White v. White

868 So. 2d 1054, 2004 WL 557287
CourtCourt of Appeals of Mississippi
DecidedMarch 23, 2004
Docket2003-CA-00171-COA
StatusPublished
Cited by2 cases

This text of 868 So. 2d 1054 (White v. White) 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
White v. White, 868 So. 2d 1054, 2004 WL 557287 (Mich. Ct. App. 2004).

Opinion

868 So.2d 1054 (2004)

Deborah Stewart WHITE, Appellant,
v.
Douglas Bryans WHITE, Appellee.

No. 2003-CA-00171-COA.

Court of Appeals of Mississippi.

March 23, 2004.

*1055 Betsy E. Walker, Biloxi, attorney for appellant.

Harry M. Yoste, Gulfport, attorney for appellee.

Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.

LEE, J., for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Deborah Stewart White and Douglas Bryans White were married in May 1982, and had two children, Alayne and Ashley, who were age thirteen and age seventeen, respectively, at the time of the trial. Both Douglas and Deborah were college graduates, and, although Deborah did work consistently during the marriage, Douglas was the primary breadwinner for the family. A job transfer for Douglas caused the Whites to move from Georgia to Mississippi in 1998. Douglas left Deborah in December 1999, and filed for divorce *1056 in January 2000, on the grounds of irreconcilable differences. Deborah filed her answer on August 11, 2000, and counterclaimed for divorce on the grounds of adultery, habitual cruel and inhuman treatment, or, in the alternative, irreconcilable differences.

¶ 2. A temporary order was entered September 1, 2000, granting Deborah temporary custody of the children and spousal and child support from Douglas. A trial on the matter was held July 9, 2001, after which the chancellor awarded Deborah a divorce on the grounds of habitual cruel and inhuman treatment. The chancellor also awarded both parties joint legal custody, with primary physical custody awarded to Deborah. Douglas was ordered to pay lump sum alimony and child support. The chancellor also awarded Deborah fifty percent of each of Douglas's financial investments, including his retirement account.

¶ 3. Deborah filed a motion to reconsider on November 29, 2001, which was eventually denied by the chancellor. Aggrieved, Deborah now perfects her appeal to this Court asserting that the chancellor erred in the following ways: (1) by not specifically classifying the parties' property and assets as marital and non-marital and not setting out specific findings of facts and conclusions of law; (2) by not addressing the National Guard retirement and distributing it properly; (3) by granting the improper amount and type of alimony; (4) by not awarding her attorney's fees; (5) by not including the 2000 bonus Douglas received as marital property and equitably dividing between them; (6) by not granting her the sum of $990 that was withheld by Douglas from his support payments between April 15, 2001, until June 30, 2001; and (7) by not specifically ordering Douglas to obtain the type of life insurance which would allow the minor children to be made permanent beneficiaries. Finding merit to the second issue, we reverse and remand. In reviewing the remaining issues, we find them to be without merit.

STANDARD OF REVIEW

¶ 4. When reviewing the decisions of a chancellor, this Court applies a limited abuse of discretion standard of review. McNeil v. Hester, 753 So.2d 1057(¶ 21) (Miss.2000). The findings of the chancellor will not be disturbed "unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard." Id.

DISCUSSION OF ISSUES

I. DID THE CHANCELLOR ERR BY NOT SPECIFICALLY CLASSIFYING THE PARTIES' PROPERTY AND ASSETS AS MARITAL AND NON-MARITAL PROPERTY AND BY NOT SPECIFICALLY SETTING OUT SPECIFIC FINDINGS OF FACTS AND CONCLUSIONS OF LAW?

¶ 5. In her next issue, Deborah claims that the chancellor never made a division of the marital and non-marital assets as per required by Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). Deborah also contends that, although the chancellor did make specific rulings and give some justifications for its decision, the rulings were not sufficient to meet the Ferguson standard. However, Deborah does not argue that the property was inequitably divided, just that the chancellor committed reversible error in not enumerating the Ferguson standard. The Ferguson guidelines include:

(1) economic and domestic contributions by each party to the marriage,
(2) expenditures and disposal of the marital assets by each party,
*1057 (3) the market value and emotional value of the marital assets,
(4) the value of the nonmarital property,
(5) tax, economic, contractual, and legal consequences of the distribution,
(6) elimination of alimony and other future frictional contact between the parties,
(7) the income and earning capacity of each party, and
(8) any other relevant factor that should be considered in making an equitable distribution.

Id. at 928. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). In his order, the chancellor clearly articulated his rationale for the equitable division of the marital estate. The parties were married almost twenty years and neither argued that any of their assets should be considered non-marital property. Although the chancellor did not specifically describe the assets as marital, he implicitly did so in trying to equitably divide the assets. The chancellor addressed certain assets that Deborah and Douglas had acquired during their marriage, including a house, cars, retirement, stock options, and debt. We conclude that the chancellor's ruling on the issue on equitable division of the martial assets was within the court's authority and discretion to resolve such matters. An abuse of discretion or an application of a clearly erroneous legal standard has not been shown in this matter; thus, this issue is without merit.

II. DID THE CHANCELLOR ERR BY NOT CLASSIFYING THE NATIONAL GUARD RETIREMENT AS MARITAL PROPERTY AND DISTRIBUTING IT ACCORDINGLY?

¶ 6. In this issue, Deborah claims that Douglas' National Guard retirement should have been included as a marital asset in the chancellor's Ferguson analysis and, therefore, distributed equitably. In his ruling, the chancellor stated, "I do not recall any proof in the record or how many years he's been in the Guard or what the retirement, if any, is.... I don't think with the state of the record, I can make a ruling on that because there's nothing here." The chancellor further reiterated this, saying, "I don't have any idea how many years ... of overlapping marriage and guard time there is, how many year's he's got to retire if indeed he can retire. I have no idea of those figures." According to one of Douglas' exhibits, he had been in the National Guard for twenty-four years at the time of the trial.

¶ 7. Douglas argues that there was no evidence in the record concerning the retirement and that, since Deborah did not offer any proof on the issue or cross-examine Douglas about the retirement, the chancellor was correct in not classifying and distributing the retirement. Although that may be true, we find that it was incumbent upon Douglas to provide proof when submitting his financial disclosure form. Furthermore, we find that it was error for the chancellor not to request said information from Douglas before equitably dividing the parties' assets. It seems inequitable for Douglas to receive a benefit, the bulk of which was clearly accumulated during the marriage, and for Deborah to receive no benefit.

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