Ward v. Ward

825 So. 2d 713, 2002 WL 31013638
CourtCourt of Appeals of Mississippi
DecidedSeptember 10, 2002
Docket2000-CA-01342-COA
StatusPublished
Cited by23 cases

This text of 825 So. 2d 713 (Ward v. Ward) 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
Ward v. Ward, 825 So. 2d 713, 2002 WL 31013638 (Mich. Ct. App. 2002).

Opinion

825 So.2d 713 (2002)

Charlie W. WARD, Jr., Appellant,
v.
Karen Louise WARD, Appellee.

No. 2000-CA-01342-COA.

Court of Appeals of Mississippi.

September 10, 2002.

*715 John D. Smallwood, Tupelo, attorney for appellant.

James Kelly Dukes, Jr., Hattiesburg, attorney for appellee.

Before McMILLIN, C.J., MYERS, and CHANDLER, JJ.

CHANDLER, J., for the court.

¶ 1. The Chancery Court of Forrest County, Mississippi, granted Karen Ward a divorce on the grounds of adultery from her husband, Charlie Ward. The chancellor divided the marital property between the parties and awarded Karen periodic lump sum alimony in the amount of $750 per month for five years. Charlie appeals the award of divorce and division of marital property for several reasons. First, he argues that the chancery court erred in awarding Karen a divorce when the grounds for divorce had not been properly pled. Next, he argues that the chancery court made several erroneous findings of fact. Charlie further argues that the chancery court failed to make an equitable division of marital property. He also argues that the chancery court erred in awarding Karen alimony. Charlie next argues that the chancery court erred in failing to award him custody of their minor child. He further argues that the chancellor erred in awarding Karen a judgment for arrearage of temporary support. Finally, Charlie argues that the chancellor erred in awarding Karen a portion of her attorney's fees.

¶ 2. After a thorough review of the record and the briefs before the Court, we find that the chancery court failed to make an equitable division of the marital property and erred in awarding Karen alimony based on the erroneous property division. These issues are reversed and remanded for consideration consistent with this opinion.

FACTS

¶ 3. On May 11, 1998, Karen Ward filed a complaint for divorce and/or separate maintenance. in which she sought separate maintenance. Thereafter, Charlie Ward filed an answer and counterclaim for divorce. Karen then filed a motion for leave to amend her original complaint and filed an amended complaint for divorce.

¶ 4. Trial was held on the eighth and thirteenth days of May, 2000. After hearing the testimony and reviewing the evidence before him, the chancellor awarded Karen a divorce based on Charlie's admission of adultery. The chancellor then proceeded to divide the marital property between the parties and awarded Karen $750 monthly in periodic alimony for five years.

STANDARD OF REVIEW

¶ 5. This Court's scope of review in domestic relations matters is limited. Montgomery v. Montgomery, 759 So.2d 1238(¶ 5) (Miss.2000). The findings of a chancellor will not be disturbed by this Court unless the chancellor was manifestly *716 wrong, clearly erroneous or an erroneous legal standard was applied. Id.

LAW AND ANALYSIS

I. DID THE CHANCELLOR ERR IN AWARDING KAREN A DIVORCE WHEN THE GROUNDS FOR DIVORCE HAD NOT BEEN PROPERLY PLED?

¶ 6. Charlie argues on appeal that the chancellor erred in granting Karen a divorce because she had not properly asked for such relief from the court. In her original complaint for divorce and/or separate maintenance, Karen pled grounds for divorce and asked the court to grant her a divorce based on the grounds contained within the complaint. However, she modified her prayer for relief by stating, "but at this time the Plaintiff wishes for separate maintenance." Karen later filed an amended complaint for divorce in which she sought a dissolution of her marriage rather than separate maintenance. There is no evidence in the record to indicate whether an order was entered allowing Karen to file the amended complaint. On this basis, Charlie maintains that the chancery court erred in awarding Karen a divorce.

¶ 7. The Mississippi Rules of Civil Procedure are applicable to suits in chancery court. M.R.C.P. 1. Divorce actions, however, are affected both by the Mississippi Rules of Civil Procedure and Title 93 of the Mississippi Code. M.R.C.P. 81(a)(9). Where the code is not inconsistent, the civil rules will apply. Weiss v. Weiss, 579 So.2d 539, 542 (Miss.1991). Mississippi Rules of Civil Procedure Rule 15(b) is directly applicable in this situation. The rule provides that "when issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings."

¶ 8. At trial, both parties submitted to the court that they were present in order to obtain a divorce and division of their marital property. Further, Charlie admitted to the adultery grounds Karen alleged and asked the judge to grant the parties a divorce based on this admission. There was no surprise or prejudice occasioned as a result of the judge's decision to grant a divorce requested by both parties based on Charlie's admission of adultery. As such, this issue is without merit.

II. DID THE CHANCELLOR FAIL TO MAKE AN EQUITABLE DIVISION OF MARITAL PROPERTY?

¶ 9. The division of marital assets is governed by the principles set forth in Johnson v. Johnson, 650 So.2d 1281 (Miss. 1994), Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), and Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994). Henderson v. Henderson, 703 So.2d 262(¶ 15) (Miss. 1997). In Johnson, 650 So.2d at 1287, the supreme court stated that the first step is to characterize the parties' assets as marital or non-marital pursuant to Hemsley. Henderson, 703 So.2d at (¶ 15). In Hemsley, the court defined martial property as any and all property accumulated or acquired during the course of the marriage. Hemsley, 639 So.2d at 915. Assets so acquired are marital assets and as such are subject to equitable distribution by the chancellor. Id. Once the marital assets have been identified, the chancellor should value and equitably divide the marital property, employing the Ferguson factors as guidelines, in light of each party's non-marital property. Drumright v. Drumright, 812 So.2d 1021(¶ 9) (Miss.Ct.App. 2001). However, "[p]roperty division should be based upon a determination of fair market value of the assets, and these valuations should be the initial step before *717 determining division." Ferguson, 639 So.2d at 929. "If there are sufficient marital assets which, when equitably divided and considered with each spouse's non-marital assets, will adequately provide for both parties, no more need be done." Id. However, if after equitable division of the property, a deficit is created for one party, then alimony based on the value of non-marital assets should be considered. Henderson, 639 So.2d at (¶ 15).

¶ 10. Charlie argues that the chancery court failed to properly identify, value and divide the marital assets. After a thorough review of the record, we are persuaded that Charlie is correct in this assessment. As such, the issue of equitable distribution of the marital property is reversed and remanded to the chancery court.

¶ 11.

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

Related

Michelle Begnaud v. Jamie A. Begnaud
Court of Appeals of Mississippi, 2025
Samuel Weatherly v. Brandy Weatherly
Court of Appeals of Mississippi, 2024
Greg Brown v. Rhonda Brown
Court of Appeals of Mississippi, 2022
John Doe v. Jane Doe
Court of Appeals of Mississippi, 2021
W. B. Williams v. Magnolia Williams
Court of Appeals of Mississippi, 2020
Ruby Melissa Welch Norwood v. Larry Randall Norwood
Court of Appeals of Mississippi, 2020
Shann M. Martin v. James Mitchell Martin, Jr.
Court of Appeals of Mississippi, 2019
Tracy Marie Miles Williams v. Brent Reid Williams
264 So. 3d 722 (Mississippi Supreme Court, 2019)
Cates v. Swain
116 So. 3d 1073 (Court of Appeals of Mississippi, 2012)
Jenkins v. Jenkins
67 So. 3d 5 (Court of Appeals of Mississippi, 2011)
Estate of McCullough v. Estate of McCullough
58 So. 3d 701 (Court of Appeals of Mississippi, 2011)
Best v. McCachren
50 So. 3d 355 (Court of Appeals of Mississippi, 2010)
Wise v. Wise
37 So. 3d 95 (Court of Appeals of Mississippi, 2010)
Rogillio v. Rogillio
58 So. 3d 22 (Court of Appeals of Mississippi, 2010)
Spencer v. Hudspeth
950 So. 2d 238 (Court of Appeals of Mississippi, 2007)
Faris v. Jernigan
939 So. 2d 835 (Court of Appeals of Mississippi, 2006)
SOUTHLAND ENTERPRISES v. Newton County
940 So. 2d 937 (Court of Appeals of Mississippi, 2006)
Horn v. Horn
909 So. 2d 1151 (Court of Appeals of Mississippi, 2005)
Stribling v. Stribling
906 So. 2d 863 (Court of Appeals of Mississippi, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
825 So. 2d 713, 2002 WL 31013638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-ward-missctapp-2002.