Striebeck v. Striebeck

911 So. 2d 628, 2005 Miss. App. LEXIS 639, 2005 WL 2210341
CourtCourt of Appeals of Mississippi
DecidedSeptember 13, 2005
DocketNo. 2004-CA-00507-COA
StatusPublished
Cited by2 cases

This text of 911 So. 2d 628 (Striebeck v. Striebeck) 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
Striebeck v. Striebeck, 911 So. 2d 628, 2005 Miss. App. LEXIS 639, 2005 WL 2210341 (Mich. Ct. App. 2005).

Opinion

LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. William (Bill) and Ruth Ann Strei-beck were married on August 18, 1991. Bill and Ruth Ann had one child during the marriage named Ann Klein. Ruth Ann has two children from a prior marriage, John and Steven. Bill has a child named Jason, also from a previous marriage. At the time Bill and Ruth Ann divorced, John was twenty-five years old, and Jason and Steven were nineteen. Bill received his juris doctorate from the University of Mississippi in 1989. Ruth Ann has a master’s degree in mathematics education, which she received prior to the marriage. Bill is a sole practitioner in Greenville, and Ruth Ann teaches in the Greenville public school system. Bill and Ruth Ann separated around April 24, 2000, and were granted a divorce on November 29, 2003. Neither party was satisfied with the chancellor’s findings regarding alimony, assets, and child support.

¶ 2. Bill filed his appeal, arguing (1) that the chancellor erred in calculating the value of Ruth Ann’s non-marital property by not including her interest in the family partnership; (2) the chancellor erred in calculating the value of Ruth Ann’s property by failing to include the $34,055 paid by Bill to Ruth Ann as compensation for equity in the marital home; (3) the chancellor erred in granting Ruth Ann periodic alimony; (4) the chancellor erred by ordering Bill to pay one-half of Ann Klein’s private school tuition; and (5) the chancellor erred by requiring Bill to pay one-half of Ann Klein’s college expenses which are not covered by the MPACT certificate purchased by Bill prior to the parties’ separation.

¶ 3. Ruth Ann filed her cross-appeal, arguing (1) that the chancellor erred in awarding inadequate child support and by merging the tuition payments and health insurance payments into the child support amount; and (2) the chancellor erred by failing to make an accurate determination of the marital assets and by not making a fair and equitable division and distribution of the marital assets between the parties. Finding that the chancellor erred, we reverse and remand in part and affirm in part.

STANDARD OF REVIEW

¶ 4. “On appeal [we are] 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). Since the decision to award alimony, as well as the amount, is left to the discretion of the chancellor, we will not reverse unless the chancellor manifestly erred or abused his discretion. Voda v. Voda, 731 So.2d 1152, 1154(¶ 7) (Miss.1999). This is particularly true in the areas of divorce, alimony and child support. Henley v. Jones, 880 So.2d 382, 384(¶ 5) (Miss.Ct.App.2004).

DISCUSSION OF ISSUES

¶ 5. Although there are a total of seven issues presented to this court on appeal and on cross-appeal, the issues can be adequately summarized and addressed as follows: (1) whether the chancellor erred [632]*632in determining the parties’ marital and non-marital assets; (2) whether the chancellor erred in distributing the marital assets; (3) whether the chancellor erred in awarding alimony; (4) whether the chancellor erred in his child support determination; and (5) whether the chancellor erred in ordering Bill to pay one-half of Ann Klein’s college expenses not covered by the MPACT certificate.

I. DID THE CHANCELLOR ERR IN DETERMINING THE PARTIES’ MARITAL AND NON-MARITAL ASSETS?

¶ 6. In Mississippi, the division of marital assets begins with determining which assets are marital and non-marital under the criteria established in Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994). For the purpose of divorce, our supreme court defined marital property as being “any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor.” Id. at 915. For the purpose of calculating whether or not assets are marital or non-marital, the “course of the marriage” runs until the date of the divorce judgment, and an otherwise marital asset may be classified as separate if an order for separate maintenance is entered. McIlwain v. McIlwain, 815 So.2d 476, 479(¶ 7) (citing Godwin v. Godwin, 758 So.2d 384(¶ 6) (Miss.1999)).

¶ 7. Prior to trial, Bill and Ruth Ann stipulated that certain property was not marital property, namely various household appliances and furniture; Bill and Ruth Ann’s respective retirement accounts; accounts held by Ruth Ann in the names of her children and an account held by Bill in the name of his son Jason; Bill and Ruth Ann’s respective savings accounts; Ruth Ann’s share in her family’s partnership, Lea Brent Family Investments; the 1999 Tahoe and the 1993 Bronco belonging to Ruth Ann, and the 1990 Toyota and 2002 Tahoe belonging to Bill. Thus, the chancellor concluded that the only marital asset requiring disposal was the marital home.

¶ 8. On cross-appeal, Ruth Ann argues that Bill’s contingency fee from a pending case should constitute marital property and that the fee should be subject to equitable distribution. Bill asserts that under Aron v. Aron, 832 So.2d 1257, 1259(¶ 8) (Miss.Ct.App.2002), the chancellor properly did not characterize the forthcoming fee as marital property. In his brief, Bill argues that the litigation for the case did not begin until after May 26, 2002; thus, because the litigation did not begin until after the parties separated in April of 2000, any revenue generated from the case should not constitute marital property.

¶ 9. It is true that in some instances chancellors have been granted greater discretion in classifying assets acquired later in the marriage. In Aron, this Court found that “[t]he chancellor has discretion in determining whether acquisitions made in a marriage’s dying stages qualify as marital or separate property.” Aron, 832 So.2d at 1259(¶ 8). Furthermore, in Selman v. Selman, a chancellor divided some $1350 in the wife’s retirement which had accumulated after the parties separated. The supreme court reversed, finding that “while the marriage had not legally terminated, the relationship out of which equitable distribution arises had ended some months earlier. There is no justification in equity to allow [the husband] to share in this meager accumulation.” Selman v. Selman, 722 So.2d 547, 553(¶ 24) (Miss.1998). Notably, the supreme court did not state that the property was not marital property; rather, the supreme court deter[633]*633mined that under Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), there was no justification to allow the husband to share in the retirement.

¶ 10. While the entry of a separate maintenance order may be a line of demarcation for classifying property as marital or separate, no such order was entered in the case sub judice. See Godwin, 758 So.2d at (¶ 6). However, no such order was entered in the case sub judice. We have previously determined that “[assets acquired during the course of marriage are marital assets and subject to equitable distribution unless it can be proven that such assets belonged to one of the separate estates prior to marriage.” Flechas v. Flechas, 791 So.2d 295(¶ 8) (Miss.Ct.App.2001). Additionally, the burden is upon one claiming assets to be non-marital to demonstrate to the court their non-marital character. A & L, Inc. v. Grantham, 747 So.2d 832, 839(¶ 23) (Miss.1999).

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911 So. 2d 628, 2005 Miss. App. LEXIS 639, 2005 WL 2210341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/striebeck-v-striebeck-missctapp-2005.