McIlwain v. McIlwain, 2000-CA-02062-COA.

Decision Date30 April 2002
Docket NumberNo. 2000-CA-02062-COA.,2000-CA-02062-COA.
PartiesPhilip McILWAIN, Appellant, v. Delores McILWAIN, Appellee.
CourtMississippi Court of Appeals

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 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 on the home at issue. Philip reasons, though, that since the home was purchased after the separation with funds deposited by him in the account after the separation that the equity in the home could not be considered to be a marital asset subject to equitable distribution. Delores counters that the funds to make the payment on the house were accumulated during the marriage and, thus, were marital assets.

¶ 7. "We define marital property for the purpose of divorce as being 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." Flechas v. Flechas, 791 So.2d 295(¶ 8) (Miss.Ct.App.2001). The "course of the marriage" runs until the date of the divorce judgment, for purposes of calculating whether or not assets are marital or non-marital, and an otherwise marital asset may be classified as separate if an order for separate maintenance is entered. See Godwin v. Godwin, 758 So.2d 384

(¶ 6) (Miss.1999). The supreme court has said that one party's retirement plan is a marital asset if acquired during the marriage. Black v. Black, 741 So.2d 299 (¶ 8) (Miss. Ct.App.1999). We find that the key factor is that funds were acquired during the marriage, thus rendering them marital assets.

¶ 8. Philip and Delores separated in May 1999 and their divorce was not finalized until September 2000. No order for separate maintenance was ever entered. According to Godwin, any property acquired in the interim between the separation and divorce fell into the category of "marital" absent an agreement or evidence to the contrary. Godwin, 758 So.2d at (¶ 6). Monies were deposited in both the bank account and credit union account prior to the divorce; thus, we find them to be marital assets. The chancellor did not abuse his discretion in finding that the home, purchased with money from the credit union account, which was a marital asset, was subject to equitable distribution.

b. Cash assets

¶ 9. Philip argues that the chancellor erred in awarding Delores approximately $50,000, which Philip claims should have been divided equally between the two. Philip cites to Delores's financial statement wherein she notes a certificate of deposit for $45,000 at Lamar Bank and also a balance of $5,800 in her checking account. Delores testified that when she and Philip separated, she took $45,000 out of their joint real estate account and combined this with an income tax check and bought a certificate of deposit for $50,000. Phillip testified that he was aware of the money and he assumed Delores used the money to pay bills, which she testified she used the funds to do. Philip claims the chancellor failed to address these funds in his opinion. However, the chancellor did address these funds in his opinion stating, "Delores has withdrawn jointly owned funds following the separation of the parties...

To continue reading

Request your trial
7 cases
  • Pace v. Pace
    • United States
    • Mississippi Court of Appeals
    • July 27, 2021
    ...license. Under these circumstances, we find no abuse of discretion in the chancellor's award of these funds to Julie. See McIlwain v. McIlwain , 815 So. 2d 476, 479 (¶9) (Miss. Ct. App. 2002) (holding that the chancellor did not abuse his discretion by awarding approximately $50,000 to the ......
  • McLaurin v. McLaurin
    • United States
    • Mississippi Court of Appeals
    • September 2, 2003
    ...or non-marital, and an otherwise marital asset may be classified as separate if an order for separate maintenance is entered." McIlwain v. McIlwain, 815 So.2d 476, 479(¶ 7) ¶ 25. The record indicates that the payment was made in January of 2001, prior to the agreed temporary judgment or the......
  • Brewer v. Brewer
    • United States
    • Mississippi Court of Appeals
    • May 31, 2005
    ...from Ritchie. ¶ 13. Once properly married by law, the parties remain married until the entry of an order of final divorce. See McIlwain v. McIlwain, 815 So.2d 476, 479(¶ 7) (Miss.Ct.App.2002). So long as there exists and remains a valid marital relationship, proof of adulterous conduct on t......
  • Spahn v. Spahn
    • United States
    • Mississippi Court of Appeals
    • September 26, 2006
    ... ... Deal v. Wilson, 922 So.2d 24, 28-29 (¶ 11) (Miss.Ct.App. 2005) (quoting McIlwain v. McIlwain, 815 So.2d 476, 479 (¶ 7) (Miss.Ct.App.2002)). The relevant testimony regarding the ... ...
  • 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