Fleishhacker v. Fleishhacker

39 So. 3d 904, 2009 WL 1856732
CourtCourt of Appeals of Mississippi
DecidedJuly 22, 2010
Docket2007-CA-01942-COA
StatusPublished
Cited by4 cases

This text of 39 So. 3d 904 (Fleishhacker v. Fleishhacker) 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
Fleishhacker v. Fleishhacker, 39 So. 3d 904, 2009 WL 1856732 (Mich. Ct. App. 2010).

Opinions

GRIFFIS, J.,

for the Court.

¶ 1. Patricia Fleishhacker appeals the chancellor’s division of the marital assets and award of alimony. We affirm in part and reverse and remand in part for further proceedings consistent with this opinion.

FACTS

¶2. Patricia and Walter Fleishhacker were married on January 3, 1981. They separated on February 3, 2001, after Patricia learned that Walter had an affair with another woman. No children were born to the parties. Patricia and Walter lived a very comfortable and affluent lifestyle.

¶ 3. Prior to 1981, Walter purchased a twenty-five percent interest in the stock of Northeast Metal Processing, Inc. (“NMP”). NMP is a successful scrap metal business that is located near Tupelo, Mississippi. NMP was the Fleishhackers’ primary source of income throughout their marriage.

¶ 4. In 1993, Walter bought the remaining seventy-five percent of NMP’s stock. Thus, he became the sole stockholder of NMP.

¶ 5. On April 4, 1996, Walter conveyed an interest in the NMP stock to Patricia. The stock certificates were then titled to, “Walter Fleishhacker and Patricia Fleish-hacker as joint tenants with rights of sur-vivorship.” On the same day, Walter and Patricia executed an agreement that related to the stock ownership of NMP. The terms of the agreement will be discussed in detail later.

¶ 6. On April 1, 2004, Patricia filed her complaint for divorce. On April 19, 2004, Walter filed his answer and cross-complaint for divorce.

¶ 7. On June 22, 2004, the chancellor executed an “Agreed Order on Temporary Features.” In this order, Walter agreed to pay: Patricia the sum of $1,500 per month as temporary alimony, certain other specified monthly bills, maintain health and accident insurance coverage for the benefit of Patricia, and paid Patricia’s medical expenses.

¶ 8. A trial was held on May 7-12, 2007. On July 6, 2007, the chancellor executed a judgment for divorce, nunc pro tunc, to June 15, 2007. It is from this judgment that Patricia appeals.

STANDARD OF REVIEW

¶ 9. Our scope of review in domestic matters is limited. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002).

ANALYSIS

1. Did the chancellor err in the valuation and division of the NMP, Inc., stock?

¶ 10. The chancellor determined that Walter owned twenty-five percent of the stock in NMP “at the time of the marriage of the parties and further [found] these [907]*907items to be separate property of [Walter] and thus not marital assets.”

¶ 11. ' Patricia claims this was error, and she makes two separate arguments. First, Patricia claims that the chancellor erred by determining that twenty-five percent of NMP’s stock was Walter’s non-marital separate property because Walter commingled the property during the marriage. Hence, Patricia claims that one hundred percent of the value of NMP should be subject to equitable division. Second, Patricia argues that even if the chancellor was correct to determine that twenty-five percent of NMP’s stock was Walter’s non-marital separate property, the chancellor erred by valuing the separate interest as of the date of the temporary order rather than the date of the parties’ marriage. Walter argues that the chancellor was correct on both of these issues. We find that the chancellor was correct in his determination of the first argument, but we also find that the chancellor committed reversible error on the second argument.

¶ 12. The Mississippi Supreme Court has established guidelines that must be followed for the equitable division of assets. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). Likewise, the court has established guidelines for an award of periodic alimony and an award of lump-sum alimony. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993) (periodic alimony); Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988) (lump-sum alimony).

¶ 13. Equitable division of assets begins with the chancellor’s classification of assets as marital versus non-marital. Hemsley v. Hemsley, 639 So.2d 909, 914-15 (Miss.1994). In Hemsley, the supreme court held:

We define marital property for the purpose of divorce as being any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor. We assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value.

Id. at 915. Thus, Hemsley required the chancellor to consider: (a) the assets acquired or accumulated during the marriage as marital assets, and (b) Patricia’s domestic contributions and efforts were equal in value to Walter’s economic contributions and efforts.

¶ 14. Assets that are “accumulated during [a] marriage are ... marital property ‘subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.’” Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994) (quoting Hemsley, 639 So.2d at 914-15). However, “when an individual commingles non-marital assets with joint marital assets, the non-marital assets are converted into marital assets, subject to an equitable distribution unless subject to an agreement to the contrary.” Parsons v. Parsons, 741 So.2d 302, 308(¶ 28) (Miss.Ct.App.1999).

A. Did the chancellor err by determining that twenty-five percent of NMP’s stock was Walter’s non-marital separate property?

¶ 15. Patricia and Walter were married in January 1981. Prior to their marriage, Walter owned twenty-five percent of the stock of NMP. In 1993, Walter acquired the remaining seventy-five percent of NMP’s stock and became NMP’s sole stockholder. There is no dispute that the seventy-five percent interest in the stock [908]*908of NMP is marital property and subject to equitable division.

¶ 16. Patricia argues that the chancellor erred when he determined that the twenty-five percent of the NMP stock would be considered a non-marital asset. She claims that Walter conveyed her an ownership interest in the stock during the marriage.

¶ 17. On April 2, 1996, Walter and Patricia executed an agreement that related to the stock ownership of NMP. The agreement provided:

Whereas, Walter Fleishhacker owns fifteen (15) shares of the outstanding stock of Northeast Metal Processors, Inc. (the “Stock”) and Walter Fleishhacker is currently the sole shareholder of Northeast Metal Processors, Inc.; and
Whereas, Walter Fleishhacker desires to change the form of ownership of the Stock from his sole name to “Walter Fleishhacker and Patricia Fleishhacker as joint tenants with rights of survivor-ship”; and
Whereas, to induce Walter Fleishhacker to change the form of ownership of the Stock, Patricia Fleishhacker desires to make certain covenants with respect to the stock.

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Bluebook (online)
39 So. 3d 904, 2009 WL 1856732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleishhacker-v-fleishhacker-missctapp-2010.