Welch v. Welch

755 So. 2d 6, 1999 WL 228873
CourtCourt of Appeals of Mississippi
DecidedApril 20, 1999
Docket97-CA-01203-COA
StatusPublished
Cited by7 cases

This text of 755 So. 2d 6 (Welch v. Welch) 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
Welch v. Welch, 755 So. 2d 6, 1999 WL 228873 (Mich. Ct. App. 1999).

Opinion

755 So.2d 6 (1999)

Mary Beth Shoemake WELCH, Appellant,
v.
Jerry Wayne WELCH, Appellee.

No. 97-CA-01203-COA.

Court of Appeals of Mississippi.

April 20, 1999.
Rehearing Denied July 20, 1999.
Certiorari Denied October 7, 1999.

*7 Mark A. Chinn, Leslie R. Brown, Rex Foster, Benita Pleshette Collier, Jackson, Attorneys for Appellant.

Thomas T. Buchanan, Laurel, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., COLEMAN, AND THOMAS, JJ.

SOUTHWICK, P.J., for the Court:

¶ 1. The Jones County Chancery Court granted a divorce to Mary Beth Shoemake Welch on the grounds of the adultery of her husband Jerry Wayne Welch. A later order addressed equitable division of marital assets and periodic and lump sum alimony. Mrs. Welch appeals alleging error in each part of the later order. We find no manifest error and affirm.

FACTS

¶ 2. Dr. Jerry Wayne Welch and Mary Beth Shoemake were married on June 26, 1966. They separated in 1994. Dr. Welch unsuccessfully sought a divorce from his wife in 1994 on the grounds of habitual cruel and inhuman treatment. The then-chancellor denied that Mrs. Welch's actions rose to such a level but also held that Mrs. Welch had materially contributed to the separation that the couple was then experiencing. A new petition based on uncondoned adultery was later brought by Mrs. Welch. A three-day trial was held, and on February 25, 1997, a divorce was granted based on adultery. Though the allegation of adultery was not denied by Dr. Welch in his responsive pleading, he invoked his right against self-incrimination when called upon to testify on the matter.

¶ 3. After the divorce was granted and agreement reached on some assets and on custody of the one minor child being with the father, the chancellor took under advisement these issues:

1. The identity and value of the remaining assets.
2. Equitable distribution of marital assets.
3. Whether periodic alimony should be awarded.
4. Whether lump sum alimony should be awarded.

¶ 4. An opinion was handed down on August 14, 1997. That opinion's resolution of each question is challenged on appeal. We will discuss the relevant facts as we separately examine each point.

DISCUSSION

¶ 5. A chancellor's decisions regarding equitable distribution of marital assets, *8 periodic alimony, and lump sum alimony will not be disturbed unless found to be manifestly wrong, clearly erroneous or based on an incorrect legal standard. Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994).

Issue 1: Equitable division of marital assets

¶ 6. The chancellor made findings about Mrs. Welch's separate estate as follows:

Asset                           Net value
Real property                    $581,037
Trust account                    $595,538
CD's/other accounts              $ 30,143
                               __________
       total                   $1,206,719

¶ 7. Mrs. Welch had a one-half interest in the assets and her brother had the remainder. However, both spouses testified that if Mrs. Welch wanted all the assets her brother would permit her to have them. The chancellor found that during the course of the marriage Dr. Welch had helped purchase some of Mrs. Welch's now-claimed separate property and paid taxes on it. This commingling helped create and preserve Mrs. Welch's separate assets, potentially making them marital assets. The chancellor decided to consider Dr. Welch's contribution to his wife's separate estate "as an equitable distribution factor." There is no evidence that Dr. Welch had a significant separate estate.

¶ 8. The chancellor determined that the marital assets of the parties were as follows:

Asset                           Net value
Home                             $ 94,815
Lots in Bay St. Louis            $  8,000
2  timber tracts                 $100,292
Other property                   $491,711
IRA in husband's name            $ 24,742
IRA in wife's name               $ 25,455
Profit sharing account           $150,000

¶ 9. Of these assets, the chancellor ordered that the home and the Bay St. Louis lots be sold and the proceeds divided equally, that each IRA be retained in full by the spouse in whose name it was issued, and that the profit sharing plan be divided 2/3 to Dr. Welch and 1/3 to Mrs. Welch.

¶ 10. This left approximately $600,000 in marital assets to be distributed. Based on the factors that will be discussed below, primarily the over one million dollars in Mrs. Welch's separate estate, the chancellor determined to divide the assets 2/3 to Dr. Welch and 1/3 to Mrs. Welch. This gave Mrs. Welch just under $200,000 and Dr. Welch just under $400,000 of the marital assets.

¶ 11. Mrs. Welch argues that the trial court misapplied the relevant factors for determining an equitable division of marital assets. All parties agree, as does this Court, that the factors arise from Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994). We will summarize each, though Mrs. Welch only addresses the chancellor's consideration of three of them.

¶ 12. 1. Contribution to the accumulation of property. Contribution is measured by direct or indirect impact on the acquisition of property, the contribution to the stability of the home, and the contribution to the training of the incomeearning spouse. Id. The chancellor found that Mrs. Welch had contributed to the instability of the marriage, that there had been problems between some of the children and Mrs. Welch that reduced the impact of the child-rearing contribution, and that she had not been a significant contributor to Dr. Welch's education.

¶ 13. Mrs. Welch claims that it was an abuse of discretion to blame her for staff problems since her husband had an affair with one of the staff who was hired in 1990 that was the basis for the divorce. In addition there is an undercurrent of suspicion if not proof that there was at least one affair with a staff member before that. Mrs. Welch's argument presupposes a strong correlation between the disruptions she caused at the office and her husband's affair. Some of the problems seem potentially connected to her suspicions about *9 Dr. Welch, and others are not so well associated. Testimony from several witnesses combine to support the conclusion that Mrs. Welch had caused staff problems, had made some patients feel uncomfortable in using exercise equipment for which she was responsible, and was not a positive influence on the clinic's operation. On balance, it seems fair to say both that she was not a positive influence and the reasons were not totally her fault. The factor should not have weighed strongly, but we also do not find that it did.

¶ 14. Mrs. Welch further complains that the chancellor should not have relied on the findings of Chancellor Clark in the first divorce action, specifically that Mrs. Welch had materially contributed to the separation of the parties. The error according to Mrs. Welch is that the earlier conclusion did not factor in Dr. Welch's later adulterous conduct. The chancellor's reliance on the earlier findings from the first trial was not error. The validity of those earlier findings and the further perspective to be given by later-arising events were both matters that could have been addressed by the parties to the extent the issues were considered relevant.

¶ 15. Mrs. Welch's contributions as homemaker and mother were substantial.

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Bluebook (online)
755 So. 2d 6, 1999 WL 228873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welch-v-welch-missctapp-1999.