Gilmer v. Gilmer

Decision Date28 May 2020
Docket NumberNO. 2018-CA-00403-COA,2018-CA-00403-COA
Citation297 So.3d 324
Parties William Gerald GILMER, Appellant/ Cross-Appellee v. Sandra Giachelli GILMER, Appellee/ Cross-Appellant
CourtMississippi Court of Appeals

ATTORNEYS FOR APPELLANT: MATTHEW THOMPSON, Jackson, CHAD KENNETH KING

ATTORNEYS FOR APPELLEE: TRACY STIDHAM STEEN, Flowood, WHITNEY McKAY ADAMS

BEFORE TINDELL, P.J., McDONALD AND McCARTY, JJ.

TINDELL, J., FOR THE COURT:

¶1. On October 4, 2017, the Rankin County Chancery Court entered its opinion and final judgment, granting Sandra ("Sandy") Gilmer a divorce against William ("Bill") Gilmer on the ground of habitual cruel and inhuman treatment. After dividing the couple's marital property, the chancellor awarded Sandy the marital home and ordered her to pay Bill $75,275 (half of the equity in the home). The chancellor also ordered Sandy to repay any remaining balances on the marital-home mortgage and on the couple's Copiah Bank line of credit. Finally, the chancellor denied Bill's request for separate maintenance or alimony. In his opinion, the chancellor also granted Sandy's second motion for contempt against Bill and awarded Sandy a total of $10,750 in attorney's fees for the divorce action and the contempt action.

¶2. Following the chancellor's judgment, Bill filed a motion for new trial or amendment of judgment on October 16, 2017. On February 15, 2018, the chancellor entered an order amending his judgment and awarding Bill an additional $3,625 in equity on the couple's marital home. In the amended judgment, the chancellor also found that Bill was not required to reimburse Sandy for $2,500 in attorney's fees that the previous chancellor had ordered her to pay Bill as a sanction for her first motion for contempt.

¶3. Aggrieved, Bill appeals from the chancellor's opinion and final judgment, challenging the judgment of divorce, distribution of marital assets and debt, denial of separate maintenance and alimony, and award of attorney's fees. Sandy cross-appeals, challenging the chancellor's division of assets in the original judgment and the chancellor's decision to require Bill to reimburse her with $2,500 in attorney's fees related to her first motion for contempt.

¶4. Upon review, we find no error in the chancellor's judgment of divorce, equitable division of assets, or denial of separate maintenance or alimony. We also find no error in the chancellor's decision to not require Bill to repay the $2,500 to Sandy. But we do find that the chancellor erroneously granted Sandy attorney's fees without providing a proper analysis regarding her ability to pay. We therefore affirm in part and reverse in part the chancellor's judgment, and we remand this case for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶5. Bill and Sandy married on June 25, 2005. The couple had no children together, but both parties had children from previous marriages. Sandy has three children (Jamie Aron, Josh Aron, and Jacob Aron), and Bill has two children (Kim Gilmer Horn and Will Gilmer). The couple exercised a "week on, week off" custody arrangement so that Bill's children and Sandy's children could all be together at the same time. Bill and Sandy lived in Florence, Mississippi, for the majority of their marriage until their separation on or about August 24, 2014.

¶6. On August 26, 2014, Sandy filed for divorce against Bill on the ground of habitual cruel and inhuman treatment. On September 9, 2014, Bill answered, denying Sandy's allegations and requesting temporary and permanent separate maintenance. That same day, the parties entered into an agreed temporary order, which allowed Bill temporary, exclusive use and control of the marital home. The order also held Bill responsible for making all payments on the home's mortgage and the couple's Copiah Bank home equity line of credit. Additionally, Sandy agreed to attend two counseling sessions with Bill at his expense. The agreed order also allowed Sandy to take possession of certain pieces of furniture and personal property.

¶7. Throughout the divorce proceedings, the parties filed various motions for contempt against each other relating to their agreed temporary order. Sandy filed her first motion for contempt against Bill on October 15, 2014, arguing that Bill had willfully and maliciously failed to timely make the mortgage payments, thereby damaging Sandy's credit rating. Sandy also argued that Bill refused to allow her to have certain pieces of furniture and personal property listed in the agreed temporary order. Sandy requested that the chancellor place Bill in jail for failing to timely pay their mortgage and issue a writ of assistance to the Rankin County Sheriff's Office so that law enforcement could accompany her to the marital home to retrieve her remaining personal property. Bill filed his own motion for contempt against Sandy on October 23, 2014. In his motion, Bill argued that Sandy wrongfully prevented him from access to the couple's online Wells Fargo account, refused to attend counseling sessions as mandated by the agreed temporary order, and entered the marital home and collected items not listed in the agreed temporary order.

¶8. On October 30, 2014, the chancellor conducted a hearing on both motions for contempt. At the conclusion of the hearing, the chancellor issued a bench ruling and primarily found Sandy's motion to be frivolous and ordered her to pay Bill $2,500 in attorney's fees as a sanction. The chancellor also appointed Gary Williams, Esq. to supervise Sandy as she retrieved the remaining items of personal property listed in the agreed temporary order. But the chancellor subsequently died, and the bench ruling was never deduced to a written order. Sandy complied with the chancellor's bench ruling, however, and paid Bill $2,500 in attorney's fees.

¶9. Divorce proceedings took place before the succeeding chancellor on June 16, 2015; May 17-18, 2016; October 17-18, 2016; October 20, 2016; and March 27-28, 2017. In the midst of the proceedings, Sandy filed her second motion for contempt on August 4, 2016. After hearing all the evidence over a period of nineteen months, the chancellor took the divorce and property distribution matters under advisement, as well as Sandy's second motion for contempt. On October 4, 2017, the chancellor entered his opinion and final judgment and found, in pertinent part, that: (1) Sandy was entitled to a divorce against Bill on the ground of habitual cruel and inhuman treatment; (2) Sandy was awarded exclusive possession and control of the couple's marital home and was required to pay Bill $75,275 in equity in the marital home; (3) Sandy was to be responsible for all remaining debt on the Wells Fargo mortgage and on the Copiah Bank line of credit; (4) Bill was not entitled to separate maintenance or alimony; (5) Bill was held in contempt of court and required to pay any past-due payments; and (6) Bill was required to pay Sandy $10,000 in attorney's fees for the divorce action and $750 for the second contempt action.

¶10. Following the chancellor's opinion and final judgment, Bill filed a motion for new trial or amendment of judgment on October 16, 2017. In his motion, Bill argued, in part, that (1) the chancellor's division of equity in the marital home failed to consider any payments Bill made during the divorce proceedings; (2) the chancellor failed to make a proper McKee1 analysis to determine whether Sandy had an inability to pay her attorney's fees; and (3) Bill should not be required to reimburse Sandy for the $2,500 sanction that the previous chancellor assessed against her for her first motion for contempt.

¶11. On February 15, 2018, the chancellor entered an order amending judgment. In his amended judgment, the chancellor awarded Bill an additional $3,625 in equity on the marital home. The chancellor further found that Bill was not required to reimburse Sandy for the $2,500 relating to her first motion for contempt. But the chancellor found that the $10,750 award of attorney's fees to Sandy was appropriate under McKee .

¶12. Bill appeals from the chancellor's opinion and final judgment, arguing that the chancellor erred when he (1) granted a divorce based upon habitual cruel and inhuman treatment, (2) equitably distributed the couple's marital property based upon the divorce, (3) declined to consider Bill's request for separate maintenance or alimony, and (4) awarded Sandy attorney's fees without making a proper McKee analysis regarding Sandy's ability to pay. Sandy cross-appeals the chancellor's original judgment and the amended judgment, arguing that the chancellor erroneously (1) awarded Bill an additional $3,625 in equity on the couple's marital home without sufficient evidence, (2) decided that Bill was not required to reimburse the $2,500 in attorney's fees pursuant to the previous chancellor's bench ruling, and (3) assessed the entirety of the couple's Copiah Bank line of credit to Sandy against the weight of the evidence.

STANDARD OF REVIEW

¶13. We adhere to a limited standard of review when analyzing a chancellor's determinations in domestic-relations matters. Williams v. Williams , 224 So. 3d 1282, 1284 (¶5) (Miss. Ct. App. 2017). "[T]his Court will not disturb a chancellor's judgment when it is supported by substantial credible evidence unless the chancellor abused [his] discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard." Branch v. Branch , 174 So. 3d 932, 937 (¶9) (Miss. Ct. App. 2015) (citing Rolison v. Rolison , 105 So. 3d 1136, 1137 (¶4) (Miss. Ct. App. 2012) ). But we apply a de novo review to questions of law. Id .

¶14. When this Court reviews issues related to a chancellor's division of marital property, we are required "to ensure that the chancellor followed the appropriate standards and did not abuse his discretion." Wells v. Wells , 800 So. 2d 1239, 1243 (¶8) (Miss. Ct. App. 2001). Because alimony is generally considered along with property distribution, we also...

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