Wolfe v. Wolfe

• Decision Date: 05 September 2000
• Docket Number: No. 1998-CA-01168-COA.,1998-CA-01168-COA.
• Citation: 766 So.2d 123
• Parties: Blaine C. WOLFE, Appellant, v. June Ann M. WOLFE, Appellee.
• Court: Mississippi Court of Appeals

766 So.2d 123

Blaine C. WOLFE, Appellant, v. June Ann M. WOLFE, Appellee.

No. 1998-CA-01168-COA.

Court of Appeals of Mississippi.

September 5, 2000.

Gary L. Roberts, Gautier, Attorney for Appellant.

Marcus Pittman, Pascagoula, Attorney for Appellee.

BEFORE McMILLIN, C.J., LEE, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. Blaine Wolfe appeals the decree of divorce judgment of the Jackson County Chancery Court submitted in the child custody, alimony and property settlement agreement. Mr. Wolfe raises the following assignments of error on appeal

I. THE TRIAL COURT ABUSED ITS DISCRETION AND WAS MANIFESTLY IN ERROR BY AWARDING CUSTODY OF THE MINOR CHILDREN TO JUNE WOLFE, AND IN FAILING TO ADDRESS ALL OF THE FACTORS REQUIRED BY ALBRIGHT V. ALBRIGHT.

II. THE TRIAL COURT ABUSED ITS DISCRETION AND WAS MANIFESTLY IN ERROR BY FAILING TO DIVIDE THE ASSETS OF THE PARTIES PURSUANT TO FERGUSON V. FERGUSON.

III. THE TRIAL COURT ABUSED ITS DISCRETION AND WAS MANIFESTLY IN ERROR IN ASSESSING ALIMONY AGAINST THE APPELLANT BLAINE C. WOLFE.

We affirm on all issues with the exception of the chancellor's decision to grant joint legal custody.

FACTS

¶ 2. Blaine and June Wolfe were married on May 24, 1983, and June filed for divorce on April 14, 1994 in Jackson County, Mississippi on the grounds of habitual cruel and inhuman treatment. Three children were born to the marriage, Coleena Marie Wolfe, born May 29, 1984, Seth Christopher Wolfe, born March 21, 1987, and Joseph Blaine Wolfe, born February 25, 1993. The matter came on for hearing before the court on November 21, 1995, but the parties decided to withdraw their fault-based pleadings and proceed on the grounds of irreconcilable differences. The parties were granted a judgment of divorce on November 22, 1995 on the grounds of irreconcilable differences, and the court awarded the parties joint legal custody of the minor children, with the remaining issues reserved until a supplemental judgment of divorce was later entered. An agreed order was filed March 12, 1997, pursuant to a motion filed on October 7, 1996, which set aside ab initio the judgment of divorce since the divorce had not been accompanied by a written consent to divorce on the ground of irreconcilable differences nor a written child custody and property settlement agreement as required by Miss.Code Ann. § 93-5-2 (Rev.1994). The case was tried, and the court awarded the parties joint legal custody of the three minor children with the children to reside in the home of the plaintiff, June Ann M. Wolfe, during the public school year and to reside in the home of the defendant, Blaine C. Wolfe, during the summer months when school is not in session. The court also found that Blaine's dissipation of some marital funds just prior to the separation equaled his share of the equity in the marital home, and thus the court granted June Ann M. Wolfe full use, possession and title to the marital home. Furthermore, the court awarded June Ann M. Wolfe "temporary" alimony in the amount of $300 per month for one year and $200 per month for two years. Blaine now appeals this decision.

¶ 3. At the time of the trial Mr. Wolfe worked as an electronic technician for the Chesapeake Systems Integration Corporation out of Virginia, maintaining air traffic control simulators on Keesler Air Force Base. Mr. Wolfe grossed approximately $2752.53 a month. Mrs. Wolfe just received a bachelors degree in therapeutic recreation from the University of South Alabama and was actively searching for a job in that field. She worked part time at the YMCA, six hours a week, and one hour a week at North Shore Psychiatric Hospital doing therapeutic recreation sessions for senior citizens.

ANALYSIS

I. THE TRIAL COURT ABUSED ITS DISCRETION AND WAS MANIFESTLY IN ERROR BY AWARDING CUSTODY OF THE MINOR CHILDREN TO JUNE WOLFE, AND IN FAILING TO ADDRESS ALL OF THE FACTORS REQUIRED BY ALBRIGHT V. ALBRIGHT.

¶ 4. The polestar consideration in a child custody case is the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Additionally, our supreme court has outlined the factors to consider in child custody cases: the age of the child, health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent; and other factors relevant to the parent-child relationship. Id.

¶ 5. Although both parents desired custody, it is apparent from the record that the chancellor found both of the parents fit to have custody of the children in that he awarded both parents joint legal custody and essentially split physical custody between the parents. The record is clear that all the Albright factors were presented to the court and the chancellor did not deem one parent more suitable than the other; therefore, he awarded joint custody. June is to have physical custody of the children during the school year, and Blaine is to have custody during the summer months; this effectively signifies that he deemed both parents ready, willing, and able to suitably raise the children. The visitations are equal, fair and supported by the record. ¶ 6. Pursuant to Miss.Code Ann. § 93-5-24(2) both parents must agree to joint custody in a divorce where the grounds are irreconcilable differences. Such was not the case here. We are compelled to reverse the chancellor on this point. Oddly enough, it is only in divorce cases involving irreconcilable differences that a chancellor cannot award joint legal custody unless both parties request it. Under all twelve of the other grounds for divorce a chancellor can award joint legal custody if either spouse requests it. This is an anomaly in divorce law that the Mississippi Legislature may wish to address.

II. THE TRIAL COURT ABUSED ITS DISCRETION AND WAS MANIFESTLY IN ERROR BY FAILING TO DIVIDE THE ASSETS OF THE PARTIES PURSUANT TO FERGUSON V. FERGUSON.

¶ 7. Blaine argues that the chancellor below failed to make findings of fact and conclusions of law when evaluating the equitable distribution of the marital home. It is well known that it is within the chancellor's authority to make an equitable division of all jointly acquired real and personal property. Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). In making an equitable division of marital property, however, the chancellor is not required to divide the property equally. Love v. Love, 687 So.2d 1229, 1232 (Miss.1997); Trovato v. Trovato, 649 So.2d 815, 817-18 (Miss. 1995). Instead, equitable distribution is governed by the guidelines set out by our supreme court in Ferguson. These guidelines include:

(1) economic, and domestic contributions by each party to the marriage,

(2) expenditures and disposal of the marital assets by each party,

(3) the market value and emotional value of the marital assets,

(4) the value of the nonmarital property,

(5) tax, economic, contractual, and legal consequences of the distribution,

(6) elimination of alimony and other future frictional contact between the parties,

(7) the income and earning capacity of each party, and

(8) any other relevant factor that should be considered in making an equitable distribution.

Ferguson, 639 So.2d at 928. Furthermore, in setting out the Ferguson guidelines to be followed by chancellors when evaluating equitable distributions of marital property, our supreme court has directed chancellors "to support their decisions with findings of fact and conclusions of law for purposes of appellate review." Id.

¶ 8. Applying these factors to this case, it cannot be said that the chancellor was manifestly wrong in his distribution of the Wolfe's marital assets. He considered the contributions and expenditures of each of the parties and the market value of the residence. More specifically, the chancellor stated:

[T]he homestead, located at 6524 Mayfair Road, Ocean Springs, Mississippi, was purchased in June of 1992 and was used as a principle residence of the parties and their children. As marital troubles developed, the parties separated and June Ann M. Wolfe purchased a home using her own funds and money borrowed from her parents, which house is located at 15217 Freemont Drive in Biloxi, Mississippi. The testimony reveals that the parties reconciled after some period of time and that the home which belongs exclusively to June Ann M. Wolfe, was sold on February 10, 1995, for nineteen thousand seven hundred ninety-three and no dollars ($19,793.00), which was derived as net. The parties agreed that $3,000.00 of this money went to pay back June's parents for the down payment and for making certain past payments on June's residence. There is a conflict between the parties as to what happened to the rest of the money, with both parties agreeing that between $7,000.00 and $8,000.00 was used to repay a loan against the residence taken out by Blaine C. Wolfe, with June Ann M. Wolfe's consent. This money was supposed to have been used for improvements or repairs to make the property more sellable. The parties differ on the amount of the money which was actually placed back into the property, which belonged to June Ann M. Wolfe, with June Ann M. Wolfe claiming that less money was used by Blaine C. Wolfe for that purpose, than Blaine C. Wolfe claims was used. It is clear from the testimony, however, that a substantial sum was used for Christmas for the children. If $7,000.00 was taken to repay the loan for the net, approximately $9,000.00 should have been left. At this

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