Massey v. Massey

475 So. 2d 802
Mississippi Supreme Court·Decided August 28, 1985·No. 55638·Published·Cited by 42 cases

Opinion

475 So.2d 802 (1985)

William H. MASSEY
v.
Martha E. MASSEY.

No. 55638.

Supreme Court of Mississippi.

August 28, 1985.

*803 James W. Amos, Hernando, for appellant.

William F. Hagan, Hernando, for appellee.

Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

Martha E. Massey received a decree of divorce from Robert J. Kelly, master, and Leon E. Hannaford, Sr., Chancellor of DeSoto County, Mississippi, which judgment granted her a divorce on the grounds of habitual cruel and inhuman treatment. Among other things, Martha Massey received $428.80 per month as alimony to commence on October 1, 1983, and to run for a term of thirty-six months. At the conclusion of the thirty-six months, Martha Massey was required to bring further action before the Chancery Court to determine the status of the parties at that time for the court to determine whether or not alimony should continue.

Martha Massey was further awarded $7,600 as a cash division of the parties, based on Martha Massey's contribution to the marriage, this lump sum award to be paid in monthly installments of $100 a month commencing on October 1, 1983, and continuing until paid in full.

Martha Massey was awarded as attorney's fees to be paid to her attorney of record the sum of $1,500, which sum was to be paid in monthly installments of $50 per month beginning on October 1, 1983, and continuing until $1500 had been paid.

On appeal, William H. Massey assigns two errors:

1. The court erred in overruling appellant's motion for a new trial.

2. The court's award of alimony, division of property and award of attorney's fees to appellee's attorney is grossly oppressive and unjust, against the overwhelming weight of the evidence and an abuse of discretion.

We will discuss these assignments of error in inverse order.

I.

WAS THE COURT'S AWARD OF ALIMONY, DIVISION OF JOINT PROPERTY AND AWARD OF ATTORNEY'S FEES GROSSLY OPPRESSIVE AND UNJUST, AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE, AND AN ABUSE OF THE CHANCELLOR'S DISCRETION?

It is well settled in this state that the determination of an amount of support or alimony in a divorce case is within the chancellor's sound discretion and such will not be disturbed unless the chancellor abused his discretion by awarding an amount of support or alimony which is against the overwhelming weight of the evidence. See Martin v. Martin, 271 So.2d 391 (Miss. 1972); Harrell v. Harrell, 231 So.2d 793 (Miss. 1970).

Among the items the chancellor must consider in determining the amount of support payable to a wife are "not only the reasonable needs of the wife but also the right of the husband `to lead as normal a life as reasonably possible with a decent standard of living'." Hopton v. Hopton, 342 So.2d 1298, 1300 (Miss. 1977), quoting Nichols v. Nichols, 254 So.2d 726, 727 (Miss. 1971).

On the facts of this record, the chancellor did not abuse his discretion on the amount of the awards granted. Mrs. *804 Massey, by the time of the divorce, was in poor health, had no assets or income of her own and was unable to get work because of her health. During the life of the marriage, Mrs. Massey had been employed and had helped to pay the expenses of herself and her husband. Mrs. Massey worked side by side with her husband on the farm, contributing with him to the well-being of both of the parties. Mr. Massey, who had few expenses, was left with a monthly income of approximately $500.00.

There is no merit to this assignment of error insofar as it attacks the amounts of support and attorney's fees awarded by the chancellor.

However, we do find the chancellor's decree defective in one particular. The decree directed the payment of attorney's fees directly to the attorney for Mrs. Massey rather than to Mrs. Massey for her use and benefit to be applied to attorney's fees. This is error. Parker v. Parker, 71 Miss. 164, 14 So. 459 (1893); Serio v. Serio, 231 Miss. 147, 94 So.2d 799 (1957).

On the authority of Serio, supra, we affirm the chancellor, but modify his decree here to make the attorney's fees payable to Martha E. Massey, for the use and benefit of her attorney, rather than directly to her attorney.

II.

DID THE TRIAL COURT ERR IN OVERRULING APPELLANT'S MOTION FOR A NEW TRIAL?

The case was heard before a master. At the conclusion of the trial, the master made, from the bench, an oral report of his findings. This report was transcribed in the form of a decree of divorce, signed by both attorneys, then submitted to the master and chancellor and signed by both.

After the decree was entered, Mr. Massey filed a motion for new trial setting forth four grounds:

1. That the case was tried before a master, Robert J. Kelly, during the regular September, 1983, term of court. There was no showing that the reference to the master in the case was based upon some exceptional condition requiring it.

2. That the master did not properly report upon this case as required by law, and as required by the Mississippi Rules of Civil Procedure.

3. That the master exceeded the authority granted in the order appointing him master entered on September 12, 1983, by the Chancery Court of DeSoto County, Mississippi.

4. That the master failed to comply with the authority granted in the order appointing him master on September 12, 1983, by the Chancery Court of DeSoto County, Mississippi.

Mississippi Code Annotated §§ 11-1-11 and 11-1-13 (1972) are the statutes which control the appointment of a special judge or chancellor. These statutes have not been affected by the adoption of the Mississippi Rules of Civil Procedure. In the past, loose language has been used which implies that these two statutes authorize the appointment of a master. That is incorrect. These two statutes are still valid and in full force and effect, and when utilized by a trial court serve to appoint special judges or special chancellors and not masters. Such is not the case here.

Rule 53, Mississippi Rules of Civil Procedure, governs and controls the appointment of masters, referees, and commissioners. This is the first time the interpretation of this rule has been before this Court.

The order appointing Robert J. Kelly to serve as master for the September, 1983, term of the Chancery Court of DeSoto County, reads as follows:

ORDER
The Court finds that it is in the interest of the orderly administration of the business of the Court, in the interest of the litigants and their witnesses and in the interest of the attorneys who practice in this Court for the Court to appoint a Master to aid the transaction of business before the Court.
*805 The Master is impowered to administer oaths, hear testimony and receive documentary proof and to make recommendations to the Chancellor of all business referred to the Master.
The Court appoints Honorable Robert J. Kelly, a member in good standing of the DeSoto County Bar, to serve as Master to aid in the transaction of business before the Court.
IT IS SO ORDERED (sic) this the 12th day of September, 1983.
/s/ L.E. Hannaford, Sr. L.E. HANNAFORD, SR., CHANCELLOR

Rule 53(a) deals with the appointment and compensation of masters, and says that the court may appoint one or more persons in each county to be a master, and that the court in which any action is pending may appoint a special master.

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