Faerber v. Faerber

150 So.3d 1000

Robert Edward FAERBER, Appellant/Cross–Appellee

v.April FAERBER, Appellee/Cross–Appellant.

No. 2013–CA–00295–COA.

Court of Appeals of Mississippi.

Nov. 18, 2014.

Robert D. Jones, Meridian, Elizabeth Rhae Randall Darsey, attorneys for appellant.

William B. Jacob, Joseph A. Kieronski Jr., Daniel P. Self Jr., Meridian, attorneys for appellee.

BEFORE IRVING, P.J., MAXWELL and JAMES, JJ.

Opinion

JAMES, J., for the Court:

¶ 1. Robert Faerber (Bobby) and April Faerber appear before this Court for the second appeal of the dissolution of their marriage. In the prior appeal, April asserted that the chancellor erred when he: failed to correctly apply the Ferguson factors in determining the equitable distribution of the parties' marital property; failed to consider the business, College Park Auto (CPA), as Bobby's separate property; failed to award April permanent alimony; failed to award April attorney's fees; and failed to correctly determine Bobby's adjusted gross income for purposes of child support. Finding error, this Court reversed and remanded the case.¹ Bobby now appeals from the chancellor's judgment after remand, raising the following issues: (1) whether the chancellor erred in his equitable division of CPA and the marital home; and (2) whether the chancellor erred when he set the payment schedule for equitable distribution and amended child support. April cross-appeals raising the following issue: whether the chancellor erred in failing to award her attorney's fees. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. April and Bobby were married on July 7, 1995. The couple separated on February 11, 2005; and on March 8, 2005, April filed a complaint for divorce in the Lauderdale County Chancery Court on the ground of uncondoned adultery. On July 5, 2005, the chancellor entered a judgment granting temporary relief. A trial was held on December 4–5, 2007. During the trial, Bobby admitted to engaging in three adulterous relationships during the marriage. On January 14, 2008, the chancellor granted April and Bobby a divorce on the ground of Bobby's uncondoned adultery, distributed the marital property, awarded April lump-sum alimony, and set child support.

¶ 3. April appealed, and this Court reversed the judgment and remanded the case to the trial court, finding that the chancellor erred in his application of the law and abused his discretion in the manner that he classified April's and Bobby's property, structured April's lump-sum alimony, and determined Bobby's adjusted gross income for purposes of child support.²

¶ 4. On March 31, 2010, the chancellor³ entered an order designating the following issues for adjudication: equitable distribution of marital property; alimony; April's request for attorney's fees; and child support. A trial was held on June 25–27, 2012, and November 27, 2012, during which the chancellor heard testimony from both parties. On January 16, 2013, the chancellor entered a memorandum opinion and corresponding judgment in which the chancellor set forth his findings of fact and conclusions of law.

A. Marital Property

¶ 5. The chancellor found that the total value of the marital property was $742,937.50, consisting of personal property, the value of the formal marital home, and the business CPA. As for personal property, the chancellor found that forty-nine items of personal property were marital property, with a combined value of $119,937.50.⁴ The chancellor awarded April $41,487.50 in personal property. In turn, the chancellor awarded Bobby personal property with a total value of $78,450.

¶ 6. The chancellor found that CPA was marital property subject to equitable distribution. April was awarded thirty-three and one-third percent of the increased value of CPA in the amount of $74,326.⁵ Bobby was awarded sixty-six and two-thirds percent of the increased value of CPA in the amount of $148,674.10. Finally, the chancellor found that the value of the former marital home was $325,000. April was awarded fifty percent of the value of the former marital home in the amount of $162,500. Thus, Bobby was ordered to pay April $181,326⁶ in equitable distribution. The chancellor ordered that Bobby distribute the money to April in three payments: $50,000 on June 1, 2013; $50,000 on September 1, 2013; and $81,326 on February 1, 2014.

B. Adjusted Child Support

¶ 7. During the 2007–2008 divorce proceedings, Bobby did not seek custody of the parties' two children. In the judgment entered on January 14, 2008, the chancellor ordered Bobby to pay $376 per month in child support, plus half the children's medical expenses, which was an additional $100 per month. This amounted to twenty-five and three-tenths percent of Bobby's reported self-employment income of $1,880 per month. However, we reversed, finding that the record did not substantially support the chancellor's child-support award in light of Mississippi Code Annotated section 43–19–101(3)(a)–(b) (Rev. 2004). Faerber, 13 So.3d at 864 ( ¶ 41). We further found that the chancellor erred when he “accepted Bobby's asserted monthly self-employment income reflected on his tax documents as $1,880 without considering the potential commingling of CPA's assets and expenses with personal assets and expenses, all of Bobby's income sources, and without considering the generally recognized test for determining self-employment income.” See id. at (¶ 43). On remand, the chancellor found that Bobby's monthly adjusted income, as of December 2007, was $5,291.10; thus, Bobby's monthly child-support obligation, as of December 2007, should have been $1,058. The total amount of child support paid by Bobby from February 2008 to December 2011 was $22,372.⁷ Based on the chancellor's corrected assessment on remand, Bobby should have paid a total of $49,726 in child support between February 2008 and December 2011. Thus, the chancellor found that Bobby owed $27,354 in amended child support. The chancellor ordered Bobby to pay April the amended child support in two equal installments of $13,677, to be paid on March 1, 2013, and on April 1, 2013.

C. Attorney's Fees

¶ 8. April requested that Bobby be ordered to pay her attorney's fees. The chancellor found that April incurred attorney's fees of $9,246.54 for the first trial, $6,154.44 for the first appeal, and $17,018.75 for the second trial, for a total of $32,419.73. However, the chancellor denied April's request, finding that April failed to demonstrate an inability to pay her attorney's fees.

¶ 9. On January 25, 2013, Bobby filed a motion for a new trial or to alter or amend the judgment. A hearing on Bobby's motion was held on February 11, 2013, during which Bobby argued that the chancellor failed to consider specific debts incurred after the parties' marriage when distributing the marital property and failed to consider the title and ownership of CPA when making the equitable distribution of the marital property. Bobby also argued that the chancellor's payment schedule for the amended child support and equitable distribution was unreasonable. On February 12, 2013, the chancellor entered a memorandum and order denying Bobby's motion for a new trial or to alter or amend the judgment.

¶ 10. Bobby appeals, and April cross-appeals. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 11. “This Court's scope of review in domestic-relations matters is strictly limited.”

Curry v. Frazier, 119 So.3d 362, 365 ( ¶ 8) (Miss.Ct.App.2013) (quoting Pritchard v. Pritchard, 99 So.3d 1174, 1177 ( ¶ 18) (Miss.Ct.App.2012)). “A chancellor's findings will not be disturbed when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard.” Id. (citation and internal quotation marks omitted).

DISCUSSION

DIRECT APPEAL

I. Whether the chancellor erred in his equitable division of CPA and the marital home.

¶ 12. Bobby asserts that the chancellor erred in his equitable distribution of the marital property. Marital property has been defined as “any and all property acquired or accumulated during the marriage.” Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). For the purposes of divorce, “[a]ssets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor.” Id. “We assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic[,] or otherwise [,] are of equal value.” Id. The Mississippi Supreme Court's decision in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), sets forth the framework for property designation and distribution.

In light of [Ferguson ] and its progeny, when dividing marital property, “chancellors are to (1) classify the parties' assets as marital or separate; (2) determine the value of those assets; (3) divide the marital estate equitably based upon the factors set forth in Ferguson; and (4) consider the appropriateness of alimony if either party is left with a deficiency.”

Roberts v. Roberts, 135 So.3d 935, 939–40 ( ¶ 13) (Miss.Ct.App.2014) (quoting Dickerson v. Dickerson, 34 So.3d 637, 643–44 ( ¶ 23) (Miss.Ct.App.2010)). The factors set forth in Ferguson are:

(1) contribution to the accumulation of property, (2) dissipation of assets, (3) the market or emotional value of assets subject to distribution, (4) the value of assets not subject to distribution, (5) the tax and economic consequences of the distribution, (6) the extent to which property division may eliminate the need for alimony, (7) the financial security needs of the parties, and (8) any other factor that in equity should be considered.

Id. (quoting Dickerson, 34 So.3d at 644 ( ¶ 23)). Finally, “equitable distribution does not mean equal distribution.” Brabham v. Brabham, 950 So.2d 1098, 1100 ( ¶ 7) (Miss.Ct.App.2007) (citing Chamblee v. Chamblee, 637 So.2d 850, 863–64 (Miss.1994) ).

A. CPA

¶ 13. Bobby does not dispute that the increase in value of CPA...