Parker v. Parker, No. 2006-CA-01925-COA.

• Decision Date: 15 April 2008
• Docket Number: No. 2006-CA-01925-COA.
• Parties: James PARKER, Appellant v. Nancy Carolyn PARKER, Appellee.
• Court: Mississippi Court of Appeals

980 So.2d 323

James PARKER, Appellant v. Nancy Carolyn PARKER, Appellee.

No. 2006-CA-01925-COA.

Court of Appeals of Mississippi.

April 15, 2008.

Franklin B. Liebling, Tupelo, Tammy L. Woolbright, Attorneys for Appellant.

C. Michael Malski, Luanne S. Thompson, Aberdeen, Attorneys for Appellee.

Before KING, C.J., IRVING AND CHANDLER, JJ.

IRVING, J., for the Court.

¶ 1. James Parker and Nancy Carolyn Parker agreed to and were granted an irreconcilable differences divorce. Because they could not agree on how to divide their property, they requested that the Itawamba County Chancery Court make an equitable division of their estate. Feeling aggrieved by several aspects of the court's division, James appeals and asserts that the court erred in (1) ordering a judicial sale of the parties' marital assets, (2) classifying a number of properties as marital assets, (3) ordering James to pay Nancy for the difference in the value of properties that he disposed of in contravention of a court order, (4) failing to credit James for payment of debts owed on the marital property, (5) awarding Nancy attorney's fees, and (6) failing to make adequate findings regarding an equitable distribution of the marital estate.¹

¶ 2. We affirm as to all issues except attorney's fees, which we reverse and render.

FACTS

¶ 3. James and Nancy were married on September 2, 1992. It was Nancy's third marriage and James's sixth. Although James and Nancy each had children from previous relationships, they had no children together. On December 11, 2002, Nancy filed for divorce. On the same day the court entered an emergency order forbidding the parties from disposing of marital property, including several businesses owned by James and Nancy. The parties were granted a divorce on the basis of irreconcilable differences and the court proceeded to conduct an equitable distribution of the marital estate.

¶ 4. Despite the court's order, James disposed of several pieces of marital property, including one of the jointly-owned businesses. James also leased property to a third party with an option to purchase. James did not share any of his profits from these disposals with Nancy. At trial, neither party provided the court with an accurate and up-to-date appraisal of the majority of the marital estate. At a hearing on May 12, 2005, the court informed the parties that if they could not come to an agreement before June 15, 2005, the court would conduct a judicial sale of all of the marital property due to the insufficient evaluations before the court. The court also gave the parties time to file additional information with the court. Despite the allowance, the parties did not come to an agreement as to the value of the marital estate, nor did either party attempt to present the court with an up-to-date evaluation. James filed an interlocutory appeal requesting a termination of the judicial sale, but the Mississippi Supreme Court denied the request.

¶ 5. Consequently, all of the marital estate-including the businesses-was sold at judicial sale. The sale netted $296,512.66, of which James received $35,681.33 and Nancy received $260,831.33. The chancellor made this division by splitting the marital proceeds equally and then reducing James's award because of his disposal of marital property. Nancy's share of the award increased proportionally. The chancellor also awarded Nancy ten thousand dollars in attorney's fees, which was paid to her from James's proceeds.

¶ 6. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Propriety of Judicial Sale

¶ 7. James claims that the chancellor erred in ordering a judicial sale of the marital property. James admits that his argument is moot, as the property has already been sold and cannot be unsold. However, he urges us to consider this issue due to the impact that it may have on future cases. We recognize the importance of this issue and the impact it may have in the future, regardless of the fact that it is now moot for these parties. Accordingly, we address the merits of James's complaint.

¶ 8. After a diligent search, we have found no Mississippi case law pertinent to the question before us: whether a court may order a judicial sale of the marital estate after being given inadequate evaluations by the parties. For guidance, we turn to the law regarding partition of property. The Mississippi Supreme Court has stated that partition in kind is the preferred method of partitioning jointly-owned property. Fuller v. Chimento, 824 So.2d 599, 601(¶ 8) (Miss.2002). Furthermore, a partition sale is appropriate only where (1) doing so is better for the parties involved than a partition in kind, or (2) the property is incapable of being equally divided. Id. at 601-02(¶ 9). Notably, "a court has no right to divest a cotenant landowner of title to his property by sale over his protest unless these conditions are fully met." Id. at 602(¶ 9) (citing Shorter v. Lesser, 98 Miss. 706, 711-12, 54 So. 155, 156 (1911)).

¶ 9. Nothing in the record indicates that a partition sale was in the parties' best interest or that the property at issue was incapable of being equitably divided in kind. In fact, the chancellor did not address either of the above when ordering a judicial sale of the property; rather, he focused exclusively on the fact that the parties had provided inadequate evaluations of the marital estate. We note that a chancellor has the power to order an evaluation of the marital estate. Although moot in the case before us, as the property has been sold, we urge chancellors in the future to order an evaluation rather than resorting to a judicial sale of marital property.

2. Classification as Marital Property

¶ 10. "Marital" property is "any and all property acquired or accumulated during the marriage." Stewart v. Stewart, 864 So.2d 934, 937(¶ 12) (Miss.2003) (quoting Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994)). "Separate property that has been `commingled with the joint marital estate' also becomes marital property subject to equitable distribution." Id. (quoting Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994)). We will reverse a chancellor's characterization of property only when his findings are clearly erroneous. Id. at 938(¶ 13). We assume "that the contributions and efforts of the marital partners, whether economic, domestic, or otherwise are of equal value." Johnson v. Johnson, 823 So.2d 1156, 1161(¶ 11) (Miss. 2002) (quoting Hemsley, 639 So.2d at 915).

a. Three Acres Given by the Digbys

¶ 11. On August 3, 1993, Charles and Eunell Digby deeded three acres contiguous to the Parkers' eighty-five acre marital estate to James. The land was apparently given in return for James's clearing of some land owned by the Digbys. James contends that "the above property was a gift to him during the marriage, and as such was not subject to equitable distribution...."

¶ 12. There is no evidence in the record to suggest that the property in question was not commingled with the marital estate. In fact, it is clear that the tract adjoined acreage that was part of the marital property. There is no evidence that Nancy was not allowed full use and access to this part of the marital estate. Therefore, we cannot find that the court was clearly erroneous in finding that the three acres were part of the marital estate.

b. James's One-Half Interest in the Marital Estate

¶ 13. Prior to his marriage to Nancy, James owned a one-half interest in the approximately eighty-five acres upon which the marital abode is situated. James's ex-wife, Donna Parker, and James's brother-in-law, Robert Hood, owned the other one-half interest in the property. Hood quitclaimed his interest to James. On July 8, 1994, James and Nancy paid Donna $12,600 for her interest in the property. Nancy testified that the loan taken out to pay Donna was paid from a personal account that was jointly shared by Nancy and James during their marriage. Nancy further testified that the money from the joint account came from their separate paychecks. Therefore, it is clear that the one-half interest purchased from Donna was marital property, as it was commingled and shared by Nancy and James.

¶ 14. James, however, argues that his one-half interest that he owned prior to the marriage should have been considered separate property. He concedes that the marital home and the 10.4 acres surrounding the home became marital property; nevertheless, he contends that his one-half interest in the seventy-five or so remaining acres should have been considered as non-marital property. Our review of the record supports the chancellor's determination. It is clear that at least one-half of the property that James complains of was clearly commingled, as Nancy helped pay off the loan that was used to purchase the property. There is no indication that the remaining one-half was somehow kept separate. Notably, Nancy testified that James still owed money on his interest at the time of their marriage and that she helped him "finish paying it...." In the absence of any evidence showing that the one-half interest that James brought into the marriage remained separate, the chancellor's findings are not clearly erroneous.

¶ 15. As support, James cites Hemsley for the proposition that absent evidence of commingling, the one-half interest that he brought into the marriage should have remained his separate estate. Hemsley provides that "[a]ssets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties' separate estates prior to the marriage or outside the marriage." Hemsley, 639 So.2d at 914 (emphasis added). Although the interest was acquired prior to the marriage, Nancy testified that she helped James to pay off the balance owed on the one-half interest that he brought into the...