Burnham v. Burnham

185 So. 3d 386, 2015 Miss. App. LEXIS 342, 2014 WL 9913457
CourtCourt of Appeals of Mississippi
DecidedJune 16, 2015
DocketNo. 2012-CA-01218-COA
StatusPublished
Cited by1 cases

This text of 185 So. 3d 386 (Burnham v. Burnham) 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
Burnham v. Burnham, 185 So. 3d 386, 2015 Miss. App. LEXIS 342, 2014 WL 9913457 (Mich. Ct. App. 2015).

Opinions

FAIR, J.,

for the Court:

¶ 1. The motion for rehearing is granted. The original opinion is withdrawn and this opinion substituted.

¶ 2. In this appeal from a judgment of divorce, Matthew Burnham argues that the chancery court ordered him to pay too much child support and that its division of the marital, property was inequitable. We find that substantial evidence supports the chancellor’s finding that Matthew could earn, and had earned, more than he claimed to be making, and that the property division, though' unequal, was within the chancellor’s discretion because it was calculated to eliminate the need for alimony. We affirm the judgment.

STANDARD OF REVIEW

¶ 3. Matthew contends that the judgment should be subject to a “heightened” standard of review because the chancellor largely adopted the proposed findings of fact and conclusions of law submitted by Dana. We do not agree; in Bluewater Logistics, LLC v. Williford, 55 So.3d 148, 155-157 (¶¶ 24-33) (Miss.2011), the Mississippi Supreme Court unambiguously held that the “heightened scrutiny” standard sometimes articulated in the past was illusory and that there is, in practice, no special standard of review for cases where the chancellor adopts the proposed findings of fact offered by one of the parties. Last year, the supreme court unanimously reaffirmed Bluewater, holding: “[T]his Court recently rejected the argument that factual findings should be reviewed under any sort of ‘heightened scrutiny,’ even if they are adopted verbatim from a party’s proposed findings of fact.” Miss. Comm’n on Envtl. Quality v. Bell Utils. of Miss., LLC, 135 So.3d 868, 877 n. 9 (Miss.2014).

¶ 4. “When [an appellate court] reviews a chancellor’s, decision in a .case involving divorce and all related issues, our scope of review is limited by the substantial evidence/manifest error rule.” Yelverton v. Yelverton, 961 So.2d 19, 24 (¶ 6) (Miss.2007). Therefore, this Court will not disturb the chancellor’s findings “unless the chancellor was manifestly wrong, clearly erroneous or a clearly erroneous [388]*388standard was applied.” Id. (citation omitted).

DISCUSSION

¶ 5. Matthew and Dana were married in 1999. The marriage produced two daughters, born in 2006 and 2008. At the time of the separation, Dana was a stay-at-home mom, while Matthew was a biology instructor at Jones County Junior College and a part-time farmer. Ultimately, the parties agreed to an irreconcilable differences divorce with- Dana having custody of the children. The issues of child support, property -division, and alimony were submitted to the court and form the basis of Matthew’s appeal.

1. Child Support

¶ 6. Matthew was ordered to pay $600 per month in support of his two children. On appeal, he argues that the chancellor erred by not following the child-support guidelines, which for two children specify 20% of the obligor parent’s adjusted gross income. See Miss.Code Ann. § 43-19-101 (Supp.2014). According to Matthew, the number the chancellor should have arrived at had he followed the guidelines is $523.61 per. month.

¶ 7. Matthew’s Rule 8.051 statement gave his monthly gross income as $4,189.58 “based on one check from 2012.” But his 2011 W~2 from JCJC indicated gross monthly income of approximately $4,548, and the 2010 figure is even higher. If the chancellor had applied the guidelines to the $4,548 number and accepted Matthew’s adjustments, he would have arrived at approximately $600 per month, which is what was ordered. Matthew also makes some dubious adjustments to his income, such as $667 per month for “mandatory insurance,” but Dana has not cross-appealed asking for an increase in support,

¶ 8. Furthermore, Matthew’s argument is premised around his claim that his income was — and only could be — the salary he was paid by Jones County Junior . College. But the chancellor was quite clear that, even though he apparently accepted Matthew’s claim of a gross monthly income from the college of $4,190, as well as Matthew’s various downward adjustments, additional income was imputed because Matthew had the ability to earn more.

. ¶ 9. ■ The record supports this overwhelmingly. Matthew had a Ph.D. and his job at the junior college required him to work, by his own admission, only six hours a day for nine months out of the year. According to his prior W-2s, Matthew had previously been earning up to ten thousand dollars a year more from the teaching position, and it is unclear why he earned less at the time of the divorce. Matthew also previously had a‘ side business trading in cattle, and though he claimed it' did not make money, the chancellor found that Matthew had hot been 'forthcoming about his finances. Matthew was also awarded marital assets, including real property, intended to be used to generate additional income.

¶ 10. All of these facts support the chancellor’s conclusion that Matthew could earn more money than he claimed to be making at the time of trial. The chancellor may impute additional income to an obligor parent who has voluntarily chosen to make less than he has the capacity to earn. Selman v. Selman, 722 So.2d 547, 555 (¶ 36) (Miss.1998).

¶ 11. The amount of income the chancellor would have to 'impute to Matthew was quite small and is readily determinable — about $380 per'month, or rough[389]*389ly $4,560 per year, if we accept that the chancellor employed the guidelines, as he said he did. Furthermore, the chancellor’s failure to explicitly state how much income he imputed to-Matthew is not ..reversible error. Clark v. Clark, 754 So.2d 450 (Miss.1999), is directly on point. There, the chancellor imputed an unspecified amount of income to the father and awarded $600 per month in support for three children. The supreme court held:

[W]hen a chancellor chooses not to follow the guidelines, this Court has enforced the statutory requirement that the chancellor make an on-the-record determination that the guidelines do not apply. In this case, Richard reported a gross income of $80,500 in 1996 and was ordered to pay a total of $600 per month in child support. Even if Richard’s reported gross income were not adjusted for taxes, etc., as provided for in the statute, the $600 award would exceed the statutory guidelines. That is, -the amount awarded- was approximately 23.61% of the gross income reported in Richard’s 1996 tax return.
However, “this Court is charged with reviewing the entire record.” Anderson v. Anderson, 692 So.2d 65, 71 (Miss.1997). The chancellor found, based on expert testimony, and Richard’s own testimony, that Richard was hiding assets and income, in order to avoid financial responsibility to his children and his wife of 33 years. In fact, based solely on the testimony regarding the payment of Richard’s employees, it was evident that Richard made more than he said he did (or he could not have paid his workers). Thus, applying the statutory guidelines to Richard’s reported income would not be accurate, in this case.
Furthermore, a deeper study of the record indicates that the chancellor was not intentionally deviating from the statutory guidelines. Rather, the chancellor was attempting to follow the statutory schedule for child support payments.

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Related

Matthew Burnham v. Dana Burnham
185 So. 3d 358 (Mississippi Supreme Court, 2015)

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Bluebook (online)
185 So. 3d 386, 2015 Miss. App. LEXIS 342, 2014 WL 9913457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnham-v-burnham-missctapp-2015.