Lauro v. Lauro

• Decision Date: 05 June 2003
• Docket Number: No. 2001-CA-00801-SCT.,2001-CA-00801-SCT.
• Parties: Francis Joseph LAURO v. Helen Rita LAURO.
• Court: Mississippi Supreme Court

847 So.2d 843

Francis Joseph LAURO v. Helen Rita LAURO.

No. 2001-CA-00801-SCT.

Supreme Court of Mississippi.

June 5, 2003.

Dennis Leon Sharp, Mark A. Chinn, Jackson, Karen H. Spencer, James Emory Price, III, Corinth, attorneys for appellant.

Terry L. Caves, Laurel, attorney for appellee.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. Francis Joseph Lauro (Frank) appeals from an adverse judgment of the Chancery Court of the Second Judicial District of Jones County which granted Helen Rita Lauro (Helen) a divorce on the ground of adultery. Helen was also granted primary physical and legal custody of their three minor children, permanent periodic alimony, child support and attorney's fees. In addition to Frank's appeal, Helen, on cross-appeal, also submits issues for this Court's review.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Frank and Helen were married on May 1, 1991, while Frank was still in medical school. During the early years of the marriage, Helen worked as a licensed practical nurse. During their marriage, three children were born: Christina born January 31, 1992; Phillip born November 15, 1994; and Isabella born October 3, 1998.

¶ 3. Helen filed for separate maintenance on April 23, 1999, after discovering Frank was romantically involved with another woman. In response to Helen's motion, Frank filed a counter-complaint for divorce on May 12, 1999. On June 2, 2000, the chancellor granted Helen's motion to file an amended complaint for divorce.

¶ 4. The matter was tried by the Chancery Court of the Second Judicial District of Jones County on June 14th and August 16th and 17th, 2000. The chancellor granted a divorce in favor of Helen on the ground of uncondoned adultery. The chancellor ordered the sale of the marital home and stipulated that the cost of the sale and the mortgage be paid in full with the proceeds. Helen was awarded the equity from the sale of the home. Helen was also awarded primary physical and legal custody of the three minor children; child support in the amount of $600 per child for a total of $1,800 per month; $4,200 per month in periodic alimony; and, $19,391.95 for attorney's fees.

¶ 5. Frank appeals this ruling and submits four issues for our review, and on cross-appeal, Helen submits three issues for our review. For the sake of clarity, the issues will be addressed in the following order.

DISCUSSION

I. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION BY NOT EQUITABLY DISTRIBUTING THE MARITAL ASSETS AND LIABILITIES.

¶ 6. Frank argues the chancellor erred in failing to make the required finding of facts and conclusions of law in his distribution of marital assets and liabilities and in failing to address all the marital assets that were subject to equitable distribution such as Helen's IRA.

¶ 7. The chancellor ordered the parties to sell their marital home, directing the costs of the sale and the mortgage be paid out of the proceeds. The chancellor further directed Helen to receive one-half (½) of the net sales proceeds, with the remaining one-half (½) of the net sales proceeds to be tendered into the registry of the Court. Upon dividing the marital assets of the parties, the Chancellor stated:

The only marital asset Helen and Frank have is the money deposited into the registry of the Court from the sale of their home. Based upon Frank's conduct and Helen's financial and domestic contribution toward Frank's career, the Court finds Helen should receive those funds and the Clerk is authorized to pay them over to her.

(emphasis added). The chancellor also recognized that Frank had significant debt for student loans, credit cards and unfulfilled contracts. The chancellor determined that Frank would be solely responsible for this debt.

¶ 8. This finding by the chancellor is not sufficient to meet the Ferguson standard:

Given the development of domestic relations law, this Court recognizes the need for guidelines to aid chancellors in their adjudication of marital property division. Therefore, this Court directs the chancery courts to evaluate the division of marital assets by the following guidelines and to support their decisions with findings of fact and conclusions of law for purposes of appellate review. Although this listing is not exclusive, this Court suggests the chancery courts consider the following guidelines, where applicable, when attempting to effect an equitable division of marital property:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:

a. Direct or indirect economic contribution to the acquisition of the property;

b. 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. Contribution to the education, training or other accomplishment 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. The value of assets not ordinarily, absent equitable factors to the contrary, 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 v. Ferguson, 639 So.2d 921, 928 (Miss.1994). Failure to make findings of fact and conclusions of law as required by Ferguson is reversible error. See Johnson v. Johnson, 823 So.2d 1156, 1161 (Miss.2002)

.

¶ 9. In making an equitable distribution of the marital estate, the property should be classified as a marital or a non-marital asset. Id. See also Hemsley v. Hemsley, 639 So.2d 909, 914-15 (Miss. 1994)

. Assets accumulated during the course of a marriage are subject to equitable division unless they are characterized as separate property. Johnson, 823 So.2d at 1161. "Mississippi courts `assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic, or otherwise are of equal value.'" Id. (quoting Hemsley, 639 So.2d at 915).

¶ 10. The chancellor failed to make specific findings as to how the marital property was classified and divided. Therefore, this case is reversed and remanded for clarification consistent with prior case law.

II. WHETHER THE TRIAL COURT'S AWARD OF ALIMONY IN CONJUNCTION WITH ITS AWARD OF CHILD SUPPORT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND SO EXCESSIVE THAT IT CONSTITUTES AN ABUSE OF DISCRETION.

¶ 11. Frank argues the chancellor abused his discretion in awarding alimony to Helen in an amount which was against the overwhelming weight of the evidence. Frank also argues the chancellor made limited findings of fact and no conclusions of law as to the Armstrong factors required by this Court. In Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993), we stated, inter alia:

The following factors are to be considered by the chancellor in arriving at findings and entering judgment for alimony:

1. The income and expenses of the parties;

2. The health and earning capacities of the parties;

3. The needs of each party;

4. The obligations and assets of each party;

5. The length of the marriage;

6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;

7. The age of the parties;

8. The standard of living of the parties, both during the marriage and at the time of the support determination;

9. The tax consequences of the spousal support order;

10. Fault or misconduct;

11. Wasteful dissipation of assets by either party; or,

12. Any other factor deemed by the court to be `just and equitable' in connection with the setting of spousal support.

618 So.2d at 1280-81. Frank contends the chancellor used the awards of alimony and child support to punish him for his adultery.

¶ 12. Upon remand, the chancellor must reconsider not only the issue of equitable distribution, but also the awards of alimony and child support after he has properly divided the marital assets.

¶ 13. Alimony is considered only after the marital property has been equitably divided and the chancellor determines one spouse has suffered a deficit.

Division of marital assets is now governed under the law as stated in Hemsley and Ferguson First, the character of the parties' assets, i.e., marital or non-marital, must be determined pursuant to Hemsley. The marital property is then equitably divided, employing the Ferguson factors as guidelines, in light of each parties' non-marital property. Ferguson, 639 So.2d at 928. If there are sufficient marital assets which, when equitably divided and considered with each spouse's non-marital assets, will adequately provide for both parties, no more need be done. If the situation is such that an equitable division of marital property, considered with each party's non-marital assets, leaves a deficit for one party, then alimony based on the value of non-marital assets should be considered.

Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994) (emphasis added). Like alimony, child support must be considered collectively with all property division.

All property division, lump sum or periodic alimony payment, and mutual obligations for child support should be

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