Swiderski v. Swiderski

• Decision Date: 24 March 2009
• Docket Number: No. 2007-CA-01517-COA.,2007-CA-01517-COA.
• Citation: 18 So.3d 280
• Parties: Terry F. SWIDERSKI, Appellant, v. Cyprianna Ellen (Hormanski) SWIDERSKI, Appellee.
• Court: Mississippi Court of Appeals

18 So.3d 280

Terry F. SWIDERSKI, Appellant, v. Cyprianna Ellen (Hormanski) SWIDERSKI, Appellee.

No. 2007-CA-01517-COA.

Court of Appeals of Mississippi.

March 24, 2009.

Rehearing Denied July 21, 2009.

Certiorari Denied October 1, 2009.

Jackson M. Brown, Starkville, Attorney for Appellant.

Carrie A. Jourdan, Attorney for Appellee.

Before KING, C.J., IRVING and GRIFFIS, JJ.

IRVING, J., for the Court.

¶ 1. Cyprianna and Terry Swiderski were granted a divorce on the ground of irreconcilable differences by the Oktibbeha County Chancery Court. The chancellor awarded primary custody of the parties' minor children to Cyprianna, ordered Terry to pay child support, and divided the marital estate. Aggrieved, Terry appeals and alleges (1) that the chancellor erred in refusing to issue findings of fact to support his legal conclusions, (2) that the chancellor erred in awarding primary custody of the children to Cyprianna, (3) that the chancellor erred in awarding inadequate visitation, (4) that the chancellor erred in basing the child support award on Terry's earning potential, (5) that the chancellor erred in his division of the marital estate, and (6) that the chancellor erred in refusing to award Terry alimony.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Cyprianna and Terry were married on August 15, 1992. At the time of their marriage, Terry and Cyprianna were equestrian veterinarians. Terry had a veterinary practice in Magnolia, Mississippi, and Cyprianna was finishing her Ph.D. program at Louisiana State University. Three children were born to the marriage.

¶ 4. During their marriage, the parties moved several times from Mississippi. At times, Cyprianna and the children would be in one city or state, and Terry would be in another. In 2004, the parties moved to Starkville, Mississippi. Cyprianna became employed with Mississippi State University, and Terry started a part-time veterinary practice that required him to travel extensively. Cyprianna secured temporary staff housing for the family on the university's campus. The parties purchased a house on Highway 12 in Starkville with the intention of remodeling and making it the family home.

¶ 5. On June 22, 2006, the parties separated, and Terry filed for divorce. He requested child custody, child support, alimony, and an equitable division of the marital estate. On August 25, 2006, the chancellor, in a temporary order, awarded Cyprianna primary physical custody of the minor children. He also ordered her to maintain health insurance for the children and to pay seventy-five percent of the mortgage on the Highway 12 property. The chancellor ordered Terry to pay the remaining twenty-five percent of the mortgage as rent, since he took up residence there after the parties separated.

¶ 6. The parties were granted a divorce on December 29, 2006. On April 24-25, 2007, a hearing was held on the issues of child custody, child support, visitation, division of the marital estate, alimony, and attorney's fees.

¶ 7. The chancellor found that it was in the children's best interest for Cyprianna to have primary physical custody and for Terry to have standard visitation. Further, the chancellor ordered Terry to pay $750 per month for child support. In regard to the division of the property, the chancellor awarded Terry assets valued at $181,322.21 and awarded Cyprianna assets valued at $166,548.09. The chancellor held that Terry was not entitled to alimony, and both parties were ordered to pay their own attorney's fees.

¶ 8. Terry filed a motion urging the chancellor to amend his judgment by making additional findings of fact and legal conclusions. The chancellor overruled this motion. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 9. Terry argues that the chancellor erred in refusing to make additional findings of fact and conclusions of law as requested by him in his posttrial motion. Additionally, Terry argues that the chancellor erred in essentially every finding and conclusion that he reached, namely: child custody, visitation, child support, division of property, and alimony.

¶ 10. "Where a[c]hancellor has applied the correct legal standard and made findings of fact which are supported by substantial evidence, [the appellate court] will not reverse [the] decision." In re Custody of M.A.G., 859 So.2d 1001, 1004(¶ 8) (Miss. 2003) (citing Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss.1996)). "We will not reverse the chancellor's `factual findings where there is substantial evidence in the record supporting these findings of fact.'" J.P. v. S.V.B., 987 So.2d 975, 979(¶ 7) (Miss.2008) (quoting Floyd v. Floyd, 949 So.2d 26, 28(¶ 5) (Miss.2007)).

1. Denial of Motion to Amend

¶ 11. After the conclusion of the trial, Terry filed a document entitled "MRAP Rule 4(d) and MRCP Rules 52 and 59 Motions."¹ In this pleading, Terry requested that the chancellor "reconsider [his] August 2, 2007, Judgment and amend it by making additional findings and legal conclusions." Terry suggested additional findings and legal conclusions that favored him on each issue. The chancellor denied Terry's motion.

¶ 12. Rule 52(a) of the Mississippi Rules of Civil Procedure states:

In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.

Essentially, "[this rule] vests in the trial court discretion whether findings of fact and conclusions of law should be made, absent ... a request of a party." Tricon Metals & Servs., Inc. v. Topp, 516 So.2d 236, 239 (Miss.1987). However, the Mississippi Supreme Court also has held that a trial court has technically complied with the mandate of Rule 52 where it makes general findings of fact and conclusions of law, even though a party has made a request for specific findings. Century 21 Deep S. Props., Ltd. v. Corson, 612 So.2d 359, 367 (Miss.1992).

¶ 13. For each issue, the chancellor made findings of fact while addressing the applicable legal considerations. For child custody, the chancellor addressed each Albright factor² in detail to determine what was in the children's best interests. In determining the division of the marital assets, the chancellor addressed each Ferguson factor.³ In determining whether to award alimony, the chancellor stated that he had considered "every Armstrong factor⁴ except fault or misconduct and [had] made findings of fact concerning those factors in [his] discussion of property division or child support." The chancellor encouraged the parties to agree on Terry's visitation with the children but put in place a standard visitation schedule for the parties should they not be able to agree.

¶ 14. The chancellor denied Terry's requests to make further findings of fact and conclusions of law. We find that he did not err, as he had already made particularized findings of fact and conclusions in his fourteen-page judgment of divorce. Therefore, this contention of error is without merit.

2. Child Custody

¶ 15. In matters involving a chancellor's award of child custody, the appellate court's standard of review is limited. J.P., 987 So.2d at 978-79(¶ 7) (citing Floyd v. Floyd, 949 So.2d at 28(¶ 5)).

¶ 16. In Albright, 437 So.2d at 1005, the Mississippi Supreme Court determined that the "polestar consideration in child custody cases is the best interest and welfare of the child" and set out several factors relevant to that determination: the age of the child; the health of the child; the sex of the child; continuity of care for the child prior to the separation; parenting skills; employment of the parent; the physical and mental health and the age of the parent; moral fitness of the parent; the home, school, and community record of the child; the preference of the child of sufficient age to express a preference; stability of home environment and employment of the parent; and other factors relevant to the parent-child relationship.

¶ 17. Terry argues that the chancellor erred in awarding primary custody of the children to Cyprianna in light of the Albright factors. Specifically, Terry argues that he should have been favored in the eight factors the chancellor found to be neutral.

¶ 18. "It is the role of the chancellor to ascertain whether witnesses and evidence are credible and the weight to give each." Robison v. Lanford, 841 So.2d 1119, 1122(¶ 9) (Miss.2003) (citing Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994)). The chancellor addressed each Albright factor and determined whom each factor favored after considering the testimonies of the witnesses and the evidence. We find that the chancellor applied the correct legal standard and that there is sufficient evidence in the record to support his findings. Therefore, this contention of error is also without merit.

3. Visitation

¶ 19. On visitation issues, the chancery court enjoys considerable discretion in making its determination of what is in the best interest of the child. Haddon v. Haddon, 806 So.2d 1017, 1020(¶ 12) (Miss.2000) (citing Harrell v. Harrell, 231 So.2d 793, 797 (Miss.1970)). Further, "[t]he specification of times for visitation rights is [also within] the broad discretion of the chancellor." Id. (citing Cheek v. Ricker, 431 So.2d 1139, 1146 (Miss.1983)).

¶ 20. Terry argues that the chancellor erred in ordering alternate weekend visitation. He cites Cox v. Moulds, 490 So.2d 866, 869 (Miss. 1986) which states that "[a]ll that need be shown is that there is a prior decree providing for reasonable visitation rights which isn't working and that it is in the best interests of the children as fostering a positive and harmonious relationship between them and their divorced parents to have custody provisions made specific rather than flexible and...