Tillman v. Tillman, 97-CA-00533-SCT

• Decision Date: 02 July 1998
• Docket Number: No. 97-CA-00533-SCT,97-CA-00533-SCT
• Citation: 716 So.2d 1090
• Parties: Shirley TILLMAN v. Wallace TILLMAN.
• Court: Mississippi Supreme Court

Page 1090

716 So.2d 1090

Shirley TILLMAN v. Wallace TILLMAN.

No. 97-CA-00533-SCT.

Supreme Court of Mississippi.

July 2, 1998.

Gary L. Roberts, Pascagoula, for Appellant.

Jack C. Pickett, Kitchens & Ellis, Pascagoula, for Appellee.

Before SULLIVAN, P.J., and JAMES L. ROBERTS, Jr. and WALLER, JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

STATEMENT OF THE CASE

¶1 This case comes before this Court on appeal from the Jackson County Chancery Court. Shirley and Wallace Tillman were granted a divorce on the ground of irreconcilable differences. The lower court was left to decide the custody of a minor child, child support, the use, possession and ownership of the marital home, the division of the parties' personal property, division of assets and liabilities, lump sum and periodic alimony, attorney's fees and court costs. Shirley Tillman appeals the portion of the lower court ruling which denied her any interest in Wallace's pension fund ¶p 2 Specifically, she raises the following issue:

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING A SPOUSE ANY INTEREST IN THE OTHER SPOUSE'S PENSION PLAN ACCRUED SOLELY DURING THE MARRIAGE.

¶3 Prior decisions by this Court clearly recognize a spouse's pension fund obtained over the course of the marriage as a marital asset. However, because the overall ruling of the lower court left Shirley Tillman with a more than adequate equitable distribution of the marital estate, the lower court did not abuse its discretion by denying her any interest in the pension fund. Therefore, the lower court decision should be affirmed.

STATEMENT OF THE FACTS

¶4 Wallace and Shirley Tillman were married on June 23, 1968, in Jackson County, Mississippi. The couple had three daughters and only one, Tracy, who was 17, was not emancipated at the time the parties separated. Wallace was 49 when the trial concluded. At the time of the trial, Wallace had been employed for 26 years, beginning in 1970, by International Paper Company. After holding various hourly-wage positions, Wallace was promoted to a salaried position in April of 1993. He later became process manager.

¶5 Wallace's financial declaration indicated a gross monthly income of $4,626.66 and an adjusted monthly income of $3,259.70. The financial declaration also indicated Wallace's monthly expenses were $4,011.14. These expenses included $950 per month to Shirley Tillman as temporary alimony and payment of her medical insurance, along with one-half of all medical expenses not covered by insurance. Also, Wallace was paying insurance in the amount of $162.50 per month on the three vehicles owned by the parties: a 1994 Buick Regal, owned by Shirley, Tracy's 1988 Pontiac Sunbird and Wallace's 1995 GMC Sonoma pickup. Wallace was also paying $200 per month on a $3,100 MasterCard bill. Wallace was paying $75 per month to Singing River Hospital because of $3,000 in medical bills incurred when he suffered a heart attack in February of 1996. He was paying $275 per month to the I.R.S. for underpayment of his 1995 federal income taxes by approximately $2,200. Wallace was paying $254.90 a month for the Sonoma pickup.

¶6 Shirley Tillman testified to being 48 years of age, a high school graduate and was enrolled part-time in community college at the time of trial. Although she was employed part-time doing catering work during the separation, Shirley had not been employed full-time since 1969. Shirley was pregnant at the time Wallace began working at International Paper and did not, by agreement of the parties, seek employment outside of the home.

¶7 Shirley went back to school after the parties separated in order to support herself. She anticipated at least two years of study to get an Associates Degree if she attended on a full-time basis. She has a 4.0 grade point average and estimates her starting salary to be $12,000 per year upon graduation.

¶8 Shirley was living alone in the four-bedroom, waterfront, marital home at the time of the trial. Her financial declaration indicated a monthly income of $1,146, which included Wallace's $950 temporary alimony. Shirley's expenses were reflected on the financial declaration as totaling $1,538 per month.

¶9 In addition to her domestic contributions to the marriage, Shirley inherited, during the marriage, approximately $100,000 and a house and parcel of real property. The house and land, which was located on Choctaw Street in Moss Point and worth $30,000 to $45,000, eventually became the family home. The money was commingled into a joint account and used for marital purposes. The money was also used to make improvements to the home on Choctaw Street, including adding two bedrooms, a formal living room, landscaping and bulkheading of the waterfront property. Wallace testified that he and Shirley's father did most of the actual work on the house.

¶10 The major marital property held by the parties at the time of the trial consisted of An unencumbered joint ownership interest of the marital home in Moss Point valued at $120,000;

1. Wallace's salaried savings plan (401k) with a total vested balance of $35,634.70;

2. Wallace's vested interest in his hourly retirement pension which would provide $866 per month in benefits beginning at age 65 or a lump sum payment of $30,919.43 at age 65. (Calculated as of December 13, 1995).

¶11 In the lower court ruling and judgment filed January 23, 1997, the chancellor held:

A. Wallace would retain paramount custody of Tracy, and the assessment of child support would be deferred.

B. Shirley was entitled to periodic alimony in the amount of $950 per month until such time as she may remarry.

C. Shirley was entitled to lump sum alimony in a sum equal to one-half of Wallace's salaried savings plan (401k), a total of approximately $18,000.

D. Shirley was entitled to the exclusive use and possession of the marital homestead valued at $120,000 and 70% of the equity interest in the home. The court granted the parties the right to partite the property or to buy or sell the interest of the other. Wallace was entitled to a 30% equity interest in the property.

E. Wallace was required to pay Shirley's health insurance and one-half of all costs not covered by the insurance.

F. Wallace was required to reinstate Shirley as a beneficiary under his life insurance policy valued at $112,000.

G. Wallace was responsible for paying the property taxes on the homestead property at a cost of approximately $800 per year.

H. Shirley was entitled to $4,000 in attorney's fees and all costs of court.

I. Each party was entitled to the use and ownership of their respective automobiles with each party being responsible for paying any remaining indebtedness thereon. In accordance with the agreement of the parties, Shirley was given the furnishings, except for Tracy's furniture and enough furniture to furnish an apartment for Wallace, and other personal property accumulated during the marriage. Wallace also received his clothes, tools, and certain mementos.

¶12 The chancellor did not award Shirley any interest in Wallace's pension plan. The chancellor stated:

As to Mrs. Tillman's claim to one-half of the retirement fund accumulated in Mr. Tillman's retirement account, the Court is of the opinion that this sum accumulated as a result of Mr. Tillman's wages only. Mrs. Tillman would have no independent or other claim to the property and her request for half of his retirement account would be DENIED.

¶13 Shirley Tillman made a post trial request for the chancellor to reconsider his ruling denying her any interest in Wallace's pension fund. This request was denied. It is from these lower court rulings that Shirley Tillman has appealed to this Court.

DISCUSSION OF THE ISSUE

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING A SPOUSE ANY INTEREST IN THE OTHER SPOUSE'S PENSION PLAN ACCRUED SOLELY DURING THE MARRIAGE.

¶14 The scope of review by this Court in domestic relations appeals is limited by the substantial evidence/manifest error rule. Magee v. Magee, 661 So.2d 1117, 1122 (Miss.1995). "(This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied" Id. (quoting Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990)).

¶15 This Court has repeatedly held that a spouse who has made a material contribution toward the acquisition of an asset titled in the name of the other may claim an equitable interest in such jointly accumulated property. Jones v. Jones, 532 So.2d ¶16 In the case sub judice, the chancellor held that Mrs. Tillman was not entitled to one-half of Mr. Tillman's retirement fund. The chancellor stated that the sum accumulated as a result of Mr. Tillman's wages only. As a result, Mrs. Tillman had no claim to the retirement fund. Clearly, this is erroneous. In Johnson v. Johnson, this Court held that a spouse's retirement plan funded solely by his employer was subject to equitable division, because the asset was marital property accumulated during the marriage. Johnson v. Johnson, 650 So.2d 1281, 1285-86 (Miss.1994).

                574, 580-81 (Miss.1988);  Hemsley v. Hemsley, 639 So.2d 909, 913 (Miss.1994);  Ferguson v. Ferguson, 639 So.2d 921, 934 (Miss.1994).  Marital partners are equal contributors to the marriage regardless of the fact that both might not be at work in the marketplace.  Hemsley, 639 So.2d at 915.   Marital property has been defined as "any and all property acquired or accumulated during the marriage."  Id. Marital property is

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