Myrick v. Myrick

186 So.3d 429

John Kendall MYRICK, Jr., Appellant

v.Dee Bunnell MYRICK, Appellee.

No. 2014–CA–00701–COA.

Court of Appeals of Mississippi.

Feb. 23, 2016.

Nancy E. Steen, Hattiesburg, attorney for appellant.

Allen Flowers, Hattiesburg, attorney for appellee.

EN BANC.

BARNES, J., for the Court:

¶ 1. In this irreconcilable-differences divorce case, we must determine whether the chancellor erred in dividing the marital property and awarding alimony to the wife. Finding error with the chancellor's award of periodic alimony to the wife, we affirm in part and reverse and remand in part.

PROCEDURAL HISTORY

¶ 2. John Kendall Myrick (Ken) and Dee Bunnell Myrick were married in 1981. The couple had three children. On May 29, 2013, Dee filed for divorce in the Perry County Chancery Court. The chancellor entered a temporary order on November 14, 2013, in which he ordered Ken to pay Dee $800 per month. In exchange, Ken was relieved of his obligation to pay the monthly mortgage payment on the marital home.

¶ 3. Ultimately, the parties agreed to an irreconcilable-differences divorce, and submitted the issues of property division and attorney's fees to the chancellor. After a trial, the chancellor awarded Dee the marital residence, twelve acres of land, her entire 401(k) account, and various personal items. Ken was ordered to pay Dee the amount of $72,000 in lump-sum alimony at the rate of $600 per month for ten years. The chancellor explained "[t]his money [was] to assist Dee in paying off marital debts, and is based on need."

¶ 4. Both parties subsequently filed motions to reconsider. Ken moved to reconsider the alimony award, arguing only that the lump sum was "excessive, and should be reduced or vacated," but not that it was beyond the scope of issues submitted for decision. The chancellor entered an amended order in which he corrected several clerical errors, changed the nature of the $600–per–month alimony payment from lump-sum to periodic alimony (without a termination date or reason), and ordered Ken to maintain a life-insurance policy in the amount of $72,000 with Dee as the beneficiary.¹

¶ 5. Ken now appeals, asserting that the chancellor erred in dividing the marital property and awarding alimony to Dee.

FACTS

¶ 6. During the marriage, Ken was employed at Camp Shelby in Hattiesburg, Mississippi, from 1981 through 2005. Ken retired as a result of a service-related disability and began receiving $1,671 per month. Ken worked for another company but his disability interfered with his ability to retain employment. Ken was deemed one hundred percent disabled in 2007. Ken receives disability payments from the Department of Veterans Affairs (VA) in the amount of $3,017.50 per month and Social Security disability payments of $552 per month. Including his retirement, Social Security disability, and VA benefits, Ken's monthly income was $5,241.50. Ken is only taxed on the retirement income, which amounts to $1,700 annually.

¶ 7. Dee was employed by the United States Postal Service in Hattiesburg. Her net salary was $3,887.73 per month. As a mail carrier, Dee also receives a monthly stipend of approximately $1,000 for wear and tear on her vehicle. Dee had a retirement account containing $167,000 but had borrowed $43,000 from the account in 2012. At the time of trial, the balance of the loan was $32,000.

¶ 8. Although neither party obtained an appraisal on the marital home, they agreed on its value of $184,000. The home was located on twenty acres, which Dee's father had gifted the couple. There was testimony that they owed $150,518.62 on the home, leaving $33,481.38 in equity. Dee testified that the home needed substantial repairs. The couple also owned an additional twelve acres of land that Dee's father had given the couple several years prior to their divorce. Dee estimated its value at $15,600.

¶ 9. The chancellor awarded Dee the following: the marital home and surrounding twenty acres; the twelve acres from her father; her retirement account; the household furniture; the washer and dryer; the lawn mower; and the tractor. The chancellor ordered Dee to be responsible for the mortgage on the marital home, as well as any insurance, taxes, and repairs. As previously stated, the chancellor first awarded Dee $600 per month in lump-sum alimony for ten years, but later amended the judgment to change the nature of the $600–per–month alimony payment from lump sum to periodic.

STANDARD OF REVIEW

¶ 10. This Court has a limited standard of review in domestic-relations cases, and "[u]nder the standard of review utilized to review a [chancellor]'s findings of fact, particularly in the areas of divorce, alimony[,] and child support, [the appellate court] will not overturn the [chancellor's decision] on appeal unless [his] findings were manifestly wrong." In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss.2010). "The distribution of marital assets in a divorce will be affirmed if ‘it is supported by substantial credible evidence.’ " Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss.2009) (quoting Bowen v. Bowen, 982 So.2d 385, 393–94 (¶ 32) (Miss.2008) ). "However, the [appellate court] will not hesitate to reverse if it finds the chancellor's decision is manifestly wrong, or that the court applied an erroneous legal standard." Id. (quoting Owen v. Owen, 928 So.2d 156, 160 (¶ 11) (Miss.2006) ).

DISCUSSION

I. Division of Marital Property

¶ 11. Ken argues the chancellor failed to make an equitable division of the marital property. First, we note the chancellor classified the parties' assets and divided the marital estate by following the factors outlined in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). The Ferguson factors are as follows:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:

a. Direct or indirect economic contribution to the acquisition of the property;

b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties[,] and duration of the marriage; and

c. Contribution to the education, training[,] or other accomplishment bearing on the earning power of the spouse accumulating the assets.

2. The degree to which each spouse has expended, withdrawn[,] or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree[,] or otherwise.

3. The market value and the emotional value of the assets subject to distribution.

4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;

5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;

6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;

7. The needs of the parties for financial security with due regard to the combination of assets, income[,] and earning capacity; and,

8. Any other factor which in equity should be considered.

Id.

¶ 12. The chancellor determined that both Ken and Dee contributed to the accumulation of property, as well as the parties' debts. The chancellor found no evidence of waste by either party. The chancellor found Dee had an emotional attachment to the marital home as well as the land surrounding it and the additional twelve acres. The chancellor noted the condition of the house, stating it might "not have much, if any, equity given its current state of deterioration." The chancellor indicated neither party produced evidence of any nonmarital assets to be considered or of any tax consequences resulting from the property division.

¶ 13. The chancellor noted Ken's net monthly income of $5,000 and Dee's of $3,800. The chancellor considered that Ken was disabled but his income was not affected by his health, whereas Dee's health issues would ultimately impact her ability to work in the future.

¶ 14. Although Dee was awarded the marital home, the twelve acres, and her retirement account, Dee was held responsible for the mortgage indebtedness on the home as well as taxes, insurance, and repair costs.

¶ 15. We find substantial, credible evidence supports the chancellor's division of marital property; thus, this issue is without merit.

II. Periodic Alimony

¶ 16. Next, Ken argues the chancellor erred in awarding Dee $600 per month in periodic alimony, primarily because this issue was not included in the parties' signed consent, which is necessary in an irreconcilable-differences divorce under Mississippi Code Annotated section 93–5–2(3) (Rev.2013), and second, because it was not supported by the facts. Ken explains that the chancellor initially awarded lump-sum alimony to Dee in the amount of $72,000 to be paid at the rate of $600 per month for ten years. Ken claims that in that original decision, "the chancellor compounded the inequity of the property distribution by adding" this lump-sum award. However, in the final amended judgment, unrequested by either party's motion for reconsideration, the chancellor converted the lump-sum alimony award to permanent periodic alimony. Ken correctly asserts that this award of periodic alimony is not proper in the irreconcilable-differences divorce where the parties did not consent to it.

¶ 17. Mississippi statutory law specifically lays out the procedure for a divorce on the ground of irreconcilable differences. Parties may consent to the divorce and submit to the trial court any unresolved issues:

If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit

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