Cuccia v. Cuccia

91 So. 3d 27, 2011 WL 2315266, 2011 Miss. App. LEXIS 342
CourtCourt of Appeals of Mississippi
DecidedJune 14, 2011
DocketNo. 2010-CA-00083-COA
StatusPublished
Cited by2 cases

This text of 91 So. 3d 27 (Cuccia v. Cuccia) 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
Cuccia v. Cuccia, 91 So. 3d 27, 2011 WL 2315266, 2011 Miss. App. LEXIS 342 (Mich. Ct. App. 2011).

Opinion

ISHEE, J., for the Court:

¶ 1. In December 2007, Anthony (Tony) Joseph Cuccia moved out of the marital home he shared with Julie Anne Cuccia in Hernando, Mississippi. The Cuccias then began the legal process of dissolving their eleven-year marriage in the DeSoto County Chancery Court. Approximately two years later, the chancery court granted the divorce based on irreconcilable differences. The chancery court also issued a final order awarding Julie Anne sole custody of the Cuccias’ two children, subject to standard visitation rights granted to Tony. The chancery court concluded that Tony’s bonus he had received at work after the Cuccias’ separation was marital property and ordered Tony to pay Julie Anne half of the bonus. The chancery court further determined that a residence purchased by Julie Anne post-separation but acquired with and paid for, in part, by Tony’s temporary support payments, was Julie Anne’s separate property. Additionally, acreage owned by Tony and Julie Anne, as well as Tony’s parents, was determined to be marital property. The chancery court awarded the parties’ interest in the property to Tony and ordered him to pay Julie Anne one-half of the value of the parties’ interest in the property. After assessing the parties’ fiscal conditions and the marital estate, the chancery court also ordered Tony to pay Julie Anne $2,000 a month in alimony for forty-eight months. However, at no point in its analysis of the marital estate [29]*29did the chancery court address the marital debt. Aggrieved, Tony appeals. Finding error, we reverse and render the issues pertaining to child custody and visitation, affirm the issue of the Tennessee acreage’s value and reverse and remand on the remainder of the issues for further proceedings consistent with the findings of this opinion.

FACTS

¶ 2. Tony and Julie Anne were wed in November 1996. During the marriage, they had two children. The elder child was born in 1998, and the younger child was born in 2002. In December 2007, Tony moved out of the Cuccias’ marital residence and filed for divorce in the chancery court shortly thereafter. The case was originally assigned to Chancellor Mitchell M. Lundy Jr., but it was later reassigned to Chancellor Percy L. Lynch-ard Jr.

¶ 3. In March 2008, Tony filed a motion for a temporary restraining order requesting that he be granted sole temporary custody of the parties’ children. In his motion, Tony expressed concerns about the safety of his children in Julie Anne’s residence due to Julie Anne’s housing over thirty-six dogs, including Rottweilers and pit bulls, on the property and in the residence. Chancellor Lundy granted Tony sole custody of the children for approximately two weeks, until a hearing on the matter could take place.

¶ 4. At the hearing, Julie Anne testified that she ran a dog boarding and training business as well as a dog rescue operation on the marital property and in the residence. She testified at the time that she was housing thirty-six dogs on the property and in the residence. The menagerie included numerous Rottweilers and pit bulls. Furthermore, on one occasion, the record indicates that a Rottweiler on the property engaged in a fight with another Rottweiler at the residence, wherein the instigating dog brutally attacked the other animal with such viciousness that the dog was eventually euthanized for safety purposes.

¶ 5. Subsequently, the chancery court entered a temporary order granting Tony and Julie Anne joint legal and physical custody.: In the order; the chancery court granted Tony custody of the children three weekends per month from 6:00 p.m. on Friday until 6:00 p.m. on Sunday, as well as- every Tuesday evening from 4:00 p.m. until 8:00 p.m. The chancery court also enjoined Julie Anne from allowing more than three dogs to run loose or occupy any portion of the marital residence utilized by the family and the children. No dogs were allowed in the house weighing more than thirty pounds. However, Julie Anne was allowed to continue boarding animals of any number and any size in the garage portion of the residence, as long as the animals were penned or caged and separated from the rest of the home. The chancery court further allowed Julie Anne to continue boarding animals outside the house without restriction. The chancery court also ordered Tony to pay Julie Anne $500 a month in temporary support in addition to paying all mortgage payments, property insurance, property taxes, utilities, and for one tank of gas per week.

¶ 6. Approximately three months later, Chancellor Lundy recused himself, and the case was reassigned to Chancellor Lynch-ard. Five days after the reassignment, Julie Anne requested a modification of Chancellor Lundy’s temporary order. Julie Anne’s requests included the following: an upward modification of temporary support; a reduction of Tony’s visitation to two weekends a month; removal of all restrictions regarding the number and weight of dogs allowed in the residence; [30]*30an order requiring Tony to pay for all uncovered medical expenses; an order requiring Tony to pay all work-related bonus income he received into a trust; and an order requiring Tony to pay any money received by him regarding a then-existing personal lawsuit on file into a trust.

¶ 7. In response, the chancery court ordered Tony to place all bonus money he received into a trust, such that proper division of the money could be determined during the divorce proceedings. The chancery court also ordered Tony to pay Julie Anne $1,000 from the recent sale of a family tractor and $2,000 to aid in expenses she would incur when she moved from the marital home after the home was sold. The chancery court set a hearing regarding Julie Anne’s remaining issues.

¶ 8. At the August 27, 2008 hearing on Julie Anne’s remaining issues, the chancery court increased Julie Anne’s temporary support from $500 a month to $8,750 a month, and the court ordered Tony to pay Julie Anne’s attorneys’ fees in the amount of $832.50. The chancery court also ordered Tony to maintain health insurance on the children and Julie Anne, and the court further directed that any costs not covered by insurance should be divided equally between the parties. Finally, the chancery court stated that any provisions from the temporary order that were not addressed in the court’s August 27, 2008 order were to remain in full effect.

¶ 9. Sometime after the hearing and after the sale of the Cuecias’ marital home was final and the proceeds divided, Julie Anne applied for a loan to purchase a new home. The record reflects that on the loan application, Julie Anne asserted that her monthly income was between $8,750 and $6,500 a month. Julie Anne also acknowledged on the loan application that she was self-employed through her dog boarding and training business, and she stated that her monthly business expenses were approximately $1,700. The loan application does not include any reference to the $3,750 a month Tony was paying Julie Anne in temporary support. Accordingly, Julie Anne qualified for a $200,000 mortgage based solely on income she claimed to earn from her business. As such, Julie Anne purchased a home and subsequently moved herself and her children into the home.

¶ 10. Approximately two months after the hearing, Julie Anne petitioned the chancery court to hold Tony in contempt of court for failing to deposit into a trust a bonus check in the amount of $43,360, which Tony had received from work in July 2008. The chancery court granted Julie Anne’s motion and ordered Tony to deposit the money and pay Julie Anne’s attorneys’ fees in the amount of $1,500 for litigation of the matter.

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Related

Cuccia v. Cuccia
90 So. 3d 1228 (Mississippi Supreme Court, 2012)

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Bluebook (online)
91 So. 3d 27, 2011 WL 2315266, 2011 Miss. App. LEXIS 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuccia-v-cuccia-missctapp-2011.