Randy Scott Thomas v. Brandie Jean Brown Thomas
This text of Randy Scott Thomas v. Brandie Jean Brown Thomas (Randy Scott Thomas v. Brandie Jean Brown Thomas) 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.
Opinion
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-00175-COA
RANDY SCOTT THOMAS APPELLANT/ CROSS-APPELLEE
v.
BRANDIE JEAN BROWN THOMAS APPELLEE/ CROSS-APPELLANT
DATE OF JUDGMENT: 01/24/2017 TRIAL JUDGE: HON. JACQUELINE ESTES MASK COURT FROM WHICH APPEALED: PONTOTOC COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: RICHARD SHANE McLAUGHLIN ATTORNEY FOR APPELLEE: JAK McGEE SMITH NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: ON DIRECT APPEAL: AFFIRMED AS MODIFIED. ON CROSS-APPEAL: AFFIRMED IN PART, REVERSED AND REMANDED IN PART - 06/11/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLTON AND J. WILSON, P.JJ., AND TINDELL, J.
J. WILSON, P.J., FOR THE COURT:
¶1. Randy and Brandie Thomas consented to an irreconcilable differences divorce and
agreed that the chancery court would determine custody of their three minor children, set
visitation, award child support, equitably divide the marital estate, and decide their claims
for attorney’s fees. The chancery court resolved all of the stipulated issues in a final
judgment and subsequent order addressing the parties’ post-trial motions. Randy appealed,
and Brandie cross-appealed. Randy alleges that the chancellor committed six errors, while
Brandie raises seven additional issues. For purposes of analysis and discussion, we have combined a number of the parties’ claims.
¶2. Randy argues that the chancellor erred by awarding Brandie physical custody of the
children, while Brandie argues that the chancellor erred by awarding Randy too much
visitation. We find no clear error or abuse of discretion in either ruling.
¶3. Randy argues that the chancellor overstated his income and ordered him to pay too
much child support, while Brandie argues that the chancellor understated Randy’s income
and did not order him to pay enough support. Brandie also argues that the chancellor erred
by granting Randy a credit against his child support arrearage for a lump sum payment that
he received for past due Social Security benefits for their children on account of his
disability. We find no clear error or abuse of discretion in the chancellor’s findings regarding
Randy’s income or prospective child support obligation. However, we conclude that the
chancellor erred in part in calculating Randy’s credit against his child support arrearage. We
remand for further proceedings on that issue only.
¶4. Randy challenges the fairness of the division of the marital estate. We find no error
or abuse of discretion in the chancellor’s analysis. We modify the judgment only to clarify
ownership of a Yamaha “Rhino” Ranger ATV and a motorcycle.
¶5. Finally, on cross-appeal, Brandie argues that the chancellor erred by awarding Randy
one-half of the income tax deductions for the children and by awarding her only $1,000 in
attorney’s fees. We find no error or abuse of discretion in either ruling.
¶6. Thus, we modify the judgment of the chancery court to clarify ownership of the ATV
and motorcycle, and we reverse and remand for recalculation of Randy’s child support
2 arrearage and disposition of the lump sum payment of past due Social Security benefits for
the children. In all other respects, the judgment of the chancery court is affirmed.
FACTS AND PROCEDURAL HISTORY
¶7. Randy and Brandie were married on June 21, 1997. The couple had three children,
Ashlyn, who was sixteen years old as of trial, Allyson, who was fourteen years old as of trial,
and Anna, who was twelve years old as of trial.
¶8. Randy and Brandie first separated when Brandie filed for divorce in November 2008.
Brandie was in the midst of an affair with Johnny Rayburn and had become pregnant with
his child. However, after Brandie left the marital home, Randy asked her to return. Brandie
told Randy that she was pregnant and had been having an affair, but she lied to Randy and
told him that she was having an affair with Michael Hall. In fact, Brandie never had a sexual
relationship with Hall, who was married to one of her friends. Brandie testified that she lied
to Randy about the identity of her paramour because she did not want to break up Rayburn’s
marriage and family. Brandie also testified that she thought that there was a slight chance
that Randy could be the father of her child even though Randy had undergone a vasectomy
years earlier. Randy told Brandie that he wanted their family to stay together, and he forgave
her. Brandie gave birth to a son, Austin, and Randy and Brandie raised him as their own.1
¶9. During the marriage Randy worked for UPS and as a real estate appraiser. In 2010,
he was injured on the job at UPS. He was prescribed several medications, including opiates,
for pain from the injury and resulting nerve damage. He was also prescribed medications to
1 Unbeknownst to Randy, Brandie took Austin for visits with Rayburn.
3 help him sleep and for anxiety and depression. In January 2013, Randy filed for Social
Security disability benefits, and he was eventually approved for benefits retroactive to
January 2012. In April 2015, Randy received lump sums of $40,666 for past due benefits
due to him and $21,038 for past due benefits for his children. Randy claims that he spent the
$40,666 to support himself and his family over the course of the next six months, but he
produced no other evidence to substantiate that claim. Randy testified that the lump sum for
his children was still in a bank account. In April 2015, Randy also began receiving monthly
disability benefit payments of $1,329 for himself and $700 for his children.
¶10. After his injury, Randy was no longer able to work at UPS, but he continued to work
as a self-employed real estate appraiser. He also leased residential properties through
Thomas Properties LLC, as its sole member.2 By the time of trial, Thomas Properties owned
seven single-family homes and a trailer park with seven mobile homes.
¶11. Brandie worked as a real estate agent during the marriage. On her Rule 8.05
statement, she reported gross monthly income of $2,600.50. She had earned gross
commissions of $79,240 in 2014, but her earnings decreased in 2015.
¶12. Brandie testified that Randy began abusing his painkillers while also drinking six to
nine beers everyday in the shop behind their house. She testified that Randy liked to grill
while he worked in the shop, but by dinner time he would be so intoxicated that he would
drop trays of food on the ground and could not hold his eyes open at the dinner table. There
2 At trial, Randy claimed that his father owned fifty percent of Thomas Properties. However, there is no evidence to support Randy’s claim or to show that anyone else had any interest in the LLC. Randy’s Schedule K-1 for 2013—the last year for which he produced tax documents—showed that he owned one hundred percent of Thomas Properties.
4 was also testimony that Randy was arrested at least three times3 while under the influence of
drugs and alcohol. In addition, Randy’s mother had to call an ambulance after she found him
lying unresponsive on her porch. Brandie testified that Randy’s drinking habits negatively
impacted the children. Their youngest daughter, Anna, would lock herself in her room and
cry when Randy would become drunk and angry. Brandie had to limit when the children
could have friends over because the children were embarrassed by Randy’s outbursts.
¶13.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-00175-COA
RANDY SCOTT THOMAS APPELLANT/ CROSS-APPELLEE
v.
BRANDIE JEAN BROWN THOMAS APPELLEE/ CROSS-APPELLANT
DATE OF JUDGMENT: 01/24/2017 TRIAL JUDGE: HON. JACQUELINE ESTES MASK COURT FROM WHICH APPEALED: PONTOTOC COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: RICHARD SHANE McLAUGHLIN ATTORNEY FOR APPELLEE: JAK McGEE SMITH NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: ON DIRECT APPEAL: AFFIRMED AS MODIFIED. ON CROSS-APPEAL: AFFIRMED IN PART, REVERSED AND REMANDED IN PART - 06/11/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLTON AND J. WILSON, P.JJ., AND TINDELL, J.
J. WILSON, P.J., FOR THE COURT:
¶1. Randy and Brandie Thomas consented to an irreconcilable differences divorce and
agreed that the chancery court would determine custody of their three minor children, set
visitation, award child support, equitably divide the marital estate, and decide their claims
for attorney’s fees. The chancery court resolved all of the stipulated issues in a final
judgment and subsequent order addressing the parties’ post-trial motions. Randy appealed,
and Brandie cross-appealed. Randy alleges that the chancellor committed six errors, while
Brandie raises seven additional issues. For purposes of analysis and discussion, we have combined a number of the parties’ claims.
¶2. Randy argues that the chancellor erred by awarding Brandie physical custody of the
children, while Brandie argues that the chancellor erred by awarding Randy too much
visitation. We find no clear error or abuse of discretion in either ruling.
¶3. Randy argues that the chancellor overstated his income and ordered him to pay too
much child support, while Brandie argues that the chancellor understated Randy’s income
and did not order him to pay enough support. Brandie also argues that the chancellor erred
by granting Randy a credit against his child support arrearage for a lump sum payment that
he received for past due Social Security benefits for their children on account of his
disability. We find no clear error or abuse of discretion in the chancellor’s findings regarding
Randy’s income or prospective child support obligation. However, we conclude that the
chancellor erred in part in calculating Randy’s credit against his child support arrearage. We
remand for further proceedings on that issue only.
¶4. Randy challenges the fairness of the division of the marital estate. We find no error
or abuse of discretion in the chancellor’s analysis. We modify the judgment only to clarify
ownership of a Yamaha “Rhino” Ranger ATV and a motorcycle.
¶5. Finally, on cross-appeal, Brandie argues that the chancellor erred by awarding Randy
one-half of the income tax deductions for the children and by awarding her only $1,000 in
attorney’s fees. We find no error or abuse of discretion in either ruling.
¶6. Thus, we modify the judgment of the chancery court to clarify ownership of the ATV
and motorcycle, and we reverse and remand for recalculation of Randy’s child support
2 arrearage and disposition of the lump sum payment of past due Social Security benefits for
the children. In all other respects, the judgment of the chancery court is affirmed.
FACTS AND PROCEDURAL HISTORY
¶7. Randy and Brandie were married on June 21, 1997. The couple had three children,
Ashlyn, who was sixteen years old as of trial, Allyson, who was fourteen years old as of trial,
and Anna, who was twelve years old as of trial.
¶8. Randy and Brandie first separated when Brandie filed for divorce in November 2008.
Brandie was in the midst of an affair with Johnny Rayburn and had become pregnant with
his child. However, after Brandie left the marital home, Randy asked her to return. Brandie
told Randy that she was pregnant and had been having an affair, but she lied to Randy and
told him that she was having an affair with Michael Hall. In fact, Brandie never had a sexual
relationship with Hall, who was married to one of her friends. Brandie testified that she lied
to Randy about the identity of her paramour because she did not want to break up Rayburn’s
marriage and family. Brandie also testified that she thought that there was a slight chance
that Randy could be the father of her child even though Randy had undergone a vasectomy
years earlier. Randy told Brandie that he wanted their family to stay together, and he forgave
her. Brandie gave birth to a son, Austin, and Randy and Brandie raised him as their own.1
¶9. During the marriage Randy worked for UPS and as a real estate appraiser. In 2010,
he was injured on the job at UPS. He was prescribed several medications, including opiates,
for pain from the injury and resulting nerve damage. He was also prescribed medications to
1 Unbeknownst to Randy, Brandie took Austin for visits with Rayburn.
3 help him sleep and for anxiety and depression. In January 2013, Randy filed for Social
Security disability benefits, and he was eventually approved for benefits retroactive to
January 2012. In April 2015, Randy received lump sums of $40,666 for past due benefits
due to him and $21,038 for past due benefits for his children. Randy claims that he spent the
$40,666 to support himself and his family over the course of the next six months, but he
produced no other evidence to substantiate that claim. Randy testified that the lump sum for
his children was still in a bank account. In April 2015, Randy also began receiving monthly
disability benefit payments of $1,329 for himself and $700 for his children.
¶10. After his injury, Randy was no longer able to work at UPS, but he continued to work
as a self-employed real estate appraiser. He also leased residential properties through
Thomas Properties LLC, as its sole member.2 By the time of trial, Thomas Properties owned
seven single-family homes and a trailer park with seven mobile homes.
¶11. Brandie worked as a real estate agent during the marriage. On her Rule 8.05
statement, she reported gross monthly income of $2,600.50. She had earned gross
commissions of $79,240 in 2014, but her earnings decreased in 2015.
¶12. Brandie testified that Randy began abusing his painkillers while also drinking six to
nine beers everyday in the shop behind their house. She testified that Randy liked to grill
while he worked in the shop, but by dinner time he would be so intoxicated that he would
drop trays of food on the ground and could not hold his eyes open at the dinner table. There
2 At trial, Randy claimed that his father owned fifty percent of Thomas Properties. However, there is no evidence to support Randy’s claim or to show that anyone else had any interest in the LLC. Randy’s Schedule K-1 for 2013—the last year for which he produced tax documents—showed that he owned one hundred percent of Thomas Properties.
4 was also testimony that Randy was arrested at least three times3 while under the influence of
drugs and alcohol. In addition, Randy’s mother had to call an ambulance after she found him
lying unresponsive on her porch. Brandie testified that Randy’s drinking habits negatively
impacted the children. Their youngest daughter, Anna, would lock herself in her room and
cry when Randy would become drunk and angry. Brandie had to limit when the children
could have friends over because the children were embarrassed by Randy’s outbursts.
¶13. On February 21, 2014, Randy was arrested and charged with domestic violence. The
parties offered different versions of the events leading up to the arrest. Randy testified that
he was up late doing appraisal work and watching television in the living room while Brandie
was asleep in their bedroom with Allyson and Austin. Randy claimed that Brandie came into
the living room, threw a remote control at him, and slapped him in the face. Brandie then ran
to the couple’s bedroom where Allyson and Austin were still sleeping, locked the door, and
called 911. Randy then kicked down the bedroom door. Randy testified that, at that point,
he realized that he had lost his temper, so he turned around and walked back to the living
room. According to Randy, he then went outside and retrieved a gun that he kept in his
truck. Randy testified that he typically kept his guns locked in a safe in his bedroom closet,
but this particular gun was in his truck because he had recently “traded for it.” He brought
the gun back inside to inspect the gun’s handle, which was cracked. According to Randy,
he did not have the gun in his hand when he kicked down the bedroom door; rather, he
3 Randy was arrested in February 2014 for domestic violence, in October 2014 for disorderly conduct after assaulting a police officer, and in February 2015 for violating a restraining order that prohibited him from going to the marital home.
5 retrieved the gun only after he kicked down the door.
¶14. Brandie testified that she was in the bedroom asleep with Allyson and Austin when
she awakened to the sound of Randy “being loud in the living room.” She said that it
sounded like he was arguing with someone even though he was alone. Randy suddenly
walked through the bedroom to the closet where he kept his gun safe. She heard the safe
open, and Randy turned on the lights in the bedroom. He stood next to the bed with a gun
and asked, “Where are the kids?” Brandie asked why he had a gun and asked him several
times to put it down. Randy then turned away and walked back to the living room. Brandie
retrieved her phone from the kitchen, ran back to her bedroom, locked the door, and called
911. Randy followed her, and when he realized that the bedroom door was locked, he
became very angry and kicked down the door. When the police arrived, Randy was sitting
in a chair in the living room with a loaded gun next to him on the coffee table. Brandie
testified that she took Allyson and Anna to counseling as a result of the incident.
¶15. After Randy’s arrest, Brandie filed for a domestic abuse protection order. The justice
court granted a protection order and ordered Randy to vacate the marital home. Randy
moved in with his parents, who lived nearby. Randy testified that he stopped using drugs and
drinking alcohol after his arrest. In April 2014, the couple reconciled, and Randy moved
back into the marital home with Brandie and their children.
¶16. The couple separated for a final time on October 21, 2014, when Brandie filed a
complaint for divorce and a motion for temporary emergency relief. Officers arrived at the
marital home around 8:30 p.m. on October 21, 2014, to serve Randy with a restraining order
6 and divorce papers. The officers’ supervisor instructed them not to let Randy out of their
sight because he was potentially dangerous and kept several guns in the home. When the
officers arrived they explained to Randy that they “had a restraining order that was going to
remove him from the house.” According to the officers, Randy was angry but went to gather
a few of his personal items. When he realized that the officers were following him, Randy
told them to wait outside. The officers told Randy that they were under orders to not let him
out of their sight. One of the officers testified that Randy “turned around angry and kind of
butted me, you know, like, with his belly.” Randy was arrested and pled guilty to disorderly
conduct. He left the marital home and moved back in with his parents.
¶17. On November 19, 2014, the court entered an agreed temporary order. Brandie was
granted temporary possession of the marital home and physical custody of the children.
Randy was granted visitation every other weekend and ordered to pay $600 per month in
temporary child support based on his reported income of $2,500 per month. The order stated
that the temporary child support award could be adjusted retroactively based on later-
presented evidence. The order also provided that Randy would remain under a restraining
order and was not to have any contact with Brandie except for visitation and school and
church activities involving the children.
¶18. In a pretrial deposition, Brandie admitted the truth about her affair with Johnny
Rayburn, and Rayburn subsequently filed a motion to intervene for a determination of
Austin’s paternity. The court granted Rayburn’s motion. On April 6, 2016, the parties
agreed to an order regarding the custody and paternity of Austin. Rayburn was adjudicated
7 to be Austin’s biological father. Brandie was granted physical and legal custody of Austin.
Randy was granted visitation with Austin consistent with his visitation schedule with his
daughters. The court dismissed Rayburn as a party but noted that he could pursue custody
or visitation in a separate filing.4
¶19. On April 6, 2016, Brandie and Randy also consented to an irreconcilable differences
divorce. They agreed to submit the issues of custody, visitation, child support, equitable
division of the marital estate, contempt, and attorney’s fees to the court for determination.
The trial, which began with two days of testimony in November 2015, continued on the
stipulated issues on April 6-7, 2016, April 11, 2016, and September 14, 2016.
¶20. Randy testified that he and Brandie shared parenting responsibilities prior to the
separation. However, Brandie testified that she was primarily responsible for taking the
children to school and extracurricular activities, shopping for their clothes, and helping them
with homework. She testified that Randy occasionally helped her with such tasks.
¶21. Brandie testified that awarding Randy primary custody of their daughters would not
be in the children’s best interest because Randy never sought professional help for his drug
and alcohol problems. Brandie opined that Randy was not sufficiently healthy or stable to
be the children’s primary caregiver. Brandie testified that she and her daughters have normal
parent-child relationships. She also testified that her daughters may now prefer to live with
Randy because he spends more money on them and spends more time with them now that he
is sober. She noted that Randy had bought the girls a pet monkey since the separation.
4 The court entered the agreed order on June 20, 2016, nunc pro tunc to April 6, 2016.
8 ¶22. Ashlyn (age sixteen at the time of trial) testified that she preferred to live with Randy
because she was very close to her father and they enjoyed the same activities. She testified
that she loved both of her parents equally and that she was not angry with Brandie about her
affair with Rayburn.
¶23. Anna (age twelve) also testified that she would prefer to live with Randy, although
she acknowledged that her father drank excessively prior to the separation. Anna testified,
“[M]om is so busy with her job, she’s on the phone a lot, and she is like going out to show
houses. And whenever we’re with daddy, he’s like playing games with us, and he’s not like
working on his job usually.” Anna also testified that she had not seen Randy drink at all
since her parents separated. She testified that Brandie was primarily responsible for taking
care of her and her siblings.
¶24. Allyson (age fourteen) did not state a preference as to physical custody. She did
testify that Brandie was primarily responsible for taking care of her and her siblings. All
three daughters testified that they wanted to stay together with each other and Austin.
¶25. On January 24, 2017, the chancery court entered a final judgment granting the parties
a divorce based on irreconcilable differences. Both parties filed post-trial motions, and on
April 7, 2017, the court entered a ruling disposing of all pending post-trial motions. In the
final judgment, as amended, the court awarded the parties joint legal custody of their three
children, awarded physical custody of the children to Brandie, and granted Randy “extensive
visitation”—including three weekends per month, alternate weeks in the summer, and
specified visitation during spring break and holidays. The court ordered Randy to pay a child
9 support arrearage of $9,882, with interest to accrue at an annual rate of eight percent. The
court ordered Randy to pay at least $500 per month toward the arrearage. The court also
ordered Randy to pay $702.50 per month in continuing child support. The court’s
calculations with respect to Randy’s child support obligations are discussed in more detail
below.
¶26. The chancery court also classified and valued Randy and Brandie’s property. The
court classified two mobile homes as Randy’s separate property. Randy had purchased the
mobile homes as rental properties after the entry of an agreed temporary order. All of the
parties’ other assets were classified as marital property. The court awarded Brandie marital
assets with a total net value of $379,771.64 and awarded Randy marital assets with a total
net value of $384,313.68. Brandie was awarded the marital home, with a net value of
$250,000, and twenty-eight percent of the value of Thomas Properties LLC. Randy was
ordered to pay Brandie for her share of Thomas Properties ($113,074.64) within 180 days.
Randy was awarded ownership of Thomas Properties, which was valued at $403,827.32, less
Brandie’s interest, for a net value of $290,755.68. Randy was also awarded his $40,666
lump sum payment from Social Security, which he claimed he had already spent.
¶27. Randy appealed, and Brandie cross-appealed. We have summarized their remaining
disagreements above. See supra ¶¶2-5. For the reasons explained below, we affirm the
chancery court’s final judgment with two exceptions: we clarify ownership of an ATV and
a motorcycle, and we remand for a recalculation of Randy’s child support arrearage and
disposition of the lump sum payment for the children’s Social Security benefits.
10 ANALYSIS
I. Child Custody
¶28. “A chancellor’s custody decision will be reversed only if it was manifestly wrong or
clearly erroneous, or if the chancellor applied an erroneous legal standard.” Smith v. Smith,
97 So. 3d 43, 46 (¶7) (Miss. 2012). “[T]his Court cannot reweigh the evidence and must
defer to the chancellor’s findings of the facts, so long as they are supported by substantial
evidence.” Hall v. Hall, 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014). Thus, on appeal
in a child custody case, the issue is not whether this Court “agrees with the chancellor’s
ruling,” but only whether “the chancellor’s ruling is supported by credible evidence.”
Hammers v. Hammers, 890 So. 2d 944, 950 (¶14) (Miss. Ct. App. 2004).
¶29. “[T]he polestar consideration in child custody cases is the best interest and welfare
of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). In evaluating the
child’s best interest, the chancellor must consider the following factors: (1) the age, health,
and sex of the child; (2) which parent had “continuity of care prior to the separation”; (3)
“which has the best parenting skills”; (4) which has “the willingness and capacity to provide
primary child care”; (5) both parents’ employment responsibilities; (6) the “physical and
mental health and age of the parents”; (7) the “emotional ties of parent and child”; (8) the
“moral fitness of the parents”; (9) the “home, school and community records of the child”;
(10) the child’s preference, if the child is at least twelve years old; (11) the “stability of the
home environment and employment of each parent”; and (12) any “other factors relevant to
the parent-child relationship” or the child’s best interest. Id.
11 ¶30. The chancellor must address each Albright factor that is applicable to the case. Powell
v. Ayars, 792 So. 2d 240, 244 (¶10) (Miss. 2001). However, the chancellor need not decide
that each factor favors one parent or the other. Weeks v. Weeks, 989 So. 2d 408, 411 (¶12)
(Miss. Ct. App. 2008). Nor does Albright require that “custody . . . be awarded to the parent
who ‘wins’ the most factors.” Blakely v. Blakely, 88 So. 3d 798, 803 (¶17) (Miss. Ct. App.
2012). “[T]he chancellor has the ultimate discretion to weigh the evidence the way [she] sees
fit.” Johnson v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003). We review the
chancellor’s application of the factors for manifest error, giving deference to the weight that
she assigned to each factor. Smith v. Smith, 206 So. 3d 502, 513 (¶24) (Miss. 2016).
¶31. In this case, the chancellor found that age, health, and sex of the children; the physical
and mental health of the parties; parenting skills; and other factors relevant to the parent-
child relationship favored Brandie. The chancellor found that the preferences of Ashlyn and
Anna “strongly favor[ed]” Randy with respect to Ashlyn and Anna. The chancellor found
other factors to be neutral and ultimately concluded that it was in the children’s best interest
for Brandie to have physical custody.
¶32. Randy argues that the chancellor “overemphasiz[ed]” his fault and unfairly “punished”
him for his history of drug and alcohol abuse when considering the physical and mental
health and moral fitness of the parties. Randy argues that the court’s consideration of his
prior conduct was inappropriate because he was no longer using drugs or alcohol at the time
of trial. Randy also argues that he has better parenting skills than Brandie and a greater
capacity to provide childcare. Finally, Randy argues that the chancellor erred by not
12 specifically stating on the record the reasons that she did not follow Ashlyn’s and Anna’s
preferences. We address these arguments in turn but find no error or abuse of discretion in
the chancellor’s ruling.
A. Physical and Mental Health of the Parties
¶33. The chancellor found that whereas Brandie is in good health, Randy has “ongoing
issues” from his injury at UPS and “currently draws disability benefits.” The court also
found that Randy had “exhibited problems related to the use of alcohol or prescription
medication,” which had “contributed to troubling behavior by Randy.” The court’s findings
are all supported by substantial evidence, and we find no error or abuse of discretion in the
court’s finding that this factor favors Brandie.
B. Moral Fitness of the Parties
¶34. The chancellor found that Brandie’s extramarital affair and her subsequent efforts to
coverup the identity of Austin’s father showed a high “level of deception.” However, the
chancellor also found that Randy’s “[m]ultiple instances of bizarre and frightening behavior,”
fueled by drugs and alcohol, “severely troubled the home.” The chancellor found that this
factor favored neither party. We find no error or abuse of discretion. The chancellor was not
required to make an apples-to-oranges comparison of the parties’ respective misconduct or
find that either of them “won” this factor. See Weeks, 989 So. 2d at 411 (¶12) (“[I]t is not
necessary for [the chancellor] to state who prevails under each factor.”).
C. Parenting Skills and Willingness and Capacity to Provide Primary Childcare
¶35. The chancellor found that “Brandie provides excellent care for the children” and “has
13 consistently taken the lead” in attending to their “medical and educational needs.” Indeed,
there was substantial evidence that Brandie was heavily involved in the children’s school,
church, and extracurricular activities. The chancellor found that “Randy has also assisted
with caring for the children, such as preparing dinner, helping with homework, transporting
the children to school and assisting with field trips, and teaching the children to hunt and
fish.” The chancellor stated that this factor could “favor either parent at different times in
the parties’ involvement with the children, and overall very slightly favors Brandie.” It was
up to the chancellor as the finder of fact to weigh the conflicting evidence and decide which
parent, if either, this factor favored. We find no manifest error or abuse of discretion in the
chancellor’s finding that it “very slightly favors Brandie.”
D. The Children’s Stated Preferences
¶36. The chancellor found that this factor strongly favored Randy as to Ashlyn and Anna,
who testified that they preferred to live with Randy, but favored neither party as to Allyson,
who did not state a preference. Randy recognizes that the chancellor was not bound by the
preferences of the children, but he argues that the chancellor’s ruling did not comply with the
requirements of Mississippi Code Annotated subsection 93-11-65(1)(a) (Rev. 2018).
¶37. Prior to 2006, subsection 93-11-65(1)(a) provided that if both parents were fit and
proper persons able to provide adequate care for the child, then a child twelve years of age
or older would “have the privilege of choosing the parent with whom he [or should would]
live.” Miss. Code Ann. § 93-11-65(1)(a) (Rev. 2004) (emphasis added). Applying that
version of the statute, our Supreme Court held that if a chancellor “denie[d] a child his choice
14 of custodial parent . . . , then the chancellor [was required] to make on-the-record findings
as to why the best interest of the child [would not be] served” by the child’s choice. Polk v.
Polk, 589 So. 2d 123, 130 (Miss. 1991).
¶38. In 2006, the Legislature eliminated the child’s “privilege of choosing.” See 2006
Miss. Laws ch. 431, § 1. As amended, the statute provides that if both parents are fit and
proper persons able to provide care, then “the chancellor may consider the preference of a
child twelve . . . years of age or older.” Miss. Code Ann. § 93-11-65(1)(a) (emphasis added).
The amendments to the statute also codified the requirement that the chancellor “place on the
record the reason or reasons for which the award of custody was made and explain in detail
why the wishes of any child were or were not honored.” Id. Under the amended version of
the statute, it is clear that “[t]he chancellor is not bound by the election of a minor child.”
Boyd v. Boyd, 83 So. 3d 409, 418 (¶31) (Miss. Ct. App. 2011). Rather, the child’s preference
is but one factor that a chancellor “may consider.”
¶39. In this case, the chancery court’s final judgment included a five-page Albright analysis
with reasoning and specific findings for each factor. The chancellor considered Randy’s
history of drug and alcohol use, his violent and unusual behavior, and his ability to care for
the children. The chancellor also considered Brandie’s extramarital affair, her involvement
in the children’s daily lives, and the desire of the children to continue to live with their half-
brother, Austin. The chancellor also considered the preferences of Ashlyn and Anna. The
chancellor weighed these various factors and stated in the final page of her analysis:
The Court takes into account that the three children share a half sibling, Austin, who is in the custody of Brandie. The four children previously
15 continually lived together as a family, and are very close. This factor favors keeping the children together.
The Court also takes into account the prior incidents of volatile behavior by Randy. . . .
Based on the Court’s assessment of [the] totality of the circumstances as established by credible proof, with an emphasis upon the credibility of the witnesses, the Court concludes the best interest of the children shall be served by Brandie and Randy being awarded joint legal [custody] of the children with Brandie being awarded their physical custody and Randy receiving extensive visitation.
In addition, the chancellor’s order on the parties’ post-trial motions made clear that “the
liberal visitation allowed to Randy was based largely on the testimony of the two children
who desired to live with him.”
¶40. We conclude that the chancellor’s thorough analysis—which addressed all relevant
factors, including the preferences of Ashlyn and Anna—is sufficient to satisfy section 93-11-
65. The chancellor found, based on the “totality of the circumstances,” that it was in the
children’s “best interest” for Brandie to have physical custody. However, the chancellor also
awarded Randy liberal visitation in an effort to accommodate the wishes of Ashlyn and
Anna. This was a sufficient statement of the chancellor’s reasons for her decision to award
custody to Brandie rather than to Randy. See Bennett v. Bennett, 242 So. 3d 210, 213 (¶¶12-
14) (Miss. Ct. App. 2018); Boyd v. Boyd, 83 So. 3d 409, 418-19 (¶¶31-33) (Miss. Ct. App.
2011); Phillips v. Phillips, 45 So. 3d 684, 694 (¶¶30-31) (Miss. Ct. App. 2010). Accordingly,
the chancellor’s custody decision is affirmed.
II. Visitation
¶41. “Visitation is a matter within the chancellor’s sound discretion.” Carson v. Butler,
16 168 So. 3d 1085, 1088 (¶14) (Miss. Ct. App. 2013) (quoting Tidmore v. Tidmore, 114 So.
3d 753, 763 (¶35) (Miss. Ct. App. 2013)). “The chancellor is charged with fashioning a
visitation schedule that is in the best interests of the children, and the chancellor’s visitation
decision is afforded great deference by this Court.” Id. In general, visitation with the
noncustodial parent should be liberal rather than restricted. As this Court recently
summarized,
[e]xcept in unusual circumstances, a noncustodial parent is entitled to unrestricted standard or liberal visitation. Standard visitation includes two weekends a month until Sunday afternoon and at least five weeks of summer visitation, plus some holiday visitation. Awarding less is an abuse of discretion unless there is concrete proof of actual harm to a child. Appropriate visitation restrictions often relate to abusive behavior, drug or alcohol abuse, or mental illness.
Michael v. Smith, 237 So. 3d 183, 189-90 (¶26) (Miss. Ct. App. 2018) (citations, quotation
marks, and brackets omitted).
¶42. On cross-appeal, Brandie argues that the chancellor erred by awarding Randy three
weekends of visitation per month, rather than the standard two weekends. However, as noted
above, the chancellor specifically stated that “the liberal visitation allowed to Randy was
based largely on the testimony of the two children who desired to live with him.” We find
no abuse of discretion in the chancellor’s decision to award an extra weekend a month of
visitation to allow Ashlyn and Anna to spend more time with their father.
¶43. Brandie primarily argues that the chancellor should not have granted “extra” visitation
in light of Randy’s history of drug and alcohol abuse and bizarre and frightening behavior.
However, Randy testified that he no longer uses drugs or alcohol, and the chancellor found
17 that Randy’s “appearance and demeanor at trial, and the testimony of the children established
[his prior] issues [with drugs and alcohol] appear to have been resolved.” There is
substantial evidence to support the chancellor’s factual finding, and there is no evidence that
an extra two days of visitation a month pose a risk of harm to the children.
III. Child Support
¶44. “[A]n award of child support is a matter within the discretion of the chancellor and
. . . will not be reversed unless the chancellor was manifestly wrong in his finding of fact or
manifestly abused his discretion.” Williams v. Williams, 264 So. 3d 722, 726-27 (¶12) (Miss.
2019) (quoting Clausel v. Clausel, 714 So. 2d 265, 266 (Miss. 1998)). “Furthermore, ‘[t]he
process of weighing evidence and arriving at an award of child support is essentially an
exercise in fact-finding, which customarily significantly restrains this Court’s review.’” Id.
at 727 (quoting Clausel, 714 So. 2d at 266-67). Randy and Brandie both challenge the
chancellor’s rulings on child support. Randy argues that the chancellor set his obligation too
high, while Brandie argues that the chancellor did not award sufficient support. Brandie also
argues that the chancellor erred by granting Randy credit against his child support arrearage
for the lump sum that he received for Social Security benefits for the children. We address
the parties’ respective arguments below.
A. Randy’s Arguments
¶45. Randy argues that the chancellor overstated his adjusted gross income for purposes
of calculating child support by overstating his income from various sources and by failing
to deduct the “ordinary and reasonable business expenses” of Thomas Properties. Randy
18 argues that this resulted in an overstatement of both his child support arrearage and his
prospective child support obligation. However, Randy concedes that the record regarding
his income from various sources and related expenses is “extremely unclear.” Randy
admitted at trial (in April 2016) that he had not filed a personal income tax return since his
2012 return, and Thomas Properties had not filed a return since its 2013 return. In addition,
Randy had received social security disability payments for several years even while he earned
substantial sums from real estate appraisals and his rental properties.5 Finally, although
Randy complains that the chancellor did not give him credit for his business expenses, such
as property taxes, he concedes that “[t]he [r]ecord is silent as to the precise amount and
nature of [his] expenses.” For the reasons discussed below, we conclude that the chancellor
did not commit any clear error; rather, the chancellor made a reasonable estimate of Randy’s
adjusted gross income in light of the limited evidence that Randy presented.
¶46. Randy submitted his first Rule 8.056 statement in November 2014. He stated that he
worked as a self-employed real estate appraiser, and he claimed that his income was $3,083
per month. He disclosed no “Rental Income.” Randy signed a second Rule 8.05 statement
on November 5, 2015. He disclosed disability benefits of $1,340 per month and income of
$2,300 per month from Thomas Properties based on $3,500 per month in receipts less $1,200
in “expenses from checkbook.” Randy’s second Rule 8.05 statement showed no income
from real estate appraisals, although he continued to show his occupation as a self-employed
5 Randy testified that his rental income did not affect his Social Security benefits because it was “passive income.” 6 See UCCR 8.05.
19 appraiser. Randy submitted a third Rule 8.05 statement on November 15, 2015, that made
the same disclosures with respect to his income.
¶47. At trial, Randy admitted that he earned far more than was reflected in his Rule 8.05
statements. Specifically, on cross-examination in April 2016, Randy agreed that he received
approximately $6,800 per month in rental income, approximately $3,083 from real estate
appraisals, and approximately $1,350 in social security disability benefits for a total monthly
income of approximately $11,233. Randy also gave conflicting testimony that he paid his
father to do some of his appraisals, and on the final day of trial Randy claimed that he no
longer did any appraisals.
¶48. In the final judgment, the chancellor agreed with Brandie’s position, as stated in her
post-trial brief, that Randy had an adjusted gross income of $9,700 per month.7 However,
the chancellor revisited the issue in her subsequent order on the parties’ post-trial motions
and concluded that Randy’s adjusted gross income should be revised. The chancellor found
that “[w]hile the proof may have been unclear and conflicting concerning Randy’s deductions
and expenses, it is fair to presume that he has some, though undetermined, expenses for the
operation of his business.” Therefore, the chancellor found that Randy’s adjusted gross
income should be revised to $8,500.
¶49. On appeal, Randy complains that the chancellor used an “arbitrary” figure for his
business expenses rather than his actual expenses. However, Randy’s argument is without
7 Brandie’s post-trial brief is quoted in the chancery court’s final judgment but is not part of the record. In her subsequent motion to amend her motion to alter or amend the judgment, Brandie reiterated that Randy’s income was $9,700 per month.
20 merit given his failure to present evidence of his actual expenses. Moreover, the $1,200
credit that the chancellor gave Randy for business expenses matches the $1,200 in expenses
shown in Randy’s own Rule 8.05 statements. The chancellor must make findings based on
the evidence presented by the parties, even if it is less than ideal. Pruitt v. Pruitt, 144 So. 3d
1249, 1252-53 (¶11) (Miss. Ct. App. 2014). Having failed to present evidence of his actual
expenses, Randy cannot complain that the chancellor used a figure found in his own Rule
8.05 statements.
¶50. Randy also alleges that the chancellor overstated his income. However, the chancellor
simply made findings of fact based on Randy’s own conflicting testimony. For instance,
Randy argues that the chancellor should have accepted his claim, made on his final day of
his trial testimony, that he no longer performed any real estate appraisals. However, the
chancellor was entitled to credit Randy’s prior sworn Rule 8.05 statement and testimony that
he earned approximately $3,083 per month on appraisals. The chancellor was not required
to accept Randy’s self-serving and uncorroborated testimony that he had stopped doing
appraisals. Accordingly, the chancellor did not clearly err by finding that Randy’s adjusted
gross income for purposes of calculating child support was $8,500 per month.
B. Brandie’s Arguments
¶51. Based on the chancellor’s finding that Randy’s monthly adjusted gross income was
$8,500, the statutory child support guidelines called for Randy to pay child support of $1,870
per month. See Miss. Code Ann. § 43-19-101(1) (Rev. 2015) (establishing a rebuttable
presumption that twenty-two percent of the payor’s adjusted gross income should be awarded
21 for the support of three children). However, the chancellor found that Randy’s annual
adjusted gross income exceeded $100,000 and that the guidelines should not be
“controlling.” See id. § 43-19-101(4). The chancellor then concluded that Randy’s
obligation should be reduced by twenty-five percent (to $1,402.50 per month) “based on the
additional time the children shall spend with him.” The chancellor also credited Randy for
the $700 per month in Social Security benefits that the children would receive on account of
his disability. Therefore, the chancellor ordered Randy to pay $702.50 per month in child
support.
¶52. Brandie argues that the chancellor committed three errors in calculating Randy’s
monthly child support obligation. Specifically, Brandie argues that the chancellor (1)
understated Randy’s adjusted gross income, (2) erred by reducing Randy’s child support
obligation to account for his additional visitation, and (3) erred by giving Randy credit for
Social Security benefits for the children. Brandie also argues that the chancellor erred by
giving Randy credit against his arrearage for the lump sum payment that he received for past
due Social Security benefits for the children. We address these arguments in turn.
1. Randy’s Adjusted Gross Income
¶53. Brandie first argues that the chancellor should have found that Randy’s adjusted gross
income was $12,333. Brandie relies on (a) Randy’s April 2016 testimony on cross-
examination that he received approximately $11,233 from various sources and (b) Randy’s
testimony that he had purchased two additional mobile homes that he hoped to fix up and
rent. Brandie assumes that Randy will find tenants who will pay $550 per month for the two
22 mobile homes (the same rent that Randy charged for his other five mobile homes).
¶54. We conclude that Brandie’s arguments fail for the same basic reasons as Randy’s
arguments on this same issue. The chancellor’s finding that Randy has an adjusted gross
income of $8,500 per month is a reasonable interpretation of the conflicting evidence
presented at trial. The chancellor reasonably credited Randy for some business expenses
related to his rental properties, even if Randy’s proof was less than ideal. The chancellor also
could have credited Randy’s testimony that he was performing fewer appraisals than before,
even if she did not believe his last-day-of-trial testimony that he no longer performed any
appraisals. Finally, the chancellor was not required to assume that Randy would receive
rental income on mobile homes that he had not yet rented. See Harden v. Scarborough, 240
So. 3d 1246, 1256 (¶28) (Miss. Ct. App. 2018) (holding that the chancellor was not required
to predict a payor’s future income based on parties’ predictions of uncertain future events).
Given the conflicting evidence and testimony presented, we cannot say that the chancellor
committed any clear error in estimating Randy’s adjusted gross income.
2. Reduction for Additional Visitation
¶55. The chancellor deviated from the guidelines and reduced Randy’s monthly support
obligation by $467.50 based on the fact that the children would be spending more than one-
quarter of their time with him. Brandie argues that the chancellor erred in making this
reduction. However, we find no error or abuse of discretion.
¶56. As noted above, the chancellor found that Randy’s annual adjusted gross income
exceeded $100,000 and that the guidelines should not be “controlling” in this case. See Miss.
23 Code Ann. § 43-19-101(4). Moreover, the guidelines are “not absolute rules” in any case,
Dunn v. Dunn, 911 So. 2d 591, 600 (¶27) (Miss. Ct. App. 2005), and the statute recognizes
that a deviation from the applicable guideline may be appropriate if “the noncustodial parent
spends a great deal of time with the children.” Miss. Code Ann. § 43-19-103(g) (Rev. 2015).
¶57. In this case, Randy will incur somewhat greater expenses by having his daughters
three weekends every month during the school year, while Brandie’s expenses should be
somewhat reduced by Randy’s additional visitation. Moreover, Randy should have visitation
with Austin while he has visitation with his daughters, which will add to his expenses and
reduce Brandie’s expenses. Under the circumstances, we cannot say that the chancellor
manifestly erred or abused her discretion in “weighing [the] evidence and arriving at an
award.” Williams, 264 So. 3d at 727 (¶12) (quoting Clausel, 714 So. 2d at 266-67).
3. Credit for Social Security Disability Payments
¶58. Brandie next argues that the Randy should not receive a dollar-for-dollar credit against
his child support obligation for the Social Security benefits paid to their children on account
of Randy’s disability. Brandie concedes that the chancellor’s decision was consistent with
prevailing Mississippi Supreme Court precedent holding that a parent is entitled to such a
credit against child support for Social Security benefits paid for a child on account of the
parent’s disability. Mooneyham v. Mooneyham, 420 So. 2d 1072, 1073-74 (Miss. 1982);
Keith v. Purvis, 982 So. 2d 1033, 1036 (¶8) (Miss. Ct. App. 2008). However, Brandie asks
us to “carve out an exception to the normal rule for unusual cases in which the ‘disabled
person’ is making a substantial amount of money over and above his disability payments.”
24 ¶59. We decline to “carve out an exception.” Mooneyham does not suggest that there are
any exceptions to the rule that the Court announced in that case, and we are bound to follow
Supreme Court precedent. Moreover, the Supreme Court’s recent discussion of Mooneyham
is instructive. In Harris v. Harris, 241 So. 3d 622 (Miss. 2018), the Court distinguished
Mooneyham and held that a former spouse’s receipt of Social Security retirement benefits
based on the earnings history of the other former spouse is not “a special circumstance
triggering an automatic reduction in alimony.” Id. at 628 (¶19) (emphasis added). However,
the Court concluded its opinion by stating: “To be clear, the instant holding separates Social
Security benefits that affect alimony from Social Security benefits that affect child support,
and the caselaw regarding Social Security benefits that affect child support is not changed
by this holding.” Id. at 629 (¶21) (emphasis added). Thus, Mooneyham’s holding remains
good law. The chancellor did not err by granting Randy credit for Social Security benefits
paid to his children on account of his disability.
4. Randy’s Child Support Arrearage
¶60. The chancellor’s final order found that Randy had accrued a child support arrearage
of $30,920. This figure represented the difference between (a) what Randy actually paid
under the agreed temporary order and (b) what he should have paid based on the calculations
in the court’s final order.8 Brandie argues that this figure is too low because the chancellor
understated Randy’s income, while Randy argues that it is too high because chancellor
overstated his income. However, we have already concluded that the chancellor’s
8 As noted above, the agreed temporary order expressly stated that the temporary child support award could be adjusted retroactively based on evidence subsequently presented.
25 determination of Randy’s adjusted gross income was not clearly erroneous. Therefore, the
parties’ arguments related to Randy’s income require no further discussion.9
¶61. Brandie also argues that the chancellor erred by granting Randy a credit against the
arrearage in the amount of $21,038 for the lump sum payment of past due Social Security
benefits for their children. Randy received this payment in April 2015 for benefits due for
the period of January 2012 to March 2015.10 At trial, Randy testified that he deposited this
money in a bank account and that he still had it. The chancellor ordered Randy to pay the
money to Brandie in exchange for a credit against his child support arrearage, thereby
reducing the arrearage to $9,882. The chancellor’s final order provided that the arrearage
would accrue interest at an annual rate of eight percent. The chancellor ordered Randy to
payoff the arrearage in installments of at least $500 per month.
¶62. The chancellor did not err by granting Randy a credit against the arrearage. As the
chancellor correctly recognized, Mississippi law now requires such a credit. See Miss. Code
Ann. § 93-11-71(6) (Rev. 2018).11 However, we also hold that Randy was not entitled to a
9 Randy also argues that he is entitled to a credit for paying one-half of the utilities on the marital home pursuant to the agreed temporary order. However, Randy cites no authority for this argument, so the issue is waived. See, e.g., Simmons v. State, 805 So. 2d 452, 487 (¶90) (Miss. 2001) (“Failure to cite relevant authority obviates the appellate court’s obligation to review [the alleged error].”). Moreover, under the terms of the agreed order, Randy’s obligation to pay one-half of the utilities was separate from his obligation to pay child support. The agreed order did not provide that Randy’s utility payments would be counted as child support or credited against any future determination of an arrearage. 10 The benefits were for all four children, including Austin. 11 The Legislature added this provision in 2011, see 2011 Miss. Laws ch. 530, § 2, apparently in response to this Court’s decision in Chapman v. Ward, 3 So. 3d 790, 795-99 (¶¶14-29) (Miss. Ct. App. 2008), which held that a parent was not entitled to a credit against
26 full credit against his arrearage because most of his arrearage accrued after Randy had
already received the lump sum payment.
¶63. Mississippi Code Annotated subsection 93-11-71(6), which was enacted in 2011,
provides:
A parent who receives social security disability insurance payments who is liable for a child support arrearage and whose disability insurance benefits provide for the payment of past due disability insurance benefits for the support of the minor child or children for whom the parent owes a child support arrearage shall receive credit toward the arrearage for the payment or payments for the benefit of the minor child or children if the arrearage accrued after the date of disability onset as determined by the Social Security Administration.
Miss. Code Ann. § 93-11-71(6). Thus, using the present tense, the statute provides that a
“parent who receives” a payment of past due benefits and “who is liable for” and “owes a
child support arrearage shall be entitled to a credit toward the arrearage.” Id. (emphasis
added). We interpret this language to permit a credit only against “the arrearage” that the
parent “is liable for” and already “owes” at the time he “receives” the lump sum payment for
past due benefits. Id. (emphasis added). The plain language of the statute does not allow a
parent, like Randy, to hold onto the children’s benefits to use as a credit against his own
future failures to pay child support.
¶64. As stated above, the $21,038 payment that Randy received was for past due benefits
for his minor children for the period of January 2012 to March 2015. However, Randy and
Brandie did not finally separate until October 2014, and Randy was not under a court order
to pay temporary child support until November 2014. Thus, Randy is not entitled to a credit
a child support arrearage for a lump sum payment of past due benefits.
27 for the past due benefits that he received for the children for the thirty-four months from
January 2012 through October 2014. During that period, Brandie and Randy presumably
jointly supported the children with marital funds—including income earned by both parties.
Therefore, the past due benefits for that thirty-month period were, in effect, a reimbursement
of expenditures that the couple paid for the children out of marital funds. Those benefits
should be treated as ordinary marital property, subject to equitable division. On the other
hand, Randy is entitled to a credit for the arrearage that he accrued during the five months
from November 2014 to March 2015 that he was under a court order to pay support.
¶65. We reverse and remand the case solely for the chancellor to determine the proper
allocation and disposition of the $21,038 lump sum payment for past due benefits for the
children. The chancellor should first determine the credit that Randy is entitled to for past
due benefits that were paid for the five months from November 2014 to March 2015. That
amount should be paid to Brandie immediately in exchange for a credit to Randy against his
arrearage. The remainder of the lump sum is a marital asset and should be divided by the
chancellor based on ordinary principles of equitable division. Given that this asset represents
only a small fraction of the entire marital estate, we affirm and leave in place the remainder
of the chancery court’s judgment and division of the marital estate. We remand solely for
the chancellor to redetermine Randy’s credit and child support arrearage and the proper
division of the remainder of the lump sum.
IV. Equitable Division
¶66. “[A]n equitable division of property does not necessarily mean an equal division of
28 property.” Chamblee v. Chamblee, 637 So. 2d 850, 863-64 (Miss. 1994). “[T]he goals of
equitable distribution are a fair division of marital property based on the facts of each case
and termination of the legal relationship in a manner which each party may realize self-
sufficiency.” Seymour v. Seymour, 960 So. 2d 513, 519 (¶15) (Miss. Ct. App. 2006). Our
Supreme Court has “direct[ed] the chancery courts to evaluate the division of marital assets”
based on a non-exclusive list of factors (the “Ferguson factors”) and “to support their
decisions with findings of fact and conclusions of law for purposes of appellate review.”
Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994). Although the chancellor is
required to consider the Ferguson factors, “[t]he equitable distribution of marital assets is
committed to the discretion of the chancellor, whose findings will not be disturbed by this
Court unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal
standard was applied.” Arthur v. Arthur, 691 So. 2d 997, 1003 (Miss. 1997).
¶67. In this case, the chancellor expressly addressed each Ferguson factor in the course of
equitably dividing the marital estate. Neither party challenges the chancellor’s application
of these factors. However, Randy argues that the chancellor erred in classifying his lump
sum payment for past due disability benefits as a marital asset and by awarding that asset to
him. He also argues that the chancellor erred in her classification of a trailer park and mobile
homes owned by Thomas Properties. Finally, he argues that the chancellor erred in her
valuation of a “Honda Rhino motorcycle.” We will address these arguments in turn.
A. Randy’s Disability “Back Pay”
¶68. Randy argues that the chancellor “erred by awarding [him] the sum of $40,666 in the
29 equitable distribution, representing his previous social security disability back-pay award,
when that money was depleted before trial and there was no evidence of a wasteful
dissipation.” However, we find no error or abuse of discretion.
¶69. Randy received his back pay award around April 27, 2015, but he claims that it was
all gone by the time that trial began November 5, 2015. During that approximately six-month
period, Randy was receiving substantial rental income as well as $1,329 per month in
disability benefits. There is also evidence that he was earning additional income from real
estate appraisals. At the same time, Randy should have had relatively few living expenses.
He was living rent-free with his parents, and he was not providing medical insurance for his
children, as they were then covered by the Children’s Health Insurance Program (CHIP).
Moreover, Randy was not even paying child support during this period because he stopped
doing so in April 2015 in reliance on Brandie’s receipt of monthly Social Security benefits
for the children on account of his disability. In short, while Randy claimed that he spent his
entire “back pay” award prior to trial, he was unable to articulate how or produce any
evidence to document his alleged expenditures. The only specific, significant expenditure
that he was able to point to was his purchase of a pet Marmoset monkey for $3,800.
¶70. “The use of marital funds to pay legitimate and reasonable living expenses of both
spouses during a separation does not necessarily amount to dissipation.” Leblanc v. Leblanc,
No. 2017-CA-00600-COA, 2018 WL 5262584, at *7 (¶48) (Miss. Ct. App. Oct. 23, 2018).
However, Randy failed to show that he actually spent these funds between April 2015 and
November 2015. He certainly did not show that he spent the funds on reasonable or
30 legitimate living expenses. We find no error or abuse of discretion in the chancellor’s
implicit finding that the funds had not been depleted.
B. Mobile Home Park
¶71. On March 1, 2014, Randy contracted to purchase Cedar Creek Mobile Home Park for
$80,000. Randy made a down payment of $17,500 and agreed to pay the balance through
sixty monthly payments of $1,179.45, with the first payment due on March 1, 2014. The
contract also gave Randy the option of paying off the balance early without penalty. The
contract stated that as of March 1, 2014, Randy was assuming “possession and all liabilities”
of the trailer park. Randy’s trial testimony on this subject was vague, and he was unable to
recall dates or details related to the transaction. Nonetheless, it appears that he paid the entire
purchase price ($80,000) by January 30, 2015, when a deed was recorded conveying the
property to Thomas Properties. Indeed, Randy seemed to testify that he finished paying the
balance in October 2014 but the “final paperwork” was delayed a few months.
¶72. Randy argues that the chancellor erred by failing to establish a line of demarcation for
purposes of classification of property as marital or non-marital. Randy further argues that
because he did not finally “acquire[] the mobile home park” until after entry of the temporary
order, it should have been classified as non-marital property, at least in part.
¶73. We disagree. The record simply does not support Randy’s argument on appeal.
Randy’s vague testimony failed to establish whether he finished paying off the trailer park
before or after the parties’ final separation or the temporary order. Moreover, the chancellor
did specifically find that “two trailers acquired for the trailer park . . . were . . . separate
31 property due to their being purchased after the temporary order.” By implication, the
chancellor simply found that Randy failed to meet his burden of proving that the trailer park
and its five other mobile homes were separate property. See Serio v. Serio, 203 So. 3d 24,
31 (¶21) (Miss. Ct. App. 2016) (“Because assets owned by a spouse are presumed to be
marital property, the party seeking to classify property as separate, or non-marital, bears the
burden of tracing the asset to a separate-property source.” (quoting Allgood v. Allgood, 62
So. 3d 443, 447 (¶13) (Miss. Ct. App. 2011))). We find no error or abuse of discretion in the
chancellor’s classification of the trailer park and five mobile homes.
C. The Rhino ATV and the Honda Motorcycle
¶74. Both parties’ pretrial Rule 8.05 statements listed a “Rhino” all-terrain vehicle, and the
parties agreed that it was worth $5,000. Randy also has a Honda motorcycle that was
included on a list of the parties’ assets at trial. Randy testified that his motorcycle was worth
about $1,000. In the final judgment, the chancellor mistakenly awarded Brandie a “Honda
Rhino Motorcycle” valued at $1,200 but did not award an ATV to either party. It appears
that the chancellor simply conflated these two vehicles. On appeal, the parties agree that
Brandie should receive the Rhino ATV, while Randy should receive the motorcycle.
¶75. Despite the parties’ agreement as to who should receive which vehicle, Randy
emphasizes that the error resulted in an understatement of the total net value of Brandie’s
assets, and he argues that we must reverse and remand for the chancellor to reevaluate the
entire equitable division of the marital estate. We disagree that reversal is warranted. The
judgment purported to award Brandie assets with a net total value ($379,771.64) that was
32 slightly less than the net total value of the assets awarded to Randy ($384,313.68). There is
nothing in the judgment to suggest that the chancellor attempted to give the parties
mathematically precise percentages of the marital estate. If we simply modify the judgment
to award Brandie the Rhino ATV at its agreed value of $5,000 and to award Randy the
Honda motorcycle at a value of $1,000, then the total net value of Brandie’s assets will still
be slightly less than the total net value of Randy’s assets—$383,571.64 for Brandie and
$385,313.68 for Randy. The chancellor’s error is immaterial to the property division as a
whole, and there is nothing to suggest that the correction of this error would impact anything
else in the property division or the judgment as a whole. See Inge v. Inge, 227 So. 3d 1185,
1190 (¶17) (Miss. Ct. App. 2017) (finding an error in the chancellor’s judgment harmless
when there was “no indication that [it] impacted [the chancellor’s] ultimate decision”).
Accordingly, we conclude that the error was harmless, and we simply modify the judgment
of the chancery court to correct the error. Brandie gets the Rhino ATV; Randy gets his
motorcycle.
V. Income Tax Exemptions
¶76. The chancellor found that Brandie and Randy should alternate receiving the income
tax dependency exemptions for the children. The final judgment provided that in even-
numbered years beginning with 2016, Brandie can claim Ashlyn and Allyson as dependents,
while Randy can claim Anna; and in odd-numbered years beginning with 2017, Randy can
claim Ashlyn and Allyson, while Brandie can claim Anna.
¶77. Brandie argues that the chancellor erred by awarding Randy one-half of the
33 dependency exemptions for the minor children because he pays only $702.50 per month in
child support and admitted at trial that he had not filed a personal income tax return since
2012. However, we cannot say that the chancellor manifestly erred or abused her discretion
in awarding the exemptions. See Louk v. Louk, 761 So. 2d 878, 883-84 (¶¶15, 19) (Miss.
2000) (reviewing the chancellor’s award of dependency exemptions for manifest error or
abuse of discretion).
¶78. Our Supreme Court has stated that the “[i]ncome of the spouses is not the only factor
that should be considered in determining who should be awarded the tax exemptions,
especially considering the non-economic but nevertheless valuable contributions contributed
by the custodial parent.” Id. at 884 (¶17). Other potentially relevant factors that the Court
identified include:
(1) the value of the exemption at the marginal tax rate of each parent; (2) the income of each parent; (3) the age of the child(ren) and how long the exemption will be available; (4) the percentage of the cost of supporting the child(ren) borne by each parent; and (5) the financial burden assumed by each parent under the property settlement in the case.
Id. (citing Glover v. Torrence, 723 N.E.2d 924, 938 (Ind. Ct. App. 2000)). The Court stated
that “a [c]hancellor would be well-served to consider these factors where appropriate.” Id.
at (¶18). However, there is no requirement that the chancellor make specific findings to
support an award of tax exemptions. Indeed, the Court stated that “many cases do not
involve incomes or estates significant enough to justify this type of analysis.” Id.; accord
Laird v. Blackburn, 788 So. 2d 844, 852-53 (¶¶16-17) (Miss. Ct. App. 2001).
¶79. In this case, the chancellor did not make any findings of fact related to the dependency
34 tax exemptions, but “when there are no specific findings of fact, this Court will assume that
the trial court made determinations of fact sufficient to support its judgment.” Century 21
Deep S. Props. Ltd. v. Corson, 612 So. 2d 359, 367 (Miss. 1992). That is, “[w]here there are
no specific findings of fact provided by the chancellor, this Court must look to the evidence
and see what state of facts will justify the decree.” Id. Randy has a higher income than
Brandie, so the tax exemptions should be worth more to him—assuming that he starts filing
tax returns again. In addition, Randy exercises visitation with the children that is more than
standard visitation, and he pays child support. Finally, we note that because Brandie can
claim an exemption for Austin, she will be able to claim at least two exemptions every year.
On these facts, we cannot say that the chancellor clearly erred or abused her discretion by
evenly dividing the dependency deductions for the parties’ three minor children.
VI. Attorney’s Fees
¶80. In the final judgment, the chancellor awarded Brandie $1,000 in attorney’s fees based
on Randy’s contempt of court,12 but the chancellor otherwise denied the parties’ requests for
attorney’s fees, finding that “neither party demonstrated an inability to pay his or her
attorney’s fees.” On cross-appeal, Brandie argues that the chancellor “erred by not awarding
[her additional] attorney’s fees in light of Randy’s initially-accomplished fraud upon the
court, and his multiple attempts to work a fraud upon the court thereafter, which greatly
increased Brandie’s attorney’s fees.”
12 The contempt apparently related to Randy’s February 2015 violation of the restraining order against him. See supra n.3. On appeal, neither party challenges the award of fees for contempt.
35 ¶81. Brandie’s argument is without merit. Although Randy filed Rule 8.05 statements that
understated his income, there is no proof in the record of the amount of attorney’s fees, if
any, that Brandie incurred as a result. Moreover, on the final day of trial, Brandie testified
that she was not asking for her attorney’s fees to be reimbursed. We review the denial of
attorney’s fees for an abuse of discretion. Erickson v. Smith, 909 So. 2d 1173, 1182 (¶24)
(Miss. Ct. App. 2005). In the absence of any proof of the amount of attorney’s fees that
Brandie incurred as a result of Randy’s alleged fraud, the chancellor did not abuse her
discretion by denying Brandie’s request for fees. Id. at (¶26).
CONCLUSION
¶82. We affirm the final judgment of the chancery court with only two exceptions: First,
the judgment is modified to reflect that Brandie is awarded the Rhino ATV and Randy is
awarded his Honda motorcycle. Second, the case is remanded for the chancery court to
recalculate the amount of Randy’s credit against his child support arrearage based on the past
due Social Security benefits for the children. Randy is entitled to a credit only for the part
of the April 2015 lump sum payment that reflects benefits paid for the period when Randy
was under a court order to pay child support (November 2014 through March 2015). Randy
shall immediately pay that amount to Brandie in exchange for a credit against his arrearage.
The remainder of the lump sum is a marital asset that the chancellor should then divide based
on ordinary principles of equitable division. All other provisions of the chancery court’s
property division and final judgment are affirmed.
¶83. ON DIRECT APPEAL: AFFIRMED AS MODIFIED. ON CROSS-APPEAL:
36 AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.
Related
Cite This Page — Counsel Stack
Randy Scott Thomas v. Brandie Jean Brown Thomas, Counsel Stack Legal Research, https://law.counselstack.com/opinion/randy-scott-thomas-v-brandie-jean-brown-thomas-missctapp-2019.