Retzer v. Retzer, No. 89-CA-0589

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtHAWKINS; ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and PITTMAN; PRATHER
PartiesMichael L. RETZER v. Nancy B. RETZER.
Docket NumberNo. 89-CA-0589
Decision Date12 December 1990

Page 580

578 So.2d 580
Michael L. RETZER
v.
Nancy B. RETZER.
No. 89-CA-0589.
Supreme Court of Mississippi.
Dec. 12, 1990.
Rehearing Denied May 3, 1991.

Lester F. Sumners, Sumners Carter Trout & McMillin, New Albany, for appellant.

H.L. Merideth, Jr., Greenville, for appellee.

Page 581

En Banc.

HAWKINS, Presiding Justice, for the Court:

Michael L. Retzer was granted a divorce from Nancy B. Retzer in the chancery court of Washington County on the ground of adultery. He has appealed the chancery court award unto his wife of a cash award of $275,000, periodic alimony in the amount of $88,000 per year and custody of their children. We reverse and render on the lump sum award, and affirm on the award of custody. We affirm the annual award of $88,000 per year, not as alimony, however, but as a fair return on Mrs. Retzer's ownership of 1,600 shares in Retzer and Retzer, Inc., a close corporation in which Mr. Retzer is the majority shareholder.

FACTS

Michael L. Retzer and Nancy B. Retzer married in Louisiana December 19, 1970. He was a captain in the Air Force who shortly thereafter left the service and went to work for Texas Instruments in Houston, Texas. Mrs. Retzer received a bachelor of science degree in elementary education from Louisiana State University in January, 1971. The couple moved to Greenville, where Mrs. Retzer taught in the public school system. She was actively occupied as a teacher for the months of March-May, September-December, 1971, and all 1972. They moved to Greenville to secure a McDonald's corporation franchise and open a restaurant there. They rented an apartment; Mr. Retzer returned to work in Houston while she taught school. Later he moved to Greenville and was a substitute teacher in addition to regular employment.

According to Mr. Retzer, McDonald's corporation required more than an investor for a local franchise. The corporation wanted to assure itself the applicant could successfully operate one of its restaurants. He was required to work free for a thousand hours in McDonald's places of business and attend several training schools.

Mr. Retzer filed a financial statement with Sunburst Bank (formerly Grenada Bank) dated July 1, 1972, in support of a requested loan. It lists $44,200 cash assets. He testified approximately $25,000 of this sum were his savings, and another $20,000 a loan from his parents. This statement shows annual salaries of Mr. and Mrs. Retzer to be, respectively, $13,200 and $7,100. The Retzers secured a $65,000 loan from the First National Bank of Greenville in January, 1973, with both signing the note.

A McDonald's franchise, called a "License Agreement," runs for a 20-year term. The agreement also provides that during the last three years of the term, McDonald's may decide whether to extend the franchise for another 20-year period. On November 22, 1972, a License Agreement was executed by the licensor corporation, and "Michael L. Retzer and Nancy B. Retzer" as licensees.

At trial there was a disagreement as to Mrs. Retzer's initial investment. According to her, all of her teacher's salary went into a joint savings account and was part of the cash assets used to invest in the business. If so, it would have amounted to somewhere between $10,000 and $14,000. Mrs. Retzer brought no cash into the marriage. Mr. Retzer, on the other hand, testified Mrs. Retzer always spent beyond their means, and none of her funds went into the business. The 1972 financial statement contains no entry showing assets in a savings account. However, the $44,200 cash assets listed could have included a savings account.

When the business opened in 1972, Mr. Retzer was the manager, with two assistant managers, and testified he worked eighteen hours a day. Mrs. Retzer helped for several weeks, but returned to her teaching. She later did advise as to the interior decoration and employees' uniforms. Also, at one time she attempted to help settle a strike. Except for what has been noted, the entire management and operation of the business was by Mr. Retzer.

The business was quite successful. A second license agreement was obtained May 8, 1974, for a restaurant in Greenwood, with both Retzers as licensees. A third license agreement was obtained October

Page 582

2, 1974, for a restaurant in Clarksdale. On April 15, 1976, Mr. Retzer obtained another license agreement in his name for a restaurant in Cleveland. On October 10, 1978, there was another license agreement for a restaurant in Indianola. In 1973 Retzer and Retzer, Inc., a Mississippi corporation, was organized, and Mr. and Mrs. Retzer were each issued 1,600 shares. All of these license agreements were assigned to this corporation, making it the owner of the five restaurants.

On April 14, 1983, Mr. Retzer obtained a license agreement in his own name for a restaurant in Yazoo City, and finally on January 21, 1985, a license agreement for a second McDonald's restaurant in Greenville. The ownership of these two licenses and restaurants remained solely in the name of Mr. Retzer. At the time of their separation, there were five restaurants owned by the corporation, two by Mr. Retzer.

A daughter, Kathryn Reed Retzer, was born to their marriage July 1, 1976. In 1975 during her pregnancy, Mrs. Retzer developed choriocarcinoma, a rare cancer associated with pregnancy, from which she fully recovered.

Mr. Retzer began operating a sole proprietorship business in his own name as "Retco" in 1979. It started as a leasing operation of two trucks. Because of tax credits and a lower unemployment rate, Retco also employed personnel for the restaurants. Mr. Retzer drew a salary from Retco, but testified no Retzer and Retzer corporate assets of any kind were diverted to him or Retco, and that it was advantageous to the corporation to operate in this manner.

On September 29, 1982, their second child, Michael Lynn, was born.

ANTE 1979 INFIDELITIES

In 1978 a remark by Mrs. Retzer that Mr. Retzer's attorney was not his friend, and his own suspicion that there might be something going on between the attorney and Mrs. Retzer, caused Mr. Retzer to change attorneys.

Mrs. Retzer also learned from her next door neighbor in 1979 that Mr. Retzer had engaged in a sexual affair with her. Mrs. Retzer confronted him and he admitted it was true, and agreed to give Mrs. Retzer a divorce, to be obtained on the ground of irreconcilable differences. Also, Mr. Retzer had made extra-marital advances to at least two other women who did not reciprocate.

In July, 1979, while their divorce was pending, Mr. Retzer caught Mrs. Retzer and his former attorney in a motel room in Jackson.

The couple returned to Greenville that night. Following soul searching discussions lasting several weeks, they agreed to resume the marriage, both, however, solemnly promising to be faithful thereafter.

LATER DEVELOPMENTS

A planned assignation between Mrs. Retzer and the attorney in an Atlanta hotel in the summer of 1981 was suspected and discovered by Mr. Retzer.

According to him, his problems with his wife were not restricted to extra-marital relations. From the beginning of their marriage, she was an exorbitant spender. Mrs. Retzer was an only child. Also, when there were serious arguments about their marital problems, Mrs. Retzer would threaten to destroy or liquidate their business.

After the Atlanta incident, each retained separate legal counsel. But again, the two decided to remain married, this time, however, with three preconditions by Mr. Retzer.

Mrs. Retzer was to stop seeing her lawyer boyfriend. Second, she was to get her spending under control. Finally, the corporation was to issue Mr. Retzer ten additional shares so as to make him a majority shareholder and give him corporate control. Mrs. Retzer's attorney (who was not the boyfriend) advised her against agreeing to the issuance of ten shares to Mr. Retzer. Despite this advice, she executed all documents prepared by Wayne Drinkwater, a Greenville attorney, necessary to issue Mr. Retzer ten corporate shares. Drinkwater neither attempted to advise nor represent either party, but simply to prepare the necessary instruments to issue the shares.

Page 583

Mr. Retzer also agreed, following this, that in the event the two were still married ten years thereafter, July 10, 1991, he would convey unto her whatever stock was necessary for each to own fifty percent of the stock. Drinkwater prepared this agreement by Mr. Retzer as well.

Mrs. Retzer's involvement with her boy friend, by their own chancery court admissions, resumed the last of 1984 or early 1985. 1 They had assignations at a selected house on Highway 82 and at Lake Ferguson in Washington County, in Louisiana, and in Arkansas. The boy friend admitted also to having seen her in Vicksburg and Memphis. Both said the affair would flare up, and then die down, but the boy friend said there was no way he could answer how many times he had seen Mrs. Retzer.

The two had code telephone signals whereby planned meetings could be held. Affectionate greeting card exchanges were made. Mr. Retzer found the boy friend's Virginia Military Institute ring in Mrs. Retzer's jewelry box.

Mr. Retzer again suspected infidelity on the part of Mrs. Retzer during this period. For one thing, his suspicion was aroused concerning her greeting cards. Mrs. Retzer kept a copious card supply in stock to have on hand to mail to various friends and acquaintances upon the appropriate occasion. Mr. Retzer noticed among this inventory cards of a clearly sexually suggestive interest by its sender. Her possession of them did not cause him any concern. The fact he was never the recipient of a single one did. He removed and photostated some and replaced them.

For whomever they were meant, however, the local boy friend at trial denied having received these particular cards.

Mr. Retzer eventually hired a private investigator, and in 1986 when he saw the boy friend at a social function, he told him...

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24 practice notes
  • Tilley v. Tilley, No. 91-CA-467
    • United States
    • United States State Supreme Court of Mississippi
    • December 10, 1992
    ...legal steps to enforce them." Miller v. Miller, 173 Miss. 44, 64, 159 So. 112, 119-120 (1935); cited with approval in Retzer v. Retzer, 578 So.2d 580, 591 Retzer traces the flow of Mississippi case law in regard to lump sum alimony from the time period when it was purely discretionary with ......
  • Crowe v. Crowe, No. 91-CA-0553
    • United States
    • United States State Supreme Court of Mississippi
    • August 4, 1994
    ...and, (4) lack of financial security in the absence of an award. See Tilley v. Tilley, 610 So.2d 348 (Miss.1992); Retzer v. Retzer, 578 So.2d 580, 592 (Miss.1990); Cheatham v. Cheatham, 537 So.2d 435, 438 In the present case, there was contradicting testimony as to the extent of Shirley's as......
  • Magee v. Magee, No. 93-CA-00512-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • September 28, 1995
    ...the latter in his property, and as to the extent of the husband's duty to contribute to her maintenance and support." Retzer v. Retzer, 578 So.2d 580, 591 (Miss.1990) quoting Miller v. Miller, 173 Miss. 44, 64, 159 So. 112, 119-20 A chancellor has the authority in a divorce proceeding to aw......
  • Powertrain, Inc. v. Ma, Civil Action No. 1:11–cv–00105–GHD.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • February 17, 2015
    ...utilizes a corporation to perform indirectly acts which the shareholder could not legally perform as an individual.” Retzer v. Retzer, 578 So.2d 580, 607 (Miss.1990) (internal quotation marks and citation omitted). In this case, Powertrain alleged that Ma should be held liable as an alter e......
  • Request a trial to view additional results
24 cases
  • Tilley v. Tilley, No. 91-CA-467
    • United States
    • United States State Supreme Court of Mississippi
    • December 10, 1992
    ...legal steps to enforce them." Miller v. Miller, 173 Miss. 44, 64, 159 So. 112, 119-120 (1935); cited with approval in Retzer v. Retzer, 578 So.2d 580, 591 Retzer traces the flow of Mississippi case law in regard to lump sum alimony from the time period when it was purely discretionary with ......
  • Crowe v. Crowe, No. 91-CA-0553
    • United States
    • United States State Supreme Court of Mississippi
    • August 4, 1994
    ...and, (4) lack of financial security in the absence of an award. See Tilley v. Tilley, 610 So.2d 348 (Miss.1992); Retzer v. Retzer, 578 So.2d 580, 592 (Miss.1990); Cheatham v. Cheatham, 537 So.2d 435, 438 In the present case, there was contradicting testimony as to the extent of Shirley's as......
  • Magee v. Magee, No. 93-CA-00512-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • September 28, 1995
    ...the latter in his property, and as to the extent of the husband's duty to contribute to her maintenance and support." Retzer v. Retzer, 578 So.2d 580, 591 (Miss.1990) quoting Miller v. Miller, 173 Miss. 44, 64, 159 So. 112, 119-20 A chancellor has the authority in a divorce proceeding to aw......
  • Powertrain, Inc. v. Ma, Civil Action No. 1:11–cv–00105–GHD.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • February 17, 2015
    ...utilizes a corporation to perform indirectly acts which the shareholder could not legally perform as an individual.” Retzer v. Retzer, 578 So.2d 580, 607 (Miss.1990) (internal quotation marks and citation omitted). In this case, Powertrain alleged that Ma should be held liable as an alter e......
  • Request a trial to view additional results

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