McDonald v. McDonald, 2011–CA–01324–COA.

• Decision Date: 18 June 2013
• Docket Number: No. 2011–CA–01324–COA.,2011–CA–01324–COA.
• Citation: 115 So.3d 881
• Parties: Cynthia Jean Guess McDONALD, Appellant/Cross–Appellee v. Edgar L. McDONALD Jr., Appellee/Cross–Appellant.
• Court: Mississippi Court of Appeals

115 So.3d 881

Cynthia Jean Guess McDONALD, Appellant/Cross–Appellee

v.Edgar L. McDONALD Jr., Appellee/Cross–Appellant.

No. 2011–CA–01324–COA.

Court of Appeals of Mississippi.

June 18, 2013.

George M. Mitchell, H. Richard Davis Jr., Eupora, attorneys for appellant.

Mark A. Cliett, West Point, attorney for appellee.

Before IRVING, P.J., ISHEE and ROBERTS, JJ.

ISHEE, J., for the Court:

¶ 1. In July 2011, the Clay County Chancery Court granted Cynthia McDonald (Cindy) and Edgar McDonald Jr. (Ed) a divorce based on irreconcilable differences. The chancery court awarded Cindy $234,834 of the marital estate and Ed $277,988.60 of the marital estate. Ed was also ordered to pay alimony of $1,800 per month and $5,000 of Cindy's attorney's fees. Cindy now appeals, arguing the chancery court erred by (1) finding the twenty-three acres of real property were not marital property; (2) awarding her less than an equal portion of the marital assets; (3) failing to adequately provide for her health-care costs; and (4) refusing to award her full attorney's fees. Ed cross-appeals, arguing the chancery court erred by (1) excluding for equitable distribution the property that Cindy transferred to her sister; (2) awarding Cindy more than an equal portion of the marital estate; and (3) awarding Cindy attorney's fees. Finding no error, we affirm the chancery court's judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Cindy and Ed were married on June 1, 1979. They separated in November 2006. In August 2008, Ed filed for divorce in the Clay County Chancery Court based on habitual cruel and inhuman treatment. After a trial on the merits, the chancery court found that Ed had failed to prove cruel and inhuman treatment and was, therefore, not entitled to a fault-based divorce. However, the chancery court awarded Cindy separate maintenance. Less than two weeks after separate maintenance was ordered, Ed attempted to terminate his separate-maintenance obligation. In his motion, Ed argued he had “made a good faith effort to return to the marriage and amend the marital relationship.” Cindy disputed this, and Ed's request was denied. Ed then filed a motion to alter or amend the order denying his motion to terminate separate maintenance. Cindy responded with a motion for contempt based on Ed's failure to pay separate maintenance. Ed's motion was denied; however, Cindy's motion for contempt was granted, and she was awarded $6,000. Ed appealed the decision to this Court, and we affirmed the decision of the chancery court. McDonald v. McDonald, 69 So.3d 61, 68 (¶ 18) (Miss.Ct.App.2011).

¶ 3. On March 19, 2010, Cindy filed a complaint for divorce based on adultery, habitual cruel and inhuman treatment, and desertion, or in the alternative, irreconcilable differences. However, the parties eventually agreed to a divorce based on irreconcilable differences. The chancellor was to decide the issues of property division and alimony.

¶ 4. During the course of the marriage, Ed was the main source of income. Cindy worked for thirteen years during the marriage. However, in 1999, Cindy was unable to continue working due to illness. Cindy suffers from multiple sclerosis and fibromyalgia. Currently, her only source of income, independent of Ed's court-ordered support, is the $993 per month she receives in Social Security disability payments. At the time of the divorce, Ed earned approximately $115,000 per year, including his bonus.

¶ 5. Cindy testified that since the separation, she had depended on her sister, Patsy, for both financial and physical care. She and Patsy owned a rental home they inherited from their mother. They earned $840 per month from the rental home, which they split. However, in March 2010, Cindy deeded the property to Patsy. Because Cindy did not have the resources to support herself throughout the divorce process or afford her attorney's fees, Patsy covered some of these costs. Therefore, Cindy deeded the house to Patsy as repayment.

¶ 6. At the time of the divorce, the parties had substantial assets. The parties' marital home is currently listed with a realtor for $395,000. The house is situated on twenty-five acres of land. Ed agreed that two of the acres are attached to the house as marital property; however, he asserted that the other twenty-three acres are his separate property that he inherited. When assessing the parties' property, the chancery court found the marital home had a value of $329,000, with $100,000 remaining on the balance of the home, thus leaving $229,000 in equity. The chancery court also found the disputed twenty-three acres were not marital property.

¶ 7. The parties also had various retirement and investment accounts. While working, Cindy accrued retirement benefits in the amount of $41,585. Ed accrued a 401(k) in the amount of $20,968; a retirement account of $33,657.94; an Executive Stock Unit Plan with a value of $95,170.93; and a Stock Discount Plan in the amount of $29,363.73. Ed also has a BancorpSouth certificate of deposit valued at $45,000. Additionally, the parties have a Dodge Ram pickup with a value of $8,500, with a loan balance of $2,272.34, and various personal property.

¶ 8. A trial was held on the matter, and the chancellor entered an opinion on May 31, 2011. After the chancellor conducted a Ferguson¹ analysis, Cindy was awarded her retirement account in the amount of $41,585; the Dodge Ram pickup valued at $8,500; personal property totaling $2,350; and sixty percent of the equity in the house when it is sold. Ed was awarded his 401(k) in the amount of $20,968; his retirement account of $33,657.94; his Executive Stock Unit Plan with a value of $95,170.93; his Stock Discount Plan in the amount of $29,363.73; personal property valued at $9,500; forty percent of the equity in the house when it is sold; and the twenty-three acres considered separate property valued at $34,500.

¶ 9. Based on the chancellor's Armstrong² analysis, Cindy was awarded $1,800 per month in alimony. Ed was also required to provide Cindy with medical coverage for eighteen months. Finally, Ed was ordered to pay $5,000 in attorney's fees to Cindy.

¶ 10. Cindy now appeals, arguing the chancery court erred by (1) finding the twenty-three acres of real property were not marital property; (2) awarding her less than an equal portion of the marital assets; (3) failing to adequately provide for her health-care costs; and (4) refusing to award her full attorney's fees. Ed cross-appeals, arguing the chancery court erred by (1) excluding from equitable distribution the property that Cindy transferred to her sister; (2) awarding Cindy more than an equal portion of the marital estate; and (3) awarding Cindy attorney's fees.

DISCUSSION

¶ 11. When reviewing a decision by the chancery court, we employ a limited standard of review. Williams v. Williams, 56 So.3d 1277, 1280 (¶ 12) (Miss.Ct.App.2011). “We will not disturb a chancellor's findings unless the court was manifestly wrong, abused its discretion[,] or applied an erroneous legal standard.” Id. (citations omitted). We review question of law de novo. Broome v. Broome, 75 So.3d 1132, 1139 (¶ 19) (Miss.Ct.App.2011).

I. Nonmarital Property

¶ 12. When dividing marital assets, the chancery court must first classify the property as marital property or nonmarital property. Stewart v. Stewart, 864 So.2d 934, 937 (¶ 12) (Miss.2003). Marital property is defined as “any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor.” Id. (quoting Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994)). Inter vivos gifts and inheritances are considered nonmaritalproperty unless they have been commingled. Everett v. Everett, 919 So.2d 242, 247 (¶ 19) (Miss.Ct.App.2005) (citing Heigle v. Heigle, 654 So.2d 895, 897 (Miss.1995)). However, “[a]ssets which are classified as nonmarital, such as inheritances, may be converted into marital assets if they are commingled with marital property or utilized for domestic purposes, absent an agreement to the contrary.” Stewart, 864 So.2d at 937 (¶ 12) (quoting Boutwell v. Boutwell, 829 So.2d 1216, 1221 (¶ 20) (Miss.2002)).

A. Twenty–Three Acres of Land Adjacent to the Marital Home

¶ 13. Cindy argues the chancery court erred by finding the twenty-three acres of land were nonmarital property and failing to distribute the land along with the other marital assets. Ed contends that the twenty-three acres were purchased with funds from his father's estate. However, Cindy asserts there is no evidence, other than Ed's own testimony, that the property was nonmarital. According to Cindy, the funds Ed used were from the parties' joint bank account, and the property was titled in both names. She further argues that even if the funds were from Ed's father's estate, he commingled the funds when he deposited them into the parties' joint bank account. Finally, Ed and Cindy were listed as joint tenants with the right of survivorship on the title for the twenty-three acres of land. Cindy argues that this supports her claim that the property was marital property.

¶ 14. We find that a different conclusion could have been reached regarding whether or not the funds were commingled, therefore making the twenty-three acres marital property. However, “we are restrained from substituting our own judgment for that of the chancellor, even if we disagree with his or her findings of fact and would arrive at a different conclusion.” Robinson v. Burton, 49 So.3d 660, 664 (¶ 9) (Miss.Ct.App.2010) (citation omitted). Here, there was evidence that the funds were inherited by Ed and were only deposited in the parties' joint account to pay for the twenty-three acres of land. Furthermore, the Mississippi Supreme Court has rejected the “title theory.” Marter v. Marter, 95 So.3d 733, 738 (¶ 15) (Miss.Ct.App.2012). Therefore, in Mississippi, the...