Almond v. Almond

850 So. 2d 104, 2002 Miss. App. LEXIS 271, 2002 WL 982624
CourtCourt of Appeals of Mississippi
DecidedMay 14, 2002
DocketNos. 2001-CA-00177-COA, 2001-CA-00504-COA
StatusPublished

This text of 850 So. 2d 104 (Almond v. Almond) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Almond v. Almond, 850 So. 2d 104, 2002 Miss. App. LEXIS 271, 2002 WL 982624 (Mich. Ct. App. 2002).

Opinion

THOMAS, J., for the court.

¶ 1. Carl and Martha Almond were granted a divorce on irreconcilable differences. The chancellor denied Carl’s request for alimony and a credit for a portion of Martha’s retirement benefits. Carl appeals the chancellor’s decision asserting the following issues as error:

I. THE TRIAL COURT ERRED IN NOT CONSIDERING AND AWARDING CARL ALIMONY DUE TO HIS DISABILITIES.
II. THE TRIAL COURT ERRED IN NOT GRANTING CARL A CREDIT FOR A PORTION OF MARTHA’S RETIREMENT BENEFITS.

Finding no error, we affirm.

FACTS

¶ 2. Carl and Martha Almond were married on April 15, 1966. In July 1966, they [105]*105moved to Vicksburg, Mississippi, where Carl began work at the Marathon-LeTour-neau plant. Carl and Martha had two children within the first few years of their marriage, and Martha stayed at home with them and performed duties typical of a housewife. She also kept other children in the neighborhood for extra income. In 1977, Martha went to work as a bank teller. A year later, she took an office job at LeTourneau where she worked until 1986. At that time, Martha obtained a job at the Waterways Experiment Station as a secretary and has worked there since. In 1982, Carl and Martha built a house in Warren County using money they had saved together for a down payment. At the time of trial, the house mortgage was fully paid.

¶ 3. In 1991, Carl injured his right knee at work. He underwent arthroscopic surgery on his knee in 1992. Due to this injury, Carl was paid thirty-four thousand dollars in settlement proceeds. In 1992, Carl was notified that LeTourneau was going to shut down the plant in Vicksburg, and that managers and supervisors had the option of receiving severance pay; Carl took the option. In 1995, the plant reopened and former employees were given the option to reapply. Carl did not reapply, however. In 1999, Carl took early voluntary retirement at the age of fifty-five and began receiving a check for $170.24 monthly.

¶ 4. On April 7, 2000, Martha moved out of the marital home and into an apartment due to Carl’s refusal to work and the financial burden that it created. Martha filed a petition for a partition of the marital home and the personalty on April 13, 2000. On May 18, 2000, Martha and Carl filed a joint petition for divorce based on irreconcilable differences. They could not agree, however, to the equitable distribution of marital property and therefore left this distribution to the chancellor.

¶ 5. At trial, Carl took the position that he was disabled and could not work due to a back injury which occurred in 1973, his knee injury, his feet, asbestos of the lungs, hearing loss, and hypertension. Due to these factors, Carl asked that he be allowed to live in the marital home and receive alimony from Martha along with a portion of Martha’s retirement. Carl and Martha both testified at trial, as did their two emancipated children and Carl’s sister. At the conclusion of the trial, the chancellor granted their divorce on irreconcilable differences and denied Carl’s request for alimony and a portion of Martha’s retirement. Both Carl and Martha were given a half interest in the marital home which was to be sold. Carl was given both pickup trucks and a bass boat, and Martha was given a Mazda car. A tract of land in Kosciusko was declared a non-marital asset of Martha’s. Both Carl and Martha were given their own checking, savings, and retirement accounts. Other assorted personal property was also divided.

ANALYSIS

I. DID THE TRIAL COURT ERR IN NOT CONSIDERING AND AWARDING CARL ALIMONY DUE TO HIS DISABILITIES?

¶ 6. The standard of review employed by this Court in domestic relations cases is abundantly clear. Chancellors are vested with broad discretion, and this Court will not disturb the chancellor’s findings unless the court was manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Andrews v. Williams, 723 So.2d 1175, 1177(¶ 7) (Miss.Ct.App.1998) (citing Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997); Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994); Crow v. Crow, 622 So.2d 1226, 1228 [106]*106(Miss.1993); Gregg v. Montgomery, 587 So.2d 928, 931 (Miss.1991)). However, we will not hesitate to reverse should we find that a chancery court was manifestly wrong, abused its discretion, or applied an erroneous legal standard. Glass v. Glass, 726 So.2d 1281, 1284(¶ 11) (Miss.Ct.App.1998) (citing Bowers Window & Door Co., Inc. v. Dearman, 549 So.2d 1309 (Miss.1989)).

¶ 7. Carl argues on appeal that the trial court erred in not considering and awarding him alimony due to his disabilities which include a back injury which occurred in 1973, knee injury, problems with his feet, asbestos of the lungs, hearing loss, and hypertension. Carl claims that since he is unable to work and has a monthly income of $170.24, Martha should be ordered to pay him alimony out of her gross monthly income of $2,657. At the time of the hearing, Carl was receiving periodic checks from asbestos claims, but at present has no other reliable income except for his savings accounts which totaled approximately $24,000.

¶ 8. Awards of alimony in a divorce action are within the discretion of the chancellor. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). Unless the chancellor is in manifest error and abused his discretion, we will not reverse. Id. “In the case of a claimed 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.” Id. “The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of the witnesses and the weight of their testimony.” Rawson v. Buta, 609 So.2d 426, 431 (Miss.1992).

¶ 9. As Carl correctly points out, the determining twelve factors to be considered for an award of alimony are set forth in Armstrong. We presume on appeal that the chancellor has taken all factors into consideration. Voda v. Voda, 731 So.2d 1152, 1155(¶ 11) (Miss.1999). Looking to the record and the individual factors, there is ample evidence to support the chancellor’s findings. The chief question here is whether or not Carl is able to work. This, in turn, is related to Carl’s disabilities.

¶ 10. At trial, evidence was presented to show what Carl was able to do. Carl enjoys fishing and hunting, including launching his boat by himself and killing deer and dragging them out of the woods. He also enjoys dancing, which he did at a local “night spot” and at his sister’s wedding in 1999. Carl mows the lawn and works on the family vehicles. He joined a gym and works out on the treadmill. Martha and Carl’s children both testified that Carl did not seem to have any disability.

1111. Carl presented no medical evidence of his disabilities. He applied for Social Security Disability Benefits and was denied benefits. Although he claims he received a back injury in 1973, he never saw a doctor for the injury and Martha testified that he never complained of it. With regard to hearing loss, Carl does not wear a hearing aid and the chancellor had ample opportunity at trial to determine his ability to communicate during the trial. After his knee surgery in 1992, Carl was given permission to return to work but chose not to do so. A recent physical showed Carl to be in good health.

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Related

Crow v. Crow
622 So. 2d 1226 (Mississippi Supreme Court, 1993)
Bland v. Bland
629 So. 2d 582 (Mississippi Supreme Court, 1993)
Andrews v. Williams
723 So. 2d 1175 (Court of Appeals of Mississippi, 1998)
Sandlin v. Sandlin
699 So. 2d 1198 (Mississippi Supreme Court, 1997)
Johnson v. Johnson
650 So. 2d 1281 (Mississippi Supreme Court, 1994)
Glass v. Glass
726 So. 2d 1281 (Court of Appeals of Mississippi, 1998)
Gregg v. Montgomery
587 So. 2d 928 (Mississippi Supreme Court, 1991)
Love v. Love
687 So. 2d 1229 (Mississippi Supreme Court, 1997)
Bowers Window & Door Co. v. Dearman
549 So. 2d 1309 (Mississippi Supreme Court, 1989)
Armstrong v. Armstrong
618 So. 2d 1278 (Mississippi Supreme Court, 1993)
Voda v. Voda
731 So. 2d 1152 (Mississippi Supreme Court, 1999)
Rawson v. Buta
609 So. 2d 426 (Mississippi Supreme Court, 1992)

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Bluebook (online)
850 So. 2d 104, 2002 Miss. App. LEXIS 271, 2002 WL 982624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/almond-v-almond-missctapp-2002.