Kimbrough v. Kimbrough

76 So. 3d 715, 2011 Miss. App. LEXIS 250, 2011 WL 1648186
CourtCourt of Appeals of Mississippi
DecidedMay 3, 2011
DocketNo. 2009-CA-01019-COA
StatusPublished
Cited by17 cases

This text of 76 So. 3d 715 (Kimbrough v. Kimbrough) 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
Kimbrough v. Kimbrough, 76 So. 3d 715, 2011 Miss. App. LEXIS 250, 2011 WL 1648186 (Mich. Ct. App. 2011).

Opinion

GRIFFIS, P.J., for the Court:

¶ 1. Robert Earl Kimbrough and Bobbie Sue Kimbrough agreed to a divorce based on irreconcilable differences. They submitted to the chancellor the issues of property division and custody of their five-year-old daughter, Kaitlin Suzanne Kimbrough. The chancellor divided the marital property and awarded sole physical custody of the daughter to Robert, with joint legal custody and visitation awarded to Bobbie Sue. Bobbie Sue now appeals the award of custody to Robert and certain parts of the property division. Robert cross-appeals and contests other parts of the property division. We find no reversible error and affirm.

FACTS

¶ 2. Robert and Bobbie Sue were married on April 12, 2002. Bobbie Sue had a [718]*718son from a previous relationship, named Drew, who was born on September 21, 1995. Robert and Bobbie Sue had a daughter, Kaitlin, who was born on July 30, 2003.

¶ 3. They separated in July 2007. Bobbie Sue filed for divorce that same month.

¶ 4. Prior to the marriage, Robert owned a tract of land in Saltillo, Mississippi. Robert’s house and his business, a motorcycle-repair shop called the “Motorcycle Doctor,” were located on the property. During the marriage, Robert, Bobbie Sue, Drew, and Kaitlin lived in the house, and Robert continued to operate his business.

¶ 5. Robert and Bobbie Sue decided to make additions to the house and took out a mortgage for that purpose in the amount of $56,000. Over the next twenty-two months, prior to their separation, they each paid $200 a month on the mortgage. Bobbie Sue’s payments totaled $4,400.

¶ 6. In the property division, the chancellor classified the house as marital property and determined the equity to be $166,000. The chancellor awarded the house to Robert and awarded Bobbie Sue $4,400 as her equitable interest, to be paid by Robert in cash. The chancellor classified the business as Robert’s separate property.

¶ 7. Robert and Bobbie Sue also owned several pieces of personal property. Prior to the marriage, Robert acquired a 2001 GMC Sierra pickup truck, a 1992 Chevrolet Motorcoach, and a 2000 Suzuki four-wheeler. The chancellor classified these items as marital property. Robert’s Rule 8.05 financial disclosure statement valued the truck at $32,000, the motorcoach at $35,000, and the four-wheeler at $6,000. Robert now claims that the “values” he listed in his disclosure were the prices he had paid for the items, not his estimate of their current value, which would be considerably less. The chancellor adopted the values used in Robert’s disclosure and awarded the items to Robert, with a one-half equitable interest to Bobbie Sue, to be paid by Robert in cash. The effect was that the parties split the equity in these items for a total of $36,500 each.

¶ 8. During the marriage, Robert and Bobbie Sue acquired a 2002 GMC Yukon, a pontoon boat, a camper, a tractor, a die machine, and a lift board. The chancellor classified these items as marital property. The Yukon was valued at $10,000. The boat and camper, collectively, were valued at $9,000. The tractor was valued at $4,500. The die machine and lift board, collectively, were valued at $1,741. The chancellor awarded the Yukon, the boat, and the camper to Bobbie Sue with no equitable interest to Robert. The chancellor awarded the tractor, die machine, and lift board to Robert with a one-half equitable interest to Bobbie Sue, to be paid by Robert in cash. For these items, Bobbie Sue received $22,120.50 of the equity, while Robert received $3,120.50.

¶ 9. Bobbie Sue had a 401(k) retirement account through her employer, Mac’s Tires. The chancellor classified the account as marital property. He determined the value of the account was unknown, even though Bobbie Sue had testified that it was worth between $8,000 and $11,000. The chancellor awarded the account to Bobbie Sue with no equitable interest to Robert.

¶ 10. To summarize the property division, excluding the 401(k), the chancellor determined the marital property had a total value of $264,241. Robert was awarded assets valued at $201,220.50, and Bobbie Sue was awarded assets valued at $63,020.50.

¶ 11. Most of the testimony, during a lengthy trial, focused on the issue of who would have custody of Kaitlin. Four main [719]*719points were developed. First, both Robert and Bobbie Sue had substance-abuse problems. During Uhe marriage, Robert drank several beers daily, while Bobbie Sue smoked marijuana daily. Both claimed to have stopped after the separation. Second, Robert’s witnesses testified that he was the more attentive of the two parents and that he was the primary caregiver. Bobbie Sue’s employment at Mac’s Tires required her to be at work from approximately 8:80 a.m. to 5:00 p.m. five days a week, while Robert’s self-employment at the Motorcycle Doctor gave him greater flexibility and allowed him more time with Kaitlin. Third, Bobbie Sue had committed post-separation adultery with two different men. She carried Kaitlin on outings with her boyfriends several times. Fourth, Robert had been physically violent toward Bobbie Sue. Two different incidents were described. In one, Bobbie Sue sustained slight bruising on her arm after Robert grabbed her, and in the other, Robert threatened to punch her but did not.

¶ 12. The chancellor considered the evidence, applied the Albright factors, and found that it was in Kaitlin’s best interest for Robert to have sole physical custody, with joint legal custody and visitation awarded to Bobbie Sue. The appeal is from this judgment.

STANDARD OF REVIEW

¶ 13. This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (¶ 5) (Miss.2002).

ANALYSIS

1. Chancellor Littlejohn’s Recusal

¶ 14. This case was assigned to Chancellor Talmadge Littlejohn. Chancellor Littlejohn heard one day of testimony and then recused himself. The record does not disclose the reasons for his recusal. The case was then reassigned to Chancellor John Hatcher. Chancellor Hatcher heard five days of testimony before he entered the judgment. The parties did not ask for or obtain a transcript of the hearing before Chancellor Littlejohn. Neither party made a transcript available to Chancellor Hatcher.

¶ 15. Bobbie Sue claims that it was reversible error for Chancellor Hatch-er to render judgment without considering the testimony elicited before Chancellor Littlejohn. Bobbie Sue, however, cites no legal authority. The Mississippi Supreme Court has held:

Failure to cite any authority is a procedural bar, and this Court is under no obligation to consider the assignment of error. Mississippi Rule of Appellate Procedure [28(a)(6) ] requires that the argument in an appellant’s brief must contain “the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied upon.”

Owen v. Owen, 928 So .2d 156, 168 (¶ 33) (Miss.2006) (internal citations omitted). Accordingly, this issue is waived.

¶ 16.

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Bluebook (online)
76 So. 3d 715, 2011 Miss. App. LEXIS 250, 2011 WL 1648186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimbrough-v-kimbrough-missctapp-2011.