IN THE SUPREME COURT OF MISSISSIPPI
NO. 2012-CA-01576-SCT
MICHAEL A. HUSETH
v.
TAVIA M. HUSETH
DATE OF JUDGMENT: 09/14/2012
TRIAL JUDGE: HON. DENISE OWENS
TRIAL COURT ATTORNEYS: MARK. A CHINN
WILLIAM R. WRIGHT
COURT FROM WHICH APPEALED: CHANCERY COURT OF THE FIRST
JUDICIAL DISTRICT OF HINDS COUNTY
ATTORNEYS FOR APPELLANT: MARK A. CHINN
MATTHEW THOMPSON
ATTORNEYS FOR APPELLEE: AMANDA JANE PROCTOR
WILLIAM R. WRIGHT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART; REVERSED IN PART
AND REMANDED - 04/10/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ.
KITCHENS, JUSTICE, FOR THE COURT:
¶1. Michael Huseth (Mike) appeals the judgment of the Chancery Court of the First
Judicial District of Hinds County which granted his wife Tavia Huseth (Tavia) an award of
separate maintenance, full physical custody of their son, and attorney fees. Tavia has
requested attorney fees on appeal equal to half of the fees she was awarded at trial. We affirm
the chancellor’s judgment in part, reverse it in part and remand the case to the chancery
court, and we deny Tavia’s request for attorney fees on appeal.
FACTS AND PROCEDURAL HISTORY
¶2. Mike and Tavia have been married since 1998. They have one child together, who was
born April 9, 1999. The couple separated in October 2011. Mike claims that the couple’s
stormy relationship ended “when Tavia punched Mike in the side” and told him to pack his
bags and get out. Mike claims that he had a number of pictures on his phone from previous
instances of Tavia’s hitting him, which Tavia had found and erased. On the night in question,
Mike took a picture of a bruise he claims to have suffered when Tavia “sucker punched” him
in the kidney. According to him, when Mike said to Tavia that she could not delete the
picture, she told him to pack his bags and “get the hell out of there.” At that point, Mike left.
He claims that, after their separation, Tavia prevented him from seeing his son, at one point
forcing him to leave the school the son attends and telling Mike that he shouldn’t be there.
¶3. Tavia’s version of events, which generally was not disputed by Mike, provides a more
expansive story. In October 2011, the couple went to San Diego to see Mike’s son from a
previous marriage as he returned home from Afghanistan. When they returned to Jackson,
Mike left home and told Tavia he needed to “cool off for no more than two weeks” and get
some marital therapy. Mike returned on October 27, 2011, and met Tavia for lunch.
According to Tavia, when she sat down, Mike handed her his divorce attorney’s business
card and told her, “It’s over.” They continued discussing the matter in the driveway of their
home, and Mike kept repeating to Tavia that the marriage was over. Later that evening, Mike
returned and told Tavia that he was going to come home and live with her again. That night,
the two had sexual relations. The next day, Mike took their son to school and did not return.
When Tavia asked him what was going on, Mike again told her that it was over.
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¶4. The next month, Mike filed a petition for divorce based upon irreconcilable
differences. He continued to pay the household bills through January 2012. Tavia claims that
she did not want a divorce, and after two postponed mediations, Mike dismissed the
complaint for divorce and filed a petition seeking sole legal and physical custody of the
couple’s son. He did not ask for joint custody. Tavia filed a countercomplaint, seeking
separate maintenance and custody. Prior to this separation, Mike had paid most of the
household bills, but he admitted that his parents had loaned him the money to pay almost all
of these amounts. Tavia alleged that she did not in any way cause Mike to leave the marital
home and relationship, that she depended upon Mike to support and maintain herself and
their child, and that she was therefore entitled to separate maintenance until Mike returned
home. She also asked for physical custody of their son and attorney fees. Mike argued that
she was completely at fault for his departure from the home, and that she specifically had
asked for him to leave with no intention of reconciling.
¶5. The chancellor held a hearing on both parties’ pleadings on August 8 and 9, 2012.
Extensive testimony was elicited regarding Mike’s income, work history, and earning
potential. Over the course of the marriage, Mike held several different jobs. Mike has a
degree in economics, a master’s degree in public administration, and a master’s degree in
Biblical studies. He currently is the president of Lakin Enterprises, a company owned by his
mother and stepfather. At the time of trial in August 2012, that company owned one rental
property. Mike’s duties as president include “communicating with the attorneys . . . we have
and then also the CPA, and the accountant and then with the folks that lease our building
over on Highway 18.” When asked whether usually there was a day in the week when he had
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anything to do with Lakin Enterprises, he replied, “There is not a whole lot, no. I mean I have
to balance the accounts and I check the balance every day.” For this job, Mike is paid
$3,709.06 per month. From 2006 to 2010, Mike also worked at the Lutheran Episcopal
Services Agency (“LES”). When he was terminated in 2010, Mike was being paid $114,000
a year by LES. Since losing that job, Mike’s only source of income has been from Lakin
Enterprises. Tavia is a social worker at Baptist Medical Center. She is paid approximately
$5,122.16 per month after taxes.
¶6. Mike and Tavia gave testimony regarding their respective fitness to have custody of
their son, each person’s relative earning capacity and present income, and the reasons for
their separation. Mike and Tavia were cross examined thoroughly. At the hearing, Mike
testified that he really wanted joint custody of their child, but had filed for sole custody on
the advice of his attorney. Tavia and Mike agreed that Mike was a good father, and Tavia
said she was seeking joint legal and sole physical custody of their son, with provisions for
reasonable visitation for Mike. Beyond testifying about his income, Mike elaborated
concerning the money he had borrowed from his parents to pay his bills, as well as the more
than $200,000 house his parents had purchased for him so his son could have a good
environment while visiting his father. He testified that, after the separation, Tavia would not
allow him in the marital home, she had dumped all of his clothes in the driveway, and she
would not permit him to retrieve his personal effects, including his bicycle. Tavia testified
that she verbally had asked Mike several times to come home and he had refused. She
testified that, if he asked to come home that night, she would let him.
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¶7. The chancellor found that Tavia’s fault in causing the separation was not equal to or
greater than Mike’s and awarded her separate maintenance in the amount of $3,000 per
month and child support in the amount of $988 per month. The chancellor ordered Mike to
bring the mortgage current and instructed Tavia to pay the $2,248 per month mortgage out
of the $3,000 monthly separate maintenance payment, leaving $752 per month in additional
support. To determine the amounts of these awards, the chancellor looked beyond Mike’s
income from Lakin Enterprises and included the regular loans he received from his parents
as well as his earning capacity to impute to him an income of $7,058 per month. The
chancellor granted full physical custody of their son to Tavia and set up a visitation schedule
for Mike. The chancellor also awarded attorney fees of $25,000 to Tavia, based upon her
attorney’s billing sheet and testimony regarding the representation. Mike timely perfected
his appeal.
TAVIA HUSETH’S MOTION TO STRIKE
MIKE HUSETH’S SUPPLEMENTAL BRIEF
¶8. On October 1, 2013, Mike filed a supplemental brief to inform this Court of the recent
decision of the Court of Appeals in Houston v. Houston, 121 So. 3d 283 (Miss. Ct. App.
2013). The case involved imputation of income based upon parental financial assistance. On
October 7, 2013, Tavia filed a motion to strike the supplemental brief from the record. Tavia
argues that citation to supplemental authority should be made only through a letter to the
Court pursuant to Mississippi Rule of Appellate Procedure 28(k).1 She also notes that
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“When pertinent . . . authorities come to the attention of counsel after the party’s
brief has been filed, . . . the party may promptly advise the clerk of the Supreme Court, by
letter with a copy to all counsel, setting forth the citations.” M.R.A.P. 28(k).
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Mississippi Rule of Appellate Procedure 28(d) states that, after the appellant has filed a reply
brief, “[n]o further briefs may be filed except with leave of the Court.” M.R.A.P. 28(d).
Tavia also has filed with this Court a letter notifying the Court of the Houston decision, in
compliance with Rule 28(k).
¶9. Tavia is correct. Mike filed his supplemental brief in violation of Rule 28(d) and failed
to comply with the procedures of supplemental citation provided by Rule 28(k). Further,
Tavia has complied with those rules and has made the Court aware of the supplemental
authority at issue. We therefore grant Tavia’s motion to strike Mike’s supplemental brief.
STANDARD OF REVIEW
¶10. Decisions to allow separate maintenance and amounts awarded are “matters within
the discretion of the chancellor. Further, these decisions will not be reversed unless they are
against the overwhelming weight of the evidence.” Honts v. Honts, 690 So. 2d 1151, 1153
(Miss. 1997). “On appeal, this Court will not overturn the chancery court unless its findings
were manifestly wrong.” Daigle v. Daigle, 626 So. 2d 140, 144 (Miss. 1993).
ANALYSIS
¶11. On appeal, Mike raises the following issues:
I. The chancellor erred in awarding separate maintenance.
II. The chancellor erred in imputing income to Mike and awarding
separate maintenance in the amount of $3,000 per month.
III. The chancellor erred in awarding child support as a percentage of gross
income instead of adjusted gross income and failed to properly
calculate the taxes on such incorrect and imputed income for both
support and maintenance.
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IV. The chancellor erred in failing to award Mike joint custody, or at least
more than standard time of visitation with his son.
V. The chancellor erred in awarding attorney fees and in awarding them
in the amount of $25,000.
¶12. Tavia disputes all of this and further argues that she should be awarded attorney fees
on appeal of one-half the amount awarded at trial, or $12,500.
I. Whether the chancellor erred in awarding separate maintenance.
¶13. “Separate maintenance is ‘a court-created equitable relief’ based upon the marriage
relationship.” Lynch v. Lynch, 616 So. 2d 294, 296 (Miss. 1993) (quoting Robinson v.
Robinson, 554 So. 2d 300, 303 (Miss. 1989)). It is a command from the court that the
married couple resume cohabitation, and, failing that, the party at fault for the separation
must provide suitable maintenance to his or her spouse until they are reconciled. Lynch, 616
So. 2d at 296.
While the law does not require a wife who leaves her husband to be blameless,
misconduct on her part which materially contributes to the separation, so that
it may be said that the fault of the wife is equal to or greater than that of the
husband, or that his fault was not sufficient to justify her leaving the domicile,
is a defense to her suit for separate maintenance.
Robinson v. Robinson, 554 So. 2d 300, 304 (Miss. 1989) (quoting King v. King, 246 Miss.
798, 801, 152 So. 2d 889, 891 (1963)). In other words, the chancellor may grant separate
maintenance if the wife can show separation without fault on her part combined with wilful
abandonment by the husband and the husband’s refusal to support her. Lynch, 616 So. 2d at
296.
¶14. Mike argues that the evidence shows that Tavia requested the separation, and
therefore, she is completely at fault for the separation. Tavia did testify that, one night, when
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Mike was taking a photograph of a bruise from a punch he said was administered by Tavia,
she told him something along the line of, “if you are just going to sit around the house and
take silly pictures like this then leave.” He also argues that she would not let him back into
the home to recover his possessions, see his son, or otherwise show any indication that she
wanted to resume cohabitation. He also emphasizes that, one day, Tavia told their lawn man
to “tell Mike to kiss my ass.” Mike argues that Tavia’s complaints about his behavior,
whether it be his drinking, affinity for pornography, or general unemployment, show that she
does not want him to come back. Overall, Mike argues that the fault of the separation lies
almost entirely with Tavia, or that she is at least as much at fault as he.
¶15. Tavia responds that Mike unequivocally abandoned the home. He left for two weeks,
and when he returned, he handed her a divorce attorney’s business card and told her it was
over. Mike did not dispute this. He repeated to her that it was over during the course of
several hours, as the two discussed it. That night, they engaged in sexual relations; but the
next morning, he left for good and again told her that it was over. She further explained that
her “kiss my ass” comment was in response to the lawn man’s telling her that she had to pay
him for mowing the lawn, even though Mike had told him to mow it. We conclude that Mike
failed to prove any specific behavior on the part of Tavia that prompted his leaving the house.
Instead, the evidence shows that Mike wanted to leave, and he left. Additionally, Tavia
testified that she had asked Mike to return several times, and that if he were to ask to return
that night, she would say yes. However, he did not ask to return that night.
¶16. Mike also argues that the chancellor applied the wrong legal standard in granting the
award. The chancellor, in announcing her ruling, stated that “there must be some evidence
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of treatment that would rise to the level of cruelty” on the part of the wife to justify a denial
of separate maintenance. Mike is correct that this is not the appropriate standard. Instead, the
wife must not be at fault at a level equal to or greater than the husband, and the husband must
have abandoned the home and refused support. See Lynch, 616 So. 2d at 296. But,
ultimately, the chancellor did not use the wrong standard. In announcing her opinion, the
chancellor cited Robinson for the proposition that the court must deny separate maintenance
“where the fault of the wife is equal to or greater than that of the husband.” The chancellor
then looked to the conduct of the parties and found that “Mr. Huseth left the marriage with
the direction that the marriage was over.” The chancellor found that the situation was one of
incompatibility, looked at all of the facts presented, and determined that Tavia’s fault was
not equal to or greater than Mike’s.
¶17. Both parties presented extensive testimony and evidence regarding the cause of the
separation. The chancellor applied the correct legal standard to determine whether Tavia, as
the petitioner for separate maintenance, had materially contributed to the separation to the
point that she was at least as much at fault as was Mike. The chancellor did not find that she
was. “The credibility of the witnesses and the weight of their testimony, as well as the
interpretation of evidence where it is capable of more than one reasonable interpretation, are
primarily for the chancellor as the trier of facts.” Rainey v. Rainey, 205 So. 2d 514, 515
(Miss. 1967). This decision was not against the overwhelming weight of the evidence, nor
was it manifestly wrong. The chancellor’s award of separate maintenance is affirmed.
II. Whether the chancellor erred in imputing income to Mike and
awarding separate maintenance in the amount of $3,000 per month.
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¶18. Mike argues that the chancellor erred in granting Tavia separate maintenance in the
amount of $3,000 per month when the record showed that Mike earns only about $3,700 per
month before taxes. When the separate maintenance is combined with the $988 per month
that Mike must pay in child support, Mike argues that he is responsible for paying more
money per month than he earns. He argues that the chancellor erred by imputing income to
him based on gifts and loans from his parents as well as his earning potential.
¶19. This Court has held that the amount of a separate maintenance award should be
enough “to provide, as nearly as possible, the same sort of normal support for the wife, all
things considered, as she would have received in the home, if the parties had continued
normal cohabitation.” Thompson v. Thompson, 527 So. 2d 617, 622 (Miss. 1988).
“However, the allowance should not unduly deplete the husband’s estate.” Id. When making
an award of separate maintenance, a court must consider:
(1) The health of both husband and wife;
(2) Their combined earning capacity;
(3) The reasonable needs of the wife and children;
(4) The necessary living expenses of the husband;
(5) The fact that the wife has free use of the home and furnishings; and
(6) Other such facts and circumstances bearing on the subject that might be
shown by the evidence.
Robinson, 554 So. 2d at 305 (citing Gray v. Gray, 484 So. 2d 1032, 1033 (Miss. 1986);
Tanner v. Tanner, 481 So. 2d 1063, 1065 (Miss. 1985)).
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¶20. Mike testified that his only source of income is his paycheck from Lakin Enterprises
of $3,709.06 per month. After taxes, he nets $2,520.47 per month. When he was fired from
his previous job at LES in 2010, he was earning $114,000 per year from that source. Since
then, he says he has been searching for work ceaselessly but has been unable to find
anything. Mike testified that he currently is living in a house that was purchased by his
mother and stepfather for which he pays no rent. He often gets by on loans from his parents.
He testified that he probably owes his parents around $300,000. He also has a debit card for
Lakin Enterprises with which he may make purchases beyond his salary if he gets approval
from his parents. Tavia submitted that she earns $5,122.16 per month after taxes. She also
submitted a list of monthly expenses paid by Mike, the largest of which is a $2,248 mortgage
payment.
¶21. It is undisputed that Mike’s parents provided substantial financial assistance to him
after he was discharged by LES. When he still was living with Tavia, his monthly expenses
exceeded his monthly income, but he was able to meet them through loans from his parents.
The chancellor noted that Mike’s parents purchased a home for him worth $275,000, for
which he pays no rent. She noted that Lakin Enterprises pays for his car, car insurance, and
telephone and internet bills. She found that “it’s clear that [Mike’s parents] stepped into the
role of helping to provide for the expenses. . . .” The chancellor considered this, along with
Mike’s earnings at LES, as a baseline for his earning potential and imputed an adjusted gross
income to Mike of $7,058 per month. She awarded fourteen percent of that, or $988, as child
support. The chancellor found that a separate maintenance award of $3,000 was equitable,
which was to be used by Tavia to pay her monthly expenses.
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¶22. Mike argues that the chancellor erred in imputing to him a salary based upon loans
from his parents and an earning capacity related to a salary he had been unable to attain in
the two years prior to trial. Tavia argues that the chancellor did not base the award on money
from his parents, but rather based it upon the expenses paid for Mike by Lakin Enterprises.
The chancellor found that Mike pays no rent, no car payment, no car insurance payment, no
telephone bill, and no internet bill. He has a debit card from Lakin Enterprises that he may
use with his parents’ permission. Tavia argues that the monthly combined estimated value
of the items and services that Mike’s parents are paying for is $4,497.15. According to her,
if that value is added to his actual salary of $3,709.06 per month, then it was reasonable for
the chancellor to impute an income of $7,058 to Mike.
¶23. The Court of Appeals recently decided a case in which gifts from parents were
imputed to the salary of a spouse forced to pay alimony. In Houston v. Houston, 121 So. 3d
283 (Miss. 2013), the Court of Appeals affirmed the chancellor’s decision to compute the
wife’s income partially based upon regular gifts from her wealthy parents. There, the
chancellor found that the wife’s income was “$3,000 per month based on the average value
of the amount of money her parents gave her each month.” Id. at 292. The wife cited the
decision in Robinson, 554 So. 2d at 305, in which this Court held that it was improper to
consider gratuities to the payee of separate maintenance in determining the amount of
maintenance for which the payor was responsible. The wife argued that, in her case, the court
should not consider gratuities given to her by her parents in determining her income.
Houston, 121 So. 3d at 292. In Houston, it was clear that the wife’s parents consistently had
provided her an allowance of between $2,000 and $4,000 per month throughout her marriage.
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Id. The Court of Appeals rejected that argument, stating that the chancellor was not
penalizing the wife for the gifts given by her parents. Id. “Instead, the chancellor merely
accepted the reality of the unique circumstances–Kellye’s parents consistently paid for
practically all of Kellye’s expenses and regularly supplemented her income.” Id.
¶24. We are faced with a problem in this case, because the chancellor never outlined the
amounts of the separate living expenses, paid for by Lakin Enterprises for Mike, upon which
the imputed income amount was based. We are able to look only at the lump sum amount of
the imputed income, without any consideration of the expenses that imputed income went
to pay. There are other reasons that the award may have been proper. For example, the
evidence admitted at trial showed that Mike’s monthly expenses, when he was living with
Tavia after being laid off, were $5,741.01. When confronted with those expenses, Mike said,
“That looks about right.” Those expenses included the monthly mortgage payment of $2,248.
Tavia is now responsible for paying the monthly house note out of the $3,000 separate
maintenance payment from Mike. This leaves her with an additional $752 per month in
support through separate maintenance.
¶25. In reaching her decision, the chancellor listed all of the payments made for Mike by
his parents and Lakin Enterprises. She listed the house that was purchased for him, his
automobile payments, and his “expenses related to telephone or technology expenses.” She
continued:
And the Court does impute those payments to his income. And after the Court
imputes those payments, the income is between $6,500 and $7,000 per month,
a benefit that he receives. And his prior salary over the years has ranged from
$90,000 approximately. I believe . . . that last job was $110,000.
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So based upon his prior, his abilities, his earning capacity, the Court finds that
it’s reasonable to impute the income to an amount of $7,058.
...
Now, with regard to separate maintenance, it is correct that Mrs. Huseth does
make more money if you look at actual income. But, of course, if you look at
the computing, imputing of the income then he does make more money.
...
So even if you look at the figure that the Court has imputed, even a 50 percent
award would be equitable. And that amount is $3,000, which would have to be
used for the payment of the expenses, which is listed on the exhibit, monthly
expenses paid by Mike Huseth.
And I know in the past I had divided it up into payment for specific expenses.
But this will be a lump sum amount.
¶26. The difference between this situation and that in Houston is that the cash gifts to the
wife in Houston were easily identifiable and went directly into the wife’s pocket. Here, the
gifts given to Mike were payment of his living expenses, including rent, automobile
payments, insurance premiums, cable and internet charges, and cell phone charges. By
imputing those payments as income to Mike, without offsetting the income with the
legitimate expenses paid by that income, the chancellor assumed Mike had the money
available to pay separate maintenance. In effect, the chancellor determined that,
hypothetically, if Mike had been paying for all of the expenses provided to him by Lakin
Enterprises, and he had $3,709.56 per month left over (his actual wages from his only current
job), then it would be as if he received a salary of $7,058 per month. The difficulty is that,
if Mike’s income was $7,058 per month, but he was spending $3,349 per month on his living
expenses, he would have only $3,709 left from which to pay child support and separate
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maintenance. Viewed this way, the award of $3,988 per month in separate maintenance and
child support payments is erroneous, as it requires Mike to pay more money per month than
he actually has. Further, because Mike nets only $2,520.47 per month after taxes, he is being
ordered to pay nearly $1,500 more per month than he has available. The amount that Mike
was ordered to pay for separate maintenance was calculated without appropriate regard for
“[t]he necessary living expenses of the husband.” Robinson, 554 So. 2d at 305.
¶27. This is a difficult and unique case. Mike’s living expenses are paid entirely by his
parents and/or Lakin Enterprises. In addition to that, he receives a salary from Lakin
Enterprises. When living with Tavia, he somehow managed to pay more than $5,000 dollars
per month in bills while netting only $2,520.47 per month in salary. This was accomplished
through assistance from his parents. Now that he has moved into the house his parents
purchased for him, he receives the same amount of cash, his living expenses are covered by
his parents, and he contends that $3,988 per month in separate maintenance and child support
is too much. Mike works minimal hours, and two years ago, he received more than $100,000
per year in wages. These circumstances are compelling in imputing additional income to
Mike. However, if imputed income is applied to Mike’s actual living expenses, those
expenses offset the imputed income and must be taken into account when determining the
amount of separate maintenance which Mike must pay.
¶28. Mike is on the hook for more money than he has the ability to pay at present. While
the imputation of income may have been correct, the amount of separate maintenance
awarded was improperly based on the chancellor’s incorrect belief that the money was
available to Mike for separate maintenance payments. Further, we are left to guess how much
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of the imputed income was due to Mike’s earning potential, especially in light of the fact that
the chancellor’s determination of earning potential was seemingly based upon a salary that
Mike had not received for two years. We require more detail in such judgments so that we
may properly determine if the chancery court has abused its discretion. Accordingly, we
reverse the chancellor’s determination of imputed income and award of separate
maintenance, and remand the case to the chancery court for a more detailed and more
accurate finding to support the amount of imputed income available for separate
maintenance, and for a determination of whether an award of separate maintenance is
appropriate, and that, if so, takes into account Mike’s reasonable living expenses.
III. The chancellor erred in awarding child support as a percentage of
gross income instead of adjusted gross income. The chancellor
failed to make specific findings of fact regarding the support and
maintenance determination.
¶29. Mike argues that the chancellor erred in awarding child support based upon fourteen
percent of his gross monthly income, rather than his adjusted gross monthly income. He
argues that this is clear because the chancellor did not include a tax analysis in her
determination. He also argues that it is unclear how the chancellor reached her determination
of his imputed income, and that the chancellor should have included specific findings.
¶30. The chancellor granted child support in the amount of $988, as that is fourteen percent
of the income of $7,058 the chancellor imputed to Mike. The chancellor’s judgment
specifically stated that $7,058 per month was Mike’s imputed “adjusted gross income.” In
accordance with the foregoing discussion regarding imputed income and separate
maintenance, this Court requires a more detailed finding by the chancellor regarding the
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numbers used to support her award of imputed income. Accordingly, we reverse the
chancellor’s award of child support and remand for a computation supported by her detailed
computation of Mike’s imputed income. Additionally, the chancellor’s computation of child
support based upon a percentage of Mike’s imputed income, using only the statutory
guidelines, did not properly reflect Mike’s ability to pay the child support. In awarding child
support, the chancellor should consider
1. The health of the husband and his earning capacity.
2. The health of the wife and her earning capacity;
3. The entire sources of income for both parties;
4. The reasonable needs of the wife;
5. The reasonable needs of the child;
6. The necessary living expenses of the husband;
7. The estimated amount of income taxes the respective parties must pay
on their incomes;
8. The fact that the wife has the free use of the home, furnishings, and
automobile, and
9. Such other facts and circumstances bearing on the subject that might be
shown by the evidence.
Gillespie v. Gillespie, 594 So. 2d 620, 622 (Miss. 1992) (emphasis added) (citing Brabham
v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955)).
¶31. “When entering a child support decree, the chancellor should consider all
circumstances relevant to the needs of the children and the capacities of the parents.”
Tedford v. Dempsey, 437 So. 2d 410, 422 (Miss. 1983) (second emphasis added). Here, the
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chancellor imputed the living expenses of Mike as income, without offsetting those same
expenses in her determination of the money Mike had available to pay child support. She did
not consider the necessary living expenses of the husband in computing the amount of child
support. Additionally, as noted previously, she failed to outline how much of Mike’s imputed
income was based upon his earning potential, and upon what his earning potential was based.
Therefore, we reverse the chancellor’s child support award and remand for a determination
of child support in which all of the facts and circumstances, including what Mike actually can
pay, are taken into account.
IV. Whether the chancellor erred in failing to award Mike joint
custody, or at least more than standard time of visitation with his
son.
¶32. Mike argues that the chancellor failed to conduct a full Albright analysis before
making her custody determination, and her determination therefore should be reversed. See
Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). Tavia counters that it was clear
that the chancellor considered the factors, even though she may not have given a detailed
account of her findings.
¶33. This area of the law is mixed in Mississippi. One commentator has noted that
“[f]ailure to make the required findings is one of the most common reasons for reversal of
a custody award.” Deborah Bell, Bell on Mississippi Family Law § 12.03[1] (2011).
Ideally, the court should (1) list each factor; (2) if a factor is inapplicable,
briefly state the reason the factor does not apply; (3) under each relevant
factor, discuss the evidence as it relates to each parent; (4) under each factor,
indicate which parent appears stronger; and (5) state which parent should be
awarded custody, discussing the overall balance of the factors in light of the
child’s best interests.
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Id.
¶34. This Court has reversed custody determinations based upon a chancellor’s failure to
make specific findings on the Albright factors. In Powell v. Ayars, 792 So. 2d 240, 244
(Miss. 2001), this Court reversed and remanded to the chancellor a custody determination
to make findings on each applicable Albright factor. The Court “refuse[d] to attempt to
correspond the Albright factors to the evidence found within the record. . . .” Id. That case
was reversed even though the chancellor discussed the evidence presented at trial.
¶35. However, in Sobieske v. Preslar, 755 So. 2d 410, 411-12 (Miss. 2000), this Court held
that, under the circumstances of the case, the chancellor’s failure to analyze the Albright
factors was not reversible error. “While it certainly would have been preferable for the
Chancellor to have expressly considered each Albright factor, it is perhaps understandable
that he did not do so in the present case, given that the testimony established that both
[parents] were fit and loving parents.” Id. at 412. There, both parents testified that the other
was a good and loving parent, and other witnesses testified to the same. Id. The Court said
that it would have “greater confidence” in the ruling if the chancellor had conducted an
Albright analysis, but “it can be inferred from his citation to Albright that he felt that both
parents were fit under Albright, and we can not say that he abused his discretion in
emphasizing that Carley has more friends and relatives in the Corinth area and in awarding
custody to Ricky, at least in part, on that basis.” Id. at 413.
¶36. The facts of this case lend themselves toward the Court’s determination in Sobieske.
The chancellor did not conduct a detailed analysis of the Albright factors on the record. She
did state that she had weighed the factors, however. Additionally, significant evidence was
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adduced by each party which was relevant to the Albright factors and the determination of
custody. In its ruling, the chancellor stated:
Based upon the Albright factors, and I can enumerate them, but in the
[interest] of time, let me just say that I have weighed the Albright factors and
also the actions of Mr. Huseth in leaving the family and find that the mother
is awarded the primary care and custody of the minor child of the parties.
¶37. In her order granting sole physical custody of the child to Tavia, the chancellor stated:
It is in the best interests of the minor child that the parties share joint legal
custody and that Tavia be awarded sole physical custody. Tavia and Mike are
hereby awarded joint legal custody. Tavia is hereby awarded sole physical
custody of the minor child, subject to Mike’s rights of visitation as set forth
below. . . .
¶38. Each parent testified that the other was a good and loving parent, as in Sobieske.
While Tavia expressed some complaints about Mike’s parenting, she nevertheless testified
that he was a good and loving father. Additional testimony from other witnesses corroborated
that assertion. The chancellor did find that it was in the best interest of the minor child to be
in the sole physical custody of Tavia. Additionally, the chancellor noted that the child should
have “a consistent, regular schedule at his home, which is with the mother.” This speaks to
the Albright factor of stability of the home environment. Clearly, the chancellor considered
it. Additionally, on appeal, Mike asserts that joint custody is in the best interest of their child.
However, he never pled for joint custody. His request, as pled, was for sole custody. At trial,
he testified that he wanted joint custody, but he never amended his pleadings in that regard.
¶39. In light of the amount of evidence adduced at trial that was relevant to the Albright
factors, the fact that each parent was shown to be a good parent, and the chancellor’s
indication that she had considered the factors by noting the stability achieved by the child’s
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staying with his mother, we find that Sobieske is controlling, and consequently, we affirm
the chancellor’s custody determination. Additionally, Mike’s argument that the chancellor
erred in giving him too little visitation time is without merit. The visitation schedule is within
statutory guidelines, and the chancellor’s decision is not manifestly wrong or against the
weight of the evidence.
V. Whether the chancellor erred in awarding attorney fees and in
awarding them in the amount of $25,000, and whether this Court
should award Tavia attorney fees in the amount of $12,500 for
litigating this appeal.
¶40. The chancellor awarded Tavia $25,000 in attorney fees, finding that the amount of
$30,000 was reasonable. She assigned that amount based only upon the present separate
maintenance and custody action, and not on the prior divorce action which Mike had
dismissed. The chancellor found that Tavia had the ability to pay $5,000, and that Mike
therefore was responsible for $25,000. Mike argues that this is excessive, and that he is
unable to pay it. Tavia argues that Mike’s attempt to gain sole custody was frivolous, and that
the chancellor’s award was reasonably based upon Mike’s misconduct.
¶41. Chancellors have broad discretion to determine attorney fees. Smith v. Smith, 614 So.
2d 394, 398 (Miss. 1993). “We are ‘reluctant to disturb a chancellor’s discretionary
determination whether or not to award attorney fees and of the amount of [any] award.” Id.
(quoting Geiger v. Geiger, 530 So. 2d 185, 187 (Miss. 1988)). Initially, we find that the
chancellor’s determination that $30,000 was a reasonable amount for attorney fees is
supported by substantial evidence and is not manifestly wrong. The bill was admitted into
evidence and the attorney testified about the reasonableness of the fees. Therefore, the
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amount of attorney fees is affirmed. It is another question, however, whether Mike should
be responsible for $25,000 of the bill. In awarding the attorney fees, the chancellor wrote:
The Court is in the opinion that Tavia Huseth is entitled to attorney fees. Ms.
Huseth has impressed upon the court her inability to pay all of her attorney
fees. Additionally, there have been a number of decisions upholding the award
of attorney’s fees to one party where the other party’s actions caused
additional legal fees to be incurred. Chesney v. Chesney, 849 So. 2d 860, 863
(Miss. 2002). Testimony was offered that Michael Huseth initiated the custody
action and it was meritless.
¶42. At trial, Tavia’s attorneys submitted their bill into evidence. Her attorney, William
Wright, also testified and submitted to questioning by Mike’s attorney, Mark Chinn. Chinn
stated that he did not object to Wright’s hourly rate or the rates of his staff, his qualifications,
or the entries on his bill; he simply wanted to understand the necessity of all the expense.
Wright contended that Mike’s petition for sole custody clearly was not made in good faith,
since he had testified that he really wanted joint custody but filed for sole custody so that he
could negotiate with Tavia. He also argued that Tavia was entitled to attorney fees because
Mike was the one who had left the marriage and the one who had caused the chancery
proceeding to occur.
¶43. Tavia argues that her inability to pay, combined with Mike’s allegedly frivolous suit
for sole custody, justify the award. She cites the Litigation Accountability Act of 1988,
which provides, in pertinent part:
[I]n any civil action . . . the court shall award . . . reasonable attorney’s fees
and costs against any party or attorney if the court, upon the motion of any
party or on its own motion, finds that an attorney or party brought an action,
or asserted any claim or defense, that is without substantial justification, or that
the action, or any claim or defense asserted, was interposed for delay or
harassment, or if it finds that an attorney or party unnecessarily expanded the
proceedings by other improper conduct. . . .
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Miss. Code Ann. § 11-55-5 (Rev. 2004). Similarly, our Rules of Civil Procedure state: “If
any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed
for the purpose of harassment or delay, the court may order such a party, or his attorney, or
both, to pay to the opposing party or parties the reasonable expenses incurred by such other
parties and by their attorneys, including reasonable attorneys’ fees.” M.R.C.P. 11(b).
¶44. Tavia cites this Court’s holding in In re Spencer, 985 So. 2d 330 (Miss. 2008), in
which this Court affirmed a chancellor’s findings that several motions filed by a party were
frivolous because they had no hope of success. She argues that, similarly, this chancellor
awarded the fees based on Mike’s misconduct. In Spencer, this Court noted that “a pleading
is frivolous ‘only when, objectively speaking, the pleader or movant has no hope of
success.’” Id. at 339 (quoting City of Madison v. Bryan, 763 So. 2d 162, 168 (Miss. 2000)).
Tavia argues that Mike’s petition for custody was frivolous, as it was intended only to bring
her to the negotiating table. However, that does not mean that the petition had no hope of
success. Objectively, it was possible that Mike’s petition could have been granted. Mike’s
intentions in filing the pleading are irrelevant, because the pleading itself was capable of
succeeding. Accordingly, the pleading is not frivolous, and Rule 11 sanctions are not
appropriate.
¶45. However, the chancellor still has discretion to award attorney fees based upon a
party’s misconduct. “A party who incurs legal fees as the result of another’s conduct may be
awarded fees without regard to need.” Bell on Mississippi Family Law § 10.03[1]. “There
have been a number of prior decisions upholding the award of attorney’s fees to one party
where the other party has been found to be in contempt of court or where that party’s actions
23
caused additional legal fees to be incurred.” Chesney v. Chesney, 849 So. 2d 860, 863 (Miss.
2002). There, this Court reversed the Court of Appeals’ denial of attorney fees based upon
the petitioner’s ability to pay them. Id. This Court held that the chancellor’s reasoning behind
awarding the fees, which was to impose sanctions for “conduct during the pendency of the
case that obstructs litigation and results in additional fees,” justified the award regardless of
the petitioner’s ability to pay her attorney. Id.
¶46. Here, the chancellor was presented evidence regarding Tavia’s attorney fees, which
totaled more than $47,000. The trial court limited the fees to the portion that was incurred
in the defense of Mike’s custody petition, and found that $30,000 was a reasonable amount.
She found that Mike’s petition for sole custody of the child was meritless, since he actually
had wanted joint custody, and Tavia stated that the matter would have been settled long ago
if that had been all that he requested. The chancellor found that Tavia could pay $5,000, and
Mike could pay $25,000. Based upon Chesney, we cannot say that the chancellor abused her
discretion or was manifestly wrong. Therefore, we affirm the chancellor’s award of attorney
fees.
¶47. However, we deny Tavia’s request for $12,500 in attorney fees on appeal. Typically,
this Court awards attorney fees on appeal in an amount equal to half the amount awarded at
trial. Monroe v. Monroe, 745 So. 2d 249, 253 (Miss. 1999) (quoting Klumb v. Klumb, 194
So. 2d 221, 225 (Miss. 1967)). In Monroe, the Court denied attorney fees because the
petitioner “presented no evidence . . . of the fees charged by her attorney or of the amount
of work involved.” Monroe, 745 So. 2d at 253. Tavia has presented no evidence of the fees
charged by her attorney or the amount of work involved on appeal. Further, as noted by the
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Court in Monroe, the fees awarded in Klumb were awarded to the prevailing party. Monroe,
745 So. 2d at 253. Tavia has not prevailed. Therefore, we deny her request for attorney fees
on appeal.
CONCLUSION
¶48. We affirm the judgment of the chancellor in part and reverse it in part. The
chancellor’s grant of separate maintenance and child support was supported by substantial
evidence and was not manifestly wrong. The chancellor’s determination of the amount of
imputed income was not supported by sufficient findings by the chancellor, and in the
absence of her specific computation of the amount, we must reverse and remand for specific
findings detailing how the chancellor arrived at that amount, and upon what she relied.
Because we reverse and remand for a new finding of imputed income, we also must reverse
and remand the chancellor’s determination of child support, in which the chancellor shall
consider all of the facts and circumstances regarding the parties’ ability to support the child,
rather than relying on the statutory guidelines. Further, the chancellor’s award of separate
maintenance did not take into account Mike’s necessary living expenses, and therefore must
be reversed. The amount of separate maintenance may be based upon imputed income, but
the amount of that income that goes towards living expenses must be considered. The
chancellor should have conducted an Albright analysis in awarding custody and visitation,
but the record reveals that she did consider those factors, and the evidence supported her
judgment, and we therefore affirm the chancellor’s custody and visitation determinations. We
affirm the award of $25,000 in attorney fees to Tavia, because the chancellor’s decision was
25
not manifestly wrong. Finally, because Tavia offered no evidence concerning her actual costs
in litigating this appeal, we deny her request for $12,500 in attorney fees for the appeal.
¶49. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
WALLER, C.J., DICKINSON, P.J., KING AND COLEMAN, JJ., CONCUR.
RANDOLPH, P.J., CONCURS IN PART WITHOUT SEPARATE WRITTEN
OPINION. PIERCE, J., CONCURS IN PART AND IN RESULT WITH SEPARATE
WRITTEN OPINION JOINED BY RANDOLPH, P.J., LAMAR AND CHANDLER,
JJ.
PIERCE, JUSTICE, CONCURRING IN PART AND IN RESULT:
¶50. I respectfully concur in part and in result only. My opinion parts ways with my
learned colleagues based on the majority’s use of Houston v. Houston, because I disagree
with the holding in that case. Houston v. Houston, 121 So. 3d 283 (Miss. Ct. App. 2013).
This Court was unable to speak to the issues in Houston, as writ of certiorari was not filed
with this Court. As the majority opinion states, in Houston, the Court of Appeals upheld the
trial court’s decision to include monetary gifts from the wife’s parents when calculating her
income during the determination of whether she would be awarded alimony. Id. However,
this Court has held that gratuities from parents may not be included when considering the
income of the payee to determine an award of separate maintenance. Robinson v. Robinson,
554 So. 2d 300, 305 (Miss. 1989) (citing McNeil v. McNeil, 127 Miss. 616, 90 So. 327, 329
(1922)). Specifically, this Court has stated the following:
We do not think it proper to consider mere gratuities given to the complainant
by her father. The duty to support the wife rests upon the husband, and he
cannot avoid the performance of this duty by showing that the father will
probably see that the wife does not suffer because the father is able to do so
and is manifesting a disposition to meet the wants of the daughter.
Robinson, 554 So. 2d at 305 (citing McNeil, 127 Miss. 616, 90 So. at 329).
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¶51. Because the situation before us involves a payor receiving gratuities from his parents,
it differs factually from the situation in both Robinson and McNeil, where gratuities were
bestowed upon the payee. Nevertheless, the analysis remains the same. Monetary gifts from
Mike’s parents should not be included in the amount of imputed income. If it is found that
Mike should provide separate maintenance, it is his duty alone to provide that support. Based
on Mike’s education and work history, it is not improper to impute income as long as a
determination of Mike’s earning capacity and current income does not include gratuities from
his parents.
¶52. I agree with the majority’s opinion that this case should be remanded. The trial court
must determine Mike’s earning capacity without any consideration of the parents’
contributions.
RANDOLPH, P.J., LAMAR AND CHANDLER, JJ., JOIN THIS OPINION.
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Michael A. Huseth v. Tavia M. Huseth
Combined Opinion