Osborn v. Osborn

724 So. 2d 1121, 1998 WL 881797
CourtCourt of Appeals of Mississippi
DecidedDecember 18, 1998
Docket96-CA-00594 COA
StatusPublished
Cited by4 cases

This text of 724 So. 2d 1121 (Osborn v. Osborn) 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
Osborn v. Osborn, 724 So. 2d 1121, 1998 WL 881797 (Mich. Ct. App. 1998).

Opinion

724 So.2d 1121 (1998)

Raymond OSBORN, Appellant,
v.
Susan Janet OSBORN, Appellee.

No. 96-CA-00594 COA.

Court of Appeals of Mississippi.

December 18, 1998.

*1122 James Travis Belue, Iuka, Attorney for Appellant.

Eugene B. Gifford, Jr., Rhonda N. Allred, Booneville, Attorneys for Appellee.

BEFORE THOMAS, P.J., KING AND PAYNE, JJ.

KING, J., for the Court:

¶ 1. The Tishomingo County Chancery Court granted Mrs. Osborn a divorce on the ground of adultery and ordered, inter alia, that Mr. Osborn pay $200 in monthly child support, $300 a month in periodic alimony, and $199.44 toward Mrs. Osborn's car loan.

¶ 2. Mr. Osborn has appealed this judgment, raising the following issues:

1. Whether it was manifest error and an abuse of discretion for the trial judge to deviate from the statutory guidelines and award child support in the amount of $200 per month.
2. Whether it was manifest error and an abuse of discretion for the trial judge to order the Appellant to pay $200 per month *1123 child support, $199.44 per month automobile loan, and $300 per month in periodic alimony when such payments comprised 89.7% of Appellant's gross monthly income.
3. Whether it was manifest error and an abuse of discretion for the trial judge to award $1000 in attorney's fees absent a finding of reasonableness of said attorney fees and Appellee's inability to pay.

¶ 3. Mrs. Osborn has cross-appealed, citing the following issues:

1. Whether it was manifest error and an abuse of discretion for the trial judge to only award $300 per month in periodic alimony in light of proof that Appellant's income, assets, and earning capacity greatly exceeded that of the Appellee.
2. Whether it was manifest error and an abuse of discretion for the trial judge to only award $200 in monthly child support in light of the child's substantial needs and Appellee's inability to provide for those needs.
3. Whether it was manifest error and an abuse of discretion for the trial judge to only award $1000 in attorney fees.

STATEMENT OF FACTS

¶ 4. The parties were married on December 12, 1972, and separated on April 27, 1995. Two children were born to this union, one of whom was a minor at the time of divorce. Mr. Osborn filed for divorce on September 18, 1995, alleging habitual cruel and inhuman treatment and irreconcilable differences. On October 13, 1995, Mrs. Osborn counter-sued alleging adultery, habitual cruel and inhuman treatment, and irreconcilable differences.

¶ 5. The chancellor entered a temporary order granting Mrs. Osborn custody of the parties' minor child, exclusive use of the marital residence, and the cars driven by Mrs. Osborn and the minor child. The chancellor ordered Mr. Osborn to pay $300 per month in child support and to pay the mortgage, taxes, and insurance on the marital residence. Mr. Osborn was also ordered to pay the indebtedness on the vehicles driven by Mrs. Osborn and the minor child, to maintain hospitalization coverage on Mrs. Osborn and the child, and to pay all future medical expenses incurred by Mrs. Osborn and the minor child.

¶ 6. On March 14, 1996, Mrs. Osborn filed a contempt action against Mr. Osborn for failure to comply with the chancellor's temporary order.

¶ 7. On May 2, 1996, the court held a joint hearing on the contempt citation and complaint for divorce.

¶ 8. The chancellor entered a final judgment of divorce in favor of Mrs. Osborn on the ground of adultery. Mrs. Osborn was awarded custody of the minor child, child support in the amount of $200 per month, periodic alimony in the amount of $300 per month for a period of 36 months, one-half the proceeds from the sale of the marital domicile, one-half the value of Mr. Osborn's retirement fund at the time of disbursement, and one-half the redemption value of church bonds jointly held by the parties. Mr. Osborn was ordered to pay the $199.44 monthly note on the vehicle driven by Mrs. Osborn[1], maintain medical coverage on the minor child, and pay one-half of any medical bills of the minor child not covered by insurance.

¶ 9. Mr. Osborn was found in contempt of the temporary order and ordered to pay $1,475 in past due child support and $361.09 in past due utility bills.

¶ 10. After the instant appeal was perfected, this Court remanded this matter to the Tishomingo County Chancery Court to make findings regarding (1) the reasonableness of the child support award under our statutory guidelines, (2) the financial status of Raymond Osborn, and (3) the ability of Raymond Osborn to make the payment. This Court has received the chancellor's supplementation of the record and now proceeds to address this matter on its merits.

ANALYSIS

STANDARD OF REVIEW

¶ 11. In reviewing domestic relations cases, this Court "will not disturb the chancellor's findings unless manifestly wrong, clearly erroneous, *1124 or if the chancellor applied an erroneous legal standard." Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994), (citing McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994)).

I(A). WHETHER IT WAS MANIFEST ERROR AND AN ABUSE OF DISCRETION FOR THE TRIAL JUDGE TO DEVIATE FROM THE STATUTORY GUIDELINES AND AWARD CHILD SUPPORT IN THE AMOUNT OF $200 PER MONTH.

¶ 12. Mr. Osborn argues on appeal that the chancellor erred in failing to consider the child support award together with all economic awards. Mr. Osborn suggests that this Court should reverse the chancellor's child support award because it exceeds the child support guidelines and the deviation was not supported by written findings or the substantial evidence. In support of this argument, Mr. Osborn cites his unemployment status at the time of the hearing.

¶ 13. Although we disagree with Mr. Osborn's argument that the chancellor was bound to set his child support obligation based on the amount of unemployment compensation being received at the time of the hearing, we find the remainder of his argument to be meritorious.

¶ 14. Mr. Osborn has worked as an electrician in the construction industry for 18 years. Due to the nature of his employment, Mr. Osborn regularly experienced brief periods of unemployment.[2] Prior to his December 14, 1995 lay off, Mr. Osborn had been employed by Stone and Webster Engineering Corporation for approximately three years. Following the lay off from Stone and Webster, Mr. Osborn worked at Doleac Electric for approximately three months after which he resumed employment with Stone and Webster. Eleven days prior to the hearing on the merits, Mr. Osborn experienced yet another lay off from Stone and Webster. At the time of the trial, his income was $180 per week in unemployment compensation.

¶ 15. The chancellor ordered Mr. Osborn to pay $200 per month in child support, maintain medical insurance on the minor child, and pay one-half of all medical and dental expenses of the minor child not covered by insurance. In his order, the chancellor failed to specifically determine on the record Mr. Osborn's adjusted gross income as mandated by Miss.Code Ann. § 43-19-101(3)(a). For this reason, this Court remanded this matter for additional hearings. Upon remand, the chancellor made the following findings of fact and conclusions of law:

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