 per month in child support. Phillip claims that this was an abuse of discretion because Roshonda, who was 17 years old at the time, was allowed to stay in his care until something could be agreed upon between Angela and Roshonda. In other words, Phillip argues that the chancellor should have made some provision for Angela to refund Roshonda's portion of child support while she remained within his care.

¶ 9. In the chancery court's opinion, the chancellor noted that "Roshonda is in a difficult situation because of her being a senior in high school, although Angela [Mosley] is entitled to immediate custody of Roshonda, the court will leave it to her discretion as to when she should move to her mother's house in Gainesville." In a later portion of the opinion, the chancellor went on to say that "[t]he court does acknowledge that Roshonda may remain with her father for a period of time and Mrs. Mosley may decide to refund part of that child support to Phillip while Roshonda remains in his care, but that is not an obligation on her part, but only a suggestion from this court as what would be appropriate under the situation."

¶ 10. Our Court has consistently held that "[c]hild support benefits belong to the child, and not the parent who, having custody, receives such benefits under a fiduciary duty to hold and use them for the benefit of the child." Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss. 1990). We have recognized that a child support judgment is awarded to the custodial parent for the benefit and protection of the child, the underlying principle being the legal duty owed to the child for the child's maintenance and best interest. Hailey v. Holden, 457 So.2d 947 (Miss. 1984). ¶ 11. This Court finds that the chancellor abused her discretion when she stated that the mother was not obligated to refund any portion of the child support while Roshonda was living with her father. If Roshonda is living with her father, and the child support belongs to Roshonda, then, the portion paid by Phillip on behalf of Roshonda should be used for her benefit.

¶ 12. Other jurisdictions have held that during periods of visitation with the non-custodial parent, the custodial parent is not obligated to return any portion of the child support payments. Bondi v. Bondi, 255 Neb. 319, 586 N.W.2d 145 (1998); Daigrepont v. Daigrepont, 458 So.2d 637 (La.Ct.App.1984); Avin v. Avin, 272 S.C. 514, 252 S.E.2d 888 (1979). In Bondi, the Court held that requiring this type of payment during temporary periods would not be in accord with sound or prevailing policy. Bondi, 586 N.W.2d at 147. Additionally, the Louisiana Court of Appeals held that:

Since the custodial parent has the obligation to see to the support, maintenance and education of the children the non-custodial parent is not entitled to any monetary assistance from the custodial parent even during periods of visitation. Such expenses incurred by the non-custodial parent during periods of visitation for food, lodging, etc., are obligations which the non-custodial parent assumes under his or her duty of mutual support.

Daigrepont, 458 So.2d at 638-39.

¶ 13. These cases are distinguishable from the case sub judice. In this case, the chancellor did not require any certain time when Roshonda would leave her father's care. This cannot be considered a visitation period since Roshonda has not been in her mother's custody since the divorce. In other words, she is not visiting her father but living with him. According to the chancellor, she may continue to live with her father while she completes her senior year of high school. This Court's precedents hold that child support benefits belong to the child. Therefore, we find that the chancellor should have...

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