Gaskin v. Gaskin

• Decision Date: 14 April 2020
• Docket Number: NO. 2018-CA-01201-COA,2018-CA-01201-COA
• Citation: 304 So.3d 641
• Parties: Michael Anthony GASKIN, Appellant v. Allison Cherie Scott GASKIN, Appellee
• Court: Mississippi Court of Appeals

304 So.3d 641

Michael Anthony GASKIN, Appellant

v.Allison Cherie Scott GASKIN, Appellee

NO. 2018-CA-01201-COA

Court of Appeals of Mississippi.

April 14, 2020

Rehearing Denied July 28, 2020

ATTORNEYS FOR APPELLANT: B. RUTH JOHNSON, MICHELE DAWN BIEGEL, Jackson

ATTORNEYS FOR APPELLEE: MARK A. CHINN, Jackson, JANEAH RAY SAKALAUKUS

BEFORE BARNES, C.J., WESTBROOKS AND C. WILSON, JJ.

C. WILSON, J., FOR THE COURT:

¶1. The Rankin County Chancery Court granted Allison Cherie Scott Gaskin (Allison) a divorce from Michael Anthony Gaskin (Tony) on the ground of uncondoned adultery. In dividing the marital estate, the chancellor awarded Allison $612,080.57 and Tony $960,964.07. The chancellor also ordered Tony to pay Allison lump-sum alimony of $174,441.75 and $1,000 per month in periodic alimony. Tony now appeals. Finding no error, we affirm the chancery court's judgment.

FACTS AND PROCEDURAL HISTORY

¶2. Tony and Allison were married on May 6, 2000. During the course of their marriage, Tony operated his plumbing company, Gaskin Plumbing, out of the parties’ marital home, and Allison worked as a public school teacher until she retired in 2017 due to disability.¹ Despite her disability, Allison has continued to work occasionally as a part-time substitute teacher. The couple had three children, the eldest of whom was emancipated by the time this action was filed. Tony and Allison separated in 2015, and Tony filed for divorce on March 13, 2017. In response, Allison alleged her own counterclaim for divorce on the ground of uncondoned adultery.

¶3. The chancery court held a hearing on the parties’ claims on March 7-8, 2018. The court bifurcated the case, hearing the grounds for divorce first and then addressing equitable division of the marital estate, alimony, and child custody and support. Based on the testimony of Tony and his "paramour," who both admitted their adulterous relationship, the chancellor granted Allison a divorce on the ground of uncondoned adultery. Thereafter, the chancellor heard evidence regarding division of the marital estate, alimony, and child custody and support.

¶4. In its "Findings of Fact, Conclusions of Law, and Final Judgment of the Court" entered April 16, 2018, the chancellor set forth his findings as to the parties’ remaining claims. The chancellor first valued the parties’ marital and nonmarital property. The chancellor then proceeded to divide the marital assets in accordance with Ferguson .² The chancellor conducted a detailed Ferguson analysis and distributed the marital property accordingly. After the chancellor did so, the value of Tony's marital assets totaled $960,964.07, and Allison's portion of the marital estate was valued at $612,080.57—a difference of $348,883.50 in Tony's favor. To balance the parties’ shares of the marital estate, the chancellor ordered Tony to pay Allison lump-sum alimony of $174,441.75.

¶5. After valuing and dividing the marital estate, the chancellor found that the Armstrong factors³ warranted payment by Tony to Allison of $1,000 per month in periodic alimony. In making this finding, the chancellor placed "great emphasis on the difference between the monthly income and expenses of the parties," noting that Tony's monthly income was approximately $12,085, whereas Allison's was only about $500. The chancellor also stated that Allison's physical disability was a "significant factor" in his award of spousal support. The chancellor reasoned that Tony did not suffer from any health problems that impacted his ability to work, while Allison's physical condition made her ability to maintain full-time employment "questionable."

¶6. The chancellor then turned his attention to the remaining issues of child custody and support. The chancellor conducted a detailed Albright analysis⁴ and determined that it was in the minor boys’ best interest for Allison to be awarded sole physical custody with the parties sharing joint legal custody, and Tony enjoying visitation rights. Applying the statutory guidelines, the chancellor set Tony's monthly child-support obligation at $2,417.16. The chancellor also ordered Tony to continue to maintain his Farm Bureau Life Insurance policy with death benefits of at least $900,000 "to guarantee the support of the minor boys" until they were both emancipated. Lastly, the chancellor found that "[e]ach party shall be responsible for his or her own attorney fees and expert witness fees, as no McKee factors⁵ proof was introduced sufficient to warrant the award of said fees to either party."

¶7. Following the entry of the chancery court's final judgment, Tony filed a "Motion to Alter or Amend Findings of Fact, Conclusions of Law, and Final Judgment of the Court" pursuant to Rule 59 of the Mississippi Rules of Civil Procedure on April 26, 2018. After a hearing, the chancery court entered an "Order Granting, in Part, Reconsideration of Visitation and Denying Remaining Relief" on July 25, 2018. In this order, the chancellor amended the final judgment to allow additional visitation "as long as the additional visitation [did] not interfere with familial activity or ... pose an obstacle or problem with other scheduled activities." The chancellor denied all the other relief Tony sought in his Rule 59 motion.

¶8. Tony now appeals, arguing that the chancellor erred in (1) determining that Tony's expert's testimony regarding the valuation of Allison's PERS retirement account was "highly speculative"; (2) ordering Tony to maintain a $900,000 life insurance policy during his boys’ minority; (3) determining that Allison's inherited property was not marital property; (4) dividing the marital estate; (5) awarding alimony; and (6) ordering the parties to pay for their own expert witness fees.⁶ Finding no error, we affirm.

STANDARD OF REVIEW

¶9. "This Court employs a limited standard of review of property division and distribution in divorce cases." Crew v. Tillotson , 282 So. 3d 776, 782 (¶22) (Miss. Ct. App. 2019) (quoting Parrish v. Parrish , 245 So. 3d 519, 522 (¶5) (Miss. Ct. App. 2017) ). "We will not disturb a chancellor's findings unless the court was manifestly wrong, abused its discretion[,] or applied an erroneous legal standard." Williams v. Williams , 56 So. 3d 1277, 1280 (¶12) (Miss. Ct. App. 2011). However, questions of law are reviewed de novo. Broome v. Broome , 75 So. 3d 1132, 1139 (¶19) (Miss. Ct. App. 2011).

DISCUSSION

I. Whether the chancellor erred in determining that Tony's pension-expert's testimony was "highly speculative."

¶10. Tony contends that the chancellor erred in "wholly disregarding" his pension-expert's testimony as "highly speculative." On our review of the record, we find no abuse of discretion by the chancellor and conclude that this issue lacks merit.

¶11. The chancellor determined that Allison's PERS retirement account was marital property and subject to equitable distribution. However, when Allison retired from teaching in July 2017, she "cashed in" her PERS retirement account, withdrawing the total balance of $43,582.04 and unilaterally using some of the funds to enroll the couple's younger two children in private school. During trial, Tony offered a certified public accountant, Joseph Hines, to provide expert analysis regarding the value of Allison's retirement account. Hines opined that the present value of Allison's retirement account was $188,118.58, not the lower amount Allison withdrew. In making his calculation, Mr. Hines "assum[ed] ... that Allison had not cashed out her [retirement] account and [assumed] that she lived long enough to draw benefits for a period of time equivalent to the average female lifespan in the United States." But the chancellor found Hines's "valuation to be ‘highly speculative’ due to the conditions precedent that must occur in order for his valuation to be realized." The chancellor further found that Hines's valuation "would require Allison to not cash out her retirement account, which had already been done[,]" and noted that "Allison is slightly physically disabled and may or may not be able to work until age [sixty]." In light of those findings, the chancellor concluded "that the best estimate of Allison's PERS present value [was] $43,582.04." The court awarded the account proceeds to Allison.

¶12. On appeal, Tony asserts that because Hines was the only expert to testify at trial⁷ regarding the value of Allison's PERS account, his testimony should have been accepted by the chancellor as uncontradicted. We disagree.

¶13. "[A] chancellor is in the best position to hear the testimony and view the evidence." Palmer v. Palmer , 841 So. 2d 185, 190 (¶19) (Miss. Ct. App. 2003). "Mississippi's chancellors are charged with weighing the evidence presented, and [this Court] will not disturb a chancellor's determination when supported by findings of fact absent manifest error or an abuse of discretion." Keough v. Keough , 742 So. 2d 781, 782 (¶5) (Miss. Ct. App. 1999). Here, the record indicates that during trial, the chancellor extensively questioned Hines regarding his $118,118.58 PERS account valuation. Hines stated that in calculating his valuation, he consulted PERS documents that valued Allison's account at $43,545.92. When Allison cashed in her retirement account in July 2017, PERS distributed that amount to her. When questioned by the chancellor about this amount, Hines agreed that $43,545.92 was the account balance based on contributions and earned interest as of July 2017. The chancellor then asked Hines, "And that's the only value that they're willing to validate, correct? In other words, there is nothing else in the PERS documents that they've given you saying, ‘Well, this $43,000 and change is going to be worth so much down the road.’ This is a calculation you've come up with?" Hines responded, "[R]ight."

¶14. Substantial evidence in the record supports the chancellor's findings with regard to the valuation of Allison's PERS account. It was within the chancellor's discretion to rely on PERS documentation...