Sarver v. Sarver, 93-CA-01086-SCT

• Decision Date: 30 January 1997
• Docket Number: No. 93-CA-01086-SCT,93-CA-01086-SCT
• Citation: 687 So.2d 749
• Parties: Marie J. SARVER v. Roy C. SARVER.
• Court: Mississippi Supreme Court

Page 749

687 So.2d 749

Marie J. SARVER v. Roy C. SARVER.

No. 93-CA-01086-SCT.

Supreme Court of Mississippi.

Jan. 30, 1997.

Gene Barton, Pontotoc, for Appellant.

Stephanie J. Lawrence, Tupelo, for Appellee.

Before DAN LEE, C.J., and PITTMAN and SMITH, JJ.

DAN LEE, Chief Justice, for the Court:

SUMMARY

This is an appeal from a divorce case heard in the Chancery Court of Pontotoc County, Mississippi. The parties in this case stipulated to a divorce on the grounds of irreconcilable differences. At the time of separation, their residence and legal homestead was deeded to Roy C. Sarver and Marie J. Sarver as tenants by the entirety with the right of survivorship and not as tenants in common. The lower court divested the title of Marie J. Sarver, and found that the property was worth approximately $80,000. Marie was awarded an equitable lien against the property in the amount of $16,000 payable in four annual installments in the amount of $4,000 each. Furthermore, the chancellor did not award any attorney's fees to Marie.

On appeal, Marie raises the following assignments of error:

1. THE CHANCERY COURT ERRED IN NOT AWARDING MARIE A ONE-HALF INTEREST IN THE PARTIES' HOME WHERE THE PROPERTY WAS DEEDED AND TITLED TO BOTH AS JOINT TENANTS IN THE ENTIRETY, AND

2. THE CHANCERY COURT ERRED IN NOT AWARDING MARIE ATTORNEY'S FEES.

On cross-appeal, Roy raises the following issues:

1. THE CHANCERY COURT ERRED IN AWARDING MARIE AN EQUITABLE LIEN AND ERRED IN FAILING TO COMPLETELY DIVEST HER OF ALL HER INTEREST IN THE PROPERTY OR AWARD RAY AN EQUITABLE LIEN AGAINST ALL OF HER INTEREST IN THE PROPERTY, AND

2. THE CHANCERY COURT ERRED IN AWARDING MARIE LUMP SUM ALIMONY.

STATEMENT OF THE CASE

Roy Sarver filed a complaint for divorce on or about May 18, 1992, which was amended on June 22, 1992. Marie J. Sarver filed her answer and cross-complaint for divorce on September 3, 1992. The parties agreed to a divorce on the grounds of irreconcilable differences and entered into an agreement wherein the court could decide all issues concerning property distribution and attorney's fees. On July 14, 1993, the matter was heard in the Chancery Court of Pontotoc County, and the parties were granted a divorce. The court divested Marie of title to the real estate and denied her attorney's fees. The court awarded Marie an equitable lien against the property in the amount of $16,000 and further awarded her $2,500 in lump sum alimony.

Marie is appealing the court's decision, contending the court erred in not awarding her a one-half interest in the property and failing to award attorney's fees. The appellee/cross-appellant, Roy, is appealing the court's decision, contending the court erred by awarding Marie a $16,000 equitable lien against real estate and by awarding her lump-sum alimony.

STATEMENT OF THE FACTS

In 1980, Roy Sarver, sixty-five years of age at the time, retired from teaching school in California. Following his retirement he met Marie, a licensed real estate broker, who owned and operated her own real estate business. Shortly after they met, she borrowed $6,000 from Roy to use in her real estate business.

That same year Roy married Marie, who was then fifty-two years of age. Unknown to Roy, at the time of their marriage, Marie was experiencing financial difficulties with her business. Marie again borrowed money from Roy in the amount of $387 for a telephone bill attributable to her business.

Within the first five and a half months of the marriage, Marie closed her business and filed for bankruptcy protection. Subsequently, they traveled throughout the country for approximately eighteen months and eventually settled in Mississippi. Roy entered into a real estate contract on May 13, 1982, to purchase 78 acres of land in Pontotoc County for $31,600. It was agreed that, due to her expertise in real estate transactions, Marie would handle the paperwork of the purchase transaction. Roy was allegedly not aware that Marie had placed her name on the contract until their separation. The $10,000 down payment for the 78 acres came from a $25,000 down payment he received from the sale of the California home which he owned individually prior to the marriage. For a year and a half the monthly payments of $208.46 on this contract were made by Roy from the remaining funds acquired from the down payment he received on the sale of his California home. On or before February, 1984, Roy paid the balance of $21,015.33 from the final $75,000 pay-off that he received from the sale of his California home. During the court proceedings, Marie admitted that she did not contribute financially to the purchase of the real estate and improvements.

As this was Roy's third marriage and all the funds used to purchase the property were his, and all were accumulated prior to this marriage, it was his desire to leave the real estate to his three children from previous marriages, with the "understanding" that Marie could live on it for her lifetime if she remained married to him. This was allegedly discussed with Marie and, according to Roy and his daughter, Sharon Sarver, Marie was in agreement. The original deed to the subject property was in Roy's name alone.

After the purchase of the property, Roy developed serious heart problems. Marie allegedly convinced him that, if he were to die without putting the property in their names jointly, the property would be tied up in probate for years until there was very little left for his children. Marie promised that she would see to it that his children got the property. Roy trusted her advice, due to her expertise in the field of real estate, and agreed to the conveyance.

Shortly after the conveyance Marie started having problems with the Internal Revenue Service because she had not paid a federal tax debt due from her previous marriage. Roy and Marie conveyed the property back into Roy's name alone, to avoid the IRS attaching Marie's property.

Ultimately, the IRS did collect Marie's previous tax debt of $1,858.97 by attaching and taking it from Roy's savings. Thereafter, the property was reconveyed into both names, again, to keep the property out of probate should he die from his ongoing heart and prostate cancer problems.

Although Roy spent $85,000 on the property and materials for the residence, it was only valued at $80,000. Roy contends that he personally did eighty to ninety percent of the construction of the home with the knowledge gained through his past business as a residential contractor. No records were kept as to the amount of time that each party actually spent on the construction site and on the project. With the exception of some concrete work that was subcontracted by Roy, all of the labor on the house was done by Roy, Marie and a neighbor who assisted. Roy contends that Marie did about three percent of the work on the construction. The testimony reveals that, in payment for work done on the house by Roy's neighbor, Roy furnished him with beer and would bushhog the neighbor's land for him. Marie contends that she was involved in many phases of the construction of the house, which lasted over five years.

Roy's net worth at the time of the marriage was in excess of $285,356, which included a teacher's retirement account worth more than $182,149 (which was depleted during the course of the marriage) and a home in Sacramento, California, from which Roy realized an equity of more than $100,000 upon its sale.

Roy's net worth at the time of his divorce from Marie was much less than at the time of the marriage. He has a home valued at $80,000. Other than the marital residence, Roy has no assets except those listed as having no value or very little value, which include a 1972 Ford pick-up truck, a 1974 Volkswagen which is barely operational, and a 1973 recreational vehicle, all of which he owned individually prior to the marriage. He has a 1974 Massey-Fergusen tractor, which has a value of approximately $1,000, and a 1983 Ford car of very little value. At the time of the hearing, the recreational vehicle was being used as collateral on a $4,500 loan.

At the time of the marriage Marie did not own a vehicle, she had no income, and after the close of her real estate business she failed to seek other employment. During the course of the marriage the living expenses were paid by monies Roy had set aside prior to this marriage from retirement funds earned prior to this marriage. Neither party was employed during the marriage. Roy cooked his own breakfast and Marie cooked their dinner. Marie had the benefit of living off Roy's retirement and investments. Neither party earned any income during the marriage. The only household furnishings purchased during the marriage were a dinette set, two recliner chairs, a couch for the basement, end tables, lamps, three TV sets, a VCR and appliances.

In May of 1992, Marie left the marriage and moved back to California of her own volition, taking with her only what she and her daughter could carry in a rented car.

At the time of the hearing, Marie was sixty-five and in relatively good health. The hearing testimony revealed that Marie had no serious medical problems that would keep her from obtaining gainful employment. She was capable and qualified to re-enter the field of real estate. At the time of the hearing, she was receiving monthly Social Security payments of approximately $101 per month, from Roy's premarital earned income.

At the time of the hearing Roy was a retired seventy-three-year-old heart patient with prostate cancer. He was not capable of gainful employment. He had no income other than Social Security and his teacher's retirement, which was earned prior to this marriage and at the time of the hearing amounted to $1,153 a month. His monthly expenses amounted to $1,458, an amount which exceeded his retirement and Social Security income by $305 per month. Roy had no funds with which he could have paid any alimony. Roy received financial...