Wells v. Wells, 2000-CA-00319-COA.

• Decision Date: 27 November 2001
• Docket Number: No. 2000-CA-00319-COA.,2000-CA-00319-COA.
• Parties: Randy WELLS, Appellant, v. O. Renee WELLS, Appellee.
• Court: Mississippi Court of Appeals

800 So.2d 1239

Randy WELLS, Appellant, v. O. Renee WELLS, Appellee.

No. 2000-CA-00319-COA.

Court of Appeals of Mississippi.

November 27, 2001.

Michael V. Ratliff, Hattiesburg, Attorney for Appellant.

John Gordon Roach Jr., Jackson, Attorney for Appellee.

Before KING, P.J., THOMAS, and LEE, JJ.

LEE, J., for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. This appeal stems from a judgment of divorce and the chancellor's decision regarding details of the divorce. Randy and Renee Wells were granted a divorce based on irreconcilable differences by virtue of a February 11, 2000 order of the Pike County Chancery Court. Prior to the final judgment, Randy and Renee reached an agreement concerning custody and visitation issues relating to their minor daughter, the disposition of an automobile, rights to Randy's retirement account and ownership of certain real and personal property. The chancellor was left to decide the issues of child support, responsibilities for insurance payments, ownership of the marital home, alimony and attorney's fees, and various other issues.

¶ 2. In the judgment of divorce, Randy was ordered to pay $563 per month in child support, to maintain medical and dental insurance on behalf of the minor child plus cover expenses not covered by insurance, to provide Renee with a medical card, and to maintain a life insurance policy on himself with the child designated the beneficiary. Renee was awarded the marital home in McComb, Mississippi, as well as possession of the family van, with Randy being responsible to pay the tag and insurance, plus repairs over $200. Randy had been the primary "breadwinner" for the family, and the chancellor ordered him to pay alimony to Renee in the amount of $800 per month for three years, then $400 per month thereafter, since the mortgage which Renee was paying was expected to be paid off in three years. Randy incurred substantial debt while still married; however, the chancellor found those debts to have been incurred after the couple separated. Therefore, the judge ordered Randy liable for the debts listed in his financial declaration. The chancellor found Renee unable to pay her attorney's fees and ordered Randy to pay $3,750, which was one-third of the fees she had already incurred. The chancellor also placed a lien on the couple's real property known as "the camp" as security for Randy's obligation with regard to the judgment of divorce.

¶ 3. Randy appeals the chancellor's judgment to this Court, raising the following issues for our review: (1) whether the chancellor erred in his distribution of property between the parties; (2) whether the chancellor erred in requiring Randy to pay alimony to Renee as well as in ordering him to pay Renee's attorney's fees; and (3) whether the chancellor erred in the amount of child support he ordered Randy to pay.

DISCUSSION OF THE ISSUES

I. DID THE CHANCELLOR ERR IN HIS DISTRIBUTION OF PROPERTY BETWEEN THE PARTIES?

¶ 4. Randy first argues that the chancellor's distribution of property was not equitable. We look to our standard of review with regard to this issue. "This Court's scope of review in domestic relations matters is limited. We will not disturb the findings of a Chancellor unless the Chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Carrow v. Carrow, 741 So.2d 200(¶ 9) (Miss.1999). This Court looks to the chancellor's application of the Ferguson factors when reviewing questions of equitable distribution. See Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994)

.

¶ 5. Randy and Renee filed a complaint for an irreconcilable differences divorce and also filed a property settlement agreement with the court. We first review the enforceability of the property settlement agreement and examine the binding nature of such document.

We have also historically recognized that parties may upon dissolution of their marriage have a property settlement incorporated in the divorce decree, and such property settlement is not subject to modification. A true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.

East v. East, 493 So.2d 927, 931-32 (Miss. 1986).

This Court has stated its policy on enforcing divorce settlements as follows: In property and financial matters between the divorcing spouses themselves, there is no question that, absent fraud or overreaching, the parties should be allowed broad latitude. When the parties have reached agreement and the chancery court has approved it, we ought to enforce it and take as dim a view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts.

Weathersby v. Weathersby, 693 So.2d 1348, 1351 (Miss.1997). On appeal, Randy argues that since, as part of the property settlement agreement, he stipulated to a one-half division of his retirement account with Renee, the chancellor should have awarded him some interest or equity in the marital home. In other words, Randy implies that in exchange for stipulating in the agreement to divest himself of one-half of his pension in Renee's favor, he is somehow entitled to the same with regard to the house. However, such agreement was not incorporated into the settlement, and the parties left the chancellor with discretion to decide the issue of ownership and rights to the marital home. Randy has given no reasons nor cited any authority that would render him entitled to a share of the marital home in a "quid pro quo" sense simply because he agreed to allow Renee a one-half interest to his retirement account. Randy agreed to the particulars of the property settlement agreement. He has alleged no fraud or misrepresentation; thus, as with any contract we find he is bound to the terms upon which he unequivocally agreed. We find no merit to this argument.

¶ 6. We next look in the record to those assets the chancellor was left to equitably distribute between Randy and Renee. As detailed in their property settlement, Randy and Renee settled on distribution of some items. Specifically, Renee was given the family van, the couple each split rights fifty-fifty to Randy's retirement plan, and Randy was vested with ownership rights in the real property known as "the camp." In addition to receiving one-half of the retirement account, Renee was given an additional $5,000 in the retirement plan as consideration for her turning over her rights to the "camp" property. Aside from this agreement, the chancellor was left with the responsibility of equitably dividing the remaining property, which included the marital home and certain personal property. Concerning this remaining personal property, Randy argues the chancellor erred in not appointing an expert witness to value the personalty at issue. In Heigle v. Heigle, 771 So.2d 341 (Miss.2000), appointment of an expert was an issue, and the supreme court referred to Rule 706 of the Mississippi Rules of Evidence, which concerns appointment of experts.

M.R.E. 706 clearly authorizes the appointment of an expert upon the motion of a party. As the Court of Appeals correctly noted, "[t]he appointment of an expert by the court under Mississippi Rule of Evidence 706 is done sparingly, and then only in exceptional cases involving complex issues where the expert's testimony would be helpful to the trier of facts."

Heigle, 771 So.2d at (¶ 29). In Heigle, the "complex" valuation concerned a business partnership which was in bankruptcy, along with other financial issues stemming from the bankruptcy proceeding. In Ferguson, the supreme court also noted:

Property division should be based upon a determination of fair market value of the assets, and these valuations should be the initial step before determining division. Therefore, expert testimony may be essential to establish valuation sufficient to equitably divide property, particularly when the assets are as diverse as those at issue in the instant case.

Ferguson, 639 So.2d at 929. In Ferguson, the "diverse" assets in need of valuation included a cattle farm operation, retirement funds and stock, and the marital home. We review the facts of this case and find that complex issues are not involved, as compared in Heigle and Ferguson; therefore, the chancellor did not abuse his discretion in failing to appoint his own expert to value the personal property at issue, which merely included miscellaneous housewares. Of note, as well, is the fact that Randy conducted his valuation himself, whereas Renee enlisted the services of an expert to valuate the same items. Beyond that, those values the chancellor opted to assign were within his discretion and, having found no abuse, we will not reverse.

¶ 7. We finally address the chancellor's division of certain personal property between Randy and Renee. The chancellor found that the total value of those assets subject to distribution was $6,025, and he awarded $2,925 worth of this property to Renee and $3,100 worth of the property to Randy. Randy now argues that since Renee received one-half the value of Randy's retirement, he in turn should have received some portion of the equity accumulated in the home. We find, though, that in making such assertion Randy is attempting to valuate the property as to make it numerically come out fifty-fifty. We have said before equitable distribution does not necessarily mean "equal" distribution. Draper v. Draper, 627 So.2d 302, 305 (Miss.1993).

¶ 8. In our review of the chancellor's judgment, we are not to conduct a Ferguson analysis anew, but are to review the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion. In his judgment, the chancellor described his reasons for the equitable division he made. He stated that although both parties contributed substantially to the accumulation of...