Ory v. Ory

• Decision Date: 02 May 2006
• Docket Number: No. 2004-CA-00545-COA.,2004-CA-00545-COA.
• Parties: Alan Keith ORY, Appellant v. Sharon Ann Young ORY, Appellee.
• Court: Mississippi Court of Appeals

936 So.2d 405

Alan Keith ORY, Appellant v. Sharon Ann Young ORY, Appellee.

No. 2004-CA-00545-COA.

Court of Appeals of Mississippi.

May 2, 2006.

COPYRIGHT MATERIAL OMITTED

Shawn M. Lowrey, Robert R. Marshall, West Point, attorneys for appellant.

Michael V. Ratliff, attorney for appellee.

EN BANC.

MODIFIED OPINION ON MOTION FOR REHEARING

BARNES, J., for the Court.

¶ 1. The appellant's and appellee's motions for rehearing are denied. The original opinion issued in this case is withdrawn, and the following opinion is substituted therefor.

¶ 2. Alan Ory appeals the decision of the Lamar County Chancery Court regarding the validity of his divorce and the distribution of the marital assets. Rejecting Alan's claim of invalidity but finding error in the classification and calculation in value of certain marital assets, we affirm in part and reverse and remand in part.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 3. Alan and Sharon Ory were married on November 4, 1995, in Lamar County, Mississippi, and lived together until on or about October 20, 2001. During their marriage, Alan was an employee and part-owner of SpeeDee Oil Change in Hattiesburg, and Sharon worked as a respiratory therapist at Forrest General Hospital, also in Hattiesburg. On October 24, 2001, Alan filed for divorce on the grounds of habitual cruel and inhuman treatment and adultery, or in the alternative, irreconcilable differences. Sharon answered and counterclaimed that she also was entitled to a divorce on the ground of habitual cruel and inhuman treatment, or in the alternative, irreconcilable differences. On January 24, 2003, the Chancery Court of Lamar County issued an order granting Alan the divorce on the ground of habitual cruel and inhuman treatment. The order granting the divorce ("judgment of divorce") stated that the chancery court reserved for a later date other issues such as the distribution of the marital assets. After hearings held in September and October 2003, the chancellor issued a final judgment which ordered the distribution of the marital assets ("distribution judgment"); this judgment was issued on January 23, 2004.¹

¶ 4. In arriving at the distribution, the chancellor evaluated the following assets:

a. An eighty-acre parcel of land deeded to Sharon prior to the marriage;

b. The Orys' marital home and a five-acre section of the larger parcel, upon which the home was constructed;

c. The appreciation during the marriage of Alan's share of the SpeeDee Oil Change franchise;

d. Sharon's retirement fund of $36,520, accumulated during the marriage;

e. A motorcycle, tractor, pick-up truck, desk, and tools.

¶ 5. In the distribution judgment, the chancellor valued the marital assets at $280,077 and awarded each party fifty percent of the marital estate, or $140,038.50 apiece. Sharon was awarded the marital home, fee simple title to the entire eighty-acre parcel of land, the contents of her retirement account, and the furnishings in the home. Alan was awarded the appreciation in value of the SpeeDee Oil Change franchise as well as the motorcycle, tractor, truck, desk, and tools. Because the value of the assets distributed to Sharon slightly outweighed those awarded to Alan, the chancellor required that Sharon pay Alan a total of $13,034.50 to make up for the imbalance. Additionally, the chancellor ordered Sharon to reimburse Alan $49,000 for payments he made prior to the marriage to pay off a lien on Sharon's parcel of land. Taking into account the effect of the $49,000 payment, Sharon's award was effectively reduced to $91,038.50, and Alan's award increased to $189,038.50.

¶ 6. Dissatisfied with the chancellor's distribution, Alan filed a motion for new trial asserting that the chancellor's decision was against the overwhelming weight of the evidence. Upon the chancery court's denial of his motion, Alan, represented by new counsel, appealed to this Court, asserting the following: (1) that the chancellor erred in awarding the divorce on the ground of habitual cruel and inhuman treatment; (2) that the chancellor erred in characterizing the seventy-five-acre parcel of land and certain funds as non-marital assets; (3) that the chancellor erroneously calculated the mathematics of the equitable distribution; and (4) that the chancellor erred in distributing the marital assets. We affirm in part and reverse and remand in part.

STANDARD OF REVIEW

¶ 7. This Court's scope of review in domestic relations matters is strictly limited. Dunn v. Dunn, 911 So.2d 591, 595 (¶ 8) (Miss.Ct.App.2005). We will not disturb a chancery court's findings unless the court's actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Andrews v. Williams, 723 So.2d 1175, 1177 (¶ 7) (Miss.Ct.App.1998). Particularly in the areas of divorce, alimony and child support, this Court is required to uphold the findings of fact made by a chancellor that are supported by substantial evidence and that do not indicate arbitrariness or caprice. Henley v. Jones, 880 So.2d 382, 384 (¶ 5) (Miss.Ct.App.2004) (citing Newsom v. Newsom, 557 So.2d 511, 514 (Miss. 1990)).

ISSUES AND ANALYSIS

I. WHETHER THE CHANCERY COURT ERRED IN AWARDING ALAN THE DIVORCE ON THE GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT.

¶ 8. Dissatisfied with his share of the marital assets, Alan now challenges not only the chancellor's distribution of the assets, but the validity of the divorce itself. The challenge seems to stem from Alan's belief that his financial position would be improved were he awarded a divorce on the ground of adultery, as the chancellor might find that Sharon's conduct weighs against her receiving a favorable share of the marital assets. Alan now assumes the extraordinary position of asking this Court to find that the divorce he procured is invalid. The matter is complicated by Sharon's remarriage sometime after the issuance of the judgment of divorce.

¶ 9. It is well-established that a party is not allowed to raise an issue for the first time on appeal, because to do so prevents the lower court from addressing the alleged error. See In re Conservatorship of Murphey, 910 So.2d 1234, 1241 (¶ 32) (Miss.Ct.App.2005) (citing Crowe v. Smith, 603 So.2d 301, 305 (Miss. 1992)). Alan stated in a sworn complaint that he suffered habitual cruel and inhuman treatment at the hands of his wife; however, represented by new counsel on appeal, Alan now begs this Court to invalidate his divorce because he failed to put forth sufficient evidence to justify the grant of his divorce. Stunned by Alan's about-face, Sharon contends that equitable or judicial estoppel should prevent Alan from obtaining the relief he seeks.² While estoppel may well prevent Alan from gaming our courts in such a manner, we decline to answer the question, for the issue of the validity, vel non, of the Orys' divorce is not properly before this Court. An examination of the record shows that Alan failed to raise this issue either by objection or via a post-trial motion. Therefore, Alan waived the issue and we may not pass judgment on his challenge as to the validity of the divorce. See Burcham v. Burcham, 869 So.2d 1058, 1060-61 (¶¶ 7-9) (Miss.Ct.App.2004); Seals v. State, 767 So.2d 261, 263 (¶ 6) (Miss.Ct.App.2000).

¶ 10. The dissent would hold the Orys' divorce invalid because the divorce proceedings were not held in open court, and were thus in violation of section 93-5-17 of the Mississippi Code.³ However, again, Alan never raised this argument either below or on appeal. Alan's briefs make no mention of the statute cited by the dissent; he merely claims that the issue below was one of proof — that he did not put forth sufficient evidence to support the chancellor's finding of habitual cruel and inhuman treatment. He in no way asserts that a section 93-5-17 defect voids the divorce. It is true that the record in this matter is incomplete, and that the docket makes no reference to a hearing on the merits of Alan's case for divorce. However, the chancellor's judgment of divorce reflects that he "heard and considered both oral and documentary evidence." Because Alan failed to raise below that the divorce should be held void for failure to conduct the proceedings in open court, we now have no record to aid us in evaluating any such claim, and Sharon has had no opportunity to respond to the argument. The chancellor would clearly be in a much better position to resolve the issue. He should have been given the opportunity to do so.

¶ 11. Even if the dissent is correct in its assertion that the chancery court failed to comply with the requirements of section 93-5-17, this Court does not have jurisdiction to declare the judgment of divorce void on that basis. Our Court is a court of appeals; it has no original jurisdiction. We "can only try questions that have been tried and passed upon by the court from which the appeal is taken." Leverett v. State, 197 So.2d 889, 890 (Miss.1967). Alan could have filed a motion with the chancery court pursuant to Rule 60(b)(4) of the Mississippi Rules of Civil Procedure, asking the court to set aside the judgment of divorce as void.⁴ However, he filed no such motion. Had he made such a request and been denied, then we would have jurisdiction to rule on the question. However, because Alan did not seek that relief below, we may not grant it on appeal.

II. WHETHER THE CHANCERY COURT ERRED IN CHARACTERIZING THE SEVENTY-FIVE-ACRE PARCEL OF LAND AND CERTAIN FUNDS AS NON-MARITAL ASSETS.

¶ 12. In the distribution judgment, the chancellor found that while the marital home and five-acre parcel of land upon which the home was situated were marital assets, the remaining seventy-five-acre parcel was not a marital asset subject to equitable distribution. Alan challenges this finding, and claims that the land became a marital asset because of his efforts to improve the land and because of his contribution of funds in removing a lien from the...