Archive for August, 2016

Separate Maintenance/Alimony Considered by Court of Appeals

Monday, August 29th, 2016

Recently the Rankin County Chancery Court was appealed on a claim by a wife for separate maintenance which is also considered separate alimony.  The claims of the wife include the issue of her being entitled to support outside of child support, which would be considered alimony or temporary separate maintenance.  The Rankin County Chancery Court heard a case in Spotswood v. Spotswood wherein the court was asked to consider a claim that the husband was required to reimburse the wife for insurance premiums that she paid through her employment and that she would also request payments for the mortgage of the marital home that the husband and wife owned jointly.  The Rankin County Chancery Court determined that the husband reimburse the wife for those insurance premiums as well as pay half of mortgage payments for the marital home, although the husband had departed the marital home.  The husband argued that the chancery court made an error in ordering him to make payments on the marital home as well as the insurance payments and essentially granted the wife’s request for separate maintenance or alimony even though the court specifically found that the wife was not entitled to the payment for separate maintenance or alimony.  The Court of Appeals determined, after reviewing the entire record, that if the lower court had found that the award of separate maintenance or alimony is not warranted then the court cannot order one spouse, in this case the husband, to undertake obligations for the benefit of the other spouse, in this case the wife.  Essentially the Court of Appeals was presented with a question that has been litigated in Chancery Courts around the state of Mississippi for decades.  The Court of Appeals resolved a solitary issue here and found that the wife was not entitled to separate alimony or maintenance because the court of Rankin County determined that she was not entitled to the same.  The court, in essence, determined that the husband was not required to make the payment for the mortgage of the home or insurance, as the Rankin County Court had previously adjudicated.  Therefore the Court of Appeals reversed and rendered the decision back to Rankin County Chancery Court in order to have them make a determination of the issues aside from the decision that was made; that the husband could not be required to make payments outside of the scope of alimony even if they were in the guise of insurance or mortgage payments after the determination had already been made that separate alimony or maintenance during the parties’ separation was denied.

If you need assistance with a separate maintenance or alimony issue, contact The Law Office of Matthew Poole, and we are best able to provide you with the assistance and advice in order to bring your case to a fair conclusion.

Matthew Poole (601) 573-7429.

Alternating Physical Custody of a Young Child

Sunday, August 21st, 2016

It has become common in the state of Mississippi, as well as other jurisdictions, that parties to a divorce as well as custody actions have requested that their minor child be as close to equally split in physical custody as the court will permit. On the day of the trial in a recent case that went to the court of appeals, the husband and wife agreed to consent to trial of the divorce on solely irreconcilable differences and permit the chancellor to resolve the issues of physical and legal custody of the minor child of the marriage. At the time of this marital dissolution the parties were jointly parenting a five-year-old little girl. After hearing evidence based upon the testimony of the parties excluding the fault-based grounds that were dropped ,the parties were both awarded approximately an equal split on physical custody until the daughter was able to attend kindergarten. The wife argued that the chancellor mistakenly failed to decide who would have custody of the daughter when she started kindergarten. The wife did not argue that the final order of the court was not final and appealable, but the underlying issue to be resolved was the parallel to this issue. In his ruling, the chancellor failed to specify the exact month and year in the final judgment of the child’s reversion to standard physical custody on the part of the mother. The wife also argued to the court of appeals that the chancellor failed to consider if the joint custody arrangement was practical due to the distance the daughter had to travel. At this point, the father lived in San Antonio, Texas. There was a significant argument as to the impracticality of traveling to San Antonio, Texas from Brandon, Mississippi, even prior to the child starting kindergarten at 5 years old. In this case, the chancellor found that shared custody was in the best interest of the child, despite the fact that she would have to travel significantly to spend time with either parent. Given the distance between San Antonio, Texas and Brandon, Mississippi, the court of appeals determined that the custody arrangement was not in the best interest of the minor child. Thus, the case was reversed and remanded with further instructions to the court to make adequate consideration of the travel time in order to effectuate this difficult provision in terms of travel for alternating custody. The important point to remember is that a significant amount of precedent discourages the use of alternating custody arrangements even prior to a child attending school.

If you need help with a complicated or complex custody arrangement or need advice on how to best proceed in order to parent your child or children, call the Law Office of Matthew Poole, and we will be happy to help in any way that we can within the bounds of existing legal precedent.

Matthew Poole (601) 573-7429.