Davis v. Davis

• Docket Number: 2021-CA-01246-COA
• Decision Date: 09 May 2023
• Citation: Davis v. Davis, 361 So.3d 725 (Miss. App. 2023)
• Parties: Eugene DAVIS, Jr. Appellant v. Tonika Dunlap DAVIS Appellee
• Court: Mississippi Court of Appeals

361 So.3d 725

Eugene DAVIS, Jr. Appellant v. Tonika Dunlap DAVIS Appellee

NO. 2021-CA-01246-COA

Court of Appeals of Mississippi.

May 9, 2023

ATTORNEYS FOR APPELLANT: A. E. (RUSTY) HARLOW JR. KATHI CHRESTMAN WILSON MORGAN KAY JACKSON

ATTORNEY FOR APPELLEE: VALERIE LANETTE DORSEY

BEFORE WILSON, P.J., McDONALD AND LAWRENCE, JJ.

McDONALD, J., FOR THE COURT:

¶ 1. Eugene Davis appeals the Leflore County Chancery Court's final judgment granting him and his wife, Tonika Davis, a divorce on the ground of adultery. On appeal, Eugene does not challenge the chancellor's decision to grant the divorce on the ground of adultery. Eugene challenges the chancery court's division of the marital property and debts and the court's award of permanent periodic alimony to Tonika. After reviewing the record, we affirm the court's grant of divorce on the ground of adultery and reverse in part the court's judgment regarding the division of property and alimony. We remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Eugene and Tonika were married on September 16, 1994, and then resided in their marital home in Leflore County, Mississippi. Three children were born of the marriage: E.D.D. and Q.J.D, who are emancipated, and T.M.D., a minor child born in 2008. During the marriage, Eugene had an extramarital affair and a child with another woman. After Tonika discovered the affair, the parties separated for approximately six to eight months. After reconciling, Tonika discovered that Eugene was having yet another affair with a different woman. In May 2020, Eugene left the marital home. ¹

¶ 3. On June 3, 2020, Eugene filed a complaint for divorce on grounds of fault and irreconcilable differences. Eugene asserted that irreconcilable differences existed between the parties that entitled them to a divorce. In the alternative, Eugene alleged that Tonika was guilty of habitual cruel and inhuman treatment. Eugene requested that the court divide the parties’ property and allocate the marital debts between them, that he be granted joint legal custody of the parties’ minor child, and that Tonika maintain physical custody of the minor child. In addition, Eugene also requested temporary relief for possession of the marital home.

¶ 4. Tonika filed an answer and counterclaim on July 9, 2020, requesting a divorce on the grounds of constructive desertion, adultery, habitual cruel and inhuman treatment, and, in the alternative, irreconcilable differences. In her answer, Tonika stated that Eugene was guilty of acts that "left the marriage irretrievably destroyed" and that he "had abandoned her by carrying on several adulterous relationships." She also alleged that Eugene had verbally and emotionally abused her in her time of emotional distress while she was grieving the loss of her mother. Tonika requested sole physical custody of their minor child and asked that legal custody be awarded to both parties. She also requested that she be granted full possession and ownership of the marital property, excluding the contents in a shed, which she asked to be awarded to Eugene. In addition, she asked that the court grant her periodic alimony in the amount of $1,500 per month, that Eugene be responsible for the four-wheeler debt, and that Eugene be required to pay off the debt on the windows purchased for the marital home. Tonika also requested an equitable division of Eugene's retirement account and any other assets he owned.

¶ 5. On August 12, 2020, Eugene filed an answer to Tonika's counterclaim alleging that Tonika had failed to state a claim upon which relief could be granted. He also argued that the doctrine of unclean hands and estoppel precluded Tonika from maintaining the allegations in her counterclaim. Eugene further stated that the doctrines of recrimination, provocation, reformation, ratification, and condonation also precluded Tonika's claims.

A. Divorce Hearing

¶ 6. The Leflore County Chancery Court held a trial on both parties’ claims on June 23, 2021. The parties were the only witnesses who testified.

¶ 7. Tonika testified that she was forty-five years old and had obtained a high school diploma, completed a semester in junior college, and attended Delta Beauty School. Tonika stated that she had worked for Leflore County schools for seven years, but for the last two years she had been working with the Greenwood-Leflore Consolidated School District as parent/student support staff and her gross salary was approximately $2,000 per month. Tonika's Rule 8.05 financial statement listed her gross monthly income as $3,524.49, which included $515 from child support and $1,000 for spousal support from Eugene. See UCCR 8.05. Her net monthly income was $3,076.32, and her total monthly expenses were $2,954.19. The only real estate Tonika listed in her statement of assets was the marital home, which she valued at $76,000.

¶ 8. Eugene testified that he was forty-seven years old and employed as an assistant fire chief at the Itta Bena Fire Department and the transportation manager and shop foreman at Delta Health Alliance. Eugene's Rule 8.05 financial statement listed his gross monthly income as $8,992.32, which included $2,268.61 in veterans benefits, ² and his net monthly income as $6,793.87. ³ Eugene listed his monthly expenses as $4,530.20. He also claimed the marital home, which he also valued at $76,000, and a trailer as marital assets. Eugene asserted that although his name was listed on the trailer, it was his sister's trailer and was paid for by her.

i. Marital Property and Assets

¶ 9. During the hearing, Tonika requested ownership of the marital home and stated that she was currently paying the mortgage and insurance and paying for the upkeep of the home. Tonika also testified that in 2018 she paid for windows to be fixed in the marital home, and she requested that both parties be responsible for the remaining debt, which was approximately $7,000. ⁴

¶ 10. Tonika also requested ownership and possession of a 2013 Nissan Maxima ⁵ and a 2019 Altima, which her daughter possessed. Tonika stated that she would be responsible for the debt on the Altima. ⁶ Tonika further stated that she felt Eugene was entitled to the trailer located in Sidon that he and his sister purchased, ⁷ a 2007 GMC Sierra, and a 2017 Chevrolet Silverado. Tonika stated that Eugene should be responsible for the remaining debt on the Silverado, the remaining debt on his USAA credit card, ⁸ and the debt on a Polaris 850 four-wheeler.

¶ 11. Eugene testified that Tonika could have the house and all the contents in it: "I just want my TV. The TV I just bought about a year ago. Everything else, she can have." ⁹ Eugene further stated that he wanted all the "tubes and equipment out of the storage shed," which he claimed were worth between $3,000 and $5,000. He stated that Tonika could have the shed, her 2013 Nissan Maxima, a 2005 Altima, and a 2001 Chevrolet Blazer Extreme if she wanted it. Eugene requested that he be allowed to keep his two trucks (the 2007 GMC Sierra and 2017 Chevrolet Silverado) and the Polaris 850 four-wheeler, valued at $14,000. Eugene also agreed to pay off the USAA credit card debt. Neither party specified the debt amount on the credit card.

ii. Parties’ Retirement Accounts

¶ 12. Although both parties testified that they maintained accounts with the Public Employees’ Retirement System of Mississippi (PERS), Tonika did not list her retirement account on her financial statement, but she testified that there was approximately $10,000 in her PERS account at the time of the hearing. Tonika also stated that she felt that Eugene was not entitled to her PERS account but requested that she be awarded half of his.

¶ 13. On the other hand, Eugene testified that Tonika should keep her PERS and requested that he be allowed to keep his. Eugene stated that the estimated retirement value of his PERS account was "$62,000 and some odd dollars." ¹⁰ He further stated that all of his retirement funds had been accumulated during the twenty-seven years that he and Tonika were married, except for two years before the marriage when he was in the military. Eugene stated that he served in the military in 1992 and was not married until 1994. ¹¹ Eugene admitted that his PERS account was substantially greater in value than Tonika's PERS account.

iii. Spousal Support

¶ 14. Tonika further requested that the court require Eugene to continue paying her $1,500, which was about what she had been receiving from him since May 2020 for household bills and included the child support she received for their minor child. ¹² Tonika stated that when Eugene was living in the marital home, he was giving her about $1,500, which she used to pay bills. She stated that she was seeking the same $1,500 for maintenance of the home because she now had to pay others to do certain things around the home that Eugene used to do. Although Eugene admitted that for the majority of their marriage he always made substantially more than Tonika and paid most of the bills, he stated that he did not think that he should be required to pay Tonika any spousal support because she worked at the school, styled hair, and was getting child support.

¶ 15. Eugene also stated that he only gave Tonika $1,000 a month after they separated because he did not want to be charged with abandonment. He further stated that he was only able to give Tonika the $1,000 because he was currently living with his sister and did not have his own house.

iv. Bank Accounts

¶ 16. Tonika listed four bank accounts on her financial statement. However, at the hearing her testimony only referenced a joint account with Eugene that she said had "four dollars and some cents in it." Tonika stated that Eugene used this account to transfer money to her every month. The other accounts listed on her financial statement included a joint account with her daughter, Tonika's personal checking account, and Tonika's savings account. According to...