Powers v. Powers

• Decision Date: 30 May 1990
• Docket Number: No. 07-CA-59135,07-CA-59135
• Citation: 568 So.2d 255
• Parties: Keith Parker POWERS v. Margaret Jean Eager POWERS.
• Court: Mississippi Supreme Court

Page 255

568 So.2d 255

Keith Parker POWERS v. Margaret Jean Eager POWERS.

No. 07-CA-59135.

Supreme Court of Mississippi.

May 30, 1990.

Rehearing Denied Oct. 17, 1990.

James P. Cothren, Cothren & Pittman, Jackson, for appellant.

William D. Boerner, Boerner & Breeland, Brookhaven, for appellee.

Before ROY NOBLE LEE, C.J., and PITTMAN and BLASS, JJ.

ROY NOBLE LEE, Chief Justice, for the Court:

Margaret Jean Eager Powers was granted a divorce from Keith Parker Powers on November 2, 1987, in the Chancery Court of Copiah County. The Court also granted her custody of Robert Powers, fourteen year old child of the parties, who was in the ninth grade, and ordered Mr. Powers to pay $700.00 per month child support and $750.00 per month alimony. Mrs. Powers was allowed attorney's fees in the sum of $2,000.00. The lower court refused to declare Mr. Powers to be 100% equitable owner of a 112 acre tract of property, which the parties jointly owned. He has appealed from the judgment and assigns three errors in the trial below.

FACTS

The parties are graduates of the University of Southern Mississippi, appellee with a Bachelor of Science Degree in Education and appellant with a Bachelor's Degree in Accounting. They were married August 31, 1969, and Robert (Robbie) Powers is the only child born of the marriage.

In 1977, the parties began having domestic difficulties and appellant moved out of the home for approximately four or five months. They reconciled and in 1978 appellant's Aunt Grace, who looked upon appellant practically as her son, deeded him 112 acres of land as a gift. The parties decided to build a home on the land and obtained financing from the Federal Land Bank for that purpose. The bank required the title to be jointly held in order for the loan to qualify, and, accordingly, appellant conveyed the land to appellee and appellant as an estate by the entirety with rights of survivorship and not as tenants in common.

The parties separated on May 25, 1987. Appellant called appellee on June 2, 1987, and informed her that he was having an adulterous affair with a certain woman in Crystal Springs and requested that she file for a divorce against him on the ground of irreconcilable differences. On June 17, 1987, appellant filed a complaint in the Chancery Court of Copiah County for divorce on that ground and amended the complaint on July 24, 1987, charging habitual cruelty and inhuman treatment and adultery or, in the alternative, irreconcilable differences. The case was tried on October 20 and 21, 1987. Appellant was called to the stand as an adverse witness. He admitted acts of adultery. The Chancellor held that appellee was entitled to a divorce on that ground and the divorce was granted.

LAW

I.

DID THE LOWER COURT ABUSE ITS DISCRETION AND COMMIT ERROR IN AWARDING AN EXCESSIVE AMOUNT OF MONTHLY ALIMONY AND CHILD SUPPORT?

II.

DID THE LOWER COURT ABUSE ITS DISCRETION AND COMMIT ERROR IN ORDERING APPELLANT TO PAY $2,000 ATTORNEY'S FEES FOR APPELLEE?

At the conclusion of the trial, the Chancellor issued his bench opinion and made the following findings:

1) Mr. Powers had committed adultery and Mrs. Powers was entitled to a divorce on the ground of adultery.

2) The 112 acre tract of land was jointly owned by the parties and the debts owed on the property were joint debts.

3) Mrs. Powers was entitled to custody of the parties' minor child, Robert, and was entitled to child support in the amount of $750.00 a month and alimony of $750.00 a month ¹. The chancellor stated:

I think he's making between $2700.00 and $2800.00 a month. He's made between $2500.00 and $3,000.00 a month, and when I give you $1500.00 a month, I'm giving you about half of what Mr. Powers says he's making. Mr. Powers is capable of earning $50,000 a year, easily, as a Certified Public Accountant. He's a man of great ability. He's established a fine practice, and he is just now going to have to devote his attention and time to managing his business and producing and taking care of these items that I'm finding that he needs to take care of.

4) Mrs. Powers was awarded sole possession of the house until Robert graduated from high school or until she remarries, whichever is earlier. She was also entitled to full use and possession of the '85 Buick.

5) The appellant was to continue in force the $100,000 and $150,000 insurance policies and make Robbie the beneficiary. Margaret was to make the payments on the house and car.

6) The chancellor denied the appellee's request for an equitable 1/3 interest in the appellant's business, real property, and an interest in the appellant's part of Crystal Investments.

7) On the subject of attorney's fees the chancellor stated:

All right, now, attorney's fees. I find that Mrs. Powers is not able to pay her attorney's fees, and the bill which Mr. Boerner has submitted here should be allowed to the extent of $2,000. She's paid $500.00, which has got to be repaid, and so Mr. Boerner will be paid the sum of $2,000.00 for his attorney's fee. The costs of court will be taxed against Mr. Powers.

8) The chancellor imposed a lien on the appellant's undivided joint interest in the 112 acres and the home to secure payment of the child support, alimony and attorney's fees.

9) The parties mutually agreed on a division of personal property accumulated during the marriage.

On November 2, 1987, the lower court entered its final judgment of divorce. However, on November 5, 1987, the appellant petitioned the court to re-designate part of the alimony award to be child support and the court granted the petition and reallocated child support $950.00 and alimony to $500.00.

The principle is elementary that an award of alimony and child support is a matter within the discretion of the Chancellor and that this appellate court will not reverse unless the Chancellor was manifestly in error in his finding of fact and manifestly abused his discretion. Carpenter v. Carpenter, 519 So.2d 891, 894-895 (Miss.1988); Massey v. Massey, 475 So.2d 802 (Miss.1985); Hopton v. Hopton, 342 So.2d 1298, 1300 (Miss.1977).

Appellee teaches school at Copiah Academy with a net take home pay of $832.18 per month. From the record, it appears that the appellee has no separate estate except for her undivided one-half interest in the parties home and undivided one-half interest in the 112 acres of land. The appellee provided the trial court with a detailed summary of monthly living expenses for herself and the parties' son by using a check spread. From this spread, the appellee determined that the monthly living expenses for herself and the parties son was $2,625.93.

The appellant is a certified public accountant and he, along with a partner, operate an accounting firm known as Powers-Berry & Company in Crystal Springs. As of the date of trial, the appellant and Mr. Berry were the only CPA's in Copiah County and their accounting practice had been growing steadily year by year. The firm had consistently grossed more money each year since 1984, and in 1987 they had their best year yet. The appellant was receiving from Mr. Berry a yearly amount of $3,312.00 which represented a buy-in payment toward a purchase of an interest in the partnership. There was a total of 8 payments and Mr. Berry had six payments remaining. The appellant testified that he paid himself a monthly draw of approximately $2,500.00 per month.

The appellant's investments included a one-fifth interest in Crystal Investment, Inc. which owned two rental properties with a market value of about $14,000.00-15,000.00 each and a total mortgage balance of between $12,000 and $13,000. The appellant had invested $16,400.00 in an oil share which in the two years prior to trial had produced no income. He also owned Mississippi Federal Co-op stock from which he received an annual dividend of $92.00. At the time of the divorce, the appellant was the sole titleholder to an eight (8) acre tract of land on which sat a house in which the appellant's Aunt had lived before her death, and which the appellant valued to be worth $18,000.00 "on the high side".

The appellant initially owned the building from which he operated his accounting practice. However, he apparently sold Mr. Berry and Mr. Lawrence, an attorney, an interest in the building. He stated that the building was probably worth about $100,000.00 but he had built up no equity. The appellant estimated his monthly expenses to total $1,841.00.

At trial, the appellee set about trying to establish the appellant's income, first by establishing his monthly draw. Then, by an analysis of the appellant's bank statements, she attempted to show that there were substantially more deposits into the appellant's bank accounts than the appellant alleged he withdrew from the partnership each month. Financial data and charts drawn up by the appellant, submitted to the appellee in discovery, and introduced as exhibits at trial, revealed that for the year 1987, with only two months left in the year, the appellant anticipated gross receipts from Power-Berry Co. to be $158,602.00. Based on the approximately $2,500 monthly draws he had made prior to the date of the trial, the appellant anticipated paying himself approximately $30,000.00 and his share of the net profit from the partnership would be $25,376.00. When these figures are added to Mr. Berry's annual buy-in payment, the appellant had a total personal net taxable income of $58,688.00 in 1987. When $58,688.00 is spread over twelve months, this leaves the appellant approximately $4,890.00 available income before taxes per month.

Despite an admittedly robust growth in the appellant's CPA practice, as evidenced by his firm's increasing gross fees, increased draws, and higher net profits, the appellant maintained at trial and here on appeal, among other things, that his firm had to borrow money at the end of the year to make ends meet and had a $11,000.00 note that they had not been able to pay. This conclusion...