Dunn v. Dunn

• Citation: 911 So.2d 591
• Decision Date: 13 September 2005
• Docket Number: No. 2004-CA-00937-COA.,2004-CA-00937-COA.
• Parties: Carrie DUNN, Appellant/Cross-Appellee v. David DUNN, Appellee/Cross-Appellant.
• Court: United States State Supreme Court of Mississippi

911 So.2d 591

Carrie DUNN, Appellant/Cross-Appellee v. David DUNN, Appellee/Cross-Appellant.

No. 2004-CA-00937-COA.

Court of Appeals of Mississippi.

September 13, 2005.

COPYRIGHT MATERIAL OMITTED

Jay L. Jernigan, Hattiesburg, attorney for appellant.

Jack Parsons, attorney for appellee.

Before LEE, P.J., MYERS and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. Carrie Dunn appeals the decision of the Perry County Chancery Court regarding valuation and distribution of certain marital assets, the amount awarded her in child support and the court's denial of her motion to reopen the case with respect to tax ramifications of which she became aware subsequent to trial. David Dunn cross-appeals challenging the court's valuation and distribution of the marital assets and the chancellor's failure to award him child support. Finding error only in the chancellor's refusal to reopen, we affirm in part and reverse and remand in part.

STATEMENT OF FACTS AND DISPOSITION

¶ 2. Carrie and David Dunn were granted a divorce on April 20, 2004 in the Perry County Chancery Court, ending their marriage of over fourteen years. The Dunns had been married since 1989 and during that time had seen the births of two daughters, Lauren and Karen. David worked as a surveyor throughout the marriage, and at the time of the divorce, each of the Dunns owned fifty percent of the stock of Dunn Surveying, Inc., a subchapter S corporation. Carrie worked full time as a nurse.

¶ 3. Before trial, the court granted the Dunns's joint motion to dismiss fault grounds, allowing them to pursue an irreconcilable differences divorce. Also prior to trial, the Dunns agreed upon custody and visitation arrangements, under which Carrie received primary physical care and custody of four-year-old Lauren and David received primary physical care and custody of fourteen-year-old Karen. As a result of these pre-trial agreements, the only issues before the chancery court were child support and property distribution.

¶ 4. The chancellor initially issued a bench ruling in the case, but the order was withdrawn the following day. In its place, a final judgment was issued on April 29, 2004, dissolving the marriage and awarding, among other things: (1) all shares of Dunn Surveying, Inc. to David; (2) the building in which Dunn Surveying was located, to David; (3) the marital home to Carrie, subject to all existing indebtedness, and with the condition that David pay one-half of the monthly mortgage payments for the next eighteen months; (4) the couple's one-half share of a 103-acre Lewisburg, Kentucky, property which the Dunns owned jointly with another couple, to David; and (5) $400 per month in child support to Carrie.

¶ 5. After trial but prior to the issuance of the final judgment, both parties moved to reopen the case. David sought to provide the court with more detailed evidence on the value of the Kentucky property and on the value of Dunn Surveying, but his motion was denied.¹ Carrie's motion to reopen alleged that immediately after the trial, David sent her a certified letter showing that she had received income from Dunn Surveying totaling $14,305; she contended that David attributed this income to her in order to mask his own true income and to force her to pay taxes on income that she never received. Thus, Carrie asked the chancellor to reopen the case in order to evaluate Dunn Surveying in light of this alleged accounting misconduct. The chancellor denied her motion, stating that it would require the court to delve into events which transpired after the full trial had ended, and that if the corporation owed money to Carrie, the issue could be litigated in a court of law as a pure debt matter.

¶ 6. Aggrieved, Carrie timely filed a notice of appeal to this Court. She contends that the chancellor erred in failing to evaluate and divide the marital property properly; specifically, Carrie alleges that the lower court erred by ignoring appraisal reports of the Kentucky property and substantially undervaluing Dunn Surveying, Inc. Carrie further challenges the adequacy of the award of child support and the chancellor's denial of her motion to reopen.

¶ 7. On cross-appeal, David also alleges that the chancellor erred in failing to evaluate and divide the marital property properly, specifically by overvaluing Dunn Surveying. Additionally, he claims the lower court erred in failing to order Carrie to pay child support for the care of Karen, the child in his custody. Lastly, David states that the chancellor erred in ordering him to pay one-half of the mortgage note due on the marital home for the next eighteen months.

STANDARD OF REVIEW

¶ 8. The scope of review in domestic relations matters is strictly limited. Brawdy v. Howell, 841 So.2d 1175, 1178(¶ 8) (Miss.Ct.App.2003). "This Court will not disturb the chancellor's findings unless the court's actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard." Andrews v. Williams, 723 So.2d 1175, 1177(¶ 7) (Miss.Ct.App.1998) (citing Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997)). Particularly in the areas of divorce, alimony and child support, this Court is required to uphold the findings of fact made by a chancellor that are supported by substantial evidence and that do not indicate arbitrariness or caprice. Henley v. Jones, 880 So.2d 382, 384(¶ 5) (Miss.Ct.App.2004) (citing Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990)); Uglem v. Uglem, 831 So.2d 1175, 1177(¶ 7) (Miss.Ct.App.2002).

ISSUES AND ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN EVALUATING AND DIVIDING THE MARITAL PROPERTY, PARTICULARLY DUNN SURVEYING, INC. AND THE KENTUCKY PROPERTY.

¶ 9. In his final order, the chancellor valued and distributed the relevant marital property as follows:

(1) All shares of Dunn Surveying, Inc., to David, with the chancellor assigning the business a value of $60,000;

(2) The building in which Dunn Surveying was located, valued at zero due to indebtedness exceeding the market value of the property, to David;

(3) The marital home, valued at $60,000, to Carrie;²

(4) The one-half share of the 103-acre Kentucky property, valued at $11,000, to David;³

(5) Three vehicles, valued at the automobiles' combined equity of $26,700, to David; and

(6) A 2000 Nissan Maxima, valued at its equity of $17,500, to Carrie.

¶ 10. According to these figures, the total marital assets were valued at $175,200. In the resulting distribution, David received $97,700 in assets, or 55.8%, and Carrie received $77,500 in assets, or 44.2%. However, the chancellor also required that David pay half of the monthly mortgage note of approximately $1,900 for the next eighteen months; these additional payments will increase the value of the total marital assets to $192,300, distributing $97,700 (50.8%) to David and $94,600 (49.2%) to Carrie.

¶ 11. It is well settled that this Court will look to the chancellor's application of the Ferguson factors when reviewing questions of equitable distribution of marital property.⁴ Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994); Wells v. Wells, 800 So.2d 1239, 1242(¶ 4) (Miss.Ct.App.2001). While both parties assert generally that the chancery court did not take proper consideration of the Ferguson factors, their primary dispute lies in the chancellor's treatment of one factor: the market value of the assets at issue. Carrie contends that the chancellor erred in the evaluation and distribution of the marital assets by failing to give due regard to an appraisal report of the Kentucky property and by inadequately examining the financial records of Dunn Surveying, Inc. She alleges that these errors resulted in the chancellor valuing these assets below their fair market value. David counters, arguing that the chancellor erred by overvaluing Dunn Surveying.

¶ 12. At the outset, we note that in reviewing a chancellor's judgment as to the distribution of marital property, it is not within this Court's province to conduct a Ferguson analysis anew: Rather, the Court will review the chancellor's judgment to ensure that he followed the appropriate standards and did not abuse his discretion. Phillips v. Phillips, 904 So.2d 999, 1001(¶ 8) (Miss.2004). In so reviewing, the Court must keep in mind that equitable distribution does not always mean an equal division of property. Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss.1994). While this Court has reversed decisions where the chancellor failed to apply every one of the Ferguson factors, not every case requires consideration of all of the factors. Weathersby v. Weathersby, 693 So.2d 1348, 1354 (Miss.1997). This Court has stated that the chancellor may consider only those factors he finds applicable to the property in question. Glass v. Glass, 857 So.2d 786, 790(¶ 10) (Miss.Ct.App.2003).

¶ 13. The chancellor's final order made it abundantly clear that he fully considered the Ferguson factors in distributing the marital property. Following the guidelines, the chancellor addressed each party's income and contribution to the accumulation of the marital property. In particular, the court noted that David's contribution exceeded Carrie's by a substantial margin due to his higher income. The court also recognized the amount of time devoted by Carrie to the rearing of the Dunns's two young children, and Carrie's attending college to obtain her nursing degree. The chancellor additionally found that both parties had been good stewards of the marital property, and that neither had engaged in wasteful behavior. Lastly, in his original bench opinion, the chancellor also noted the need "to cut everything clean," or to distribute the assets so as to eliminate friction between the parties in the future.

¶ 14. It is thus apparent from the record that the chancellor gave consideration to the pertinent Ferguson factors in his valuation and distribution of the Dunns's marital assets. We find it necessary only to discuss in detail...