East v. East

775 So. 2d 741, 2000 WL 760940
CourtCourt of Appeals of Mississippi
DecidedJune 13, 2000
Docket1999-CA-00543-COA, 1999-CA-01193-COA
StatusPublished
Cited by23 cases

This text of 775 So. 2d 741 (East v. East) 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
East v. East, 775 So. 2d 741, 2000 WL 760940 (Mich. Ct. App. 2000).

Opinion

775 So.2d 741 (2000)

Richard W. EAST, Jr., Appellant,
v.
Cynthia D. EAST, Appellee.

Nos. 1999-CA-00543-COA, 1999-CA-01193-COA.

Court of Appeals of Mississippi.

June 13, 2000.
Rehearing Denied August 29, 2000.

*743 Edwin L. Bean, Jr., McComb, Attorney for Appellant.

Gary L. Honea, Magnolia, Attorney for Appellee.

BEFORE KING, P.J., PAYNE, AND THOMAS, JJ.

PAYNE, J., for the Court:

PROCEDURAL POSTURE AND ISSUES PRESENTED

¶ 1. This case is before the Court on appeal from the judgment of the Amite County Chancery Court awarding Cynthia (Cindy) East a divorce from Richard East on the grounds of adultery and awarding custody of the minor child to Cindy. Aggrieved, Richard perfected this appeal raising the following issues for our consideration

I. WHETHER THE CHANCELLOR'S PROPERTY DIVISION WAS GROSSLY AND DISPROPORTIONALLY IN FAVOR OF CINDY, AND DID NOT CONSTITUTE AN EQUITABLE DIVISION OF MARITAL PROPERTY GIVEN THE FACTS OF THE CASE.
II. WHETHER THE CHANCELLOR ERRED IN ITS ALIMONY AWARD TO CINDY AS THE SAME WAS UNWARRANTED, AND IF SO, EXCESSIVE.
III. WHETHER THE CHANCELLOR'S AWARD OF ATTORNEY'S FEES TO CINDY WAS ERRONEOUS IN THAT CINDY HAD ADEQUATE FUNDS WITH WHICH TO PAY HER ATTORNEY'S FEES.
IV. WHETHER THE CHANCELLOR'S COMMUNICATION WITH A MATERIAL WITNESS THE NIGHT BEFORE THE TRIAL AND RELEASE OF THE WITNESS FROM ATTENDANCE AT THE TRIAL THE NEXT DAY CONSTITUTES ERROR.

FACTS

¶ 2. Richard and Cindy were married August 31, 1968, and finally separated on September 8, 1998. The union produced four children, one of whom remained at home and was unemancipated at the time *744 of the divorce. Cindy was awarded custody of the minor child. Richard was ordered to pay $490 per month in child support and all of the minor's educational expenses.

¶ 3. Richard was ordered to pay $10,000 cash to Cindy for an automobile or secure her a mutually agreeable mode of transportation, $21,500 lump sum alimony to Cindy which represented Richard's equity in the marital dwelling and a portable metal building, thus giving Cindy the entire equity in the marital dwelling and the portable metal building, a total of $43,000. Cindy was awarded periodic alimony in the amount of $1,300 per month from Richard. Cindy was also awarded attorney's fees in the amount of $5,885.50. Richard was awarded the whole of his retirement account, certain jewelry and one firearm. Feeling aggrieved of the chancellor's judgment, Richard now appeals.

DISCUSSION AND ANALYSIS

Standard of Review

¶ 4. 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's actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Andrews v. Williams, 723 So.2d 1175 (¶ 7) (Miss.Ct.App.1998). Further,

The question of attorney's fees in a divorce action is a matter largely entrusted to the sound discretion of the trial court. "If a party is financially able to pay her attorney, an award of attorney's fees is not appropriate." The criteria to be utilized in determining attorney's fees are found in McKee v. McKee, 418 So.2d 764 (Miss.1982).

Watson v. Watson, 724 So.2d 350 (¶ 29) (Miss.1998).

¶ 5. In light of our limited standard of review, we find no merit in Richard's assignments of error. While we find Richard's claims are meritless, as we explain below, the trial court misidentified certain parts of the award to Cindy. Nonetheless, we affirm the chancellor's decision.

I. WHETHER THE CHANCELLOR'S PROPERTY DIVISION WAS GROSSLY AND DISPROPORTIONALLY IN FAVOR OF CINDY, AND DID NOT CONSTITUTE AN EQUITABLE DIVISION OF MARITAL PROPERTY GIVEN THE FACTS OF THE CASE.

¶ 6. Richard's first assignment of error challenges the chancellor's division of the marital property. Of course, it is well-settled that chancellors have the authority to order an equitable division of marital property accumulated through the joint efforts of the parties and the individual contributions of the parties to the marriage. Johnston v. Johnston, 722 So.2d 453 (¶ 28) (Miss.1998). Furthermore, the chancellor's findings regarding equitable division of marital property are subject to our traditional, limited standard of review. Id. "In the case of property settlement and lump sum alimony, the court's decision must hinge on the value of the marital estate, or the spouses' separate estates." Heigle v. Heigle, 654 So.2d 895, 898 (Miss. 1995) (citing Ferguson v. Ferguson, 639 So.2d 921, 928-29 (Miss.1994)). Thus, our law requires that the first question to be determined is that of the value of the marital estate, then equitable distribution of that estate, followed by an award of alimony, if warranted.

¶ 7. Richard maintains that there was an inequitable distribution of the marital assets. On its face, the chancellor's order may appear inequitable. However, a careful consideration reveals that the chancellor achieved an equitable distribution of the marital estate. Richard was awarded a total of $6,650 in personal property which consisted of several items of jewelry and a gun, plus his full retirement account, clearly a marital asset, but with no assessed *745 present value. Cindy was awarded lump sum alimony of $21,500, representing Richard's equity in the marital home and a portable metal building, all of which was non-liquid in nature and encumbered by a significant monthly mortgage. Also, the chancellor determined that Cindy needed a reliable mode of transportation for which he ordered $10,000 cash to be provided to Cindy by Richard. Richard was also ordered to pay periodic alimony in the sum of $1,300 per month. Richard was further ordered to maintain a life insurance policy with Cindy as the sole beneficiary.

¶ 8. The record indicates that prior to the chancellor's ruling, Richard and Cindy had compromised on distribution of certain other marital assets which both agreed was considered an equal division. They agreed that Richard's motorcycle and two trucks equaled household furniture and one old, high milage automobile that had been wrecked. We are only given dollar values regarding the $43,000 versus $6,650 discrepancy. However, no specific value was stated for the retirement account which Richard was awarded solely. The record does show that beginning at age 65, Richard will receive $364 a month for the rest of his life. Richard's retirement was plainly a marital asset. See Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994). Cindy has no retirement security. The chancellor had all the financial information, as well as testimony of both parties, before him on which to make an equitable division of property.

¶ 9. Though he failed to label his findings as such, the chancellor did conduct a Ferguson analysis of Richard's and Cindy's postures in the marriage. The chancellor considered the parties' relative ages, earning capacities, educational backgrounds, health, and contributions to the estate, among other factors. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994); Lindsey v. Lindsey, 749 So.2d 77 (¶ 3) (Miss.1999). The $21,500 equity transfer from Richard to Cindy in the marital home and portable metal building was labeled lump-sum alimony, yet, in effect, it is a portion of the chancellor's equitable distribution of the estate.

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775 So. 2d 741, 2000 WL 760940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/east-v-east-missctapp-2000.