Buckley v. Buckley, 2000-CA-02057-COA.

• Decision Date: 07 May 2002
• Docket Number: No. 2000-CA-02057-COA.,2000-CA-02057-COA.
• Citation: 815 So.2d 1260
• Parties: Mary Ruth BUCKLEY, Appellant v. Mark Rayborn BUCKLEY, Appellee.
• Court: Mississippi Court of Appeals

815 So.2d 1260

Mary Ruth BUCKLEY, Appellant v. Mark Rayborn BUCKLEY, Appellee.

No. 2000-CA-02057-COA.

Court of Appeals of Mississippi.

May 7, 2002.

Thomas L. Tullos, Bay Springs, attorney for appellant.

Before SOUTHWICK, P.J., LEE, and CHANDLER, JJ.

SOUTHWICK, P.J., for the Court.

¶ 1. Mary Ruth Buckley and Mark Rayborn Buckley were granted a divorce based upon irreconcilable differences. Mrs. Buckley appeals, arguing that the chancellor erred by not awarding periodic alimony. We agree. Therefore the cause is reversed and remanded.

STATEMENT OF FACTS

¶ 2. Mark Rayborn Buckley and Mary Ruth Buckley were married in November 1979. Two children were born to them. Mrs. Buckley sought a divorce in October 1999 based on her husband's alleged adultery or alternatively based on irreconcilable differences. In November 1999, the chancery court entered a temporary order that awarded custody and control of the two children to Mrs. Buckley and outlined the visitation rights granted to Mr. Buckley. Mrs. Buckley was awarded $480 per month in child support and $245 in periodic alimony.

¶ 3. A trial was held on May 15, 2000. Shortly before it began, the chancellor announced that the parties had agreed to a divorce on the grounds of irreconcilable differences. What was for decision by the chancellor would be equitable distribution of all property and debts, alimony, and child support, including medical insurance coverage. ¶ 4. During the trial, the parties agreed to sell the real property, satisfy the debts attached to those properties from the proceeds, and then have the chancellor divide the remainder between them. The parties also agreed that child support should be fixed at $480 per month and that the children would be covered by the state medical insurance program known as "CHIPS" with any amount not covered paid equally by both parties. The parties agreed on the distribution of all personal property and settled on a visitation schedule. The parties stipulated as to the amount of attorney's fees incurred by Mrs. Buckley. What was still unresolved was alimony and the payment of the attorney's fees.

¶ 5. At the conclusion of Mrs. Buckley's case, Mr. Buckley made a motion to dismiss the claim for alimony and for attorney's fees. The chancellor denied the motion, announcing that he would not rule on the issue of alimony until he had made a "complete and final equitable distribution" and that could not be done until the real property was sold. The trial was then recessed for several months.

¶ 6. When the trial resumed on September 12, 2000, the Buckleys agreed as to which items of personal property each party would receive and agreed on the valuation of those properties. The chancellor awarded Mrs. Buckley $1200 in attorney's fees but denied alimony. The judgment of divorce was entered on September 14, 2000. Mrs. Buckley appeals.

DISCUSSION

¶ 7. Mr. Buckley's trial counsel filed a motion to withdraw before the appeal was perfected. The chancellor granted the motion on the ground that Mr. Buckley had failed to cooperate with counsel. Nothing has been filed by Mr. Buckley or his counsel on appeal.

¶ 8. The Supreme Court has held that an appellee's failure to file a brief can be considered the equivalent of a confession of error. Reversal will occur "unless the reviewing court can say with confidence, after considering the record and brief of appealing party, that there was no error." Selman v. Selman, 722 So.2d 547, 551 (Miss.1998). That is a lowered standard of review, but a hard look at the case by the reviewing court for plausible error is still required.

1. Alimony

¶ 9. Mrs. Buckley appeals only the chancellor's refusal to award her periodic alimony. She requests alimony of $500 per month. When alimony is not awarded at all or is considered inadequate, normally we will affirm unless "the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion." Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). Because of the quasi-confession of error by the appellee, our review is not so exacting. Still, some reasonable argument of error must be presented.

¶ 10. Alimony is not a completely independent financial issue in a domestic case, in which its consideration is hermetically sealed from other financial matters. Alimony together with equitable distribution of property work together to provide for the parties after a divorce. "Therefore, where one expands, the other must recede." Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). Once an equitable division of marital property has been made, the chancellor should then consider whether there is a need for alimony. Godwin v. Godwin, 758 So.2d 384, 387 (Miss. 1999). As with other of the inevitably recurring issues in divorces, the Supreme Court has announced factors that it wishes chancellors to use in structuring their decision. Twelve factors have been identified by the Court. Armstrong, 618 So.2d at 1280. We will consider each.

(1) The income and expenses of the parties

¶ 11. The chancellor found that Mr. Buckley's income, based on an amended income statement provided at the last hearing, was about $2160 per month. After deductions for taxes and for the $480 in child support payments, he would make $1200 per month. Earlier financial reports indicated that Mr. Buckley made substantially more money than the latest financial statement indicated. For example, in 1997 Mr. Buckley's tax return indicated that his profit from his various enterprises was $47,000. That is about $3900 per month, or close to twice the figure the chancellor used.

¶ 12. The chancellor stated that "we had some testimony from Mrs. Buckley previously with regard to her income and expenses, but that has obviously changed. She's moved to Sumrall. She has a new job. Her testimony is that she's making $5.35 an hour.... Monthly, that would be $927.00 gross." The chancellor found that Mrs. Buckley would pay no income taxes, but would have to pay about eighty-five dollars in Medicare and Social Security taxes. Her monthly income including the child support payment would be $1322.

¶ 13. The chancellor certainly may note what the total monthly income of the recipient spouse may be after adding in child support. Though these funds are spent in the mother's discretion, they are for the children's food, clothing, housing, and other expenses. It would be incorrect for the chancellor to decide that Mrs. Buckley's income of $1322 which had to support herself and two children could be equated to Mr. Buckley's $1200 per month for support just of himself.

¶ 14. Thus how the chancellor evaluated the relative financial positions of the two spouses after adding in the child support to Mrs. Buckley's total is the central question. Certainly the money being paid in child support has to be deducted from the amount that Mr. Buckley has available to him. However, it can be fatal error for the chancellor to combine the mother's actual income and the child support into a total sum for analytical purposes if by doing so the court loses sight that the mother is supporting not only herself with that money but the children as well. The chancellor made no specific findings on the record as to the expenses of either party but did have the financial disclosure statements of both before him and apparently accepted their accuracy.

¶ 15. Mrs. Buckley argues that Mr. Buckley has the financial ability to pay alimony as his income is much greater than hers. Mrs. Buckley's argument is based on Mr. Buckley's 1999 income and not the financial statement utilized by the chancellor. Mr. Buckley's income appears to have fluctuated considerably, with the chancellor's decision based on the lowest amount of income that had appeared in any financial statement. We find that the financial picture was distorted by that fact.

¶ 16. What is evident is that during this marriage Mr. Buckley had been the primary provider of financial support for the family. His income for most of the recent years has been much more than was the case in the final financial report on which the chancellor relied. Mrs. Buckley's ability to maintain herself without alimony in the manner to which she had become accustomed during the marriage is not apparent on this record. In addition to these shortcomings, we also must apply a less deferential review standard arising from the absence of an appellee's brief. ¶ 17. We cannot conclude "with confidence" that no error occurred in evaluating income. What confidence we do have leads us in the direction of finding error in the analysis of this factor.

(2) The health and earning capacities of the parties

¶ 18. The chancellor found that Mrs. Buckley's wage earning capacity was not as great as that of Mr. Buckley. The chancellor made no specific finding as to the health of either party but the record did contain testimony as to each's relative health. Neither spouse had extensive formal education. Mr. Buckley left school after the tenth grade. He took welding classes at Jones Junior College for several months before he married Mrs. Buckley in 1979. Mr. Buckley has been the breadwinner for the family. Mrs. Buckley had recently been employed in minimum wage positions. It would appear that the former husband has the much greater income potential.

(3) The needs of each party

¶ 19. The chancellor made no specific finding as to the needs of each party.

(4) The obligations and assets of each party

¶ 20. The chancellor decided the issue of alimony after the distribution of the marital assets. The chancellor noted that Mrs. Buckley was awarded $31,439.49 while Mr. Buckley was awarded $17,136.93. The chancellor stated that while Mrs. Buckley's award was not "quite double" that of Mr. Buckley's that it was "certainly a great deal more."

(5) The length of the marriage

¶ 21. The chancellor found that the Buckleys' twenty-year marriage was "long-standing."

(6) The presence or...