Kimberlana Elkins v. Robert D. Elkins , 238 So. 3d 1204 ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CP-00444-COA
KIMBERLANA ELKINS APPELLANT
v.
ROBERT D. ELKINS APPELLEE
DATE OF JUDGMENT: 02/10/2015
TRIAL JUDGE: HON. JAMES B. PERSONS
COURT FROM WHICH APPEALED: HANCOCK COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: KIMBERLANA ELKINS (PRO SE)
ATTORNEY FOR APPELLEE: FRANK PHILIP WITTMANN IV
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 02/06/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
BARNES, J., FOR THE COURT:
¶1. Robert and Kimberlana Elkins were granted a judgment of divorce by the Hancock
County Chancery Court on February 10, 2015. Robert filed a motion to reconsider the
awards for contempt and attorney’s fees to Kimberlana. Granting Robert’s motion in part,
the chancery court modified the award for contempt. The award of attorney’s fees was
upheld. Asserting numerous issues, Kimberlana filed an appeal of the chancery court’s
judgment of divorce, including the chancellor’s modification of the contempt award.
¶2. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3. Robert and Kimberlana were married on September 11, 1999. The couple had two
children: a female, born in 1998; and a male, born in 2008. The couple separated on January
31, 2010, and Kimberlana filed a complaint for divorce against Robert on July 13, 2010,
citing irreconcilable differences.
¶4. On July 22, 2011, the Hancock County Chancery Court entered a temporary order,
granting Kimberlana temporary custody of the minor children and exclusive use of the
marital home. Robert was ordered to pay $350 in monthly temporary child support, the
children’s medical expenses, plus the mortgage, maintenance, and expenses for the marital
residence. The issue of alimony was held in abeyance. Robert filed a motion to set aside the
temporary order on August 16, 2011, asserting he was never notified of the court hearing
regarding the temporary support.
¶5. On August 25, 2011, Kimberlana filed a motion for contempt of court, claiming
Robert was $3,150 in arrears for child support and $8,659.95 in arrears for the mortgage and
home maintenance. On November 15, 2011, the parties appeared before the chancery court,
agreeing to have the court review and resolve all claims. But although Robert filed a motion
to enforce the agreed judgment of divorce on December 29, 2011, the proposed property-
settlement and child-custody agreement was never executed or filed. Kimberlana
subsequently filed a handwritten property-settlement agreement, requesting money from an
alleged inheritance to be received by Robert.
¶6. On February 7, 2012, Kimberlana filed a second motion for contempt, reasserting her
argument that Robert failed to pay the mortgage and temporary child support. She filed
another motion for citation of contempt on July 2, 2012, claiming Robert “ha[d] failed to
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meet his financial obligations under the [t]emporary [o]rder and ha[d] placed the marital
home at risk for foreclosure” and that his additional failure to pay support and expenses had
caused her and the minor children financial hardship.
¶7. Kimberlana filed an amended complaint for divorce on March 11, 2013, asserting
claims of adultery; habitual cruel and inhuman treatment; and willful, continued, and
obstinate desertion for one year; or in the alternative, irreconcilable differences. She
requested child support, the children’s educational (college) expenses, alimony, and
exclusive use and ownership of the marital home. She filed a second amended complaint on
May 1, 2013. Robert filed no response to the complaints.
¶8. Kimberlana filed a motion for emergency relief, modification, and other relief, on July
26, 2013, requesting an increase in child support and for Robert to pay “all household
expenses . . . to include travel to and from [their daughter’s] medical providers,” as a recent
medical condition had resulted in “excessive medical expenses” for the daughter. Robert
responded with a motion to set aside the temporary order, again claiming he had not received
notice of the hearing. On December 17, 2013, the chancery court found Robert to be in
contempt of the chancery court’s temporary order of July 22, 2011, “but not in wilful and
contumacious contempt.” Because the evidence reflected Robert’s inability to pay the
temporary support, the court granted an equitable lien on the marital residence for the total
arrearage of $42,604.47. Noting a substantial and material change in circumstances since
the temporary order, the chancellor also modified the child support to $415.15 per month,
making it retroactive to the date of the filing of the motion for emergency relief.
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¶9. On February 10, 2015, the chancery court entered a judgment of divorce. The court
granted Kimberlana a divorce on the ground of adultery, noting that although Robert did not
admit to adulterous behavior prior to the couple’s separation, he had “openly admitted to
extramarital relations after the date of separation.” The chancellor awarded joint legal
custody to both parents and primary physical custody to Kimberlana. As to child support,
the court determined Robert’s monthly adjusted gross income to be $1,904.33 and ordered
him to pay $381 per month in accordance with the statutory child-support guidelines. See
Miss. Code Ann. § 43-19-101 (Rev. 2015). As the marital residence was subject to a
mortgage and an unsecured (home disaster) loan through the Small Business Administration
(SBA),1 the chancery court ordered that the home be sold and the proceeds used to pay off
the debts. As to Kimberlana’s motion for contempt, the court determined that the total
arrearage owed by Robert was $65,895.96. He ordered Robert to pay $250 per month for any
arrearage due after the proceeds of the sale of the house had been applied to the arrearage.
The chancellor denied Kimberlana’s request for alimony and homeschooling expenses of
$1,500 per year for their daughter.
¶10. Robert filed a motion on February 18, 2015, asking the court to reconsider the awards
of contempt and attorney’s fees. Kimberlana filed a notice of appeal from the chancery
court’s judgment of divorce on March 6, 2015.2 On June 5, 2015, the chancery court ruled
1
The couple took out the loan to refurbish the home due to damage from Hurricane
Katrina.
2
While ordinarily the filing of a notice of appeal comes after the trial court’s
disposition of post-trial motions, the comment to Mississippi Rule of Appellate Procedure
4(d) provides:
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on Robert’s motion for reconsideration, finding that the chancery court had no authority to
order Robert to pay “temporary child or spousal support because no such request was made
by [Kimberlana] in her initial complaint.” Thus, the court determined that the temporary
order was “void ab initio” and granted Robert’s motion in part, deducting $42,604.47 from
the arrearage owed by Robert for support. However, it denied the motion with respect to the
remaining arrearage ($23,291.49) and the award of $3,700 in attorney’s fees to Kimberlana.
¶11. Kimberlana argues on appeal that the chancery court erred: (1) by failing to consider
Robert’s extra-marital affairs in its determination of the equitable distribution of the marital
assets; (2) in calculating Robert’s income for the purposes of child support, specifically its
failure to consider Robert’s alleged inheritance; (3) by decreasing the amount of child
support from the December 17, 2013 order; (4) in not ordering Robert to pay tuition for the
daughter’s online-school program; (5) by not awarding Kimberlana the marital residence; (6)
by not awarding Kimberlana lump-sum or rehabilitative alimony; (7) in modifying the award
of contempt in its order on Robert’s motion for reconsideration; (8) by awarding Kimberlana
the trailer from the couple’s former business; and (9) in not ordering Robert to acquire and
[A] notice of appeal filed before the disposition of a specified post trial
motion will become effective upon disposition of the motion. A notice filed
before the filing of one of the specified motions or after the filing of a motion
but before its disposition is, in effect, suspended until the motion’s
disposition, whereupon the previously filed notice effectively places
jurisdiction in the Supreme Court.
M.R.A.P. 4(d) cmt. Kimberlana filed a subsequent Mississippi Rule of Civil Procedure
60(b) motion to set aside the judgment on August 6, 2015. The chancery court denied this
motion for lack of jurisdiction, noting Kimberlana’s notice of appeal filed in March.
Kimberlana has not appealed the court’s denial of her Rule 60(b) motion; so we will not
address the court’s ruling on that motion.
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maintain life-insurance policies for the children.3
¶12. Finding no error, we affirm.
STANDARD OF REVIEW
¶13. A chancellor’s decision is reviewed for abuse of discretion. Jenkins v. Jenkins, 60 So.
3d 198, 200 (¶6) (Miss. Ct. App. 2011). “We will not disturb the chancellor’s factual
findings unless the chancellor was manifestly wrong, [or] clearly erroneous, or the chancellor
applied an improper legal standard.” Id. at 200-01 (¶6). Questions of law, however, are
reviewed de novo. Id. at 201 (¶6) (citing McNeil v. Hester, 753 So. 2d 1057, 1063 (¶21)
(Miss. 2000)).
DISCUSSION
I. Whether the chancellor erred by not considering Robert’s extra-
marital affairs in the equitable distribution of the marital assets.
¶14. Kimberlana contends the chancellor failed to account for Robert’s extra-marital affairs
when making his determination of the equitable distribution of the marital assets. She states
that Robert had told her that he had been tested for AIDS, and she suffered emotional harm
as a result. This issue, however, is procedurally barred as Kimberlana has cited no authority
for her argument. The “failure to cite any authority is a procedural bar, and a reviewing court
is under no obligation to consider the assignment.” In re Estate of Forrest, 165 So. 3d 548,
550 (¶7) (Miss. Ct. App. 2015) (quoting Norwood v. Miss. Dep’t of Emp’t Sec., 105 So. 3d
3Kimberlana was represented by counsel during the majority of the trial proceedings
below. On February 15, 2013, the chancellor granted counsel’s motion to withdraw, and
Kimberlana retained new counsel. After the judgment of divorce was entered, Kimberlana
proceeded pro se.
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408, 410 (¶5) (Miss. Ct. App. 2012)). Notwithstanding any bar, we find no error. As our
Court has noted: “[C]hancellors should not view equitable distribution as a means to punish
the offending spouse for marital misconduct. . . . Rather, marital misconduct is a viable factor
entitled to be given weight by the chancellor when the misconduct places a burden on the
stability and harmony of the marital and family relationship.” Bond v. Bond, 69 So. 3d 771,
773 (¶6) (Miss. 2011) (citing Carrow v. Carrow, 642 So. 2d 901, 904 (Miss. 1994)). As
noted previously, the only evidence of Robert’s adultery occurred after the couple’s
separation; thus, the chancery court did not err in refusing to give weight to this factor as
there was no evidence that it harmed the marital relationship.
II. Whether the chancery court properly calculated Robert’s income.
¶15. The chancellor determined that Robert’s monthly adjusted gross income was
$1,904.33. Kimberlana contends the chancery court’s findings as to Robert’s income were
erroneous, and Robert falsified his Rule 8.05 financial statement. The majority of
Kimberlana’s assignments of error on appeal concern her claim that Robert had other income
not included in the court’s findings, specifically an inheritance from his deceased father,
including a Franklin-Templeton savings account.
¶16. Addressing Kimberlana’s assertion that Robert had an inheritance from the estate of
his deceased father, the chancellor found “no evidence that Robert ha[d] any interest in his
late father’s estate.” Robert’s sister had legal title to all of their father’s assets; so Robert
“has no present or enforceable right to any assets comprising his father’s estate.” The
chancery court also found no evidence to establish that a Franklin-Templeton account
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existed. At trial, Robert testified that no such account existed. Patricia Davis, his mother,
testified that Robert’s father did have funds at Franklin-Templeton, but those funds were
payable to Robert’s sister, Lindsey, upon his death. When counsel for Kimberlana attempted
to introduce a report on the accounts purportedly created by Davis, the chancellor
determined:
[T]he basic issue that I’ve got to decide is [if it is] marital property subject to
equitable distribution, and I don’t think it is. And I don’t think that [Robert]
could be charged in the absence of proof now unless Lindsey came in and said,
I have another letter from my father that says when he asks for $1,000, I have
to give him $1,000. . . . You see, there’s no present vested interest in the
corpus of this trust. . . . It’s just that in the absence of any document that goes
well beyond this, [Robert] has no present interest in any property that may
have passed to Lindsey[.] . . . In other words, I could not order Lindsey to give
any money to [Kimberlana] here.
We find no abuse of discretion in the court’s findings. There was no credible evidence
presented at trial that Robert had any present vested interest in any inheritance.
¶17. Therefore, we find no error in the chancery court’s determination of Robert’s income,
and any arguments raised by Kimberlana as to the existence of an inheritance are without
merit.
III. Whether the chancery court erred in decreasing the amount of
child support from its December 17, 2013 order.
¶18. In the December 17, 2013 order, the chancery court increased the amount of child
support to $415.15. In the judgment of divorce, the court noted that Robert’s adjusted gross
income was $1,904.33 per month and, in accordance with section 43-19-101, determined that
his child-support obligation was $381 (20% of $1,904.33). Kimberlana argues that Robert
had the necessary income to pay $800 in child support.
8
¶19. As already noted, we find no evidence that the court’s calculation of Robert’s income
was incorrect, and the calculation of child support was within the statutory guidelines of
section 43-19-101. Accordingly, we find no error in the chancery court’s findings.
IV. Whether the chancery court erred by not ordering Robert to pay
$1,500 for the daughter’s school tuition.
¶20. Kimberlana testified that the couple’s daughter had been homeschooled using an
online program since March 2014 because of her medical issues with fibromyalgia and
obsessive-compulsive disorder.4 The chancery court denied Kimberlana’s request that Robert
pay $1,500 a year for the daughter’s homeschooling, finding this would be a “deviation from
the child[-]support guidelines.” He further noted that neither party could afford this
educational expense; nor had either parent addressed whether accommodations could be
made for the child with the local school administration.
¶21. Kimberlana asserts that it was error for the chancellor not to award her this money for
the daughter’s educational expenses, considering the child’s health issues (fibromyalgia).
Citing section 43-19-101(6), she argues that “[a]ll orders involving support of minor
children, as a matter of law, shall include reasonable medical support.” But this issue
involves the child’s educational expenses, not her medical expenses; so we find this statute
inapplicable. As already stated, the chancellor properly determined the amount of child
support owed by Robert in accordance with the guidelines in section 43-19-101. Ordinarily,
“[p]re-college tuition is considered part of child support, not an extraordinary expense,” and
4
According to Kimberlana, the child has since graduated high school and is attending
Tulane University.
9
a chancellor may not require a parent to pay tuition over and above the statutory percentage
“without a written or specific finding . . . as to why the deviation is needed.” Moses v.
Moses, 879 So. 2d 1043, 1048 (¶14) (Miss. Ct. App. 2004) (citing Southerland v.
Southerland, 816 So. 2d 1004, 1006 (¶11) (Miss. 2002) & § 43-19-101(2)). As Kimberlana
has provided no basis for the chancellor to make such a finding, we find no abuse of
discretion in the chancellor’s ruling on this issue.
V. Whether the chancery court erred by not awarding Kimberlana
complete ownership of the marital home.
¶22. Noting that the marital home was subject to a mortgage and an unsecured loan through
SBA, the chancery court ordered that the home be sold and the proceeds be used to pay off
the debts. He further noted that neither party “can afford to pay the liabilities and other
expenses associated with it.” Kimberlana argues the chancellor erred in denying her
“exclusive use and ownership” of the marital home, because she claims that she made all but
one or two of the mortgage payments on the home.
¶23. “The [c]hancery [c]ourt has authority, where equities so suggest, to order a fair
division of property accumulated through the joint contributions and efforts of the parties,
and the equitable division is left to the chancellor’s discretion unless there is an abuse of
discretion.” Berryman v. Berryman, 907 So. 2d 944, 947-48 (¶14) (Miss. 2005) (citation and
internal quotations omitted). There was substantial evidence presented by both parties that,
even during the marriage, the couple struggled to pay the mortgage and loan payments on the
home. As the chancery court noted in its judgment:
The intermittent financial assistance of family, principally from Robert’s
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mother and stepfather, has been necessary to avoid multiple foreclosure threats
of the marital home where Kimberlana and the children live, to pay utilities for
the marital home, to provide Robert with a vehicle necessary for his
transportation to and from work; and extra money from time to time for the
children’s clothing, educational, medical and dental needs.
Accordingly, we find no abuse of discretion in the court’s order to sell the marital home.
VI. Whether the chancery court erred in not awarding Kimberlana
$50,000 in lump-sum or rehabilitative alimony.
¶24. The chancery court denied Kimberlana’s request for alimony, finding that Robert’s
income was insufficient to pay alimony “after he pays child support, his minimal living
expenses, and other sums required to be paid by him in this judgment.” Kimberlana claims
that the failure to award her alimony would result in financial hardship.
¶25. The supreme court has held: “In the case of a claimed inadequacy or outright denial
of alimony, we will interfere only where the decision is seen as so oppressive, unjust, or
grossly inadequate as to evidence an abuse of discretion.” Rogillio v. Rogillio, 57 So. 3d
1246, 1248 (¶7) (Miss. 2011) (citation omitted). Kimberlana cites Jenkins v. Jenkins, 278
So. 2d 446, 449 (Miss. 1973), a case in which the supreme court held that a lump-sum award
plus monthly alimony was proper where the wife had contributed to the accumulation of the
property of her husband. While the evidence supports Kimberlana’s claims that she made
contributions to the couple’s marital assets, unlike Jenkins, this is not an instance where the
husband had significant assets, leaving the wife destitute. The evidence at trial was that both
parties had difficulty making ends meet, both during the marriage and after their separation.
Both Robert and Kimberlana acknowledged that Robert’s parents had contributed large sums
to help the couple make their house payments and travel during their marriage. Davis,
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Robert’s mother, testified that Robert lived with a couple in New Orleans because “he [could
not] afford a house,” and at other times, he lived with his sister in her home. Any deficit
created by the division of the marital assets was not adverse to Kimberlana, but to Robert.
Finding the court’s decision to deny Kimberlana alimony was not “so oppressive, unjust, or
grossly inadequate as to evidence an abuse of discretion,” Rogillo, 57 So. 2d at 1248 (¶7),
this assignment of error is without merit.
VII. Whether the chancery court erred in modifying the judgment,
decreasing the amount of arrearage owed to Kimberlana.
¶26. In the judgment of divorce, the chancellor found that Robert owed an arrearage of
$42,604.47. He further held that Robert failed to pay sums accruing from the order of
contempt; so a judgment of $65,895.96 was entered, with an interest rate of 3% annually
until paid in full. Robert filed a motion to reconsider the judgment, and the court determined
that because Kimberlana had not requested temporary child support in her initial complaint
for divorce filed in July 2010, the court did not have the authority to order such and the
temporary order was void ab initio. Therefore, the judgment was modified, and the amount
of arrearage owed by Robert was decreased to $23,291.49. Kimberlana now claims the court
erred in not enforcing the December 27, 2013 order, which awarded her the $42,604.47 in
arrearage, and decreasing the amount of arrearage owed.
¶27. “Child support may not be awarded unless it is requested in the pleadings, tried by
consent, or the court notifies the parties that the issue will be addressed.” Deborah H. Bell,
Bell on Mississippi Family Law § 19.02[1][b][ii], at 468 (2005). As the chancery court noted
in its order, Kimberlana’s complaint did not contain any plea for child support or
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maintenance. In her July 2010 complaint, Kimberlana simply requested that the chancery
court grant her a divorce based on irreconcilable differences and additionally stated: “If
mistaken in the relief prayed, [she] prays for such further general relief and equitable relief
to which she is entitled to receive.” Furthermore, the record reflects that Robert was not
provided an opportunity to object to the chancellor’s award of temporary support, as he was
not present at the hearing. A month after the order was entered, Robert filed a motion to set
aside the temporary order, claiming that he was not notified of the proceedings. In Massey
v. Huggins, 799 So. 2d 902, 910-11 (¶¶33-34) (Miss. Ct. App. 2001), we reversed a chancery
court’s award of child support, as the appellant “was not provided notice that she ‘might be
required to defend a claim of child support’ nor was there a ‘suggestion in the record that
support payments from [the appellant] were even being contemplated by the court on its own
or asked for by’ [the appellee].” (Quoting Morris v. Morris, 359 So. 2d 1138, 1139 (Miss.
1978); but cf. Lee v. Stewart, 724 So. 2d 1093, 1095 (¶4) (Miss. Ct. App. 1998) (Although
child support was not requested in the pleadings, the award of child support was affirmed,
as the record indicated the father did not object to the issue at trial, “but instead elected to
argue on its merits”; thus, “th[e] issue was tried with [his] implied consent.”).
¶28. We find no error in the chancery court’s findings, as child support was not included
in the pleading, and there was no evidence that the issue was tried by consent.
VIII. Whether the chancellor erred in awarding the trailer from the
couple’s former snowball business to Kimberlana.
¶29. Kimberlana contends the chancellor erred in awarding her the couple’s trailer for their
snowball business, which was damaged during Hurricane Katrina, and valuing the trailer at
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$10,000.5 At trial, Robert acknowledged that the trailer had been damaged during Hurricane
Katrina and estimated it was only worth approximately $1,500. However, the chancellor
based the value of $10,000 for the trailer from Kimberlana’s own Rule 8.05 statement.
Moreover, we are unsure what relief Kimberlana is requesting on appeal; she simply argues
that the trailer’s value was not $10,000, saying that when she picked it up, it was severely
damaged. She has also cited no authority for her claim; therefore, we find this assignment
of error is procedurally barred from review.
IX. Whether the chancellor should have ordered Robert to acquire and
maintain life-insurance policies of $500,000 for the children.
¶30. Arguing Robert should have been ordered by the court to maintain two life-insurance
policies for his children, Kimberlana again claims that Robert has inherited assets from his
deceased father and “stands to inherit another $250,000 from his mother.” Despite the fact
that she has cited no authority, procedurally barring this issue from appellate review, as we
have already noted, there was no evidence presented Robert had any present vested interest
in any of his parents’ assets. Therefore, we find no merit to this issue.
¶31. Finding no abuse of discretion in the chancery court’s findings, we affirm the
judgment.
¶32. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.
5
Robert notes in his brief that the court incorrectly refers to this asset in the judgment
as a snowmobile.
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