Carrow v. Carrow

• Decision Date: 08 September 1994
• Docket Number: No. 92-CA-00516,92-CA-00516
• Citation: 642 So.2d 901
• Parties: Betty Jean CARROW v. Jimmie Rogers CARROW.
• Court: Mississippi Supreme Court

Page 901

642 So.2d 901

Betty Jean CARROW v. Jimmie Rogers CARROW.

No. 92-CA-00516.

Supreme Court of Mississippi.

Sept. 8, 1994.

Claude V. Bilbo, Jr., Henry P. Pate, III, Pascagoula, for appellant.

William T. Reed, Oswald and Reed, Pascagoula, for appellee.

Before PRATHER, P.J., and SULLIVAN and JAMES L. ROBERTS, Jr., JJ.

PRATHER, Presiding Justice, for the Court:

I. INTRODUCTION.

In this appeal from the Chancery Court of Jackson County, Mississippi, the Appellant, Betty Jean Carrow (Jean), was granted a divorce from her husband of 29 years, Jimmie Rogers Carrow (Jimmie), on the ground of habitual cruel and inhuman treatment. However, she was not granted an equitable distribution of the couple's property as she had requested. Jean then filed a motion to reconsider which was subsequently denied. Aggrieved by the rulings of the chancery court, Jean filed her notice of appeal, to this Court assigning as error the following:

THE CHANCELLOR AWARDED A DIVORCE TO APPELLANT WIFE FROM A 29 YEAR MARRIAGE BUT REFUSED TO MAKE AN EQUITABLE DISTRIBUTION. DOES APPELLANT WIFE'S POST SEPARATION ADULTERY ESTOP APPELLANT WIFE FROM AN "EQUITABLE DISTRIBUTION" OF MARITAL ASSETS?

II. STATEMENT OF THE FACTS.

Jean and Jimmie met in high school when Jean was 15 years old and dated throughout high school. The two were married in Washington, North Carolina, on October 21, 1962. At the time they were married, the couple had no assets at all. Their only child, Charlotte Victoria Carrow (Vickie), was born on October 22, 1965.

The couple moved to Norfolk, Virginia. Jimmie worked at the Norfolk Naval Shipyard, and Jean worked at a restaurant. They moved to Mississippi in October of 1969. When they first moved to Mississippi, Jean worked as the head cashier at Gibson's Department Store. She then went to work for Ingalls Shipbuilding and has worked there for over 20 years. Her current gross annual salary is $38,181.33. She also has a substantial amount of accumulated retirement. Jimmie works as a chief planner at a Naval Air Station and earns an annual salary of $47,238.00. Jimmie has approximately $44,000.00 built up in retirement benefits with the civil service. After moving to Mississippi, Jean and Jimmie bought a home located on the Old Mobile Highway in 1970 or 1971. They then bought a home on Forts Lake Road in Pascagoula in 1975. As will be discussed in detail later, Jimmie has extensive collections of Chevrolet Corvette automobiles and guns. At first the Corvette collection seemed to be a hobby, but later Jimmie determined that the automobiles would be a good investment for his and Jean's retirement.

On April 16, 1980, Jimmie purchased a piece of commercial property on Martin Street. Jimmie testified that he bought the Martin Street property for the purpose of opening a Corvette museum. However, Jimmie never opened a museum and instead opened an automobile parts store called Southern Auto Parts. Later, on December 15, 1983, Jimmie bought another piece of commercial property. This property was located on Market Street. Jimmie opened another parts store, Southern Auto Parts 2, at this location. Jean worked in the parts store on afternoons and on Sundays for about six months. Jean worked there until Jimmie brought his mother and her husband in to operate the business. Jean was never compensated for any of her work in the parts store. Their daughter, Vickie, also worked in the parts stores for about four years. Jean's name was not on either of the deeds for the two pieces of commercial property because she said, "He just didn't want my name on there, on any of them." Jimmie eventually closed his parts business. After Jimmie closed the parts store, Jean opened a lounge in the Martin Street property. To get the money to buy the inventory and merchandise for the lounge, Jean took out a $5,000.00 loan from the Sunburst Bank. She used one of her cars as collateral for this loan. Jean testified that her lounge paid its bills, but did not ever make a profit. She did not pay Jimmie rent for the building, but said that he told her not to do so until "it gets on its feet and you can afford to pay." However, she did say that if the lounge had made a profit Jimmie would have gotten half of it. Jean closed her lounge after operating it for about two years. Jean said that Jimmie moved and sold the inventory and merchandise remaining in the lounge after it was closed. Jimmie testified that he worked in Jean's lounge without being paid.

In December of 1984, Jimmie purchased a house in Grand Bay, Alabama. Jean's name was never placed on the deed to this home. Jean and Vickie moved into this home in 1985; however, Jimmie remained in Pascagoula. Jimmie said the reason that he stayed in the Forts Lake home was because he wanted people to know that someone was there. Jimmie did later move into the Grand Bay home with Jean in 1986 or 1987.

The couple separated from each other in early May of 1989. Jean returned to the Forts Lake home to live with Vickie. ¹ They even met with Jimmie's attorney about a possible no-fault divorce. Jean said that she did not go through with the divorce in 1989 because of the property.

Shortly after her separation from Jimmie in May of 1989, she had an affair with Dennis Pierce. This affair lasted about four months.

After moving back in to the Forts Lake home, Jimmie told Jean that she would have to pay $315.00 per month in rent. Jean paid this for three months. Thereafter, she moved into the Vandywood Apartments. She lived there for about six months. The couple then reconciled in February or March of 1990 and attempted to make their marriage work. However, even though they were reconciled, they still lived in separate houses. Jimmie lived in Grand Bay and Jean lived in the Forts Lake home.

On May 21, 1990, Jimmie conveyed his interest in the Forts Lake home to Jean by a Quitclaim Deed. Jimmie said that he gave Jean the choice of either the Grand Bay home or the Forts Lake home, and she chose the latter. Jimmie had previously made an oral agreement with the bank that when the Forts Lake house was sold, he would pay the bank $22,000.00. Before giving her the quitclaim deed, Jimmie made Jean sign a piece of paper in which she promised to pay him $22,000.00. This agreement was apparently never recorded. Jean borrowed $16,000.00 from the Sunburst Bank, and used part of this money to rework the house with Jimmie helping her do this work.

The couple separated for the final time on November 1, 1990. Jean continued to live in the Forts Lake home with Vickie. Thereafter, Jean began an affair with Steve Bodin beginning sometime in November, 1990. This affair lasted about a month and a half. She then had an affair with Hezzie A. Wilks Jr. for approximately four to five months beginning in March of 1991. Jimmie first learned of Jean's three affairs at a deposition which was taken on August 21, 1991. Jean claims that her affairs had nothing to do with the dissolution of their marriage. However, Jimmie contends that had he known of Jean's affair with Dennis Pierce he would not have gone back together with her in 1990.

Jean filed a complaint for divorce on April 11, 1991, alleging as grounds habitual cruel and inhuman treatment and also, in the alternative, irreconcilable differences. Along with her complaint, she also filed a petition for protection from domestic abuse. Jimmie answered Jean's complaint generally denying the allegations made by Jean. He also counterclaimed for divorce on the grounds of adultery, habitual cruel and inhuman treatment, and irreconcilable differences. On July 16, 1991, the chancellor entered an order enjoining Jimmie from selling or otherwise disposing of any of the Corvettes in his possession at the time of the separation. Jean filed a motion to amend her complaint on November 19, 1991, asking for a divorce on the grounds of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Among other things, she also requested the following: alimony; attorneys' fees; an equitable interest in the home in Grand Bay, Alabama; exclusive use and possession of the Forts Lake home; one-half of all of Jimmie's retirement benefits; an equitable interest in all real property owned by the parties at the time of the separation; and one-half interest in all Corvettes, parts, and accessories. Jimmie answered this amended complaint on January 31, 1992. Following the trial, the chancellor awarded Jean a divorce from Jimmie on the ground of habitual cruel and inhuman treatment, ending the 29 year marriage. ² The chancellor held that the handwritten note wherein Jean promised to pay Jimmie the sum of $22,000.00 was not enforceable and that Jean owned the Forts Lake house free and clear of any conditions of that note. The chancellor also ordered Jimmie to pay Jean $5,000.00 for the furniture and fixtures that Jean purchased for her lounge, which Jimmie moved to another location. The chancellor closed his opinion saying, "The Plaintiff [Jean] is not entitled to any further relief." Jean filed a motion to reconsider which was denied on April 13, 1992. Jean thereafter filed her notice of appeal to this Court.

III. ANALYSIS.

THE CHANCELLOR AWARDED A DIVORCE TO APPELLANT WIFE FROM A 29 YEAR MARRIAGE BUT REFUSED TO MAKE AN EQUITABLE

DISTRIBUTION. DOES APPELLANT WIFE'S POST SEPARATION ADULTERY ESTOP APPELLANT WIFE FROM AN "EQUITABLE DISTRIBUTION" OF MARITAL ASSETS?

Within this assignment of error, Jean contends that the chancellor erred in failing to order an equitable distribution of the couple's property, specifically the two pieces of commercial property and the collection of Corvettes. The standard of review that this Court employs on appeals from chancery courts is limited. A chancellor's decision will be upheld if it is supported by substantial credible evidence. Hammett v. Woods, 602 So.2d 825, 827 (Miss.1992) (citing Clark v. Myrick, 523 So.2d 79, 80 (Miss.1988)). Also, "This Court will...