Carpenter v. Carpenter, 57460
| Decision Date | 03 February 1988 |
| Docket Number | No. 57460,57460 |
| Citation | 519 So.2d 891 |
| Parties | Stanley Malcolm CARPENTER v. Anne Hudson CARPENTER. |
| Court | Mississippi Supreme Court |
Lawrence C. Gunn, Jr., Lee P. Gore, Hattiesburg, for appellant.
Frank D. Montague, Jr., Gray, Montague & Pittman, Hattiesburg, for appellee.
Before ROY NOBLE LEE, C.J., and PRATHER and ZUCCARO, JJ.
The appropriateness of alimony and attorneys fees' awards in a divorce action when the wife's net worth exceeded that of her husband is the subject of this appeal from the Chancery Court of Forrest County. This Court reverses the chancellor's allowance of both alimony and attorney's fees.
Stanley Malcolm Carpenter and Anne Hudson Carpenter were married on December 28, 1956, and to their marriage four children were born. At the time of the divorce, the children's ages were twenty-six (26), nineteen (19), seventeen (17), and twelve (12). The parties separated and she filed for a divorce in 1983.
At the time of the divorce in 1985, Stanley Carpenter was 50 years of age, a certified public accountant, who spent most of his professional life as an accounting instructor at the University of Southern Mississippi. He retired from the University in 1983. At that time, he established a private accounting practice in Hattiesburg. The practice was a partnership which was in the process of dissolution, with related litigation in progress.
Respectively, Ann Carpenter was 49 years of age at the time of the divorce. She has a Master's Degree in Early Childhood Education. However, she had elected in recent years not to work in her chosen field. Rather, at the time of the divorce, she was a door to door saleswoman of first aid supplies.
Neither of the parties suffers from any kind of physical or mental disability. Their twelve year old son has a learning disability.
Joint custody of the minor children was ordered. The seventeen year old daughter was in the physical custody of her mother, and $300.00 monthly child support was ordered to be paid by her father to her mother. 1 The father had physical custody of the nineteen year old daughter and twelve year old son, and although the order does not provide, it is assumed that the father totally supported them. The jointly owned residence of the parties was occupied by the husband with the two minor children in his physical custody, and the husband was making the mortgage payment on the residence of $923.48 monthly. Mrs. Carpenter testified that the fair rental value of the residence was $450-$500 monthly.
The issue of divorce was uncontested, and Mrs. Carpenter was granted a divorce, $300.00 alimony per month for ten (10) years, and $2,500.00 attorney's fees. The issue of these latter two awards is the subject of this appeal. Also, the chancellor granted a stay on the alimony award pending this appeal.
The basis for objection to these two monetary awards is twofold: (1) the separate estate of Mrs. Carpenter and (2) the financial inability of Mr. Carpenter.
Regarding Mrs. Anne Carpenter's separate estate, the record reveals that Mrs. Carpenter had monthly earning of $800.00 and was a joint beneficiary with her two sisters of a substantial trust. Annual income from the trust ranged from a high of $25,000.00 in 1979 or 1980 to a low of only $1,600.00 one other year. The record is extremely inadequate on the exact details of the trust income. However, Mrs. Carpenter testified that the trust was valued at a quarter of a million the last time she knew of its value. Additionally, the trustees has the right to invade the trust corpus on Mrs. Carpenter's behalf. Apparently, a $12,500.00 trailer and lot in Hancock County was an asset of Mrs. Carpenter's which had come from the trust, and was debt free. Mrs. Carpenter testified that the total value of the trust was at least $250,000; the record suggests that its value is in excess of that.
It is difficult to accurately deduce from this record the exact extent and nature of the property of these parties. More information comes from the briefs of counsel, but upon which this Court cannot rely. However, from the evidence, it appears that the Carpenters are joint owners of a residence and land of some six acres and farm of 98 acres with buildings and equipment and subject to a joint indebtedness which Mr. Carpenter is totally paying.
Based upon facts at the hearing, appellant's brief contains an analysis of the net worth of the parties, dividing the jointly owned property and indebtedness as follows:
ASSETS
______
STAN ANNE
Cash Receivables $ 1,800.00 -0-
--fees 3,600.00 -0-
Investment in stocks 2,000.00 -0-
Automobiles 6,500.00 6,500.00
98 acre parcel (one-half interest) 98,000.00 98,000.00
Residence (one-half interest) 67,500.00 67,500.00
Furniture and furnishings (one-half interest) 50,000.00 50,000.00
Farm buildings (one-half interest) 12,500.00 12,500.00
Farm equipment (one-half interest) 2,500.00 2,500.00
Investment in Magnolia Simmental Farm 67,500.00 -0-
Trailer & Lot in Hancock County -0- 12,500.00
Interest in Willetta Hudson Trust (1/3 int.) - 0- 83,333.33
TOTAL ASSETS $311,900.00 $332,833.33
LIABILITIES
___________
Mortgage payable to Federal Land Bank (1/2 of 45,521.00 45,521.00
balance) (home)
Note payable to Perry County Bank (signature note) 15,000.00 -0-
Note payable to Deposit Guaranty National Bank
(office building) 84,166.00 -0-
Note payable to Citizens Bank (office equipment) 57,727.00 -0-
Note payable to Magnolia Simmental Partnership (farm) 10,000.00 -0-
Note payable to First Guaranty Savings & Loan (farm) 39,072.00 -0-
Note payable to Deposit Guaranty National Bank
(signature loan) 9,235.70 -0-
Note payable to Carmichael Chrysler (R58) -0- 8,170.20
Total Liabilities 260,721.70 53,691.20
Net Worth $ 51,178.30 $279,142.13
Counsel for Mr. Carpenter points out that the July 31, 1983 balance sheet of the parties shows that they had a net worth prior to the filing of this action of $517,156.00.
From this record it appears that Mrs. Carpenter's net worth exceeded Mr. Carpenter's by a substantial margin.
Concerning Mr. Carpenter's inability to pay alimony, the Court first notes that by his answer and cross-claim, Mr. Carpenter states that he should be required to pay lump sum alimony in periodic installments until Mrs. Carpenter can obtain gainful employment. Therefore, Mrs. Carpenter argues that the issue here is not the wife's entitlement, but the amount thereof.
Mr. Carpenter's financial condition at the time of the divorce was critical. He was seeking to avoid bankruptcy; he was making all payments on the joint indebtedness; he had physical custody and support of two children and was ordered to pay $300.00 for a third child; his accounting partnership was dissolved and in litigation; his 1980 adjusted gross joint income was $29,021.53; his 1984 income reflected a loss of $3,983.32; his total indebtedness was $362,146.27, (which including his wife's portion of jointly owned property) excluding an arrearage of temporary alimony and child support previously ordered of some $4,000.00.
In Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147 (1955), this Court required the chancellor to consider several factors in awarding original sum of alimony and child support. These factors are as follows:
(1) The health of the husband and his earning capacity;
(2) The health of the wife and her earning capacity;
(3) The entire sources of income of both parties;
(4) The reasonable needs of the wife;
(5) The reasonable needs of the child;
(6) The necessary living expenses of the husband;
(7) The estimated amount of income taxes the respective parties must pay on their income;
(8) The fact that the wife has the free use of the home, furnishings, and automobile; and
(9) Such other facts and circumstances bearing on the subject that might be shown by the evidence.
With the relative net worth of these parties in mind and their corresponding obligations, Stanley Carpenter asserts that the chancellor was manifestly in error in awarding alimony and attorney's fees. In so alleging, Mr. Carpenter distinguishes his factual situation from other...
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