Kreppner vs Kreppner, No. 2021 CA-0006-COA (2022)

Story Of The Case:  The father was granted custody of the parties' nine year old daughter in the divorce.  The mother agreed with this in the divorce decree, and agreed to the visitation provision, which granted her restricted visitation to be supervised by a third party.  Just seven (7) months after the divorce, she filed to have custody changed to herself, based on actions of her ex-husband's new wife.  She did not get custody, but the parties did agree to her having additional  visitation without supervision.  Within a year, she filed for another "modification", again alleging the ex-husband's wife to be the problem.  The trial court denied her relief on both occasions, and she appealed.

Outcome:  The Appeals Court held against her in her appeal and the father kept custody.  It addressed the common complaint among divorced couples concerning the new stepmother or stepfather.  The Justices stated that the Supreme Court of Mississippi has "steadfastly" held that re-marriage itself is not enough to cause a change in custody, and that remarriage itself could cause a change in custody "only in extreme situations, such as physical or mental abuse by a stepparent."

Interesting Fact:    A Child Protective Services Worker, a Child Therapist, A Guardian Ad Litem, and a Doctor specializing in evaluating a child's mental and emotional health all testified.  The Doctor recommended that the mother get custody, and the Guardian Ad Litem seemed to agree.  The child's therapist, on the other hand, testified that the father should keep custody. The Child Protective Services Worker seemed to agree with her.  In the end, with the battle of the experts, it was still up to the trial court to decide.

                          Lambes vs Lambes, No. 2020-CA-00095-COA (2022)

Story Of The Case:  On May 23, 2019 the wife was granted a divorce on the grounds of habitual cruel and inhumane treatment.  Between June of 2019 and October of 2019, a trial held on the issues of child custody and support.  The husband was awarded the primary physical custody of the parties' two children, with the wife receiving liberal visitation.  The wife appealed the custody decision of the trial court, alleging that the Guardian Ad Litem made material misrepresentations in her report and that the husband should not have been granted custody since he admitted to habitual cruel and inhuman treatment of her.

Outcome:  The Appeals Court denied the wife's appeal as to custody, stating that, in the end, it was the Trial Court's job to listen to the testimony, review the evidence, and make decisions.  It found that the trial court did not abuse its discretion in giving the husband custody.  The Appeals Court addressed the fact that the husband admitted to habitual cruel and inhuman treatment, stating that the other evidence presented rebutted the presumption that he was not a fit parent to have custody due to family violence.  It also found that there were no material misrepresentations in the Guardian Ad Litem's report.

Interesting Fact:  The Trial Court went down the list of the "Albright Factors" in its ruling.  (See these factors mentioned several times in this website, including the child custody "self test" in Resources section.)  This is the first case I have read in which the Trial Court did not find a single one of the Albright Factors to favor the husband over the wife, but awarded him custody, anyway.  The wife made many unfounded and serious allegations against the husband, which, reading between the lines, may have caused the Court concern.

                          Denham vs Denham, 2020-CA-00675-COA (2022)

Story Of The Case:  After a three (3) day trial, the wife was granted a divorce from the husband on the grounds of adultery.  She got physical custody of the children and was awarded child support and alimony.   Visitation was awarded to the husband.  The husband appealed the awards of custody, visitation, child support, the division of the marital property, and alimony. This case touches on almost every contested issue which arises in a divorce case, and presents a pretty good summary of the law regarding all of those basic issues.

Outcome:   The Court of Appeals shot down each of the grounds for appeal filed by the husband.  One argument of note the husband made on appeal was that the trial court erred in awarding him "less visitation than the amount that his wife testified was in the best interest of the children."   Visitation is a subject that does not come up much when you look at appeals of family law cases.  The Appeals Court stated that awarding the husband less visitation than the wife admitted was good for the children was within the discretion of the trial court, and did not rule for the husband in that regard, either

Interesting Fact:     Although this was a three (3) day trial, the Defendant tried to represent himself on the first day, as his first attorney had withdrawn from representing him.  He asked for a continuance the first day of the trial for 30 days, but the trial court denied it in light of the facts of the case and his actions in not getting a new attorney.

                       Wooten vs Wooten, 2020-CA-00353-COA (2022)          

Story Of The Case:  The husband and wife agreed to a divorce on the grounds of irreconcilable differences.  The wife was granted physical custody of parties' children.  The Trial Court also divided the assets of the parties.  The husband appealed the case, alleging that he should have been granted custody under the "Albright Factors"**, and that the court should have taken the wife's retirement savings into account in the division of the assets.

Outcome:  The Appeals Court ruled that the Trial Court did not make an error in awarding the wife custody, and left that issue alone. However, it did send part of the case by back to the Trial Court to take the savings account into consideration when dividing the assets.   The court pointed out that when dividing the marital assets in a marriage, "any and all property acquired or accumulated during the marriage" should be considered.   Since the retirement savings account was accumulated by the wife during the marriage, it should have been considered.

Interesting Fact:  This reminds us that the Court typically does not question how money is spent or saved in a marriage.  In other words, who pays the mortgage, who pays for the cars, who pays for vacation, etc., does not matter.  Who saves the money does not matter.  It is generally viewed as money spent or saved for the benefit of both parties, even if one party contributes more financially.           

      **Note:  For A List Of The Albright Factors, See The "Child Custody Self-Test" On This Website.

                   Rogers vs Morin, 791 So. 2d 815 (2001)

Story Of The Case:   The parties were granted a "No-Fault" divorce, which did not make it any less bitter.  When you have nineteen (19) days of trial, this is not good.  The wife was granted custody of the parties' minor child, but appealed the decision of the trial court, in what I can only imagine were financial and property reasons.  In any event, she appealed the decision, giving fourteen (14) separate reasons why the Trial Court was wrong.   

I've said it before, but this has to be some kind of record.   

Outcome:  The Supreme Court batted away each of her reasons, and upheld the Trial Court's Decision.  I wanted to post this case, even though it is not new, because it involves a question we are sometimes asked; "Is it legal for my wife/husband/boyfriend/girlfriend to record our conversations?"  The answer is yes, if he or she is recording you on his or her own phone. 

The Mississippi Wiretapping Laws make the following exception:  "This article shall not apply to a person who is a subscriber to a telephone operated by a communication common carrier and who intercepts a communication on a telephone to which he subscribes."  It also states, "This article shall not apply to persons who are members of households of the subscriber who intercept communications on a telephone in the home of the subscriber."  Miss. Code Annot. Sec. 41-29-535.

Interesting Fact: The husband was awarded damages for defending against sexual abuse allegations brought by his wife, which both the Trial Court and the Supreme Court found were fabricated by the wife.

                  Gibson vs Gibson, 2020-CA-01377-COA

Story Of The Case:   The case involved the divorce of two parents of a four (4) year old child. The Divorce was filed in 2015, while the the father was in Rehab.  The mother was arrested for Grand Larceny in 2016.  There were allegations and incidents of incarceration, drug use, drug addiction, alcoholism, felony convictions and DUI between the parties during the proceeding.  The grandparents became involved at one point and were given temporary custody.  After an almost five (5) year battle, the trial Court awarded the mother the custody of the child.  The father appealed.  

Outcome:  The Appeals Court rejected the father's appeal and ruled that the Trial Court had ruled correctly.   The father's primary argument was that the Guardian Ad Litem,(An Attorney appointed by the Court to represent the minor child), did not file a written report.  The Court of Appeals stated that since there were no allegations of abuse or neglect of the child, the Guardian Ad Litem was not required by law to file a written report.  (The Guardian Ad Litem did testify at the trial).

Interesting Facts:  The Guardian Ad Litem was relieved of this duties by the Trial Court at the time of the trial.  A substitute was never appointed.  Also, there were two (2) different trial judges involved and, by my count, eight (8) temporary orders entered before the divorce was finally granted in November of 2020.  This has to be a record.    

                                                       Embrey vs Young, 2021-CA-00091-COA

Story Of The Case: The mother and father of two young children were in a custody dispute, one of which was actually born during the legal proceeding. During the litigation the father stated to the mother that one of the minor children had been sexually abused by a 14 yer old cousin on the mother's side of the family.   A therapist had 15 sessions with the minor child and concluded that the father's sexual abuse claims were unsubstantiated, as did child protective services.  The mother was awarded custody after a protracted court battle, and the father appealed the case.

Outcome:  The Court of Appeals found that the Trial Court had acted within its discretion and could find no reversible error.  It dismissed the father's appeal.  The primary legal argument of the father was that, according to Mississippi Law, the trial judge was required to appoint a "Guardian Ad Litem" to protect the interests of the minor child.  The Appeals Court disagreed, stating that when there was no substantiated evidence of sexual abuse, the trial court had discretion in whether to appoint one.

Interesting Fact:  The mother of the children did not file a counterclaim for custody until nearly two (2) years after the father first filed his petition for custody, showing how long these things can potentially last.  Had a Guardian Ad Litem been appointed, it would have taken even longer.  

                                                       Cotton vs Cotton, 2008-CA-00626-COA

Story Of The Case:  The parties were married in September of 1969, and remained married for 37 years.  When the wife filed for a divorce the husband counter-sued for an annulment of the marriage, alleging that the wife was never divorced from a husband she had married in Chicago in 1962.  He claimed that she was then guilty of bigamy, and, since they were not legally married, she was not entitled to any of the "marital" assets in his name, his retirement account, or other assets.  The trial court disagreed and granted her a share of the assets.

Outcome:  The husband appealed, and the Appeals Court stated that the trial court was correct in its ruling.  It upheld the wife's right to a share of the assets of the parties.  Their reasons included the length of the marriage, the contributions of the wife, both financially and as a mother to their children, and her good faith in entering into the marriage. ( She was 18 at the time of the alleged first marriage, and there was no proof of that she was actually married at that time nor was there proof of a divorce.)

Interesting Fact:   Though this was not a new case, I had someone in my office today who claimed he was not legally married and that there was a forgery in the marriage license.  It reminded me of this case, in which I represented the wife at the trial and on appeal, so I posted it.   It is also a good examination of the case law in Mississippi of parties' living together and when it will treat it as a marriage for purposed of property and asset division.           

                                                       Braswell vs Braswell, 2020-CA-01090-CA

Story of The Case:  The parties were divorced in 2016.  At the time of the divorce the husband was an Ophthalmologist making $280,000 a year.  He agreed in the property settlement agreement to pay $4,500.00 per month in alimony and $2,500.00 per month in child support.  Between December 2018 and April 2019 he faced continuing and serious financial difficulties, including bankruptcy.  As a result, in 2019 his income was $54,362.00.   The trial court refused to modify the earlier order, and he appealed.

Outcome:  Because his reduction in income was unanticipated, unforeseen and beyond his control, the Appeals Court reversed the trial court's decision and stated that his situation was a substantial and material change in circumstances.  Therefore, child support and alimony should have been lowered by the trial court.

Interesting Fact:  The full facts of the case included a loss in income due to COVID 19.

     Special Note:  Any attorney or interested client should read this case for its reasoning on the reduction of alimony and child support, and, in my opinion, a significant step forward in dealing with issues of job loss, reduction and its effect on court orders.

                                                        Bryant vs Bryant, 2020-CA-00883-COA

Story Of The Case:  In the "Property Settlement Agreement" in the parties' divorce there was a specific provision in the agreement regarding their children's education and where they could attend school, mainly, it left this decision up to the husband.  This was in 2016.  In 2020 the ex-husband informed the ex-wife that he would be changing schools for all three children. She filed a "Modification Complaint", asking the trial court to order the children to attend a different school district. The trial court ruled that that it was in the best interests of the children that they be enrolled in the school system asked for by the ex-wife.  The ex-husband appealed.  

Outcome: The Appeals Court found nothing wrong with the trial court's judgement.  It re-affirmed the idea that things typically change after a divorce.  When that happens, the Trial Court has the authority to override the power granted to the husband in the original Property Settlement Agreement, if it is in the best interests of the children.

Interesting Fact:  At the time of the divorce the oldest child was five (5) years old and enrolled in private school and the parties' twins were only two (2) years old. The oldest child was still in that private school when the mother filed her Modification Complaint.    

                                                        Stephenson vs Stephenson, 2020-CA-01201-COA (11-23-21)

Story Of The Case:  Husband was transferred to another county during the marriage and the wife would not move with him.  Four and One-Half years later he filed for divorce on the grounds of desertion, alleging that it was desertion not to move with him. 

Outcome:  The Appeals Court ruled that this was not desertion.

Interesting Fact:  The Appeals Court formally overturned a 1940 case, Outz v. Carroll, which made it the "duty of the wife to follow the husband to the domicile of his choice", reasoning that this discriminated on the basis of gender and had no place in the world today.  

                                                        Kreps vs Hyland, 2019-CA-01371-COA, (11-16-21)

Story Of The Case:  The mother of a nine-year old daughter was arrested on the day of her custody trial for misdemeanors unrelated to the trial.  As a result, she was in jail when the Trial Judge decided to proceed without her.  Thus, she was not present in the courtroom when 4 witnesses for the father testified against her.    

Outcome:  The Mississippi Court of Appeals ruled that the Trial Judge had violated her 14th Amendment rights to the "due process of law", including the right to cross examine witnesses and be present for any witnesses testifying against her. 

Interesting Fact:  The Court Of Appeals did not criticize the arresting officer who literally took her out of the courthouse when her trial was starting, only the Judge.