Hankins v. Hankins, 95-CA-00954-SCT.

• Decision Date: 28 January 1999
• Docket Number: No. 95-CA-00954-SCT.,95-CA-00954-SCT.
• Citation: 729 So.2d 1283
• Parties: Charles Everette HANKINS v. Sherry Gay Goodson HANKINS.
• Court: Mississippi Supreme Court

729 So.2d 1283

Charles Everette HANKINS v. Sherry Gay Goodson HANKINS.

No. 95-CA-00954-SCT.

Supreme Court of Mississippi.

January 28, 1999.

A.E. Harlow, Sr., Grenada, Attorney for Appellant.

Luther Putnam Crull, Jr., Winona, Attorney for Appellee.

EN BANC.

ON MOTION FOR REHEARING

BANKS, Justice, for the Court:

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn and these opinions are substituted therefor.

¶ 2. In this matter we have for review a Judgment of the Grenada County Chancery Court, which granted a divorce to the appellee on the grounds of habitual cruel and inhuman treatment and which granted appellee an equitable division of property, periodic alimony, child support and a percentage of her attorney's fees. We agree with the chancellor's determination as to what property was subject to equitable distribution, and the award of alimony and child support. However, we find that the chancellor erred in calculating the value of the martial property distributed and in awarding attorney's fees and expenses. Accordingly, we reverse the judgment and remand for further proceedings.

I.

¶ 3. Charles and Sherry Hankins were married September 9, 1978. They had two children, Charles, Jr., age 15, and Lana, age 10. The Hankinses lived together as husband and wife until about August 9, 1994 when they separated in Grenada County. Sherry quit her job after the wedding at Charlie's insistence that she become a homemaker because it was costing him money for her to work. She thereafter stayed home as primary care giver to the children and as caretaker of the home. She had subsequently gone back to nursing school where she had a year remaining until graduation at the time of the hearing.

¶ 4. Charlie worked full-time in his father's lumber company, where he regularly earned over $100,000 per year, and was periodically given shares of stock in the lumber business. Prior to the marriage, Charlie owned 11 shares of stock. During the marriage, Charlie was given another 57 and one-half shares of stock. Burton Hankins, Charlie's father, stated that he did not give the stock to his children for work done in the family business, but did not issue any shares to any family member who did not work in the family business. In 1994, Charlie left the business and was unemployed for several months thereafter. He has since started a timber business, but was considered by the chancellor to have zero adjusted gross income at the time that the divorce was entered. Charlie ultimately sold his shares of stock in the business back to his father for $700,000.

¶ 5. Charlie drank either beer or whiskey nearly every day. He spent most nights in the den of the home drinking until he became intoxicated. At that point he would become verbally abusive to his family, and sometimes physically abusive to Sherry. Charlie also had an affair in the waning months of the marriage prior to the separation with one Wanda Causey. At the time of the hearing, Charlie and Wanda were living together.

¶ 6. The chancellor found that Charlie had committed adultery, habitual cruel and inhuman treatment, and habitual drunkenness. However, out of concern for the children, the chancellor consolidated these claims, granting Sherry a divorce on the grounds of habitual cruel and inhuman treatment.

¶ 7. The chancellor then divided the property. Specifically, the chancellor held that Charlie was entitled to the eleven shares of stock that he possessed prior to the marriage, and valued those shares at $70,000, based upon the purchase price of $700,000 for all of Charlie's stock that was sold back to the company. He awarded Sherry the property that she had inherited from her grandfather. Title in the home was vested in Sherry and divested from Charlie. Charlie was ordered to pay $39,000 in debt and an estimated $189,000 in taxes on the distribution of the stocks, plus an additional $77,000 in taxes which had already been paid.

¶ 8. The chancellor valued the house at $85,000, subtracted Charlie's $5,000 of equity and awarded the house to Sherry. The chancellor then valued the stock at $700,000, its selling price, and subtracted the $70,000 attributed to Charlie's premarital property, arriving at a value of $630,000 for the marital stock. From this figure, he subtracted the $266,000 in taxes, less $27,000 in taxes on Charlie's $70,000 worth of stock. The chancellor then subtracted the $39,000 in debts which he ordered Charlie to pay. The chancellor then added in the value of the house less Charlie's $5,000 in equity. According to the chancellor's calculations, the net to be distributed was $432,000 which he divided by two, to get a figure of $216,000 which he rounded down in favor of Charlie to $210,000. He then awarded Sherry a cash equitable distribution of $210,000, separately and in addition to the marital home. The chancellor went on to award Sherry 80% of her attorney's fees and expenses for a total of $5,888. Aggrieved, Charlie appealed the chancellor's judgment.

II.

¶ 9. Our scope of review in domestic relations matters is limited. "`This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.'" Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994) (quoting Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990)). This is particularly true "`in the areas of divorce and child support.'" Ferguson, 639 So.2d at 930 (quoting Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989)).

A.

¶ 10. In his first assertion of error, Charlie encourages this Court to overrule Ferguson and abandon the concept of equitable division of property and wait for legislative direction. Charlie claims alternatively, that Ferguson should apply only prospectively. In Ferguson this Court found implicit statutory authority to equitably divide property from Miss.Code Ann. § 93-5-23 wherein it stated:

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 maintenance and alimony of the wife or husband, or any allowance to be made to her or him...

Ferguson, 639 So.2d at 927. The Legislature has, to this point, not seen the need to "correct" this Court's pronouncement in Ferguson by passing any legislation which would undo the decision. Neither is it readily apparent that Ferguson has turned the area of divorce law on its ear, wreaked havoc on the system, or ruined it beyond repair.

¶ 11. Further, Charlie has cited no law, from this jurisdiction or any other, which supports the proposition that this Court should do away with the concept of equitable division of property. This Court has stated that it need not consider argument which is not supported by authority. Grey v. Grey, 638 So.2d 488, 491 (Miss.1994). Accordingly, it is not necessary to consider this issue. Neither does Charlie cite any authority to support the proposition that Ferguson should apply only prospectively. Therefore under Grey it is not necessary to address that point either.

¶ 12. We also note that Charlie similarly failed to support his argument with authority as it concerns the issues of de novo review of division of property orders, and child support. We will not consider those issues for the same reason. And as a result we find that the issues of propriety of equitable division, standard of review, and child support, are without merit.

B.

¶ 13. Charlie also raises the issue of whether the chancellor erred by granting Sherry 80% of her attorney's fees and other court costs. Charlie argues that Sherry could pay her own court costs and attorney's fees given the amount of the property settlement. A trial court abuses its discretion by awarding attorney's fees without first finding that the party is unable to pay the fees. See Overstreet v. Overstreet, 692 So.2d 88, 92-93 (Miss.1997)

; Creekmore v. Creekmore, 651 So.2d 513, 520 (Miss.1995); Gambrell v. Gambrell, 650 So.2d 517, 521 (Miss.1995); Martin v. Martin, 566 So.2d 704, 707 (Miss. 1990); Cheatham v. Cheatham, 537 So.2d 435, 440 (Miss.1988). Here Sherry was awarded the house and $210,000 in cash. However, the chancellor made no determination as to whether Sherry was able to pay her attorney's fees or the court costs or otherwise explored this award in relation to equitable distribution. Therefore, we reverse and remand as to the award of attorney's fees.

C.

¶ 14. Charlie raises the issue of whether the chancellor erred by improperly excluding commingled property from equitable distribution, while including otherwise exempt property. Specifically, Charlie alleges that the chancellor should not have included his stocks in the distribution, as these were inter vivos gifts from Charlie's father, but that the chancellor should have included Sherry's 55 acres which she had inherited from her grandfather, because Charlie had planted trees on the land, thereby making it commingled property. Charlie also objects to the chancellor's awarding the marital home to Sherry.

1. Sherry's Property

¶ 15. It is true that Charlie planted trees on land that Sherry inherited from her grandfather, but there is no testimony in the record as to the value of the trees, the extent of the planting, or that there was any agreement between Charlie and Sherry that Charlie's act of planting the trees would thereby give him an interest in the property. We therefore find that the chancellor was not manifestly wrong or clearly erroneous in finding that Sherry's property retained its character as an inheritance not subject to equitable distribution.

2. Charlie's Stock Certificates

¶ 16. These certificates are what this case really is all about, since there would be little else to equitably divide if Charlie did not have possession of these certificates to sell back to his father's company....