Maslowski v. Maslowski, 93-CA-00484-SCT

Citation655 So.2d 18
Decision Date30 March 1995
Docket NumberNo. 93-CA-00484-SCT,93-CA-00484-SCT
PartiesKenneth E. MASLOWSKI v. Sandra Kay Dunkin MASLOWSKI.
CourtUnited States State Supreme Court of Mississippi

Woodrow W. Pringle, III, Gulfport, for appellant.

Frank P. Wittmann, III, Gulfport, for appellee.

En Banc.

PRATHER, Presiding Justice, for the Court:

I. INTRODUCTION.

On March 29, 1993, the Harrison County Chancery Court, Second Judicial District, granted Sandra Kay Dunkin Maslowski (Sandra) and Kenneth E. Maslowski (Kenneth) a divorce, on the grounds of Irreconcilable Differences. However, the chancellor did not grant Kenneth an equitable lien on Sandra's interest in the couple's marital home. Aggrieved by the decision below, Kenneth appealed to this Court, assigning as error the following:

DID THE COURT ERR IN NOT GRANTING THE APPELLANT AN EQUITABLE LIEN ON THE APPELLEE'S INTEREST IN THE PARTIES' JOINTLY OWNED HOME LOCATED AT 11504 SHORECREST ROAD, BILOXI, MISSISSIPPI?

II. STATEMENT OF THE FACTS.

Sandra married Kenneth on February 20, 1987, in Gulfport, Mississippi. Their six year marriage produced no children. Kenneth and Sandra separated on June 24, 1992.

Sandra filed a complaint for divorce on August 4, 1992. In this complaint, Sandra alleged habitual, cruel, and inhuman treatment. Alternatively, Sandra asked for irreconcilable differences as the grounds for the divorce.

On March 18, 1993, Kenneth and Sandra entered into an agreement under Miss.Code Ann. Sec. 93-5-2 on March 18, 1993 to a divorce on the grounds of irreconcilable differences and to permit the court to decide issues upon which they could not agree. The consent agreement provided that neither party would be responsible for alimony, and that neither party would claim any interest in the other's retirement accounts. Sandra also agreed to return the 1990 Firebird vehicle to Kenneth. They consented to the trial of the following contested issues:

1. The disposition of the parties' land and home at 11504 Shorecrest Road, Biloxi, Mississippi.

2. The disposition of the personal properties of the parties including the personal property located in the home at 11504 Shorecrest Road, Biloxi, Mississippi.

Sandra requested that the court grant her exclusive use, possession, and ownership of the family's home located at 11504 Shorecrest Road in Biloxi, Mississippi, including all of the household fixtures, appliances, and furniture. In Kenneth's counterclaim, he asked that the couple's home be partitioned and sold. He requested the proceeds from this sale first be applied to the mortgage and any costs of the sale, with an equal division between the parties of any remaining proceeds.

Kenneth filed a motion to amend his counterclaim on February 22, 1993. Kenneth asserted that Lindsey v. Lindsey, 612 So.2d 376 (Miss.1992), a new decision, was support for Kenneth receiving an equitable lien in the marital home. Kenneth's motion requested that the proceeds of the sale of the property satisfy Kenneth's equitable lien first, then the remaining proceeds be divided between the parties. The chancellor granted Kenneth's motion to amend.

The final judgment, awarding divorce, also divided the couple's personal property. The chancellor decreed that the parties would sell the marital home. The proceeds would first pay any indebtedness on the home. The remaining proceeds would go equally to each party. Aggrieved as to the denial of an equitable lien on Sandra's interest in the home, Kenneth filed his notice of appeal.

III. ANALYSIS.

DID THE COURT ERR IN NOT GRANTING THE APPELLANT AN EQUITABLE LIEN ON THE APPELLEE'S INTEREST IN THE PARTIES' JOINTLY OWNED HOME LOCATED AT 11504 SHORECREST ROAD, BILOXI, MISSISSIPPI?

Kenneth argues on appeal that the chancellor should have granted him an equitable lien on Sandra's interest in the marital home under Lindsey v. Lindsey, 612 So.2d 376, 378 (Miss.1992), in the sum of $21,492.00. He contends that Sandra made little or no financial contributions to the purchase of the land and the building of the house. He asserts that she would be "unjustly enriched" by receiving a one-half interest in the land.

Sandra argues that the chancellor correctly noticed her contributions to the marital home by refusing to award Kenneth an equitable lien. She asserts that based on the facts of this case, it would be virtually impossible to determine which party contributed more to the marital assets. Sandra states that the chancellor was only required to divide the marital property equitably, not equally, and that the chancellor was not manifestly wrong in his partition of the property.

In determining the appropriate standard of review, this Court has refused to reverse a chancellor absent a decision being manifestly wrong or not supported by "substantial, credible evidence." Snow Lake Shores Property Owners Corp. v. Smith, 610 So.2d 357, 360 (Miss.1992). Also, this Court presumes with no specific findings on the record, the chancellor resolved all such fact issues in favor of appellee. See, e.g., Matter of Estate of Mason, 616 So.2d 322, 329 (Miss.1993).

Given that this case explores several facets of marital and non-marital property merged together in the marriage, it is appropriate to clarify the meaning of these terms. States employing equitable distribution theory classify property in two terms. Property not subject to equitable distribution because it was not acquired within the marriage is non-marital property. 1 Ann Oldfather, Janice E. Kosel, et al, Valuation and Distribution of Marital Property, Sec. 3.03(2)(a-b) at 3-12, 3-13 (1994 ed.). Property subject to equitable distribution is marital property. 1 Ann Oldfather, Janice E. Kosel, et al, Valuation and Distribution of Marital Property, Sec. 3.03(2)(a-b) at 3-13 (1994 ed.). As this Court has stated:

Assets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties' separate estates prior to the marriage or outside the marriage.

Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994).

Frequently a presumption of marital property arises to any property acquired during the marriage. 1 Ann Oldfather, Janice E. Kosel, et al, Valuation and Distribution of Marital Property, Sec. 3.03(4) at 3-37. (1994 ed.).

Commingled property is a combination of marital and non-marital property which loses its status as non-marital property as a result. 1 Ann Oldfather, Janice E. Kosel, et al, Valuation and Distribution of Marital Property, Sec. 3.03(5) at 3-37. (1994 ed.). See also Boggs v. Boggs, 26 Ark.App. 188, 761 S.W.2d 956, 957 (1988) (en banc) (holding money received from inheritance, as non-marital property, presumptively became marital property when placed in joint account under Arkansas law).

Kenneth cites the cases of Johnson v. Johnson, 550 So.2d 416 (Miss.1989), and Jones v. Jones, 532 So.2d 574 (Miss.1988), asserting that the chancery court can order an equitable distribution of jointly accumulated property, and in doing so may look behind the formal state of the title. See also Ferguson v. Ferguson, 639 So.2d 921, 927 (Miss.1994). In Hemsley, this Court emphatically held that title is no longer determinative in deciding a spouse's rights to the property. Id., at 914. Kenneth also correctly states that the chancery court is empowered to impress an equitable lien. This Court has held that the authority to grant an equitable lien is governed by Miss.Code Ann. Sec. 93-5-23. Lindsey v. Lindsey, 612 So.2d 376, 380 (Miss.1992).

This Court has defined an equitable lien as a non-possessory device placed upon estates through contract, as a means for a creditor to recover a debt. Lindsey, 612 So.2d at 380 This Court has also noted that chancellors can equitably impress a lien upon property as security for a judgment, to avoid unjust enrichment. Neyland v. Neyland, 482 So.2d 228, 230 (Miss.1986).

In the final order granting Sandra and Kenneth a divorce on the grounds of irreconcilable differences, the chancellor divided both the couple's real and personal property. Sandra was previously married before her marriage to Kenneth. By virtue of her previous marriage, Sandra brought a great deal of personal property into the marriage, which Kenneth admitted. However, Kenneth and Sandra did acquire a number of items of marital assets during their marriage, including two cars, a truck, land, a trailer, furniture, and the house. During trial, the court divided these marital assets, and the division is not at issue in the appeal.

The chancellor also made a disposition of the couple's home in the final judgment. The chancellor ordered a sale of the home and an equal division of the remaining proceeds between these parties, after the satisfaction of all encumbrances on the property. The chancellor did not award Kenneth an equitable lien on the home as he requested.

Kenneth claims that he is entitled to a lien on several items. The first item is the land upon which the couple's home is built. Sandra and Kenneth obtained this marital asset by a warranty deed dated October 22, 1987, and they hold title as joint tenants with rights of survivorship and not as tenants in common.

Kenneth's mother owned the real property upon which the house was built and gave this property to them. The parties stipulated that the county appraised the land itself at $5,600.00 for tax purposes. Kenneth asserts he is entitled to an equitable lien for this contribution to the home, as a non-marital asset commingled into mixed assets.

Prior to his marriage to Sandra, Kenneth owned a boat. Kenneth sold this non-marital asset after he got married. Kenneth spent the proceeds from the sale of his boat to build a shed and a driveway which are still on the property. Kenneth claims that he is entitled to an equitable lien for this $3,000.00.

Kenneth also owned a real property lot located at Creel Circle in Handsboro at the time of his marriage...

To continue reading

Request your trial
27 cases
  • A & L, INC. v. Grantham
    • United States
    • Mississippi Supreme Court
    • October 14, 1999
    ...is a combination of marital and non-marital property which loses its status as non-marital property as a result. Maslowski v. Maslowski, 655 So.2d 18, 20 (Miss.1995). ¶ 19. We address each of the assets which John argues is separate property. John first asserts that because Lynn made no con......
  • Sanderson v. Sanderson
    • United States
    • Mississippi Supreme Court
    • December 11, 2014
    ...marital property unless it can be shown to have been exchanged for a separate, and not a familial, asset or function. Maslowski v. Maslowski, 655 So.2d 18, 20 (Miss.1995).¶ 26. In the case sub judice, the chancellor treated the joint account as separate because the monies deposited could be......
  • Sanderson v. Sanderson
    • United States
    • Mississippi Supreme Court
    • August 13, 2015
    ...marital property unless it can be shown to have been exchanged for a separate, and not a familial, asset or function. Maslowski v. Maslowski, 655 So. 2d 18, 20 (Miss. 1995).¶26. In the case sub judice, the chancellor treated the joint account as separate because the monies deposited could b......
  • Brown v. Brown, 1999-CA-01741-COA.
    • United States
    • Mississippi Court of Appeals
    • January 16, 2001
    ...895, 897 (Miss.1995); Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994). See also Franks v. Franks, 759 at 1169; Maslowski v. Maslowski, 655 So.2d 18, 20 (Miss.1995). Commingled property, which has become marital property, is subject to equitable distribution. See Johnson, 650 So.2d at 1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT