Alves-Hunter v. Hunter

1

TERRY LYNN ALVES-HUNTER APPELLANT/ CROSS-APPELLEE v. SETH HUNTER APPELLEE/ CROSS-APPELLANT

No. 2021-CA-00644-COA

Court of Appeals of Mississippi

November 8, 2022

DATE OF JUDGMENT: 11/05/2020

DESOTO COUNTY CHANCERY COURT HON. VICKI B. DANIELS TRIAL JUDGE

ATTORNEY FOR APPELLANT: HEATHER MARIE ABY

ATTORNEY FOR APPELLEE: JERRY WESLEY HISAW

BEFORE WILSON, P.J., WESTBROOKS AND EMFINGER, JJ.

WESTBROOKS, J.

¶1. Terry Alves-Hunter and Seth Hunter were granted a divorce on the sole ground of adultery by the DeSoto County Chancery Court. Terry appeals the chancery court's award to Seth of standard visitation with J.H.^[1] the parties' minor child. Terry also appeals the chancery court's division of the marital estate. Seth cross-appeals the chancery court's denial of attorney's fees after Terry was found in contempt of court. Finding no reversible error in the chancery court's assessment of visitation, equitable division, or attorney's fees, we affirm the chancery court's judgment on both appeal and cross-appeal.

FACTS AND PROCEDURAL HISTORY

A. Legal Proceedings

¶2. Terry and Seth were married on December 29, 2007, in Boston Massachusetts. Although no children were born of the marriage, the parties adopted J.H. in 2014. The parties moved to Mississippi in 2017, purchasing a home in DeSoto County. Seth filed for divorce in the DeSoto County Chancery Court on the ground of habitual cruel and inhuman treatment. Seth also requested sole custody of J.H. in his complaint, but at trial stipulated that Terry should have sole physical custody of the minor child. Terry answered and brought a counter-claim for divorce on the grounds of habitual cruel and inhuman treatment, habitual drunkenness, or adultery.

¶3. On August 19, 2019, the chancery court issued a temporary order that required (1) Terry to replace $3,000 she withdrew from the parties' Capitol One account; (2) granting joint legal custody of J.H. to both parties with Terry having temporary physical custody; (3) standard visitation with J.H to Seth; and (4) $1,000 per month as child support to Terry, who also would keep the child adoption stipend for J.H. in the amount of approximately $1,083. The parties were also ordered not to further dissipate the marital estate.

¶4. On September 13, 2019, Terry filed for divorce in Massachusetts, where she, J.H., and Seth were then residing. This divorce case was dismissed by the Massachusetts court after it recognized that Mississippi had jurisdiction over the matter. Seth filed a petition for contempt in relation to this filing and also alleged that Terry had refused to allow him visitation with J.H. ¶5. On October 21, 2019, Terry filed a petition to modify the temporary order and for emergency relief. This petition noted that by the time the temporary order was negotiated, she and J.H. had already moved to Massachusetts. She requested a modification to set the meeting point between the parties and a modification to the holidays to reflect the Massachusetts public-school holidays. She also informed the chancery court that an "Abuse Prevention Order" had been issued in Massachusetts prohibiting Seth from contacting her or knowing her address. The Abuse Prevention Order was based on a violent incident that occurred when the parties were vacationing in Florida in May 2018. According to Terry, Seth had punched and choked her in a hotel room after she moved $20,000 from a joint checking account to her private account. Seth was arrested as a result of this incident, though the charges were later dropped.

¶6. The Abuse Prevention Order also extended to cover J.H. The order was modified by the Massachusetts court to allow communication relevant to financial issues and J.H.'s childcare, as well as to allow Seth to have contact with J.H. by telephone, email, and social media. The order, entered on August 9, 2019, was originally set to expire on August 19, 2019. It was extended for an additional year after modification by the Massachusetts court.

¶7. Terry filed an additional petition for emergency relief on January 29, 2020, regarding Seth's termination of her health insurance and requesting one of two marital vehicles, a Chevy Malibu, due to the repossession of her vehicle, a Mercedes. On February 24, 2020, the chancery court issued an order for temporary relief that required Seth to reinstate health insurance for Terry and J.H. The court declined to require Seth to turn over possession of the Chevy Malibu. The order also required Seth to use a homeowner's insurance payment for the repair of tornado damage to the DeSoto County marital home

¶8. On July 14, 2020, Terry filed three additional motions. The first, a motion for contempt, alleged that Seth had not paid (1) for repairs to the DeSoto County home from the tornado damage; (2) the house note on the DeSoto County home; or (3) his share of medical expenses for J.H. Next, Terry asked for temporary relief as a result of being terminated during the COVID-19 pandemic. Finally, Terry asked the chancery court to modify its temporary order from August 19, 2019, to temporarily suspend Seth's in-person visitation with J.H. because Seth had only participated in one short visit with J.H. since November 2019.

¶9. On July 27, 2020, the chancery court entered its order for contempt nunc pro tunc to November 4, 2019. The chancery court ruled, among other things, that Terry violated the court's order by refusing to have J.H. at the designated place and time for Seth to exercise his court-ordered visitation. On August 3, 2020, the court entered an order on the second petition for temporary relief, granting Terry $800 in temporary spousal support with the stipulation that the alimony "shall be reduced dollar for dollar by the amount of any federal unemployment benefit" she received.

B. Trial

1. Seth's Testimony

¶10. On October 6, 2020, a trial commenced on the matter. During the trial Seth testified that the cause of the separation was the altercation that had occurred in a Florida hotel. Seth testified about several unsettling incidents with Terry, including when he alleged she

(1) failed for years to inform him that they received an adoption stipend for J.H.;

(2) signed his name to the adoption subsidy contract without his permission or consent;

(3) filed child endangerment and neglect charges after an aborted visit with J.H. (No wrongdoing was found after the protective services investigation.);

(4) provided a misspelled email address to J.H.'s therapist, resulting in Seth not receiving the therapist's emails;

(5) surrendered the registration title for the Chevy Malibu to the DeSoto County Tax Collector's office, which prevented Seth from renewing the expired tag in Massachusetts, then calling the police regarding the expired tag;

(6) placed a tracker on the Chevy Malibu the same day the registration expired, which was recorded by security cameras;

(7) removed the COVID-19 forbearance Seth placed on the DeSoto County marital home, which Seth later reinstated;

(8) accepted his alimony payments even though she was collecting unemployment (going against the court's previous order);

(9) transferred and subsequently dissipated large sums of marital money to her banking accounts (this amount includes the $20,000 transfer Terry admitted to which both parties agree was the basis of the Florida argument);

(10) refinanced a Massachusetts house that the couple lived in for approximately nine years after their marriage that was in her name alone, and took all of the equity (approximately $25,000) out of the house, keeping it for herself;

(11) "charg[ed] up" her credit cards after the parties refinanced their DeSoto County home and used the equity cash out to pay off their credit cards (Seth testified a second refinance on the DeSoto County home in the amount of $8,000 was used for household bills and repairs); and

(12) he acquired Terry's address (which was impounded by order of the Massachusetts trial court, and Seth was not supposed to know it) because he received a credit alert that someone at Terry's address was attempting to use his credit.

Seth also testified at length regarding the couple's premarital and joint assets.

2. Terry's Testimony

a. Assets

¶11. Terry also testified regarding the parties' assets and the location of various amounts of marital funds. She also testified that the DeSoto County home, then under contract, was expected to yield $6,000 after its sale. She explained that her federal unemployment had been paused because of some potential identity fraud related to her impounded address, though the payment resumed later without resolving who used her address to make the fraudulent request. She discussed and described the eleven credit card accounts listed on her Rule 8.05 financial statement. UCCR 8.05. She testified at length regarding J.H.'s special needs and services provided to him by the State of Massachusetts and regarding Seth's lack of participation in these appointments.

b. Adultery

¶12. Terry testified regarding the ground of adultery, noting bank charges for online adult websites and that Seth's phone contained "Google locations" that showed him at massage parlors that were later shut down for prostitution. She also described a May 2018 email between Seth and another woman, stating that "he wanted to get together and sizzle up the sheets." Seth later stipulated to divorce on the adultery ground without any testimony regarding the matter. There was no testimony from either party regarding financial resources used to perpetuate the adultery.

c. Visitation

¶13. After this brief mention regarding the sole ground for divorce, Terry also related how after the aborted visitation with Seth in November, J.H. "was crying[,] He was shaking. He was saying that...