Mount v. Mount, 91-CA-1028

• Decision Date: 30 September 1993
• Docket Number: No. 91-CA-1028,91-CA-1028
• Citation: 624 So.2d 1001
• Parties: Carolyn Ann MOUNT, Individually, and on Behalf of Robert James Mount, Jr. v. Robert James MOUNT, Sr.
• Court: Mississippi Supreme Court

Page 1001

624 So.2d 1001

Carolyn Ann MOUNT, Individually, and on Behalf of Robert James Mount, Jr. v. Robert James MOUNT, Sr.

No. 91-CA-1028.

Supreme Court of Mississippi.

Sept. 30, 1993.

W. Eugene Henry, Biloxi, for appellant.

Norman Breland, Breland & Weatherly, Gulfport, for appellee.

En Banc.

ON PETITION FOR REHEARING

PRATHER, Presiding Justice, for the Court:

In this domestic relations case this Court is asked to determine if a property settlement agreement incorporated into the divorce decree has been fulfilled. This Court holds that the husband, Robert James Mount, Sr., did not comply with his property settlement terms, withdraws its former opinion and substitutes this opinion therefor.

I.

Carolyn Ann Mount and Robert James Mount, Sr., were married on November 23, 1961, and divorced on July 17, 1974. At the time of the divorce, the parties had four children ranging in age from three years to eleven years.

At the end of their twelve year marriage in 1974, the Mounts reached an agreement on the division of the marital assets, child custody, and support. The property settlement agreement provided that Mr. Mount was to receive the business and Mrs. Mount was to receive the house debt free. The court ordered that Mr. Mount pay the home mortgage debt. On the date of the divorce decree, Mr. Mount conveyed their house by quitclaim deed to Mrs. Mount and the court ordered Mr. Mount to pay the monthly house note of $161.00. Mrs. Mount was given custody of the four children who were ages 11, 10, 9 and 3 years at the time of the divorce.

In 1990, Mrs. Mount decided to sell her home due to increased maintenance costs and her inability to pay them. Her attorney notified Mr. Mount of the sale and asked that he extinguish the debt that the court ordered him to pay in 1974, or make arrangements to continue to pay the monthly payment directly to Mrs. Mount. Mr. Mount did neither. At the time of the sale of the home, there were two outstanding mortgages. The first mortgage, which Mr. Mount was ordered to pay, had a balance in the amount of $10,142.44, and a second mortgage obtained by Mrs. Mount in the amount of $13,794.15, were deducted from the sale price of the home which was $66,500.

Mrs. Mount individually, and on behalf of Robert Mount, Jr., her 28 year old adult, disabled son who lives with her, filed this suit to enforce the former court order. She sought reimbursement from Mr. Mount of the balance of the $10,142.44 mortgage she was forced to pay at the time of the sale of her home. In the alternative, Mrs. Mount sought an order requiring Mr. Mount to pay to her $161 per month for as long as the original note would have been payable under its original terms.

At trial of the present suit, both parties testified that their property settlement agreement at the time of their divorce provided that Mr. Mount would receive the business and Mrs. Mount would receive the home debt free. Mr. Mount testified, however, that he understood that if the house was sold in the future, he would receive one-half of the proceeds.

II.

In his bench opinion the chancellor made the following findings:

[T]he consideration was the business for the house, based on the testimony of both people. But yet, [Robert's] memory now is [Carolyn] was supposed to give up half the house when it was sold. Yet when I asked him if half the business proceeds were to go to her when and if it were sold, he said "no, sir." That was his answer, so I can't accept the proposition that he was supposed to get half the proceeds of the house if and when it sold.

It appears to the Court that it was her house, that it was a property settlement and the house was to be hers; and he was doing like any good father would do, he wanted to make sure they had a place to live. He was going to pay the house note as long as they stayed in that house.

Now, the way I see it, I rule that his obligation to pay the house note ceased when she sold the house. That's all that he was required to do was pay the house note. His right also terminated to have anything at all to say about it because he executed a quitclaim deed on July 16, 1974 which ways, in clear language, "I do hereby sell, convey and quitclaim unto Carolyn Ann Mount all my right, title and interest," in and to the home place. He had no interest after that because he has given it to her. Whether it was an inter vivos gift, or whether it was anything else, it's not stated anything other than a sale and a quitclaim unto her connected with the divorce.

And both parties having testified there was a trade of the business for the house, it seems inequitable to the Court to deprive her of the proceeds of the house when we are not depriving him of his one-half interest in the business. It's just that simple. There was an equitable distribution between the parties, and the Court is not going to disturb that equitable distribution. That was their own work.

When the chancellor signed the judgment entered on this bench opinion, it stated:

The Court further finds that under the terms of the decree of July 17, 1974, that the Defendant's obligation was to pay the outstanding note due to Fireman's Fund Mortgage Corporation. The Court finds that by the terms of the sale of said property in December of 1990, that the note to Fireman's Fund was paid off and that the mortgage was cancelled. The Court finds that the Defendant's obligation to pay the Fireman's Fund note ceased as of the time the house was sold in December of 1990 as did his right to object to the sale of the house.

....

The Court finds that since the Defendant's obligation to pay the house note ceased, that there is no contempt on the part of the Defendant, since he met this obligation up to and until the house was sold. Therefore, the Plaintiff's request for attorney's fees and requests to find the Defendant in contempt is hereby denied. The Court further denies the Plaintiff's request to modify the Order of July 17, 1974, so as to order the Defendant to reimburse the Plaintiff for the balance of the mortgage note, paid by her, upon the sale of said real property or, in the alternative to order the Defendant to pay the Plaintiff the sum of $161.00 per month, the amount of the Fireman's Fund mortgage, for so long as said note would have been due and payable under its original terms.

Mrs. Mount appeals from this adverse judgment, assigning the following issue:

DID THE TRIAL COURT ERR IN RULING MR. MOUNT'S OBLIGATION TO SATISFY THE MORTGAGE NOTE TERMINATED WHEN IT WAS PAID OFF BY MRS. MOUNT?

III.

Mrs. Mount cites the equitable principle of unjust enrichment, as well as the inability of the court to modify a property settlement agreement, absent fraud, in support of her position that the chancellor erred in relieving Mr. Mount of payment of the balance due on the deed of trust.

Mrs. Mount's testimony supported her position that she was forced to sell her home because of economic conditions. At the time of the divorce, she needed a large home for herself and her four children. Since then, one son died, one son was emancipated, and the 20 year old daughter went to college. At the time of the sale, only Mrs. Mount and her 28 year old adult, disabled son lived there, although the daughter was still there from time to time. The heating and air conditioning in the house did not work and Mrs. Mount's 1977 Pontiac, her only means of transportation, needed to be replaced because the engine and the transmission had both stopped working. To maintain herself and her children, she had borrowed over $13,000 from her credit union, secured by a second mortgage on her home. Her mentally disabled son was in her care and his support required more money than his monthly disability checks provided. ¹ Mrs. Mount is still paying her son's medical bills not covered by insurance that were incurred before he was diagnosed as having a mental disorder. ² The daughter has received one Pell Grant for college, but was denied another because the capital gain on the sale of Mrs. Mount's home put the family into a higher tax bracket. Mrs. Mount's income from Keesler Air Force Base of $465 bi-monthly is supplemented by working as a waitress on weekends (averaging $140 per month) and as a secretary for a union ($50 per month). She is presently renting an apartment for herself, son, and daughter for $520 per month. The continued payment of the $161 house note by Mr. Mount will help defray her expenses.

Mr. Mount's position is that he was ordered to pay "the mortgage payment" and that when Mrs. Mount voluntarily paid it off, his liability ended. The chancellor acknowledged Mr. Mount's interest in providing his children with a home. However, the chancellor held that his liability to pay the mortgage ended when the mortgage was satisfied by Mrs. Mount.

IV.

The chancellor's findings will not be disturbed unless he was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Faries v. Faries, 607 So.2d 1204, 1208 (Miss.1992); Tinnin v. First United Bank of Miss., 570 So.2d 1193, 1194 (Miss.1990). Especially on issues arising out of a divorce, the chancellor's findings will not be reversed unless manifestly wrong. Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992).

V.

In Logue v. Logue, 234 Miss. 394, 106 So.2d 498 (1958), a husband and wife entered into a separation agreement which granted the wife full title to the marital home. The husband agreed to assume the $78 monthly note on the home. After the couple's divorce, the wife remarried and the husband terminated his payment of the house note. This Court found that the husband had assumed the mortgage payments in order to equalize the property settlement between the husband and the wife. Because there was no provision in the separation agreement which provided for the termination of the monthly house payments upon the wife's remarriage, the husband had made an "unqualified assumption of the balance due." Id. at 500...