Van Sullivan v. Sullivan

43 So. 3d 536, 2010 Miss. App. LEXIS 493, 2010 WL 3547948
CourtCourt of Appeals of Mississippi
DecidedSeptember 14, 2010
Docket2009-CP-01657-COA
StatusPublished
Cited by1 cases

This text of 43 So. 3d 536 (Van Sullivan v. Sullivan) 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
Van Sullivan v. Sullivan, 43 So. 3d 536, 2010 Miss. App. LEXIS 493, 2010 WL 3547948 (Mich. Ct. App. 2010).

Opinion

MAXWELL, J.,

for the Court:

¶ 1. A Hinds County chancellor granted Natasha Sullivan a divorce from Gerard Sullivan based on his uncondoned adultery. Almost three weeks before trial, the chancellor allowed Gerard’s attorney to withdraw from the case, and Gerard represented himself. On the morning of trial, Gerard requested — for the first time — a continuance, which the chancellor denied based on “inconvenience to witnesses” and Natasha’s expense in securing a witness from Texas. Gerard contests the chancellor’s denial of the continuance and takes issue with the property distribution and award of attorney’s fees to Natasha. We find the chancellor’s denial of the last-minute motion for a continuance did not prejudice Gerard. We also find no manifest error in the chancellor’s distribution of the marital property. But we reverse and remand on the issue of attorney’s fees, based on a lack of evidence in the record of Natasha’s inability to pay her attorney.

FACTS

¶ 2. Gerard and Natasha married on March 8, 2003. Prior to the marriage, Natasha purchased a furnished home from Gerard’s parents in Terry, Mississippi. Various vehicles and equipment remained on the property when Natasha took possession of the home. Other than Gerard’s time working on an oil pipeline in Texas, the couple resided in the Mississippi home.

¶ 3. Natasha purchased the house for approximately $103,000. After several refinances, she owed approximately $150,000 on the home. She testified that most of the monetary gain from refinancing went to pay Gerard’s medical bills, attorneys’ fees for his defense in a criminal matter, and vehicle payments. Before trial, the house appraised for $170,000. But Natasha desired to accept an offer of $150,000 to cover the debt.

*538 ¶ 4. Natasha and Gerard held separate bank accounts. Testimony indicated Gerard had a problem with cocaine and marijuana, but neither party offered evidence to show how much money he spent on drugs during the marriage. However, Natasha claimed she paid many of Gerard’s expenses from her separate bank account, including attorney’s fees related to a Louisiana drug charge. Natasha also paid $1,600 toward purchasing Gerard a camper, which he lived in while working in Texas.

¶ 5. At trial, one of Gerard’s co-workers, Dari Funkhouser, testified that while in Texas, he saw Gerard with another woman, Jessica Hunt. Though Gerard denied being romantically involved with Hunt, Funkhouser believed the two had a sexual relationship. He based his suspicions on the comments Gerard made regarding Hunt; Hunt staying overnight in Gerard’s camper; and Hunt and Gerard spending a weekend together in Tyler, Texas.

¶ 6. Natasha also suspected Gerard had been unfaithful. A few days before Gerard moved back to Mississippi, Natasha took off work and traveled to Texas to help him pack. She found Gerard at an Apple-bee’s restaurant talking to Hunt, who tended the bar there. When Natasha and Gerard returned to his trailer, Natasha discovered her pictures had been taken down. And she found a women’s hair “scrunchie,” an earring back, and what she believed to be seminal fluid on Gerard’s bed. She also claimed she discovered candle wax “everywhere.”

¶ 7. Gerard returned to Mississippi, but the marital problems continued. In April 2009, Natasha located Gerard’s truck at a casino in Vicksburg, Mississippi, where she saw him with Hunt and another couple. Natasha confronted Gerard, and he told her he was unhappy and wanted a divorce. Hunt assured Natasha the casino incident was the “first time” she and Gerard had been together. But in September 2009, Gerard admitted the affair to Natasha. He told Natasha the relationship with Hunt began a week before he moved back to Mississippi.

¶ 8. On April 30, 2009, Natasha filed for divorce based on Gerard’s uncondoned adultery. She also requested temporary support and sought possession of the house, the household goods, her vehicle, and temporary alimony. On May 26, 2009, the chancellor conducted a hearing on the request for temporary relief. She granted Gerard ten days to remove his farm equipment and personal property from the marital residence and divided possession of the vehicles between the parties. Gerard sought three additional days to remove his items. And the chancellor granted his request but ordered any property remaining after June 12 be disposed of as Natasha desired. The chancellor also set September 14, 2009, as the trial date.

¶ 9. The record indicates Gerard and his father removed some farm equipment and vehicles from the property. But they left several items, which Natasha removed at her own expense. At trial, she sought to recover from Gerard half of the approximately $5,000 in cleanup and removal costs.

¶ 10. On August 14, 2009, Gerard’s attorney filed a motion to withdraw as counsel. The chancellor initially denied the motion but ultimately allowed Gerard’s attorney to withdraw on August 25, 2009. The record does not indicate why Gerard’s attorney sought to withdraw, nor does it include the chancellor’s reasoning for letting him do so. Natasha’s counsel advised the chancellor that Gerard’s attorney had been unable to contact Gerard.

¶ 11. On the morning of trial, Gerard made an oral request for a continuance. *539 The chancellor denied the request, and Gerard represented himself at trial. After hearing testimony, the chancellor found Gerard’s adultery caused the separation. The chancellor divided the property and awarded Natasha $2,650 toward the cleanup costs and $2,500 for her attorney’s fees. Gerard now appeals.

DISCUSSION

I. Continuance

¶ 12. Gerard first claims the chancellor erred in denying his motion to continue the trial. “The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be reversed unless the decision results in manifest injustice.” Moore v. Delta Reg’l Med. Ctr., 23 So.3d 541, 549 (¶ 31) (Miss.Ct.App.2009) (citing Boone v. State, 973 So.2d 237, 241 (¶ 13) (Miss.2008)).

¶ 13. The chancellor allowed Gerard’s attorney to withdraw on August 25, 2009. And Gerard did not seek a continuance until September 14, 2009, the morning of the previously scheduled trial. Natasha objected based on her expense in securing a witness from Houston, Texas. The chancellor denied the continuance because the request was made only “hours before trial” and would be an “inconvenience to witnesses.” We note that even though Gerard represented himself, he questioned Natasha’s witnesses extensively. The chancellor also aided Gerard in preventing the admission of hearsay.

¶ 14. We acknowledge that trial courts have “the inherent right” to control their dockets and are afforded reasonable latitude regarding the setting and continuance of cases. Dew v. Langford, 666 So.2d 739, 746 (Miss.1995) (citing Watts v. Pennington, 598 So.2d 1308, 1312 (Miss.1992)). We will not reverse the denial of a continu-anee unless we are satisfied that prejudice resulted. Id. (citing Cherry v. Hawkins, 243 Miss. 392, 397, 137 So.2d 815, 816 (1962)).

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Bluebook (online)
43 So. 3d 536, 2010 Miss. App. LEXIS 493, 2010 WL 3547948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-sullivan-v-sullivan-missctapp-2010.