Magee v. Magee

• Decision Date: 28 September 1995
• Docket Number: No. 93-CA-00512-SCT,93-CA-00512-SCT
• Citation: 661 So.2d 1117
• Parties: Linda Ferguson MAGEE v. Richard Leon MAGEE.
• Court: Mississippi Supreme Court

Page 1117

661 So.2d 1117

Linda Ferguson MAGEE v. Richard Leon MAGEE.

No. 93-CA-00512-SCT.

Supreme Court of Mississippi.

Sept. 28, 1995.

Lawrence Primeaux, Meridian, for appellant.

Robert M. Dreyfus, Jr., Dreyfus & Evans, Meridian, Steven D. Slade, Meridian, for appellee.

Before PRATHER, P.J., and SULLIVAN and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

INTRODUCTION

This domestic appeal by the wife seeks reversal of the chancellor's award to her of periodic alimony, the denial to her of lump sum alimony, the denial to her of attorney's fees, and the chancellor's deviation from a consent in writing, signed by both parties, providing for mortgage payments by husband on the marital home awarded exclusively to the wife. The husband has filed a cross-appeal assailing the excessiveness of periodic alimony awarded to the wife.

The wife, Linda Magee, hereinafter "Linda", appeals from a final judgment entered on March 31, 1993, (1) denying her any lump sum alimony; (2) awarding her $1,600 per month periodic or continuing alimony until wife's death or remarriage; (3) modifying, so as to subsume monthly mortgage payments in the award of periodic alimony, a consent in writing signed by both parties whereby both agreed that husband would pay to mortgagees the mortgage notes on the marital home awarded to Linda; and (4) denying wife $2,510.19 in reasonable attorney's fees.

The husband, Richard Leon Magee, hereinafter "Pete", has filed a cross-appeal, claiming that a monthly award of $1,600 in periodic alimony was both excessive and against the overwhelming weight of the evidence.

In summary, we affirm the chancellor in his $1,600 award of periodic alimony and in his denial of attorney's fees; reverse and render the chancellor's judicial fiat limiting Linda's annual earnings to $12,000, and reverse and remand on the question of whether or not Linda is entitled to an equitable division of Pete's future retirement benefits accumulated after the date of their marriage. Pete's cross-appeal and Linda's request for attorney's fees for her representation in this appeal are denied as well as is her request of attorney's fees for defense of the cross-appeal.

We remand this case to the chancellor for the purpose of re-evaluating the denial of lump sum alimony and evaluating, within the context of an equitable distribution of marital assets, whether Linda should share in Pete's

retirement benefits pursuant to Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994).

STATEMENT OF THE CASE

On December 17, 1992, Linda filed a Complaint for Divorce against Pete, her husband of seventeen years, seeking a divorce on the grounds of habitual cruel and inhuman treatment and adultery or, in the alternative, irreconcilable differences. Pete answered on March 19, 1993. Both Linda and Pete appeared for trial on March 30, 1993, during the course of which the parties entered into a Consent to Divorce on the Ground of Irreconcilable Differences pursuant to Miss.Code Ann. § 93-5-2, resolving certain issues and leaving other issues for adjudication by the court.

The parties agreed that Linda would have exclusive use, ownership, and possession of the marital home and Pete would pay the first and second mortgages which amounted to $680 per month. Linda would have ownership of the 1992 Ford Explorer, all furnishings in the marital home, the John Deere tractor, her pension with USF & G, the yard implements, her guns, one hundred shares of Nabisco stock, and her personal belongings. Pete would have ownership of his personal tools, the recreational equipment, his guns, and his personal effects.

Pete and Linda agreed that the chancellor would adjudicate the amount and form of alimony, both lump sum and periodic, to be awarded to Linda; what would happen in the event Linda sold the marital home; Linda's claim for attorney's fees; ownership of Pete's 401K plan, the 1990 Goldwing motorcycle, and the Nabisco collectibles; and whether Pete would continue providing Linda's medical insurance coverage for two or three years.

At the conclusion of the trial, the chancellor entered a judgment granting the parties certain relief in accordance with the consent and granting them a divorce on the ground of irreconcilable differences.

Linda's appeal focuses upon the chancellor's denial of lump sum alimony, the inadequacy and conditions of periodic alimony, the chancellor's deviation from the agreement of the parties as to the indebtedness on the marital home, and the denial of attorney's fees. Pete's cross-appeal assails the excessiveness of periodic alimony.

FACTS

Pete and Linda met while both were working for the Nabisco Company in Meridian. They married each other on April 15, 1976. It was the second marriage for both. No children were born of this marriage. At the time of their divorce, Pete and Linda had been married nearly seventeen years. Pete was forty-eight, and Linda was forty-six years of age at the time of the hearing. Both Pete and Linda had a high school education. Pete had taken some college courses but was not a college graduate.

Linda had been employed by the United States Fidelity & Guaranty Insurance Company, hereinafter "USF & G", in Meridian from 1980 to 1991, where she worked as a Commercial Lines Technician for which she was paid approximately $22,000 annually. In November of 1991, Linda's job was moved to Jackson as part of a company reorganization. She and Pete elected to remain in Meridian, and Linda did not return to work. During the pendency of the divorce action, Linda was temporarily employed as a bookkeeper at $5.50 per hour. After April 11, 1993, Linda was not employed, and had no income.

During her employment with USF & G, Linda accumulated approximately $13,000 in a 401K retirement plan. She withdrew the entire amount when her employment was terminated and used it for household expenses, living room furniture, a down payment on a 1992 Ford Explorer, and a trip to Japan to visit her son and grandchild. Linda's retirement plan with USF & G will entitle her to a monthly benefit of $152.56 payable at age sixty-five.

Pete had been employed with RJR Nabisco since February 1, 1967, and during the course of his marriage to Linda worked as a sales manager for the Meridian office. He received a handsome base salary plus an occasional bonus that was based upon sales. Pete's W-2 form for the year 1992 reflects that he earned $66,002 from his employment As of March 31, 1993, Pete had accumulated $104,548 in a retirement account administered by Nabisco with an expected monthly retirement benefit of $2,584 payable at age sixty-five. Pete had also accumulated between $49,000 and $53,000 in his own 401K retirement plan, and he owned one hundred shares of Nabisco stock valued at $800.

with Nabisco. This equates to a gross monthly salary of $5,500.

The parties were joint owners of a three bedroom, two bath home constructed out of western cedar in Collinsville, Mississippi, on three acres of improved land which also accommodated a sixteen by thirty-two foot swimming pool and a storage shed. Pete testified that the value of the home was $95,000 while Linda presented a tax assessor's revaluation reflecting that for tax purposes the marital home had a market value of $64,750. There was a first and second mortgage on the house with balances of approximately $25,000 and $18,000. The couple's monthly house note was $680.

The marital home was appropriately furnished with many of the items dating from the time of the marriage. Linda estimated the value of household furnishings and appliances to be around $5,000 while Pete estimated their worth to be $35,000.

Linda relied upon Pete's employment with Nabisco for her medical, hospitalization and dental insurance coverage.

The parties also owned a 1992 Ford Explorer valued between $17,000 (per Linda) and $18,000 (per Pete), a 1990 John Deere tractor valued between $7,000 (per Linda) and $10,000 (per Pete), and a Honda motorcycle with a value of $10,000 (per Pete) and $7,000 (per Linda).

Linda characterized their manner of living as "extravagant" while Pete described it as "very comfortable by most standards." Their lifestyle included traveling around the country for pleasure, often on impulse for a weekend. Linda's expense statement reflects a monthly expense of $775 for entertainment, including recreation and travel. Typical trips together included junkets to Canada, New York, the Smokey Mountains, Florida, Colorado, the western Caribbean, Cozumel, Mexico, Jamaica, Labadee, and Haiti. They purchased the 1990 Honda motorcycle and traveled together to as many as ten motorcycle rallies a year. Most of this travel was paid for from their personal joint funds.

The marriage was not without its share of problems. In 1986 and 1987, Pete had an adulterous affair with a married woman. Linda insisted that Pete break off the relationship, but Pete resisted and maintained contact with his paramour. In July of 1992, after a hiatus in their relationship, Pete secretly contacted his paramour and began calling her frequently. After a period of time, Pete began openly expressing his love for the other woman. After Linda became aware of the renewed relationship, Pete moved out of the marital home on December 4, 1992.

DISCUSSION OF ISSUES

I. DID THE CHANCELLOR ERR BY DENYING THE WIFE LUMP SUM ALIMONY?

II. WAS THE AMOUNT OF PERIODIC ALIMONY INADEQUATE?

III. DID THE CHANCELLOR ERR IN HIS DECISION REGARDING HOUSE PAYMENTS?

IV. DID THE CHANCELLOR ERR BY DENYING THE WIFE ATTORNEY'S FEES?

On cross-appeal the issue is:

V. WAS THE CHANCELLOR'S AMOUNT OF PERIODIC ALIMONY EXCESSIVE?

A. Issues

The four issues presented by the wife in this domestic appeal focus upon the denial of lump sum alimony; the inadequacy of periodic alimony; the chancellor's deviation from the written consent agreement with respect to house payments; and the denial of attorney's fees. The subject matter of husband's...