Everett v. Everett

919 So. 2d 242, 2005 WL 1530356
Court of Appeals of Mississippi·Decided June 28, 2005·No. 2003-CA-02553-COA·Published·Cited by 4 cases

Opinion

919 So.2d 242 (2005)

Peggy Diane EVERETT, Appellant/Cross-Appellee,
v.
Harmon G. EVERETT, Jr., Appellee/Cross-Appellant.

No. 2003-CA-02553-COA.

Court of Appeals of Mississippi.

June 28, 2005.

*244 Eugene A. Perrier, Vicksburg, attorney for appellant.

Allen Lamar Burrell, Robert Binnon Andrews, Port Gibson, attorneys for appellee.

Before BRIDGES, P.J., CHANDLER and ISHEE, JJ.

CHANDLER, J., for the Court.

¶ 1. Harmon Everett and Peggy Everett were granted a divorce. Unable to reach an agreement regarding the division of their marital property, the Claiborne County Chancery Court divided the assets of the parties. Peggy appeals, raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN AWARDING TITLE, USE, AND POSSESSION OF THE MARITAL HOME AND SURROUNDING PROPERTY TO HARMON
II. WHETHER THE TRIAL COURT ERRED IN GIVING HARMON CREDIT FOR ONE-HALF OF THE VALUE OF THE ALLIANZ JOINT ANNUITY

¶ 2. Harmon cross-appeals, raising the following issues:

III. WHETHER THE COURT ERRED IN FINDING THAT HARMON'S STOCKS WERE A MARITAL ASSET
IV. WHETHER THE COURT ERRED IN ITS EQUITABLE DIVISION OF THE MARITAL ASSETS BY INCLUDING HARMON'S STOCKS AS MARITAL ASSETS AND PROVIDING FOR AN EQUAL DISTRIBUTION OF THE MARITAL ASSETS

¶ 3. Finding no error, we affirm on both direct appeal and cross-appeal.

FACTS

¶ 4. Harmon Giles Everett, Jr. and Peggy Diane King Everett were married on May 31, 1975. There were no children born from this marriage, but Harmon has adult children by a previous marriage. Harmon is twenty-three years older than Peggy. Less than one year after the parties were married, Harmon retired from Eli Lilly, where he worked as a pharmacist. Some time in 1977, Harmon began driving a truck. Peggy, who had recently graduated from pharmacy school, quit working to help him.

¶ 5. From 1977 until 1989, Harmon was the family's only income earner. From 1977 until 1986, Harmon and Peggy did not have a permanent residence because they lived in their truck. In 1986, Harmon and Peggy moved in with Harmon's mother in Hermanville, Mississippi. The home eventually became the party's marital domicile. The land, which totaled twenty acres, was purchased by Harmon's father in 1937, and the home was built by Harmon's father in the early 1970s. After 1989, Harmon retired from trucking, and he and Peggy lived off the income Harmon had made as a trucker.

¶ 6. In 1998, Harmon deeded the house and eleven acres of property to Peggy. He reserved a life estate for himself and retained nine acres. Thereafter, Peggy used her inheritance to make renovations *245 on the home. She testified that she spent more than $26,000 from the inheritance she received from her mother to renovate the house, and she had plans to make additional improvements.

¶ 7. Peggy was forced out of the marital home on July 3, 2002, when Harmon poured ice water on her while she was asleep and threatened to destroy her sewing machines and computer. She returned to the home on July 14, 2002, accompanied by sheriff deputies. Harmon told her that she was no longer welcome in the home. She filed for divorce on July 22, 2002. The parties were unable to agree to a property settlement. A trial was held on July 9 and 10, 2003, for the purpose of dividing the marital property.

¶ 8. The chancellor determined the following assets were marital property and valued them accordingly: (1) a joint annuity from Allianz, valued at $84,675; (2) stocks held by Harmon, valued at $36,683; (3) a bond issued by Harris County in Harmon's name, valued at $5,000; (4) an annuity from Allianz held by Harmon, valued at $9,096; (5) an IRA held by Harmon, valued at $3,479; (6) a Roth annuity held by Peggy, valued at $8,264; (7) a brokerage account held by Peggy, valued at $2,982 and (8) the parties' marital domicile, valued at $140,250.

¶ 9. The chancellor awarded to Harmon the marital domicile, the stocks held in Harmon's name, the Harris County bond, and the annuity and IRA held in his name. Peggy received the joint annuity, as well as the Roth annuity and the brokerage account that were titled in her name. Each party received half of the value of the marital estate. Accordingly, the chancellor ordered Harmon to pay $49,293.50 to Peggy to compensate her for her interest in the marital domicile, payable within thirty days of his order.

ANALYSIS

Standard of Review

¶ 10. The chancellor's findings will not be disturbed 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) (citations omitted). A chancellor's division and distribution of marital property will be upheld if it is supported by substantial credible evidence. Owen v. Owen, 798 So.2d 394, 397 (¶ 10) (Miss.2001) (citing Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994)). The chancellor's decision will be viewed as a whole in determining whether the chancellor abused his discretion. Tillman v. Tillman, 716 So.2d 1090, 1094 (¶ 19) (Miss.1998).

I. WHETHER THE TRIAL COURT ERRED IN AWARDING TITLE, USE, AND POSSESSION OF THE MARITAL HOME AND SURROUNDING PROPERTY TO HARMON

¶ 11. Peggy does not contest the chancellor's findings regarding the classification or valuation of the marital and non-marital property. She argues that she should be awarded the marital home because she spent a great deal of time and money renovating the home. Peggy alleges that Harmon has failed to maintain the premises in a respectable and responsible manner. Peggy claims to have the same emotional attachment to the marital domicile as Harmon because of her efforts to care for, maintain, and preserve the premises.

¶ 12. The chancellor divided the Everetts' marital property based on the guidelines of Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). Ferguson provides guidelines for chancellors to consider in effecting an equitable division of marital *246 property. These factors include the contribution to the accumulation of property; the degree to which each spouse has expended, withdrawn, or otherwise disposed of marital assets and any prior distribution of assets; the value of assets not ordinarily subject to distribution, such as property brought into the marriage by the parties or acquired by inheritance or inter vivos gift; economic consequences of the division; the extent to which property may be used to eliminate periodic payments and sources of future friction between the parties; the needs of the parties for financial security; and any other factor which in equity should be considered. Id. at 928. A failure to explicitly recite each Ferguson factor does not mandate a reversal of a chancellor's judgment. Hammers v. Hammers, 890 So.2d 944, 955 (¶ 41) (Miss. Ct.App.2004) (citing Glass v. Glass, 857 So.2d 786, 790 (¶ 10) (Miss.Ct.App.2003)). However, a chancellor's findings must be specific enough to allow this Court to find that the factors were considered. Id.

¶ 13. Peggy argues that the chancellor failed to consider the economic consequences of the property division. Peggy contends that the chancellor erred in awarding the marital property to Harmon because Harmon is unable pay Peggy the $49,293.50 to comply with the chancellor's order. According to Peggy, Harmon has already conveyed his stocks to his children, he has no other available assets, and he has expenses that exceed his income.

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