Owen v. Owen, 2002-CA-00995-SCT.

• Citation: 928 So.2d 156
• Decision Date: 27 April 2006
• Docket Number: No. 2002-CA-00995-SCT.,2002-CA-00995-SCT.
• Parties: Margaret Lynn OWEN v. Kenneth Whiteside OWEN.
• Court: United States State Supreme Court of Mississippi

928 So.2d 156

Margaret Lynn OWEN v. Kenneth Whiteside OWEN.

No. 2002-CA-00995-SCT.

Supreme Court of Mississippi.

April 27, 2006.

COPYRIGHT MATERIAL OMITTED

Jak McGee Smith, Tupelo, attorney for appellant.

J. Mark Shelton, attorney for appellee.

Before COBB, P.J., EASLEY and DICKINSON, JJ.

EASLEY, Justice, for the Court.

PROCEDURAL HISTORY

¶ 1. Margaret Lynn Owen (Margaret) and Kenneth Whiteside Owen (Kenneth) filed a joint complaint for divorce in the Chancery Court of Union County, Mississippi, on the grounds of irreconcilable differences. The parties submitted the property settlement issues to the chancellor. The Honorable John C. Ross, Jr., Chancellor, granted the divorce on irreconcilable differences and ordered the marital assets to be sold with Kenneth receiving 60% of the proceeds and Margaret 40%.

¶ 2. In reaching his decision in Owen v. Owen, 798 So.2d 394, 397 (Miss.2001) (Owen I), the chancellor noted the parties' ages, present incomes, and that Kenneth had substantially contributed to Margaret obtaining her college degree. The chancellor also noted in Owen I that Margaret had worked only sporadically during the marriage. The chancellor stated that, after having reviewed the Ferguson factors, "as a matter of fact that Kenneth . . . [had] been the primary financial contributor to the assets of the marriage and that he should receive a greater percentage of any distribution of the marital assets." Id. (emphasis added).

¶ 3. In Owen I, the chancellor found that the couple's two homes and six vehicles were marital property and ordered them sold. Id. Kenneth received 60% of the proceeds, and Margaret received 40%. The chancellor also determined that the couple's investment account was marital property and awarded Margaret 40%. Both parties also received a specific list of personal property items which the chancellor found to be separate assets. According to Kenneth's estimates, Margaret received $38,250 in separate personal property while Kenneth received $8,510. All personal property not specifically separated was deemed marital property and was ordered to be sold with Kenneth receiving 60% of the proceeds and Margaret 40%.

¶ 4. The chancellor, however, did not specifically address the applicable Ferguson factors. Margaret appealed the decision to this Court. In an opinion written by then Justice James W. Smith, Jr., this Court found that "the chancellor erred in failing to specifically address all applicable Ferguson factors . . . ." Owen I, 798 So.2d at 396 (emphasis added). The Court reversed the chancellor's judgment and remanded the case to the chancery court to provide a record of its findings of fact and conclusions of law concerning each of the applicable Ferguson factors. Id. at 401.

¶ 5. On remand, the chancellor informed the parties that he did not intend to occupy any further court time with this case and requested the parties to submit briefs on their arguments. In Judge Ross's letter dated March 20, 2001, to the attorneys, he stated that he had received and reviewed the remand from this Court. In his letter, Judge Ross specifically stated, "I do want you to set forth in letter-brief any matter you believe needs to be considered in complying with the remand order." (Emphasis added). Judge Ross requested that the parties comply by April 15, 2001, unless the parties informed him "this time schedule is [was] inconvenient . . . ." The record in this case does not indicate that either party objected to Judge Ross's request or time schedule. According to the record furnished to this Court on appeal, neither attorney made any request for a new hearing before Judge Ross issued his new opinion.

¶ 6. The chancellor subsequently issued a supplemental opinion and judgment. The supplemental opinion contained a six-page analysis of the applicable Ferguson factors. The chancellor determined that "after a full and extensive consideration . . . [of] the factors applicable in Ferguson v. Ferguson, supra, . . . that the division of property in the opinion and judgment of this Court dated March 12, 1999, shall remain unchanged." That is, the 60/40 percentage of division and distribution of the marital property remained unchanged. On remand, the chancellor failed to address the statement the chancellor erroneously made in Owen I that Kenneth was entitled to receive a greater percentage, 60%, of any distribution of the marital assets than Margaret, 40%, based on his being the primary financial contributor.

¶ 7. At a subsequent hearing while the case was remanded, the chancellor heard Kenneth's motion for contempt filed against Margaret. The chancery court did not find Margaret in contempt of court, but the chancellor ordered a $5,000 judgment for the items that were not delivered by Margaret to the public sale to offset Margaret's 40% share of the marital property.

¶ 8. Margaret now appeals to this Court contending the chancellor did not comply with the opinion of this Court in Owen I on remand. Margaret also appeals the $5,000 judgment to offset the judgment owed by Kenneth to Margaret for her 40% of the marital property.

FACTS

¶ 9. In Owen I, we stated the following pertinent facts:

Margaret and Kenneth married in 1987. The couple initially lived in Texas where Kenneth worked and Margaret attended college. While a full-time student, Margaret performed the household chores and held several part-time jobs, using her earnings to pay for school supplies, clothing, and groceries. Margaret's tuition was paid by both Margaret's father and Kenneth.

In 1992, the couple returned to New Albany, Mississippi. Margaret initially taught school and worked at a local clothing store. Later, Margaret started her own business as an artist. Margaret gave Kenneth all income she earned, and, in return, he wrote her checks for the amount transferred to him. In essence, Margaret kept whatever she earned, and these "transfers" were made apparently for tax purposes only. Meanwhile, Kenneth began working as an engineer for Master-Built . . . . Kenneth's ESOP and 401(k) plan were valued in excess of $5,000 and $7,000, respectively, as of the date of divorce.

During the marriage, the couple purchased two homes. Margaret and Kenneth took title to the first home jointly, and both helped make extensive repairs on the home. The second home, in which Kenneth took sole title, was used as a rental house. Both parties participated in cleaning the second home and landscaping the yard, but Kenneth testified that he paid Margaret for the work she performed. All mortgage payments, taxes, and repair payments on both houses were made by Kenneth.

The couple also owned an investment account which contained a pre-divorce balance of $14,844 . . . .

At the time of divorce, Margaret earned $1,250 in net monthly income and spent $2,766 in monthly living expenses, while Kenneth earned $3,107 in net monthly income and spent $2,651 in monthly living expenses.

The couple filed for divorce in 1998. Owen I, 798 So.2d at 396-397.

DISCUSSION

¶ 10. This Court employs a limited standard of review of property division and distribution in divorce cases. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). This Court has repeatedly stated that the chancellor's division and distribution will be upheld if it is supported by substantial credible evidence. Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994); see Owen I, 798 So.2d at 397-98. The "chancery court has authority, where equity demands, to order a fair division of property accumulated through the joint contributions and efforts of the parties." Savelle v. Savelle, 650 So.2d 476, 479 (Miss.1995) (citing Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994)). "This Court will not substitute its judgment for that of the chancellor `[e]ven if this Court disagree[s] with the lower court on the finding of fact and might [arrive] at a different conclusion.'" Owen I, 798 So.2d at 397-98 (quoting Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978).)

¶ 11. In Carrow, 642 So.2d at 904, citing Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990), this Court stated that the chancellor's findings will be upheld unless those findings are clearly erroneous or an erroneous legal standard was applied. However, the Court will not hesitate to reverse if it finds the chancellor's decision is manifestly wrong, or that the court applied an erroneous legal standard. See Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997); see also Carrow, 642 So.2d at 904; Bell, 563 So.2d at 596-97.

I. Ferguson Factors

¶ 12. Marital property includes "any and all property acquired or accumulated during the marriage." Hemsley, 639 So.2d at 915. The parties' property must be classified as a marital or non-marital asset in order for the chancellor to make an equitable division and distribution of the marital estate. Lauro v. Lauro, 847 So.2d 843, 847 (Miss.2003). In Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994), this Court stated, "[t]he chancellor may divide marital assets, real and personal, as well as award periodic and/or lump sum alimony, as equity demands." "This division does not require an automatic fifty-fifty split or a vested right. . . ." Savelle, 650 So.2d at 479.

¶ 13. The Court in Ferguson established the factors that should be considered in reaching a decision on the equitable distribution of marital property. Ferguson, 639 So.2d at 928. The Court recognized the need for guidelines to aid chancellors in their adjudication of marital property division. Id. The Court directed the chancery courts to evaluate the division of marital assets by the following guidelines, where applicable, to effect an equitable division of marital property and to support their decisions with findings of fact and conclusions of law for purposes of appellate review. Id. The Court stated that chancery courts should consider the following guidelines, where applicable, regarding determination of the equitable division of marital property:

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