Phillips v. Phillips, No. 2008-CA-02019-COA (Miss. App. 4/6/2010)
| Decision Date | 06 April 2010 |
| Docket Number | No. 2008-CA-02019-COA.,2008-CA-02019-COA. |
| Parties | MICHAEL PHILLIPS, APPELLANT, v. SARAH PHILLIPS, APPELLEE. |
| Court | Mississippi Court of Appeals |
BEFORE KING, C.J., BARNES AND ROBERTS, JJ.
BARNES, J., FOR THE COURT:
¶ 1. The Chancery Court of Jones County granted Michael and Sarah Phillips a divorce on the ground of irreconcilable differences. Michael appeals the chancery court's custody determination regarding the parties' two children and division of certain marital assets and liabilities. Regarding child custody, Michael claims the chancellor: (1) failed to make on-the-record findings as to why the eldest child's preference should not be honored and (2) erred in awarding joint legal and physical custody to the parties. Regarding the distribution of the parties' assets and debts, he claims the chancellor erred in (1) not taking into consideration Sarah's alleged misconduct during the marriage, (2) not enforcing the parties' "pre-separation agreement" concerning the disposition of certain real property, and (3) failing to properly classify and equitably divide certain debts of the parties. Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶ 2. Michael and Sarah married in 1984. Two daughters were born of the marriage: Shayla and Samantha, who, at the time of trial, were fourteen and ten years old, respectively. In 1989, the parties moved to a house then owned by Sarah's grandparents on Duck Hill Road in Soso, Mississippi. In 1996, the parties bought 10.4 acres on Union Line Road in Soso, and lived in an old homestead until Michael completed the building of the new marital home on the property in 2001. The parties financed the construction of the new house through Trustmark National Bank. Later, they bought another five acres which adjoins the 10.4 acres, which was financed through the Bank of Jones County, which initially held a lien on both tracts of land, excluding the house and one acre. Also, the parties purchased a one-half-acre strip of land separate from their homestead property for $800, which adjoins property owned by Sarah's parents.
¶ 3. In November 2005, Michael approached Sarah about an exchange of quitclaim deeds on a portion of their property after he claimed that she had refused to pay the family's bills and that creditors were harassing him. Michael stated that they agreed each person would be responsible for his or her own bills. Michael claims Sarah did not want anything to do with the property at issue. Therefore, they agreed Sarah would deed the 10.4 acre and five-acre parcels of land to him, excluding the house and one acre. In return, Sarah would receive a one-third interest in the one-half acre strip of land, jointly deeded to her and her two children. Michael would assume responsibility for the loan at the Bank of Jones County, and Sarah's name would be taken off this note. At the time, the note had a balance of $12,201.65. The parties would retain joint ownership of the marital homestead and one acre. Michael had an attorney draw up the quitclaim deeds, and Sarah eventually signed them.
¶ 4. During the course of the marriage, the parties separated several times. Michael admitted that once the children were born, he left them with Sarah whenever the couple separated. Also, Michael stipulated to an affair with a woman from 1995 to 1996, but Sarah subsequently condoned his adultery. In March 2006, however, Sarah and Michael permanently separated. Sarah moved back into the Duck Hill home, which her parents now owned, and Michael stayed at the Union Line home. On this property, he has a shop related to his construction business which he built with the original proceeds from the loan with the Bank of Jones County.
¶ 5. In January 2007, Michael filed for a divorce in the Jones County Chancery Court under the ground of habitual, cruel and inhuman treatment or, in the alternative, irreconcilable differences. He requested custody of the two children, child support, and ownership of the Union Line marital home. In March 2007, the chancellor executed a temporary order granting temporary physical custody of the children to Michael on the weekdays and to Sarah on the weekends. Michael was also granted temporary use and possession of the Union Line homestead.
¶ 6. In June 2007, Sarah's counsel sent a letter to Michael's counsel stating her refusal to agree to an irreconcilable differences divorce, and that Michael would have to prove a ground for divorce. Therefore, Michael hired private investigators, who had Sarah under surveillance for several days in September. The investigators testified at trial that Sarah was seen in the company of a man with whom Michael suspected she was having an affair. At trial, Sarah admitted to having sexual relations with this man after she had separated from Michael; however, she denied having sexual relations with any man prior to the separation.
¶ 7. At the end of September 2007, Michael amended his complaint for divorce to allege adultery. In October 2007, the parties agreed to an irreconcilable differences divorce. A two-day trial was held in March and April 2008 on the matters of child custody and property distribution.
¶ 8. Testimony revealed both parties held a variety of jobs during the course of the marriage and made similar incomes. From 1990 to 1999, Michael entered into a series of businesses, including diesel repair, a "quick stop," and mobile home repairs. Some businesses were not successful. Since November 2007, Michael had been working for his brother in the construction business. For most of the marriage, Sarah worked outside of the home for various employers. For the past nine years, she has worked at Wayne Farms in Laurel, Mississippi as a payroll clerk. Sarah provides for the children's health and dental insurance through her employer. During the marriage, she was usually responsible for paying the parties' bills. Sarah testified that many of Michael's business ventures were not profitable or failed; therefore, the family had to rely solely on her income.
¶ 9. Regarding child custody, Shayla, the eldest child, who was fourteen at the time, testified that she preferred living with her father during the week and her mother during the weekend. She found her father's home "safer" than her mother's, and the heat in her bedroom at her mother's home inadequate. Additionally, at her mother's home, Shayla complained that everyone shares a bathroom, and that she and her sister share a bedroom. However, at her father's home, the girls have their own bedrooms and bathrooms. Shayla also stated that they have a better daily routine at their father's house. Additionally, Shayla mentioned some incidents which made her feel uncomfortable under her mother's care. She testified that once she and her mother and sister got into an argument, and Shayla sustained a small bruise where her maternal grandfather grabbed her wrist. Another time, she stated her mother drank half a beer while driving her to a football game.
¶ 10. Michael stated that he desired primary custody of both children during the week, with Sarah having visitation during the weekends. He testified Sarah takes the girls to school, and in the afternoon, Sarah either picks the girls up or they ride the bus and are taken to the home of Michael's parents, which is five miles from his Union Line home. He stated Sarah mostly takes the girls to their after-school activities, such as softball, T-ball, basketball, or cheerleading; however, he attempts to attend the various games and activities when he was not working. He was the children's "disciplinarian." Because of his parents' involvement in the children's lives after school, he took credit for eighty percent of the children's care. Michael claimed to have a more stable routine for the children, a more flexible work schedule, and a better home than Sarah. He noted the Union Line home is much larger than Sarah's Duck Hill residence. Further, Michael complained of the "environment" and "atmosphere" of the Duck Hill home, which is in a historically African American area of Soso. Michael also testified that Sarah has "bad parenting skills" because she drinks alcohol around the children, and he does not.
¶ 11. Sarah testified that she desires primary custody or, in the alternative, joint legal and physical custody. If she were granted only weekend custody, she noted she would have less time with the girls, because they were at an age where they were engaging in social activities on the weekend. Sarah contends her employment hours are from 7:30 a.m. to 4:40 p.m., but flexible for child care. Her supervisor corroborated these facts. She has days off for family emergencies. Prior to the separation, Sarah estimated that Michael had had two affairs, while she was faithful until after the separation. She claims since separation, Michael has been in a relationship with another woman, who has spent time around the children. While the residence at Union Line is newer and larger, Sarah denied the Duck Hill home is in an unsafe neighborhood. In fact, it is the home she grew up in and where the parties started their family at the beginning of their marriage. Sarah maintains her home has adequate heat. She felt that since her daughters are near the age of puberty, they need their mother. Regarding the incident of driving and drinking beer which Shayla mentioned, Sarah explained that she had had a bad day and had poured half of a beer in a cup, but she only drank half of that, while taking Shayla to a ballgame. She has never received a DUI, and stated she does not normally drink around the children. Evidence showed Sarah did most of the housework for the family and was "the nurturer." At trial, several relatives...
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