Hubbard v. Hubbard, 92-CA-01031-SCT

• Decision Date: 01 June 1995
• Docket Number: No. 92-CA-01031-SCT,92-CA-01031-SCT
• Citation: 656 So.2d 124
• Parties: Jeanette Tyler HUBBARD v. David A. HUBBARD.
• Court: Mississippi Supreme Court

Page 124

656 So.2d 124

63 USLW 2803

Jeanette Tyler HUBBARD v. David A. HUBBARD.

No. 92-CA-01031-SCT.

Supreme Court of Mississippi.

June 1, 1995.

James D. Shannon, Hazlehurst, for appellant.

W. Brady Kellems, Brookhaven, for appellee.

EN BANC.

JAMES L. ROBERTS, Justice, for the Court:

FACTS

Jeanette Tyler Hubbard (hereinafter "Jett") and David A. Hubbard (hereinafter "David") met in May, 1985, when Jett was living in Atlanta, Georgia, and David was living in Douglasville, Georgia. David was in chiropractic school, and Jett was employed with an accounting firm. In May, 1987, David purchased a chiropractic business in Brookhaven, Mississippi, and a mobile home for his residence.

David and Jett were married on December 31, 1987. At the time of their marriage, Jett was working for a temporary agency in Atlanta earning $30,000 annually. She also worked part-time for a ladies clothing store earning $10.00 per hour. Jett was financially secure. She had total cash assets of approximately $10,000 and owned two rental houses in Birmingham, Alabama. After Jett and David married, she continued her employment in Atlanta and commuted to Brookhaven on weekends until May, 1988, when she moved to Brookhaven.

On June 7, 1988, Jett opened a ladies clothing store in Brookhaven. In August and December of 1988, Jett sold her rental properties and netted approximately $100,000 for these sales. Part of those proceeds was put into her business and part was spent on living expenses for herself and David.

Jett's business suffered financial hardship making her unable to pay the sales tax for items she sold. The State Tax Commission assessed Jett as owing $48,345 in sales taxes for the years 1989, 1990, and 1991. Jett's business suffered a net loss of $13,449 in 1991. The balance sheet dated June of 1992 showed her business having a negative net worth of $90,593. Jett filed for Chapter 13 Bankruptcy in May, 1992.

The marriage of David and Jett suffered many problems. Jett testified that she was very disturbed by David's behavior in flirting with other women, and David admitted committing adultery with two women. Jett left the marital domicile in December of 1990. They sought marriage counseling for a period of time, but their efforts were unsuccessful.

Jett filed a complaint for divorce on the grounds of habitual cruel and inhuman treatment, adultery, or, in the alternative, irreconcilable differences on October 2, 1991. She filed an amended complaint on January 7, 1992. She also sought a judgment against David in the amount of $8,000 for unpaid loans she allegedly made to him. David filed his answer on May 1, 1992, admitting that Jett was entitled to a divorce on the ground of adultery. He also filed a counter-claim for debts in the amount of $7,314 which he claimed she owed him.

Trial was held on June 22, 23, and 24, 1992, before Chancellor Donald B. Patterson in the Lincoln County Chancery Court. The court took the matter under advisement and requested that the attorneys brief the law and the facts. The Findings of Fact and Conclusions of Law and the Judgment were filed on July 28, 1992. Jett was granted a divorce on the ground of adultery and awarded periodic alimony in the amount of $600 per month for 36 months and attorney's fees in the amount of $3,300; approximately one-half of her attorney's fees.

The Chancellor denied each party's request for repayment of "loans" made to each other because the evidence indicated that the amount was practically equal. Lump sum alimony was denied as failing to meet the Retzer factors. Retzer v. Retzer, 578 So.2d 580 (Miss.1990). Alternatively, the Chancellor awarded periodic alimony based upon the Brabham factors, Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147, 153 (1955), and specifically took all possible needs into consideration.

On July 29, 1992, David filed a Motion to Alter the Judgment and For Relief from the Judgment under M.R.C.P. 59(e) and 60(b)(6). The motion was treated as a Rule 59(e) motion, and it was denied on August 3, 1992. Jett timely filed her Notice of Appeal on August 31, 1993. David timely filed a Notice of Cross-Appeal on September 14, 1992. Aggrieved by the judgment Jett appealed and David cross-appealed.

Jett raised the following issues on appeal:

I. DID THE LOWER COURT ERR IN OFFSETTING ALL LOANS MADE BY APPELLANT AND APPELLEE THEREBY REFUSING TO AWARD APPELLANT REPAYMENT OF THE BUSINESS-RELATED LOANS MADE TO APPELLEE?

II. DID THE LOWER COURT ERR IN GRANTING APPELLANT PERIODIC ALIMONY FOR A PERIOD OF 36 MONTHS?

III. DID THE LOWER COURT ERR IN REFUSING TO REQUIRE APPELLEE

TO PAY FOR OR CONTRIBUTE TO APPELLANT'S MEDICAL NEEDS?

David cross-appealed the following:

I. DID THE CHANCELLOR COMMIT ERROR IN HIS CALCULATIONS OF OFF-SETTING THE LOANS BETWEEN THE PARTIES, THEREBY REFUSING TO AWARD RELIEF TO THE CROSS-APPELLANT FOR DEBTS OWED BY CROSS-APPELLEE?

II. DID THE CHANCELLOR ERR IN AWARDING ALIMONY TO THE APPELLANT/CROSS-APPELLEE, OR IN THE ALTERNATIVE, WAS THE AMOUNT OF ALIMONY AWARDED EXCESSIVE?

III. DID THE TRIAL COURT ERR IN AWARDING ATTORNEY'S FEES?

After a thorough analysis of the record and the law, we affirm the lower court's decisions. However, we deem the issue of "rehabilitative periodic alimony" meritorious warranting an Opinion by this Court.

DISCUSSION OF ISSUES

I.

DID THE LOWER COURT ERR IN OFFSETTING ALL LOANS MADE BY APPELLANT AND APPELLEE THEREBY REFUSING TO AWARD APPELLANT REPAYMENT OF THE BUSINESS-RELATED LOANS MADE TO APPELLEE?

DID THE CHANCELLOR COMMIT ERROR IN HIS CALCULATIONS OF OFF-SETTING THE LOANS BETWEEN THE PARTIES, THEREBY REFUSING TO AWARD RELIEF TO THE CROSS-APPELLANT FOR DEBTS OWED BY CROSS-APPELLEE?

Much of the testimony at trial concerned money allegedly loaned by the parties to each other. Jett loaned David money and made purchases for him. She claimed these loans and purchases were business loans. David also alleged unpaid loans to Jett.

Finding that Jett's claim and David's counter-claim for debts were practically equal, the chancellor denied both parties' claims for judgment for debts against each other. As the chancellor was not manifestly in error in his findings of fact, his ruling on the debts will not be disturbed by this Court.

David made an additional argument that Jett's monetary claims were barred by the statute of limitations. Section 15-1-29 of the Mississippi Code Annotated (Supp.1994) provides, in part:

[A]ctions on open account or account stated not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three (3) years next after such cause of action accrued, and not after....

Jett claimed that some of her loans to David occurred in February and March of 1988. Jett made demand for repayment as early as April 27, 1988, as evidenced by a collection demand letter she sent to David. However, since Jett did not file her original complaint, which included her claim for these debts, until October 2, 1991, David asserted that the debts were barred by the statute of limitations.

The statute of limitations defense was raised in his Answer but was not raised at trial in the form of evidence. David also merely replied as appellee with regard to the affirmative defense and did not raise the issue in his cross-appeal. As the Chancellor's finding regarding the "loans" was a proper equitable disposition, it will not be disturbed and we do not address the statute of limitations issue today. We affirm this holding.

II.

DID THE LOWER COURT ERR IN GRANTING APPELLANT PERIODIC ALIMONY FOR A PERIOD OF 36 MONTHS?

DID THE LOWER COURT ERR IN REFUSING TO REQUIRE APPELLEE TO PAY FOR OR CONTRIBUTE TO APPELLANT'S MEDICAL NEEDS?

DID THE CHANCELLOR ERR IN AWARDING ALIMONY TO THE APPELLANT/CROSS-APPELLEE, OR IN THE ALTERNATIVE, WAS THE

AMOUNT OF ALIMONY AWARDED EXCESSIVE?

In making his alimony determination, the Chancellor listed the factors to be considered in awarding lump sum alimony, citing Retzer v. Retzer, 578 So.2d 580 (Miss.1990). He found that Jett's evidence satisfied none of those factors and denied lump sum alimony. He then stated that regarding periodic alimony, he had given careful consideration to the factors set out in Brabham. In awarding Jett periodic alimony the chancellor explained:

I have carefully considered plaintiff's reasonable needs to maintain a decent standard of living, including her psychological and medical and insurance needs. I have also carefully considered defendant's right to lead as normal a life as reasonably possible with a decent standard of living....

Taking all this into consideration, plaintiff is awarded alimony in the amount of $600 per month for a period of thirty-six (36) months.

This sum is sufficient, together with plaintiff's other income, to sustain her and give her a chance to recover her health and to save her business, and if the business fails, to help her until she can re-enter the work force.

Defendant's practice is established and he has acquired a steady clientele without a full time secretary. His testimony is that he can do without a secretary, but he'd rather not. Since the amount he has budgeted for a full-time secretary is $176.66 per month more than this short term alimony award, I can safely say that this award does not impinge upon defendant's leading a reasonably normal life with a decent standard of living.

(emphasis added)

Jett argued that the court erred in placing a time limitation on the periodic alimony award. The chancellor specifically stated that she was entitled to periodic alimony but not lump sum alimony. Jett requested this Court to reverse the thirty-six month time limitation placed on the periodic alimony award.

In Cleveland v. Cleveland, 600 So.2d 193 (Miss.1992), the trial court awarded the wife $50,000 lump sum alimony and monthly periodic alimony in the amount of $600 for seven years or until further order of the court. This Court found that "[t]here was nothing...