Nichols v. Funderburk, 2002-CA-00087-COA.

Decision Date04 November 2003
Docket NumberNo. 2002-CA-00087-COA.,2002-CA-00087-COA.
Citation881 So.2d 266
PartiesLori NICHOLS, Appellant v. David Wayne FUNDERBURK, Appellee.
CourtMississippi Court of Appeals

Angela Newsom Snyder, attorney for appellant.

David Wayne Funderburk appellee, pro se.

EN BANC.

GRIFFIS, J., for the Court.

¶ 1. Lori Nichols filed a complaint for paternity, child support and an equitable division of property against David Wayne Funderburk. The chancellor entered a final judgment that declared David as the father of their two children, granted custody of the children and child support to Lori, restricted David's visitation with the children, and denied Lori's claim for an equitable division of property. From this judgment, Lori now appeals. We find no error and affirm.

FACTS

¶ 2. In 1987, Lori Nichols and David Funderburk met and began a romantic relationship. Lori was fourteen years old, and David was twenty-three years old. Approximately two years later, just before Lori turned sixteen, Lori and David began to live together. They continued their cohabitation through 2001. Although there were promises and discussions about the subject, they were never married. David eventually made it clear that he would never marry Lori.

¶ 3. During their cohabitation, Lori and David had two children. Tonie Lee Funderburk was born on March 29, 1990, and Lori Alexis Funderburk was born on November 12, 1997. The chancellor decided the issues of paternity, custody, and child support, and none of these issues are contested on appeal. This appeal only considers the chancellor's decision to deny Lori an equitable division of property.

¶ 4. During the period of their cohabitation, David operated a restaurant and purchased an apartment complex from his parents. Lori was never an owner or partner in either of these businesses. Lori managed the restaurant and occasionally worked at the apartment complex. Lori was paid a weekly salary for her work at the restaurant.

¶ 5. David also purchased a residence in 1989. The deed to the residence conveyed record title to David and his mother as joint owners. David paid the monthly mortgage payment. David and Lori split the utility bills. Lori bought all the furniture for the house, the appliances, and other material such as paint and flooring to update the home. Lori's name was never added to or included in the property's record title. When she left the relationship, Lori took half of the furniture and left the residence.

¶ 6. The relationship and cohabitation of David and Lori ended in 2001. Lori then filed her complaint for paternity, child support and an equitable division of property. The chancellor's final judgment declared David to be the father of the two children and awarded primary custody to Lori with joint legal custody between both parents. The chancellor restricted David's visitation due to his questionable behavior. The chancellor ordered David to pay $425 per month in child support and provide health insurance for the children. Lori was awarded a $2,300 judgment for back child support. The chancellor denied Lori's claim for an equitable division of the property that was acquired during their cohabitation.

¶ 7. On appeal Lori makes three arguments. First, Lori argues the chancellor erred in denying her claim for an equitable division of the property acquired during her cohabitation with David. Second, Lori contends that since she was merely fourteen years old when her relationship with David began, she should be afforded some protection by the courts and that she should be awarded her fair share of the assets accumulated during their relationship. Finally, Lori claims that a constructive trust was established when she began contributing financial resources and domestic efforts to their businesses and residence.

STANDARD OF REVIEW

¶ 8. Our scope of review in domestic matters is limited. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Denson v. George, 642 So.2d 909, 913 (Miss.1994). This Court is not called upon or permitted to substitute its collective judgment for that of the chancellor. Richardson v. Riley, 355 So.2d 667, 668-69 (Miss.1978). A conclusion that we might have decided the case differently, standing alone, is not a basis to disturb the result. Id.

ANALYSIS

¶ 9. Our review begins with a threshold question. Does the fact that David, as the appellee, failed to file a brief serve as a confession of error? In Barber v. Barber, 608 So.2d 1338, 1340 (Miss.1992), the Mississippi Supreme Court held:

In matters of child custody and support, however, in the absence of an appellee's brief, our practice is to make a special effort to review the record for support for affirmance. Sparkman v. Sparkman, 441 So.2d 1361 (Miss.1983); Garceau v. Roberts, 363 So.2d 249 (Miss.1979[1978]). While this matter does not involve custody or support directly, it does arise out of a suit wherein those issues are of concern and its resolution affects the economic balance between the non-custodial and the custodial parent. Accordingly, we review the record.

Here, just as in Barber, we will not accept the appellee's failure to file a brief as a confession of error, and we will review the record to determine whether an affirmance is proper.

I. Did the chancellor abuse her discretion by denying Lori an equitable division of property?

¶ 10. We begin our discussion with the principle that Mississippi law does not allow a claim for palimony. Aldridge v. Aldridge, 116 Miss. 385, 77 So. 150 (1918). Here, Lori contends that she does not seek an award of palimony, but rather claims she is entitled to an "equitable division of property." Lori argues that Pickens v. Pickens, 490 So.2d 872, 875 (Miss.1986), provides authority for her position.

¶ 11. Equitable division of property is a concept of our marital and domestic laws. A marital relationship may be created in conformity with Mississippi Code Annotated sections 93-1-1 through 93-1-25 (Rev.1994 and Supp.2002). Mere cohabitation does not vest marital rights. Pickens, 490 So.2d at 875.

¶ 12. In Ferguson v. Ferguson, 639 So.2d 921, 925 (Miss.1994), the Mississippi Supreme Court held:

This Court has "long recognized that, incident to a divorce, the chancery court has authority, where the equities so suggest, to order a fair division of property accumulated through the joint contributions and efforts of the parties." Brown v. Brown, 574 So.2d 688, 690 (Miss.1990); Brendel v. Brendel, 566 So.2d 1269, 1273 (Miss.1990); Jones v. Jones, 532 So.2d 574, 580-581 (Miss.1988); Clark v. Clark, 293 So.2d 447, 450 (Miss.1974). With this opinion, this Court adopts guidelines for application of the equitable distribution method of division of marital property.

The key concept in the equitable division of property is that the property be "marital property" and that it be divided "incident to a divorce."

¶ 13. The ceremony of marriage is essential to the equitable division (i.e. the redistribution of ownership between former spouses) of property. An actual marriage is required. However, courts have carved out an exception and extended this concept where there was a marriage or some appearance of marriage. This exception has allowed the award of some type of division of property or payment of support, when no legal marriage actually existed. See Pickens v. Pickens, 490 So.2d 872, 875 (Miss.1986)

; Taylor v. Taylor, 317 So.2d 422, 423 (Miss.1975); Chrismond v. Chrismond, 211 Miss. 746, 52 So.2d 624, 630 (1951); Wooldridge v. Wooldridge, 856 So.2d 446, 452 (¶ 16) (Miss.Ct.App.2003). However, in each of these cases, the couples had all either been married or contended to have married. Here, Lori and David never married or purported to have married.

¶ 14. In Pickens, Norma Jean and Robert Pickens were married in 1948. Pickens, 490 So.2d at 873. They divorced in 1962, but resumed living together in 1963 without remarrying. Id. When Mr. Pickens retired in 1983, the couple separated permanently. Id. The chancellor divided the property to represent the economic contributions by each party toward the joint accumulation of property between them. Id. at 875. Observing that Mrs. Pickens had worked outside of the home for twenty years and taken care of the household, the supreme court affirmed and held that:

Where parties such as these live together in what must at least be acknowledged to be a partnership and where, through their joint efforts, real property or personal property, or both, are accumulated, an equitable division of such property will be ordered upon the permanent breakup and separation.

Id. at 875-76. Lori argues that like the couple in Pickens, she and David had a partnership and accumulated real and personal property through their joint efforts, and she is therefore entitled to equitable division of these assets.

¶ 15. In Taylor, the couple entered into a marriage knowing the putative wife had not divorced her first husband and lived together as man and wife for eighteen years. Taylor, 317 So.2d at 422. Upon their separation, the court found equity required the man to "support" his putative wife for a period of thirty-six months. Id. Granting of monthly support for a limited period of time is not the same as equitable division of property, jointly gained through the efforts of the parties during the relationship.

¶ 16. Lori contends that the chancellor applied the wrong legal standard by relying on Davis v. Davis, 643 So.2d 931 (Miss.1994). Lori contends that Davis held that the plaintiff was not entitled to equitable division based on her domestic contributions alone. Id. at 936. Lori asserts that, unlike the plaintiff in Davis, she did not seek equitable division of property for compensation, payment of monies or division of assets on the basis that she "rendered...

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