Ethridge v. Ethridge, 93-CA-00867

• Decision Date: 12 January 1995
• Docket Number: No. 93-CA-00867,93-CA-00867
• Citation: 648 So.2d 1143
• Parties: Betty M. ETHRIDGE, v. Billy C. ETHRIDGE.
• Court: Mississippi Supreme Court

Page 1143

648 So.2d 1143

Betty M. ETHRIDGE, v. Billy C. ETHRIDGE.

No. 93-CA-00867.

Supreme Court of Mississippi.

Jan. 12, 1995.

Lisa J. Howell, Jordan & Jones, Meridian, for appellant.

Lawrence Primeaux, Goldman & Primeaux, Meridian, for appellee.

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

PITTMAN, Justice, for the Court:

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

Betty and Billy Ethridge were married on November 15, 1986, in Lauderdale County, Mississippi. The parties remained married for six years, until October 31, 1992, at which time the couple chose to separate. Subsequently, in January, 1993, the parties submitted an irreconcilable differences decree with three issues for the chancellor's decision: 1) whether to award Betty Ethridge alimony; 2) whether attorney's fees were to be paid by one or both parties; and 3) whether court costs were to be paid by one or both parties.

A hearing was held on July 14, 1993, with the Honorable George Warner presiding. The following facts were developed during the course of the hearing.

At the time the parties divorced, Betty was 62 years old, was working part-time and was receiving monthly social security income. Betty testified that the couple had lived at 4303 North Hills Street during the course of their marriage but that the home was owned by Billy prior to their marriage and he had built and paid for the entire construction. She further discussed a $5,000.00 life insurance policy in her name. However, she stated that she did not intend on cashing it in as she wanted the funds to be used by her children to bury her. Betty also testified that Mr. Ethridge had certificates of deposit in his name valued over $100,000.00, i.e., sufficient funds to meet her request for alimony. However, Betty also stated that these instruments were obtained by Mr. Ethridge prior to their marriage and were titled solely in his name.

Billy was 67 at the time the parties separated, was drawing social security, and had worked part time doing carpentry work up and until his last surgery for hernia repair in 1993. Billy began drawing his social security benefits at age 62, shortly after the parties married. He also lived on the interest he drew from his certificates of deposit. ¹ Billy testified that he provided the majority of the couple's living expenses during the marriage (bills, maid service) and he also conceded According to the testimony, Billy had approximately $156,000 in equity from his home, tools and equipment, 1990 automobile and certificates of deposit, so that his standard of living would not decrease as a result of Betty leaving the marriage. When asked what property (real and/or personal) the couple acquired during the course of the marriage, Billy responded "none."

that Betty's standard of living would go down, as a result of the separation. Betty conceded that, absent her having to pay rent for a place to live, she and Mr. Ethridge had roughly the same standard of living and monthly expenses. Betty, as part of the consent decree, obtained the couple's 1989 Buick automobile, which Billy paid for.

After hearing all the testimony, the chancellor ruled from the bench that the parties would be granted a divorce on the grounds of irreconcilable differences. The chancellor then ruled that court costs would be divided equally between the parties and that each party would be responsible for their respective attorney's fees. The chancellor then considered the issue of whether to award alimony and considered each of the twelve factors set forth in this Court's decision of Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). The court noted that several of the factors were inapplicable to the case as there were no minor children involved, no wasteful dissipation of assets, no tax consequences, and no fault and/or misconduct.

The chancellor, considering the "catch-all" factor and differences in the parties income, determined that there was not a great difference, and that there had been some miscalculations with regard to Betty's net monthly income. The chancellor further found that there had been no jointly acquired property and that each party had sufficient personal income to pay for the necessities of life. In addition, while Betty had only $10,000.00 in assets and Billy had over $100,000.00, his equity was established and in existence prior to the marriage. Further, the chancellor considered the short duration of this marriage and the age of the parties.

After considering the applicable factors, the chancellor ruled that the facts did not necessitate an award of alimony to Mrs. Ethridge by Mr. Ethridge.

Aggrieved by the ruling of the chancellor, Betty perfected an appeal to this Court and assigns the following as error:

I. THE TRIAL COURT ERRED IN NOT AWARDING LUMP SUM OR PERIODIC ALIMONY TO BETTY ETHRIDGE

LAW

I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN NOT AWARDING LUMP SUM OR PERIODIC ALIMONY TO BETTY ETHRIDGE?

Standard of Review

At the outset, it should be noted that this Court's recent decisions of Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994) and Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), post date the trial of the case sub judice. Further, the parties agreed to the disposition of marital property via the irreconcilable differences decree. Because equitable division of marital property is not at issue, and the sole issue is the failure to award alimony, neither Hemsley or Ferguson is relevant to the actual disposition of the issue raised. The facts and testimony reveal that this was a marriage of short duration and that Betty Ethridge left the marriage economically stronger than she entered, i.e. materially improved. Further, although Billy's assets substantially exceeded the value of Betty's assets, the uncontradicted evidence demonstrated that each party's assets had been acquired outside and prior to the marriage and under Hemsley and Ferguson, there would be no differing result in the marital property estate. We again state that non-marital property is not subject to equitable division. Therefore, the remainder of our discussion focuses on the factors utilized in awarding alimony.

"Our scope of review of an alimony award is well-settled. Alimony awards are within the discretion of the chancellor, and his discretion will not be reversed on appeal unless the chancellor was manifestly in error The chancellor in determining whether to award Betty Ethridge alimony, applied the factors set forth in Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). These factors include:

in his finding of fact and abused his discretion." Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993) (citation omitted). This Court will not disturb a chancellor's ruling if the findings of fact are supported by credible evidence in the record. Hammett v. Woods, 602 So.2d 825, 837 (Miss.1992) (citing Clark v. Myrick, 523 So.2d 79, 80 (Miss.1988)).

1. Income and expenses of the parties;

2. Health and earning capacity of the parties;

3. Needs of each party;

4. Obligations and assets of each party;

5. Length of the marriage;

6. Presence or absence of minor children in the home;

7. Age of the parties;

8. Standard of living of the parties both during the marriage and at...