McIntosh v. McIntosh

• Decision Date: 25 March 2008
• Docket Number: No. 2006-CA-01762-COA.,No. 2006-CA-02136-COA.,2006-CA-02136-COA.,2006-CA-01762-COA.
• Citation: 977 So.2d 1257
• Parties: Peirce McINTOSH, Appellant v. Gay Reed McINTOSH, Appellee. Gay Reed McIntosh, Appellant v. Peirce McIntosh, Appellee.
• Court: Mississippi Court of Appeals

977 So.2d 1257

Peirce McINTOSH, Appellant v. Gay Reed McINTOSH, Appellee.

Gay Reed McIntosh, Appellant v. Peirce McIntosh, Appellee.

No. 2006-CA-02136-COA.

No. 2006-CA-01762-COA.

Court of Appeals of Mississippi.

March 25, 2008.

John H. Daniels, Greenville, attorney for appellant.

Edward D. Lamar and Frank J. Dantone, Greenville, attorneys for appellee.

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

IRVING, J., for the Court.

¶ 1. This appeal arises from a judgment of divorce entered by the Washington County Chancery Court in favor of Peirce McIntosh, which was stayed upon motion by Gay Reed McIntosh. Gay appealed initially, and her appeal was assigned cause number 2006-CA-01762. Shortly thereafter, Peirce appealed the chancellor's decision to stay the final judgment of divorce and to reinstate the order of temporary support. Peirce's appeal was assigned cause number 2006-CA-02136 and has been consolidated with Gay's.

¶ 2. Gay asserts (1) that the trial court erred in granting Peirce a divorce on the ground of cruel and inhuman treatment, (2) that the trial court erred in dismissing her complaint for separate maintenance, (3) that the trial court, in dividing the couple's assets, erred in failing to consider Peirce's Public Employees' Retirement System (PERS) account and Peirce's contributions to a deferred compensation plan, (4) that the trial court erred in denying Gay periodic, lump sum, or rehabilitative alimony, and (5) that the trial court erred in awarding Gay only half of her attorney's fees and expenses.

¶ 3. Peirce asserts that the trial court erroneously granted the stay and that the court did not have jurisdiction to reinstate its temporary order.

FACTS

¶ 4. Gay and Peirce were married on June 10, 1978. One child, Jae, was born on October 5, 1989. On April 22, 2005, after almost twenty-seven years of marriage, Peirce moved out of the marital home. On September 9, 2005, Gay filed a complaint for separate maintenance. On the same day, she also filed a motion for separate maintenance pendente lite and a motion for child support pendente lite. Peirce, in turn, filed a petition for divorce and an answer to Gay's complaint. On December 13, 2005, a hearing was held on Gay's motion for separate maintenance pendente lite and child support pendente lite.

¶ 5. At the hearing, Gay testified that Peirce had moved out of the marital home; however, she did not elaborate on Peirce's motive for doing so. Later, the chancellor asked her whether she had caused Peirce to leave the marital home. Gay responded that she was not aware of anything that she had done that caused Peirce to leave. Gay did not mention that she believed Peirce was having an affair.

¶ 6. Gay testified that she filed a complaint for separate maintenance, rather than a complaint for divorce, because she wished to remain married and that the separation had taken a financial toll on her.¹ Gay also testified that Peirce had been responsible for paying the household bills since 1988 because she had problems managing the couple's finances. Gay admitted to writing checks that were not honored due to insufficient funds. Gay recalled that "he's been doing it pretty much ever since [1988] and he changed everything to him at that point."

¶ 7. Upon further examination by the court, Gay testified that she had not filed an income tax return since 2002. On reredirect examination, Gay testified that, to her knowledge, the same was true for Peirce. On recross-examination, she testified that if Peirce had made payments to the Internal Revenue Service (IRS) the payments would have been for unpaid taxes prior to 2002.

¶ 8. Peirce testified as an adverse witness. He was adamant that he did not leave Gay for Gloria Sample, the curriculum coordinator at the school where he served as principal. He also testified that he had not engaged in sexual relations with Gloria. Peirce stated that he could no longer trust Gay because she had not been honest with him and that she had been financially irresponsible for years. Peirce testified that Gay would tell him that she had paid certain bills when she had not done so and that she would write checks when there was not enough money to cover them.

¶ 9. Peirce stated that he and Gay began to have problems with their income taxes as long ago as 1985. He recalled that when the problems arose Gay was responsible for filing their income taxes but had neglected to do so. Peirce stated that he did not know that the taxes had not been paid because Gay did not give him notices sent by the IRS. Consequently, he did not learn that the taxes had not been paid until the IRS began garnishing his wages. Peirce testified that he hired a certified public accountant to handle the problem; however, he gave Gay the responsibility again about a year later. Thereafter, Gay failed to file income taxes again.²

¶ 10. On direct examination, Peirce testified that the primary reason that he left the marital home was because he did not trust Gay anymore. Peirce stated that he and Gay had had problems for years, beginning about ten years into their marriage when he found out that Gay had given birth to a child before they were married.³ However, Peirce stated that Gay's mishandling of the marital funds was the primary reason that he left the marital home.

¶ 11. Upon examination by the court, Peirce stated that living with Gay had become very difficult because Gay would fail to pay the mortgage and other bills after he had given her the money to do so, and she had also stolen checks from his checkbook. As a result, he would not leave his checkbook where Gay would have access to it, and he began having his mail delivered to him at work, rather than at home.

¶ 12. On January 16, 2006, the chancellor entered an order for temporary support, overruling Gay's motion for separate maintenance. The chancellor found that although Gay proved that she did not cause Peirce to leave the marital home, she failed to prove that Peirce had willfully failed to support her and Jae during their separation. The court granted Gay's request for child support and ordered Peirce to pay $500 per month, along with certain additional amounts shown on his 8.05 statement that, according to Peirce, he was already paying for Gay's and Jae's support.

¶ 13. On August 8, 2006, a hearing was held on Gay's motion for separate maintenance. Peirce was called as an adverse witness and testified as to what prompted him to leave the marital residence on April 22, 2005. He stated that he and Gay had an argument "after she claimed to have heard a message that was left on his cellular telephone by Gloria. Peirce stated that the argument began when Gay asked him for money but that it escalated when she accused him of having an affair with Gloria.

¶ 14. During the hearing, Peirce related an incident that occurred in June 2005 when he and Gay spent the night at his mother's home in Armory, Mississippi, before traveling to a conference on the Mississippi Gulf Coast. Peirce denied having sexual relations with Gay during this time; however, Gay recalled that they did. According to Peirce, toward the end of the trip, Gay began to suspect that he was having an affair, which he denied.⁴

¶ 5. Peirce also testified about an incident that occurred after he and Gay had separated. During that time, he was living in a trailer located on a dirt road in Indianola, Mississippi. Peirce testified that on November 22, 2005, he had fallen into a "diabetes sleep" after eating pizza and drinking beer. He was awakened by someone knocking on the trailer, and he called the police to investigate. Peirce stated that when Deputy Doug Grantham arrived, he and the deputy walked around the trailer and the surrounding property but saw no one. Shortly thereafter, Deputy Grantham saw a car parked down the road and went to investigate. Peirce then went to a nearby store to buy water. According to Peirce, when he returned, Deputy Grantham was talking to Gay.⁵

¶ 16. On direct, Peirce testified that Gay often accused him of committing adultery with a maid at the school, assistant teachers, and a custodian. Peirce also testified that between 1991 and 2005 Gay would misappropriate their funds approximately every two months. However, upon examination by the court, Peirce testified that Gay stopped stealing his checks around 1995.

¶ 17. Gay's version of what occurred the night that Peirce left the marital home differed from Peirce's version. Gay admitted that she listened to a voicemail message that was left on Peirce's cellular telephone by Gloria, but she stated that she did not mention to Peirce that she had heard the message.⁶ Gay further testified that she asked Peirce for some money. He responded by telling her that he was leaving because he was "tired of this." Gay stated that as Peirce packed his things she unpacked them. Gay testified that she and Peirce talked for a while, and she tried to convince him that they could work out their problems. During the conversation, Peirce began to feel ill.⁷ Gay recalled that "it was like he was having a heart attack or something, you know, because he started sweating and then he got tired." She stated that Peirce was not physically able to leave until around 3:00 a.m, at which time, Peirce went to his car and gave Gay the money she had requested. As he continued to pack his things, Gay asked him whether he was leaving her for Gloria. Gay stated that Peirce told her that he was leaving because he was tired.⁸ Gay testified that it was at that point that she told him that she had heard Gloria's message. Gay stated that as Peirce packed his car and attempted to leave, she sat in the passenger seat of Peirce's car. Gay further testified that Peirce tried to push her out of the car and that she hit him. They both started pushing each other and they eventually fell out of the car onto the ground. Peirce left shortly thereafter.

¶ 18. Gay testified that she remained ready and willing to...