Ferguson v. Ferguson, 92-CA-00058

Decision Date07 July 1994
Docket NumberNo. 92-CA-00058,92-CA-00058
Citation639 So.2d 921
PartiesBilly Cleveland FERGUSON, Sr. v. Linda Carr FERGUSON.
CourtMississippi Supreme Court

Aleita M. Sullivan, Mendenhall, for appellant.

Leonard B. Cobb, Ray & Cobb, Meridian, for appellee.

En Banc.

PRATHER, Presiding Justice, for the Court:


At issue in this domestic relations case is the division of marital property (both personal and real), alimony (both periodic and lump-sum), and future interests in retirement/pension plans. This Court has been in a transitory state regarding the division of marital assets. Our prior law adhered to a system of returning property to the spouse in whom title was held (separate property method); however, recent opinions have eroded adherence to that method of division. This Court has "long recognized that, incident to a divorce, the chancery court has authority, where the equities so suggest, to order a fair division of property accumulated through the joint contributions and efforts of the parties." Brown v. Brown, 574 So.2d 688, 690 (Miss.1990); Brendel v. Brendel, 566 So.2d 1269, 1273 (Miss.1990); Jones v. Jones, 532 So.2d 574, 580-581 (Miss.1988); Clark v. Clark, 293 So.2d 447, 450 (Miss.1974). With this opinion, this Court adopts guidelines for application of the equitable distribution method of division of marital assets.

Billy Ferguson, Sr., (Billy), appeals from a final judgment of divorce entered on November 12, 1991, by the Chancery Court of Newton County awarding a divorce to Linda Ferguson, (Linda), on the ground of adultery and denying Billy's counterclaim for divorce filed on the basis of habitual cruel and inhuman treatment. The Court affirms the granting of a divorce to the wife, together with custody and support of the minor child. With adoption of guidelines to aid chancellors in division of marital property under the equitable property division method, this Court reverses the award of marital assets and remands to the chancery court to re-evaluate the marital division in light of these guidelines.


A. Historical Background

States have devised various methods to divide marital assets at divorce, and approaches have usually followed one of three systems. According to Stephen J. Brake, Equitable Distribution vs. Fixed Rules: Marital Property Reform and the Uniform Marital Property Act, 23 B.C.L.Rev., 761, 762 (1982), the separate property system, the equitable distribution system, and a system of fixed rules (community property) are the three systems reflected in American jurisprudence. Id. (citing Foster and Freed, Divorce, note 5, at 4050-51). According to Foster and Freed, Mississippi 1, Florida, South Carolina, Virginia, and West Virginia previously followed the separate property system, which was a system that merely determined title to the assets and returned that property to the title-holding spouse.

Our separate property system at times resulted in unjust distributions, especially involving cases of a traditional family where most property was titled in the husband, leaving a traditional housewife and mother with nothing but a claim for alimony, which often proved unenforceable. In a family where both spouses worked, but the husband's resources were devoted to investments while the wife's earnings were devoted to paying the family expenses or vice versa, the same unfair results ensued.

The flaw of the separate property system, however, is not merely that it will occasionally ignore the financial contributions of the non-titleholding spouse. The system ... is also unable to take account of a spouse's non-financial contribution. In the case of many traditional housewives such non-financial contributions are often considerable. 2 Thus, to allow a system of property division to ignore non-financial contributions is to create a likelihood of unjust division of property.

See Brake, supra at 765.

The non-monetary contributions of a traditional housewife have been acknowledged by this Court, and to some extent, case law has helped lessen the unfairness to a traditional housewife in the division of marital property. 3 The mechanism applied by this Court to prevent unfair division is the resulting trust. Jones v. Jones, 532 So.2d 574, 582 (Miss.1988) (Prather, J., concurring).

Also, this Court has allowed lump sum alimony as an adjustment to property division to prevent unfair division. Reeves v. Reeves, 410 So.2d 1300, 1303 (Miss.1982); Clark v. Clark, 293 So.2d 447, 449 (Miss.1974); Jenkins v. Jenkins, 278 So.2d 446, 449 (Miss.1973). The lump sum award has been described as a method of dividing property under the guise of alimony. Stephen J. Brake, supra at 766. See also, H. Clark, Domestic Relations, Sec. 14.8 at 450 (1976). In Bowe v. Bowe, 557 So.2d 793, 794 (Miss.1990), this Court acknowledged that a chancellor had the authority and discretion to divide the marital assets by awarding periodic or lump sum alimony, or both, or by dividing the personal property, or awarding the exclusive use and possession of the homestead. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). The full development of our jurisprudence in this arena culminated in Draper v. Draper, 627 So.2d 302, 305 (Miss.1993), in which this Court abandoned the prohibition against the chancery court's divestment of title to real property, which was the last vestige of the separate property method of distribution of marital assets.

Thus, through an evolution of case law, this Court has abandoned the title theory method of distribution of marital assets and evolved into an equitable distribution system. 4

B. Chancery Court Authority

Courts have acknowledged that the power and authority of the chancery court to award alimony and child support have been historically derived from the legal duty of the husband to support the family. As to division of marital assets, it is the broad inherent equity powers of the chancery court that give it the authority to act. General equity principles of fairness undergird this authority. That duty was codified in Miss. Code Ann. Sec. 93-5-23 (Supp.1993) as follows: 5

When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife or husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of sum so allowed.

However, where proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each. (Emphasis added)

Of particular significance is the verbiage "any allowance ... to him or her."

Additionally, the statutory authority granted to the chancery court to award divorce on no-fault grounds and to approve the parties' agreement regarding marital property division or to make such division, on submission of that issue to the court by the parties, further undergirds the inherent equitable power of the chancery courts to address this issue of division of marital assets. The development of equitable doctrines is not foreclosed by these statutes. Under Draper, chancellors are empowered to address realty assets and to divest title, including that of the family home. In Draper, this Court said:

It is well-established by this Court that the chancery court has the authority to order an equitable division of property that was accumulated through the joint efforts and contributions of the parties. Brown v. Brown, 574 So.2d 688, 690 (Miss.1990). However, there is no automatic right to an equal division of jointly-accumulated property, but rather, the division is left to the discretion of the court. Id. at 691.

Id. at 305. In addition to the development of family law within our jurisprudence, there has been the advent of federal legislation into regulation of military and employee pension plans which has opened yet another arena in which state equity courts are empowered to address future interests and apply state law to pension plans, military retirement, and railroad retirement. Bowe, supra. This Court, therefore, holds that the chancery court is within its authority and power to equitably divide marital assets at divorce.

C. Vesting of Rights

The Court needs to address vesting in conjunction with the divesting of title to realty or personalty. This Court has held that a vested interest in a military retirement pension plan is a marital asset; however, "the spouse has no vested right in the serviceman's military retirement pension." Southern v. Glenn, 568 So.2d 281, 283 n. 1 (Miss.1990); Bowe v. Bowe, 557 So.2d 793, 795 (Miss.1990). As to the division of marital assets, this Court stated in Brown, 574 So.2d at 691 (citations omitted), that marital assets are not a source of vested rights. This Court stated:

The matter rather is committed to the discretion and conscience of the Court, having in mind all of the equities and other relevant facts and circumstances. (citations omitted) ... the term "vested" [ ] has no hard edged definition, no fixed and invariable legal meaning. "Vested" means different things in different contexts. (Citations omitted) ... vesting is quite different from a rule of discretion which allows a chancery court, incident to a divorce, to consider the relevant facts and circumstances and, where it is equitable and just to recognize a party's contributions to the accumulation of jointly held assets, to decree an equitable division.

Brown, 574 So.2d at 691. This Court adheres to the above principle that no right to property vests by virtue of the marriage relationship alone prior to entry of a judgment or decree...

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