Garriga v. Garriga, 1999-CA-00098-COA.

• Decision Date: 30 May 2000
• Docket Number: No. 1999-CA-00098-COA.,1999-CA-00098-COA.
• Citation: 770 So.2d 978
• Parties: Vincent GARRIGA, Appellant. v. Lisa GARRIGA, Appellee.
• Court: Mississippi Court of Appeals

770 So.2d 978

Vincent GARRIGA, Appellant. v. Lisa GARRIGA, Appellee.

No. 1999-CA-00098-COA.

Court of Appeals of Mississippi.

May 30, 2000.

Rehearing Denied November 7, 2000.

David P. Oliver, Gulfport, Attorney for Appellant.

Wayne L. Hengen, Biloxi, Attorney for Appellee.

EN BANC.

KING, P.J., for the Court:

¶ 1. This is an appeal from a judgment of divorce entered in the Chancery Court of Jackson County dissolving the marriage of Vincent Garriga and Lisa Garriga. Vincent Garriga has appealed on the following issues, as taken verbatim from his brief: 1.) The court erred in affirming the master's report for the sale of a certain parcel of real property described in the master's report and divesting Vincent Garriga, the appellant herein, of his title.; 2.) The court erred in granting a divorce to Lisa Garriga, the appellee herein, in that she failed to prove by a preponderance of the evidence the grounds of habitual cruel and inhuman treatment.; 3.) The court erred in not granting Vincent Garriga, the appellant, a divorce on the grounds of habitual cruel and inhuman treatment and by not awarding alimony to him.; 4.) The Court erred in granting a ten per cent management fee to Lisa Garriga, the appellee and by ordering the appellant to pay attorneys' fees and costs.; and 5.) The court erred in ordering Vincent Garriga, the appellant, to pay Moore and Powell, a CPA firm, fees in the amount of $4,993.90.

¶ 2. Finding error we reverse in part and affirm in part.

FACTS

¶ 3. On June 2, 1997, Mrs. Garriga filed for divorce on the grounds of adultery and cruel, habitual and inhuman treatment, or alternatively irreconcilable differences. Mr. Garriga countersued citing as grounds for divorce desertion, and habitual, cruel and inhuman treatment, or alternatively, irreconcilable differences.

¶ 4. The Garrigas owned several parcels of rental property in the Biloxi, Mississippi area. When the divorce action was filed, they were experiencing financial difficulties and several of the rental properties were close to foreclosure. As a part of the divorce proceedings, Mrs. Garriga filed a motion for temporary relief, which asked the court to allow the rental property located at 145 Hopkins Blvd. in Biloxi, Mississippi to be sold and the proceeds applied to marital obligations. Mrs. Garriga also asked that Mr. Garriga be compelled to sign income tax refund checks, and that the tax refunds be applied to their outstanding real estate debt to prevent foreclosure. The Garrigas agreed to the appointment of a special master to hear this motion. The Master granted Mrs. Garriga's motion. Mr. Garriga appealed that decision to the Jackson County Chancery Court which affirmed the Master's decision, but directed that proceeds be deposited with the chancery court and disbursed only upon court order.

¶ 5. In April 1995, Mr. Garriga was hospitalized for three weeks for mental illness. Upon release, he resided briefly with his parents prior to returning to the marital home. The Garrigas separated in August 1996. Since this separation, Mr. Garriga has lived with his parents. Mr. Garriga believed that his mental status was such that he was unable to care for himself or handle any business related matters. As a result of his mental illness, Mr. Garriga filed for social security disability benefits. Mr. Garriga was found to be mentally disabled and awarded social security disability benefits.

¶ 6. Because of Mr. Garriga's alleged mental disability, a petition to appoint his parents as his conservators was filed. A hearing on this petition was scheduled for January 12, 1998.

¶ 7. The chancery court, aware of the pending conservatorship hearing, set the sale of the Hopkins Blvd. property for three days after the conservatorship hearing. Mr. Garriga requested that the court reconsider the ordered sale of the Hopkins Blvd. property. The court denied this motion on February 10, 1998, and the 145 Hopkins Blvd. property was sold on February 27, 1998. Prior to the sale, Mr. Garriga voluntarily withdrew the requested appointment of conservators.

¶ 8. After trial in August 1998, the chancellor granted Mrs. Garriga a divorce on the grounds of habitual, cruel and inhuman treatment, along with custody of the minor child. The chancellor provided visitation for Mr. Garriga and ordered the distribution of the personal property as agreed to by Mr. and Mrs. Garriga. The chancellor also ordered the sale of all real property jointly owned by Mr. and Mrs. Garriga with proceeds from the sales to be divided equally between the Garrigas. Motions to amend the judgment of divorce and for reconsideration were filed. A final judgment was entered in December 1998 which overruled all motions. It is from this final judgment that Mr. Garriga appeals.

ANALYSIS AND DISCUSSION OF THE LAW

I.

The Court erred in affirming the Master's Report for the sale of a certain parcel of real property described in the Master's Report and divesting Vincent Garriga, the appellant herein, of his title thereto.

¶ 9. Mr. Garriga argues that a court ordered sale of the real property was error when the purpose of the sale did not relate to alimony, maintenance or child support. At the time of the sale, the parties marital rights and interests in the property were yet to be determined. Mr. Garriga asserts error by the court in ordering a sale prior to determining those rights and interests and thereby possibly affecting the chancellor's ultimate decision with regard to property distribution and alimony.

¶ 10. Mr. Garriga also argues that when the sales contract was entered into on August 21, 1997, he lacked the capacity to contract. He argues that the court erred by not conducting an independent investigation as to his mental state at the time the contract was signed. Mr. Garriga argues that this amounted to manifest error on the part of the chancellor.

¶ 11. This divorce was an ongoing process. Mr. and Mrs. Garriga's marital estate contained a number of rental properties. Those rental properties, facing possible foreclosure, required preservation. Unless these properties were protected, neither party would have an interest in them. The chancery court had the inherent authority to take appropriate steps to preclude waste of the marital estate pending a final resolution of the marital relation and rights of the Garrigas. Baker v. Weedon, 262 So.2d 641, 644 (Miss.1972). The court did not act beyond its inherent authority in ordering the sale of 145 Hopkins Blvd. to protect the bulk of the marital estate.

¶ 12. As a part of this issue, Mr. Garriga alleges that he lacked the mental capacity to contract for the sale of real property, and the chancellor therefore erred in ordering a sale. This Court finds no merit in this allegation. The sale was not ordered pursuant to the contract, but based upon the urgent and necessitous circumstance established by Mrs. Garriga. As noted, the chancellor possessed appropriate equity power to preserve and protect the marital assets. Id. Out of an abundance of caution the chancellor slated the sale for three days after the scheduled conservatorship hearing. The petition to appoint conservators was voluntarily dismissed prior to the sale. This action is reviewed on the familiar abuse of discretion standard. Denson v. George, 642 So.2d 909, 913 (Miss.1994). Having reviewed the information then before the chancellor, this Court cannot say that he abused his discretion.

¶ 13. The Court finds no merit in this issue.

II.

The court erred in granting a divorce to Lisa Garriga, the appellee herein, in that she failed to prove by a preponderance of the evidence the grounds of habitual cruel and inhuman treatment.

¶ 14. Mr. Garriga alleges an insufficiency of evidence to prove Mrs. Garriga's case. He states that the allegations of arguments and harassment, staying out at night and leaving Mrs. Garriga in a parking lot do not amount to cruel, habitual and inhuman treatment. To justify a divorce on the grounds of habitual cruel and inhuman treatment, the conduct must endanger life, limb, health or create a reasonable apprehension of danger which renders the relationship unsafe for the party seeking relief, or be so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, destroying the basis for its continuance. Rakestraw v. Rakestraw, 717 So.2d 1284, 1287 (¶ 8) (Miss.Ct. App.1998). The chancellor did not itemize his fact finding on this issue. While such is preferable, it is not fatal.

¶ 15. "Generally, when there are no specific findings of fact, this Court often assumes that the chancellor resolved fact issues in favor of the appellee." Sarver v. Sarver, 687 So.2d 749, 757 (Miss.1997). The Court will assume that the "chancellor made determinations of fact sufficient to support its judgment ... and the Court will look to the evidence and see what state of facts, if any, will justify the decree." Id. Only a showing of a preponderance of the evidence is necessary to receive a divorce on the grounds of habitual, cruel and inhuman treatment. Smith v. Smith, 614 So.2d 394, 396 (Miss.1993). The chancellor, after hearing the evidence presented in open court, determined that Mrs. Garriga had met her burden of proof. In looking at the record for sufficient evidence to support the chancellor, we note testimony as follows.

¶ 16. Mrs. Garriga presented evidence of her husband's adulterous relationship, violent rampages, and drunken stupors. Mrs. Garriga expressed a fear that Mr. Garriga might harm her. She testified that he drank a lot and always kept a flask of vodka with him. He would get drunk and stay out either very late or all night. After returning home on those occasions, Mr. Garriga would force himself on her. Mrs. Garriga testified that it was necessary to lock herself in the bathroom and sleep on the floor to get away from him. Mrs. Garriga continued...