Miller v. Miller

874 So. 2d 469, 2004 WL 1157491
CourtCourt of Appeals of Mississippi
DecidedMay 25, 2004
Docket2002-CA-01542-COA
StatusPublished
Cited by5 cases

This text of 874 So. 2d 469 (Miller v. Miller) 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
Miller v. Miller, 874 So. 2d 469, 2004 WL 1157491 (Mich. Ct. App. 2004).

Opinion

874 So.2d 469 (2004)

Lee MILLER, Appellant
v.
Debra MILLER, Appellee.

No. 2002-CA-01542-COA.

Court of Appeals of Mississippi.

May 25, 2004.

*470 John R. Reeves, attorney for appellant.

Sharon Patterson Thibodeaux, attorney for appellee.

EN BANC.

SOUTHWICK, P.J., for the Court.

¶ 1. The parties to this appeal were divorced by a judgment of the Hinds County Chancery Court. On appeal, the husband argues that lump sum alimony was improperly awarded. We agree. Yet we also find that some of the considerations that led to this award might instead justify periodic alimony. We reverse and remand for further proceedings.

¶ 2. Lee and Debra Miller were married in 1979. In 2000, Mrs. Miller filed for a divorce based on uncondoned adultery. A trial was held in 2001. The transcript reveals several omissions in the evidence. There were comments at the beginning of the evidentiary hearing that the attorneys had believed that they were going to settle the suit without the need for presenting evidence. Once the attorneys scrambled to try the case, there was a missing financial statement from the husband, and no appraisal and pay-off amount on loans on the marital home. A recess was taken during the hearing so that the husband could quickly prepare a financial statement.

¶ 3. There was testimony that a financial institution would within a few days provide a 1999 appraisal on the home and the payoff of the loans. Though the final judgment in this case was not entered until four months after the evidentiary hearing, there is no indication that the latter documents were ever received by the chancellor and considered.

¶ 4. The chancellor granted the divorce based on uncondoned adultery. The couple's only child was an adult and no provision *471 for him was needed. There was division of property, including some unimproved land that was ordered sold and the proceeds divided. Of particular concern on this appeal, Mr. Miller was ordered to pay as lump sum alimony the second mortgage payments on the home. Both spouses indicated that there was about $55,000 in debt secured by two mortgages on the home. Mrs. Miller's financial statement alleged that monthly payments on the two notes were about $888. The husband asserted that the house was worth about $100,000, while the wife alleged that it was worth $79,000. She also alleged that an appraisal made of the house's value two years earlier had stated a value of about $82,000. This is the appraisal that was supposed to be received within a few days of the hearing, but which was never referenced in later rulings.

¶ 5. The chancellor may have assumed that the balance on the second mortgage was close to the $22,000 that Mr. Miller's lawyer said had been borrowed two years earlier. Without an appraisal, the chancellor guessed that the value of the home was somewhere between the $100,000 and the $79,000 suggested by the parties.

¶ 6. The chancellor stated that she was awarding lump sum alimony as an "equalizer" between the parties. Since Mrs. Miller had tried to reconcile with her husband on several occasions, and it was Mr. Miller's adultery that was the cause of the divorce, it would be "unfair to leave her in... an unequal position." There were not any findings in the record to support the alimony award. On November 18, 2003, we entered an order to have the chancellor make the findings required to support such an award, which were identified in Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988). The chancellor complied by making these findings on January 5, 2004:

As to the first factor in Cheatham, the parties do not have substantial wealth. Although Mrs. Miller employed her husband in a second job during their marriage, he did not use this money to accumulate any wealth. Mr. Miller used the money as he deemed appropriate.
As to the second factor, the parties were married over twenty years. In our society, that is considered a lengthy marriage. During the marriage, Mr. Miller was primarily responsible for the support of the family.
As to the third factor, Mrs. Miller does not have a separate estate of significant value.
The fourth factor set forth in Cheatham, concerns whether the receiving spouse would lack financial security if she did not receive lump sum alimony. Mrs. Miller expressed her desire to remain in the marital home. Mr. Miller stipulated that Mrs. Miller was entitled to the use, possession, and ownership of the marital residence. Mrs. Miller's income is such that she would lack financial security if she were obligated to pay the first and second mortgages on the marital residence.
The record also reflects that Mr. Miller's monthly gross income is approximately $2,200.00. This amount is almost twice the amount Mrs. Miller receives as income on a monthly basis.
Mr. Miller was found at fault in the dissolution of the marriage. The Mississippi Supreme Court recognized in Hammonds v. Hammonds, 597 So.2d 653 (Miss.1992), that fault was a factor to be considered in an award of alimony.
Based on the above findings this Court awarded Debra Miller lump sum alimony payable as the second mortgage on the marital residence in order that she could remain in her residence.

*472 ¶ 7. We have had the benefit of supplemental briefs from the parties on these findings.

DISCUSSION

¶ 8. We examine the chancellor's findings for consistency with the Supreme Court's identification of four factors that are to be considered in making an award of lump sum alimony. Separately or jointly these factors do not provide much assistance unless the fundamental consideration is kept in focus, which is whether after equitable distribution an "equalizer" is needed.

¶ 9. Lump sum alimony is a hybrid divorce concept, providing support as does other alimony but also making an unalterable distribution of property as does equitable distribution. These are the factors:

(1) Substantial contribution to accumulation of total wealth of the payor either by quitting a job to become a housewife, or by assisting in the spouse's business.
(2) A long marriage.
(3) Where the recipient spouse has no separate income or the separate estate is meager by comparison.
(4) Without a lump sum award the receiving spouse would lack any financial security.

Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988).

¶ 10. Both in these supplemental findings and in her original bench ruling, the chancellor improperly injected the issue of fault for the divorce. True, fault is a consideration in awarding periodic alimony. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). Perhaps the rationale is that a greater amount in support of the recipient spouse and more penalty to the paying spouse is appropriate when fault for the marital breakup is laid at the feet of the payor. Fault has not been identified as a factor in lump sum alimony, nor should it be. When lump sum alimony is paid as an "equalizer," it is because the property distribution has left one spouse's assets out of balance to the other in such a way as to be inequitable. See N.

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Bluebook (online)
874 So. 2d 469, 2004 WL 1157491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-miller-missctapp-2004.