Creekmore v. Creekmore, 92-CA-0498

• Decision Date: 23 February 1995
• Docket Number: No. 92-CA-0498,92-CA-0498
• Parties: Teresa Gay CREEKMORE v. Edward Robert CREEKMORE, III.
• Court: Mississippi Supreme Court

Page 513

651 So.2d 513

Teresa Gay CREEKMORE v. Edward Robert CREEKMORE, III.

No. 92-CA-0498.

Supreme Court of Mississippi.

Feb. 23, 1995.

Nancy Allen Wegener, Clarksdale, for appellant.

Andrew K. Howorth and Benjamin H. Sanders, Hickman Goza & Gore, Oxford, for appellee.

EN BANC.

SULLIVAN, Justice, for the Court:

This appeal arises from the Calhoun County Chancery Court's final judgment granting Teresa Gay Creekmore a divorce from Edward Robert Creekmore, III. The chancellor awarded Teresa Creekmore lump sum alimony of $12,000.00, periodic alimony of $12,000.00 to be paid in $500.00 increments for twenty four months or until Edward's death, whichever comes first, and attorney fees.

A lump sum award of $12,000, or $24,000 when both alimony awards are considered in combination, is a meager amount of lump sum alimony, given the parties' respective financial situations, and is grossly inadequate so as to reveal an abuse of discretion. This Court is also concerned that the conduct of the attorneys which resulted in punishment of the client is improper.

For these reasons, and for the chancellor to make findings of fact and conclusions of

law, this case is reversed and remanded for reconsideration by the chancellor.

THE FACTS

Teresa Gay Creekmore, thirty years old at the time of the divorce, is a high school graduate who attended Northwest for two years, studying child care. In April, 1984, she married Edward Robert Creekmore, III, whom she knew to use Valium, marijuana, and alcohol. Teresa thought she could change Edward because she loved him so much. On their wedding night, Teresa learned firsthand that Edward also used cocaine. The couple made their home in Calhoun City where Teresa worked as a seamstress at Calhoun Apparel (a garment factory) at the time of the marriage. Teresa continued to work there for five years after the marriage, until about a month before her baby was due, in November of 1989. Once their daughter, Gentry Shannon, was born, on December 30, 1989, Teresa and Edward mutually decided that Teresa should not go back to work, but should stay home with their child. Throughout the course of the seven year marriage, although Teresa occasionally stayed with friends or relatives for short periods of time when Edward's drug and/or alcohol problems were at their worst, Teresa remained concerned about Edward and visited him as often as allowed while he was hospitalized in one treatment center or another.

After years of substance abuse problems, attempts at treatment, broken promises, and arrests, Teresa finally had her fill and left Edward on July 4, 1991. She took Gentry Shannon and stayed with her sister and brother-in-law in Belzoni, where Teresa went to work part-time at the Factory Connection, a clothing store, for $4.25 an hour. Teresa hoped to obtain her degree in special education and enter the teaching profession, which would allow her to support herself and Gentry Shannon. With her previous two years at Northwest, Teresa believed she could obtain her degree in a little over two years if she went full-time, but because of child care requirements she would prefer to attend school part-time.

Teresa had no savings of her own when she married Edward. She attended Northwest on a school loan, which she repaid from her wages before and after her marriage to Edward. Prior to when Teresa left her job at Calhoun Apparel, she was taking home about $140.00 or $150.00 a week after deductions for taxes, social security, and health insurance. Initially she bought groceries with this money and deposited her paychecks into her and Edward's joint checking account. Later she and Edward kept their funds separately and Teresa stopped depositing her checks into the joint account. This did not prevent Edward from "borrowing" money from Teresa to support his drug addictions. Teresa never contributed any funds to Eddie's individual or trust accounts which he inherited from his family. Edward's mother paid some of the couple's bills, including groceries, property taxes, homeowners' insurance, and automobile insurance. However, the property taxes and homeowners' insurance were for houses owned jointly by Edward and his mother. Teresa said that Edward's mother never paid any of her (Teresa's) bills nor any bills on her (Teresa's) car. Edward's mother verified this testimony. For the twenty months that Teresa was a homemaker, she cooked and kept the house reasonably clean, although Edward also did some cooking.

Teresa determined that she wanted to stay in Belzoni after the divorce, rather than return to Calhoun City. She found that rent in Belzoni would run between $300.00 and $350.00 a month. The houses she had looked at were priced around $30,000.00. An estimate of monthly expenses for Teresa and Gentry Shannon was $1,600.00. Daycare for Gentry Shannon would cost about $175.00 a month in Belzoni. Teresa had no stocks, bonds, or savings accounts, and had only about $300.00-$400.00 in her checking account. Teresa drove a 1985 Chevrolet Caprice which Eddie had bought for her and which had an outstanding balance due. Regarding household furnishings and effects, Teresa wanted only her Tupperware, the dishes she brought to the marriage, the china, crystal and silver the couple had received as wedding gifts, her clothes, and Gentry Shannon's toys and clothes. Teresa was unable Edward Robert Creekmore, III, thirty years old at the time of the divorce, was not working when he married Teresa, but did work for a time during their marriage, for a construction company. He left after a couple of months because he did not like getting up that early and just got tired of it. A month or two before Teresa fled the marital home, Edward had started building picnic tables. This is the extent of Edward's work history during the period of time he was married to Teresa. Edward does not work because of a steel rod in his leg which causes problems when he stands or walks, although he labors under no doctor-imposed restrictions. Edward has attended four or five colleges but has never obtained a degree. Edward and his mother jointly own two houses in Calhoun City, one of which, with an assessed value of $72,025.00 and an actual value of $50,000.00, was used as Edward and Teresa's marital home. Since Teresa and the child left, Edward has remained in this home alone. The other home is vacant and has an assessed value of $44,180.00 and an actual value of $30,000.00. The houses were given to Edward and his mother by other relatives prior to the time Edward and Teresa married. Edward lives on the income from trusts, stocks, and bonds, which were provided by his grandparents and his father. Edward is the beneficiary of the Nora Creekmore Trust, valued at $145,000.00 at the time of the hearing. Edward gained control of one-third of this trust when he turned twenty-five (25), a second third when he turned thirty (30), and the final third will be his when he turns thirty-five (35). In the event Edward dies before reaching age thirty-five (35), the final third of the trust will belong to Gentry Shannon. Edward receives no income from this trust but the fund sometimes pays his medical or legal expenses. Edward once drew an income of $2,200.00 a month from a stock account with J.C. Bradford, but when he began making support payments to Teresa, pursuant to the court's temporary order, his income was increased to $3,300.00 a month. This amount of monthly income requires invading the principal of the stock investments. Edward owed his mother about $17,000.00 or $18,000.00 at the time of the hearing, which he had borrowed during the time he was married to Teresa. Edward's stock in Sunburst Bank, valued at $13,260.00, was transferred to his mother as partial security for this debt.

to pay the $3,000.00 attorney fee she had accrued at the time the hearing commenced in October, 1991.

Edward's net worth is valued at $315,365.63. Included in this assessment is a stock portfolio worth $273,811.00, Sunburst Bank stock worth $13,260.00, and personal property valued at $26,700.00; liabilities include a lien on an automobile and personal loan debt to Edward's mother and grandmother. Edward also has real estate holdings, including his one-half interest in the two Calhoun City houses, valued at $47,200.00, which were not included in his net worth statement.

Upon divorce Teresa was awarded permanent custody of Gentry Shannon, $500.00 a month child support, $12,000.00 lump sum alimony, and $12,000.00 periodic alimony to be paid in $500.00 increments for 24 months or until Edward's death, whichever came first. She also received the use of a 1985 Chevrolet Caprice. Edward was ordered to provide a policy of health insurance for Gentry Shannon and Teresa; Teresa and Edward are each responsible for half of any expenses not covered by the policy, including deductibles.

Teresa's appeal presents the following issues:

1. Did the court err in the award to her of 2.6 percent of defendant's estate as lump sum alimony;

2. Did the court err in the award to her of $12,000.00 as periodic alimony to be paid $500.00 per month for a maximum of 24 months; and

3. Did the court err in the amount of attorney fees awarded to plaintiff?

As this Court is not presented with an appeal regarding the chancellor's division of marital property, our recent decisions of Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994) and Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), have no application to the instant case. This is a lump sump alimony

case, and the source of the funds is not material.

I. DID THE COURT ERR IN THE AMOUNT OF LUMP SUM ALIMONY AWARDED?

It is hornbook law that whether to award alimony and the amount to be awarded are largely within the discretion of the chancellor. Cherry v. Cherry, 593 So.2d 13, 19 (Miss.1991). We will not disturb the chancellor's decision on alimony on appeal unless it is found to be against the overwhelming weight of the evidence or manifestly in...