Delk v. Delk

41 So. 3d 738, 2010 Miss. App. LEXIS 383, 2010 WL 2816661
CourtCourt of Appeals of Mississippi
DecidedJuly 20, 2010
DocketNo. 2009-CA-00384-COA
StatusPublished
Cited by1 cases

This text of 41 So. 3d 738 (Delk v. Delk) 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
Delk v. Delk, 41 So. 3d 738, 2010 Miss. App. LEXIS 383, 2010 WL 2816661 (Mich. Ct. App. 2010).

Opinion

LEE, P.J., for the Court:

PROCEDURAL HISTORY

¶ 1. Scott and Karen Delk were married in 2000. The couple was granted a divorce in 2007 in the Chancery Court of Harrison County on the ground of irreconcilable differences. The chancellor considered the matters of property division, alimony, and attorney’s fees.

¶ 2. The only issue relevant to this appeal is the chancellor’s division of a condominium in Biloxi, Mississippi, owned by Karen prior to the marriage. The condominium was destroyed by Hurricane Katrina; therefore, the division only applies to the equity in the condominium, the insurance proceeds, and grant money issued by the State of Mississippi.

¶ 3. The chancellor found that Scott was entitled to 26.2% of the equity, insurance [739]*739proceeds, and grant money. Scott asserts that the chancellor applied an erroneous legal standard in reaching this decision. In the alternative, Scott argues that the chancellor failed to consider relevant factors in dividing the property; thus, he argues that the chancellor’s decision was manifestly wrong and clearly erroneous. Finding no error, we affirm.

FACTS

¶ 4. In 1993, approximately five years before she and Scott started dating, Karen purchased a condominium in the Windjammer Condominium complex in Biloxi, Mississippi. Scott and Karen married in 2000. In 2001, Karen transferred half ownership in the condominium to Scott by quitclaim deed. Karen testified that it was not her intent to jointly own the property with Scott, but she conveyed title to Scott in order to refinance the mortgage. The mortgage remained in Karen’s name only. Renters occupied the condominium during this time.

¶ 5. After the couple was married, they lived at Scott’s residence at Five Oaks, which he owned prior to the marriage. They lived in this home for less than a year. When the home at Five Oaks was sold, the profits were deposited into the couple’s joint checking account. The couple built a new home at On The Green, where they lived until moving into the Windjammer condominium in late 2002 or early 2003. The parties shared the equity from the sale of the home at On The Green.

¶ 6. In 2003, Karen refinanced the condominium for a second time. The condominium was appraised at $236,000, and the outstanding balance was $108,171. The couple had made changes to the condominium, such as replacing carpet, laying hardwood floors, installing new cabinetry, purchasing new appliances, and repainting. Karen took the equity in the condominium and deposited it into the joint bank account.

¶ 7. Scott moved out of the condominium in May 2005, when the couple separated. After Scott moved out, Karen provided him a billing statement documenting debts and expenses. Scott paid the maintenance fees, half of the mortgage note, property taxes, telephone bills, and cable bills. He stopped making payments on May 16, 2005, when he discovered that Karen was depositing his checks for appraisal work he had done into her account. He testified that he could not continue to pay the condominium expenses without the paychecks. Karen admitted that she took some of Scott’s checks, but she felt justified in taking the checks because they were for expenses.

¶ 8. The condominium was destroyed in August 2005, when Hurricane Katrina struck the Mississippi Gulf Coast. As a result, the property was eventually sold, and Scott and Karen were paid insurance proceeds and received a grant issued by the Mississippi Development Authority. The parties received $74,000 in insurance money for damages to the condominium.

STANDARD OF REVIEW

¶ 9. “This Court will not disturb the findings of a [chancellor unless the [chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990).

DISCUSSION

I. PROPER LEGAL STANDARD

¶ 10. The chancellor determined that the condominium was commingled and became marital property. Once property has been qualified as marital or separate, the chancellor must then apply the factors [740]*740outlined in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994) in dividing the property. Scott argues that although the chancellor correctly outlined the Ferguson factors, he failed to correctly apply them. Scott asserts that the chancellor erred by only looking at the direct financial contribution of the parties.

¶ 11. The Ferguson factors are:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:

a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.

2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.

3. The market value and the emotional value of the assets subject to distribution.

4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;

5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;

6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;

7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,

8. Any other factor which in equity should be considered.

Id.

¶ 12. The chancellor focused on the first factor, substantial contribution to the accumulation of property, which can be by direct or indirect economic contribution. Scott argues that the chancellor failed to apply the Ferguson factors correctly because he only took into account the direct financial contribution of the parties. The chancellor stated that he based his decision on how the expenses for the condominium were paid because it was his “opinion since the inception of this case that the relationship between the parties was a business relationship. For the most part, they remained separate in their financial affairs but for the select items that they placed before this Court.”

¶ 13. The chancellor used the value at the time the condominium became marital property to calculate its value as a marital asset. The equity in the condominium was valued at $127,000 at the time it became a marital asset, and the interest in the condominium was sold for $338,306.93. The chancellor deducted the starting value of $127,000 from the sales price of $338,306.93 and determined that the value of the condominium as a marital asset was $211,306.93.1

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Bluebook (online)
41 So. 3d 738, 2010 Miss. App. LEXIS 383, 2010 WL 2816661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delk-v-delk-missctapp-2010.