Waring v. Waring

722 So. 2d 723, 1998 WL 710669
CourtCourt of Appeals of Mississippi
DecidedOctober 13, 1998
Docket96-CA-00567 COA
StatusPublished
Cited by1 cases

This text of 722 So. 2d 723 (Waring v. Waring) 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
Waring v. Waring, 722 So. 2d 723, 1998 WL 710669 (Mich. Ct. App. 1998).

Opinion

722 So.2d 723 (1998)

Shirley B. WARING, Appellant,
v.
Richard L. WARING, Appellee.

No. 96-CA-00567 COA.

Court of Appeals of Mississippi.

October 13, 1998.

*724 John E. Ellis, Clyde Emil Ellis, Vicksburg, Attorney for Appellant.

J. Mack Varner, Samuel D. Habeeb, Vicksburg, Attorney for Appellee.

Before McMILLIN, P.J., and DIAZ and KING, JJ.

McMILLIN, P.J., for the Court:

¶ 1. Shirley Waring and Richard Waring agreed to a divorce on the ground of irreconcilable differences. Unable to resolve all issues relating to property rights and postdivorce support obligations, the parties agreed in writing to submit those issues to the chancellor for resolution. The chancellor, after a lengthy evidentiary hearing, awarded Mrs. Waring sole title to the marital home, an amount of lump sum alimony, and provided her with rehabilitative alimony for a period of three years. Mrs. Waring has appealed, claiming that the chancellor's failure to be more generous was a manifest abuse of discretion. We agree and, therefore, reverse and remand for further proceedings.

I.

Facts

¶ 2. The parties were married on October 17, 1987 and separated finally on December 15, 1993. They were not divorced until March 1996; however, much of that period was taken up with litigation in pursuit of a divorce. For purposes of our discussion, therefore, we will consider that this was a marriage of approximately six years duration.

¶ 3. Prior to the marriage, Mrs. Waring was a Louisiana resident who provided her own support by operating several businesses. One business was shut down and another was sold in contemplation of the marriage. Another business activity, involving residential interior decorating services, was continued on a part-time basis after the marriage, but it did not produce significant income to Mrs. Waring. Mr. Waring, for his part, was engaged in a number of businesses owned by Mr. Waring and certain other relatives that included a propane gas distributorship, a *725 company engaged in the distribution of gasoline and related petroleum products, and a company that operated a number of convenience stores. Mr. Waring was a shareholder in these businesses, along with his relatives, and all of the businesses were operated as subchapter S corporations. The evidence suggests that Mr. Waring was compensated for his efforts in the family businesses by way of salary and periodic distributions of earnings. These sources of compensation provided essentially the sole source of support for the family during the marriage. Mrs. Waring 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. Mrs. Waring testified that she did, on occasion, assist in business activities; however, it is not subject to reasonable dispute that those activities were sporadic.

¶ 4. The marriage was the first for Mr. Waring and Mrs. Waring's third. Mr. Waring was thirty-two years of age at the time of the marriage and Mrs. Waring was thirtynine. No children were born of the marriage. There is no evidence that either party was suffering from any significant health problems at the time of the divorce.

¶ 5. Mr. Waring's holdings in the family corporations predated the marriage. In addition, he owned a condominium property prior to the marriage. Mrs. Waring's separate estate at the time of the marriage consisted of an automobile which was thereafter used as the family vehicle throughout the marriage. 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 divorce, she had no separate bank accounts or investments. Mr. Waring had, during the marriage, accumulated funds in a retirement account. He testified that the account had increased by approximately $30,000 during the marriage. Mrs. Waring claimed that the fund had increased by approximately $44,000 during that time.

¶ 6. The parties had purchased an older home during their marriage and expended considerable sums in rehabilitating and refurbishing the home. Proof was offered that the property had an approximate value of $212,000; however, it was subject to two outstanding mortgage debts that totaled about $195,000. The chancellor did not make a specific finding as to the market value of the property.

¶ 7. There was evidence presented to the chancellor that the family businesses in which Mr. Waring was a shareholder and in which he was an active participant had increased substantially in value during the course of 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 family-held corporations. These acquisitions and expansions were partially financed by bank loans; however, there was also evidence that a significant part of the money for these expansions came from the profits of the operation of the businesses themselves. The parties hotly disputed the amount of the increase in value of these businesses during the marriage. Mrs. Waring produced expert opinion evidence from an accountant who had done an evaluation of these closely-held corporations that indicated that the value of Mr. Waring's holdings had increased in value from $668,101 at the time of the marriage to approximately $4,038,404 at the time of the divorce.

¶ 8. There was evidence presented in the form of Mr. and Mrs. Waring's joint federal tax return for 1994 that indicated the couple had an adjusted gross income before taxes of $424,639. In 1993, the couple's adjusted gross income was $409,396. In addition, Mr. Waring was furnished an automobile through the family businesses. Insofar as the evidence shows, all of this income was traceable to the efforts of Mr. Waring.

¶ 9. Mrs. Waring testified that her reasonable monthly living expenses, without consideration of income taxes, was $7,563. The chancellor made a determination that a more reasonable assessment of her needs based on the evidence was $4,213. Mr. Waring's testimony concerning his living expenses showed a total of $1,406.

*726 ¶ 10. Based on this evidence, the chancellor awarded Mrs. Waring the following:

(a) Title to the residence and the bulk of the contents; however, the chancellor ordered that Mrs. Waring be solely responsible for the entire outstanding mortgage indebtedness against the property.

(b) One half the value of Mr. Waring's retirement account, characterizing this as lump sum alimony.

(c) Rehabilitative alimony in the amount of $4,200 a month for twelve months, then the reduced sum of $3,700 per month for the next twenty four months.

(d) Attorney's fees of $10,000 and suit fees of $3,000 to pay toward the expert witness fees of the accountant who did the valuation of the closely-held corporations.

¶ 11. Mrs. Waring filed a motion for reconsideration of the various aspects of this award. The chancellor declined to modify the judgment in any respect except to order Mr. Waring to pay one-half of a $4,000 repair bill related to the marital domicile.

¶ 12. Mrs. Waring presents four issues on appeal, which we will now proceed to consider.

II.

The Failure to Consider Mr. Waring's Business Holdings When Making an Equitable Division of Marital Assets

¶ 13. Mrs. Waring claims that some equitable portion of Mr.

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Waring v. Waring
747 So. 2d 252 (Mississippi Supreme Court, 1999)

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