WILSON, J., FOR THE COURT
DATE OF JUDGMENT: 03/06/2017 TRIAL JUDGE: HON. WILLIAM H. SINGLETARY COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: PAMELA L. HANCOCK JEFFREY BRYAN MCGUIRE ATTORNEYS FOR APPELLEE: J. PEYTON RANDOLPH II RICK D. PATT NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 10/23/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., WILSON AND TINDELL, JJ. WILSON, J., FOR THE COURT : ¶1. Brooke Nejam Hoffman sought a divorce from her husband Michael (Mike) Hoffman, alleging as grounds habitual cruel and inhuman treatment and constructive desertion. The chancery court found that Brooke failed to prove that she was entitled to a divorce on either ground and dismissed her complaint. The court also awarded Mike attorney's fees based on both Brooke's contempt and Mike's inability to pay. Brooke challenges both rulings on appeal. For the reasons discussed below, we find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Brooke and Mike were married in January 2005. Their marriage has produced three children, born in 2005, 2011, and 2013. In October 2012, while pregnant with the couple's third child, Brooke moved out of the marital home. Brooke filed a complaint for divorce in January 2013, about two weeks before the child was born. She later filed an amended complaint that alleged both habitual cruel and inhuman treatment and constructive desertion. Mike answered and denied that Brooke was entitled to a divorce. The case eventually proceeded to trial in July 2014. The parties agreed to bifurcate the case and first try the grounds for divorce. The issues of child custody, support, and division of the marital estate were reserved pending the court's ruling on Brooke's entitlement to a divorce. ¶3. Brooke testified that she and Mike were in counseling "[p]retty much" from the start of their marriage until they separated. Brooke's mother agreed that the marriage was "troubled" from the start. She testified that she and her husband (Brooke's father) "kind of talked [Brooke and Mike] into getting married because . . . [Brooke was] pregnant." Brooke testified that she and Mike "both went to counseling," they would "follow and stick through it for a few weeks" at a time, and there was "some" intimacy in their marriage. But then they would argue, and "things would get back like they were." ¶4. Brooke alleged that during an argument in 2011, Mike "stabbed [her] back with a pencil while [she was] holding [their six-month old son] and pulled [her] hair and threw [her] down some steps." She filed a police report, but she testified that she later decided not to those fees, while Brooke was financially able to pay. Thus, the court entered a total judgment in favor of Mike for $31,572.09 plus five percent post-judgment interest. ¶18. Brooke's motion for reconsideration of the judgment dismissing her complaint for a divorce remained pending. Nonetheless, on February 25, 2015, Brooke filed a notice of appeal from the judgment awarding Mike attorney's fees. On appeal, Mike argued that this Court lacked jurisdiction due to the lack of a final, appealable judgment. This Court agreed with Mike and dismissed the appeal for lack of jurisdiction. See Hoffman v. Hoffman, 200 So. 3d 465, 468 (¶14) (Miss. Ct. App. 2016). ¶19. On March 6, 2017, the chancery court denied Brooke's motion for reconsideration of the court's judgment dismissing her complaint for divorce. The court also awarded Mike an additional $11,837.50 for attorney's fees incurred subsequent to the court's original award. Finally, the court awarded Mike $3,157.20 for interest on the original award. Thus, the court entered a new judgment in favor of Mike for $46,566.79 plus five percent post-judgment interest. On April 4, 2017, Brooke filed a notice of appeal.
Brooke testified that she was in treatment for opioid addiction in 2002. She testified that she was prescribed Suboxone when she left treatment, and still took the drug three times a day. Brooke testified that she also took Vyvanse and Gabitril by prescription. Brooke alleged that Mike used cocaine and marijuana, although she did not believe that he had a drug problem. Mike denied that he used drugs.
Mike suggested that Chad's wife could have been responsible for the vandalism.
Mike was entitled to visitation pursuant to a March 7, 2013 temporary order. The issue of contempt was tried in July and September 2013, but the court agreed to reserve its ruling until after the trial on Brooke's complaint for a divorce.
ANALYSIS
¶20. "When reviewing a decision of a chancellor, this Court applies a limited abuse of discretion standard of review." Mabus v. Mabus, 890 So. 2d 806, 810 (¶14) (Miss. 2003). "This Court will not disturb the chancellor's opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Holloman v. Holloman, 691 So. 2d 897, 898 (Miss. 1996). "A chancellor's conclusions of law are reviewed de novo." Lowrey v. Lowrey, 25 So. 3d 274, 285 (¶26) (Miss. 2009). ¶21. On appeal, Brooke argues that the chancery court erred by finding that she failed to prove her alleged grounds for divorce. She also argues that the court erred by awarding Mike attorney's fees because Mike filed for bankruptcy in April 2014, and was discharged from bankruptcy in September 2014, but failed to disclose a debt to his divorce attorney in the bankruptcy proceeding. She argues that the doctrine of judicial estoppel bars Mike from recovering attorney's fees. She also claims that any debt to Mike's attorney was discharged in bankruptcy. We address these issues in turn. We also address Mike's request for appellate attorney's fees.
I. Grounds for Divorce ¶22. As discussed above, Brooke alleged that she was entitled to a divorce on the grounds of habitual cruel and inhuman treatment and constructive desertion. As a practical matter, there is little difference between these two grounds. "In effect, conduct that would qualify as habitual, cruel, and inhuman treatment becomes constructive desertion when the innocent spouse leaves the home rather than remaining." Deborah H. Bell, Mississippi Family Law § 4.02[5][d], at 80 (2d ed. 2011). ¶23. "Habitual cruel and inhuman treatment is conduct that either: (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger and renders the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to render the was emotionally abusive. It is for the chancellor "alone" to "judge[] the credibility of the witnesses" and weigh any "conflicting evidence." Irle v. Foster, 175 So. 3d 1232, 1237 (¶32) (Miss. 2015). This Court does not reweigh conflicting evidence on such issues of fact. Mayton v. Oliver, 247 So. 3d 312, 322 (¶33) (Miss. Ct. App. 2017). ¶29. Suffice it to say there was conflicting evidence with respect to each of Brooke's various allegations against Mike. Those conflicts represent issues of fact for the chancery court to decide. Id. The chancery court summarized its reasons for dismissing Brooke's complaint for divorce as follows:
Brooke may very well have determined for herself that she is no longer willing to countenance the ways in which she and Mike seem no longer to get along, especially when considered from the perspective of another man's arms with whom she may now seem more compatible. However, . . . for a divorce to be granted on the ground of habitual cruel and inhuman treatment there must be proof of systematic and continuous behavior on the part of the offending spouse which goes beyond mere incompatibility . . . .
. . . .
The theory of constructive desertion as a grounds for divorce is reserved for extreme cases. Although Brooke's and Mike's marriage might reasonably be characterized on the record made as unhappy and unfulfilling, the evidence does not support a finding that it is to be considered unendurable to Brooke.
. . . .
The [c]ourt takes no pleasure in declining to award relief in a circumstance where the parties are separated and one party professes to be so unhappy as to seek to be officially unshackled from the bonds of matrimony. The [L]egislature, as the policy makers for this [S]tate, have consistently declined to amend the divorce statutes to provide that one party can obtain a divorce from the other spouse without a showing of fault. Our appellate courts have not expanded the definition of cruel and inhuman treatment to include
circumstances which would otherwise comprise mere incompatibility. The [c]ourt is, therefore, constrained by the evidence presented to it and the record made, and cannot find that Brooke's and Mike's marriage was unendurable at the time that Brooke left. Thus, the [c]ourt cannot find that Mike is guilty of constructive desertion.
We find no clear error, legal error, or abuse of discretion in the chancery court's findings and conclusions. Therefore, we affirm the judgment of the chancery court dismissing Brooke's complaint for a divorce.
II. Attorney's Fees ¶30. On the issue of attorney's fees, we begin by noting several points that Brooke does not dispute in this appeal. Brooke does not dispute (1) that she was in contempt, (2) that Mike is unable to pay the attorney's fees that he incurred defending against her complaint for divorce, (3) that, by contrast, she is financially able to pay those fees, and (4) that the hours expended and hourly rates and total fees charged by Mike's attorneys were all reasonable. As Brooke has not raised those issues on appeal, we do not address them. See Layton v. Layton, 181 So. 3d 275, 283 (¶¶21-23) (Miss. Ct. App. 2015). ¶31. Brooke's arguments on appeal focus entirely on Mike's bankruptcy. Specifically, as noted above, she argues that Mike's claims for attorney's fees are barred (1) by the doctrine of judicial estoppel because he failed to disclose a debt to his attorney in his bankruptcy proceeding and/or (2) because any debt to Mike's attorney was discharged in the bankruptcy proceeding. We conclude that the former issue is procedurally barred because Brooke did not raise the issue in the chancery court. Moreover, we conclude that Brooke failed to make Mike is affirmed.
The record does not contain the case style or number of Mike's bankruptcy.
Brooke appears to concede that Mike's discharge from bankruptcy would have no impact on fees that he incurred after the bankruptcy. --------
III. Appellate Attorney's Fees ¶37. On appeal, Mike requests an additional award of attorney's fees "of up to one-half of the prior amount awarded" by the chancery court. "Generally, on appeal this Court awards attorney's fees of one-half of what was awarded in the trial court." Riley v. Riley, 196 So. 3d 1159, 1164 (¶23) (Miss. Ct. App. 2016). However, "allowing attorney fees on appeal in an amount equal to one-half of the fees allowed by the trial court may not be fair and equitable in all cases." Hatfield v. Deer Haven Homeowners Ass'n Inc., 234 So. 3d 1269, 1277 (¶30) (Miss. 2017). In some cases, "the better practice . . . would be for the party seeking attorney fees on appeal to file a motion in this Court, supported by affidavits and time records that establish the actual fees expended on appeal." Id. ¶38. The chancery court awarded only $6,000 or so in attorney's fees for the first appeal in this case. That amount was based on time actually spent on the appeal by Mike's attorneys. We have no way of knowing whether the second appeal required more attorney time than the first. However, given the actual cost of the first appeal, it "may not be fair and equitable" to award additional fees equal to half of the $43,409.59 already awarded by the chancery court. Id. Therefore, at this time, we deny Mike's request for appellate attorney's fees without prejudice. If Mike wants to pursue attorney's fees for the appeal, he should "file a motion in this Court, supported by affidavits and time records that establish the actual fees expended on appeal." Id. Any such motion should be filed before the mandate issues.
CONCLUSION
¶39. The final judgment of the chancery court is affirmed in all respects. We deny Mike's request for appellate attorney's fees without prejudice. ¶40. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.