Waring v. Waring

747 So. 2d 252, 1999 WL 695926
CourtMississippi Supreme Court
DecidedSeptember 9, 1999
Docket96-CT-00567-SCT
StatusPublished
Cited by41 cases

This text of 747 So. 2d 252 (Waring v. Waring) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waring v. Waring, 747 So. 2d 252, 1999 WL 695926 (Mich. 1999).

Opinion

747 So.2d 252 (1999)

Shirley B. WARING
v.
Richard L. WARING.

No. 96-CT-00567-SCT.

Supreme Court of Mississippi.

September 9, 1999.
Rehearing Denied December 2, 1999.

*253 John E. Ellis, Vicksburg, Attorney for Appellant.

J. Mack Varner, Vicksburg, Attorney for Appellee.

EN BANC.

On Writ of Certiorari

MILLS, Justice, for the Court:

¶ 1. Richard Waring filed for divorce against Shirley Waring in Warren County Chancery Court in July 1994. The Warings subsequently agreed to divorce on the ground of irreconcilable differences, with financial issues retained for decision by the chancery court. The chancery court awarded to Shirley sole title to the marital home, lump sum alimony, and rehabilitative alimony for a period of three years. Shirley appealed the final judgment of divorce to this Court, which assigned the case to the Court of Appeals. A divided Court of Appeals reversed the judgment of the chancery court and remanded. Waring v. Waring, 722 So.2d 723 (Miss.Ct.App. 1998). This Court granted Richard Waring's petition for writ of certiorari concerning the issues of equitable distribution and alimony. After due consideration, we reverse the judgment of the Court of Appeals in its entirety.

I.

¶ 2. The parties were married on October 17, 1987, and separated finally in December 1993. They were not divorced until March 1996. The marriage was Richard's first and Shirley's third. Richard was thirty-two and Shirley was thirty-nine at the time of the marriage. No children were born of the marriage.

¶ 3. Prior to the marriage, Shirley was a Louisiana resident who supported herself by operating several businesses, including La Club Dijon, a bar, for ten years in New Orleans. She also had owned Metal Coatings, a marine sandblasting business and Shirley Beckham Interiors, an interior design business. La Club Dijon was shut down, and Metal Coatings was sold in contemplation of the marriage. Shirley Beckham Interiors was continued on a part-time basis after the marriage in Vicksburg under the name The Waring Collection, but it did not produce significant income to Shirley.

¶ 4. Richard was involved in three family-owned businesses. Richard was Vice-President of Waring Oil, which marketed petroleum products. Richard oversaw the thirty-three convenience stores owned and operated by Waring Oil. Waring Oil is a Subchapter S corporation; its shareholders are Richard's cousins, Dan Waring, President, and Howard Waring, Secretary/Treasurer, who each own a 45% share of the business, with Richard owning a 10% share. Richard Waring, Dan Waring and Howard Waring each owned a 33 1/3% share in Neill Gas, a propane gas company. Additionally, Richard, Dan and Howard, along with brother-in-law Bobby Bailess, each own a 25% interest in Three-W, a real estate partnership which leased the land to Waring Oil for convenience store sites.

¶ 5. Richard was compensated for his efforts in the family businesses by way of salary and periodic distributions of earnings. Richard's disposable income, or income after payment of taxes, was $98,385.80 for 1995 and averaged $84,881.82 *254 for the seven years preceding 1995. These sources of compensation provided essentially the sole source of support for the couple during the marriage. Shirley did not play an active role in the businesses; however, she did become active in a significant way in local politics and served as the first female president of the country club to which the parties belonged. Shirley testified that she did, on occasion, assist in business activities; however, those activities were sporadic.

¶ 6. Richard's holdings in the family corporations predated the marriage. In addition, he owned a condominium property prior to the marriage. Shirley's separate estate at the time of the marriage consisted of a 1983 Jaguar automobile. In addition, she testified that she received funds in the approximate amount of $5,000 from the sale of one of her businesses and that she contributed those funds to the marriage. At the time of the divorce, Shirley had no separate bank accounts or investments. Richard had, during the marriage, accumulated funds in a retirement account. Richard testified that the account had increased by approximately $30,000 during the marriage. Shirley claimed that Richard's retirement fund had increased by $44,000 during that time.

¶ 7. The parties had purchased an older home on Confederate Avenue in Vicksburg during their marriage and had spent considerable sums in refurbishing the home. The property had an approximate value of $212,000; however, the property was subject to two mortgages that totaled about $195,000, with monthly payments of about $2,000.

¶ 8. The family businesses in which Richard was a shareholder and in which he was an active participant had increased substantially in value during the marriage. This increase in value was apparently due, at least in part, to acquisitions of new properties and expansion of the number of convenience stores owned and operated by these corporations. These acquisitions and expansions were partially financed by loans; however, there was also evidence that these business expansions were financed by the profits of the businesses themselves. The parties disputed the amount of the increase in value of the businesses during the marriage. Shirley's expert stated that Richard's holdings in the family businesses had increased in value from $668,101 at the time of the marriage to approximately $4,000,000 at the time of the divorce.

¶ 9. The couples' joint federal tax return for 1994 showed an adjusted gross income before taxes of $424,639. In 1993, the couple's adjusted gross income was $409,396. In addition, Richard was furnished an automobile through the family businesses.

¶ 10. Shirley testified to monthly living expenses of $7,563. The chancellor determined that a more reasonable expense estimate was $4,213. Richard testified to living expenses of $1,406.

¶ 11. The chancery court found that Shirley should be awarded the Confederate Avenue home in Vicksburg and that she would be responsible for the mortgages on the home. The court divided the couple's personal property. The court ordered that Richard pay to Shirley $4200 per month for twelve months and $3700 per month for the subsequent twenty-four months as rehabilitative periodic alimony. Shirley was awarded one half of Richard's retirement benefits. Richard was ordered to pay $10,000 in attorney fees and $3,000 in accountant (expert witness) fees. The court declined to award Shirley an equitable distribution of Richard's assets in the family businesses based on appreciation of the value of the assets during the marriage because Shirley had not shown that her efforts had directly contributed to the appreciation.

¶ 12. On appeal a divided Court of Appeals reversed and remanded. The Court of Appeals majority found that "the chancellor should have taken into consideration, for purposes of equitable distribution or *255 some alternate form of award in lieu of an in-kind distribution, the part of the increase in value of Mr. Waring's share of these family-owned businesses that was fairly attributable to the active efforts of either of the parties during the marriage." 722 So.2d at 726. The Court of Appeals stated that this did not have to be through a share of the increased wealth, but could be through distributions of property or alimony. Id. at 727. The Court of Appeals went on to reverse and remand the chancery court's award of attorney's fees and suit fees and to award Mrs.

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Bluebook (online)
747 So. 2d 252, 1999 WL 695926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waring-v-waring-miss-1999.