Trovato v. Trovato, 93-CA-00758

• Decision Date: 26 January 1995
• Docket Number: No. 93-CA-00758,93-CA-00758
• Citation: 649 So.2d 815
• Parties: Mary Frances Stennett TROVATO v. Douglas Wayne TROVATO.
• Court: Mississippi Supreme Court

Page 815

649 So.2d 815

Mary Frances Stennett TROVATO v. Douglas Wayne TROVATO.

No. 93-CA-00758.

Supreme Court of Mississippi.

Jan. 26, 1995.

Nancy J. Beck, Jackson, for appellant.

Lee B. Agnew, Jr., Kate S. Eidt, Agnew & Associates, Cynthia L. Perry, Jackson, for appellee.

Before HAWKINS, C.J., and SULLIVAN and SMITH, JJ.

SULLIVAN, Justice, for the Court:

This action for civil contempt is brought on appeal to this Court charging three (3) assignments of error, all three of which have some merit. However, because of the misuse of Rule 53 of the Mississippi Rules of Civil Procedure, which pertain to Masters, Referees and Commissioners, this Court reverses and remands this case to the docket of the Chancery Court of Hinds County, Mississippi. ¹

Mary and Doug Trovato were married in April of 1968 and divorced in January of 1984. They have two children; Teresa, who was fifteen (15) at the time of the divorce, and Tina, who was twelve (12) at the time of the divorce.

The parties entered a Property Settlement Agreement which, among other things, provided that Doug would be responsible for making child support payments in the amount of $150.00 per month per child "until each child shall attain the age of twenty-one years, marries, or otherwise leaves home, whichever comes first."

The agreement also provided that when the parties sold their home, they would divide the proceeds "in accordance with the separate agreement already entered into between the parties hereto." Mary was responsible for making the mortgage payments after the divorce.

On March 30, 1993, Mary filed a Motion For Citation for Contempt and Other Relief, claiming that Doug failed to comply with the terms of the divorce judgment and that he was in arrears in the amount of approximately $14,000.00. Mary further alleged the parties never entered into a separate agreement for the division of the proceeds from the sale of their home as contemplated by the divorce decree. She further claimed that because she made the great percentage of the mortgage payments, she was entitled to $42,226.90 of the $52,003.57 proceeds from the sale of the house. Mary also alleged Doug owed her an unspecified amount of money for failure to pay one-half of their daughters' uncovered medical and dental bills.

The lawyers, because of the crowded docket in Chancery Court in Hinds County, Mississippi, agreed that a special master could hear the case.

The special master ruled that Doug was not in arrears for the failure to pay child support because the daughters were emancipated during the relevant periods of time Mary complains of. The special master also ruled that the proceeds from the sale of their jointly owned home should be divided equally.

Mary filed an objection to the special master's report seeking the chancellor's reconsideration and modification on the grounds that the special master made errors of law. The chancellor set a date for a hearing of this matter, but on that date declined to hear it. The chancellor upheld the special master's findings and conclusions, and denied Mary's motion. On appeal Mary raises the following issues:

1. The Special Master's finding of the emancipation of Tina and Teresa is in error.

Actually on the question of emancipation of Teresa the call is a close one. The record on its face does not appear to support the finding of the special master that these girls were emancipated during the periods of time in question when Doug was failing to make payments. Other than two brief periods where Teresa attempted to live on her own, Mary provided a great deal of parental care and support for both daughters even while they were not in school and were working. The special master's finding that they were emancipated appears to be erroneous. Caldwell v. Caldwell, 579 So.2d 543, 549 (Miss.1991).

2. The court's finding concerning the division of proceeds from the sale of the house was not equitable.

Doug concedes that he never made another payment after moving out of the house after the divorce. It is uncontradicted that Mary made approximately eighty percent (80%) of the payments on the home. Doug claimed that they verbally agreed to split the proceeds equally and that this was fair because, although Mary made all the payments after the divorce, she was able to live in and enjoy the home during the time she made those payments.

Because Mary had the advantage of living in the home, she might not be necessarily entitled to a share of the proceeds proportionate to the payments she made. Doug, however, is not automatically entitled to an equal share. Brown v. Brown, 574 So.2d 688, 691 (Miss.1990). Taking into account the fact that Mary made a significantly larger contribution to the acquisition of the property, coupled with the fact that during some of the time she was making payments Doug was not making child support payments, equal distribution of the proceeds was an abuse of discretion. This case should be remanded for a more equitable distribution of property not inconsistent with that stated above.

3. The chancellor abused his discretion in failing to enter an Order of Reference appointing the Special master, in failing to exercise independent discretion before affirming the Master's report and in failing to hear Mary's objection to the Special Master's report.

This is the controlling assignment of error in this case. Rule 53 of Mississippi Rules of Civil Procedure provides, among other things, as follows:

MASTERS, REFEREES, AND COMMISSIONERS

(c) Reference: When Made. A reference to a master shall be the exception and not the rule. A reference shall be made only upon a showing that some exceptional condition requires it.

(e) Proceedings. When a reference is made, the clerk shall forthwith furnish the master with a certified copy of the order of reference, which shall constitute sufficient certification of his authority. Upon receipt thereof, unless the order of reference otherwise provides, the master shall forthwith set a time and place for the first meeting of the parties or their attorneys which is to be held in any event within ten days following the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the master to proceed with all reasonable diligence. Either party, on notice to the parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make his report. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, in his discretion, may adjourn the proceedings to a future day, giving notice of same to the absent party.

(g) Report.

(1) Contents and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall file the report with the clerk of the court and, unless otherwise directed by the order of reference, shall file with it a transcript of the proceeding and of the evidence in the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.

(2) Acceptance and Objections. The court shall accept the master's findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may reject it in whole or in any part or may receive further evidence or may recommit it with instructions.

(3) Stipulation as to Findings. The effect of a master's report is the same regardless of whether the parties have consented to the reference; however, when the parties stipulate that master's finding of fact shall be final, only questions of law arising upon the report shall thereafter be considered.

(4) Draft Report. Before filing his report a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.

When Mary filed her motion objecting to the findings of the special master the following colloquy took place between Mary's counsel and the court.

BY THE COURT: Let me ask you a question.

BY MS. BECK: Yes, sir.

BY THE COURT: I'm sorry to interrupt you. But why was this case heard by the Special Master instead of by me? Do you know?

BY MS. BECK: We just agreed to it.

BY THE COURT: Did y'all agree to it?

BY MS. BECK: Yes, sir, Your docket was pretty loaded up.

BY THE COURT: Well, that's where the problem is. In other words, you're saying that you didn't like the decision of the Special Master.

BY MS. BECK: Yes, sir.

BY THE COURT: So you want two bites at the apple.

BY MS. BECK: Well, I thought that we had a right to appeal it to you.

BY THE COURT: No, you don't, not when you agree to it.

BY MS. BECK: It's only a recommendation to you.

BY THE COURT: It is a recommendation, which I'm going to affirm his decision if y'all agreed that he could hear it in lieu of me. Because, otherwise, why have a Special Master? Whoever loses every time is going to come in and say, "I didn't like his decision. He was wrong. I want you to hear it." So that gives you two shots at it. And it doesn't work when it's by agreement.

BY MS. BECK: I thought we had that right.

BY THE COURT: Not when you agree to have him hear it in lieu of me.

BY MS. BECK: Okay. Well, I didn't know that.

BY THE COURT: Well, you do now.

BY...