Lomax v. Lomax

172 So.3d 1258

Maxwell LOMAX, Appellant

v.Tara Johnson LOMAX, Appellee.

No. 2014–CA–00865–COA.

Court of Appeals of Mississippi.

Aug. 11, 2015.

David Clay Vanderburg, Maxwell Lomax, appellants, pro se.

M.W. Zummach, attorney for appellee.

Before IRVING, P.J., BARNES, and FAIR, JJ.

Opinion

BARNES, J., for the Court:

¶ 1. Maxwell (Max) and Tara Johnson Lomax were married on October 25, 2013. The couple, who had a troubled relationship prior to the marriage, separated less than three months later, on January 11, 2014. There were no children born of the marriage, and the couple acquired no real property during the marriage.

¶ 2. Tara filed a complaint for divorce on February 7, 2014, alleging habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Max contested the divorce. Tara amended her complaint on April 16, 2014, claiming Max was addicted to illicit drugs.

¶ 3. After a hearing on the matter on May 23, 2013, the DeSoto County Chancery Court granted the divorce on the ground of habitual cruel and inhuman treatment. Although the chancellor concluded that the couple had no marital property, he determined that the couple had incurred $5,000 in debt, which included $2,000 expended for Max's business leads and $3,000 for wedding expenses. He ordered Max to pay Tara $3,500 toward that debt within forty-five days of the order. Tara was awarded the engagement ring given to her by Max, along with the couple's two vehicles, as she held sole title to both of them.

¶ 4. Max filed a post-trial motion, arguing there was insufficient proof to support a divorce of the ground of habitual cruel and inhuman treatment, and that the award of the engagement ring to Tara was in error. The chancellor denied the motion. On June 20, 2014, Max appealed.¹ Finding no error, we affirm.

STANDARD OF REVIEW

¶ 5. In domestic-relation cases, our review is limited to whether the chancery court's findings were “manifestly wrong or clearly erroneous, or the court applied the wrong legal standard.” Jackson v. Jackson, 114 So.3d 768, 773 (¶ 10) (Miss.Ct.App.2013). If there is substantial evidence in the record to support the chancery court's findings of fact, we will not reverse its decision on appeal. Henrichs v. Henrichs, 32 So.3d 1202, 1205 (¶ 8) (Miss.Ct.App.2009).

I. Whether the chancery court erred in granting the divorce on the ground of habitual cruel and inhuman treatment.

¶ 6. Max claims that the chancery court should not have granted Tara a divorce on the ground of habitual cruel and inhuman treatment, which encompasses conduct that either:

(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the nonoffending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Harmon v. Harmon, 141 So.3d 37, 41 (¶ 14) (Miss.Ct.App.2014) (quoting Smith v. Smith, 90 So.3d 1259, 1262 (¶ 10) (Miss.Ct.App.2011) ). Such conduct must constitute more than mere unkindness, lack of affection, or incompatibility. Id. (citing Jackson v. Jackson, 922 So.2d 53, 56 (¶ 4) (Miss.Ct.App.2006) ). Furthermore, “[t]he cruel treatment must be routine and continuous.” Jackson, 922 So.2d at 56 (¶ 4) (citing Moore v. Moore, 757 So.2d 1043, 1047 (¶ 16) (Miss.Ct.App.2000) ).

¶ 7. At the hearing, neither party disputed they had a tumultuous relationship prior to their marriage that had resulted in physical altercations, with one incident involving police intervention. However, Max claimed there was no ground for divorce, as he had never physically assaulted Tara during their marriage, and he wanted to seek marriage counseling rather than divorce. Tara, on the other hand, stated that Max had physically abused her on a consistent basis after the marriage. She submitted photographic evidence of injuries (multiple bruises, a busted lip, and a cut forehead ) to her face and body. Tara claimed that the injuries depicted in the photos were inflicted during the marriage, and she could not continue to stay married to Max.

Q. You heard [Max] say that he, quote, absolutely did not strike you after y'all got married. Was that true?

A. No.

Q. The photographs that you have, are those the only times that you were injured and you took photos, or were there other times that you didn't take photos.

A. There were other times.

Q. Do you feel safe in that house?

A. No.

¶ 8. Evidence of emotional abuse was also presented through text messages sent from Max to Tara, concerning her weight fluctuation, among other matters. During direct examination, Tara testified that the texts were “just a sampling. I mean, I've suffered so much emotional abuse from him[,] along with physical abuse. It's just unreal .... throwing things at me when he loses his temper, hitting me. I mean ... he's a loose cannon. He's violent. He cusses me out. He, you know, insults me.” Tara further testified that two marriage counselors, from whom the couple had sought assistance, had advised them to divorce.

¶ 9. Max claims that the chancery court erroneously “den[ied]” relevant evidence regarding fights between Max and Tara that occurred prior to the marriage. He refers to his testimony regarding two separate altercations, and DeSoto County Deputy Sheriff James Gray's testimony that he investigated one of the domestic incidents between Tara and Max. He claims this testimony disproves Tara's statement that her injuries occurred during the marriage. We find no merit to Max's argument; the record clearly indicates that both Max and Gray were allowed to testify regarding the pre-marriage altercations between the parties. The chancery court merely concluded that Deputy Gray's testimony was not relevant because the parties did not dispute that the pre-marriage argument took place. Furthermore, Deputy Gray was unable to confirm that the photographic evidence reflected any of the injuries he saw on Tara that evening.

¶ 10. Consequently, we find there was ample evidence to support the chancellor's judgment, granting a divorce on the ground of habitual cruel and inhuman treatment.

II. Whether the chancery court erred in its equitable distribution of marital property.

¶ 11. The main point of contention in the divorce and the determination of marital property concerned the chancery court's award of the engagement ring to Tara. The chancellor concluded that Tara was entitled to keep the ring, which had previously belonged to Max's mother, since Max had given the ring to Tara as an inter vivos gift prior to the marriage. Max argues that the parties had an oral agreement that if the marriage did not work out, the ring would be returned to his mother. At the hearing, Max testified that his mother's ring was given to Tara under the condition that once Max could afford another stone for the ring setting they had purchased, she would return the ring.

¶ 12. Tara, however, emphatically denied that there was an actual agreement that the ring would be returned, but she acknowledged that after the couple separated, she told her mother-in-law she wanted to be “fair” and return the stone. But she explained at the hearing that when she made that comment to Max's mother, she “didn't realize that [Max] intentionally wanted to cost [her] $20,000” to obtain the divorce.

¶ 13. In Neville v. Neville, 734 So.2d 352, 357 (¶ 19) (Miss.Ct.App.1999), this Court held that since an engagement ring was a gift that predated the marriage of the parties, it “was not a marital asset subject to equitable division.” “It was, therefore, beyond the chancellor's authority to order [the wife] to return possession of that item to [the husband] and [the chancellor's] refusal to do so cannot constitute reversible error on appeal.” Id. Accordingly, we find no error in the chancellor's decision to award the engagement ring to Tara.

¶ 14. Additionally, Max summarily states that he received no interest in the Range Rover that was purchased during the marriage, although he makes no actual claim on appeal that the Range Rover was marital property. However, Tara was solely responsible for the loan payments on the Range Rover, and she sold her former vehicle to pay equity towards the Range Rover's purchase. Therefore, we find no error in the chancery court's determination that this personal property was Tara's non-marital property.

III. Whether Tara was entitled to attorney's fees at trial and on appeal.

¶ 15. In both her original and amended complaint for divorce, Tara requested that she receive attorney's fees “for both temporary and permanent matters.” In his response to the amended complaint, Max asked the chancery court to “assess all court cost[s] and attorney'[s] fees against the plaintiff, Tara Lomax.” (Emphasis added). At the hearing, the chancellor stated:

With respect to the request for attorney['s] fees by both parties, the Court ... finds that an inability to pay must be shown before attorney['s] fees may be awarded in a divorce case. Both parties here have adequate estates and income which would allow them to pay their attorney['s] fees, and accordingly, no inability to pay has been shown by either party, and both will be responsible for the payment of their own attorney['s] fees.

Thus, in the May 28, 2014 order granting the divorce, the chancery court stated that “[both] part[ies have] an adequate estate to pay their own attorney ['s] fees, and [both] part[ies are] responsible for their own attorney ['s] fees.”

¶ 16. Tara contends in her appellee's brief that the chancery court erred in not ordering Max to pay her attorney's fees, arguing that “[t]he appeal [by Max] is clearly for the purposes of increasing [her] attorney['s] fees and is nothing more than rank harassment.” She requests that this Court invoke Rule 38 of the Mississippi Rules of Appellate Procedure and award her attorney's fees and costs of the appeal. Max did not...