Thomas v. Thomas

• Decision Date: 11 June 2019
• Docket Number: NO. 2017-CA-00175-COA,2017-CA-00175-COA
• Parties: Randy Scott THOMAS, Appellant/Cross-Appellee v. Brandie Jean Brown THOMAS, Appellee/Cross-Appellant
• Court: Mississippi Court of Appeals

281 So.3d 1191

Randy Scott THOMAS, Appellant/Cross-Appellee

v.Brandie Jean Brown THOMAS, Appellee/Cross-Appellant

NO. 2017-CA-00175-COA

Court of Appeals of Mississippi.

June 11, 2019

Rehearing Denied July 23, 2019

ATTORNEY FOR APPELLANT: RICHARD SHANE McLAUGHLIN, TUPELO

ATTORNEY FOR APPELLEE: JAK McGEE SMITH, TUPELO

BEFORE CARLTON AN D J. WILSON, P.JJ., AND TINDELL, J.

J. WILSON, P.J., FOR THE COURT:

¶1. Randy and Brandie Thomas consented to an irreconcilable differences divorce and agreed that the chancery court would determine custody of their three minor children, set visitation, award child support, equitably divide the marital estate, and decide their claims for attorney's fees. The chancery court resolved all of the stipulated issues in a final judgment and subsequent order addressing the parties' post-trial motions. Randy appealed, and Brandie cross-appealed. Randy alleges that the chancellor committed six errors, while Brandie raises seven additional issues. For purposes of analysis and discussion, we have combined a number of the parties' claims.

¶2. Randy argues that the chancellor erred by awarding Brandie physical custody of the children, while Brandie argues that the chancellor erred by awarding Randy too much visitation. We find no clear error or abuse of discretion in either ruling.

¶3. Randy argues that the chancellor overstated his income and ordered him to pay too much child support, while Brandie argues that the chancellor understated Randy's income and did not order him to pay enough support. Brandie also argues that the chancellor erred by granting Randy a credit against his child support arrearage for a lump sum payment that he received for past due Social Security benefits for their children on account of his disability. We find no clear error or abuse of discretion in the chancellor's findings regarding Randy's income or prospective child support obligation. However, we conclude that the chancellor erred in part in calculating Randy's credit against his child support arrearage. We remand for further proceedings on that issue only.

¶4. Randy challenges the fairness of the division of the marital estate. We find no error or abuse of discretion in the chancellor's analysis. We modify the judgment only to clarify ownership of a Yamaha "Rhino" Ranger ATV and a motorcycle.

¶5. Finally, on cross-appeal, Brandie argues that the chancellor erred by awarding Randy one-half of the income tax deductions for the children and by awarding her only $ 1,000 in attorney's fees. We find no error or abuse of discretion in either ruling.

¶6. Thus, we modify the judgment of the chancery court to clarify ownership of the ATV and motorcycle, and we reverse and remand for recalculation of Randy's child support arrearage and disposition of the lump sum payment of past due Social Security benefits for the children. In all other respects, the judgment of the chancery court is affirmed.

FACTS AND PROCEDURAL HISTORY

¶7. Randy and Brandie were married on June 21, 1997. The couple had three children, Ashlyn, who was sixteen years old as of trial, Allyson, who was fourteen years old as of trial, and Anna, who was twelve years old as of trial.

¶8. Randy and Brandie first separated when Brandie filed for divorce in November 2008. Brandie was in the midst of an affair with Johnny Rayburn and had become pregnant with his child. However, after Brandie left the marital home, Randy asked her to return. Brandie told Randy that she was pregnant and had been having an affair, but she lied to Randy and told him that she was having an affair with Michael Hall. In fact, Brandie never had a sexual relationship with Hall, who was married to one of her friends. Brandie testified that she lied to Randy about the identity of her paramour because she did not want to break up Rayburn's marriage and family. Brandie also testified that she thought that there was a slight chance that Randy could be the father of her child even though Randy had undergone a vasectomy

years earlier. Randy told Brandie that he wanted their family to stay together, and he forgave her. Brandie gave birth to a son, Austin, and Randy and Brandie raised him as their own.¹

¶9. During the marriage Randy worked for UPS and as a real estate appraiser. In 2010, he was injured on the job at UPS. He was prescribed several medications, including opiates, for pain from the injury and resulting nerve damage. He was also prescribed medications to help him sleep and for anxiety and depression. In January 2013, Randy filed for Social Security disability benefits, and he was eventually approved for benefits retroactive to January 2012. In April 2015, Randy received lump sums of $ 40,666 for past due benefits due to him and $ 21,038 for past due benefits for his children. Randy claims that he spent the $ 40,666 to support himself and his family over the course of the next six months, but he produced no other evidence to substantiate that claim. Randy testified that the lump sum for his children was still in a bank account. In April 2015, Randy also began receiving monthly disability benefit payments of $ 1,329 for himself and $ 700 for his children.

¶10. After his injury, Randy was no longer able to work at UPS, but he continued to work as a self-employed real estate appraiser. He also leased residential properties through Thomas Properties LLC, as its sole member.² By the time of trial, Thomas Properties owned seven single-family homes and a trailer park with seven mobile homes.

¶11. Brandie worked as a real estate agent during the marriage. On her Rule 8.05 statement, she reported gross monthly income of $ 2,600.50. She had earned gross commissions of $ 79,240 in 2014, but her earnings decreased in 2015.

¶12. Brandie testified that Randy began abusing his painkillers while also drinking six to nine beers everyday in the shop behind their house. She testified that Randy liked to grill while he worked in the shop, but by dinner time he would be so intoxicated that he would drop trays of food on the ground and could not hold his eyes open at the dinner table. There was also testimony that Randy was arrested at least three times³ while under the influence of drugs and alcohol. In addition, Randy's mother had to call an ambulance after she found him lying unresponsive on her porch. Brandie testified that Randy's drinking habits negatively impacted the children. Their youngest daughter, Anna, would lock herself in her room and cry when Randy would become drunk and angry. Brandie had to limit when the children could have friends over because the children were embarrassed by Randy's outbursts.

¶13. On February 21, 2014, Randy was arrested and charged with domestic violence. The parties offered different versions of the events leading up to the arrest. Randy testified that he was up late doing appraisal work and watching television in the living room while Brandie was asleep in their bedroom with Allyson and Austin. Randy claimed that Brandie came into the living room, threw a remote control at him, and slapped him in the face. Brandie then ran to the couple's bedroom where Allyson and Austin were still sleeping, locked the door, and called 911. Randy then kicked down the bedroom door. Randy testified that, at that point, he realized that he had lost his temper, so he turned around and walked back to the living room. According to Randy, he then went outside and retrieved a gun that he kept in his truck. Randy testified that he typically kept his guns locked in a safe in his bedroom closet, but this particular gun was in his truck because he had recently "traded for it." He brought the gun back inside to inspect the gun's handle, which was cracked. According to Randy, he did not have the gun in his hand when he kicked down the bedroom door; rather, he retrieved the gun only after he kicked down the door.

¶14. Brandie testified that she was in the bedroom asleep with Allyson and Austin when she awakened to the sound of Randy "being loud in the living room." She said that it sounded like he was arguing with someone even though he was alone. Randy suddenly walked through the bedroom to the closet where he kept his gun safe. She heard the safe open, and Randy turned on the lights in the bedroom. He stood next to the bed with a gun and asked, "Where are the kids?" Brandie asked why he had a gun and asked him several times to put it down. Randy then turned away and walked back to the living room. Brandie retrieved her phone from the kitchen, ran back to her bedroom, locked the door, and called 911. Randy followed her, and when he realized that the bedroom door was locked, he became very angry and kicked down the door. When the police arrived, Randy was sitting in a chair in the living room with a loaded gun next to him on the coffee table. Brandie testified that she took Allyson and Anna to counseling as a result of the incident.

¶15. After Randy's arrest, Brandie filed for a domestic abuse protection order. The justice court granted a protection order and ordered Randy to vacate the marital home. Randy moved in with his parents, who lived nearby. Randy testified that he stopped using drugs and drinking alcohol after his arrest. In April 2014, the couple reconciled, and Randy moved back into the marital home with Brandie and their children.

¶16. The couple separated for a final time on October 21, 2014, when Brandie filed a complaint for divorce and a motion for temporary emergency relief. Officers arrived at the marital home around 8:30 p.m. on October 21, 2014, to serve Randy with a restraining order and divorce papers. The officers' supervisor instructed them not to let Randy out of their sight because he was potentially dangerous and kept several guns in the home. When the officers arrived they explained to Randy that they "had a restraining order that was going to remove him from the house." According to the officers, Randy was angry but went to gather a few of his personal items. When he realized that...