Deborah Weeks v. Roland Weeks
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CA-01031-COA
DEBORAH WEEKS
v.
ROLAND WEEKS
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
05/31/2001
HON. J. SHANNON CLARK
HARRISON COUNTY CHANCERY COURT
ALEITA M. SULLIVAN
HENRY LAIRD
THOMAS W. CROCKETT JR.
CIVIL - DOMESTIC RELATIONS
DIVORCE GRANTED TO DEFENDANT; DIVISION OF
MARITAL PROPERTY
AFFIRMED IN PART; REVERSED AND REMANDED IN
PART - 09/17/2002
10/14/2002
BEFORE KING, P.J., IRVING, AND BRANTLEY, JJ.
BRANTLEY, J., FOR THE COURT:
¶1. Deborah Weeks was granted a divorce on the ground of adultery in the Chancery Court of the First
Judicial District of Harrison County. Deborah perfected this appeal seeking a review limited to the financial
aspects of the divorce judgment. She contends that the chancellor abused his discretion in failing to grant a
continuance and in dividing the marital property. In addition, she argues that the chancellor erred in failing to
award adequate lump sum alimony, periodic alimony, medical insurance and attorney's fees. Finding several
errors, we affirm in part and reverse and remand in part for further proceedings consistent with this opinion.
FACTS
¶2. Roland and Deborah Weeks were married on September 16, 1978, the second marriage for both
parties. Roland has two adult children from his previous marriage. Deborah has one adult child from her
previous marriage who lived with Roland and Deborah during their marriage. One child was born during
their marriage who was fifteen at the time of the divorce hearing. The parties separated in early 1992
resulting in Roland leaving the marital home. Their child remained with her mother until approximately one
year prior to the divorce hearing at which time she moved in with her father.
¶3. Roland was sixty-four at the time of the hearing and the publisher of The Sun Herald, a newspaper in
Gulfport. He is a college graduate from South Carolina who began working for The State Record, a
newspaper in South Carolina in 1963 and transferred to the Mississippi paper in 1968 becoming the
president of the company. The State Record sold the paper to Knight Ridder at which time Roland's title
became that of publisher. Roland is required to retire from the newspaper at age sixty-five.
¶4. Deborah was fifty-one at the time of the hearing. She is a college graduate who worked in advertising
prior to her marriage. She met Roland when she worked at The Sun Herald as an advertising account
executive. Prior to their marriage, she stopped working at the newspaper and worked at a pharmaceutical
company. However, she stopped working completely shortly after their marriage. At the hearing, Deborah
and Roland testified that Deborah's health was poor. She claimed to have a degenerative nerve disease,
Sjorgen's Syndrome, glaucoma and other eye problems, back and neck problems along with having had
several surgeries for various problems.
¶5. Deborah was granted a divorce on the ground of adultery following an uncontested hearing on the issue
of the divorce. The only issues raised on appeal deal with the financial aspects of the divorce. The
chancellor found that there were no separate assets and entered an order after a hearing dividing all of the
marital property.
¶6. Deborah was awarded the $360,000 marital home (with the remaining $18,000 debt), her $40,000
BMW, $40,000 in household furnishings, one-fourth of the 401(k) valued at $282,750, one-third of the
defined benefit pension and retirement plan, including annual payments which had a cash value of $2,000,
000 and $50,000 in cash. Deborah received approximately one third of the estate valued at $5,219,567.
¶7. Roland was awarded the remaining marital property of approximately two thirds of the estate including
his home valued at $300,000, two planes and a hangar valued at $180,000, $40,000 in household goods, a
limited partnership valued at $300,000 (receiving $30,000 in income per year), Knight Ridder and other
stocks valued at $261,000 and all remaining assets. Under the retirement plan, Roland has various options
and may choose a lump sum payment of $2,000,000 with $75,000 per year or periodic payments at
various rates ranging from $228,000 to $308,000.
DISCUSSION OF ISSUES
I. WHETHER THE CHANCELLOR ERRED IN DENYING THE MOTION FOR A
CONTINUANCE.
¶8. On September 28, 2000, three weeks prior to trial, Deborah filed a motion for continuance and to
compel discovery. The chancellor, who later recused himself, denied the continuance, but did grant the
order to compel discovery. The trial began, with a new chancellor and the motion was not renewed, but
mentioned near the end of the trial. Deborah argues that the chancellor erred in failing to grant this
continuance. Due to the failure to grant a continuance, Deborah maintains that she was unable to obtain
complete discovery and ascertain what happened to some of the assets.
¶9. The decision to grant or deny a motion for a continuance is within the discretion of the judge and will not
be reversed unless that discretion has been abused. Dew v. Langford, 666 So. 2d 739, 746 (Miss. 1995).
Prejudice must result from the denial in order to have that decision reversed. Id. Here, the case had been
pending for over a year and Deborah had changed attorneys several times prior to trial. Instead of renewing
the motion, Deborah proceeded with the trial. The continuance was not mentioned until near the end of the
trial; however, the motion was not renewed then either. Deborah claims she did not have time to go through
all of the information gathered from discovery and needs additional discovery to trace some assets.
¶10. However, we cannot find that she was prejudiced in any form. The chancellor was aware that certain
money could not be traced. Roland testified that he used the money to live on during the separation at
which time he gave Deborah his pay checks from the newspaper. The chancellor was also aware that some
of the money was lost in investments. From the chancellor's order, it is clear that he took the money in
question into account in making his decision. No prejudice resulted; therefore, this issue is without merit.
II. WHETHER THE CHANCELLOR ERRED BY FAILING TO MAKE AN EQUITABLE
DIVISION OF THE MARITAL PROPERTY.
¶11. Deborah argues that the chancellor erred in failing to make an equitable division of the marital
property. The division of the property, as stated in detail above, is approximately one third to Deborah and
two thirds to Roland. A chancellor's findings will not be reversed unless the decision is manifestly wrong,
clearly erroneous or resulted from an abuse of discretion. Johnson v. Johnson, 650 So. 2d 1281, 1285
(Miss. 1994).
¶12. In order to determine an equitable division of property, the chancellor must first determine which
assets were marital, their value and follow the appropriate factors in distributing the assets. Ferguson v.
Ferguson, 639 So. 2d 921, 929 (Miss. 1994). Here, the chancellor addressed each of the Ferguson
factors. Deborah argues that the chancellor did not consider her non-economic contributions to the
accumulation of marital property.
¶13. The Mississippi Supreme Court has recognized that a spouse that stays at home to care for the family
and contribute to the career of the other spouse without contributing to the family economically, still receives
an equitable portion of the marital assets. Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). Here,
the Weekses were married twenty-two years; however, the parties have led separate lives since 1992.
Although Deborah testified that she cared for their daughter and entertained for Roland's business, Roland
testified that Deborah harassed him at his job to the point that a restraining order had to be obtained along
with extra security at the newspaper. Additionally, Deborah admitted to an affair around 1984 when she
filed a motion, which was denied, for the determination of paternity for the Weekses's minor child. The
chancellor found that neither party contributed to the stability of the marriage. From the evidence presented
at the hearing, we cannot find any error in this determination, nor the chancellors's distribution of the marital
property.
III. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD ADEQUATE
LUMP SUM ALIMONY.
¶14. Deborah argues that the chancellor erred in awarding her inadequate lump sum alimony. Although, the
chancellor denied alimony, he did order Roland to pay Deborah $50,000 in cash within five days of the
entry of judgment. This was not lump sum alimony, but part of the division of marital assets.
¶15. The decision to award lump sum alimony is within the discretion of the chancellor and will not be
reversed unless that discretion was abused. McEachern v. McEachern, 605 So. 2d 809, 814 (Miss.
1992). In order to award lump sum alimony, the chancellor must look at the substantial contribution to the
accumulation of total wealth, length of the marriage, the inadequacy of the separate estate and the financial
security of the spouse. Flechas v. Flechas, 791 So. 2d 295, 304 (¶31) (Miss. Ct. App. 2000) (citing
Cheatham v. Cheatham, 537 So. 2d 435, 438 (Miss. 1988)). Here, we find no abuse of discretion in
failing to award lump sum alimony; however, we will address periodic alimony as a separate issue.
IV. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD PERIODIC
ALIMONY.
¶16. Deborah argues that the chancellor erred in failing to award her periodic alimony. An award of alimony
is within the discretion of the chancellor and will not be reversed unless it resulted in manifest error or an
abuse of discretion. Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). "In the case of a
claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so
oppressive, unjust, or grossly inadequate as to evidence an abuse of discretion." Id.
¶17. In Armstrong, the Mississippi Supreme Court set forth twelve factors to be considered in awarding
alimony. Id. These factors include: income and expenses, health and earning capacity, needs, obligations,
length of marriage, presence of minor children, age, standard of living, tax consequences, fault and any other
equitable factors. Id. Although, an on-the-record analysis of the Armstrong factors are helpful in appellate
review, the lack of that analysis does not require reversal, unless manifest error has resulted. Godwin v.
Godwin, 758 So. 2d 384, 387 (¶¶10-11) (Miss. 1999).
¶18. Here, the chancellor denied any award of alimony without an on-the-record consideration of the
Armstrong factors. We find this failure to consider the Armstrong factors to be a manifest error. The gross
disparity in the estates of both parties calls for a consideration of whether alimony is appropriate. The
chancellor found that Deborah was adequately provided for in the division of assets; however, we find that
not to be the case. There was undisputed evidence concerning the state of Deborah's health which was set
forth in the recital of facts. Although, the chancellor did not place much credit on Deborah's ill health
considering her request for expenses to care for a horse and jet ski. However, no one questioned or
contradicted Deborah's testimony concerning her poor health and large medical bills. Deborah has not
worked for the past twenty-two years and was fifty-one at the time of the hearing enjoying a substantial
standard of living throughout the twenty-two years of marriage.
¶19. Additionally, Roland left the marriage in 1992 due to an affair. Further, although, the chancellor found
that each party wasted assets, there is a large amount of money unaccounted for which Roland had access
to, not Deborah. Deborah has no separate estate or income outside of the division of the marital property.
We find that the chancellor erred in failing to award periodic alimony.
¶20. "The wife is entitled to support corresponding to her rank and condition in life, and the estate of her
husband." Tutor v. Tutor, 494 So. 2d 364 (Miss. 1986) (citing Jenkins v. Jenkins, 278 So. 2d 446, 44950 (Miss. 1973)). In accordance with Tutor and Armstrong, Deborah is entitled to continue living in the
same standard of living as she has grown accustomed to during the course of her twenty-two year marriage.
Deborah maintained the home during their marriage and after their separation for the benefit of their
daughter until one year prior to the divorce hearing.
¶21. In the discussion on the division of property, the chancellor placed great weight on the need to divide
the assets in such a way to prevent future friction between the couple. However, due to the fact that they
have a child, contact and possible friction between the couple will be inevitable. Taking all the evidence into
consideration, we must conclude that the chancellor erred in failing to award Deborah any alimony.
Therefore, we reverse and remand with instructions to the chancellor to award periodic alimony to
Deborah.
V. WHETHER THE CHANCELLOR ERRED IN FAILING TO ORDER ROLAND TO
PROVIDE DEBORAH WITH MEDICAL INSURANCE.
¶22. Deborah contends that the chancellor erred in failing to order Roland to provide her with medical
insurance. The chancellor does have the ability to order medical insurance as a type of alimony. Driste v.
Driste, 738 So. 2d 763, 766 (¶11) (Miss. Ct. App. 1998). As we have already found that the chancellor
erred in failing to award any periodic alimony, we also reverse the chancellor's decision not to order Roland
to provide medical insurance for Deborah. Therefore, for the same reason that we set forth above, in
reversing the chancellor's decision for periodic alimony, we reverse and remand the issue of medical
insurance to the chancellor for reconsideration when determining an appropriate periodic alimony award.
VI. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD ATTORNEY'S
FEES TO DEBORAH.
¶23. Deborah's final assignment of error is that the chancellor erred in failing to award her attorney's fees.
"Generally the award of attorney fees in a divorce case is left to the discretion of the trial court." BurnhamSteptoe v. Steptoe, 755 So. 2d 1225, 1235 (¶36) (Miss. Ct. App. 1999) (quoting Cheatham v.
Cheatham, 537 So. 2d 435, 440 (Miss. 1988)). An appellate court is "reluctant to disturb a chancellor's
discretionary determination whether or not to award attorney fees." Geiger v. Geiger, 530 So. 2d 185,
187 (Miss. 1988). Additionally, the Court maintains a "general rule that where 'a party is financially able to
pay her attorney, an award of attorney's fees is not appropriate.'" Id. (quoting Martin v. Martin, 566 So.
2d 704 (Miss. 1990)).
¶24. The Mississippi Supreme Court reversed a chancellor's denial of attorney's fees when the evidence
was sufficient for the chancellor to determine whether an award of attorney's fees were necessary by
considering the McKee factors. Nix v. Nix, 790 So. 2d 198, 200-01 (¶7) (Miss. 2001) (citing McKee v.
McKee, 418 So. 2d 764, 767 (Miss. 1982)). Here, the evidence presented included Deborah's testimony
concerning her inability to pay and the bills were introduced into evidence. Although, the chancellor stated
he would determine the issue of attorney's fees, he failed to set forth any reason for denying attorney's fees
with reference to the McKee factors. For the same reasons that we are reversing the issue of periodic
alimony, we reverse the chancellor's denial of attorney's fees and the case is remanded for a determination
based upon the existing record and by applying the McKee factors of whether an award of attorney's fees is
warranted.
¶25. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE
DIVIDED EQUALLY BETWEEN THE APPELLANT AND APPELLEE.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS
AND CHANDLER, JJ., CONCUR. THOMAS, J., NOT PARTICIPATING.
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