688 So. 2d 1374 (Miss. 1997)
Linda Watts Bowen and David R. Bowen married on November 27, 1974, and their union produced two sons, Jason, who was fifteen years old at trial, and Jeremy, age eleven.1 The parties separated in the fall of 1992, after which Linda filed a complaint for divorce in the Chancery Court of Smith County on grounds of habitual cruel and inhuman treatment while David filed a counterclaim seeking divorce on the same grounds.2
During the four-day trial, the parties presented extensive evidence concerning their relationship and alleged misconduct, including rumors that circulated in their Mississippi communities that Linda was involved in a homosexual relationship with Lynn Grayson, a woman with whom she worked and maintained a close friendship. David told the couple's sons that their mother loved another woman more than she loved them, though he denied believing Linda was a lesbian, and Linda admitted David never directly accused her of being a lesbian but claimed he insinuated it, while witnesses testified about Linda and Lynn joking about the rumors at work and about Jeremy hearing comments on the school bus regarding his mother leaving for another woman.
Specific incidents included an altercation where David threw Linda onto the bed while attempting to remove her pants, which Linda described as frightening and David characterized as playful, along with David punching a hole in the bedroom door during an argument and placing a gun barrel in his mouth, which Linda said terrified her. On November 9, 1992, the parties engaged in a physical fight after David made a comment about the Graysons, resulting in Linda's three-day hospital stay, and Linda described David's name-calling while complaining about his fussing regarding her clothing and makeup, with David testifying about Linda's threats of suicide and heavy drinking.
Financial evidence showed David earned take-home pay of approximately $1,420 to $1,460 monthly from Trilogy Communications plus National Guard income while Linda earned about $640 per month, and the couple owned a home outside Raleigh, Mississippi, titled jointly, which David had built.3 David had served in the Mississippi National Guard for twenty years but lacked his twenty-year letter for retirement benefits due to a records error, as he was thirty-eight at trial, and Linda testified she contributed to the marriage through work and homemaking, including tasks supporting David's Guard service.4 On February 4, 1994, the chancellor denied divorce to both parties, awarded custody of Jason to Linda and Jeremy to David, granted David use and possession of the marital home, denied Linda any share of David's retirement benefits, and denied attorney fees, after which Linda appealed to the Supreme Court of Mississippi.5
Whether the chancellor erred in failing to grant Linda Bowen a divorce on the grounds of habitual cruel and inhuman treatment?6
The grounds of habitual cruel and inhuman treatment may be established by a showing of conduct that either (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the nonoffending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.7 Habitual cruel and inhuman treatment may be established by a preponderance of the evidence, and the charge means something more than unkindness or rudeness or mere incompatibility or want of affection.8 On appeal, this Court will overturn the chancery court only when its findings were manifestly wrong and there is no substantial evidence to support those findings.9
No. The four-day trial evidence showed conflicting testimony regarding the incidents of alleged cruelty. The November 9, 1992 physical altercation had differing accounts on who struck whom first and the extent of the blows. The incident where David placed a gun barrel in his mouth and the rumors regarding Linda's relationship with Lynn Grayson were also at issue.10 The chancellor found that both parties were responsible for isolated physical altercations and that the problem was mere incompatibility.11
The chancellor noted the great conflict in evidence and found that most of the evidence had to do with the parties fussing back and forth with each other with a few physical altercations, with each party giving about as good as they got. Therefore, Linda failed to establish by a preponderance of the evidence conduct endangering life or so unnatural as to make the marriage revolting.12 The chancellor's finding was supported by substantial evidence.13
The chancellor was not manifestly wrong in denying Linda Bowen a divorce on the grounds of habitual cruel and inhuman treatment.14
Whether the chancellor erred in awarding to David Bowen custody of the couple's younger child, Jeremy Bowen?15
There is no per se rule against the separation of children.16 Rather, the polestar consideration in all child custody cases is the best interest of the child.17 This Court has set forth the following factors to be considered by chancellors when making custody determinations: the age of the child, health and sex of the child, continuity of care prior to the separation, parenting skills, willingness and capacity to provide primary child care, employment responsibilities, physical and mental health and age of the parents, emotional ties of parent and child, moral fitness of parents, home school and community record of the child, preference of the child, stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.18 This Court will uphold the factual findings of the chancellor if the findings are not manifestly wrong or substantially erroneous.19
No. The chancellor thoroughly discussed virtually all of the Albright factors in the record.20 He found that due to Jason's stated preference to be placed in his mother's custody and his apparent hostility towards his father, it was in Jason's best interest to be placed in the custody of his mother. In determining the custody of Jeremy, the chancellor found that the rumors had hurt Jeremy more than Jason.21 He also found that Jeremy could probably not tolerate the continued close relationship that Linda and Lynn Grayson were going to continue.22
The chancellor recognized that it is unusual and usually best not to split custody of the children.23 He stated that he believed it to be justified and called for in this case.24 The chancellor awarded to each parent visitation rights such that Jason and Jeremy would be together during weekends, summers and holidays.25 He noted that both boys would be attending the same school in Raleigh.26
The chancellor did not manifestly err in awarding custody of Jeremy to David Bowen.27
Whether the chancellor erred in awarding to David Bowen use and possession of the marital home?28
In domestic relations cases the chancellor has the paramount authority and responsibility to make such orders as are necessary and appropriate for the care custody and maintenance of the children of the marriage.29 It is well settled that there is no reason why a chancellor under the broad discretion granted him cannot award possession of the marital residence in a divorce or separate maintenance action to either party.30 On appeal this Court will not overturn the chancery court unless its findings were manifestly wrong.31
No. The chancellor found that each party owned an undivided one-half interest in the marital home.32 He ordered David Bowen to pay the outstanding notes, taxes, insurance premiums and maintenance costs for the home.33 He awarded to David Bowen the exclusive use and possession of the home until such time as he might abandon the home, or until such time as Jeremy becomes emancipated, at which time the home shall be sold.
Although the chancellor admittedly considered Linda's responsibility for the couple's marital problems as a factor in his decision, the decision was influenced as well by concerns for the welfare of Jeremy, a consideration which the chancellor was required to make. The chancellor acted prematurely, however, in ordering the partition by sale of the home upon Jeremy's emancipation or David's abandonment of the home.34 Chancellors have no authority incident to separate maintenance orders to order the partition of real property in the absence of a petition for such.35
The chancellor did not err in awarding use and possession of the marital home to David but the contingent order of the partition of the home must be deleted from the chancellor's judgment.36
Whether the chancellor erred in denying Linda Bowen any portion of David Bowen's retirement benefits, or in making an equitable division of marital property in the absence of a divorce?37
The objective of separate maintenance is to compel the husband to return to the marital home or to pay for her separate maintenance.38 The wife's entitlement to separate maintenance is for a monetary amount and does not extend to the division of marital assets.39 Therefore the chancery court is not authorized to divest title to real estate from the husband and invest title in the wife.40 Nor should the separate maintenance decree award to the wife any part of the husband's estate in fee except such as may be consumable in its use and necessary for her reasonable support.41 The legal duty of the husband to support his wife does not require that he convey any property to her.42
No. The chancellor ordered an equitable division of the marital property.43 He awarded to Linda Bowen ownership of two of the couple's three four-wheeled all terrain vehicles.44 He awarded one-half of the contents of the marital home.45 He awarded the 1991 Ford Tempo vehicle titled in David's name with David to pay the outstanding balance owed thereon.46 The chancellor denied Linda any portion of David's retirement benefits.47 He found that to do so would be inequitable given that Linda made no direct contribution thereto and in light of the division of other marital property.48
Under the clear holding of Daigle the chancellor had no authority to divest David of title to any portion of his retirement benefits.49 The chancellor did not divest title to any real property from David and vest it in Linda.50 The marital home an undivided one-half interest in which the chancellor found Linda owned was already titled in the names of both parties.51 The awards to Linda of the four-wheelers one-half of the contents of the marital home and the 1991 Ford Tempo were consumable in use and necessary for her reasonable support.52
Whether the chancellor erred in denying Linda Bowen an award of $2,500 in stipulated attorney fees?55
The award of attorney fees in a divorce case is generally left to the discretion of the chancellor.56 A chancellor does not abuse his discretion in denying attorney fees to a party who is financially able to pay such fees.57 We are reluctant to disturb a chancellor's discretionary determination whether or not to award attorney fees and of the amount of any award.58
No. Linda and David stipulated that $2,500 was a reasonable attorney fee for each party in this case.59 Linda testified that she had no separate estate with which to pay her fees.60 She had to borrow the money from her father.61 In ruling on this issue, the chancellor stated that the Court is not going to award either party any attorneys fees.62 The Court believes that each party can pay their attorneys.63
The testimony is uncontradicted that for the last six months of 1993 she earned $10,480.64 So the chancellor believed she can pay her attorneys fee.65 The chancellor was not manifestly wrong in finding that Linda was able to pay her attorney fees.66 Therefore, the chancellor did not abuse his discretion in denying her such an award.67
The chancellor did not abuse his discretion in denying Linda Bowen an award of attorney fees.68