Ali v. Ali, 2015–CA–01246–COA

• Decision Date: 13 June 2017
• Docket Number: NO. 2015–CA–01246–COA,2015–CA–01246–COA
• Parties: Ronnie ALI, Appellant v. Amy Kaye Townsend ALI, Appellee
• Court: Mississippi Court of Appeals

232 So.3d 770

Ronnie ALI, Appellant

v.Amy Kaye Townsend ALI, Appellee

NO. 2015–CA–01246–COA

Court of Appeals of Mississippi.

June 13, 2017

ATTORNEY FOR APPELLANT: DEAN HOLLEMAN

ATTORNEYS FOR APPELLEE: EARL L. DENHAM PHILLIP LANE NORWOOD MATTHEW PAUL PAVLOV

BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.

FAIR, J., FOR THE COURT:

¶ 1. Dr. Ronnie Ali, 49, and nurse practitioner Amy Ali, 27, were married in 2003 and had a child together a few months later. They separated after almost seven years of marriage, and Amy filed for divorce.

¶ 2. Over the next several years they filed more than two hundred pleadings, with Amy filing the lion's share. The trial was bifurcated due to complex financial issues, especially those relating to several "urgent care" medical clinics owned by the couple. On March 7, 2013, Amy was granted a divorce on habitual cruel and inhuman treatment grounds. The remaining issues were tried over twelve days in February and March of 2014. A year later the chancellor entered a detailed twenty-six-page decision, dividing the parties' property and awarding Amy custody of the minor child, child support, and alimony.

¶ 3. Ronnie states in his brief that though he feels the chancellor erred in the equitable distribution, he "chooses" not to challenge it. Visitation, child support, alimony, attorney's fees, and life insurance remain at issue on appeal. We conclude that the chancellor applied the correct legal standards and acted within his discretion in awarding child support, alimony, and attorney's fees. Those awards must be affirmed. We remand, however, on the issues of visitation and insurance.

STANDARD OF REVIEW

¶ 4. "When [an appellate court] reviews a chancellor's decision in a case involving divorce and all related issues, [the court's] scope of review is limited by the substantial evidence/manifest error rule." Yelverton v. Yelverton , 961 So.2d 19, 24 (¶ 6) (Miss. 2007). A chancellor's factual findings will not be disturbed unless manifestly wrong or clearly erroneous, or an erroneous legal standard was applied. Carambat v. Carambat , 72 So.3d 505, 510–11 (¶ 24) (Miss. 2011). As long as substantial evidence supports the chancellor's findings, an appellate court is without authority to disturb them, even if it would have found otherwise as an original matter. Joel v. Joel , 43 So.3d 424, 429 (¶ 14) (Miss. 2010). Additionally, if the chancellor has made no specific findings of fact, we generally "proceed on the assumption that he resolved all such fact issues in favor of the appellee." Ferrara v. Walters , 919 So.2d 876, 881 (¶ 8) (Miss. 2005) (citation omitted). Questions of law, on the other hand, are reviewed de novo. Irving v. Irving , 67 So.3d 776, 778 (¶ 11) (Miss. 2011).

DISCUSSION

1. Visitation

¶ 5. The chancellor's final judgment contained no express order for permanent holiday or summer visitation, though it at times appears to presuppose they had been awarded.¹ On appeal, Ronnie contends this was error; and Amy concedes that it appears to be an oversight that should be clarified on remand to the chancery court. As this issue is conceded, we remand to the chancery court to clarify the visitation order.

2. Alimony

¶ 6. Ronnie submits in his brief that the periodic alimony award, $5,500 per month, is not appropriate in this case because "there was absolutely no disparity in Amy's financial position as compared to Ronnie's horrific financial position" after the equitable division. While he does not directly challenge the division, he nevertheless urges that, in mathematical terms, Amy received more value in the property division (approximately $390,000) than the net value of the marital estate (approximately $280,000), and significantly more than his net deficit after property division, attorney's fees, and litigation expenses (which he puts at $417,000). Ronnie also points to Amy's income of $6,000 per month as a nurse practitioner prior to the marriage, as well as income she could expect as owner of an urgent care clinic awarded to her in equitable division. Ronnie submits that Amy is capable of supporting herself.

¶ 7. The chancery court has broad discretion in deciding whether to award alimony and in what amount. Pearson v. Pearson , 761 So.2d 157, 165 (¶ 25) (Miss. 2000). "[Appellate courts] will not disturb the award on appeal unless it is found to be against the overwhelming weight of the evidence or manifestly in error." Id.

¶ 8. Ronnie acknowledges that the issues of property division and alimony are "intertwined." McKissack v. McKissack , 45 So.3d 716, 723 (¶ 41) (Miss. Ct. App. 2010). "All property division, lump sum or periodic alimony payment, and mutual obligations for child support should be considered together. Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede." Ferguson v. Ferguson , 639 So.2d 921, 929 (Miss. 1994) (citation and internal quotation marks omitted).

¶ 9. In the equitable division, Amy's award mostly consisted of the marital home (approximately $187,000 in equity), household furnishings, three vehicles ($27,000), about $18,000 in checking and savings accounts, a $28,000 IRA, and one of the urgent care clinics owned by the parties ($111,000). Ronnie received the other functioning urgent care clinic, another one that was apparently defunct, about $62,000 in gold coins and savings accounts, his personal corporation ($32,000), and other personal assets—for a grand total of $266,000. Ronnie's claims of a large net deficit in total awards are premised on his comparing his distribution of the marital assets with the marital debt ($376,500, of which $358,000 was delinquent taxes and penalties the chancellor attributed to Ronnie's misconduct) and litigation expenses, including his and the half of Amy's attorney's fees he was ordered to pay.

¶ 10. The marital estate was disproportionately small compared to Ronnie's income. His adjusted gross income on his Uniform Chancery Court Rule 8.05 financial statement was $41,463.00 per month after deducting federal and state income taxes of $19,668.76 per month (32.17%). At trial, Ronnie boasted he could earn $900,000 per year when he needed the money. Amy, on the other hand, had worked little since the marriage, dividing her time between caring for the child and managing the parties' urgent care clinics. The clinics were not particularly valuable or profitable, despite the energy and money the parties had invested in them. The chancellor noted that he would have preferred to award Amy both of the remaining clinics, but Ronnie had entangled one with another business owned by his family. The chancellor also found that Ronnie had systematically violated "court orders regarding child and spousal support, payment of the mortgage, taxes, and insurance associated with the marital home as well as the transition of clinic management to [Amy] ... [and] the use of clinic funds without [Amy's] approval or court order," which had resulted in Amy's filing a plethora of contempt pleadings.

¶ 11. Following a detailed discussion of the Armstrong² factors, the chancellor awarded Amy $5,500 per month in periodic alimony. On appeal, Ronnie contends that the chancellor erred in finding a deficit following the property division and failed to consider Amy's earning potential and Ronnie's reasonable expenses.

¶ 12. The question of a deficit is "with respect to having sufficient resources and assets to meet ... needs and living expenses." Layton v. Layton , 181 So.3d 275, 282 (¶ 17) (Miss. Ct. App. 2015) (quoting Jackson v. Jackson , 114 So.3d 768, 777 (¶ 22) (Miss. Ct. App. 2013) ). As the Mississippi Supreme Court has said, "a financially independent spouse may be required to support the financially dependent spouse in the manner in which the dependent spouse was supported during the marriage, subject to a material change in circumstances." Rogillio v. Rogillio , 57 So.3d 1246, 1250 (¶ 11) (Miss. 2011).

¶ 13. Ronnie undoubtedly supported Amy during the marriage, but he contends on appeal that the chancellor failed to consider Amy's ability to earn income as a nurse practitioner, as well as the earnings from the urgent care clinic she was awarded. But, in fact, the chancellor addressed both directly in his opinion and judgment; he concluded that Amy's prospects were uncertain after a long hiatus from paid employment, and that she "will be left with a significant deficit even if she were to eventually obtain employment as a nurse practitioner."

¶ 14. We also find no merit to Ronnie's claims that there was no disparity following the property division—although it is true that Amy received much of the marital property, the marital estate was illiquid, relatively small, and could not produce income sufficient to support Amy as she was supported during the marriage. We are likewise unimpressed with Ronnie's contentions regarding the chancellor's findings of his misconduct and dissipation of marital assets; his argument is perfunctory and his contentions are often disingenuous or contradicted by other evidence in the record. As an example, Ronnie argues that the chancellor erred in finding that he had systematically violated the temporary order to pay the mortgage on the marital home by pointing out that he did, in fact, pay the mortgage—but it would be more accurate to say that Ronnie eventually paid the mortgage, as many of the payments were late. Similarly, Ronnie claims that the delinquent taxes were a result of an error by his preparer, but the only record evidence he cites in support of this claim is testimony from a different accountant that the taxes were done incorrectly. Ronnie fails to mention that his accountant from the relevant time also testified at trial—that Ronnie had instructed her to stop making the tax payments, that she had resisted, and that she had considered herself terminated following the disagreement. Finally,...