Weatherly v. Weatherly

1

SAMUEL WEATHERLY APPELLANT v. BRANDY WEATHERLY APPELLEE

No. 2022-CA-00804-COA

Court of Appeals of Mississippi

May 7, 2024

DATE OF JUDGMENT: 07/12/2022

HARRISON COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT, HON CARTER O. BISE, TRIAL JUDGE

ATTORNEY FOR APPELLANT: PATRICK TAYLOR GUILD

ATTORNEYS FOR APPELLEE: JOE SAM OWEN ASHLEY W. GUNN

LAWRENCE, J.

¶1. Sam and Brandy Weatherly were married and had one child, E.W.^[1] Sam and Brandy divorced on March 15, 2022. As part of the parties' divorce decree, the chancellor awarded both parties joint custody of E.W. with sole physical custody to Brandy and ordered Sam to pay child support. Additionally, the chancellor made an equitable distribution of the marital assets to each party. Sam appeals and argues that the chancellor erred (1) by awarding sole physical custody of E.W. to Brandy, (2) in setting the amount of child support payments to Brandy, (3) in making its marital property and equitable distribution analysis, (4) by not awarding him alimony, and (5) by not awarding him attorney's fees. Finding no error, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶2. Sam and Brandy married on October 2, 2010. At the time of their marriage, both parties lived and worked in Atlanta Georgia. Brandy was employed in medical sales by Cytyc, which later became Hologic and made an annual salary of approximately $300,000.00.^[2] Brandy testified this job required 20-25% overnight travel. Sam was a private investigator and made an annual salary of approximately $35,000-$38,000 between the years 2007 and 2011. It is undisputed that a large income disparity existed between the parties throughout their marriage. In 2011, Sam and Brandy moved to Kiln, Mississippi to be closer to Brandy's mother, Pam Ratliff.^[3] Sam testified there was less demand for private investigators in Mississippi, so his income decreased as a result of the move.

¶3. In 2013, E.W. was born, and Brandy's mother, Pam, became E.W.'s full-time babysitter while the parties worked. In 2016, Brandy, Sam, and E.W. moved to Pass Christian into their marital home.^[4] That same year, after a disagreement, Pam ended her role as E.W.'s nanny.^[5] Sam testified that as a result, he was required to take on the responsibility of caring for E.W., and his income drastically reduced. Brandy testified Sam "contributed very little" to the marriage financially and expressed frustration throughout the marriage as to this disparity. According to Brandy, the marriage had become a "loveless" one.

¶4. In September 2019, Brandy began having an affair with Cody Chapman, who resided in Arkansas.^[6] Sam discovered the affair shortly after it started. At the time of trial, Brandy and Cody were still dating, but Brandy testified that she and Cody had "no plans to get married." On September 23, 2019, Sam and Brandy constructively separated.^[7] On October 14, 2019, Brandy's father, Richard, passed away.^[8] Brandy subsequently became the administrator and one of the beneficiaries of his estate. On May 15, 2020, Sam filed a petition for divorce on the grounds of adultery, habitual cruel and inhuman treatment, or irreconcilable differences pursuant to Mississippi Code Annotated section 93-5-1 (Rev. 2018). On May 15, 2020, Sam filed a motion for temporary relief and asked for temporary full legal and physical custody of E.W. On June 3, 2020, Brandy filed her own motion for temporary relief and asked for temporary full legal and physical custody of E.W. ¶5. On November 18, 2020, a hearing on the parties' motions for temporary relief was held. On November 20, 2020, after considering all of the evidence, the court ordered joint legal custody of E.W. with sole physical custody to Brandy. Sam was awarded standard visitation with E.W. as well as additional visitation during any period of time that Brandy was out of town for a work obligation. The court awarded temporary use and possession of the marital home to Brandy and ordered Sam to vacate the home by November 24, 2020. The temporary order further ordered Brandy to pay $2,500.00 per month to Sam in temporary alimony.^[9]

¶6. On November 30, 2020, Sam filed a motion for reconsideration and asserted that the court's temporary order was against the overwhelming weight of the evidence. On February 10, 2021, a hearing on Sam's motion for reconsideration took place. On February 24, 2021, the court entered an order denying the motion. On June 3, 2021, Sam filed a motion to modify the temporary order, which was heard on June 28, 2021.^[10]

¶7. On November 8, 9, 10, 12, 17, 18, and 22, 2021, a seven-day trial took place. Sam called Brandy to testify. Brandy testified that she and Sam were married in 2010. Brandy testified that a disparity in income between her and Sam was a continuous source of tension in the marriage and started "before [E.W.] was born." After experiencing fertility issues, Brandy conceived E.W. with the assistance of IVF.^[11] Brandy described E.W. as her "biggest blessing." She testified that Sam kept promising her that he would "contribute to [their] family" financially, but it "never happened." She testified that ultimately she and Sam merely "coexisted" in a "loveless marriage."^[12] Brandy would often come home "after working all day" to Sam playing video games. She stated Sam "knew how stressed out [she] was with working [her]self literally to death, and he wouldn't do anything about it." Brandy admitted that in September 2019, she had an affair with Cody.^[13] Sam discovered the affair "the very next day" and Sam and Brandy constructively separated, though Sam remained in the marital home "despite how tense the house was."^[14] Brandy testified E.W. has "never been around" Cody since Brandy and Cody started dating, and she has no plans of marrying him.^[15]

¶8. Brandy testified that in October 2019, her father, Richard, was murdered. After his death, she became the executrix and 40%-beneficiary of his estate.^[16] Brandy received an early distribution from the estate of $41,000. Additionally, she received a life insurance check for $100,358.00 ^[17] Brandy testified she had an apartment in Arkansas, paid for by Richard's estate, where she stayed while attending to estate matters.^[18]

¶9. Brandy testified she "paid the financial burden for [her] family for years," with Sam paying approximately "$7,000" toward the family finances between January 2018 and the date of the November 2021 trial. Brandy's Rule 8.05 financial statement indicated that in 2021, she made a "gross monthly income" of "$20,937.75."^[19] Sam's Rule 8.05 financial statement indicated that in 2021, he made a net monthly income of "$1,952.54" working for Lemieux and Associates LLC and "$1,438.92[,]" minus expenses, for his self-employment with Weatherly Investigations LLC. Both parties' Rule 8.05 financial statements were admitted into evidence.

¶10. Sam called Jonathan Malley, a neighbor of Sam and Brandy, who testified that the parties would regularly attend social gatherings at their home. Sam called Dustin Hebert, another neighbor. The relevant portions of this testimony will be discussed in more detail in the analysis.

¶11. Sam was called to testify. Sam testified that he worked as a private investigator from the time he was eighteen years old. He testified he attended college but never earned a degree. At the time of his marriage to Brandy in 2010, Sam was making an average annual income of $35,000-$38,000. When the parties decided to move to Mississippi, Sam explained to Brandy that his income would decrease due to less demand. Shortly after the move in 2011, Sam started his own company, Weatherly Investigations LLC, but also worked for Contego Investigative Services. Sam testified that his income did decrease, but it continued to grow with time; in 2016, Sam made $51,593.60-the "most [he] ever made." In 2016, after Pam ended her role as E.W.'s babysitter, Sam had to take on more of the caregiving responsibilities and his income decreased "a significant amount." Specifically, in 2017, Sam's annual income decreased to $3,470. Sam explained this decrease was due to his "lack of availability." Sam testified that Brandy never expressed concerns to him regarding his employment or income. Attached to Sam's Rule 8.05 financial statement, which was admitted into evidence, was an appraisal report on the marital home dated September 5, 2021. This report valued the marital home at $975,000.00.^[20]

¶12. On cross-examination, Sam confirmed that he contributed $18,158.27 to the marriage between the six-year period of 2015 to 2020. This averaged out to around $3,000 a year. The checks evincing these payments were entered into evidence. ^[21] Sam confirmed that the household expenses during this same time frame were approximately $136,489.44 a year. Sam testified there were other expenses he paid for directly from his "business checking account," but he never provided documentation as to these exact figures.

¶13. Brandy also called her mother, Pam Ratliff, who testified as to an incident where Sam spanked E.W. in an "extremely harsh" manner. Pam and Brandy exchanged emails following the encounter, and those emails were entered into evidence. Pam testified that it was this incident that led to her ending her employment as E.W.'s full-time babysitter.

¶14. Allen Purvis was called to testify. Allen was accepted as a certified residential appraiser. Allen testified he conducted an appraisal on the marital home on September 8, 2021, and prepared an appraisal report. According to this report, Allen opined that the fair market value of the marital home was $715,000. The appraisal report was admitted into evidence.^[22]

¶15. On January 7, 2022, the court entered an order to supplement the record to allow the parties to provide...