Vassar v. Vassar

• Decision Date: 17 October 2017
• Docket Number: NO. 2016–CA–01340–COA,2016–CA–01340–COA
• Parties: Amaria VASSAR, Appellant v. David VASSAR, Appellee
• Court: Mississippi Court of Appeals

228 So.3d 367

Amaria VASSAR, Appellant

v.David VASSAR, Appellee

NO. 2016–CA–01340–COA

Court of Appeals of Mississippi.

October 17, 2017

ATTORNEY FOR APPELLANT: JERRY WESLEY HISAW

ATTORNEY FOR APPELLEE: DAVID VASSAR (PRO SE)

EN BANC.

WILSON, J., FOR THE COURT:

¶ 1. David and Amaria Vassar consented to an irreconcilable differences divorce and submitted several issues to the chancellor for decision: custody of their son, Martin,¹ who was three years old at the time of the divorce; child support; equitable division of the marital property; alimony; attorney's fees; and contempt. On appeal, Amaria argues that the chancellor erred (1) by awarding David custody of Martin, (2) in dividing the marital estate, (3) in awarding David permanent alimony, (4) in awarding David attorney's fees, (5) in setting child support, and (6) in ordering her to be incarcerated for contempt.

¶ 2. We affirm on the issue of custody but reverse on the issues of equitable division, child support, alimony, and attorney's fees. As discussed below, the sum total of the obligations that the divorce decree imposed on Amaria were beyond her ability to pay. In addition, the chancellor set child support based on an incorrect income figure and did not make findings under Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994), to support the division of the marital property. The chancellor also erred in awarding attorney's fees, as the record shows that Amaria was unable to pay. The chancellor could have ordered Amaria to pay the substantially lesser amount of attorney's fees that David incurred litigating the issue of contempt. Finally, we hold that the chancellor erred by ordering Amaria to be incarcerated, as she was unable to pay the nearly $13,000 mortgage arrearage that she was ordered to pay as a condition of her release. The chancellor released Amaria from jail forty-seven days later, after she filed for bankruptcy, but we address this issue under the "capable of repetition yet evading review" exception to the mootness doctrine.

FACTS

¶ 3. David and Amaria married on November 8, 2007. Their son, Martin, was born in 2013. They separated around April 30, 2015. Amaria filed for divorce on the grounds of habitual cruel and inhuman treatment and/or irreconcilable differences in May 2015, and David answered and filed a counter-complaint for divorce on the same grounds several weeks later. Both Amaria and David sought custody of Martin, and David alleged that Amaria had abused or neglected Martin. The chancellor entered a temporary order granting David custody of Martin and granting Amaria specified visitation. The chancellor also appointed a guardian ad litem (GAL) to investigate David's allegations of abuse and neglect. Finally, the chancellor granted David temporary possession of the marital home but ordered Amaria to continue to pay the mortgage and utilities.

¶ 4. The case was not tried until July 1, 2016. About a month before trial, David filed a petition for contempt alleging that Amaria had stopped paying the mortgage and disconnected the utilities on the marital home in violation of the temporary order. On the day of trial, the parties consented to an irreconcilable differences divorce, while submitting the issues of child custody, child support, property division, alimony, attorney's fees, and contempt to the chancellor for decision.

¶ 5. Amaria and David own a house in DeSoto County, which they purchased in 2009. The original purchase price of the home was approximately $170,000, but they later refinanced the home for approximately $198,000. At the time of trial, the mortgage balance was approximately $185,000, including nearly $13,000 in arrearages. Only Amaria is obligated on the promissory note, apparently because of David's poor credit history.

¶ 6. Amaria is a Captain in the United States Army Reserve (USAR) and attends drills one weekend a month and training for two weeks in the summer. When she filed for divorce, she was also employed as a medical laboratory technician. Her average, combined net income for her service in the USAR and employment as a lab tech was $3,034.52 per month.

¶ 7. In April 2015, David filed an affidavit to have Amaria civilly committed. David alleged that Amaria was depressed and might not be taking her psychiatric medications. David also alleged that Amaria was suicidal and had threatened him.

¶ 8. Based on David's affidavit, Amaria was committed to a mental health facility for approximately ten days. She was released after her doctors concluded that she was not a risk to herself or others and did not require treatment. Amaria eventually lost her job as a lab tech, at least in part because she missed work as a result of her commitment.

¶ 9. Amaria testified that after she lost her job, she was unable to pay both her own rent and living expenses and the mortgage note and utilities on the marital home. At trial, she admitted that, without court approval, she simply stopped paying the mortgage and had the utilities disconnected.

¶ 10. Amaria eventually found a new job as a sales consultant at Gossett Motor Cars, where she was still employed at the time of trial. At Gossett, she is paid only minimum wage plus commissions, which has resulted in a substantial reduction in her overall net income. Amaria's Rule 8.05 financial statement showed $2,208.19 as her total monthly net income. On cross-examination, Amaria acknowledged that she also receives $133 per month for an injury she suffered during an overseas deployment, which was not reflected on her 8.05 statement. Amaria testified that she would like to return to full-time military service and would do so if given the opportunity.

¶ 11. David also served in the military at one time, but he had been unemployed for all but about one year of the parties' marriage. He last worked for about a month in 2014 before he was injured and received workers' compensation payments for one year. At the time of trial, he had not worked in over two years and had two pending disability claims. One of the claims had been pending for four years and the other for two years. David did not produce any medical records or documentation regarding his injuries or disability claims.

¶ 12. David testified that a back injury prevents him from doing any work that involves heavy lifting or "standing up for a long time." Also, he "can't do a desk job" because he is "prohibited" from "sitting down for certain amounts of time." A doctor supposedly advised David against doing even "paperwork." However, David did testify that he is physically capable of caring for Martin because he can "teach [Martin] what's the perimeter," and three-year-old Martin "follows [his] command" and "stays within those perimeters." Amaria testified that there is "nothing medically wrong with" David that prevents him from working, and he just "does not want to work." The GAL's report noted that David pays $300 per month in child support for a teenage daughter from a prior relationship.

¶ 13. As noted above, Martin was three years old at the time of trial. The GAL found that Martin was a happy and physically and mentally healthy child. The GAL found no evidence to substantiate David's allegations of neglect and abuse. The GAL also found that Martin had an emotional connection and was "equally comfortable with both" of his parents. In her report, the GAL discussed the Albright² factors and opined that two factors favored David, two favored Amaria, and the rest were neutral or inapplicable. The GAL recommended that David be given custody of Martin.

¶ 14. David and Amaria accused each other of acts of physical and verbal abuse. Amaria testified about three incidents in which David choked her, grabbed her, and pushed her off their porch. The police were called and responded to these incidents, but none resulted in charges. On May 7, 2015, a special master of the chancery court entered a temporary domestic abuse protection order that prohibited David from making contact with Amaria other than during visitation exchanges. The order stated that it would expire on May 21, 2015. Amaria also testified that David verbally abused her, falsely accused her of abusing and neglecting Martin, and filed a false affidavit to have her committed. She testified that she was receiving counseling for depression, which she attributed to David's abuse.

¶ 15. David testified that Amaria had threatened him with a meat cleaver or a machete on multiple occasions. He testified that she cut him with a knife once. That incident apparently resulted in a charge of simple assault against Amaria and some sort of nonadjudication or suspended sentence. David also testified that Amaria had received treatment and counseling for mental health issues, although he denied that he was to blame for her issues.

¶ 16. The chancellor conducted an Albright analysis on the record and agreed with the GAL's recommendation that David should have custody. The chancellor awarded Amaria visitation every other weekend plus holidays and five weeks in the summer. The chancellor also ordered Amaria to pay David $443 per month in child support and to maintain health insurance for Martin.

¶ 17. In dividing the marital property, the chancellor awarded David the exclusive use and possession of the marital home until Martin reached the age of twenty-one or was otherwise emancipated. As part of the "equitable division of [the marital] property," the chancellor ordered each party to pay one half of the mortgage, insurance, and taxes on the home, which was $638 per month. However, the chancellor then ordered Amaria to pay David's half for him, which the chancellor characterized "periodic alimony" of $638 per month. Thus, the decree ordered Amaria to pay the full monthly mortgage payment of $1,276 per month.

¶ 18. The chancellor also ordered Amaria to pay David's attorney's fees in the amount of $10,058.25. The chancellor ordered Amaria to pay $1,462.50 within ten days and the remaining balance within ninety days.

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