Williams v. Williams

• Decision Date: 05 November 2013
• Docket Number: No. 2012–CA–00141–COA.,2012–CA–00141–COA.
• Citation: 129 So.3d 233
• Parties: Phillip W. WILLIAMS, Appellant v. Gail H. WILLIAMS, Appellee.
• Court: Mississippi Court of Appeals

129 So.3d 233

Phillip W. WILLIAMS, Appellant

v.Gail H. WILLIAMS, Appellee.

No. 2012–CA–00141–COA.

Court of Appeals of Mississippi.

Nov. 5, 2013.

Jak McGee Smith, Tupelo, attorney for appellant.

John A. Ferrell, Booneville, attorney for appellee.

Before LEE, C.J., MAXWELL and FAIR, JJ.

FAIR, J., for the Court:

¶ 1. Phillip and Gail Williams had been married for fifty-one years when they appeared before a chancellor seeking dissolution of their marriage, distribution of their marital property, and final resolution of their financial affairs.

¶ 2. At the end of trial, which took place over the course of multiple days, the chancellor invited briefs, allowed sixty days for their submission, and on November 23, 2011, entered an opinion and final judgment granting a divorce to Gail on grounds of habitual cruel and inhuman treatment. The chancellor then divided the marital property, adjudicated that what remained of a personal injury settlement in favor of Gail was her separate property, and awarded Gail $125 per month in periodic alimony.

¶ 3. Phillip appeals, claiming the chancellor erred in dividing the marital property, in finding the settlement to be Gail's separate property, and in awarding alimony to Gail. Finding that the chancellor did not so err, we affirm.

FACTS

¶ 4. Gail and Phillip married on January 16, 1960, raised two children to adulthood, and separated in Tishomingo County on September 3, 2009, a little over three months short of their golden anniversary.

¶ 5. Gail shortly thereafter filed for divorce, equitable division of property, and alimony; Phillip responded with denials and a counterclaim. The normal course of discovery, along with temporary motions, hearings, orders and injunctions followed.

¶ 6. In a thorough and well-written fifteen-page opinion and judgment, the chancellor set out findings of facts and descriptions of evidence to support her finding that Phillip's habitual cruel and unusual treatment of Gail, which included multiple occasions of physical violence, a recently acquired inclination for viewing non-heterosexual pornography online, as well as other abuse over their long marriage, caused their separation and justified granting a divorce to Gail. Phillip has not appealed that determination.

¶ 7. Citing Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994), and Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), and noting the established presumption that all property acquired during a marriage is presumed marital unless found otherwise, the chancellor classified, valued, and divided the property she found to be marital. She adjudicated one asset—the proceeds of a personal injury settlement in a mass tort case for Dow Chemical's marketing of alleged defective breast implants Gail received fifteen years in the past—to be Gail's separate property. In her opinion and judgment, the chancellor set out in a table a detailed listing of the Williams' marital assets; the claims of value submitted by each party for each item; and the evidence in the record of valuation, whether lay testimony of the party, appraisal by an expert, a document or documents in evidence, or as set out in the mandatory Rule 8.05 forms of each party.

¶ 8. In a separate table, following discussion of the Ferguson factors as they relate to the items listed in the summary table, the chancellor set out her final valuations of the marital property. The table named the recipient of each and detailed the evidence or the method used to reconcile conflicting evidence of valuation. She prefaced the factor discussions and final division with the observation that “[t]he Court is also mindful of the general proposition that ‘an equitable division of property does not necessarily mean an equal division of property.’ ” Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss.2009).

¶ 9. Addressing the four factors set out in Cheatham v. Cheatham, 537 So.2d 435 (Miss.1988), the chancellor found lump sum alimony unwarranted and thereafter discussed whether or not rehabilitative alimony or periodic alimony should be awarded. Discussing the twelve factors to be addressed when considering alimony, as set out in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), she found a small deficit in the monthly Social Security incomeof the parties, $707.10 to Gail and $1,245.50 to Phillip. The chancellor also acknowledged other income from marital assets divided between them, such as interest on bank and stock accounts, rental income on a house in Alabama being received by Phillip, and the fact that the marital assets are not subject to debt with the possible exception of a small loan on Phillip's pickup acquired after separation and allegedly made to pay toward the Alabama house. She awarded $125 per month in periodic alimony, “which will equitably adjust the Social Security benefits received by the parties.”

¶ 10. The chancellor finally declined to award fees and expenses, finding each party had sufficient resources from which to satisfy his or her attorney's fees.

¶ 11. Phillip appealed.

ISSUES

¶ 12. As asserted in his brief, Phillip claims:

1. The Court committed manifest error in its mathematical calculation in the division of property by counting some of Phillip's assets twice. Additionally, the Court ignored the overwhelming proof offered by Phillip that he put other significant sums of money into the purchase of the Alabama home which the Court again counted twice.

2. The Court committed manifest error by not accepting the fair-market-value of the Alabama home offered by Phillip, and, instead, averaged the fair-market-value of the Alabama home with an unauthenticated tax value of the property.

3. The Court committed manifest error by averaging the value of certain assets when there was no rational basis for doing so.

4. The Court committed error in its failure to credit Phillip by counting the $25,000.00 settlement on the breast enlargement as separate property and failing to give Phillip credit for the amount of the medical expenses he incurred in paying for the breast enlargement.

5. Alimony was improperly awarded to Gail since the Court found no deficit (none existed), and made no Armstrong analysis. The Court further committed error in giving alimony for the purpose of balancing the incomes of the parties.

STANDARD OF REVIEW

¶ 13. Questions of law are reviewed de novo. Irving v. Irving, 67 So.3d 776, 778 (¶ 11) (Miss.2011). A chancellor's factual findings, on the other hand, will not be disturbed unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Carambat v. Carambat, 72 So.3d 505, 510–11 (¶ 24) (Miss.2011). As long as substantial evidence supports the chancellor's findings, an appellate court is without authority to disturb them, even if it would have found otherwise as an original matter. Joel v. Joel, 43 So.3d 424, 429 (¶ 14) (Miss.2010). Additionally, if the chancellor has made no specific findings, we generally proceed (unless factor analysis is mandated) on the assumption that she resolved all such fact issues in favor of the appellee. Ferrara v. Walters, 919 So.2d 876, 881 (¶ 8) (Miss.2005) (citing Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990)). “A chancellor's findings of fact will only be reversed when the record possesses no credible evidence to support them.” Collins v. Collins, 112 So.3d 428, 433 (¶ 16) (Miss.2013) (citing Hensarling v. Hensarling, 824 So.2d 583, 586 (¶ 7) (Miss.2002)).

DISCUSSION

¶ 14. We have reorganized the errors assigned by Phillip to allow discussion in the order suggested in the long line of cases discussing property and money based on Hemsley,Ferguson and Armstrong.¹

1. Gail's Dow Chemical Settlement—Separate or Marital?

¶ 15. As recognized by the chancellor, in an equitable division of property brought into or acquired during a marriage, the property must first be subjected to a Hemsley analysis, the determination of whether assets are marital or separate and assignment of a value to each item or groups of items. Property acquired during marriage is presumed marital. In this case Gail had received a money settlement based on defective breast implants made by Dow Chemical Company during the marriage. She kept it, however, in a separate account in her name only. The sum in the account was alternatively stated in the record as $25,097, $25,075, or “about $25,000.”

¶ 16. The Supreme Court of Mississippi had wrestled with determination of the status of personal injury settlements as marital or separate property long before it handed down the Hemsley and Ferguson cases on July 7, 1994. In fact, in Hemsley it noted specifically the case of Regan v. Regan, 507 So.2d 54 (Miss.1987), as a harbinger of things to come. In Regan, using language adopted in Hemsley some seven years later, the supreme court had held that:

Incident to a divorce the Chancery Court certainly has the power to look behind the formal state of title to property and decree an equitable division of jointly accumulated property, the division to be made by reference to the economic (though not necessarily monetarily economic) contributions made by each to the acquisition and maintenance of the property. Pickle v. Pickle, 476 So.2d 32, 34 (Miss.1985); Spearman v. Spearman, 471 So.2d 1204, 1205–06 (Miss.1985); Watts v. Watts, 466 So.2d 889, 890–91 (Miss.1985); cf. Pickens v. Pickens, 490 So.2d 872, 875–76 (Miss.1986). Here, however, the evidence is overwhelming that these monies derived in substantial part, if not in whole, from Lloyd's personal injury claim. The Chancery Court in its opinion notes:

It is undisputed that the origin of the money was a 1981 settlement of a personal injury/loss of consortium claim arising from defendant's [Lloyd's] injuries.

While it is true that the evidence suggests that a good bit of the settlement proceeds have been expended for the mutual benefit of the parties, there is no evidence that Lloyd ever made any gift of one-half or any other part of the proceeds to...