Thornton v. Thornton, 2016-CA-01773-COA
| Decision Date | 14 August 2018 |
| Docket Number | NO. 2016-CA-01773-COA,2016-CA-01773-COA |
| Citation | 270 So.3d 186 |
| Parties | Brenda Harness THORNTON, Appellant v. Timothy Terrell THORNTON Sr., Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: AMELIA SHA'METTA CARTER
ATTORNEY FOR APPELLEE: EDWIN L. BEAN JR., McComb
BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
CARLTON, J., FOR THE COURT:
¶ 1. On August 26, 2016, Tim and Brenda Thornton obtained a divorce in the Pike County Chancery Court. The chancellor entered an order distributing the marital property and awarding alimony to Brenda. Brenda appeals the chancellor's judgment and raises seven assignments of error: (1) whether the chancellor analyzed the factors set forth in Ferguson v. Ferguson , 639 So.2d 921, 928 (Miss. 1994), when he distributed the marital property; (2) whether the chancellor erred in his distribution of Tim's Sanderson Farms retirement account; (3) whether the chancellor erred in not awarding Brenda lump sum alimony; (4) whether Brenda should be charged with paying the outstanding loan on a 2009 Dodge Ram; (5) whether the chancellor should have classified and equitably divided the $90,000 insurance policy; (6) whether the chancellor erred in crediting Tim with $1,600 in child support payments; and (7) whether the nature of the entire award by the chancellor can be considered equitable. Finding error, we reverse and remand the chancellor's judgment.
¶ 2. Tim and Brenda Thornton were married on February 26, 2000. They separated on June 9, 2014. Their union resulted in two children. Tim works as a supervisor at Sanderson Farms, and did so at the time of the chancellor's decision. Brenda is disabled and unemployed.
¶ 3. Brenda filed a motion for divorce on August 19, 2015, on the grounds of adultery or, in the alternative, habitual cruel and inhuman treatment, desertion, or irreconcilable differences. The trial court entered a temporary order on November 2, 2015, ordering Tim to pay child support in the amount of seven hundred dollars.
¶ 4. The matter was heard on August 3, 2016. While in chancery court, Tim's attorney disclosed to the court that Tim had committed adultery and was willing to admit those allegations to the court. A judgment was entered by the chancellor on August 26, 2016, granting Brenda a divorce on the ground of adultery. The chancellor also determined that Tim failed to pay the previously ordered child support on time and found him in contempt. Furthermore, the record reflects that the chancellor altered the child support payments to six hundred and seventy-eight dollars per month until the children reach the age of twenty-one or are emancipated.
¶ 5. The record reflects a lack of appraisal of the marital property by either party. During the hearing on August 3, 2016, Tim agreed to Brenda's estimation of value for the marital home at $112,000.1 The tax appraisal proposed by the new attorney of record for Brenda set the home's value at $56,699. The chancellor determined the value of the marital home to be $84,349.50, leaving the equity value of the home at $32,633.80.
¶ 6. The record indicates the chancellor listed and considered the marital property – both real and personal – in his determination of an equitable distribution. The chancellor ordered that $7,123.90 be transferred from Tim's retirement account to Brenda. Concerning the vehicles purchased during the marriage, the chancellor found that a 2000 Dodge Durango and a 2015 Chrysler 2000 would be the sole property of Tim, while Brenda would retain the 2009 Dodge Ram for her own personal property.
¶ 7. Concerning the parties' personal property, the chancellor divided it as follows:
(I) Timothy Thornton Sr
A. Samsung Refrigerator $ 1,000.00
B. Bedroom/Living Room Set (purchased post-separation) $ 1,200.00
C. Collectibles $ 6,500.00
D. Airbrush Equipment $ 1,500.00
E. Vizio Home System $ 400.00
F. Craftsman Cutter and Weed Eater $ 450.00
G. DVD Collection $ 2,000.00
H. Car Stereo and Amp $ 1,000.00
I. 2000 Dodge Durango $ 950.00
TOTAL $15,000.00
(II) Brenda Harness Thornton
A. Whirlpool Stove $ 200.00
B. 55" Samsung TV $ 400.00
C. Stainless Steel Refrigerator $ 300.00
D. 5 Bedroom Sets $ 3,000.00
E. Home Entertainment $ 400.00
F. Living Room Suite $ 1,500.00
G. 4 TVs $ 1,200.00
H. 2009 Dodge Truck (net value) $14,800.00
TOTAL $21,800.00
¶ 8. While the record does reflect the chancellor's intention in distributing the marital property, the chancellor does not mention the factors set forth in Ferguson , 639 So.2d at 928. Furthermore, the record is silent on the chancellor's reasoning behind the distribution except for one line of the judgment entered on August 26, 2016:
¶ 9. Regardless of the omission of the Ferguson factors, the chancellor specifically outlined the Hemsley factors in the question of alimony. Hemsley v. Hemsley , 639 So.2d 909, 913 (Miss. 1994). The record reflects a thorough analysis of the factors under Hemsley , supporting the chancellor's decision to find that Brenda was entitled to permanent alimony in the amount of $200 per month.
¶ 10. On September 6, 2016, Brenda filed a timely motion to reconsider the judgment or to alter or amend the judgment pursuant to Mississippi Rules of Civil Procedure 52(b) and 59(e), respectively.2 On October 31, 2016, Brenda filed a Rule 60(b) motion to set aside the judgment, claiming that Tim committed fraud on the court.
¶ 11. On November 10, 2016, the chancellor held a hearing on Brenda's motion to reconsider or to alter or amend the judgment. During the hearing, the chancellor declined to address Brenda's Rule 60(b) motion at that time, explaining that "you have to have a final judgment in place before you can set it aside."3
¶ 12. After the hearing, the chancellor entered an order on November 21, 2016, amending the final judgment in part. The chancellor deemed the child-support award to be inaccurate and amended the amount of child support to $737 per month.4 After noticing his error in not setting forth a start date for child-support payments, the chancellor ordered that the child-support payments be made on the first day of each month. The chancellor also increased the award of permanent alimony to $250 per month. Regarding Brenda's Rule 60(b) motion, the chancellor opined that it was not ripe for hearing in his opinion and therefore postponed ruling on the motion.
¶ 13. Regarding the issues not specifically addressed in his order, the chancellor held that "all remaining terms and provisions of the [j]udgment dated August 26, 2016 will remain in full force and effect."
¶ 14. On December 1, 2016, Brenda filed a petition asking that the chancellor find Tim in contempt of court. Brenda claimed that Tim failed to provide her with the transportation she was ordered to receive in the temporary order and failed to pay her attorney's fees in the sum of $4,000. Furthermore, Brenda claimed that Tim failed to pay any child support or alimony for the months of September, October, November, or December of 2016, leaving him in arrears in the amount of $2,948 for child support and $1,000 for alimony.
¶ 15. On December 19, 2016, Brenda filed a timely notice appealing the chancellor's August 26, 2016 final judgment and the November 21, 2016 order partially amending the judgment.5
¶ 16. On April 7, 2017, several months after Brenda filed her notice of appeal in this matter, the chancellor entered an order determining that Tim was not in contempt and declining to rule on Brenda's Rule 60(b) motion.
¶ 17. The Mississippi Supreme Court has long held that a chancellor's findings of fact will not be disturbed unless they are manifestly wrong or clearly erroneous. Sanderson v. Sanderson , 824 So.2d 623, 625 (¶ 8) (Miss. 2002). Specifically in cases concerning alimony, the chancellor's decision "will not be disturbed on appeal unless it is found to be against the overwhelming weight of the evidence or manifestly in error." Tilley v. Tilley , 610 So.2d 348, 351 (Miss. 1992). Likewise, when the equitable division of the marital estate is at issue, the Court has determined that "the chancellor's ruling on the division and distribution will be upheld if it is supported by substantial creditable evidence." Mabus v. Mabus , 890 So.2d 806, 824 (¶ 72) (Miss. 2003).
¶ 18. As stated, Brenda presents seven issues on appeal: (1) whether the chancellor analyzed the factors set forth in Ferguson when he distributed the marital property; (2) whether the chancellor erred in his distribution of Tim's Sanderson Farms retirement account; (3) whether the chancellor erred in not awarding Brenda lump sum alimony; (4) whether Brenda should be charged with paying the outstanding loan on the 2009 Dodge Ram; (5) whether the chancellor should have classified and equitably divided the $90,000 insurance policy; (6) whether the chancellor erred in crediting Tim with $1,600 in child-support payments; (7) whether the nature of the entire award by the chancellor can be considered equitable.
¶ 19. In her appellate brief, Brenda refers to issues set forth in an order entered by the...
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