Lauro v. Lauro, 2004-CA-02252-COA.
| Decision Date | 07 March 2006 |
| Docket Number | No. 2001-CA-00801-SCT.,No. 2004-CA-02252-COA.,2004-CA-02252-COA.,2001-CA-00801-SCT. |
| Citation | 924 So.2d 584 |
| Parties | Francis Joseph LAURO, Appellant v. Helen Rita LAURO, Appellee. Francis Joseph Lauro, Appellant v. Helen Rita Lauro, Appellee. |
| Court | Mississippi Court of Appeals |
Lee Ann Self Turner, Mark A. Chinn, Jackson, attorneys for appellant.
Jerry Dean Sharp, Terry L. Caves, Laurel, attorneys for appellee.
Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
MYERS, P.J., for the Court.
¶ 1. This case is before us following a remand by the supreme court to revisit the awards of alimony and child support after complying with the Ferguson factors in equitably dividing the marital assets. Lauro v. Lauro, 847 So.2d 843 (Miss.2003). On remand the chancellor evaluated the Ferguson factors, reduced the amount of alimony and increased the child support award. Additionally, a visitation schedule was entered and Helen was awarded attorney's fees.
FACTS
¶ 2. Francis "Frank" and Helen Lauro were married on May 1, 1991. During the early years of the marriage, Helen worked as a licensed practical nurse. During their marriage, three children were born: Christiana, born January 31, 1992; Phillip, born November 15, 1994; and Isabella, born October 3, 1998.
¶ 3. On April 23, 1999, Helen filed for separate maintenance after discovering that Frank was romantically involved with another woman. Frank filed a counter-compliant for divorce on May 12, 1999. On June 2, 2000, Helen's motion to file an amended complaint for divorce was granted by the chancellor.
¶ 4. A trial on this matter was held in the Chancery Court of the Second Judicial District of Jones County on June 14 and August 16 and 17, 2000. Helen was granted a divorce on the grounds of uncondoned adultery. Helen was awarded the equity from the sale of the marital home, primary physical and legal custody of the three 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 in attorney's fees. From this judgment, Frank appealed to the supreme court.
¶ 5. On appeal, the supreme court in an opinion written by Justice Carlson affirmed in part, and reversed and remanded in part this case to the chancery court. The chancellor was ordered to make a proper classification of the marital property for equitable distribution as outlined in Ferguson. After the proper classification and equitable distribution was made, the chancellor was ordered to revisit his awards of alimony and child support. Upon the determination of equitable distribution, alimony and child support, the chancellor was given the option of revisiting the award of attorney's fees to Helen. Finally, the chancellor was instructed to address Helen's request for medical insurance that was not addressed in the final judgement. Lauro v. Lauro, 847 So.2d 843 (Miss.2003).
¶ 6. Upon remand, the parties agreed not to reopen the evidence and have the trial court reconsider the evidence presented during the original trial. On August 27, 2004, the chancellor entered his seventeen page "Findings of Fact and Conclusions of Law." The chancellor addressed each of the Ferguson factors in equitably distributing the marital estate, he then reconsidered the issues of alimony, child support, and attorney's fees. Helen was awarded $3,000 per month in periodic alimony. The parties agreed that Helen would receive primary physical custody and Frank and Helen would have joint legal custody, with Frank having agreed visitation. The chancellor then awarded child support in accordance with the statutory guidelines which amounted to $2,001 per month ($667 per child). The chancellor also awarded Helen attorney's fees in the sum of $19,391.95. From this judgment Frank appeals raising five issues and Helen enters a motion for attorney's fees on appeal. The issues of this case are:
I. THE TRIAL COURT ERRED IN AWARDING PERIODIC ALIMONY INSTEAD OF REHABILITATIVE ALIMONY AS PROMPTED BY THE SUPREME COURT OPINION.
II. THE CHANCELLOR WAS MANIFESTLY WRONG AND CLEARLY ERRONEOUS IN AWARDING PERIODIC ALIMONY WHEN CONSIDERED WITH THE AWARD OF CHILD SUPPORT AND OTHER SUPPORT AWARDS.
III. THE CHANCELLOR ABUSED HIS DISCRETION BY NOT EQUITABLY DISTRIBUTING THE MARITAL ASSETS.
IV. THE CHANCELLOR COMMITTED MANIFEST ERROR IN AWARDING VAGUE AND UNSPECIFIED VISITATION.
V. THE AWARD OF ATTORNEY'S FEES WAS ERRONEOUS AND AN ABUSE OF DISCRETION.
VI. HELEN'S MOTION FOR ATTORNEY'S FEES ON APPEAL.
STANDARD OF REVIEW
¶ 7. Our standard of review for all appeals involving domestic relations matters is limited. We will not disturb the findings of a chancellor unless the chancellor was "manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Perkins v. Perkins, 787 So.2d 1256, 1260-61(¶ 9) (Miss.2001).
DISCUSSION
¶ 8. As the first issue presented on appeal, Frank contends that the supreme court instructed the chancellor that in awarding alimony he should award rehabilitative alimony and not periodic alimony. Frank argues that the chancellor awarded the permanent periodic alimony to punish him. Frank contends that he should only be required to pay Helen rehabilitative alimony to allow her to get back into the working world. We do not agree.
¶ 9. Alimony is only considered after the marital property has been equitably divided and the chancellor determines that one spouse is at a deficit. Lauro, 847 So.2d at 848. Id. at 849 (citations omitted).
¶ 10. In Justice Carlson's opinion, the reference to the award of rehabilitative alimony was part of a larger discussion on when a chancellor must revisit the award of alimony. The previous opinion instructs the chancellor, and this Court, when alimony is to be revisited on remand and when it is not. In respect to revisiting periodic alimony the supreme court points our attention to Mace v. Mace, 818 So.2d 1130 (Miss.2002), and for rehabilitative alimony, Hensarling v. Hensarling, 824 So.2d 583 (Miss.2002).
¶ 11. In Mace the supreme court instructed the chancellor to revisit the award of periodic alimony after a proper value of the medical practice had been determined. The supreme court instructed:
The chancery court's valuation of the practice is reversed, and this case is remanded for an adequate valuation of the practice. Also, the award of alimony is vacated, and the chancellor instructed to revisit the issue as alimony and equitable distribution should be considered together. Ferguson, 639 So.2d at 929 ().
Mace, 818 So.2d at 1134(¶ 16). The award of alimony in Mace was one of permanent periodic alimony. This case instructs that periodic alimony can only be awarded after the proper equitable distribution of marital assets is complete and when equitable distribution is revisited periodic alimony must also be revisited.
¶ 12. In Hensarling, the supreme court affirmed the chancellor's award of rehabilitative alimony even though the court had reversed the chancellor's evaluation of the martial estate and remanded to determine the value. Hensarling, 824 So.2d at 595(¶ 39).
¶ 13. In their previous opinion in this case the supreme court held that "rehabilitative alimony is not considered during equitable distribution." Lauro, 847 So.2d at 849(¶ 15). Additionally, the court held that "Helen was granted permanent periodic alimony; therefore, case law mandates that her award of alimony be considered with the equitable distribution of the marital property." Id.
¶ 14. The discussion of periodic and rehabilitative alimony was instructive for an understanding of how each is handled when a case is remanded for property distribution. Periodic alimony is to be reconsidered when the marital estate is redistributed under principles of equitable distribution. However, rehabilitative alimony is not considered during equitable distribution.
¶ 15. Finding that the supreme court classified the award of alimony as permanent periodic alimony and did not instruct the chancellor to award rehabilitative alimony, we find this issue without merit.
¶ 16. As his second issue on appeal, Frank argues that the chancellor erred in awarding Helen $3,000 per month in periodic alimony when considered with the $2,001 per month in child support and the amount of marital debt Frank was ordered to pay. We do not agree.
¶ 17. In the "Findings of Fact and Conclusions of Law" entered by the trial court, the chancellor addressed each of the factors set forth in Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). The chancellor determined that Frank was in excellent health, thirty-eight years old and earned $200,000 per year. Helen was thirty-six years old and had no income other than the support from Frank. At the time of the separation, Helen was suffering from depression and anxiety from Frank's infidelity, behavior and the breakup of their marriage. During the separation, Helen attempted to renew her licensed practical nurse (LPN) license, but Frank stopped payment on the check. Helen also attempted to obtain her license as a registered nurse (RN), but was unable to do so due to Frank's abusive behavior. Helen's earning capacity would be higher if she obtained her RN license.
¶ 18. Upon the parties moving to Laurel, Frank maintained Helen with a very high standard of living. Frank provided Helen with a Rolex watch, jewelry,...
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