Cynthia Amacker v. Patrick Amacker
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-00332-COA
CYNTHIA AMACKER
APPELLANT
v.
PATRICK AMACKER
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
01/22/2008
HON. JOHNNY LEE WILLIAMS
PEARL RIVER COUNTY CHANCERY
COURT
BOB WALLER
AMY D. SALING
JACK PARSONS
TADD PARSONS
CIVIL - DOMESTIC RELATIONS
APPELLANT GRANTED FAULT DIVORCE
AND ASSETS WERE DIVIDED BY
CHANCELLOR
AFFIRMED: 09/29/2009
BEFORE KING, C.J., GRIFFIS AND MAXWELL, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
The Pearl River County Chancery Court granted Cynthia Amacker (“Cindy”) a
divorce from Patrick Amacker (“Patrick”) and divided their marital assets. Cindy appeals
the chancellor’s findings and argues that: (1) the chancellor erred when he failed to award
her an interest in the camp house that Patrick purchased after their separation; (2) the
chancellor ignored her contributions toward the marital home; and (3) she should have been
awarded alimony and an interest in Patrick’s retirement benefits.
FACTS
¶2.
Cindy and Patrick were married on February 14, 1994. This was their second
marriage to each other.
¶3.
Cindy filed for divorce on August 11, 2005, based on the ground of habitual cruel and
inhuman treatment or, alternatively, irreconcilable differences. A partial hearing was held
on June 6, 2006, at which by stipulation, the parties agreed to a divorce based on
irreconcilable differences and asked the chancellor: to distribute personal and real property,
to calculate Cindy’s interest in Patrick’s retirement, and to determine whether attorney’s fees
or alimony were appropriate. The court was unable to conclude the hearing at that time, and
the case was continued.
¶4.
However, on April 25, 2007 – before the hearing was concluded – the chancellor
entered a judgment granting Cindy a divorce on the ground of habitual cruel and inhuman
treatment. All other issues other than the grant of divorce were reserved for a final hearing.
On January 22, 2008, the chancellor determined that: (1) Patrick’s interest in the marital
home was $60,000; (2) Patrick purchased the camp house after the separation and awarded
it solely to him; (3) alimony for Cindy was not appropriate; (4) Patrick was not entitled to
any of Cindy’s workers’ compensation benefits; and (5) Cindy was not entitled to any of
Patrick’s disability benefits or payments for injuries that occurred before their marriage.
¶5.
Cindy proceeded pro se with her appeal, which was subsequently dismissed by the
supreme court for failure to follow the Mississippi Rules of Appellate Procedure. Cindy
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failed to timely file a brief. After the dismissal, Cindy petitioned: to have her appeal
reinstated, for time to retain counsel, and for time to file a supplemental brief. The supreme
court granted Cindy’s request, and Cindy retained counsel who filed a supplemental brief.
We address only the issues included by counsel in the timely filed supplemental brief.
STANDARD OF REVIEW
¶6.
The standard of review employed by this Court in domestic relations cases is well
settled. Chancellors are vested with broad discretion, and this Court will not disturb the
chancellor's findings unless the court was manifestly wrong, the court abused its discretion,
or the court applied an erroneous legal standard. Andrews v. Williams, 723 So. 2d 1175,
1177 (¶7) (Miss. Ct. App. 1998) (citing Sandlin v. Sandlin, 699 So. 2d 1198, 1203 (Miss.
1997)). However, we will not hesitate to reverse should we find that a chancery court was
manifestly wrong, abused its discretion, or applied an erroneous legal standard. Glass v.
Glass, 726 So. 2d 1281, 1284 (¶11) (Miss. Ct. App. 1998) (citing Bowers Window and Door
Co., Inc. v. Dearman, 549 So. 2d 1309, 1312-13 (Miss. 1989)).
ANALYSIS
1.
¶7.
Did the trial court err when it failed to award Cindy an interest in the
camp house that Patrick purchased after the separation?
Cindy claims that she deserves credit for negotiations and time and money expended
for the improvement and renovation of the camp house. According to Cindy, these efforts
contributed to Patrick’s ability to purchase the camp house. Patrick claims that Cindy did
not contribute to the purchase of the camp house.
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¶8.
On appeal, Cindy argues the chancellor did not analyze her interest in the camp house
under the Ferguson factors. Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994). The
Ferguson factors “aid chancellors in their adjudication of marital property division.” Id.
¶9.
In his opinion, the chancellor listed each of the Ferguson factors and stated that he had
taken them into consideration. The Ferguson factors are as follows:
1. Substantial contribution to the accumulation of the property. Factors to be
considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of
the property;
b. Contribution to the stability and harmony of the marital and
family relationships as measured by quality, quantity of time
spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other
accomplishment bearing on the earning power of the spouse
accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise
disposed of marital assets and any prior distribution of such assets by
agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to
distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary,
subject to such distribution, such as property brought to the marriage by the
parties and property acquired by inheritance or inter vivos gift by or to an
individual spouse;
5. Tax and other economic consequences, and contractual or legal
consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be
utilized to eliminate periodic payments and other potential sources of future
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friction between the parties;
7. The needs of the parties for financial security with due regard to the
combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.
Id.
¶10.
We begin by addressing whether the camp house can be considered marital property
since it was purchased after the separation. In her recent book, Professor Deborah H. Bell
explained that “in the absence of a support order, marital property accumulation continues
until divorce.” Deborah H. Bell, Miss. Family Law § 6.02[3][b] (2005). “Until the formality
of the court order on temporary support or separate maintenance, the effect of each spouse’s
earnings remains the same as if the couple were still physically and even happily residing in
the marital home[.]” Pittman v. Pittman, 791 So. 2d 857, 866 (¶29) (Miss. Ct. App. 2001).
¶11.
Patrick purchased the camp house after he and Cindy separated, but no temporary
support or separate maintenance order had been entered that would cut off the accumulation
of marital property.
Therefore, the camp house can be considered marital property.
“However, the earning spouse may argue that the other contributed little to [the] assets
acquired during separation and should be awarded a smaller share.” Bell, Miss. Family Law
§ 6.02[3][b].
¶12.
Cindy testified that she had negotiated with the owner of the camp house, Dr. Norman
McSwain, to purchase the camp house at a reduced price discounted for the work that she put
into it to make it livable. Her position was that the purchase price of the camp house was
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“fifty something thousand dollars,” and she made a down payment of $15,000 through labor
and improvements to the property. She claims that Patrick was able to purchase the camp
house for $43,000 because he benefitted from this down payment. Cindy claimed that
Patrick wanted nothing to do with buying the camp house until after they had separated.
¶13.
To support her claim that she had an interest in the camp house, Cindy testified that
she expended time and $100,000 of her money to renovate the camp house and the marital
home. With respect to the camp house, she claimed that she cashed in a $10,000 certificate
of deposit (“CD”) for “stuff” for the camp house. She produced a summary of canceled
checks that had been marked “home improvement.” Cindy claimed that during the month
that she had lived at the camp house, she did labor intensive work to improve the property,
i.e., scrubbing, cleaning, papering the cabinets, and replacing the kitchen stove and air
conditioner.
¶14.
In support of his claim that Cindy should not be awarded an interest in the camp
house, Patrick denies that Cindy contributed labor or money to the cabin’s improvements.
It was unclear which of the checks that Cindy submitted were for improvements made to the
camp house and which were for the improvements made to the marital home – if they were
for improvements at all. Many of the checks were written to cash, Walmart, and Home
Depot. Although home improvement had been written on the memo line of some of the
checks, at least some of the notations were made after the checks had been cashed.
Furthermore, the chancellor also noted that there was no proof that Cindy used the proceeds
from her $10,000 CD toward making improvements to the camp house.
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¶15.
Cindy was unable to produce written documentation of any agreement between her
and Dr. McSwain for the purchase of the camp house. This Court cannot, on the facts
presented at trial, understand how the alleged improvements to the camp house constituted
a down payment. We fail to see the benefit to Dr. McSwain.
¶16.
The chancellor did not make a specific finding about Cindy’s contribution toward the
camp house when he analyzed the Ferguson factors, but he did make a finding on this issue
immediately before the analysis of the Ferguson factors.
The chancellor noted the
conflicting testimony about Cindy’s contribution and found that her contribution toward the
camp house was small when compared to Patrick’s contribution. Accordingly, we cannot
find that the chancellor neglected to consider Cindy’s contribution when he awarded the
camp house to Patrick. On the contrary, he considered Cindy’s contribution but did not find
it substantial when compared to Patrick’s contribution. This issue has no merit.
2.
¶17.
Did the chancellor ignore Cindy’s contributions toward the marital
home?
Within her argument concerning her interest in the camp house, Cindy makes several
claims that she was not given credit for renovations she made to the marital home. When
Patrick and Cindy married, Patrick owned a home (the marital home), which he and Cindy
shared until they moved to the camp house one month or two months before their separation
on August 9, 2005. The marital home was deeded jointly to Patrick and Cindy after their
marriage and was marital property. Accordingly, the renovations and improvements to the
marital home became marital property.
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¶18.
Patrick disputed Cindy’s claim that she put $90,000 into renovating the marital home
and estimated that the renovations totaled $30,000. The chancellor faced the same credibility
issue with the checks and receipts for renovations to the marital home as the camp house.
The testimony showed that Cindy and Patrick had both contributed to the marital home
financially and through their labor.
¶19.
The chancellor equitably divided the home, valued at $130,000, by awarding Cindy
the home and requiring her to pay Patrick $60,000 for his interest in the home. Ultimately,
Cindy’s interest in the home was $70,000. Both parties had contributed to the home, and any
improvements to the home were marital property. The chancellor did not abuse his discretion
when he determined the parties’ interest in this property. This issue lacks merit.
3.
¶20.
Should Cindy have been awarded alimony or an interest in Patrick’s
retirement benefits?
Cindy argues that the chancellor misapplied three of the ten Armstrong factors when
he considered whether alimony was appropriate. Cindy further argues that she is entitled to
a portion of Patrick’s retirement, but there was no evidence of Patrick’s retirement before the
chancellor.
¶21.
“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.” Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).
(citations omitted).
¶22.
The chancellor listed the Armstrong factors and found that: (1) Patrick’s monthly
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income was $2,400, and Cindy’s monthly income was $1,600; (2) Patrick was permanently
disabled, and Cindy was disabled, although the chancellor did not now how long Cindy’s
disability would last; (3) they both had needs; (4) it was a mid-term marriage, bordering on
a long-term marriage; and (5) they had agreed to an irreconcilable differences divorce.
¶23.
Cindy claims that the parties’ health and earning capacity, length of the marriage, and
fault all weighed in her favor. See id.
A.
¶24.
Health and Earning Capacity
Cindy argues that the chancellor erred when he analyzed the parties’ health and
earning capacity, because he speculated that she might go back to work. Cindy is a
registered nurse, but she is currently temporarily totally disabled and collecting workers’
compensation benefits. Cindy testified that she did not know when she would be able to
return to work. Patrick receives disability and an annuity payment from the settlement of an
offshore injury that occurred prior to the marriage.
¶25.
Patrick’s income is $800 per month more than Cindy’s; however, the chancellor found
that if and when Cindy returns to work as a registered nurse, her income could be
substantially more than Patrick’s. Cindy argues that it is mere speculation that she will go
back to work as a nurse. Cindy testified that her doctor has labeled her temporarily totally
disabled. The very nature of a temporary disability means it is not expected to be permanent.
We find that the chancellor did not abuse his discretion when he considered that Cindy’s
disability was temporary and that she would have substantially more income when her
disability ended.
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B.
¶26.
Length of the Marriage
The parties were married for eleven years. The chancellor stated this was a mid-term
marriage that bordered on being a long-term marriage. While this factor weighs slightly in
favor of Cindy, we find that the chancellor’s decision to deny alimony after eleven years of
marriage does not amount to an abuse of his discretion.
C.
¶27.
Fault
Cindy filed for a divorce based upon habitual cruel and inhuman treatment or,
alternatively, irreconcilable differences.
The parties had agreed to an irreconcilable
differences divorce, but the chancellor entered a judgment granting Cindy a divorce on
grounds of habitual cruel and inhuman treatment. When the chancellor made findings about
the Armstrong factors, he stated that there was no evidence of fault and that the parties had
agreed to an irreconcilable differences divorce. Cindy claims that the chancellor’s findings
were incorrect and were egregiously erroneous.
¶28.
Cindy failed to raise any issue about the grounds for granting the divorce with the
chancellor when he made his findings. “Failure to make a contemporaneous objection
constitutes [a] waiver of the objection and cannot be raised for the first time on appeal
because the trial court is denied the opportunity to consider the issue and possibly remedy
the situation.” Copeland v. Copeland, 904 So. 2d 1066, 1073 (Miss. 2004).
¶29.
Even if Cindy had not waived this issue, we find that the chancellor’s finding was
correct. We acknowledge that the chancellor granted Cindy a divorce based on habitual cruel
and inhuman treatment – as alleged in her complaint – during the time period between the
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first and second hearing. However, he did so without any evidence of fault. Cindy never
put forth any evidence of Patrick’s habitual cruel and inhuman treatment, and neither party
challenges the order granting the divorce on appeal. Accordingly, we do not address it. The
chancellor’s finding on this factor was correct.
¶30.
This Court is not called upon or permitted to substitute its collective judgment for that
of the chancellor. Richardson v. Riley, 355 So. 2d 667, 668-69 (Miss. 1978). A conclusion
that we might have decided the case differently, standing alone, is not a basis to disturb the
result. Id. Accordingly, we affirm the chancellor’s decision to deny alimony.
¶31. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER
COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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