Burnham v. Burnham

185 So.3d 386

Matthew BURNHAM, Appellant

v.Dana BURNHAM, Appellee.

No. 2012–CA–01218–COA.

Court of Appeals of Mississippi.

June 16, 2015.

Thomas T. Buchanan, Laurel, John D. Smallwood, attorneys for appellant.

David Alan Pumford, Hattiesburg, attorney for appellee.

EN BANC.

FAIR, J., for the Court:

¶ 1. The motion for rehearing is granted. The original opinion is withdrawn and this opinion substituted.

¶ 2. In this appeal from a judgment of divorce, Matthew Burnham argues that the chancery court ordered him to pay too much child support and that its division of the marital property was inequitable. We find that substantial evidence supports the chancellor's finding that Matthew could earn, and had earned, more than he claimed to be making, and that the property division, though unequal, was within the chancellor's discretion because it was calculated to eliminate the need for alimony. We affirm the judgment.

STANDARD OF REVIEW

¶ 3. Matthew contends that the judgment should be subject to a "heightened" standard of review because the chancellor largely adopted the proposed findings of fact and conclusions of law submitted by Dana. We do not agree; in Bluewater Logistics, LLC v. Williford, 55 So.3d 148, 155–157 (¶¶ 24–33) (Miss.2011), the Mississippi Supreme Court unambiguously held that the "heightened scrutiny" standard sometimes articulated in the past was illusory and that there is, in practice, no special standard of review for cases where the chancellor adopts the proposed findings of fact offered by one of the parties. Last year, the supreme court unanimously reaffirmed Bluewater, holding: "[T]his Court recently rejected the argument that factual findings should be reviewed under any sort of ‘heightened scrutiny,’ even if they are adopted verbatim from a party's proposed findings of fact." Miss. Comm'n on Envtl. Quality v. Bell Utils. of Miss., LLC, 135 So.3d 868, 877 n. 9 (Miss.2014).

¶ 4. "When [an appellate court] reviews a chancellor's decision in a case involving divorce and all related issues, our scope of review is limited by the substantial evidence/manifest error rule." Yelverton v. Yelverton, 961 So.2d 19, 24 (¶ 6) (Miss.2007). Therefore, this Court will not disturb the chancellor's findings "unless the chancellor was manifestly wrong, clearly erroneous or a clearly erroneous standard was applied." Id. (citation omitted).

DISCUSSION

¶ 5. Matthew and Dana were married in 1999. The marriage produced two daughters, born in 2006 and 2008. At the time of the separation, Dana was a stay-at-home mom, while Matthew was a biology instructor at Jones County Junior College and a part-time farmer. Ultimately, the parties agreed to an irreconcilable differences divorce with Dana having custody of the children. The issues of child support, property division, and alimony were submitted to the court and form the basis of Matthew's appeal.

1. Child Support

¶ 6. Matthew was ordered to pay $600 per month in support of his two children. On appeal, he argues that the chancellor erred by not following the child-support guidelines, which for two children specify 20% of the obligor parent's adjusted gross income. See Miss.Code Ann. § 43–19–101 (Supp.2014). According to Matthew, the number the chancellor should have arrived at had he followed the guidelines is $523.61 per month.

¶ 7. Matthew's Rule 8.05¹ statement gave his monthly gross income as $4,189.58 "based on one check from 2012." But his 2011 W–2 from JCJC indicated gross monthly income of approximately $4,548, and the 2010 figure is even higher. If the chancellor had applied the guidelines to the $4,548 number and accepted Matthew's adjustments, he would have arrived at approximately $600 per month, which is what was ordered. Matthew also makes some dubious adjustments to his income, such as $667 per month for "mandatory insurance," but Dana has not cross-appealed asking for an increase in support.

¶ 8. Furthermore, Matthew's argument is premised around his claim that his income was—and only could be—the salary he was paid by Jones County Junior College. But the chancellor was quite clear that, even though he apparently accepted Matthew's claim of a gross monthly income from the college of $4,190, as well as Matthew's various downward adjustments, additional income was imputed because Matthew had the ability to earn more.

¶ 9. The record supports this overwhelmingly. Matthew had a Ph.D. and his job at the junior college required him to work, by his own admission, only six hours a day for nine months out of the year. According to his prior W–2s, Matthew had previously been earning up to ten thousand dollars a year more from the teaching position, and it is unclear why he earned less at the time of the divorce. Matthew also previously had a side business trading in cattle, and though he claimed it did not make money, the chancellor found that Matthew had not been forthcoming about his finances. Matthew was also awarded marital assets, including real property, intended to be used to generate additional income.

¶ 10. All of these facts support the chancellor's conclusion that Matthew could earn more money than he claimed to be making at the time of trial. The chancellor may impute additional income to an obligor parent who has voluntarily chosen to make less than he has the capacity to earn. Selman v. Selman, 722 So.2d 547, 555 (¶ 36) (Miss.1998).

¶ 11. The amount of income the chancellor would have to impute to Matthew was quite small and is readily determinable—about $380 per month, or roughly $4,560 per year, if we accept that the chancellor employed the guidelines, as he said he did. Furthermore, the chancellor's failure to explicitly state how much income he imputed to Matthew is not reversible error. Clark v. Clark, 754 So.2d 450 (Miss.1999), is directly on point. There, the chancellor imputed an unspecified amount of income to the father and awarded $600 per month in support for three children. The supreme court held:

[W]hen a chancellor chooses not to follow the guidelines, this Court has enforced the statutory requirement that the chancellor make an on-the-record determination that the guidelines do not apply. In this case, Richard reported a gross income of $30,500 in 1996 and was ordered to pay a total of $600 per month in child support. Even if Richard's reported gross income were not adjusted for taxes, etc., as provided for in the statute, the $600 award would exceed the statutory guidelines. That is, the amount awarded was approximately 23.61% of the gross income reported in Richard's 1996 tax return.

However, "this Court is charged with reviewing the entire record." Anderson v. Anderson, 692 So.2d 65, 71 (Miss.1997). The chancellor found, based on expert testimony and Richard's own testimony, that Richard was hiding assets and income, in order to avoid financial responsibility to his children and his wife of 33 years. In fact, based solely on the testimony regarding the payment of Richard's employees, it was evident that Richard made more than he said he did (or he could not have paid his workers). Thus, applying the statutory guidelines to Richard's reported income would not be accurate in this case.

Furthermore, a deeper study of the record indicates that the chancellor was not intentionally deviating from the statutory guidelines. Rather, the chancellor was attempting to follow the statutory schedule for child support payments.

Moreover, the $600 monthly award would be correct, if Richard's adjusted gross income were $32,727.27. The record supports such an award. Also, at the motion for rehearing, the chancellor offered to re-evaluate the figures, if Richard would submit more complete financial data. Thus, any perceived inaccuracies in the calculation could have been corrected, if Richard had been more forthcoming about his actual income. For all these reasons, it appears that Richard's argument on this point is without merit.

Id. at 459 (¶¶ 53–56) (internal citations omitted).

¶ 12. We affirm the chancellor's award of child support since the imputation of additional income is supported by the record.

2. Equitable Division

¶ 13. Matthew's principal complaint is with the division of the marital property: he claims that it was unfair to award Dana most of the assets while saddling him with the marital debt. Not counting household goods, the couple's marital assets had a total value of $521,130.48 accompanied by a total debt of $225,472.79.

¶ 14. Dana was awarded an automobile valued at $27,000, a Roth IRA in her name valued at $1,226.87, and half of Matthew's deferred compensation and state retirement accounts, together valued at $53,911.47.

¶ 15. Matthew received half of his retirement and deferred compensation accounts, plus a Roth IRA in his name worth $730.67, two automobiles valued at $5,000 each, 9.62 acres of land valued at $10,000, and a mobile home and accompanying land valued at $15,000.

¶ 16. The two largest assets were the marital residence, valued at $250,000, and approximately 51 acres of land which had been used in Matthew's farming operation, valued at $94,350. The chancellor ordered these two properties to be held until the youngest child reaches the age of majority, at which point they would be sold. Matthew would receive 75% of the value of the 51 acres and 25% of the value of the home, with Dana getting the rest. In the meantime, Dana would have possession of the home, Matthew the 51 acres, and Matthew would be responsible for the encumbrances, taxes, and insurance on both properties.

¶ 17. The debts were Matthew's student loans, at $8,479.95, the mortgage on the marital home, at $48,554.63, a home-equity line of credit secured by the house of approximately $100,000, and a $68,438.21 mortgage on the 51 acres.

¶ 18. To equitably divide property, the chancellor must: (1) classify the parties' assets as marital or separate, (2) value those assets, and (3) equitably divide the marital assets. Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994). The value of...