Bresnahan v. Bresnahan, 2000-CA-00823-SCT.

• Decision Date: 02 May 2002
• Docket Number: No. 2000-CA-00823-SCT.,2000-CA-00823-SCT.
• Citation: 818 So.2d 1113
• Parties: Gloria (Gigi) Wright BRESNAHAN v. Robert James BRESNAHAN.
• Court: Mississippi Supreme Court

818 So.2d 1113

Gloria (Gigi) Wright BRESNAHAN v. Robert James BRESNAHAN.

No. 2000-CA-00823-SCT.

Supreme Court of Mississippi.

May 2, 2002.

D. Elizabeth Featherston, Brandon, attorney for appellant.

Robert D. Jones, Meridian, attorney for appellee.

Before McRAE, P.J., EASLEY and GRAVES, JJ.

McRAE, P.J., for the Court.

¶ 1. Robert (Bob) James Bresnahan and Gloria (Gigi) Wright Bresnahan were granted a divorce on the grounds of irreconcilable differences, and the chancellor was to decide how the parties' assets should be distributed. The trial judge awarded Mr. Bresnahan fifty-five percent of what he determined to be the marital estate and ordered Mrs. Bresnahan to pay child support amounting to thirty-eight percent of her monthly income. Mrs. Bresnahan appeals and raises numerous allegations of error, most of which stem from the chancellor's determination and division of assets.

¶ 2. The judgment requiring Mrs. Bresnahan to pay child support is upheld. The chancellor did not abuse his discretion in determining what constituted marital assets and how those assets were to be distributed. The chancellor did not err by his refusal of a continuance. Finally, Mrs. Bresnahan should not be required to ask Mr. Bresnahan's permission before having overnight guests in the marital home. We affirm the chancellor's decisions as to these issues, with the exception of the last, which we reverse and render.

FACTS

¶ 3. The parties were married in July of 1973. Mr. Bresnahan had recently graduated from law school and started his own practice. He has always been a sole practitioner and was, for many years, a prosecuting attorney for the City of Meridian. Mrs. Bresnahan, who did not graduate from college, worked in her husband's office for the first year of their marriage. She took about eighteen months off after their daughter was born and stayed home six or seven years after the couple's second child, who is now in college, was born. Mrs. Bresnahan provided health insurance for her family by working as a secretary during the rest of the marriage. She was laid off in February 1999 and was looking for new employment at the time of trial.

¶ 4. Mrs. Bresnahan filed for divorce on December 3, 1998. The Bresnahans agreed to an Amended Consent of Divorce on the Grounds of Irreconcilable Differences, in which Mr. Bresnahan acquired custody of the couple's son and Mrs. Bresnahan waived any right to alimony. The chancellor issued a judgment of divorce granting a divorce based on irreconcilable differences, separating marital assets from non-marital assets, effecting an equitable distribution of the marital assets and requiring Mrs. Bresnahan to pay $250 per month for her son's college education, support and maintenance and $154 per month for medical insurance for her son.

¶ 5. Gigi Bresnahan appeals and raises the following issues:

I. Whether the chancellor abused his discretion in failing to grant a continuance where the defendant failed to produce financial records in a timely manner; failed to produce complete records; and ran his earnings and financial affairs through a maze of accounts, which deprived plaintiff of the opportunity to ascertain and present evidence concerning his earnings and earning capacity and disposition of a substantial sum of money during the separation of the parties.

II. Whether the chancellor erred in making an equitable division of the property between the parties by:

A) Improperly excluding two parcels of real estate acquired during the marriage, based upon the husband's uncorroborated assertion that he had used inherited funds as the source of down payments.

B) Improperly refusing to charge the husband with any portion of the funds, admittedly at least $111,000, which the husband had spent following the separation of the parties.

C) In otherwise failing to properly apply the criteria for equitable distribution.

III. Whether the chancellor erred in using outdated appraisals of jewelry that were for the full retail or replacement cost.

IV. Whether the chancellor abused his discretion in attaching conditions to the wife's temporary use of the marital home, requiring her to obtain written consent from the husband to rent or to have any unrelated male spend the night in any portion of the home.

V. Whether the chancellor abused his discretion in awarding child support amounting to 38% of the wife's adjusted gross income.

DISCUSSION

I. Whether the chancellor abused his discretion in failing to grant a continuance where the defendant failed to produce financial records in a timely manner; failed to produce complete records; and ran his earnings and financial affairs through a maze of accounts, which deprived plaintiff of the opportunity to ascertain and present evidence concerning his earnings and earning capacity and disposition of a substantial sum of money during the separation of the parties.

¶ 6. "The decision to grant or deny a continuance is within the sound discretion of the trial court...." Owens v. Thomae, 759 So.2d 1117, 1120 (Miss.1999); Red Enters., Inc. v. Peashooter, Inc., 455 So.2d 793, 796 (Miss.1984). Although Mr. Bresnahan was slow in providing his financial records, he did comply with the court's Opinion/Order of October 15, 1999. Both parties addressed this issue in their briefs, and as Mr. Bresnahan did come forward with the documents in question, we do not find the length of discovery to be a relevant reason for the chancellor to have granted a continuance. If Mrs. Bresnahan really believed that Mr. Bresnahan was not producing these records as a means to delay or obstruct the proceedings, then she should have requested a proper hearing before the chancellor when no documents were produced after she filed her second motion to compel. She could then have filed a motion for contempt when Mr. Bresnahan failed to either provide the documents or give an objection to providing them. Had Mrs. Bresnahan gone through the proper channels in the first place, she would have gotten all of the requested discovery materials in a more timely fashion and had plenty of time to review them before trial. Therefore, we do not find the chancellor's failure to grant a continuance to be erroneous.

II. Whether the chancellor erred in making an equitable division of the property between the parties by:

A) Improperly excluding two parcels of real estate acquired during the marriage, based upon the husband's uncorroborated assertion that he had used inherited funds as the source of down payments.

¶ 7. The Bresnahans lived in a house that Bob inherited when his parents died. They also had three parcels of rental property, all of which were bought after the couple married. One rental house was titled to both Bob and Gigi. The other two were titled in only Bob's name, and he claimed to have purchased them with inherited funds, thus making them non-marital assets.

¶ 8. It is uncontroverted that the two rental houses in question were bought with non-marital assets (Bob's inherited funds). The issue is whether income from the houses was co-mingled with other assets so as to make the income, and thus the houses, marital property. Gigi cites Tillman v. Tillman, 716 So.2d 1090 (Miss. 1998) and Johnson v. Johnson, 650 So.2d 1281 (Miss.1994) in which non-marital property (inheritance) became a marital asset because it was used to pay normal marital expenses and became inseparable from the couples' joint income and other marital assets. In this case, there is no evidence that Bob paid any of the family's expenses out of the Bresnahan Properties' account, although he did put the rent monies received from the non-marital properties into an account which also held income from the marital properties. He paid for improvements and upkeep on all of the properties out of this account. This comingling of rent from the various rental properties does not rise to the level of commingling in Tillman or Johnson. Therefore, the chancellor's decision to exclude these two parcels of real estate from the marital property subject to equitable division was not in error.

B) Improperly refusing to charge the husband with any portion of the funds, admittedly at least $111,000, which the husband had spent following the separation of the parties.

¶ 9. In Ferguson v. Ferguson, 639 So.2d 921, 928-29 (Miss.1994), this Court determined several factors to be assessed in making an equitable division of marital property. One of these factors is "[t]he 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." The Bresnahans had a joint investment account, the balance of which fluctuated according to the stock market. This account contained $ 91,062.07 at the time of the separation and had been emptied and closed as of the date of trial. In less than a year, Bob spent approximately $115,346.66 from this account. It is uncontested that Bob disposed of these funds after the parties separated. Gigi claims that at least some of these funds should have been credited against her husband's share of marital property subject to equitable distribution. The chancellor disagreed because he did not think Bob's expenditures were "wasteful."

¶ 10. Bob testified at the temporary hearing that this particular account was created as a place to save money for the payment of income taxes, the children's college costs and sometimes business expenses. Bob also explained the purpose for which each payment out of the account was made. Both the chancellor and Gigi had financial information and bank statements for this account. Gigi's argument on this issue is not supported by authority, either through evidence or case law; and therefore, we do not consider it. Bower v. Bower, 758 So.2d 405, 415 (Miss.2000)(citing Hankins v. Hankins, 729 So.2d 1283, 1286 (Miss.1999)). We, therefore, uphold the finding of the chancellor with regard to the money from this...