Christina Lynn Sullivan Leblanc v. William Clarence Leblanc, III

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-00600-COA
CHRISTINA LYNN SULLIVAN LEBLANC APPELLANT
v.
WILLIAM CLARENCE LEBLANC, III APPELLEE
DATE OF JUDGMENT: 03/15/2017
TRIAL JUDGE: HON. DEBORAH J. GAMBRELL
COURT FROM WHICH APPEALED: FORREST COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: CAROL ANN ESTES BUSTIN
ATTORNEY FOR APPELLEE: NANCY STEEN
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 10/23/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
WILSON, J., FOR THE COURT:
¶1. After twenty-three years of marriage, Christina Leblanc filed for a divorce from
William (Billy) Leblanc on the grounds of habitual cruel and inhuman treatment, habitual use
of illegal drugs, and uncondoned adultery or, in the alternative, irreconcilable differences.
Billy eventually answered and filed a counterclaim for an irreconcilable differences divorce.
After the first day of trial, the Leblancs consented to an irreconcilable differences divorce
and agreed that the chancery court would decide issues related to custody and support of their
children, equitable division of the marital estate, and alimony. The court granted Christina
physical custody of the parties’ three minor children, with joint legal custody and visitation
for Billy. The court also divided the marital estate and ordered Billy to pay rehabilitative
alimony of $250 per month for eighteen months and child support of $1,040 per month.
¶2. On appeal, Christina argues that the chancery court (1) miscalculated Billy’s child
support obligation, (2) committed multiple errors in the equitable division of the marital
estate, (3) awarded inadequate alimony, (4) erred by awarding Billy unsupervised visitation
despite his history of drug use, (5) erred by not holding Billy in contempt for failing to pay
the mortgage on the marital home, and (6) erred by allowing Billy to answer the complaint
for divorce more than a year after he was served. Billy failed to file a brief on appeal.
¶3. We find no error or abuse of discretion in the chancery court’s equitable division of
the marital estate. However, we hold that the chancery court miscalculated Billy’s child
support obligation and awarded inadequate alimony. Accordingly, on those two issues, we
reverse and remand the case for further proceedings consistent with this opinion. In addition,
on remand the chancery court should determine whether unsupervised visitation is consistent
with the children’s best interests and whether Billy should be ordered to submit to additional
drug testing. The remaining issues raised by Christina on appeal are procedurally barred
and/or without merit.
FACTS AND PROCEDURAL HISTORY
¶4. Christina and Billy married in 1991. They subsequently had four children, sons born
in 1996 and 2002 and daughters born in 2010 and 2011.
¶5. Billy has worked as a medical dosimetrist since approximately 2000. Billy testified
that a medical dosimetrist creates “treatment plans for radiation therapy treatments for cancer
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patients.” From about 2006 to 2013, Billy worked at the Laurel Cancer Center, but in 2013
he lost his job there because he failed a drug test.
¶6. Billy’s former supervisor, Dr. Cameron Pimperl, a radiation oncologist at the Laurel
Cancer Center, testified at trial. Dr. Pimperl was close to the Leblanc family. In 2012 or
2013, Dr. Pimperl became aware that Billy was using drugs. A lawyer advised him to
terminate Billy’s employment, but Dr. Pimperl offered Billy the option of entering a drug
rehabilitation program. Billy entered the program, but in October 2013 he failed another
drug test. At that point, the Laurel Cancer Clinic terminated Billy’s employment.
¶7. Billy was then unemployed for over a year before he found work in Alaska. He lived
in Alaska between 2014 and 2016. At the time of trial, Billy was working as a medical
dosimetrist at Keesler Medical Center in Biloxi.
¶8. Christina filed for divorce in July 2014 on the grounds of habitual cruel and inhuman
treatment, habitual use of illegal drugs, and uncondoned adultery or, in the alternative,
irreconcilable differences. Billy was living in Alaska at the time and was eventually served
with a summons and copy of the complaint on August 27, 2015.
¶9. On August 25, 2015, Christina obtained an ex parte emergency domestic abuse
protection order from the Forrest County Justice Court. On July 6, 2016, the justice court
entered a second protection order. Christina testified that she allowed the first protection
order to expire without further action because Billy had returned to Alaska in the interim.
The justice court extended the second order once.
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¶10. Billy filed an answer on July 18, 2016. He denied Christina’s allegation of cruel and
inhuman treatment, and he claimed that he had “reformed and discontinued [his drug] habit”
and was willing to submit to court-ordered drug tests. “On the allegation of adultery, [Billy]
demand[ed] strict proof and assert[ed] the defense of condonation.” Billy also filed a
counterclaim for an irreconcilable differences divorce.
¶11. On August 2, 2016, Christina filed a motion for temporary relief seeking custody of
the parties’ children, child support, spousal support, use and possession of the marital home,
and an order of protection from abuse. Christina also asked the court to limit Billy to
supervised visitation, require Billy to take random drug tests, and require Billy to account for
certain marital funds. Finally, Christina asked the court to order Billy to pay the mortgage
arrearage on the marital home, as the home was at risk of foreclosure.
¶12. In August 2016, Christina and Billy filed their Uniform Chancery Court Rule 8.05
financial statements. Christina’s statement showed that she earned $1,380 per month and
received $771 per month in public assistance. Billy’s statement showed that he earned
$11,330.50 per month as a dosimetrist and received rental income of $91 per month.
¶13. On August 19, 2016, the chancery court entered a temporary order granting physical
custody of the children to Christina with Billy to have supervised visitation. The court also
granted Christina possession of the marital home and ordered Billy to bring the mortgage
current and to continue to pay the mortgage. The court ordered Billy to pay Christina $600
per month in spousal support and $1,000 per month in child support. The court also ordered
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both parties to submit to drug testing.
¶14. On October 22, 2016, Christina filed a motion for contempt based on Billy’s failure
to pay the mortgage arrearage. Christina also requested modification of the temporary order
because Billy had tested positive for methamphetamine and admitted that he was still using
drugs. In response, Billy claimed that he “struggled just to make the monthly mortgage
payments” and could not afford to pay the arrearage. He also denied that he was abusing
drugs, alleged that Christina had denied him visitation, and requested additional visitation.
¶15. On December 1, 2016, the chancery court entered an order continuing Billy’s
supervised visitation with conditions. The court also ordered Billy to continue to pay the
mortgage, and the court again ordered Billy to pay the arrearage immediately. Finally, the
court ordered Billy to provide the court with his most recent drug test results, as the court had
ordered him to be tested again by November 14, 2016.
¶16. Christina filed a second motion for contempt and modification on January 6, 2017.
Billy still had not paid the mortgage arrearage, and Christina alleged that he was in arrears
on child support and spousal support as well. Christina alleged that Billy was earning more
than $8,800 a month as a dosimetrist at Keelser and could afford to pay the arrearage.
Christina also alleged that Billy had tested positive for methamphetamine twice and had
admitted to her that he was still using drugs. The hearing on Christina’s motion was set for
January 12, 2017, the first day of the trial on Christina’s complaint for divorce.
¶17. In response, Billy again claimed that he was unable to pay the mortgage arrearage, and
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he denied that he earned $8,800 per month. Billy’s most recent 8.05 statement, which he
submitted in December 2016, showed that his gross monthly income was $8,500, but Billy
claimed that his true monthly income was only $7,562. The day before trial, Billy filed an
updated 8.05 statement showing that he was working as dosimetrist at Keesler, that he earned
$7,562 per month, and that his net monthly income was $5,201.
¶18. Christina has an associate’s degree from a community college and works as a dental
hygienist. On the first day of trial, Christina testified that she worked for a dental clinic in
Hattiesburg and that her net income was approximately $2,100 per month.
¶19. At trial, Christina testified that she first suspected that Billy was using drugs in 2010.
She testified that Billy began lying about his whereabouts—e.g., falsely claiming that he was
at work or at St. Jude’s with their daughter.1 Christina testified that Billy also began having
mood swings and sleeping for days at a time. Christina testified that Billy admitted that he
was using drugs when they learned that she was pregnant in 2011, but he assured her that he
would stop. Despite Billy’s assurances, Christina later found drug paraphernalia hidden in
their home, and in 2013 Billy lost his job as a result of failed drug tests.
¶20. Billy was unemployed for more than a year thereafter. During this period, he began
withdrawing savings from the couple’s Northwestern Mutual IRA. Evidence presented at
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The Leblancs’ third child was diagnosed with Retinoblastoma, a form of eye cancer,
when she was only two months old. She lost her vision in one eye, and Christina testified
that her prognosis is still considered “terminal.” However, Billy testified that “[s]he’s pretty
much cured,” and “there’s no evidence of the cancer anywhere in her.”
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trial indicated that the IRA had a balance of about $60,000 in 2014, but by July 2016 only
$0.54 remained. Christina believed that some of the money that Billy withdrew went to
maintain their household, but she was unsure “where all of the money went.” She testified
that she was unable to work at times while Billy was in Alaska because she “had too many
obligations to take care of [their] children.” She testified that she began relying on credit
cards and a bank loan to make ends meet.
¶21. Christina also testified that in 2013 or 2014 she discovered that Billy was having an
affair. Christina testified that she found inappropriate pictures and conversations with other
women on Billy’s phone, and she found sex toys in their camper. Christina also testified that
she received several “hang-up [phone] calls” that she traced back to women she did not
know. According to Christina, Billy admitted that he was having an affair. He told Christina
that she had “neglected his sexual needs so he . . . found comfort with other women.”
¶22. As noted above, Billy worked in Alaska between 2014 and 2016. He testified that he
sent some money home while he was in Alaska, and Christina admitted that she received
money from Billy during that time.
¶23. Billy returned from Alaska around April 2016, and Christina suspected that he was
still using drugs. Christina testified that Billy received packages that he had mailed to
himself from Alaska, and soon after the packages arrived, he would “pick fights” and take
their camper and leave for days at a time. She testified that she sought a protective order
after one of her sons warned her not to come home because Billy was “throwing heavy things
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. . . in fits of rage.” Christina testified that in April or May 2016, she allowed one of their
daughters to spend the night with Billy in the camper because her daughter “wanted to
snuggle with her daddy.” Christina testified that when she went to wake up her daughter the
next morning, she found a used drug syringe that Billy had left in the bed.
¶24. Christina introduced photographs at trial that she testified showed bruises to her neck
and jaw. Christina testified that Billy inflicted the injuries on her in May 2016. She testified
that Billy became angry after she tried to convince him to leave the marital home because he
had been using methamphetamine. Christina testified that she eventually threatened Billy
with a baseball bat, but Billy “ripped [the] bat out of [her] hands” and then abused her. After
the incident, Christina obtained a second protective order from the justice court.
¶25. Billy testified to a substantially different version of the incident. He claimed that he
had a toothache and was trying to rest when Christina began screaming at him for no reason.
He testified that Christina told him “to get out of the house” because he was a drug addict.
He claimed that Christina would not allow him to pack and began hitting his truck with the
baseball bat. He testified that Christina ultimately left the house with the children.
¶26. Christina testified that Billy subsequently sent her numerous “very ugly” text
messages. She also claimed that Billy pushed her and intimidated her physically. She
testified that his behavior frightened her and caused her to have panic attacks.
¶27. Billy tested positive for amphetamine and methamphetamine on August 15, 2016 and
November 14, 2016. Billy’s second test showed a significant increase in levels from the first
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test, suggesting that his drug use had increased. Christina testified that as recently as
December 2016 Billy admitted to her that he was still using drugs. At trial, Billy admitted
that he has had problems with drugs and that he had used drugs in the marital home.
¶28. Approximately six weeks passed between the first day of trial (January 12, 2017) and
the second day of trial (February 22, 2017). At the beginning of the second day, the Leblancs
consented to an irreconcilable differences divorce and agreed to submit the issues of custody,
child support, equitable division, and alimony to the chancery court for determination.
¶29. Christina then testified that she learned that she had lost her job at the end of the first
day of trial. She testified that she was doing some contract work, which paid between $215
and $280 per day. However, she had been unable to find full-time employment. She testified
that it was difficult to find full-time employment because there is an oversupply of dental
hygienists. She was also using a public assistance program to avoid foreclosure and to take
classes in healthcare administration at William Carey University.
¶30. Sally Thomas, who prepared the Leblancs’ taxes, testified that in 2012 Billy earned
$125,698, while Christina earned $3,294. In 2013, Billy earned $89,540, while Christina
earned $22,877. At trial, Billy testified that when he was working full-time he typically
earned between $105,000 and $120,000 per year.
¶31. The Leblancs agreed that the fair market value of the marital home was $223,000.
Christina testified that their mortgage was modified in November 2016 to avoid foreclosure.
As of December 2016, the mortgage balance was $176,857.73, which included an arrearage
9
of $8,342.83 because there had been no payment on the mortgage since July 2016. The
mortgage was later modified again to lower the payment to $1,232 per month.
¶32. Billy testified at trial that he was living in a camper that the family bought around
2005 or 2006. He was paying $27 a night to park the camper at a campground across the
street from the Boomtown Casino in Biloxi.
¶33. The parties’ 8.05 statements listed the camper, a 2009 Chevy Suburban, a 1994 Mazda
8300, and a 2004 Chevy Silverado. The parties also listed several marital debts.
¶34. On March 15, 2017, the chancery court entered findings of fact, conclusions of law,
and a final judgment granting the parties an irreconcilable differences divorce. The court
granted Christina physical custody of the parties’ three minor children with joint legal
custody and unsupervised visitation for Billy. The court found that the parties’ oldest child
was emancipated. The court ordered Billy to pay child support of $1,040 per month.
¶35. The chancery court found that neither party had any separate property and valued the
marital property. The court awarded Christina the marital home and ordered her to pay the
mortgage. The court also divided the remaining marital assets and assigned each party
responsibility for some of the marital debts. Finally, the court ordered Billy to pay Christina
$250 a month in rehabilitative alimony for eighteen months. Christina subsequently filed a
timely notice of appeal.
ANALYSIS
¶36. “When reviewing a decision of a chancellor, this Court applies a limited abuse of
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discretion standard of review.” Mabus v. Mabus, 890 So. 2d 806, 810 (¶14) (Miss. 2003).
We will affirm the decision unless the chancellor clearly or manifestly erred or applied the
wrong legal standard. Id. “However, on issues of law, our standard of review is de novo.”
Stroh v. Stroh, 221 So. 3d 399, 406 (¶17) (Miss. Ct. App. 2017).
¶37. Billy’s attorney entered an appearance on appeal but failed to file a brief or respond
to a show-cause notice. The appellee’s failure to file a brief does not require “[a]utomatic
reversal.” Rogillio v. Rogillio, 101 So. 3d 150, 153 (¶12) (Miss. 2012). In particular, we will
review the record despite the appellee’s failure when the interests of children are at stake.
Garceau v. Roberts, 363 So. 2d 249, 250 (Miss. 1978). However, the “failure of an appellee
to file a brief is tantamount to confession of error and will be accepted as such unless the
reviewing court can say with confidence, after considering the record and brief of [the
appellant], that there was no error.” Rogillio, 101 So. 3d at 153 (¶12) (quoting Dethlefs v.
Beau Maison Dev. Corp., 458 So. 2d 714, 717 (Miss. 1984)).
¶38. As discussed above, Christina argues that the chancery court miscalculated Billy’s
child support obligation, committed multiple errors in the equitable division of the marital
estate, and awarded inadequate alimony. Christina also argues that the chancery court erred
by awarding Billy unsupervised visitation, by failing to find Billy in contempt, and by
allowing Billy to file an untimely answer. We address these issues in turn.
I. Child Support
¶39. The chancery court found that Billy “should pay the statutory guideline child support”
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and ordered him to pay $1,040 per month. In remarks from the bench, the court stated that
$1,040 was twenty percent of $5,201, which was the net monthly pay shown on Billy’s most
recent 8.05 statement.
¶40. On appeal, Christina argues that Billy should have been required to pay twenty-two
percent of his adjusted gross income for the parties’ three minor children. See Miss. Code
Ann. § 43-19-101(1) (Rev. 2015) (establishing a rebuttable presumption that support for
three children should be twenty-two percent of the payor’s adjusted gross income). Christina
also argues that Billy’s Rule 8.05 statement understated his true income.
¶41. As to the first point, Christina is correct that the statute calls for Billy to pay twenty-
two percent of his adjusted gross income, not twenty percent. Id. The chancery court stated
that it intended to follow the statute. The court simply applied the wrong percentage.
¶42. In addition, we agree with Christina that Billy’s Rule 8.05 statement understated his
true income. Billy’s pay statements for the final months of 2016 show gross earnings of
approximately $10,000 per month and net pay—after deductions for taxes, 401k
contributions, and health, dental, and life insurance—of approximately $7,000 per month.
At trial, Billy agreed that those records accurately reflected his adjusted gross income:
THE COURT: So the Court then can use these monthly payroll figures
as your adjusted gross income?
THE WITNESS: (Nods Head Affirmatively.)
THE COURT: $7,138.39?
THE WITNESS: Yes, ma’am; yeah.
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¶43. Thus, under the statutory guidelines, there is a presumption that Billy should pay child
support equal to twenty-two percent of his adjusted gross income of approximately
$7,138.39. Therefore, we reverse and remand for the court to recalculate child support based
on the applicable statutory percentage and Billy’s true adjusted gross income. See Sellers v.
Sellers, 22 So. 3d 299, 308 (¶31) (Miss. Ct. App. 2009) (“[A]n erroneous calculation of . . .
adjusted gross income” requires reversal “[s]ince the appropriate amount of child support is
based on a party’s properly calculated adjusted gross income[.]”).
II. Equitable Division
¶44. “[A]n equitable division of property does not necessarily mean an equal division of
property.” Chamblee v. Chamblee, 637 So. 2d 850, 863-64 (Miss. 1994). “[T]he goals of
equitable distribution are a fair division of marital property based on the facts of each case
and termination of the legal relationship in a manner which each party may realize self-
sufficiency.” Seymour v. Seymour, 960 So. 2d 513, 519 (¶15) (Miss. Ct. App. 2006). In
Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994), the Supreme Court identified a
non-exclusive list of factors for the chancery court to consider when attempting to divide
marital property.
¶45. Christina does not challenge the chancery court’s identification of the marital assets
and debts. In addition, the chancery court expressly addressed each of the Ferguson factors.
However, Christina argues that the chancery court (1) based its decision on “inadequate
financial information,” (2) failed to address Billy’s dissipation of the parties’ Northwestern
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Mutual IRA, and (3) unfairly assigned certain marital debts to her.
¶46. Christina claims that the chancery court relied on “inadequate financial information”
because “[n]either party submitted adequate final information.” Christina argues that the
“[c]ourt should have reserved ruling” and waited for the parties to present better evidence.
This argument is without merit. The case was pending for thirty months prior to trial, and
both parties declared ready for trial. The burden is on the parties to present evidence, not the
court. If there were better evidence available, it was Christina’s burden to present it. “The
chancellor is not expected to go beyond the evidence that the parties present in order to value
the marital assets.” Inge v. Inge, 227 So. 3d 1185, 1191 (¶19) (Miss. Ct. App. 2017).2
¶47. Christina next argues that the chancery court failed to account for Billy’s dissipation
of the Northwestern Mutual IRA, a marital asset. See Ferguson, 639 So. 2d at 928 (stating
that the court should consider “[t]he degree to which each spouse has expended, withdrawn
or otherwise disposed of marital assets”). As noted above, there was evidence that the IRA
had a balance of about $60,000 in 2014, but by the end of the marriage only $0.54 remained.
However, Billy testified that he had to make withdrawals to pay the mortgage on the marital
home and meet other expenses while he was out of work. In addition, Christina admitted that
some of the money went to maintain the household, and she did not “know where all of the
2
Within this argument, Christina also complains that the chancery court declined to
consider an “updated” Rule 8.05 statement that she first disclosed and attempted to introduce
on the second day of trial. It appears that the chancery court simply declined to consider
revisions to estimates of asset values that Christina failed to disclose to Billy prior to the
second day of trial. We find no abuse of discretion in the court’s ruling.
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money went.” There was no evidence that Billy spent the funds for improper purposes.
¶48. The use of marital funds to pay legitimate and reasonable living expenses of both
spouses during a separation does not necessarily amount to dissipation. See Pittman v.
Pittman, 791 So. 2d 857, 865 (¶22) (Miss. Ct. App. 2001), overruled on other grounds by
Collins v. Collins, 112 So. 3d 428, 432 (¶11) (Miss. 2013); Deborah H. Bell, Mississippi
Family Law § 6.08[2][f][i], at 178 (2d ed. 2011). Nonetheless, the chancery court considered
this issue in its analysis of the Ferguson factors. The court criticized Billy for “incurring
penalties and taxes.” And the court ultimately counted $33,000 in withdrawals as a marital
asset distributed to Billy in the equitable division of the marital estate. Thus, the chancery
court did consider the issue. The court was not required to order Billy to pay a specific sum
to Christina as repayment for the withdrawals. See Pittman, 791 So. 2d at 865 (¶22). We
find no abuse of discretion in the court’s treatment of this issue.
¶49. Finally, Christina argues that the chancery court erred by assigning her approximately
$14,000 in marital debt, while assigning Billy only about $7,000 in marital debt. She argues
that Billy earns more and, therefore, should be required to pay more of the debt. However,
the court also awarded Christina marital assets, including the marital home, with a net value
of approximately $65,000, while awarding Billy assets with a value of about $45,000.
Moreover, as discussed just above, Billy’s assets included $33,000 in IRA withdrawals. In
substance, that figure was a charge against Billy, not an asset with any present value. The
only significant assets that Billy actually received in the divorce were an eleven-year-old
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camper, a thirteen-year-old truck, and a four-wheeler. “[I]n cases of equitable distribution,
we do not look at the division of one asset [or debt] in isolation, but rather, whether the
marital assets [and debts] as a whole were divided equitably.” Dogan v. Dogan, 98 So. 3d
1115, 1124 (¶20) (Miss. Ct. App. 2012). Here, under any calculation, Christina received
assets and debts with a greater net value than Billy. We cannot find that the chancery court
abused its discretion by assigning her somewhat more debt than Billy. Nor can we find any
clear error or abuse of discretion in the equitable division as a whole.
III. Alimony
¶50. “After the marital property is equitably divided, the chancellor must consider whether
the division, in light of the parties’ nonmarital assets, will adequately provide for both
parties; if so, then ‘no more need be done.’” Rodrigue v. Rodrigue, 172 So. 3d 1176, 1187
(¶41) (Miss. Ct. App. 2014) (quoting Johnson v. Johnson, 650 So. 2d 1281, 1287 (Miss.
1994)). However, alimony should be considered if the equitable division of marital property,
together with any separate property, “leaves a deficit for one party.” Id. at (¶42). By
“deficit,” we mean that “the spouse seeking alimony is left ‘with a deficit with respect to
having sufficient resources and assets to meet his or her needs and living expenses.’” Layton
v. Layton, 181 So. 3d 275, 282 (¶17) (Miss. Ct. App. 2015) (emphasis omitted) (quoting
Jackson v. Jackson, 114 So. 3d 768, 777 (¶22) (Miss. Ct. App. 2013)).
¶51. If one party is left with a deficit, the chancery court must consider the Armstrong
factors in determining whether to award alimony and the amount and type of the award. See
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Lauro v. Lauro, 847 So. 2d 843, 848 (¶¶11-13) (Miss. 2003). The Armstrong factors are:
1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may
require that one or both of the parties either pay, or personally provide,
child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at
the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in
connection with the setting of spousal support.
Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).
¶52. “The award of alimony and the amount of any such award is largely within the
discretion of the chancellor.” Monroe v. Monroe, 745 So. 2d 249, 252 (¶13) (Miss. 1999).
“Nonetheless, this Court will reverse an award of alimony on appeal when it is determined
to be against the overwhelming weight of the evidence.” Id. “In the case of a claimed
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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.”
Armstrong, 618 So. 2d at 1280. “If we find the chancellor’s decision manifestly wrong, or
that the court applied an erroneous legal standard, we will not hesitate to reverse.” Id.
¶53. In this case, the chancery court’s opinion discusses each of the Armstrong factors.
The opinion then states: “the [c]ourt finds that [Billy] shall pay to Christina rehabilitative
alimony in the sum of $250.00 per month for 18 months.” In announcing its decision from
the bench, the court stated that the payment was “for the purpose of securing health insurance
either in the marketplace or wherever” and “to assist [Christina] with getting back into the
job market.”
¶54. On appeal, Christina argues that the chancery court’s award was inadequate given the
parties’ respective incomes and expenses. In addressing Christina’s argument, we again note
that Billy’s “[f]ailure . . . to file a brief is tantamount to confession of error and will be
accepted as such unless [we] can say with confidence, after considering the record and
[Christina’s] brief . . . , that there was no error.” Rogillio, 101 So. 3d at 153 (¶12) (quoting
Dethlefs, 458 So. 2d at 717). Having considered the record, we agree with Christina that the
limited award of rehabilitative alimony was inadequate.
¶55. With respect to the first two Armstrong factors, the chancery court found:
Both parties have sufficient incomes. At present, [Billy’s] income is greater.
The [c]ourt has considered the testimony and evidence from both parties as to
their current living circumstances, educational background, work experience,
income and expenses . . . . Both parties are in good health and capable of
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earning at capacity although Christina lost her job between the first and second
day of trial and is looking for work and health insurance.
¶56. We conclude that the chancery court clearly erred by finding that Christina’s income
is “sufficient,” as there is no substantial evidence in the record to support such a finding.
Christina’s August 2016 Rule 8.05 financial statement showed monthly wages of only $1,380
and public assistance of $771 per month. In December 2016, she reported income of $2,322
per month. However, as the chancery court acknowledged, Christina lost her job prior to the
second day of trial, which left her dependent on irregular “contract” work that did not offer
health insurance. Christina also testified that there was an oversupply of dental hygienists
in the area, which made it difficult to find a full-time job.
¶57. Christina received food stamps during Billy’s absence, and their children were
enrolled in Medicaid. She qualified for food stamps once again after she lost her job during
trial. The mortgage on the marital home had been modified but was still approximately
$1,213 per month. Christina had also received public assistance to help her to avoid
foreclosure. Christina’s Rule 8.05 statement also lists various other ordinary expenses for
a family, such as food, utilities, childcare, out-of-pocket medical expenses, auto insurance
and repairs, gasoline, and telephone bills. As discussed above, the divorce decree also
required Christina to pay approximately $14,000 in marital debt (in addition to the mortgage).
The evidence at trial showed that Christina’s income was not sufficient to meet her ordinary
living expenses. Indeed, the evidence showed that she needed public assistance to make ends
meet.
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¶58. In contrast, as discussed above, the evidence showed that Billy’s gross pay at Keesler
was approximately $10,000 per month and his net pay—after deductions for taxes, health
insurance, and 401(k) contributions—was over $7,000 per month. Billy’s present earnings
are consistent with his own testimony at trial that he makes $120,000 annually when he is
working. Aside from basic living expenses, Billy’s only significant expenses were his
camper note (approximately $180 per month), rent ($27 per night), and child support. Thus,
the evidence at trial showed that Billy’s income was more than sufficient to meet his
reasonable needs and living expenses.
¶59. As to the other relevant Armstrong factors, it is significant that the parties were
married for twenty-five years. This “undoubtedly qualified as a long marriage.” Tilley v.
Tilley, 610 So. 2d 348, 352 (Miss. 1992) (twenty-two year marriage); see also Bell,
Mississippi Family Law § 9.04[5][a], at 265 (“Marriage length may be the most critical factor
in determining whether a [financial] disparity [between the parties] should be remedied by
alimony. . . . [A]n analysis of Mississippi alimony awards reveals a distinct pattern of
increasing size and length of awards in longer marriages.”).
¶60. The chancery court also noted that, although the parties had consented to an
irreconcilable differences divorce, “[t]he [c]ourt heard testimony about [Billy’s] drug issues.”
Indeed, Billy admitted that he had struggled with drugs, he lost a good-paying job—and
ultimately departed for Alaska—because of his drug use, and Billy continued to test positive
for methamphetamine during this proceeding. Christina also testified that Billy admitted to
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adultery. Billy never directly denied that he had committed adultery. In his answer, he only
demanded “strict proof” and pled condonation. See Armstrong, 618 So. 2d at 1280 (stating
that a party’s “[f]ault or misconduct” is relevant to the determination of alimony).
¶61. The chancery court also found some “dissipation” of assets by Billy because his early
withdrawals from the Northwestern Mutual IRA resulted in taxes and penalties. However,
the court also noted that at least some of the withdrawals were used to support the family.
¶62. In addition, the chancery court granted Christina physical custody of the parties’ three
minor children. Billy was ordered to pay child support; however, Christina testified that she
had to pay for daycare for her younger children so that she could work. See Armstrong, 618
So. 2d at 1280 (stating that the court should consider whether one party will need to provide
or pay for childcare).
¶63. On comparable facts in Rodrigue, we found the chancery court’s award to be grossly
inadequate and an abuse of discretion. Rodrigue, 172 So. 3d at 1187-89 (¶¶41-46). There,
the parties had been married for twenty-three years, and the wife was granted physical
custody of their two teenage children. Id. at 1188 (¶43). The wife’s net monthly income,
including child support, was $2,457.53, while the husband’s net monthly income was
$5,546.30. Id. at 1187 (¶43). In equitably dividing the marital estate, the chancery court
awarded the wife approximately $50,000 in home equity and approximately $70,000 in
retirement funds. Id. at 1180, 1182, 1185-87 (¶¶15, 17, 33-39). In addition, the chancery
court awarded lump-sum alimony of $13,562.41 in the form of an order requiring the
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husband to continue to pay the wife’s car note. Id. at 1187 (¶42). On appeal, we held that
the chancery court’s lump-sum award was “unjust and grossly inadequate.” Id. at 1189 (¶46).
We further held that the facts of the case “clearly indicate[d]” that the wife was “entitled to
an award of periodic alimony and/or lump-sum alimony.” Id. at 1189 (¶45).
¶64. We reach the same conclusion in this case. If anything, the disparity in earning
capacity is greater here than it was in Rodrigue. See Davis v. Davis, 832 So. 2d 492, 499
(¶23) (Miss. 2002) (“A significant disparity in earning capacity is a major factor in the
determination of a periodic alimony award.”); Vaughn v. Vaughn, 798 So. 2d 431, 436 (¶19)
(Miss. 2001) (same). Moreover, the wife in Rodrigue received marital assets with a greater
net value than Christina did in this case. In addition, in Rodrigue, the chancery court had
awarded lump-sum alimony of $13,562.41. Here, in contrast, the chancery court awarded
Christina total rehabilitative alimony of only $4,500. Given that the award in Rodrigue was
inadequate, it necessarily follows that the award in this case is also inadequate.
¶65. Under Armstrong, such a limited award of rehabilitative alimony is “unjust” and
“grossly inadequate.” Armstrong, 618 So. 2d at 1280. Christina has struggled to find work,
and even when she has been employed, her income has been insufficient to support herself
and pay the mortgage on the marital home. In Billy’s absence, Christina and her children
qualified for various forms of public assistance, including food stamps, Medicaid, and
mortgage assistance. Billy, in contrast, has a gross income of approximately $120,000 per
year with no significant expenses. As in Rodrigue, we reverse and “remand the case for
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further consideration of an appropriate lump-sum or periodic alimony award.” Rodrigue, 172
So. 3d at 1189 (¶46); see Stroh, 221 So. 3d at 414 (¶49) (explaining that lump-sum alimony
can “serve a function similar to periodic alimony” and may be awarded “in lieu of periodic
alimony, in appropriate cases”).
IV. Visitation
¶66. “The chancellor has broad discretion when determining appropriate visitation and the
limitations thereon.” Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994). “When
the chancellor determines visitation, he must keep the best interest of the child as his
paramount concern while always being attentive to the rights of the non-custodial parent,
recognizing the need to maintain a healthy, loving relationship between the non-custodial
parent and his child.” Id. “[T]here must be evidence presented that a particular restriction
on visitation is necessary to avoid harm to the child before a chancellor may properly impose
the restriction.” Id. “Otherwise, the chancellor’s imposition of a restriction on a
non-custodial parent’s visitation is manifest error and an abuse of discretion.” Id. However,
a chancellor may require visitation to be supervised based evidence of continued drug abuse
by the non-custodial parent. See Bell, Mississippi Family Law § 12.08[4], at 378-79. A court
may also order parents to continue to submit to drug testing. See McLemore v. McLemore,
762 So. 2d 316, 322 (¶19) (Miss. 2000).
¶ 67. Prior to trial in this case, the chancery court entered two orders requiring supervision
of Billy’s visitation. The orders were based on concerns about Billy’s continued drug use.
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During the same time period, Billy failed both of his court-ordered drug tests, testing positive
for methamphetamine and amphetamines in August 2016 and again in November 2016. A
few months later at trial, the court heard additional testimony and evidence regarding Billy’s
drug use and history of drug addiction. Billy admitted at trial that he had used drugs at home
and “had some issues with drugs.” Billy did not testify that those issues had been addressed,
nor is there any evidence that they were. There is no evidence in the record that Billy ever
passed a drug test during the course of this case, and the results of his November 2016 drug
test suggested that his drug use had actually increased. Despite these issues, the court’s final
judgment awarded Billy substantial unsupervised visitation, including alternating weekends,
holidays, and four weeks in the summer. The court’s opinion discussed Billy’s drug use and
failed drug tests, but the court did not explain why supervision of his visitation was no longer
necessary. Nor did the court require Billy to take any additional drug tests. Christina argues
that the chancery court abused its discretion by permitting unsupervised visitation.
¶68. As stated above, in setting the terms of visitation, the chancery court “must keep the
best interest of the child as [the court’s] paramount concern.” Harrington, 648 So. 2d at 545.
Here, the chancery court initially restricted Billy’s visitation because of concerns about his
drug use, and Billy continued to test positive for methamphetamine—and never passed a
single drug test. Nonetheless, in its final judgment, the chancery court awarded Billy
unsupervised visitation. Moreover, the court did so without providing any explanation as to
why supervision was no longer necessary. For the reasons discussed above, it is necessary
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for us to reverse and remand the case on other grounds. We further hold that on remand the
chancery court must determine whether unsupervised visitation is consistent with the
children’s best interests and whether supervision is necessary to avoid harm to the children.
It has been more than a year and a half since the final judgment was entered, so the chancery
court should consider evidence regarding Billy’s exercise of unsupervised visitation during
that time and the “circumstances at the time of the remand hearing.” Vaughn v. Davis, 36
So. 3d 1261, 1267 (¶18) (Miss. 2010). The court may also consider whether Billy should be
required to submit to additional drug tests. See McLemore, 762 So. 2d at 322 (¶19).
V. Contempt
¶69. As discussed above, the chancery court twice ordered Billy to pay the arrearage on the
mortgage on the marital home, and Christina filed two contempt motions based on Billy’s
failure to do so. Her second motion was still pending when trial began. On the first day of
trial, Billy admitted that the mortgage was not current. He claimed that he was unable to pay
it. Then, at the beginning of the second day of trial, the parties consented to an irreconcilable
differences divorce. The chancery court’s final judgment awarded Christina the marital
home, along with the mortgage. However, the court’s judgment did not specifically address
Billy’s prior contempt or the arrearage. On appeal, Christina argues that the chancery court
erred by not finding Billy in contempt and by not entering a separate judgment in her favor
for the mortgage arrearage.
¶70. We conclude that the issue of Billy’s contempt was waived because the parties did not
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list contempt among the issues to be decided by the court. In an irreconcilable differences
divorce, the issues that are to be decided by the court by the consent of the parties must be
“specifically set forth.” See Miss. Code Ann. § 93-5-2(3) (Rev. 2013). “The language of
section 93-5-2(3) is clear. A chancellor may decide contested issues in a divorce based upon
irreconcilable differences. However, he is limited to the resolution of those issues
specifically identified and personally agreed to in writing by the parties.” Myrick v. Myrick,
186 So. 3d 429, 433 (¶17) (Miss. Ct. App. 2016) (quoting Wideman v. Wideman, 909 So. 2d
140, 146 (¶22) (Miss. Ct. App. 2005)) (brackets omitted). Here, the parties agreed that the
chancellor would decide issues related to child custody and support, equitable division,
alimony, and insurance. Contempt was not mentioned when they consented to an
irreconcilable differences divorce. Therefore, we hold that the issue was waived.
¶71. In addition, our general “rule is that a party making a motion must follow up that
action by bringing it to the attention of the judge and by requesting a hearing upon it. It is
the responsibility of the movant to obtain a ruling from the court on motions filed by him, and
failure to do so constitutes a waiver of same.” Anderson v. McRae’s Inc., 931 So. 2d 674,
678 (¶10) (Miss. Ct. App. 2006) (emphasis added; quotation marks omitted). Here, Christina
noticed her motion for a hearing on the first day of trial and mentioned the motion at the
outset of trial; however, she did not request a ruling on the motion when she subsequently
consented to an irreconcilable differences divorce, or at any time thereafter. Therefore, there
is no “ruling from the [chancery] court” for this Court to review. Id. Accordingly, we
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conclude that Christina waived the issue by failing to obtain a ruling.
VI. Untimely Answer
¶72. As noted above, Billy was served with Christina’s complaint for divorce in August
2015, but he did not file his answer and counterclaim until July 2016. On appeal, Christina
argues that the chancery court “should have stricken” Billy’s answer and counterclaim as
untimely. This issue is without merit. To begin with, Christina never raised this issue or
moved to strike Billy’s answer or counterclaim in the chancery court. “It is well settled that
issues presented for the first time on appeal are procedurally barred from consideration.”
Wood v. Miller, 179 So. 3d 48, 50 (¶11) (Miss. Ct. App. 2015). Therefore, the issue is
waived. Moreover, there are no default judgments in divorce cases, see Miss. Code Ann.
§ 93-5-7 (Rev. 2013), and Christina identifies no way in which she was prejudiced by Billy’s
untimely answer and counterclaim.
CONCLUSION
¶73. We affirm the chancery court’s equitable division of the marital estate. However, we
reverse and remand for further proceedings consistent with this opinion on the issues of child
support and alimony. On remand, the chancery court must also determine whether
unsupervised visitation is consistent with the best interests of the Leblancs’ children and
whether Billy should be required to submit to additional drug testing.
¶74. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., NOT
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PARTICIPATING.
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