Jenkins v. Jenkins, 47082

Decision Date28 May 1973
Docket NumberNo. 47082,47082
Citation278 So.2d 446
PartiesMrs. Marian M. JENKINS, Appellant, v. Ernest Lee JENKINS, Appellee.
CourtMississippi Supreme Court

Bacon & Smith, Jackson, for appellant.

Wells, Gerald, Brand, Watters & Cox, Jackson, for appellee.


Mrs. Marian M. Jenkins was granted a divorce from Ernest Lee Jenkins by the Chancery Court of the First Judicial District of Hinds County. The decree included alimony for Mrs. Jenkins' support as well as attorney's fees. The issues are limited here to the adequacy of the financial awards.

The parties were married in 1946 and lived together for about twenty-four years prior to their separation in 1970. At the time of the marriage the appellee's income was not more than $85 per week, but in later years due to his energy and business acumen the financial resources of the family have greatly increased.

The appellant's activities during the early and frugal period of the marriage, as well as the later and more prosperous time, have been solely those of a housewife. Though she and the appellee have no children, her responsibility included the rearing of a child of the appellee and a child of her own, both by previous marriages. At the time of the trial she was forty-six years of age and without business or professional skills likely to enhance her opportunities for gainful employment. Her assets consisted of a one-half interest in the home, subject to mortgage, and a nominal checking account.

To the contrary, the appellee has substantial assets. He has accumulated, according to his testimony, approximately $800,000 during the period of the marriage. His tax returns for the years 1966 through 1970 reflect his earnings to have been $97,427.36 (1966), $128,874.29 (1967), $130,372.35 (1968), $140,251.00 (1969), and $157,747.00 (1970).

The evidence discloses the appellee to have been a hard-working and generous man during the marriage. He provided the material things necessary for the comforts of the family and as he prospered the family's mode of living was commensurate with his successes. Indeed, the appellee did not at the trial, nor does he now, desire to avoid his responsibility for the appellant's support.

The trial court decreed the following awards to Mrs. Jenkins:

1. The exclusive use of the homestead of the parties, including the furniture, with the appellee required to pay the mortgage payments, taxes, insurance and assessment of property.

2. Appellee to make all necessary repairs to the premises in excess of the sum of $10.

3. That the appellee transfer to the appellant the title to the 1966 Fleetwood Cadillac for her use.

4. The appellant to receive from Mr. Jenkins dividends of every kind and nature on 300 shares of corporate stock of the Jackson Packing Company so long as the appellant remains unmarried.

5. Appellant was awarded alimony in the sum of $1000 per month beginning March 1, 1972, and continuing so long as the appellant remains unmarried.

6. An insurance policy on the life of the appellee was directed to be delivered to the appellant with the right granted her to pay one-half of the premium thereon or the policy should be returned to the appellee.

7. A solicitor's fee of $4500 was allowed to the solicitors for the complainant.

The trial court denied an award of alimony in lump sum and declined to find the appellant to be vested with the title to 300 shares of Jackson Packing Company stock. It directed, however, that the dividends from the stock be paid to the appellant.

The ownership of the stock is a major contention on appeal. According to the records of the Jackson Packing Company, 200 shares of its stock were transferred to Mrs. Jenkins from her husband on March 15, 1969. On April 15, 1969, a certificate for 100 shares was issued to Mrs. Jenkins as a stock dividend. These shares were in a voting trust of the company which expired on December 31, 1969. At this time Stock Certificate #259 was issued to Mrs. Jenkins to replace the three certificates totaling 300 shares. During this period of time the stock was listed in the name of Mrs. Jenkins on the company's records. On March 19, 1970, about the time of the separation, the appellee surrendered Stock Certificate #259 to the company and it was reissued in his name.

The appellant contends that the stock transactions constituted a gift inter vivos and that she is vested with title. The appellee argues that he did not relinquish control of the stock and as a consequence there was no completed inter vivos gift. He points out that the stock was endorsed in blank by Mrs. Jenkins and physical possession was retained by him for business purposes. He stated he intended for his wife to receive the dividends produced by the stock during his lifetime, but in the event of his death he desired the stock to become her property. He does not protest the payment of the dividends, averaging $2400 annually, to the appellant.

We are concerned presently with the question of whether the transfer under the above circumstances constituted a valid gift inter vivos. In Greer v. Hampton, 240 So.2d 253 (Miss.1970), we restated the general rule that clear and convincing evidence is required to establish a gift inter vivos. In McLean v. Green, 258 So.2d 247 (Miss.1972), we delineated the requirements necessary to constitute a gift inter vivos. These were: A donor competent to make a gift, a voluntary act on his part with the intention to make a gift, the gift must be complete with nothing left to be done, the property must be delivered by the donor and accepted by the donee and the gift must be gratuitous and irrevocable. In Gilder v. First National Bank of Greenville, 214 So.2d 681 (Miss.1968), we stated a gift inter vivos was perfected when the property proposed to be transferred was delivered in a manner so that all dominion over it was surrendered by the donor. From these authorities we conclude the lower court correctly determined that the transaction here was not a completed gift inter vivos. The facts relating to retained dominion and control of the stock were in dispute. The lower court resolved this factual issue in favor of the appellee. We cannot say, particularly in view of the clear and convincing evidence rule, that the court was manifestly wrong in this finding since it is supported by competent evidence. We therefore reject the appellant's argument on this...

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57 cases
  • Retzer v. Retzer
    • United States
    • Mississippi Supreme Court
    • 12 Diciembre 1990
    ...without future legal steps to enforce them. Miller v. Miller, 173 Miss. 44, 64, 159 So. 112, 119-120 (1935). Until Jenkins v. Jenkins, 278 So.2d 446 (Miss.1973), none of our cases suggested, however, that a wife who had been a dutiful and frugal housewife without more was for that reason en......
  • Ferguson v. Ferguson, 92-CA-00058
    • United States
    • Mississippi Supreme Court
    • 7 Julio 1994
    ...unfair division. Reeves v. Reeves, 410 So.2d 1300, 1303 (Miss.1982); Clark v. Clark, 293 So.2d 447, 449 (Miss.1974); Jenkins v. Jenkins, 278 So.2d 446, 449 (Miss.1973). The lump sum award has been described as a method of dividing property under the guise of alimony. Stephen J. Brake, supra......
  • LaRue v. LaRue
    • United States
    • West Virginia Supreme Court
    • 25 Mayo 1983
    ...homemaker services. E.g., Reeves v. Reeves, 410 So.2d 1300 (Miss.1982); Clark v. Clark, 293 So.2d 447 (Miss.1974). 8 In Jenkins v. Jenkins, 278 So.2d 446 (Miss.1973), the court made this statement as to a lump-sum alimony "It appears to us that a lump-sum award in conjunction with an award ......
  • Tilley v. Tilley
    • United States
    • Mississippi Supreme Court
    • 10 Diciembre 1992
    ...Tutor v. Tutor, 494 So.2d 362 (Miss.1986); Schilling v. Schilling, 452 So.2d 834 (Miss.1984); 2) A long marriage. Jenkins v. Jenkins, 278 So.2d 446, 449 (Miss.1973); Tutor and Schilling, 3) Where recipient spouse has no separate income or the separate income is meager by comparison. Jenkins......
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