Larue v. Larue, 2004-CA-02453-COA.

• Court: Court of Appeals of Mississippi
• Writing for the Court: Chandler, J.
• Citation: 969 So.2d 99
• Parties: William T. LARUE, as the Representative of the Estate of Ike P. Larue, Jr., Deceased, Appellant/Cross-Appellee, v. Maritta C. LARUE (Cutrer), Appellee/Cross-Appellant.
• Docket Number: No. 2004-CA-02453-COA.,2004-CA-02453-COA.
• Decision Date: 15 May 2007

969 So.2d 99 William T. LARUE, as the Representative of the Estate of Ike P. Larue, Jr., Deceased, Appellant/Cross-Appellee,
v.
Maritta C. LARUE (Cutrer), Appellee/Cross-Appellant. No. 2004-CA-02453-COA. Court of Appeals of Mississippi. May 15, 2007. Rehearing Denied September 4, 2007.

[969 So.2d 102]

Betsy E. Walker, Biloxi, attorney for appellant.

Joseph R. Meadows, Gulfport, attorney for appellee.

Before KING, C.J., CHANDLER and ISHEE, JJ.

CHANDLER, J., for the Court.

¶ 1. The Chancery Court of Jackson County granted Ike P. LaRue, Jr. and Maritta C. LaRue a divorce on the ground of irreconcilable differences. Ike appeals, contesting the chancellor's property division and award of alimony and attorney's fees to Maritta. Maritta cross-appeals requesting that this Court award her attorney's fees on appeal.

FACTS

¶ 2. The parties were married in Biloxi, Mississippi on November 14, 1983, and lived in Ocean Springs. No children were born of the marriage, but both parties had adult children from earlier marriages. The parties separated when Ike moved out of the marital home in late December 2002. On January 22, 2003, Maritta filed for a divorce on the ground of cruel and inhuman treatment. After extensive discovery, the trial occurred on June 22-25, 2004. At that time, Ike was eighty-four years of age and Maritta was seventy years of age. After one day of trial, Ike and Maritta agreed to an irreconcilable differences divorce and the trial proceeded concerning the property division.

¶ 3. It was established that, during the marriage, the parties' primary income was periodic income from mineral interests which Ike had received before the marriage from his mother's estate. Ike conveyed some of these mineral interests to Maritta during the marriage. Testimony established that the parties had three bank accounts consisting of accounts in each spouse's name and one joint account. The parties' practice was to place mineral interest income into whichever account needed money. Maritta testified that she had managed the household finances since 1995. Ike testified that, while he occasionally made deposits into the accounts, only Maritta made withdrawals.

¶ 4. Ike testified that he had engaged in real estate deals with his brother during the marriage but otherwise did not work. Ike's education includes some law school. Maritta testified that she finished about two years of junior college. The year prior to the marriage Maritta worked for the Ocean Springs water department and before that she worked for ten years as a city court clerk. Maritta said that she quit working at Ike's request when they were married. Maritta testified that she did not work during the marriage and is currently unable to work due to poor health and diminished work skills. She stated that her health conditions include high blood pressure, osteoporosis, epilepsy, vascular disease, and a prolapsed bladder. She takes medication for these conditions. She also testified that she has stents in both legs.

¶ 5. Ike's daughter, Martha Fulcher, testified that, when Ike left the marital home in December 2002, he moved in with her in Jackson for six months. However, Ike needed more health care than she could provide, and Martha arranged for him to move into Sunnybrook Estates Retirement Community in Jackson. Ike's grandson, Dr. Todd Fulcher, testified that he is Ike's primary care physician. Ike and Dr. Fulcher testified that Ike has Parkinson's disease,

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dementia, a history of coronary artery disease and bypass surgery, macular degeneration, hearing impairment, occasional vertigo, and an unsteady gait. Ike takes daily medication for these conditions. The court determined that Ike was competent to testify and, later, Dr. Fulcher opined that Ike was competent to testify on his own behalf.

¶ 6. According to Ike's first financial declaration, he receives $6,178.54 per month in royalties from the mineral interests titled in his name. Ike also receives $629 per month in Social Security for a total monthly income of $6,806.54. Ike had two bank accounts in his name at the time of trial, one at Hancock Bank with an approximate value of $1,100 and one at Trustmark Bank with a balance of $2,740. His declaration showed his combined total expenses to be $6,114.90 per month, including $2,545 per month for Sunnybrook. Maritta's financial declaration showed her that her monthly income consisted of $378 per month in Social Security and $1,800 per month in royalties from her mineral interests for a total monthly income of $2,178. Her declaration showed combined expenses of between $3,069.20 and 3,211.76. The parties' respective mineral interest income fluctuated based upon oil prices.

¶ 7. On July 20, 2004, the court entered a judgment divorcing the parties and addressing the property division, alimony, and attorney's fees. The court found that the mineral interests which Ike had conveyed to Maritta during the marriage were Maritta's separate property. The court found that Ike's half-interest in a $3,200 lot in Jackson was his separate property, as were the mineral interests titled in his name and his two bank accounts. The chancellor recognized that the commingled income from Ike's mineral interests and Maritta's mineral interests would be considered marital property. In the equitable distribution, the chancellor awarded the marital residence on Brown Road, valued at $123,890 and titled in Maritta's name, to Maritta. The chancellor awarded the 1994 Honda Accord vehicle to Maritta, with a credit for one-half the value of the vehicle against the balance of unpaid taxes and house insurance which Ike was previously ordered by the court to pay but had never paid. The court ordered Ike to pay the marital debt. Then, the court awarded permanent periodic alimony to Maritta in the amount of $700 per month. The court also awarded Maritta attorney's fees in the amount of $10,000. Finally, the court restored Maritta's former name of Cutrer.

¶ 8. Ike filed a motion to reconsider the judgment. On November 2, 2004, the court entered an amended judgment modifying in part the earlier judgment. The court reconsidered Ike's contributions to the marital home and, applying the Ferguson factors, awarded Ike a fifty percent equitable interest in the house with Maritta to have exclusive use and possession of the house for her lifetime. The court also modified its ruling that the mineral interests which Ike had conveyed to Maritta were Maritta's separate property by finding that, due to commingling, certain mineral interests were marital property subject to equitable distribution. The court found that the mineral interests conveyed to Maritta should remain Maritta's sole property. And, the court reduced Maritta's attorney's fees award to $7,000.

¶ 9. Ike appeals, assailing various aspects of the property division and the awards of alimony and attorney's fees. Maritta requests attorney's fees to cover her costs incurred in defending this appeal.

STANDARD OF REVIEW

¶ 10. This Court adheres to a limited standard of review in domestic relations

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matters. Pearson v. Pearson, 761 So.2d 157, 162(¶ 14) (Miss.2000). We may disturb the chancery court's decision only if the chancellor's findings were unsupported by substantial evidence and were manifestly wrong or clearly erroneous, or if the chancellor applied an incorrect legal standard. Id.

I. THE CHANCELLOR ERRED WHEN HE DECLARED THE UNDIVIDED 1/3 OF IKE LARUE'S MINERAL INTERESTS CONVEYED TO MARITTA LARUE BY HER HUSBAND DURING THE MARRIAGE AS NON-MARITAL PROPERTY AND HER SOLE PROPERTY.

II. THE CHANCELLOR ERRED WHEN HE DID NOT EQUITABLY DISTRIBUTE THE UNDIVIDED 1/3 OF IKE LARUE'S MINERAL INTEREST CONVEYED TO MARITTA LARUE BY HER HUSBAND, IKE LARUE, DURING THE MARRIAGE, AS MARITAL PROPERTY.

¶ 11. In divorce cases, property division is governed by the law articulated in Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994) and Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). "Fairness is the prevailing guideline in marital division." Ferguson, 639 So.2d at 929. The chancellor's first step is to classify each asset as marital or non-marital. Id. Next, the chancellor must determine the fair market value of the assets and equitably divide the marital property according to the factors listed in Ferguson. Id. at 928-29. Those factors are: (1) substantial contribution to the accumulation of the property, under which the chancellor should consider (a) the parties' direct or indirect economic contribution to the acquisition of the property, (b) the parties' contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties, and duration of the marriage, and (c) the contribution to the education, training or other accomplishments by the other spouse bearing on the earning power of the spouse accumulating the assets; (2) the degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise; (3) the market value and the emotional value of the assets subject to distribution; (4) absent equitable factors to the contrary, the value of assets not ordinarily subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse; (5) tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution; (6) the extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties; (7) the needs of the parties for financial security with due regard to the combination of assets, income and earning capacity, and (8) any other factor which in equity should be considered. Ferguson, 639 So.2d at 928....