Brennan v. Brennan
| Decision Date | 23 June 1994 |
| Docket Number | No. 92-CA-01077,92-CA-01077 |
| Citation | 638 So.2d 1320 |
| Parties | Terrilee BRENNAN v. James M. BRENNAN. |
| Court | Mississippi Supreme Court |
Dempsey M. Levi, Levi & Denham, Ocean Springs, for appellant.
Herbert J. Stelly, Gulfport, for appellee.
Before PRATHER, P.J., and PITTMAN and SMITH, JJ.
STATEMENT OF THE CASE
Terrilee Brennan, hereinafter "Terri", appeals from a final judgment of divorce entered on September 30, 1992, by the Chancery Court of Harrison County awarding, pursuant to a consent agreement signed by both parties, a divorce absolute to Terri and her husband, James M. Brennan, hereinafter "James", on the ground of irreconcilable differences.
The chancellor awarded Terri continuing alimony in the amount of $500.00 per month and awarded, as lump sum alimony, the sum of $40,000.00, which represented her half share of the 401K Retirement Fund being generated by a deferred compensation plan with James' employer, the IBM Company. This sum was to be distributed when James reached a certain age and was not presently a sum of money payable to Terri without substantial discount.
On appeal Terri alleges the following as error committed by the lower court: (1) the amount of continuing or periodic alimony was inadequate; (2) the chancellor should have awarded, as lump sum alimony, a portion of husband's vested core retirement with IBM and 1/2 of a savings account identified as the Merrill Lynch CMA account; (3) the chancellor was manifestly wrong when he failed to require husband to pay medical and dental expenses and to provide medical and dental insurance coverage for her and the couples' three minor children and to also provide life insurance on himself and designate the children as sole beneficiaries; (4) the chancellor was manifestly wrong when he specified that the Templeton College Fund was to be used for the education of the three children and that upon exhaustion of those funds the children's college expenses were to be divided equally between the parties; and (5) the chancellor was manifestly wrong when he failed to order the partitioning of two (2) lots located in the State of Louisiana and owned jointly by the parties.
Finding that the lower court abused its judicial discretion in the award of alimony and child support, we reverse and remand.
James and Terri were married on January 26, 1968; they separated on September 18, 1991. Throughout the marriage, James was employed by IBM corporation and Terri worked both inside and outside the home. Three (3) children were born of this marriage: twin daughters, Colleen Meredith Brennan and Stephanie Lee Brennan who were born on February 14, 1975, and a son, James Matthew Brennan, who was born on October 12, 1976. When this case was tried on July 29-30, 1992, the couple had been married twenty-four and one-half (24 1/2) years. At the time of the divorce on September 30, 1992, Colleen and Stephanie were seventeen (17) years of age and James was sixteen (16).
Prior to her marriage to James, Terri attended college for a year and a half where she studied liberal arts. After the marriage, Terri was primarily a homemaker and mother until she opened a needle art business in 1984. According to the testimony of James, the value of the business and its current inventory was $75,000.00. According to Terri, she had been offered "$6,000.00 lock stock and barrel." She appraised the business and its inventory at approximately $21,000.00.
During the couple's first year of marriage, James began working as a salesman for IBM Corporation. His income gradually increased over the years, and the Brennans enjoyed a healthy and prosperous lifestyle. James had a gross income of $75,700.00 in 1989, $102,000.00 in 1990, and $104,000.00 in 1991.
James earned his income by virtue of an arrangement whereby 65% of his income was derived from salary and 35% came from sales commissions. Effective March of 1992, the arrangement by which James received his compensation changed. Under the new arrangement, James received 90% by fixed salary and 10% via commissions. While James contends this effectively reduced his monthly income from $8,712.00 to $4,155.00, the proof suggests otherwise. James argued that his earning potential had been materially reduced; however, James had earned $57,000.00 as of July 15, 1992, a salary for one half the year.
James and Terri owned, as joint tenants, various stocks and bonds as well as a marital home in Gulfport worth over $200,000.00. They also owned two lots in the State of Louisiana, one of which was clouded and encumbered by a tax lien.
On September 24, 1991, James filed a complaint for divorce on the ground of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Terri answered and counterclaimed for divorce on October 9, 1991.
On July 7, 1992, James and Terri signed and filed in the lower court a "Consent Agreement" whereby they mutually consented and agreed to (1) a divorce on the ground of irreconcilable differences; (2) sell the marital home, pay off the outstanding mortgage, reimburse Terri for the cost of any improvements, and divide the proceeds equally; (3) joint legal custody of the three (3) children with Terri to have paramount care, custody and control, and James to have reasonable visitation rights; and (4) the payment of child support with the amount to be determined by the court.
The parties submitted the following specific items to the chancellor for determination: the amount of child support; the division of real and personal property including stocks, bonds, savings, 401K deferred compensation, core retirement, IRA accounts, needle art shop, children's college fund and college education, automobiles, furniture and other household items; Ebel real estate; payment of outstanding liabilities; furnishings based upon a submitted list; private school for the children; spousal support in the form of continuing and lump sum alimony; and attorneys fees.
Following a trial on the disputed issues, the chancellor rendered a written opinion on August 7, 1992, ordering James to pay to Terri periodic alimony in the monthly amount of $500.00, child support in the monthly amount of $1,000.00, and attorneys fees in the amount of $1,000.00.
In addition, Terri was awarded, as lump sum alimony, $40,000.00, which represented her share of James' 401K retirement fund, a savings generated by deferred compensation of a portion of James' salary from IBM.
On August 17, 1992, Terri filed a "Motion To Amend" whereby she requested the lower court to either amend its findings or make additional findings with respect to, inter alia, the Merrill Lynch CMA savings account, James' future core retirement with IBM, and medical expenses/insurance. In addition, Terri sought clarification of the findings concerning the children's college education. Terri also claimed the amount of periodic alimony was grossly inadequate and sought modification from $500.00 a month to $2500.00 per month. An order overruling Terri's post-trial motion to amend was entered on September 15, 1992, when James and his lawyer announced ready to proceed in opposition while Terri and her attorney failed to appear. A six page "Final Judgment" was subsequently issued on September 30, 1992.
The five issues raised by Terri on appeal deal generally with (1) the inadequacy of periodic alimony; (2) the inadequacy of lump sum alimony; (3) the failure of the chancellor to require husband to provide medical, dental, and life insurance as a part and parcel of the care and maintenance of the minor children; (4) college expenses; and (5) the failure to order partitioning of certain real property located in the State of Louisiana.
While Terri claims the lower court was manifestly wrong in its decisions on some issues and erroneously failed to address other issues before the court, James claims the chancellor rendered a decision on all issues submitted to it by stipulation of the parties and that the lower court's judgment is not manifestly wrong.
We find only the issues regarding alimony and child support meriting discussion.
Our scope of review in domestic relations matters is limited by our familiar substantial evidence/manifest error rule. Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990).
"This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). See also Faries v. Faries, 607 So.2d 1204, 1208 (Miss.1992).
In other words, "[o]n appeal [we are] required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong." Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). See also Dillon v. Dillon, 498 So.2d 328, 329 (Miss.1986). This is particularly true "in the areas of divorce and child support." Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989). The word "manifest", as defined in this context, means "unmistakable, clear, plain, or indisputable." Black's Law Dictionary 963 (6th ed. 1990).
The chancellor awarded to Terri periodic or continuing alimony in the amount of $500.00 per month which Terri claims on appeal is inadequate.
Terri does not contend she is now destitute or relegated to public assistance. However, Terri does assert that because she has no income from any other source, she has been compelled to go from a prosperous financial state to one of dependence upon the timely payment of alimony and child support by James. According to Terri, James is in a financial position which would support an increased award of alimony and such an increase would not be unduly burdensome or prevent him from leading a normal lifestyle.
The right to an award of periodic alimony flows from the duty of the husband to support his wife. Weiss v. Weiss, 579 So.2d 539 (Miss....
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