Larson v. Larson

122 So. 3d 1213, 2013 WL 1114526, 2013 Miss. App. LEXIS 128
CourtCourt of Appeals of Mississippi
DecidedMarch 19, 2013
DocketNo. 2011-CA-00305-COA
StatusPublished
Cited by4 cases

This text of 122 So. 3d 1213 (Larson v. Larson) 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
Larson v. Larson, 122 So. 3d 1213, 2013 WL 1114526, 2013 Miss. App. LEXIS 128 (Mich. Ct. App. 2013).

Opinions

LEE, C.J.,

for the Court:

¶ 1. Mark Alan Larson and Diana Lynn Carter Larson were married in February 1992. They separated in September 2008, and were granted a divorce in January 2011. Mark was granted a divorce on the ground of adultery. The chancellor awarded Mark custody of the couple’s minor son, Alan. Diana was awarded lump-sum alimony and an interest in certain marital property.

¶ 2. Diana appeals, asserting the following issues: (1) the chancellor erred in granting Mark a divorce on the ground of adultery; (2) the chancellor erred in classifying and dividing the marital estate; (3) the chancellor erred in not awarding permanent or rehabilitative alimony; and (4) the chancellor erred in not awarding her attorneys’ fees. Pertinent facts will be discussed as they relate to each issue.

STANDARD OF REVIEW

¶ 3. We afford chancellors much discretion in our review of domestic-relations cases. Steiner v. Steiner, 788 So.2d 771, 777 (¶ 18) (Miss.2001). This Court will not disturb a chancellor’s findings unless they are manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard. Mizell v. Mizell, 708 So.2d 55, 59 (¶ 13) (Miss.1998).

DISCUSSION

I. ADULTERY

¶ 4. In her first issue on appeal, Diana argues the chancellor erred in granting Mark a divorce on the ground of adultery. To prove adultery, the plaintiff “must show by clear and convincing evidence both an adulterous inclination and a reasonable opportunity to satisfy that inclination.” Atkinson v. Atkinson, 11 So.3d 172, 177 (¶ 20) (Miss.Ct.App.2009) (citation omitted). Adultery may be proven by either direct evidence or, because of the inherently secretive nature of the conduct, circumstantial evidence. Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986). Establishing an “adulterous inclination” requires proof of either the defendant’s infatuation with a particular person or general adulterous propensity. Lister v. Lister, 981 So.2d 340, 344 (¶23) (Miss.Ct.App.2008). The chancellor must set forth specific findings of fact and conclusions of law with regard to an allegation of adultery. Reynolds v. Reynolds, 755 So.2d 467, 469 (¶ 7) (Miss.Ct.App.1999).

¶ 5. The chancellor made specific findings regarding Diana’s adultery. Diana admitted under oath during a temporary hearing on September 26, 2008, that she engaged in sexual intercourse with Matt Lyle. Diana claims that this admission was actually a typographical error in the transcript, but the chancellor found this claim to be not credible. There was testimony that the security password to Diana’s cellular phone was Lyle’s birthday. There was further testimony regarding a trip to Chicago without Mark’s knowledge, and there were photographs of Diana and Lyle at dinner. Mark and Diana’s housekeeper, Ethel Clark, testified that she overheard a phone conversation between Diana and Lyle’s wife where Lyle’s wife asked Diana to cease contacting Lyle. Although not stated by the chancellor, there was also evidence of Diana’s relationships with other men besides Lyle. Clark testified Diana spoke to her of sexual acts she performed numerous times upon another man named Shot Bright. Diana admitted to having a relationship with another man but stated [1216]*1216she was not having “physical sex” with him.

¶ 6. The chancellor found that Diana evidenced an adulterous inclination and had reasonable opportunities to satisfy her inclination. The record supports the chancellor’s findings. This issue is without merit.

II. CLASSIFICATION AND DIVISION OF MARITAL ESTATE

¶ 7. In her second issue on appeal, Diana contends the chancellor erred in classifying Mark’s grocery stores as his separate property and, thus, non-marital property. In 1989, Mark’s father gifted him one-half ownership in a grocery store in Water Valley, Mississippi, and one-third ownership in a grocery store in Oxford, Mississippi, with no consideration paid by Mark. The transfer of ownership was through a bill of sale dated March 5, 1989, three years before Mark and Diana were married. These grocery stores had been owned by Mark’s family for several decades.

¶ 8. The first step in property distribution as a result of divorce is to classify the property as either marital property or non-marital property based on Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994), in which the Mississippi Supreme Court defined marital property for divorce proceedings as “any and all property acquired or accumulated during the marriage.” Hemsley excludes from this definition assets “attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Id. at 914. This includes property obtained by a spouse through gift or inheritance. Johnson v. Johnson, 650 So.2d 1281, 1286 n. 2 (Miss.1994). However, separate property that has been “commingled with the joint marital estate” also becomes marital property subject to equitable distribution. Id. at 1286.

¶ 9. Furthermore, if any income or appreciation resulted from either spouse’s active efforts, then that income or appreciation becomes part of the marital estate. See Craft v. Craft, 825 So.2d 605, 609 (¶ 14) (Miss.2002). Appreciation that is merely passive and not a result of either spouse’s active efforts remains separate property. See Craft, 825 So.2d at 609 (¶ 14). We must also presume that spousal efforts “whether economic, domestic or otherwise are of equal value.” Hemsley, 639 So.2d at 915.

¶ 10. The chancellor determined that any contribution to these two grocery stores by Diana was minimal at best, and there was no increase in value during the marriage that was attributable to Diana. There was testimony that Diana worked occasionally at one of the family grocery stores in the floral department. However, this particular store had been acquired separately by Mark and closed in 2002. There was also testimony Diana refused to sign a personal guaranty required of all family members to do business with a grocery wholesaler. The chancellor found the interest in the two grocery stores to be Mark’s separate property and not subject to equitable distribution. We agree with the chancellor’s determination. Despite her assertions to the contrary, Diana did not actively participate in the business, did not participate in business decisions, and did not invest or contribute money to its ongoing operations.

¶ 11. After determining that the interest in the two grocery stores was non-marital property, the chancellor then proceeded with the equitable division of the property using the factors set forth in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). These factors are:

[1217]*12171. Substantial contribution to the accumulation of the property. Factors to be considered to determine contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
' c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets;
2.

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Bluebook (online)
122 So. 3d 1213, 2013 WL 1114526, 2013 Miss. App. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larson-v-larson-missctapp-2013.