Rogillio v. Rogillio

58 So. 3d 22, 2010 Miss. App. LEXIS 96, 2010 WL 610611
CourtCourt of Appeals of Mississippi
DecidedFebruary 23, 2010
DocketNo. 2008-CA-01838-COA
StatusPublished
Cited by1 cases

This text of 58 So. 3d 22 (Rogillio v. Rogillio) 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
Rogillio v. Rogillio, 58 So. 3d 22, 2010 Miss. App. LEXIS 96, 2010 WL 610611 (Mich. Ct. App. 2010).

Opinion

CARLTON, J.,

for the Court:

¶ 1. Helen Rogillio appeals the judgment of the Warren County Chancery Court granting an irreconcilable-differences divorce to her and her husband, David Ro-gillio, and awarding Helen $15,000 in lump-sum alimony. Helen appeals, arguing that the chancellor erred by awarding lump-sum alimony instead of permanent periodic alimony. Finding no error in the chancery court’s judgment, we affirm the chancellor’s award of lump-sum alimony.

FACTS

¶ 2. Helen and David were married in September 1997. One child was born to the marriage, a son, who was approximately six years old at the time of the divorce. Helen and David separated in March 2007, when David and the couple’s son left the family home and moved in with David’s parents. Although the chancellor granted the divorce on the grounds of irreconcilable differences, ■ David contends that he left the marital home because Helen exhibited bizarre behavior and used illegal drugs.

¶ 3. Helen and David agreed that David would have primary custody of their minor • child and that David and the child would reside in the marital home. Helen agreed to move into a mobile home that she owned prior to the marriage. The mobile home was in need of numerous repairs. Helen was to receive exclusive use, possession and ownership of the property, and the sole responsibility for the mortgage on the property. Further, the chancellor awarded David $436 per month in child support in the form of a social security check the child received as a result of Helen’s disability. David received the sole use, possession and ownership of the marital home, and any equity in the home. David was further assigned responsibility for the first and second mortgages on the marital home.

¶ 4. David was also given responsibility for various other marital debts. David received ownership of a Thrift Savings Plan, his PERS retirement account, and the checking and savings accounts. The chancellor ordered David to pay Helen $2,038.61 in marital assets, $4,807 for the debt on her credit cards, and lump-sum alimony in the amount of $15,000.

¶ 5. On appeal, Helen contends that the chancellor erred in not awarding her permanent periodic alimony. Both David and Helen are in their forties. Helen is a registered nurse. However, she had to stop working in 1998 because she suffers from neurofibromatosis, which she says causes her constant pain. During the course of her marriage to David, Helen required more than ten surgeries to remove tumors from various parts of her body as a result of her illness. Helen receives $770 per month in Social Security disability benefits, and this check is Helen’s only source of income.

¶ 6. David, on the other hand, is in good health and has secure employment as an engineer for the Army Corps of Engineers in Vicksburg. David earns approximately $83,372 per year. Because Helen felt that it was in her son’s best interest to remain with his father, she agreed to move out of the marital home and into a mobile home she owned prior to the marriage that she rented out during the course of the marriage. The mobile home is in need of approximately $7,725 in repairs. Helen pays $420 per month for the mobile home and insurance. Further, Helen pays $150 per month in rent for the lot on which the mobile home sits. However, at the time she filed this appeal, she had fallen sixteen months behind in making this rental payment.

[24]*24STANDARD OF REVIEW

¶ 7. “A chancellor’s findings of fact mil not be disturbed unless manifestly wrong or clearly erroneous.” Sanderson v. Sanderson, 824 So.2d 623, 625 (¶ 8) (Miss.2002) (citation omitted). “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 an erroneous legal standard was applied.” Id. at 625-26 (¶ 8) (citation omitted).

DISCUSSION

I. Helen’s Award of Lump-Sum Alimony

¶ 8. Helen argues that after the property division, a gross disparity between her needs and her resources requires that she receive permanent periodic alimony from David. David, however, argues that Helen only “claims” to be disabled; she drinks excessively; and she could work if she chose to do so. To support his contention that Helen perhaps exaggerated her disability, David notes that Helen sought and received possession and ownership of an off-road ATV 4-wheeler and scuba-diving equipment in the divorce proceedings. Helen admitted at the divorce hearing that she frequently rode the ATV on rough terrain and that she was physically able to scuba dive. However, on re-direct examination, Helen stated that she was unable to scuba dive due to her disability.

¶ 9. The Mississippi Supreme Court has expressed that alimony should be considered only “[i]f the situation is such that an equitable division of marital property, considered with each party’s nonmarital assets, leaves a deficit for one party.” Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994). Since the decision to award alimony, and the amount thereof, is a matter of discretion for the chancellor, we will review the chancellor’s award of lump-sum alimony for abuse of discretion and will only disturb the ruling if it is found to be against the overwhelming weight of the evidence or manifestly in error. Pearson v. Pearson, 761 So.2d 157, 165 (¶ 25) (Miss.2000).

¶ 10. In the present case, the record reflects that the chancellor utilized the guidelines set forth in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994) to equitably divide David and Helen’s marital property. In Ferguson, the Mississippi Supreme Court instructed chancery courts to equitably divide marital assets by following a nonexclusive list of eight guidelines and “to support their decisions with findings of fact and conclusions of law for purposes of appellate review.” Id. The supreme court further outlined the steps for applying the equitable-distribution factors as listed in Ferguson, stating:

First, the character of the parties’ assets, i.e., marital or nonmarital, must be determined pursuant to Hemsley. The marital property is then equitably divided, employing the Ferguson factors as guidelines, in light of each parties’ non-marital property. Ferguson, 639 So.2d at 928. If there are sufficient marital assets which, when equitably divided and considered with each spouse’s nonmari-tal assets, will adequately provide for both parties, no more need be done. If the situation is such that an equitable division of marital property, considered with each party’s nonmarital assets, leaves a deficit for one party, then alimony based on the value of nonmarital assets should be considered. This process does not require divestiture of inherited or gift-acquired nonmarital property.

Johnson, 650 So.2d at 1287.

¶ 11. Upon review of the record before us, we find that the chancellor properly [25]*25classified the parties’ assets as marital or nonmarital, pursuant to Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994). The chancellor then applied the Ferguson factors to the parties’ assets, listing in the judgment her findings of fact and conclusions of law. Ultimately, the chancellor held that the marital home should be awarded to David, and the parties’ marital assets divided equally.

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

Related

State of Louisiana Versus Osiris L. Scott
Louisiana Court of Appeal, 2023

Cite This Page — Counsel Stack

Bluebook (online)
58 So. 3d 22, 2010 Miss. App. LEXIS 96, 2010 WL 610611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogillio-v-rogillio-missctapp-2010.