Kilpatrick v. Kilpatrick

• Decision Date: 14 January 1999
• Docket Number: No. 97-CA-00550-SCT.,97-CA-00550-SCT.
• Citation: 732 So.2d 876
• Parties: Laura Gipson KILPATRICK v. Johnnie Max KILPATRICK.
• Court: Mississippi Supreme Court

732 So.2d 876

Laura Gipson KILPATRICK v. Johnnie Max KILPATRICK.

No. 97-CA-00550-SCT.

Supreme Court of Mississippi.

January 14, 1999.

Lawrence Primeaux, Meridian, Attorney for Appellant.

Daniel P. Self, Jr., Meridian, Donald J. Kilgore, Philadelphia, Attorneys for Appellee.

Before PRATHER, C.J., and BANKS and WALLER, JJ.

WALLER, Justice, for the Court:

SUMMARY

¶ 1. Appellant, Laura Gipson Kilpatrick ("Laura"), filed a Complaint for Divorce against her husband Appellee, Johnnie Max Kilpatrick ("Max"), in the Chancery Court of Neshoba County Mississippi, on October 5, 1993. Laura filed an Amended Complaint for Divorce on September 30, 1994. On February 13, 1997, Special Chancellor Kenneth B. Robertson rendered a decision granting Max and Laura a divorce on the ground of irreconcilable differences.

¶ 2. Aggrieved by the Special Chancellor's decision, Laura appealed assigning two errors:

I. WHETHER CHANCELLOR WAS MANIFESTLY IN ERROR IN DENYING LAURA KILPATRICK AN AWARD OF PERIODIC ALIMONY, SO THAT HIS DECISION SHOULD BE REVERSED.

II. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR AND APPLIED AN ERRONEOUS LEGAL STANDARD IN THE DIVISION OF MARITAL PROPERTY AND AWARD OF LUMP SUM ALIMONY SO THAT HIS DECISION SHOULD BE REVERSED.

PROCEDURAL HISTORY

¶ 3. Because Max is a practicing attorney in the district, both sitting chancellors in the Sixth Chancery Court District recused themselves by an Order dated December 20, 1994. This Court appointed Kenneth B. Robertson of Pascagoula as a Special Chancellor on March 2, 1995. On October 2, 1995, Max and Laura entered into a Consent to Divorce on the Ground of Irreconcilable Differences listing eighteen contested issues summarized below.

1. Who should have use, ownership and possession of the former marital residence and adjoining lot and who should pay expenses associated with the home;

2. The form, amount, duration and manner of alimony, if any;

3. Who should have use, ownership, and possession of a 1991 Lincoln Town car, who should pay the debt and operating expenses on the car and whether Max should furnish Laura with a replacement vehicle of comparable value;

4. Who should have use, ownership and possession of Cabin # 178, titled in Max's name, at the Neshoba County Fairgrounds;

5. Whether Max should pay the joint debts of Max and Laura;

6. Equitable division of the real property and financial assets of Max and Laura and whether the equitable distribution theory of law adopted by the Mississippi Supreme Court is unconstitutional under the Constitutions of the United States and the State of Mississippi;

7. Whether Max should pay Laura a reasonable attorney's fee and all costs of court;

8. Whether Max should have a credit against any equitable division for (1) the college expenses paid for Max's and Laura's children and (2) additional tax liability for Laura's refusal to file a joint tax return;

9. Whether any proceeds derived from fees earned by Max in the case of Jackson v. General Motors should be subject to equitable division and whether any expenses or afterraised claims of that case or claims from the Estate of Cliff Finch should be charged to any share awarded to Laura;

¶ 4. Laura and Max appeared for trial on November 20, 1995 and December 19 and 20, 1995.

¶ 5. After taking the matter under advisement¹, on February 13, 1997, Special Chancellor Robertson rendered a decision granting Max and Laura a divorce on the ground of irreconcilable differences and approving Max's and Laura's agreement in which Max assumed responsibility for their son's college education expenses. Special Chancellor Robertson, addressing the contested issues, then issued findings summarized below.

1. Equitable distribution is not unconstitutional.

2. Laura was granted title and ownership of the marital home and adjoining residential lot and all contents of the home. Max was to pay all mortgage payments due on the home. Max was also to pay all ad valorem taxes and insurance on the home through 2000. Laura was responsible for all other costs associated with the home.

3. Laura was granted title to the 1991 Lincoln Town car free and clear of all debts.

4. Laura was granted her IRA accounts, her state retirement account and her life insurance policies free and clear of any claim by Max.

5. Max was to pay Laura the lump sum of $20,000 plus the sum of $5,000 per year for three years, beginning in January, 1998. Max was to also contribute $5,500 toward Laura's attorney's fees and pay all costs of court.

6. The remainder of the property in dispute, including the law office building and equipment, furniture and fixtures; the Fair Cabin # 178; the house at Route 6, Box 27-B, Philadelphia; the farm equipment and stock in Kilpatrick Farms, Inc.; Max's military and state retirement; and the business and personal checking and savings accounts was granted to Max and he was to hold Laura harmless from any debt owing thereon.

FACTS OF THE CASE

¶ 6. Max and Laura were married to each other on August 5, 1966 and they were divorced from each other the first time on May 20, 1972 in Neshoba County Chancery Court. The chancery court set aside the divorce decree and reinstated their marriage on March 20, 1974, after Max and Laura filed a joint petition for reinstatement. They lived together from that date until September 1, 1993, when they separated permanently and finally. Max and Laura had three children during their marriage, all of whom were emancipated by the time the trial concluded.

¶ 7. At the time of their first marriage, Laura was in her final year of college at Mississippi College for Women. Laura completed her practice teaching and received a B.S. degree in speech pathology and speech therapy. Max graduated from Mississippi State University with a degree in accounting the next year. During the early years of their marriage, Max and Laura lived in several cites, Columbus, Clinton, Birmingham, and Corinth, where Max worked as an accountant and Laura worked as a speech pathologist. Their first child was also born during these early years.

¶ 8. In 1970 the family moved to Oxford so Max could attend law school at the University of Mississippi. Laura worked as a speech pathologist in the Oxford schools to support the family. Max contributed to the family income with his salary from a part time job in the library. During this period, their second child was born.

¶ 9. In the fall of 1971, Max was elected to the Mississippi State Legislature. Laura helped with the campaign by distributing materials, soliciting votes and doing other things necessary for the campaign. In November 1971, Max encouraged Laura to leave her job in Oxford and move with their children to Philadelphia where she took a job at the Choctaw Indian Reservation and used her income to support the household. During this period of separation, Max's and Laura's first divorce was granted.

¶ 10. Max began practicing law in Philadelphia in 1974. After Max opened his law office, Max and Laura reconciled and had the original divorce judgment set aside. Shortly after this time, their third child was born. Max and Laura lived together from that time until their separation, September 1, 1993.

¶ 11. Since approximately 1975, Laura has worked for the Neshoba County School System as a speech pathologist. During her employment with the school system, Laura participated in the Public Employees' Retirement System of Mississippi (PERS). Laura valued her PERS account at its cash surrender value of $33,416.

¶ 12. In 1989, Max became involved in a personal injury case, styled Jackson v. General Motors. He worked on this case until 1994 when he received his share of the proceeds. Max's gross income from this case was $1,271,725. In addition to expenses associated with the case, Max listed various claims on the total settlement amount, including pending lawsuits brought by other attorneys involved in the case and the circuit clerk of Lafayette County. For 1994 Max listed his net income from his law practice as $848,039. This amount included his net income from the Jackson v. General Motors case and approximately $157,000 in other income from his law practice that year.

DISCUSSION OF LAW

I. WHETHER CHANCELLOR WAS MANIFESTLY IN ERROR IN DENYING LAURA KILPATRICK AN AWARD OF PERIODIC ALIMONY, SO THAT HIS DECISION SHOULD BE REVERSED.

II. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR AND APPLIED AN ERRONEOUS LEGAL STANDARD IN THE DIVISION OF MARITAL PROPERTY AND AWARD OF LUMP SUM ALIMONY SO THAT HIS DECISION SHOULD BE REVERSED.

STANDARD OF REVIEW

¶ 13. "This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Herring Gas Co. v. Whiddon, 616 So.2d 892, 894 (Miss. 1993). "`Under the standard of review utilized to review a chancery court's findings of fact, particularly in the areas of divorce, alimony and child support, this Court will not overturn the court on appeal unless its findings were manifestly wrong.'" Mizell v. Mizell, 708 So.2d 55, 64 (Miss.1998) (quoting Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992)).

EQUITABLE DISTRIBUTION

¶ 14. After reviewing the evidence presented, Special Chancellor Robertson divided the couple's property as outlined above. Special Chancellor Robertson also awarded Laura lump sum alimony totaling $35,000 with an initial payment of $20,000 plus $5,000 a year for three years beginning January, 1998.

¶ 15. In Ferguson v. Ferguson, we directed the chancery courts to evaluate the division of marital assets by following a nonexclusive list of eight guidelines and "to support their decisions with findings of fact and conclusions of law for purposes of appellate review." Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994)

(emphasis added). In the present case, there are no specific findings in the record to show Special Chancellor Robertson considered...