McIlwain v. McIlwain, No. 2000-CA-02062-COA.

• Court: Mississippi Court of Appeals
• Writing for the Court: Before McMILLIN, C.J., LEE, and BRANTLEY, JJ.
• Citation: 815 So.2d 476
• Parties: Philip McILWAIN, Appellant, v. Delores McILWAIN, Appellee.
• Decision Date: 30 April 2002
• Docket Number: No. 2000-CA-02062-COA.

815 So.2d 476

Philip McILWAIN, Appellant,
v.
Delores McILWAIN, Appellee

No. 2000-CA-02062-COA.

Court of Appeals of Mississippi.

April 30, 2002.

815 So.2d 477

Nancy E. Steen, Hattiesburg, attorney for appellant

Shirlee Fager Baldwin, Hattiesburg, attorney for appellee.

Before McMILLIN, C.J., LEE, and BRANTLEY, JJ.

PROCEDURAL HISTORY

LEE, J., for the court.

¶ 1. Philip and Delores McIlwain were married in August 1978, and Delores was granted a divorce in September 2000 by the Lamar County Chancery Court on

815 So.2d 478

grounds of uncondoned adultery. Pursuant to the judgment, the chancellor distributed property and assets. Philip filed a motion for reconsideration in November 2000, which was denied, and he now appeals to this Court seeking relief

FACTS

¶ 2. Philip and Delores McIlwain worked throughout their marriage to accumulate assets, buying, selling and renting various parcels of property to earn profits. At the time of the divorce, Philip had been working at Georgia Pacific for nearly sixteen years and earned approximately $2,600 per month. Delores had worked for five years at First Family Financial Services earning approximately $1,600 per month. In their stipulation, the parties agreed to valuations of certain properties and assets, plus agreed to split the values of each's pension plan equally.

¶ 3. On appeal, Philip argues that the chancellor erred in his division of marital assets, specifically concerning funds Delores withdrew from their joint checking account, that the chancellor erred in including as a marital asset a home purchased by Philip after the separation but prior to the divorce, that the chancellor abused his discretion in awarding alimony to Delores, and that Delores did not submit an accurate financial statement to the court.

DISCUSSION OF THE ISSUES

I. DID THE CHANCELLOR ERR IN HIS DIVISION OF MARITAL ASSETS?

¶ 4. With this first issue, Philip argues the chancellor erred in his division of marital assets. Philip specifically takes issue with the chancellor's finding the residence Phillip purchased in November 1999, six months after he and Delores separated, was marital property. Philip also argues that certain cash assets were improperly omitted from the property distribution. "The court's standard of review in 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." Traxler v. Traxler, 730 So.2d 1098 (¶ 13) (Miss.1998).

a. House

¶ 5. In November 1999 six months after the couple's separation, Philip purchased a home in Purvis, withdrawing funds from the parties' credit union account to make the purchase. Delores testified that Philip gave her a key to this home, that she attended the loan closing on the house, and that Philip told her he bought the home for the two of them to live in as they attempted to reconcile. The question lies in whether to count the home as marital property subject to equitable distribution or to count it as Philip's separate property. In examining this issue, we look to whether the funds in the credit union account were marital assets; if we so find, then we examine the status of the home as a marital asset.

¶ 6. From the record we find that most or all of Delores's paychecks went into her bank account, and she used these funds to pay personal bills for the couple during the marriage. Most or all of Philip's paychecks went into the credit union account. Both the bank and the credit union accounts were in Philip's and Delores's names. Philip admitted to withdrawing $4,000 in November 1999 from his and Delores's joint credit union account to use as part of a down payment...