Fitzgerald v. Fitzgerald

914 So. 2d 193, 2005 WL 757248
CourtCourt of Appeals of Mississippi
DecidedApril 5, 2005
Docket2003-CA-01857-COA
StatusPublished
Cited by7 cases

This text of 914 So. 2d 193 (Fitzgerald v. Fitzgerald) 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
Fitzgerald v. Fitzgerald, 914 So. 2d 193, 2005 WL 757248 (Mich. Ct. App. 2005).

Opinion

914 So.2d 193 (2005)

Phyllis Victoria Busby FITZGERALD, Appellant
v.
Michael Lane FITZGERALD, Appellee.

No. 2003-CA-01857-COA.

Court of Appeals of Mississippi.

April 5, 2005.
Rehearing Denied August 2, 2005.
Certiorari Denied November 10, 2005.

*194 H.R. Garner, Hernando, attorney for Appellant.

D. Pace Branan, Hernando, attorney for Appellee.

*195 Before BRIDGES, P.J., GRIFFIS and ISHEE, JJ.

GRIFFIS, J., for the Court.

¶ 1. Phyllis Victoria Busby Fitzgerald ("Phyllis") appeals the chancellor's judgment of divorce. She contests the chancellor's equitable distribution of assets, award of alimony, requirement that she sign an income tax return and the award of an income tax deduction. We find reversible error. We affirm in part and reverse and remand in part.

FACTS

¶ 2. Michael Lane Fitzgerald ("Michael") and Phyllis began dating in September or October of 1993. Phyllis became pregnant in December. They were married on January 21, 1994.

¶ 3. In September of 1994, the parties' only child was born. They agreed that Phyllis would quit her job to stay home with the child until he was in school.

¶ 4. At the time of their marriage, Michael and Phyllis were both employed. Michael was a self-employed furniture sales representative. His income averaged over $100,000 per year. Phyllis was in sales at MobileCom, and she made $35,000 per year.

¶ 5. Prior to his marriage to Phyllis, Michael and his first wife owed the Internal Revenue Service approximately $100,000 in back taxes as a result of a previous failed business venture. Additionally, Michael and his first wife each owned a one-half interest in two rental houses in Desoto County, Mississippi, which were purchased prior to Michael and Phyllis's marriage.

¶ 6. In March of 1995, Michael and Phyllis purchased a marital home in Desoto County, Mississippi for $160,000. They borrowed $128,000 from People's Bank and $16,000 from the seller. In September of 1997, the parties borrowed approximately $64,274 from People's Bank against their mortgage in order for Michael to pay the back taxes that he, together with his first wife, owed the IRS. In December of 1997, the parties refinanced the marital home in the amount of $187,500 in order to obtain a lower interest rate and to consolidate the People's Bank loan. In March of 2001, the parties took out a line of credit in the amount of $15,000, which was secured by a second mortgage on the parties home. At the time of trial, the parties owed $179,000 on the marital home.

¶ 7. In March of 2002, Phyllis filed for divorce on the grounds of adultery. The parties continued to live together in the marital home until September, when Phyllis and the parties' minor child moved to an apartment. Thereafter, Michael continued paying Phyllis's car note and insurance, continued to provide health insurance for Phyllis and to pay their uncovered medical bills, continued to pay the mortgage and household expenses on the marital home, and provided $1,030 per month in child support.

¶ 8. The trial on this matter began on May 22, 2003, and continued for two days. Due to the pending contract for sale of the marital home, the chancellor continued the matter to July 15, 2003. The chancellor stated that he expected testimony at that time regarding the status of the marital home, the employment status of Phyllis, and each parties' current financial status. The chancellor entered a temporary order. The chancellor further ordered each party to pay $10,000 towards their attorney's fees and impressed an equitable lien on the proceeds from the sale of the parties' marital home in that amount.

¶ 9. On July 15, 2003, the hearing reconvened. Phyllis testified that despite the chancellor's suggestion, she had not acquired *196 a job since the last hearing. The marital home had been sold and there remained $25,738.40 in proceeds after satisfaction of the first and second mortgage, the line of credit secured by the home, closing costs, and payment of $10,000 towards each party's attorney's fees as directed by the chancellor in his temporary order. Both parties' updated financial statements were admitted into evidence, and a copy of the parties' joint 2002 federal and state income tax returns, which Phyllis refused to sign, were also admitted into evidence. Michael testified that although he had made some payments, they still owed $11,372 in federal taxes and $3,967 in state taxes.

¶ 10. At the close of the hearing, the chancellor issued his findings of fact and conclusions of law in an oral opinion from the bench. The opinion was subsequently transcribed by the court reporter. The chancellor granted Phyllis a divorce based on adultery since Michael admitted to the adultery. Phyllis was granted paramount physical custody of the parties minor child, and Michael received standard Farese visitation. The chancellor ordered Michael to pay $1,030 per month in child support and granted the income tax child dependency exemption to Michael until such time that Phyllis could show an income of over $50,000 per year. The chancellor awarded Phyllis periodic alimony in the amount of $500 per month.

¶ 11. As to the personal property, the chancellor awarded all items listed under "Phyllis Has" to Phyllis and all items listed under "Mike Has" to Michael. As for items listed under "Other Property," the chancellor determined that there was not enough evidence for him to make a proper Ferguson evaluation and therefore awarded items 1-4, 9-12 and 18-19 to Michael and items 5-8 and 13-17 to Phyllis.

¶ 12. The chancellor found Michael's one-half interest in the two rental homes he owned with his first wife to be pre-marital assets, except for any appreciation accumulated during the marriage. However, since there was no testimony as to any appreciation accumulated or its value, the chancellor awarded Michael full interest in the rental homes.

¶ 13. The chancellor held that the Paine Webber SEP account and the Paine Webber IRA account, which were both opened and maintained during the marriage, were marital property. He added the accounts together and rounded the value of the accounts to $85,000. The chancellor further determined that the $25,738.40 in proceeds from the sale of the marital home was a marital asset. He determined that, while Phyllis had the ability to pay her own attorney's fees and did not meet the McKee factors, she was entitled to a partial award of attorney's fees based on Michael's admission of adultery. As a result, the chancellor awarded Phyllis $10,738.40 in attorney's fees to be paid from the proceeds of the sale of the marital home held in escrow. The chancellor awarded Phyllis the remaining $15,000 in proceeds from the sale of the marital home and $35,000 out of the $85,000 in the Paine Webber accounts. Michael was awarded the remaining $50,000 in the Paine Webber accounts.

¶ 14. The chancellor determined that the 2002 federal and state income taxes in the amount of $15,339 was a marital debt and directed Phyllis to sign the 2002 joint tax return as presented to her at trial. Additionally, Phyllis was ordered to pay 10% of the total amount due and Michael was ordered to pay the remaining 90%.

¶ 15. A decree of divorce was entered on July 18, 2003. Phyllis filed a motion for reconsideration or new trial, which was denied by the chancellor. On appeal, *197

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Cite This Page — Counsel Stack

Bluebook (online)
914 So. 2d 193, 2005 WL 757248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgerald-v-fitzgerald-missctapp-2005.