Pierce v. Pierce, No. 91-CA-00809

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtPITTMAN; DAN M. LEE, P.J., dissents with separate written opinion joined by HAWKINS; McRAE; DAN M. LEE; HAWKINS; McRAE
Citation648 So.2d 523
PartiesCharles Richard PIERCE v. Shirley Jeanette PIERCE.
Decision Date13 October 1994
Docket NumberNo. 91-CA-00809

Page 523

648 So.2d 523
Charles Richard PIERCE
v.
Shirley Jeanette PIERCE.
No. 91-CA-00809.
Supreme Court of Mississippi.
Oct. 13, 1994.
Rehearing Denied Feb. 2, 1995.

Dale Robinson, Gulfport, for appellant.

G. Eric Geiss, Geiss Law Office, Gulfport, for appellee.

En Banc.

PITTMAN, Justice, for the Court:

This appeal arises from the Harrison County Chancery Court's judgment dated June 5, 1991, awarding Charles Richard Pierce ("Charles") a divorce from his wife, Shirley Jeanette Pierce ("Shirley"), on the ground of adultery, as well as granting Shirley a fifty percent (50%) interest in and to Charles' military retirement. Because the chancellor's grant of the fifty percent (50%) interest in Charles' retirement pay is supported by adequate findings of fact, we affirm.

Only that aspect of the appeal sub judice concerning the grant to Shirley of a 50% interest in Charles' military retirement has merit. Consequently, it is not necessary to review all the facts of the case. We need only familiarize ourselves with the law and those facts which should have been considered by the chancellor in determining the proper division of Charles' military retirement pay.

I. STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

Shirley and Charles were married by proxy on May 25, 1967, while Shirley was in Virginia and Charles, then serving with the United States Navy, was stationed in Scotland. During their marriage, Charles was stationed at several locations including Virginia, Scotland, Florida, Maryland, Louisiana, California, Okinawa, Gulfport, Mississippi, and Long Beach, Mississippi. Shirley accompanied Charles on some but not all of his assignments. One child was born of the marriage, a daughter, who was over the age of twenty-one (21) and emancipated at the time of the divorce.

On December 15, 1987, Shirley filed a complaint for divorce in the First Judicial District of the Harrison County Chancery Court, seeking a divorce on the grounds of habitual cruel and inhuman treatment or, alternatively,

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irreconcilable differences. In her complaint, Shirley asked for monetary support in the form of periodic alimony and lump sum alimony. Additionally, she requested fifty percent (50%) of Charles' military retirement income, asserting that she had a "vested" interest in his retirement pay of at least that amount pursuant to 10 U.S.C. Sec. 1408, the Federal Uniformed Services Former Spouses' Protection Act (FUSFSPA). Charles filed a counter complaint, seeking a divorce on the grounds of cruel and inhuman treatment, adultery, desertion, or, in the alternative, irreconcilable differences.

At trial, Shirley amended her complaint to drop the request for periodic or lump sum alimony. However, she retained her right to seek an equitable portion of Charles' retirement pay. Charles' attorney moved for a Rule 41(b) M.R.C.P. dismissal of Shirley's complaint at the conclusion of her case-in-chief. The chancellor granted the motion and dismissed Shirley's cause of action, finding that she failed to prove her grounds for divorce. Charles then presented his evidence.

After all the evidence had been presented, the chancellor granted Charles a divorce from Shirley on the ground of adultery, finding that she had engaged in an adulterous relationship. The chancellor ruled that each party was entitled to the use and possession of the personalty (i.e., household furnishings, tangible goods, etc.) which they then had in their respective possession. Neither party was awarded attorney's fees. Shirley was not awarded periodic or lump sum alimony; however, she was granted a fifty percent (50%) interest in Charles' military retirement pay, based upon a limited finding (discussed below) concerning that fund.

The chancellor denied Charles' motion for a new trial, or, in the alternative, a judgment notwithstanding the verdict.

Aggrieved by the chancellor's division of his retirement pay, Charles appealed to this Court, assigning the following as error:

1. WHETHER SHIRLEY PIERCE VOLUNTARILY AND SPECIFICALLY RELEASED CHARLES PIERCE FROM ANY CLAIM OF ALIMONY AND FROM HER CLAIM TO 50 PERCENT OF HIS MILITARY RETIREMENT UNDER 10 U.S.C. Sec. 1408.

2. WHETHER THE AWARD OF ONE-HALF (50 PERCENT) OF CHARLES PIERCE'S MILITARY PENSION TO SHIRLEY PIERCE WAS ERROR.

3. WHETHER THERE WAS PROOF OF DOMICILE SUFFICIENT FOR AN AWARD OF ONE-HALF (50 PERCENT) OF THE MILITARY PENSION TO SHIRLEY PIERCE.

II. LAW

1. WHETHER SHIRLEY PIERCE VOLUNTARILY AND SPECIFICALLY RELEASED CHARLES PIERCE FROM ANY CLAIM OF ALIMONY AND FROM HER CLAIM TO 50 PERCENT OF HIS MILITARY RETIREMENT UNDER 10 U.S.C. Sec. 1408.

Charles contends that Shirley voluntarily and specifically released him from any claim of alimony and that the grant of an interest in his military retirement pay to Shirley is an award of alimony. It is without doubt that Shirley waived her right to alimony. But, it is equally apparent that she retained her right to seek an equitable division of property, including Charles' military retirement pay. The trial transcript reflects the following colloquy between Shirley's attorney and the chancellor:

We are requesting the Court to grant Mrs. Pierce 50 percent of Mr. Pierce's retirement. We are asking the Court to grant Mrs. Pierce the use and possession of all household goods, furnishings, utensils and appliances that she had at the time of the separation and grant unto Mr. Pierce the exclusive use, possession and title to all household goods, furnishings, utensils that he had at the date of separation.

We are asking the Court to grant Mrs. Pierce the use and possession of her automobile. We are asking Mr. Pierce to be required to contribute a reasonable sum to Mrs. Pierce for attorney's fees. We are

Page 525

not and we waive our right, even if we have any--we're not asking for alimony, either lump sum or periodic anymore. The only thing we think that this Court should do in this particular case is grant Mrs. Pierce, other than what I just asked for, is half of Mr. Pierce's retirement.

(emphasis added).

As to Charles' assertion that granting Shirley an interest in his pension was an award of alimony, Charles fails to recognize the distinction between a division of property and an award of alimony. A military pension is considered personal property subject to the personal property laws of the forum state, and, in Mississippi, our laws grant chancellors the authority to effect an equitable division of property between spouses after making certain requisite factual findings. This Court has stated that, "[a] spouse's military retirement pension is an asset...." Southern v. Glenn, 568 So.2d 281, 283, n. 1. (Miss.1990). We have also said that, "a former spouse's rights vel non in his or her former mate's military retirement pension ... is subject to the personal property laws of the states...." Newman v. Newman, 558 So.2d 821, 823 (Miss.1990) (emphasis added).

In further contradiction to Charles' position, we have traditionally recognized four methods of providing support for spouses incident to a divorce, including a division of jointly accumulated property, stating that:

Our law vests in the chancery courts of this state broad authority to provide for the material needs of spouses incident to a divorce. Over the years our cases have recognized several general forms of aid including, but not limited to: (1) periodic alimony, sometimes called permanent or continuing alimony; (b) lump sum alimony or alimony in gross; (c) division of jointly accumulated property; and (d) award of equitable interest in property. There are no clear lines of demarcation between these, nor should there be, and our courts have long been authorized in their sound discretion to use one or several or all in combination.

Bowe v. Bowe, 557 So.2d 793, 794 (Miss.1990) (emphasis added).

Most recently this Court, in Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994), defined marital property for the purpose of equitable distribution:

Assets 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.

* * * * * *

We, today, recognize that marital partners can be equal contributors whether or not they both are at work in the marketplace.

We define marital property for the purpose of divorce as being any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor. We assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value.

In arriving at an equitable distribution the chancellor should follow those guidelines as set out in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994).

Hemsley, 639 So.2d at 915.

Therefore, a claim for division of property can only be viewed as separate and distinct from a claim for alimony. Shirley's waiver of the latter in no way compromised her claim for the division of the retirement fund. Accordingly, this assignment of error is without merit.

2. WHETHER THE AWARD OF ONE-HALF (50 PERCENT) OF CHARLES PIERCE'S MILITARY PENSION TO SHIRLEY PIERCE WAS ERROR.

Shirley's claim that she was "vested" with rights in Charles' military retirement pay ignores the limitations of our state laws and 10 U.S.C. Sec. 1408, the Federal Uniformed Services Former Spouses' Protection Act (FUSFSPA). Unfortunately, as illustrated

Page 526

by the passage that follows, the lower court apparently made the same mistake:

The Court is of the ... opinion that Mrs. Pierce and Mr. Pierce were married to each other and living as husband and wife for in excess of 20 years while Mr. Pierce was on active duty as a member of the United States Navy. Over this 20 year period Mr. Pierce...

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6 practice notes
  • Rodriguez v. Rodriguez, No. 2007-CA-00132-COA.
    • United States
    • Court of Appeals of Mississippi
    • January 20, 2009
    ...of property." Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss.1994). The division must only be equitable and fair. Pierce v. Pierce, 648 So.2d 523, 526 ¶ 16. Ronnie incorporated Anne's proposed division of assets into his proposed and eventually adopted findings of fact with regard to all......
  • Bresnahan v. Bresnahan, No. 2000-CA-00823-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • May 2, 2002
    ...the proper interpretation of equitable distribution and call for an equal distribution of the parties' assets. See Pierce v. Pierce, 648 So.2d 523, 526 (Miss.1994), in which we held that divorcing parties also have no right to equal distribution even where the parties jointly accumulated the...
  • Owen v. Owen, No. 2002-CA-00995-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • April 27, 2006
    ...see also Chamblee, 637 So.2d at 863-64. There exists no right to "equal" distribution of the marital property. See Pierce v. Pierce, 648 So.2d 523, 526 ¶ 18. This Court in Owen I, reversed the chancellor for his deficiency in applying the applicable Ferguson factors and ordered the chancell......
  • McLaurin v. McLaurin, No. 2002-CA-00730-COA.
    • United States
    • Court of Appeals of Mississippi
    • September 2, 2003
    ...Divorcing parties have no right to equal distribution even where the parties jointly accumulated the property. Pierce v. Pierce, 648 So.2d 523, 526 (Miss. 1994). The consent to divorce agreement controlled the issue before the chancellor. In that document, the parties asked the chancellor t......
  • Request a trial to view additional results
6 cases
  • Rodriguez v. Rodriguez, No. 2007-CA-00132-COA.
    • United States
    • Court of Appeals of Mississippi
    • January 20, 2009
    ...of property." Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss.1994). The division must only be equitable and fair. Pierce v. Pierce, 648 So.2d 523, 526 ¶ 16. Ronnie incorporated Anne's proposed division of assets into his proposed and eventually adopted findings of fact with regard to all......
  • Bresnahan v. Bresnahan, No. 2000-CA-00823-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • May 2, 2002
    ...the proper interpretation of equitable distribution and call for an equal distribution of the parties' assets. See Pierce v. Pierce, 648 So.2d 523, 526 (Miss.1994), in which we held that divorcing parties also have no right to equal distribution even where the parties jointly accumulated the...
  • Owen v. Owen, No. 2002-CA-00995-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • April 27, 2006
    ...see also Chamblee, 637 So.2d at 863-64. There exists no right to "equal" distribution of the marital property. See Pierce v. Pierce, 648 So.2d 523, 526 ¶ 18. This Court in Owen I, reversed the chancellor for his deficiency in applying the applicable Ferguson factors and ordered the chancell......
  • McLaurin v. McLaurin, No. 2002-CA-00730-COA.
    • United States
    • Court of Appeals of Mississippi
    • September 2, 2003
    ...Divorcing parties have no right to equal distribution even where the parties jointly accumulated the property. Pierce v. Pierce, 648 So.2d 523, 526 (Miss. 1994). The consent to divorce agreement controlled the issue before the chancellor. In that document, the parties asked the chancellor t......
  • Request a trial to view additional results

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