Kelley v. Kelley

953 So. 2d 1139, 2007 WL 1053443
CourtCourt of Appeals of Mississippi
DecidedApril 10, 2007
Docket2005-CA-01678-COA
StatusPublished
Cited by5 cases

This text of 953 So. 2d 1139 (Kelley v. Kelley) 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
Kelley v. Kelley, 953 So. 2d 1139, 2007 WL 1053443 (Mich. Ct. App. 2007).

Opinion

953 So.2d 1139 (2007)

Michael KELLEY, Appellant
v.
Roberta C. KELLEY, Appellee.

No. 2005-CA-01678-COA.

Court of Appeals of Mississippi.

April 10, 2007.

*1140 Damon Scott Gibson, attorney for appellant.

Thomas Wright Teel, Biloxi, attorney for appellee.

Before MYERS, P.J., CHANDLER and ROBERTS, JJ.

MYERS, P.J., for the Court.

¶ 1. This appeal is taken from the judgment of the Chancery Court of the First Judicial District of Harrison County, in which the chancellor ordered Michael L. Kelley to repair the marital home, declared certain personal property abandoned, and awarded said property and attorney's fees to Roberta C. Kelley. Roberta Kelley (Comeaux) has since the divorce, remarried. Kelley contends that the chancellor erred in modifying the parties' property settlement agreement so as to order Kelley to bear the costs of repair to the former marital home and in awarding title of certain personal property to Comeaux. He further asserts error in the award of attorney's fees to Comeaux. We agree that the chancellor was without authority to modify the property settlement agreement and therefore reverse and render the order in part; the award of attorney's fees to Comeaux and all other aspects of the order are affirmed.

STATEMENT OF THE CASE

¶ 2. In December of 2000, Kelley and Comeaux divorced, ending a twelve year marriage of which two children were born. *1141 The parties entered into a property settlement agreement[1] as part of their irreconcilable differences divorce, which was presented to the court for its approval and merged into the judgment of divorce. The property settlement agreement divided personal and real property between the parties and addressed other matters not at issue in this appeal, such as custody and maintenance. The parties agreed to retain joint title to the former marital home that the parties built in Gulfport, Mississippi, and Kelley was to bear financial responsibility for the mortgage note. Comeaux, however, was granted exclusive use and possession of the home until the parties' youngest child became emancipated or until Comeaux remarried. Upon the occurrence of either of these conditions, the parties agreed to allow one to purchase the other's remaining interest in the home or to sell the house and divide the resulting equity equally. The terms of the parties' settlement agreement provided that Kelley bear the costs of repairs to the septic system and bear one-half the costs of the extraordinary repairs to the home, to the extent of necessary, non-routine repairs to the plumbing, electrical, air conditioning, and heating systems. Additionally, the parties agreed that Kelley was granted use, possession and title to a 1979 Corvette automobile.

¶ 3. In February of 2003, Kelley sought modification of his child support obligations, basing his petition on his reduction in income. Comeaux answered the petition, moved the court to find Kelley in contempt and for other relief, and counterclaimed, seeking modification of the divorce decree. In Comeaux's motion for modification of the divorce decree, she requested relief in the form of payments toward a new home, alleging the former marital home to be uninhabitable. She also sought title to the 1979 Corvette, which the court had awarded to Kelley, but which had been stored at the former marital home since the divorce. Subsequent to the divorce, it was discovered that the former marital home's foundation had been deteriorating, and as a consequence, further problems had developed which rendered the home uninhabitable. During the pendency of this litigation, Comeaux remarried, therefore ripening the provision of the settlement agreement that allowed the parties to purchase each other's interest or to place the house on the market for an equal division of the equity. However, due to the home's state of disrepair, restoration would be required before the parties could sell the property for anything close to market value.

¶ 4. Hearings were held on the matters during two different days in 2004, and the chancellor issued his order disposing of several issues and granting relief to both parties. Kelley's child support obligations were modified due to a material change in circumstances of his losing his previous employment and resulting reduction of income, and Comeaux's request to find Kelley in contempt was denied. The chancellor granted Comeaux's request for modification of the property settlement agreement, and ordered Kelley to repair the former marital home in preparation for an appraisal for resale. The chancellor also awarded title of the 1979 Corvette to Comeaux, deeming the vehicle abandoned. Additionally, the chancellor granted Comeaux's request for attorney's fees. Kelley now takes issue with the order of the chancellor, asserting error in the following:

I. THE CHANCELLOR ERRED WHEN HE MODIFIED THE *1142 PARTIES' PROPERTY SETTLEMENT AGREEMENT AS CLARIFIED BY THE AGREED MODIFICATION/CLARIFICATION OF JUDGMENT OF DIVORCE TO REQUIRE KELLEY TO PAY FOR REPAIRS TO THE HOUSE;
II. THE COURT'S FINDING THAT AT THE TIME OF THE DIVORCE THE FULL EXTENT OF THE DAMAGE TO THE HOME WAS NOT KNOWN BY THE PARTIES DOES NOT SUPPORT THE COURT'S REFORMATION OF THE PARTIES' PROPERTY SETTLEMENT AGREEMENT ENCOMPASSED BY THE JUDGMENT OF DIVORCE AND AGREED MODIFICATION/CLARIFICATION OF JUDGMENT OF DIVORCE;
III. THE COURT'S FINDING THAT KELLEY UTILIZED POOR DESIGN AND CONSTRUCTION IN THE BUILDING OF THE HOUSE AND IS THEREFORE RESPONSIBLE FOR THE HOME NOT BEING HABITABLE IS CONTRARY TO THE EVIDENCE;
IV. THE CHANCELLOR'S DECLARATION THAT KELLEY ABANDONED HIS PERSONAL PROPERTY, INCLUDING HIS CORVETTE AUTOMOBILE, IS NOT SUPPORTED BY EVIDENCE; AND
V. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING ATTORNEY'S FEES TO COMEAUX.

¶ 5. We find that the trial court was without authority to modify the parties' property settlement agreement made part of their judgment of divorce without basing the modification on an applicable ground. Further, we find the court erred by deeming the 1979 Corvette abandoned and awarding title to Comeaux. We, therefore, vacate the order relating to these issues, but affirm the award of attorney's fees to Comeaux and chancery court's order in all other respects.

DISCUSSION

I., II., III., IV. CHANCELLOR'S MODIFICATION OF THE PARTIES' PROPERTY SETTLEMENT AGREEMENT ORDERING KELLEY TO MAKE ALL REPAIRS TO THE FORMER MARITAL HOME AND AWARDING TITLE OF THE 1979 CORVETTE TO COMEAUX

¶ 6. Kelley's first four issues cited for review concern the chancellor's modification of the parties' judgment of divorce and incorporated property settlement agreement; we, therefore, address the issues together.

STANDARD OF REVIEW

¶ 7. "Our scope of review in domestic relations matters is limited by our familiar substantial evidence/manifest error rule." Ivison v. Ivison, 762 So.2d 329, 333(¶ 10) (Miss.2000). "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). In other words, "[o]n appeal [an appellate court] is required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong." Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990).

ANALYSIS

¶ 8. Comeaux asserts that the chancellor's modification of the divorce decree as *1143

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Darryl Eugene McCreary II v. Brittany Flippo McCreary
Court of Appeals of Mississippi, 2026
Glenn Bright Harrison v. Kim Deanne Holloway Harrison
Court of Appeals of Mississippi, 2023
Pace v. Pace
24 So. 3d 325 (Court of Appeals of Mississippi, 2009)
Smith v. Smith
25 So. 3d 369 (Court of Appeals of Mississippi, 2009)
Dorsey v. Dorsey
972 So. 2d 48 (Court of Appeals of Mississippi, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
953 So. 2d 1139, 2007 WL 1053443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-kelley-missctapp-2007.