Henderson v. Henderson

952 So. 2d 273, 2006 WL 3361836
CourtCourt of Appeals of Mississippi
DecidedNovember 21, 2006
Docket2004-CA-01277-COA
StatusPublished
Cited by14 cases

This text of 952 So. 2d 273 (Henderson v. Henderson) 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
Henderson v. Henderson, 952 So. 2d 273, 2006 WL 3361836 (Mich. Ct. App. 2006).

Opinion

952 So.2d 273 (2006)

James Leslie HENDERSON, Appellant,
v.
Stacey Gordon HENDERSON, Appellee.

No. 2004-CA-01277-COA.

Court of Appeals of Mississippi.

November 21, 2006.

*275 John Robert White, Ridgeland, attorney for appellant.

William R. Wright, W. Benton Gregg, Jackson, attorneys for appellee.

EN BANC.

ON MOTION FOR REHEARING

MYERS, P.J., for the Court.

¶ 1. The motion for rehearing is denied, and the original opinion is withdrawn and the present opinion is substituted in lieu thereof. On May 24, 2004, the Madison County Chancery Court refused to grant Jim Henderson and Stacey Henderson a divorce, awarded Stacey sole legal and physical custody of their two minor children, Luke Henderson and Cash Henderson, subject to Jim's visitation rights and ordered Jim to pay Stacey $2,000 per month in child support and $1,000 per month in spousal support along with her attorney fees accrued during a contempt hearing as a result of him not following a previous order entered by the court. Finding no error, we affirm the ruling of the chancery court.

FACTS

¶ 2. Jim and Stacey were married on April 26, 2000. This was the second marriage for Jim and third for Stacey. Jim was a resident at the University of Mississippi Medical Center in Jackson and Stacey was a nurse anesthetist. Stacey had one son, Tucker, by a previous marriage and Jim had no children. Shortly after the two were married, Jim accepted a fellowship in Birmingham, Alabama. Stacey stayed behind in Jackson because she was pregnant with their first son, Luke, who was born on December 16, 2000. During Jim's fellowship, he traveled to Jackson two to three weekends a month. Jim returned to Jackson in August of 2001. Jim *276 worked as an emergency room physician and Stacey as a nurse anesthetist which allowed them flexible work schedules so that someone was always able to care for Luke. A month before Cash, their second son, was born, Stacey and Jim separated and Stacey filed a complaint for divorce and motion for temporary relief on January 23, 2002. These proceedings were postponed due to the birth of Cash and their attempted reconciliation.

¶ 3. On January 2, 2003, Stacey filed a motion for an emergency temporary hearing and as a result an agreed order of temporary custody was entered on January 3, 2003. That order provided for shared custody and each party was forbidden to consume alcohol while driving a vehicle with the children in it. The chancellor entered another temporary order on February 6, 2003, which awarded both Stacey and Jim joint legal and physical custody of the children. During this time period there were numerous accusations by both parties of alcohol and drug use. After an altercation which resulted in assault charges being filed during an exchange of the boys, Stacey filed a motion for an emergency temporary hearing on March 31, 2003. As a result Jim filed his response along with a counterclaim which resulted in the chancellor, on June 13, 2003, entering an agreed temporary order granting Jim legal and physical custody of the boys but both parties retained visitation.

¶ 4. Other temporary motions were filed which resulted in Jim retaining custody which was granted to him on June 13, 2003, until the case went to trial. On November 14, 2003, Stacey filed an amended complaint for divorce adding grounds of uncondoned adultery and constructive desertion.

¶ 5. The case went to trial on January 20, 22 and February 2, 2004. Jim hired four different attorneys during this domestic dispute; therefore, Jim moved for three different continuances which the chancellor denied. The chancellor ruled that Stacey failed to prove any of her grounds for divorce, so that portion of the case was dismissed. After hearing testimony from both parents, the guardian ad litem and other witnesses, the chancellor granted legal and physical custody of both children to Stacey with standard visitation given to Jim. The chancellor also ordered Jim to pay child support in the amount of $2,000 monthly and temporary spousal support in the amount of $1,000. The chancellor held Jim in contempt for past due alimony in the amount of $7,000 and for allowing someone of the opposite sex to spend the night when he had the children in violation of a court order. As a result of this contempt, Jim was ordered to pay Stacey's attorney fees for the contempt proceedings.

¶ 6. Aggrieved by the chancery court's ruling, Jim appeals to this Court raising the following nine issues:

I. THE CHANCELLOR ABUSED HIS DISCRETION BY OVERRULING JIM'S THREE MOTIONS FOR CONTINUANCE.
II. THE CHANCELLOR ERRED IN REFUSING TO GRANT JIM'S ORE TENUS MOTION FOR RECUSAL.
III. THE CHANCELLOR ERRONEOUSLY APPLIED THE ALBRIGHT FACTORS AND SHOULD HAVE AWARDED LEGAL AND PHYSICAL CUSTODY OF THE CHILDREN TO JIM.
IV. THE CHANCELLOR'S AWARD OF "STANDARD" VISITATION TO JIM FAILS TO PROVIDE HIM WITH ADEQUATE VISITATION WITH HIS CHILDREN.
*277 V. THE CHILD SUPPORT AWARDED BY THE CHANCELLOR IS EXCESSIVE AND IS NOT BASED ON A PROPER FINDING BY THE COURT.
VI. THE CHANCELLOR ABUSED HIS DISCRETION IN OVERRULING JIM'S MOTION TO MODIFY TEMPORARY SPOUSAL SUPPORT AND IN GRANTING STACEY'S MOTIONS FOR CONTEMPT.
VII. THE CHANCELLOR ABUSED HIS DISCRETION IN FINDING JIM IN CONTEMPT OF COURT FOR ALLOWING SAMANTHA McDUFFY TO SPEND THE NIGHT AT HIS HOME.
VIII. THE CHANCELLOR ABUSED HIS DISCRETION BY ORDERING HIM TO PAY A PORTION OF STACEY'S ATTORNEY FEES.
IX. THE CUMULATIVE EFFECT OF THE CHANCELLOR'S ERRORS WARRANTS REVERSAL OF THE CASE.

DISCUSSION

I. THE CHANCELLOR ABUSED HIS DISCRETION BY OVERRULING JIM'S THREE MOTIONS FOR CONTINUANCE.

¶ 7. Jim argues that he was prejudiced as a result of the chancellor denying his three motions for continuance. He claims that he lacked the opportunity to prepare witnesses; however, he does not show how this alleged lack of preparation prejudiced his case. The grant or denial of a continuance is within the discretion of the trial court. McDonald v. McDonald, 850 So.2d 1182, 1188(¶ 20) (Miss.Ct.App. 2002). The only time this Court will overturn the denial for a continuance is when manifest injustice has occurred. Hatcher v. Fleeman, 617 So.2d 634, 639 (Miss.1993). Prejudice must result from the denial in order to have that decision reversed. Dew v. Langford, 666 So.2d 739, 746 (Miss. 1995). This case had been pending for over a year giving Jim ample time to prepare witnesses, and Jim changed attorneys numerous times. See Weeks v. Weeks, 832 So.2d 583, 585-86(¶ 9) (Miss.Ct.App.2002).

¶ 8. Jim states that he was entitled to a continuance after Paul Davey, a counselor who evaluated the children and both parents, changed his recommendations regarding the custody of the children after further observation of the children. However, the chancellor struck this "Second Addendum to Evaluation Report" which was prepared by Davey; therefore, no continuance was needed. Jim also moved for a continuance so that he could compel testimony of the expert who had performed DNA testing done on a piece of hair which he allegedly got from Stacey's hairbrush in order to prove her cocaine use. The chancellor did not err in denying this request because it was undisputed that Jim failed to timely disclose the identity of the expert witness who purportedly would have testified that the hair sample was probative of Stacey using cocaine.

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Cite This Page — Counsel Stack

Bluebook (online)
952 So. 2d 273, 2006 WL 3361836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-henderson-missctapp-2006.