Clark v. Clark, 98-CA-00404-SCT.

• Decision Date: 04 November 1999
• Docket Number: No. 98-CA-00404-SCT.,98-CA-00404-SCT.
• Citation: 754 So.2d 450
• Parties: Richard J. CLARK, Jr. v. Virgie L. CLARK.
• Court: Mississippi Supreme Court

754 So.2d 450

Richard J. CLARK, Jr. v. Virgie L. CLARK.

No. 98-CA-00404-SCT.

Supreme Court of Mississippi.

November 4, 1999.

Rehearing Denied January 27, 2000.

Joseph R. Meadows, Gulfport, Attorney for Appellant.

Kaye J. Persons, Biloxi, Attorney for Appellee.

BEFORE PRATHER, C.J., MILLS AND COBB, JJ.

PRATHER, Chief Justice, for the Court:

INTRODUCTION

¶ 1. This domestic relations case involves the dissolution of a 33-year marriage. The parties had six children, three of whom were minors at the time of the divorce. The record reflects that Richard J. Clark, Jr., appellant, left the marriage and attempted to get Virgie L. Clark, appellee, to agree to a divorce based on irreconcilable differences. She refused and filed for separate maintenance. As he had threatened, he then ceased to support her financially. She filed for separate maintenance and received a temporary order of support, with which he failed to comply. He later obtained a divorce in Nevada. She amended her complaint, sought a divorce, and the case sub judice arises from the chancellor's determinations regarding child and spousal support and the distribution of the marital property.

STATEMENT OF THE CASE

¶ 2. On February 29, 1996, Virgie L. Clark (hereinafter Virgie) filed, in the First Judicial District of the Chancery Court of Harrison County, for separate maintenance from Richard J. Clark, Jr. (hereinafter Richard). On April 7, 1997, upon a subsequent motion by Virgie, the complaint was amended to include the alternative claim of divorce.

¶ 3. A hearing was held April 22, 1997, and the chancellor granted temporary relief. Specifically, custody of the parties' three minor children was granted to Virgie. The chancellor also ordered Richard to pay $252.34 in child support each month and $100 per month in alimony pendente lite. Richard was further ordered to provide the following for Virgie and the three minor children: medical insurance and payment of medical bills; maintenance of the marital home (including taxes, insurance, and termite treatment); automobile expenses for one vehicle; and costs in the amount of $3,237.39.

¶ 4. On July 7, 1997, Richard moved to dismiss Virgie's complaint as moot, based on the fact that a Nevada court had granted a divorce to Richard on May 29, 1997. The chancellor denied this motion, because the Nevada decree lacked "(i) any affidavit pursuant to the Uniform Child Custody Jurisdiction Act and (ii) litigation of any and all issues touching on alimony, child custody, child support, and distribution of marital property."

¶ 5. A trial was held July 15, 1997, and the chancellor found that Richard had deserted the marriage without cause in or around September, 1994. The chancellor awarded custody to Virgie of the three minor children. Richard was ordered to pay (a) $200 per month, per minor child, or $600 per month, in child support—unless the child was enrolled in college; (b) medical insurance for Virgie and the minor children, should Virgie lose her medical insurance coverage for any reason; (c) all medical expenses not covered by Virgie's insurance; (d) college tuition, books, housing, meals, and living expenses equivalent to the cost of attending a "state-supported university of Mississippi", until the parties' minor children reach the age of 21 or completed college study, whichever was later; (e) $500 per month alimony, to be offset by any rental income from the time-share unit and from two mobile homes that were on the property with the marital home, and were occupied by members of Virgie's family; (f) life insurance premiums on a $100,000 life insurance policy, with Virgie as beneficiary; (g) Virgie's car tag; and, (h) $3,000 for Virgie's attorney fees, plus court costs. Furthermore, Virgie was awarded (a) the parties' homestead and furnishings, valued at approximately $99,500; (b) the parties' time-share unit; and, (c) the two mobile homes located on the homestead property.

¶ 6. With regard to Richard's business (J & R Tire Service), the chancellor awarded Richard exclusive use, possession, and control, as well as all the income therefrom.¹ However, this award was subject to an equitable lien in favor of Virgie of a one-half interest in the business—in order to ensure Richard's compliance with the divorce decree.

¶ 7. Upon Virgie's motion, the chancellor also found Richard in contempt of the temporary order and awarded Virgie $400 for past due alimony pendente lite; $2,584.11 for medical bills; $562.31 for ad valorem tax on the marital home; $626 for insurance on the marital home; $7,246.41 for termite treatment for the marital home; and, $32.14 for a car tag.

¶ 8. On September 24, 1997, Richard filed a motion to reconsider, which, after a hearing, the chancellor granted, in part. Specifically, the chancellor found that:

... from the testimony and demeanor of the witnesses, as well as the documentary evidence presented at the original hearing of this action, that not only was Richard J. Clark, Jr. less than forthcoming with true and verifiable financial information, but the Court was convinced he was actually attempting to hide or protect what should be considered assets in equitable distribution. The Court reiterates and upholds that finding, however after careful reflection finds that the Judgment heretofore entered in this cause on the 9th day of September, 1997, is overly burdensome to the defendant, even at his actual income level, and therefore the judgment must be reconsidered and adjusted to meet the equities.

¶ 9. Based on that finding, the chancellor ordered that the college education expenses of the minor children be equally divided between the parties, but, given the disparity in the incomes of the parties, Richard would no longer be relieved of his monthly support obligation (of $200 per child per month) while the children were in college.

¶ 10. The chancellor also amended the portion of the original judgment regarding alimony. Originally, Richard was ordered to pay $500 per month alimony, to be offset by any rental income Virgie received from certain properties. In the amended judgment, the chancellor found that the fair rental values were $350 per month. Accordingly, Richard was ordered to pay $150 in monthly alimony.

¶ 11. With regard to medical insurance, the chancellor held that Richard should be responsible for one-half the medical expenses, not covered by insurance, for Virgie and the three minor children. (Richard had originally been ordered to pay all the medical expenses, not covered by insurance.) The chancellor also held that Virgie had sufficient assets to pay for her own car tag, and relieved Richard of that obligation.

¶ 12. Richard appeals, and raises the following issues for consideration by this Court:

A. Whether the trial court erred in the amount of support to be paid on behalf of appellee and the parties minor children?

B. Whether, in making the division of marital assets, the trial court erred in failing to follow established guidelines and such divisions, failing to support its decision with correct finding of fact, and failing altogether to support its decision with conclusions of law to aid in this appellate review?

¶ 13. On cross-appeal, Virgie raises the following issue:

C. Whether the chancellor's initial judgment as to the amount of alimony, the percentage of college expenses, and the percentage of uninsured medical expenses should be reinstated because they were supported by substantial credible evidence and were neither manifestly wrong nor clearly erroneous under the applicable legal standard?

STATEMENT OF THE FACTS

¶ 14. The parties married September 20, 1963, when Virgie was 15. They had six children. At the time of the hearing, three of the children were minors (Kevin, age 20; Mark, age 19; and Colstrum or "Cokie", age 15), and were residing with Virgie. Kevin was attending school at Mississippi State University. Mark had just completed high school, and Virgie planned for him to enroll in college the following September.

¶ 15. Richard admitted that he left Virgie July 27, 1993. Virgie stated that he had left her twice before. Virgie also stated that they were "husband and wife" for "the majority of" 1994, but the marriage had been over since the beginning of 1995. Richard testified that he obtained a divorce in Nevada May 30, 1997.

¶ 16. Virgie, age 49, testified that she was the "exclusive housekeeper" at Casino Magic, from 8:00 p.m. to 4:00 a.m.; however, she had hurt her leg, and, at the time of the hearing, she was working 1:00 to 9:00 a.m. "polishing brass", a "light" duty. Her gross salary for this job was approximately $1,080 per month.

¶ 17. Virgie also performed a cleaning services in Diamondhead, where she cleaned 1-2 houses per day (except "every other Monday ... Wednesday ... and ... Friday"). Her average income from this job was $80-$110 per week. Virgie had worked throughout the marriage, "except for that first maybe three years."

¶ 18. Virgie stated that she was not in good health, and that she was receiving treatment (including medication) for diabetes and high blood pressure. She had also had breast surgery (which led to the discovery of her diabetes). In addition, "they [had] found something [in her chest] but they're watching it. So [Virgie did not] know how [that] was going to work out."

¶ 19. She stated that it was very difficult to work day and night under these circumstances. She could not drive, due to the danger that she might "pass out and hurt someone else." Furthermore, her work schedule caused problems in monitoring these conditions. Also, Virgie did not get the proper amount of needed rest. For this reason, she planned to quit her night job, after the divorce. This meant that she would lose her health insurance (which she had been paying for with deductions from her pay check, and, which she felt had a high deductible and did not pay 100%).

¶ 20. The deposition of Virgie's family doctor, David F....