Crowe v. Crowe, 91-CA-0553

• Citation: 641 So.2d 1100
• Decision Date: 04 August 1994
• Docket Number: No. 91-CA-0553,91-CA-0553
• Parties: Jack Thomas CROWE v. Shirley Scott CROWE.
• Court: Mississippi Supreme Court

Page 1100

641 So.2d 1100

Jack Thomas CROWE v. Shirley Scott CROWE.

No. 91-CA-0553.

Supreme Court of Mississippi Aug. 4, 1994.

Gregory D. Keenum, Booneville, for appellant.

Jak M. Smith, Tupelo, for appellee.

Before DAN M. LEE, P.J., and McRAE and SMITH, JJ.

DAN M. LEE, Presiding Justice for the Court:

This appeal challenges certain provisions of a final divorce decree entered on May 2, 1991. Jack Crowe initially filed a complaint for divorce on the ground of habitual cruel and inhuman treatment. Shirley Crowe responded by filing a counter-complaint on the same ground and Mr. Crowe did not contest her complaint. Shirley was granted a divorce on the ground of habitual cruel and inhuman treatment. She was granted lump sum and periodic alimony and the right to have her automobile and the jointly owned home in her exclusive possession repaired at Jack's expense. Additionally, Jack was ordered to refrain from altering Shirley's status as the recipient of survivor benefits under his pension contract.

Jack did not contest the granting of the divorce below, nor does he challenge it on appeal. He has, however, duly perfected his appeal with respect to the following assignments of error:

I. The trial court erred in setting the amount of alimony of a 10-year marriage at $300.00 from the Appellant's retirement earnings.

II. The trial court erred in granting lump sum alimony in addition to periodic alimony without any basis on the record that the Appellant had the ability to pay such award and that the parties have disparate estates and without it being included in the pleadings.

III. The trial court erred in ordering the Appellant to be responsible for repairs to be made on the automobile granted to the Appellee, as this was not embraced by the pleadings and should not have been properly before the court.

IV. The trial court erred in ordering the Appellant to pay for any repair costs which the Appellee spent on the jointly-owned property and it further improperly imposed liens against the Appellant's interest in the home.

V. The trial court erred in enjoining the Appellant from changing the death beneficiary of his pension plan to anyone other than the Appellee.

VI. The trial court erred in requiring the Appellant to pay attorney's fees for Appellee's attorney in this action.

We find no error and affirm the judgment of the lower court on Assignments I, II, III, IV, and VI. The lower court erred, however, in granting an interest in Jack's pension to Shirley without making the requisite findings of fact required by our case law. Accordingly, we reverse the lower court on Assignment V, and remand for a proper determination of Shirley's rights with respect to Jack's pension.

STATEMENT OF THE FACTS

Jack Thomas Crowe and Shirley Scott Crowe were married in 1980, and thereafter resided in Lee County until their separation in 1990. Jack was 55 and Shirley was 45 when they wed. Jack worked as a truck driver for Roadway. Shirley was unable to work for medical reasons. After the wedding, both engaged in buying and selling various items in what they referred to as the "junking" business. Jack Crowe retired from Roadway in 1985, but he continued his other business ventures, including the junking business.

Neither party brought significant assets into the marriage. Jack had some equity in the house where the couple lived and a small amount of cash. However, substantial assets were accumulated during the union apparently through the efforts of both the parties. First, the Crowes were able to retire the mortgage on their home, referred to as the "North Thomas Street house." Jack deeded the home to both of them as joint tenants. The value of the North Thomas Street House was estimated by Mr. Crowe to be around $65,000.00. The couple also acquired two rental houses during the marriage. The first was located in Saltillo, and was paid for in full with a check for $32,500.00. It was appraised at $37,000.00 in anticipation of the trial. The second, in Tupelo, was appraised at $33,500.00 and was encumbered with a mortgage requiring payments of $251.00 per month. Jack and Shirley were also able to save large amounts of cash which they apparently kept hidden from each other in the North Thomas Street house. Jack testified that he found about $20,000.00 in cash in Shirley's bathroom in November of 1989. Shirley disputed the amount and countered with testimony that she had found and counted $30,000.00 that Jack kept on the premises. Both denied hiding money, claiming instead that the other had full knowledge of the cash.

Around the time that the couple separated, Jack withdrew $10,000.00 from their joint bank account and Shirley withdrew the remaining $5,000.00. Apparently, this money was separate from and in addition to the cash on hand at the house.

At the time of the trial, Jack Crowe was receiving $765.00 each month as a pension and $648.00 per month from Social Security, for a total of $1413.00 per month. Shirley Crowe was drawing $525.00 per month in Social Security disability benefits. There was disputed testimony as to whether Jack would continue to have income from the "junking" business.

The chancellor held that all the real property was jointly owned by Jack and Shirley. He awarded sole possession of the Thomas Street house to Shirley and exclusive possession of the other two houses was given to Jack. Jack was charged with paying for necessary repairs on the home and automobile used by Shirley. Shirley was awarded $4,500.00 in lump sum alimony and $300.00 per month in periodic alimony. Jack was also enjoined from changing his pension arrangement which designated Shirley as the recipient of survivor benefits, and he was ordered to pay Shirley's attorney's fees.

On appeal, Jack Crowe challenges the alimony awards, the award of repair expenses, the order to refrain from changing his pension arrangement, and the award of attorney's fees.

I. The trial court erred in setting the amount of alimony of a 10-year marriage at $300.00 from the Appellant's retirement earnings.

This Court's standard of review is limited in domestic relations cases where the chancery court has decided upon terms of alimony. In such cases the award will not be altered on appeal unless it is found to be against the overwhelming weight of the evidence or manifestly in error. Tilley v. Tilley, 610 So.2d 348 (Miss.1992); McNally v. McNally, 516 So.2d 499, 501 (Miss.1987); Harrell v. Harrell, 231 So.2d 793 (Miss.1970).

This Court considers several factors in evaluating an award of periodic alimony. These factors include: (1) the health and earning capacity of the husband, (2) the health and earning capacity of the wife, (3) the reasonable needs of the wife, (4) the husband's necessary living expenses, and (5) other factors such as estimated amount of income taxes, the use of the family home or automobile, and the payment of insurance. Monroe v. Monroe, 612 So.2d 353 (Miss.1992); Boykin v. Boykin, 565 So.2d 1109, 1111 (Miss.1990); McNally v. McNally, 516 So.2d 499, 501 (Miss.1987); Skinner v. Skinner, 509 So.2d 867, 868 (Miss.1987); Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147 (1955). Both parties are entitled to a "decent standard of living," whenever possible. Monroe, 612 So.2d at 357; Gray v. Gray, 562 So.2d 79, 83 (Miss.1990).

At the time of trial, Jack Crowe was retired and in his late sixties. Shirley Crowe was in her late fifties and permanently disabled. Neither party had extensive earning capacity, although Jack apparently continued to realize some additional revenue from his junk business.

Shirley testified that her monthly expenses were about $1111.71 and her monthly income was $525.00. Jack testified to monthly income of $1413.00 and expenses of approximately $1121.00. The award of $300.00 per month is not at odds with the reasonable needs demonstrated by the parties.

As for other factors, there are none that support the conclusion that the chancellor erred in awarding the periodic alimony. Income taxes are minimal. Both parties were awarded exclusive use of an unencumbered home ¹ and at least one automobile. Jack was ordered to pay taxes and insurance on all three jointly owned parcels for a period of two years.

Viewing this award in light of the facts discussed above and the relevant considerations established by prior cases, the chancellor committed no manifest error in determining the amount of periodic alimony. Accordingly, this assignment of error is without merit.

II. The trial court erred in granting lump sum alimony in the amount of $4500.00 in addition to periodic alimony without any basis on the record that the Appellant had the ability to pay such award and that the parties have disparate estates and without it being included in the pleadings.

In a proper case, the chancellor can award alimony payable in one lump sum or periodic alimony, payable monthly, or both, dependent upon the circumstances of the parties. Tilley v. Tilley, 610 So.2d 348 (Miss.1992); Miller v. Miller, 173 Miss. 44, 159 So. 112 (1935).

The factors to be considered are: (1) the existence of substantial contributions to the accumulation of wealth of the payor either by quitting a job to become a housewife or by assisting in the payor's business, (2) the length of the marriage, (3) the lack of separate income or the existence of comparatively meager income for the recipient, and, (4) lack of financial security in the absence of an award. See Tilley v. Tilley, 610 So.2d 348 (Miss.1992); Retzer v. Retzer, 578 So.2d 580, 592 (Miss.1990); Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988).

In the present case, there was contradicting testimony as to the extent of Shirley's assistance in the "junking" business. She did assist in the business to some extent. Exhibits consisting of sales receipts in Shirley's handwriting support the conclusion that she participated in the business. As for the next factor, the marriage lasted roughly ten years. Neith...