Dunn v. Dunn

• Decision Date: 10 December 1992
• Docket Number: No. 91-CA-0609,91-CA-0609
• Citation: 609 So.2d 1277
• Parties: Michael Hosea DUNN v. Danne Carole DUNN.
• Court: Mississippi Supreme Court

Page 1277

609 So.2d 1277

Michael Hosea DUNN v. Danne Carole DUNN.

No. 91-CA-0609.

Supreme Court of Mississippi.

Dec. 10, 1992.

A. Scott Cumbest, Cumbest Cumbest Hunter Firm, Pascagoula, for appellant.

Earl L. Denham, Levi & Denham, Ocean Springs, for appellee.

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

SULLIVAN, Justice, for the court:

This appeal originates from a complaint for divorce filed by Danne Dunn on January 10, 1991, in the Jackson County Chancery Court. She requested custody of the children and child support, permanent alimony, a vehicle with tag and insurance, use and possession of the homestead along with its furnishings and fixtures, and attorneys fees. Danne later amended her complaint to request an equitable lien on Michael Dunn's business.

Following a trial on the matter the chancellor entered his final judgment which granted divorce on the grounds of adultery. Danne was awarded custody, child support, a lien against Michael's business and his

interest in a commercial lot owned jointly by the parties, exclusive use and possession of the homestead, two thousand five hundred dollars ($2,500.00) in attorneys fees, an equitable lien on Michael's interest in the homestead, repayment of a $20,000.00 debt from the business, and use and possession of an automobile. Michael subsequently perfected an appeal to this Court, for a determination of the following issues:

1. Did the trial court err in granting Appellee a $20,000.00 equitable interest in the homestead?

2. Did the trial court err in awarding Appellee a $20,000.00 monetary interest against Appellant's business?

3. Did the trial court err by ordering Appellant to pay the $1,500.00 monthly house note and weekly child support in the amount of $130.00 per week for two children?

4. Did the trial court err by enjoining Appellant from having his children in the presence of his lover? and

5. Did the trial court err in ordering Appellant to pay the sum of $2,500.00 to Appellee for attorney fees?

MOTION PASSED FOR CONSIDERATION

Appellee filed a motion to strike the reply brief of Appellant which was passed for consideration with this appeal. After a thorough reading of the record and examination of this reply brief, we find that only one paragraph goes beyond the record. Although having no bearing on this appeal, this portion of the Appellant's reply brief is stricken as it attempted to augment the record in violation of Supreme Court Rule 10(f).

THE FACTS

Mike and Danne Dunn were married in Jackson County, Mississippi, in September, 1981. Danne was employed by Singing River Hospital, where she remained at the time of trial. Mike was a salesman at Jeff Coat Motors. Each party had been married previously, Mike's first marriage having ended in divorce and Danne's with the death of her husband. Mike had two children from his previous marriage who were 18 and 20 years old at the time of the trial below. The marriage of Mike and Danne produced two children who were 8 and 4 years old at the time this original case was heard.

In March of 1981, prior to marrying Danne, Mike received from his father eight lots in Belle Fontaine Beach. In exchange for this land Mike assumed a mortgage of his father's which did not pertain to the lots. At the time of the exchange there were eleven (11) remaining payments of one thousand dollars ($1,000.00) each which Mike began paying in either March or April of that year. Mike also owned a piece of waterfront property in Gautier which he sold in July, 1980, for twenty-six thousand dollars ($26,000.00). At the time this land was sold, Mike owed approximately six thousand dollars ($6,000.00) on it. A Corvette Mike owned prior to his marriage to Danne was also sold pre-nuptially for about ten thousand dollars ($10,000.00). Other assets Mike brought to the marriage were some furnishings and somewhere between five and ten thousand dollars ($5,000.00-$10,000.00) cash other than from the sale of the items mentioned previously.

Danne brought to the marriage her own automobile and furnishings from a two bedroom apartment, all of which she owned free and clear. She also had approximately twenty thousand dollars ($20,000.00) in certificates of deposit (the remainder of her first husband's insurance policy proceeds) and thirty-five hundred to four thousand dollars ($3,500.00-$4,000.00) in a credit union account.

About half of the one thousand dollar ($1,000.00) monthly notes which Mike assumed in exchange for the land from his father were remaining at the time Mike and Danne married. These remaining notes were paid out of the Dunns' joint checking account. After the lots were paid for Mike sold two of them for five thousand four hundred dollars ($5,400.00). This amount went toward the expense of building the couple's house. The Dunns' home was built on the remaining six lots and the Shortly after Mike and Danne married they bought a trailer and put it on the six lots Mike still owned which were originally his father's. Mike testified that he paid for the trailer with the proceeds from the sale of the Corvette. The couple lived in this trailer while they built a house on the same land. When the trailer was sold in February, 1983, for seven thousand nine hundred dollars ($7,900.00), the money went into the house, according to Mike.

land was conveyed to allow Mike and Danne to own as joint tenants. Mike estimates the value of the land at the time he transferred it to him and Danne as joint tenants was between twenty-two and twenty-three thousand dollars ($22,000.00-$23,000.00).

Other funds for the house came from a variety of sources. Danne contributed her twenty thousand dollars ($20,000.00) as well as three thousand six hundred dollars ($3,600.00) from her credit union account (or checking account) and two or three hundred dollars ($200.00 or $300.00) from her checking account and Mike claims that he contributed an equal sum which was the money he received from the sale of the land in Gautier. He later stated that the money he contributed to the house also came from the sale of the Corvette. Danne disputed this and said Mike only contributed about ten thousand dollars ($10,000.00).

Income earned by Mike and Danne was put into a joint checking account from which the couple wrote checks to pay for items associated with building the house. The couple had also arranged a loan for forty thousand dollars ($40,000.00) through an individual named Jessie Williams. A log book kept by Mike but in possession of Danne at the time of this trial showed that a total of seventy-three thousand dollars ($73,000.00) was spent on the house, although Mike says that figure does not include "finishings." The couple then had a seven (7) year mortgage which they paid off via monthly notes of seven hundred six dollars and eleven cents ($706.11) which were paid out of their joint checking account.

After being employed at Jeff Coat Motors for many years, Mike decided to go into business for himself in 1984 and started Mike Dunn Auto Sales, a sole proprietorship. The business was located on property which Mike rented from Sid Hackler for five hundred dollars ($500.00) a month. Mike testified that he borrowed money from Sid Hackler and put about ten thousand dollars ($10,000.00) of his own money (from the sale of the Corvette) into start up costs. Danne testified that Mike asked her to borrow two thousand dollars ($2,000.00) from her credit union, which she did, and put it into the business. This amount has since been paid back through payroll deductions from Danne's checks. (At another point during the trial Danne stated that this money went into the house rather than the business.)

In late 1984 or 1985 Mike and Danne, using their homestead as collateral, obtained a fifty thousand dollar ($50,000.00) line of credit to enable Mike to increase his inventory at the car lot and, according to Mike, to pay for additional things at the house. Within a year, thirty thousand dollars ($30,000.00) had been spent. According to Mike, five thousand dollars ($5,000.00) went to build a deck at the Dunns' home and the remainder went to inventory at Mike Dunn Auto Sales. Over the next two years the amount spent had risen to the entire fifty thousand dollars ($50,000.00). Mike was unable to say what amount of the last twenty thousand dollars ($20,000.00) went to the business and what amount went to the marital home. Danne denies that any of the fifty thousand dollars went into the home.

In the early days of Mike Dunn Auto Sales, Danne helped Mike get started. In addition to working full time at Singing River she performed some work for Mike at the car lot and also worked for the business at home for ten to fifteen hours a week in the first months. After that time she continued to work about five or six hours a week at home for Mike Dunn Auto Sales until 1986, after the birth of their second child.

In contemplation of building his own facility for Mike Dunn Auto Sales, the Dunns purchased a commercial lot in 1987 in the names of Mike and Danne Dunn for fifty thousand dollars ($50,000.00). A ten thousand dollar ($10,000.00) down payment was made by Mike Dunn Auto Sales and the remaining forty thousand dollar ($40,000.00) balance was financed. Mike Dunn Auto Sales paid the balance down to thirty thousand dollars ($30,000.00); then this balance was consolidated with the fifty thousand dollars ($50,000.00) owed from the line of credit, for which the homestead had been used as collateral. As business took a turn for the worse, Mike never built on this land and at the time of trial had a "for sale" sign on the property which had been up for about seven months. Mike valued the property at about thirty-five thousand dollars ($35,000.00) as of the time of trial. Taxes on the lot were about fifty-five dollars ($55.00) a month.

The balance of the note which encumbered the homestead at the time of the trial was a little less than seventy-four thousand dollars (...