Rush v. Rush

932 So. 2d 794, 2006 WL 1767325
CourtMississippi Supreme Court
DecidedJune 29, 2006
Docket2004-CT-00260-SCT
StatusPublished
Cited by12 cases

This text of 932 So. 2d 794 (Rush v. Rush) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rush v. Rush, 932 So. 2d 794, 2006 WL 1767325 (Mich. 2006).

Opinion

932 So.2d 794 (2006)

Charles W. RUSH
v.
Latresa A. RUSH.

No. 2004-CT-00260-SCT.

Supreme Court of Mississippi.

June 29, 2006.

*795 Stephen L. Beach, III, Jackson, attorney for appellant.

William D. Ketner, Jackson, Judy Barnett, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

EASLEY, Justice, for the Court.

¶ 1. Charles Rush (Charles) and Latresa Rush (Latresa) were granted a divorce in Rankin County, Mississippi. Charles was granted "primary" physical custody of the parties' minor child, Rose Marie Rush (Rosie), but he was ordered to pay $400 per month in child support for Rosie and $500 per month in periodic alimony to Latresa. Both parties filed motions to alter or amend the judgment which were denied by the Chancellor. Charles appealed the Chancellor's judgment, and the appeal was assigned to the Court of Appeals. Charles raised the following issues:

I. Whether the Chancellor erred in declaring that the goodwill of Hermetic Rush Services, Inc., was a marital asset that could be divided between the parties.
II. Whether the Chancellor erred in awarding child support payments to Latresa.
III. Whether the Chancellor erred in awarding Latresa periodic alimony.
IV. Whether the Chancellor erred in placing a judicial lien on Charles's home to secure payment of Charles's interest in Hermetic.

¶ 2. The Court of Appeals affirmed the judgment of the Rankin County Chancery Court in a divided, 5-3-1, decision. Issue II, which addressed the custodial parent, Charles, being ordered to pay $400 per month in child support for the minor child, Rosie, to the non-custodial parent, Latresa, resulted in the Court of Appeals' division. Charles filed a petition for writ of certiorari with this Court appealing the Court of Appeals' affirmance. This Court granted certiorari to consider the issue of whether the Court of Appeals erred in affirming the Chancellor's judgment ordering the payment of child support by a custodial parent to a non-custodial parent. Therefore, this opinion will only address the issue of child support.

FACTS[1]

¶ 3. Charles and Latresa were married on October 22, 1983, and separated in August of 2001. The marriage produced two children, Charles Sean Rush (Sean), born July 10, 1984, and Rosie, born October 14, 1991. On July 26, 2002, Charles filed a complaint for divorce on the grounds of Latresa's adultery. In his complaint, Charles requested custody of the children and an equitable distribution of the marital property. On September 13, 2002, Latresa filed a motion for relief, where she requested custody of the children, child support, alimony, and an equitable distribution of property. Before the divorce was finalized, Charles had physical custody *796 of Sean, and Latresa had physical custody of Rosie. Charles paid $1,000 per month in temporary child support. After filing the complaint for divorce, Sean was emancipated by virtue of joining the United States Navy.

¶ 4. Trial was held on September 3 and 4, 2003. At the beginning of the trial, Latresa admitted to uncondoned adultery. The Chancellor granted a judgment of divorce in favor of Charles on the grounds of uncondoned adultery and retained jurisdiction to resolve matters relating to child custody, child support, and division of the marital property.

¶ 5. Charles is an air conditioning technician and owns a one-third interest, or 100 shares, in a business called Hermetic Rush Services, Inc. (Hermetic). Latresa was not employed during the time she and Charles were separated, but she helped operate Charles's business as a bookkeeper and secretary for approximately six years, and she also occasionally worked in temporary contract agencies at various times during the marriage. At the time of the trial, Latresa was attending community college part-time pursuing a degree in cosmetology.

¶ 6. The Chancellor appointed Pace and Company, Ltd., to value Hermetic. Kevin Lightheart completed the evaluation on December 16, 2002. After hearing all the evidence, the Chancellor valued Charles' one-third of Hermetic at $179,000 and found that none of the value of the business was attributable to Charles's goodwill. Latresa was found to be entitled to receive $89,000, and the Chancellor placed a judicial lien on Charles's house to secure payment. The Chancellor awarded possession of the marital home to Charles finding that was in the best interest of the minor child. Latresa received $19,800 for her 50% share of the equity in the marital home.

¶ 7. The Chancellor granted Charles and Latresa joint legal and physical custody of Rosie, with Charles having the primary physical custody of Rosie. While physically healthy, Rosie exhibited some behavioral problems for which she had undergone counseling. Sean had already been emancipated. Although Charles was named custodial parent of Rosie, he was ordered to pay to the non-custodial parent, Latresa, $400 per month in child support for Rosie and $500 per month in periodic alimony.

DISCUSSION

¶ 8. Charles was granted primary physical custody of the parties' minor child, Rosie, but he was also ordered to pay $400 per month in child support for Rosie to Latresa. The Chancellor applied the Albright[2] factors to the evidence and determined it would be in the best interest of the child to award Charles and Latresa joint legal and physical custody of Rosie. However, the Chancellor specified that Charles was awarded "primary" physical custody of Rosie, subject to Latresa's visitation.

¶ 9. Included in the various types of physical custody which may be awarded by a chancery court pursuant to Miss.Code Ann. § 93-5-24, are joint physical custody and physical custody in one parent or the other. Although it is a phrase commonly used by lawyers and judges, there is actually no provision under the statute for "primary" physical custody. Furthermore, joint physical custody may be awarded only where "each of the parents shall have significant periods of physical custody." Miss.Code Ann. § 93-5-24(5)(c).

*797 ¶ 10. Based on the visitation schedule expressly ordered by the Chancellor, Charles bore the bulk of responsibility for Rosie, having her the vast majority of the time. Therefore, Charles appealed the Chancellor's judgment ordering him to pay monthly child support for Rosie.

¶ 11. Charles argues that the child support payment to the non-custodial parent, Latresa, improperly amounts to additional alimony, not child support. Charles was ordered to pay monthly alimony to Latresa[3], pay Latresa for 50% of the marital property, maintain health insurance coverage on Rosie, and Latresa was relieved of any child support obligation for Rosie. Clearly, the Chancellor had taken the disparity of income into account.

¶ 12. The Court of Appeals' majority opinion found:

The Chancellor granted joint legal and physical custody of Rosie, with Charles as the primary physical custodian. Nevertheless, he ordered Charles to pay child support to Latresa. "[A]n order that does not require a non-custodial parent to pay child support should be entered only in rare circumstances. The Chancellor should also include detailed findings in the order to support the decision to relieve a non-custodial parent from their financial obligation to support their children."

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Cite This Page — Counsel Stack

Bluebook (online)
932 So. 2d 794, 2006 WL 1767325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rush-v-rush-miss-2006.