Burge v. Burge

851 So. 2d 384, 2003 WL 1818153
CourtCourt of Appeals of Mississippi
DecidedApril 8, 2003
Docket2001-CA-01641-COA
StatusPublished
Cited by5 cases

This text of 851 So. 2d 384 (Burge v. Burge) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burge v. Burge, 851 So. 2d 384, 2003 WL 1818153 (Mich. Ct. App. 2003).

Opinion

851 So.2d 384 (2003)

Shelton Quent BURGE, Appellant,
v.
Lisa Marie BURGE, Appellee.

No. 2001-CA-01641-COA.

Court of Appeals of Mississippi.

April 8, 2003.
Rehearing Denied August 5, 2003.

*385 Shirlee Marie Fager-Baldwin, Hattiesburg, attorney for appellant.

Albert Lionel Necaise, Gulfport, attorney for appellee.

En Banc.

BRIDGES, J., for the court.

¶ 1. Shelton and Lisa Marie Burge obtained a judgment of divorce on grounds of irreconcilable differences. The Chancery Court of Pearl River County awarded custody of the Burges' two minor children to Lisa Marie, established a visitation schedule for Shelton, and ordered Shelton to pay child support and alimony; the court also divided the marital assets. Shelton appealed from the judgment.

STATEMENT OF THE ISSUES

I. DID THE COURT ERR IN AWARDING CHILD SUPPORT TO LISA MARIE BURGE?
II. DID THE COURT ERR IN AWARDING PERIODIC ALIMONY TO LISA MARIE BURGE?
III. DID THE COURT ERR IN THE DISTRIBUTION OF MARITAL ASSETS?
IV. DID THE COURT ERR IN SCHEDULING SHELTON'S VISITATION TIMES?

STANDARD OF REVIEW

¶ 2. This Court reviews the findings of fact by the chancellor for clear error, and will not reverse the findings unless they are manifestly wrong and not supported by substantial credible evidence, or unless the chancellor applied an erroneous legal standard. Vaughn v. Vaughn, 798 So.2d 431, 433 (¶ 9) (Miss.2001).

FACTS

¶ 3. Shelton and Lisa Marie Burge were married in 1990, and were finally separated on July 7, 2000. They have two children, a son and a daughter. Shelton filed a complaint for divorce alleging habitual cruel and inhuman treatment and adultery. Lisa Marie filed a cross-complaint, making *386 the same allegations. Shortly thereafter, upon the parties' motion, the court permitted them to withdraw their contested pleadings, and the parties applied for a consent divorce.

¶ 4. During the marriage, Shelton worked for NOAA as an oceanographer, which caused him to spend roughly one third of the time he was married at sea. Lisa Marie was employed merely sporadically during the marriage. Currently, Shelton is still employed by NOAA, and Lisa Marie is employed as a teacher by the Poplarville School District. The Burges acquired substantial marital property, including a mobile home on twenty acres of land, a 1998 Plymouth Breeze, a 1994 Ford F-150, debt nearing $150,000, Shelton's pension plan totaling $121,000, some horses, and a time share.

ANALYSIS

I. DID THE COURT ERR IN AWARDING CHILD SUPPORT TO LISA MARIE BURGE?

¶ 5. Shelton argues that the court erred when it departed from the guidelines on child support in Mississippi Code Annotated Section 43-19-101 (Rev.2000). Shelton claims that the court's findings of fact are insufficient to support a departure from the statutory guidelines on support. The court, using the financial records of the parties, determined that Shelton's earnings for several years prior to the divorce proceeding exceeded fifty thousand dollars, and in fact were closer to seventy thousand dollars. The court noted the variable nature of Shelton's gross earnings, and determined that rather than assess him child support costs near the higher end of what his earnings reflected (from 1997 to 2000, Shelton's annual gross adjusted income for tax purposes surpassed sixty thousand dollars), the court preferred to fix his adjusted gross income at fiftyfour thousand dollars annually. For comparison, the court found that Lisa Marie's adjusted gross income was $24,480.

¶ 6. Examining the court's stated rationale, we first note that Shelton's income has shown an undeniable tendency towards increase from fiscal year 1990 until June of fiscal year 2001, which is when the financial evidence before the court below terminates. Based upon the only year for which the court had complete tax records, 2000, Shelton's income was $73,317. Shelton's tax liability (both state and federal) was a combined $8,995; applying the appropriate calculations, we find that for fiscal year 2000, Shelton's adjusted gross income under Mississippi Code Annotated Section 43-19-101 (Rev.2000) was $64,322, significantly higher than the $54,000 that the chancellor fixed it at. Additionally, Shelton's income for fiscal year 2001 appeared to be neatly consistent with the above numbers, as through June 16, 2001, his gross pay year to date was $36,317.86.

¶ 7. Shelton argues also that in combination with the award of the homestead rent-free and the award of the car to Lisa Marie that his liability for support far exceeds the statutory 20% of his adjusted gross income. To support this proposition, he cites several cases that state that the court may consider occupancy of the marital home and other property as part of support obligations. See Diamond v. Diamond, 403 So.2d 129, 131, 132 (Miss.1981) (superseded by rule as noted in Queen v. Queen, 551 So.2d 197 (Miss.1989)); Crist v. Lawrence, 738 So.2d 267, 269 (¶ 7) (Miss.Ct. App.1999). However, these cases leave that decision within the discretion of the chancellor, who stated that the money owed on the homestead was part of the debt that Shelton was required to pay as part of the property distribution. We will not count that indebtedness toward Lisa *387 Marie's income, as the chancellor clearly designated it as Shelton's debt.

¶ 8. Considering the numbers, we find that the chancellor did not err in fixing Shelton's adjusted gross income for purposes of determining child support at $54,000 per year. Contrary to Shelton's assertion, the court spoke quite clearly about how it arrived at the $54,000 number; the court considered Shelton's income, and finding that the statutory guidelines would have produced a higher number than the court felt was appropriate, it lessened Shelton's gross adjusted income to produce a number that reflected the nature of Shelton's work, conceding that Shelton's trend to increased income was affected by the number of hours worked.

II. DID THE COURT ERR IN AWARDING PERIODIC ALIMONY TO LISA MARIE BURGE?

¶ 9. Shelton argues that the court erred in awarding periodic alimony of $400 per month to Lisa Marie. Shelton assigns as error the fact that the court did not clearly elucidate what facts it found most compelling in the award of alimony. However, the court stated on the record that it had considered the appropriate factors for an award of alimony, and the record indicates that the chancellor was most concerned with the disparity in income between the two parties.

¶ 10. Additionally, Shelton argues that the court erred when it refused to consider the perfidious nature of Lisa Marie's attitudes towards the sanctity of marriage in awarding alimony. Shelton cites as support for this position several cases, all of which were divorces prosecuted under claims of adultery or for other faults. Importantly, Shelton and Lisa Marie pursued divorce through a consent decree, although Shelton had initially sought divorce under claims of adultery and habitual cruel and inhumane treatment. Shelton attempted to elicit proof of Lisa Marie's infidelity at trial; however, the chancellor held such proofs to be improperly brought in a consent proceeding.

¶ 11. In Mississippi, consent proceedings are by definition no-fault proceedings; any evidence showing that the divorce was the fault of either party is to be eschewed.

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Bluebook (online)
851 So. 2d 384, 2003 WL 1818153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burge-v-burge-missctapp-2003.