Box v. Box

622 So. 2d 284, 1993 WL 270197
CourtMississippi Supreme Court
DecidedJuly 22, 1993
Docket91-CA-1198
StatusPublished
Cited by18 cases

This text of 622 So. 2d 284 (Box v. Box) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Box v. Box, 622 So. 2d 284, 1993 WL 270197 (Mich. 1993).

Opinion

622 So.2d 284 (1993)

Nancy BOX
v.
Howell Eugene BOX.

No. 91-CA-1198.

Supreme Court of Mississippi.

July 22, 1993.

*285 Roger H. McMillin, Jr., Sumners Carter & McMillin, New Albany, for appellant.

Pamela Loftin Hall, C. Michael Malski, Carnathan & Malski, Amory, for appellee.

Before PRATHER, P.J., and BANKS and SMITH, JJ.

SMITH, Justice, for the Court:

A marriage of thirty years between Nancy Box and Gene Box ended in separation in April 1987. In 1988, Nancy filed for separate maintenance and was awarded the use and possession of the parties' home, together with all contents. Gene was ordered to make the house payments and to pay Nancy $900 per month beginning August 1, 1989. Nancy filed for divorce on October 5, 1990. After a hearing was held on October 3, 1991, the Chancery Court of Lee County, Mississippi, granted a divorce to Nancy on uncontested grounds of adultery, and a decree was entered October 12, 1991.

The chancellor awarded Nancy: title to and possession of the home with responsibility for future mortgage payments, taxes and insurance; title to the 1986 Lincoln Towncar; $2,400 per month periodic alimony for 9 years, after which monthly alimony would be decreased to $900 per month; lump sum alimony of $30,000 payable in three annual installments of $10,000; health insurance paid for by Gene; and attorney's fees of $3,108.47. Nancy was to be responsible for the house payments of $1,461.72 with a balance of $103,767.88 remaining on the house loan.

Feeling aggrieved, Nancy Box appeals, contending as follows:

I. THE CHANCELLOR ERRED IN SETTING PERIODIC ALIMONY AT SUCH A LOW AMOUNT.
II. THE LUMP SUM AWARD OF $30,000 WAS GROSSLY INADEQUATE AND CONSTITUTED AN ABUSE OF DISCRETION.
III. THE COURT ABUSED ITS DISCRETION WHEN IT ORDERED AN ARBITRARY REDUCTION IN PERIODIC ALIMONY IN NINE YEARS.
IV. THIS COURT SHOULD AWARD ATTORNEY'S FEES TO NANCY BOX FOR THE PROSECUTION OF THIS APPEAL IN AN AMOUNT EQUAL TO ONE-HALF THE TRIAL COURT'S AWARD.

We agree with the appellant and reverse and remand to the lower court for a redetermination of periodic alimony, lump sum alimony and other matters reflected in this opinion.

FACTS

Nancy Box and Gene Box were married on February 22, 1957. The parties separated in April of 1987. Nancy Box was fifty-six at the time of trial. She grew up in Memphis and graduated from the University of Mississippi in January, 1957. She and Gene were married three weeks later, and lived in Corinth where Gene worked at the Ford dealership with his father. Nancy was a homemaker and, as she put it, "did the June Cleaver." The Boxes have three children: Carol, born November 4, 1958, Cynthia, born March 15, 1961, and Chris, born May 3, 1973.

Nancy Box was active in civic organizations in Corinth. She was in the Junior Auxiliary, serving on the Board for nine and a half years. She also served on the Boards of the American Red Cross, the Community Fund, and the Corinth Welfare Association and did volunteer work with children in special education classes.

The couple built a home in Corinth. In 1969, the Ford agency was sold and Gene pursued other types of employment. In 1970, Nancy took a job with the Alcorn County Department of Welfare as a social worker and stayed until 1973 when she became pregnant with her third child. She quit the job because Gene insisted that she be home with their son.

*286 In 1976, Gene took a job in Memphis with a car dealership and lived there for a year, coming home only on weekends. In the spring of 1977, Nancy drove to Memphis one night a week to take a real estate course so she would have something to fall back on when the older children were in college.

In the summer of 1977, the family sold the Corinth home and moved to Memphis. The opportunity to operate a Danver's Restaurant franchise in Tupelo presented itself and the family moved to Tupelo in the fall of 1977. When they moved to Tupelo, Nancy applied for and was offered a job with the Department of Public Welfare but Gene told her not to take it.

In 1979, the Boxes built the house now occupied by Nancy. They lived together there until April, 1987, when Gene left. While in Oxford, Gene became involved with another woman, Marty Stark, and was still involved with her at the time of the trial.

During the period of separation, Gene built a new home in Tupelo, costing $160-170,000 and also purchased a condominium in Colorado for $43,000. He belonged to two country clubs, Tupelo Country Club and Old Waverly. The initial membership fee to Old Waverly, which he joined after the separation, was $4,000 plus $80.00 per month in dues. Gene averaged $325 in country club expenses per month. He was also a member of The Wellness Center, a health club. The monthly maintenance fee on the condo was $266 and utilities and insurance were an additional $56.50.

Gene Box was 60 years old at the time of trial and in good health. In addition to the Danver's restaurant in Tupelo, he bought the Danver's in Oxford prior to the parties' separation, and subsequent to the separation, the Danver's in Starkville. He also owned real estate in Corinth which was leased to the Ford Motor Company.

Nancy has been diagnosed as having osteoarthritis and has had surgery to replace one joint in her right hand. She anticipated that the same surgery would be necessary for the other hand. She experienced neck and back problems associated with degeneration of the spine. She had difficulty doing certain routine household tasks, such as vacuuming and yard work.

Shortly after the parties separated, Nancy took a part-time job with J.C. Penney Company. She worked for minimum wage plus commission. Her average gross pay per week was $91.88. In 1990, her income was $9,000 which included working full-time between September and Christmas. She had no separate assets, CDs, savings or property other than her interest in the marital dwelling. To pay her legal fees, she borrowed $10,000 from her father and had $2,000 left at the time of trial. Nancy estimated her monthly expenses as $2,509 without the house payment and $4,039 with the payment. She was no longer able to have household help for cleaning and depended on a neighbor to cut her yard.

Gene Box's tax returns for the years preceding the trial showed net business income and total income as follows:

  1987 ...... $150,569 ...... $160,555
  1988 ......  235,702 ......  254,096
  1989 ......  294,253 ......  325,116
  1990 ......  155,127 ......  179,978

The decline in income in 1990 was attributable to the acquisition of the Starkville Danver's operation. There was a $65,905 operating loss for Starkville, net income of $203,012 from Tupelo and $23,700 from Oxford.

A December 31, 1989, Statement of Financial Condition showed assets for Gene of $1,213,028 against liabilities of $558,245 for net assets of $654,783. There was no later statement available and many changes had occurred in Gene's finances since the 1989 statement. The Oxford operation was acquired. The second home was built and the condo purchased. All the properties carried mortgages and there was considerable business debt. Gene's bookkeeper showed his debts as $658,650.58 as of August 31, 1991, including the $103,767.88 debt on Nancy's house.

The Boxes' son Chris was a student at Ole Miss and Gene agreed to provide his tuition and living expenses. In addition to *287

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Cite This Page — Counsel Stack

Bluebook (online)
622 So. 2d 284, 1993 WL 270197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/box-v-box-miss-1993.