Stribling v. Stribling, No. 2003-CA-00731-COA.

• Decision Date: 11 January 2005
• Docket Number: No. 2003-CA-00731-COA.
• Parties: Linda STRIBLING, Appellant, v. Carl William STRIBLING, Appellee.
• Court: Mississippi Court of Appeals

906 So.2d 863

Linda STRIBLING, Appellant, v. Carl William STRIBLING, Appellee.

No. 2003-CA-00731-COA.

Court of Appeals of Mississippi.

January 11, 2005.

Rehearing Denied April 5, 2005.

Certiorari Denied June 30, 2005.

Sharon Patterson Thibodeaux, Jackson, attorney for appellant.

Mark A. Chinn, Jackson, attorney for appellee.

Before KING, C.J., CHANDLER and ISHEE, JJ.

KING, C.J., for the Court.

¶ 1. Linda Stribling filed a complaint for divorce against Carl Stribling, alleging constructive desertion, or alternatively, irreconcilable differences, in the Madison County Chancery Court. Carl Stribling filed an answer and a countercomplaint for divorce based upon the ground of uncondoned adultery. Mr. Stribling's countercomplaint for divorce was granted. The chancellor granted Mr. Stribling periodic alimony, a portion of the marital assets, and attorney's fees. Aggrieved, Mrs. Stribling has appealed and raised the following issues which we quote verbatim:

I. Did the lower [c]ourt commit manifest error in denying [a]ppellant a divorce on the ground of uncondoned adultery?

II. Did the lower [c]ourt commit manifest error in failing to award custody of the minor child to either party and in failing to make a provision for the support and maintenance of the minor child?

III. Did the lower [c]ourt commit manifest error in its application of the Ferguson factors and in failing to state which Ferguson factor the evidence supported?

IV. Did the lower [c]ourt commit manifest error in its classification and valuing the assets of the [a]ppellant and in failing to take into consideration or make any findings as to the debt associated with the assets?

V. Did the lower [c]ourt commit manifest error in awarding [a]ppellee $221,229.37 lump sum as his share of the liquidated proceeds of marital assets?

VI. Did the lower [c]ourt commit manifest error in awarding [a]ppellee $5,000.00 per month in periodic alimony?

VII. Did the lower [c]ourt commit manifest error in awarding [a]ppellee $24,901.90 in attorneys fees?

VIII. Did the lower [c]ourt commit manifest error by vacating its previous order of contempt against Carl William Stribling?

IX. Was the lower [c]ourt arbitrary and capricious in its findings and conclusions?

FACTS

¶ 2. Carl and Linda Stribling were married on August 29, 1979, in Alabama. As a result of the marriage, two children were born-Kelly Lee Stribling, a son, born March 25, 1980, who was emancipated when this matter was decided, and Tina Anita Josie Stribling, a daughter, born April 17, 1982. Tina was less than four months away from her twenty-first birthday and living with Mrs. Stribling when this case was decided by the chancery court.

¶ 3. According to Mrs. Stribling, the parties lived together until about February 1996. Mr. Stribling then moved to the Marriott Hotel, where he resided until about April 1997, when Mrs. Stribling allowed him to move back into the marital residence to recover from back surgery.

¶ 4. On June 19, 1998, Mrs. Stribling filed a complaint for divorce alleging constructive desertion, or alternatively, irreconcilable differences. On June 28, 1998, Mrs. Stribling filed an amended complaint for divorce adding the grounds of habitual cruel and inhuman treatment and uncondoned adultery. On April 18, 2000, Mr. Stribling filed his answer to the complaint.

¶ 5. On September 4, 2001, Mr. Stribling filed another answer along with a counterclaim for divorce alleging uncondoned adultery.

¶ 6. Numerous motions were filed by the parties. At an August 8, 2001 hearing, the chancellor disposed of several of these motions. The testimony from that hearing was incorporated into the record at the trial on June 5 and 6, 2002. At trial, Mrs. Stribling testified that her husband admitted in front of the congregation at Cobblestone Church of God, that he had committed adultery while married to her. She stated that she spiritually forgave Mr. Stribling's adultery. Mr. Stribling denied having committed adultery, and stated that he only made that claim to protect Mrs. Stribling because it was widely known that she had done so.

¶ 7. Mrs. Stribling admitted extramarital affairs, but claimed that her husband condoned the adulterous acts. Mr. Stribling denied condonation of these adulterous acts, and noted that he was not aware of some of these acts until the day of the deposition.

¶ 8. Mrs. Stribling ceased work at Hazlehurst Public Schools, in December 1979 to have children. In 1986, Mrs. Stribling obtained a real estate broker's license and began a real estate business in 1988.

¶ 9. When the parties married, Mr. Stribling was the owner of Stribling Brothers Enterprises, a company that sold modular buildings to school districts and other agencies. Mr. Stribling remained the owner of the business until about 1990, when he transferred title to Mrs. Stribling. The decision to transfer ownership of the business was based upon Mr. Stribling's federal criminal conviction and resulting four month jail sentence. Mrs. Stribling received her contractor's license in May 1990. She began running the business selling modular structures with the help of Sonny Edwards, an employee of Stribling Brothers Enterprises. Between 1990 and 1996, the business underwent two name changes. The business' name was changed to Linda Stribling, and later to Elite Modular Structures.

¶ 10. In an effort to address the business for purposes of equitable distribution, the chancellor appointed Raleigh Cutrer, an accountant, to do a valuation of the business interests. Mr. Cutrer indicated that the business records were incomplete and prevented a full valuation.

¶ 11. The chancellor executed a final judgment on December 27, 2002. The chancellor (1) granted Mr. Stribling a divorce upon the ground of uncondoned adultery, (2) awarded Mrs. Stribling the house and the lot located in Sebastopol, Mississippi, valued at $43,000, one acre of land, a lot given to her by her father and the household furnishings and personal items in her possession, (3) awarded Mr. Stribling twelve acres of land located in Sebastopol, valued at $25,000, an acre of land located in Edwards, Mississippi, and a lump sum in the amount of $221,229.37 as his share of previously liquidated marital assets, (4) granted to Mr. Stribling alimony in the amount of $5,000 per month, and (5) awarded Mr. Stribling $24,901.90 in attorney's fees.

¶ 12. On January 10, 2003, Mrs. Stribling filed a motion for a new trial, or in the alternative, to alter or amend final judgment, which was denied by Chancellor Shaw-Pierson's successor, Chancellor Goree, on March 5, 2003. Mrs. Stribling filed her notice of appeal on April 4, 2003.

STANDARD OF REVIEW

¶ 13. This Court employs a limited standard of review when reviewing a chancellor's decision. Shirley v. Christian Episcopal Methodist Church, 748 So.2d 672(¶ 9) (Miss.1999). The standard of review employed in domestic relations cases is limited to the substantial evidence/manifest error rule. Jundoosing v. Jundoosing, 826 So.2d 85(¶ 10) (Miss.2002). This Court will only reverse a chancery court's findings of fact when there is no substantial credible evidence to support its findings. Id. "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." Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997).

ISSUES AND ANALYSIS

I.

Did the chancery court commit manifest error in denying Mrs. Stribling a divorce on the ground of uncondoned adultery?

¶ 14. Where adultery is alleged as a ground for divorce, the chancellor is required to set forth specific findings of fact and conclusions of law. Reynolds v. Reynolds, 755 So.2d 467(¶ 7) (Miss.Ct. App.1999). "A charge of adultery may be established by showing an adulterous inclination coupled with an opportunity to consummate the inclination. The inclination may be proven by showing either an infatuation with a particular person or a general adulterous propensity." Id. "`Adultery may be shown by evidence or admissions and either are sufficient to support a decree of divorce."' Holden v. Frasher-Holden, 680 So.2d 795, 799 (Miss. 1996).

¶ 15. The chancellor determined that Mrs. Stribling's allegation of Mr. Stribling's adultery was unsupported and insufficient as grounds for divorce. Further, the chancellor found that even had Mrs. Stribling proven adultery, she had forgiven Mr. Stribling, and therefore condoned any adultery that had occurred. Wood v. Wood, 495 So.2d 503, 505 (Miss.1986).

¶ 16. At trial, Mrs. Stribling testified regarding her adulterous affairs. She admitted to acts of adultery with several different men but claimed that they occurred while she and her husband were separated and that Mr. Stribling condoned her acts. However, Mr. Stribling testified that he was unaware of some of Mrs. Stribling's affairs until she admitted to them at her deposition and that he had not condoned them.

¶ 17. The chancellor sits as the finder of fact, where those findings are supported by substantial evidence, this Court is bound by them. Hensarling v. Hensarling, 824 So.2d 583(¶ 7) (Miss.2002). There was clearly sufficient evidence to support the chancellor's finding of adultery by Mrs. Stribling. This issue is without merit.

II.

Did the chancery court err in failing to award custody of the minor child to either party and in failing to make a provision for the support and maintenance of the minor child?

¶ 18. Mrs. Stribling alleges error by the court for its failure to award custody of the minor child, Tina to either of the parties or to provide for her support and maintenance. Tina was born April 17, 1982 and was twenty years of age at the time of this divorce and was less than four months from being twenty-one years of age and being considered an adult. Mrs. Stribling is correct that the chancellor did not specifically provide for Tina's custody and support. Instead, the chancellor's decree...