Eddie J. Cotton v. Fannie M. Cotton
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00626-COA
EDDIE J. COTTON
APPELLANT
v.
FANNIE M. COTTON
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
02/21/2008
HON. VICKI B. COBB
DESOTO COUNTY CHANCERY COURT
ROSS R. BARNETT, JR.
LESLIE B. SHUMAKE, JR.
CIVIL - DOMESTIC RELATIONS
GRANTED ANNULMENT AND
DISTRIBUTED ASSETS
AFFIRMED: 01/26/2010
EN BANC.
MYERS, P.J., FOR THE COURT:
¶1.
Eddie J. Cotton appeals the chancery court’s division of property after his marriage
to Fannie M. Cotton was annulled. He claims that: (1) the property division was against
precedent requiring good faith by the party seeking equitable distribution in a void marriage;
(2) there was insufficient evidence to support the chancellor’s finding that Fannie did not
know she needed a divorce before she could remarry; and, alternatively, (3) the incorrect
legal standard was applied because the chancellor did not properly apply the Ferguson
factors. Finding no abuse of discretion in the chancellor’s equitable award, we affirm the
judgment of the chancery court.
FACTS
¶2.
Fannie filed for a divorce from Eddie based on the ground of habitual cruel and
inhuman treatment. Eddie counterclaimed for an annulment, alleging that Fannie had never
obtained a divorce from her first husband, Johnny L. Tate, before she married Eddie. Fannie
was married to Tate on June 26, 1962. On September 26, 1969, Fannie married Eddie;
however, there was no evidence that Fannie and Tate were ever divorced. The chancellor
ruled that Fannie’s bigamy rendered the marriage void and granted an annulment.1
¶3.
The chancellor further held that Fannie’s economic contributions to the purported
marriage over the past thirty-seven years entitled her to an equitable distribution of the assets
accumulated by the parties during that time. After a hearing, the chancellor divided the
property as follows: (1) Fannie was awarded forty percent of Eddie’s retirement account; (2)
Eddie was awarded a 1999 Cadillac automobile; (3) Fannie was awarded a 1993 Chevrolet
automobile and a 1991 Mazda truck; (4) Eddie was ordered to pay Fannie one-half of the
equity in the marital home if he wished to remain in the home; otherwise the home was
ordered to be sold and divided equally between the parties; (5) the couple’s interest in a
house and lot in Memphis, Tennessee, titled to Eddie and two others who are not party to this
1
We note that Fannie, in her appellee’s brief, argues that the chancellor erred in
granting the annulment. However, Fannie failed to file a cross-appeal in this matter. “In
order for the appellee to gain reversal of any part of the decision of a trial court about which
the appellant brings no complaint, the appellee is required to file a cross-appeal.” Delta
Chem. and Petroleum, Inc. v. Citizens Bank of Byhalia, Miss., 790 So. 2d 862, 878 (¶52)
(Miss. Ct. App. 2001) (citation omitted). Accordingly, this issue was not properly raised
before this Court.
2
action, was awarded solely to Eddie; (6) a house in Quitman County titled in both parties’
names was ordered to be sold and the proceeds divided equally; (7) acreage in Tunica County
titled in both names was to be sold, and the proceeds were to be divided equally between the
parties, with the monthly rent of $300 to be divided equally until the property is sold; and (8)
all of the various household items requested by Fannie were awarded to her since Eddie made
no objection.
STANDARD OF REVIEW
¶4.
“In domestic relations cases, [the appellate court's] scope of review is limited by the
substantial evidence/manifest error rule.” Samples v. Davis, 904 So. 2d 1061, 1063-64 (¶9)
(Miss. 2004) (citing Jundoosing v. Jundoosing, 826 So. 2d 85, 88 (¶10) (Miss. 2002)). We
“will not disturb the chancellor's opinion when [it is] supported by substantial evidence
unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an
erroneous legal standard was applied.” Id. at 1064 (¶9) (quoting Holloman v. Holloman, 691
So. 2d 897, 898 (Miss. 1996)). However, questions of law are reviewed de novo. Amiker
v. Drugs for Less, Inc., 796 So. 2d 942, 945 (¶7) (Miss. 2000).
DISCUSSION
1.
¶5.
Equitable Division; Good Faith
For clarity and economy we shall address Eddie’s first two issues together. Eddie
argues, first, that Mississippi law requires a party to a void marriage must have entered into
that marriage in good faith before the chancellor may award any form of equitable relief.
Because we find this assertion without merit, we find it unnecessary to address Eddie’s
second issue of whether the chancellor erred in finding that Fannie entered the void marriage
3
in good faith.
¶6.
At the outset, we recognize that “the legal relationship of husband and wife may be
created only in conformity with the procedures authorized by the statute law of this state.”
Pickens v. Pickens, 490 So. 2d 872, 875 (Miss. 1986). However, “[w]here parties live
together without benefit of marriage and where, through their joint efforts, accumulate real
property or personal property, or both, a party having no legal title nevertheless acquires
rights to an equitable share enforceable at law.” Williams v. Mason, 556 So. 2d 1045, 1049
(Miss. 1990) (citing Pickens, 490 So. 2d at 875-76; Taylor v. Taylor, 317 So. 2d 422, 423
(Miss. 1975); Chrismond v. Chrismond, 211 Miss. 746, 757-58, 52 So. 2d 624, 629 (1951)).
Such a remedy is only available where “the couples had . . . either been married or contended
to have married.” Nichols v. Funderburk, 883 So. 2d 554, 558 (¶11) (Miss. 2004).
¶7.
As we have said, Eddie asserts that Fannie may not recover, not because their
marriage was void, but because Fannie did not enter into the void marriage in good faith. On
appeal, Eddie appears to concede that the other requirements for an equitable division were
met, at least as to some of the property at issue.
¶8.
Certainly, there is substantial evidence in the record that Fannie and Eddie lived
together for much of their thirty-seven years of apparent marriage. They secured a marriage
license, undertook a marriage ceremony before a minister, and held themselves out to the
community as man and wife. Eddie and Fannie raised four children over the course of their
void marriage, including two natural children of the parties born to the purported marriage,
a relative that the couple adopted after the purported marriage, and a child of Fannie’s
marriage to Tate born prior to her purported marriage to Eddie. All of the children had
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reached the age of majority prior to Fannie’s suit for divorce.
¶9.
It also appears beyond dispute that the record contains substantial evidence that
Fannie contributed to the accumulation of much of the couple’s real and personal property.
Testimony indicated that Fannie worked outside the home when she was able. After she was
placed on social security disability, Fannie’s checks were deposited directly into Eddie’s
checking account. Additionally, the chancellor correctly considered Fannie’s non-pecuniary
contributions. The supreme court has stated:
In determining what is an equitable division [of property obtained during a
non-marital cohabitation following a marriage or attempted marriage of the
parties], the chancellor is by no means limited to a consideration of the
earnings of the parties and cash contributions made by each to the
accumulation of the properties. As any freshman economics student knows,
services and in kind contributions have an economic value as real as cash
contributions. In such situations, where one party to the relationship acts
without compensation to perform work or render services to a business
enterprise or performs work or services generally regarded as domestic in
nature, these are nevertheless economic contributions. They are to be valued
by reference to the cost of similar services in the marketplace. Where, as here,
the man accepted the benefit of such services, he will not be heard to argue
that he did not need them and that their economic value should not be
considered as the woman's economic contributions to the joint accumulation
of property between them.
Pickens, 490 So. 2d at 876 (internal citation omitted). Testimony also indicated that Fannie
was the primary caregiver for the children. She prepared the family meals, laundered and
pressed the family’s clothes, and otherwise kept the house during the purported marriage.
The record supports the chancellor’s findings that Fannie’s domestic efforts enabled, or at
least assisted in allowing, Eddie to work outside the home as the primary breadwinner.
¶10.
Recognizing Fannie’s contributions to the accumulation of the couple’s assets, many
5
of which are held in his possession or exclusively titled in his name,2 Eddie argues that the
chancellor erred in ordering an equitable distribution because Fannie did not enter into the
marriage in good faith.
Specifically, Eddie cites to the supreme court’s holding in
Chrismond. There, the supreme court affirmed a chancellor’s equitable distribution of a
couple’s property where the putative wife had entered into the void marriage in good faith
and had substantially contributed to the accumulation of the couple’s assets. Chrismond, 211
Miss. at 757, 52 So. 2d at 629.
¶11.
The Chrismond court did not hold, however, that a showing of good faith is absolutely
required before a putative spouse may seek an equitable distribution of the property. In fact,
noting that some character of relief had often been granted to putative spouses in other
jurisdictions, the supreme court cited Werner v. Werner, 53 P. 127 (Kan. 1898), as “one of
the leading cases on the point.”
Werner not only does not mention good faith as a
prerequisite for recovery but embraces the opposite proposition, as the putative wife in that
case was aware that her prior marriage had not ended by death or divorce. Id. at 128.
¶12.
Instead, the court addressed the good faith issue twenty-five years later in Taylor v.
Taylor, 317 So. 2d 422 (Miss. 1975), and reached the opposite result that Eddie urges.
¶13.
In Taylor, the supreme court considered facts almost identical to Eddie’s allegations
in the case at bar – there was no question that Mrs. Taylor had entered a bigamous marriage
2
It is unclear from the record exactly what property was jointly titled and what
property was held exclusively by Eddie. Eddie’s position at trial was that he held exclusive
title to much, if not all, of the property; on appeal, he apparently concedes that some of the
property is jointly titled, specifically the marital home, a residential property in Quitman
County, Mississippi, and the two older automobiles.
6
without a good faith belief that her prior marriage had been dissolved by death or divorce.
After ending eighteen years of purported marriage, the chancellor ordered Mr. Taylor to pay
Mrs. Taylor monthly “support” for a period of three years. The supreme court affirmed that
decision, holding that equity permitted the chancellor to make such an award, which the court
compared to the equitable division it had authorized in Chrismond. Id. at 423. Crucially, the
court rejected a dissenting view that the purported wife was precluded from any recovery
because of her lack of good faith in entering into the marriage. Id. at 424 (Sugg, J.,
dissenting).
¶14.
Here, Eddie essentially offers three reasons why this Court should not follow Taylor.
First, he asserts that the holding there was not based on law or equity, but on “sympathy.”
This is plainly contradicted by the supreme court’s opinion in Taylor, which grounds its
decision in equity:
The facts in this case demonstrate without question that the chancellor did
what a decent regard for the sensibilities of humanity demanded. These people
lived together and shared the vicissitudes of life for eighteen years. The
separation cast her adrift just as surely as if she had been his lawful wife. The
chancellor appears to have decided that the strict letter of the law ought not to
require him to ignore that he was dealing with human beings. He did not make
the allowance as alimony but as support. He felt the man had an obligation,
and this Court is not disposed to reverse the manifestly just decree under the
particular circumstances.
Id. at 423.
¶15.
Second, Eddie cites the relatively small amount of the award in Taylor, seventy-five
dollars per month for three years, which he distinguishes from an equitable division of
property. As to the size of the award, it is unclear what property, if any, the Taylors owned
together or separately, or whether there was a great disparity between the parties as it
7
appeared in the instant case, so it is impossible or at least imprudent to use the size of the
awards as a basis for distinguishing these cases. As to the character of the award, it is true
that the supreme court’s opinion in Taylor is unclear as to exactly what the chancellor had
awarded, calling it “support.” However, any ambiguity as to Taylor’s holding has been
resolved in subsequent decisions of the court. In the 1986 Pickens decision, the supreme
court noted that the award of “support” in Taylor was simply “one means of effecting [an
equitable] property division.” 490 So. 2d at 875. Likewise, in 2004 the court in Nichols
noted: “In Taylor, this Court again held that a putative wife was entitled to the equitable
distribution of property upon separation.” 883 So. 2d at 557 (¶11).
¶16.
Eddie’s final argument, that the court’s split decision in Taylor is an outlier and that
the dissent in that case more accurately represents the law of the state, appears to be plainly
contradicted by subsequent decisions of the court. In Pickens, the court addressed a situation
where neither party could claim good faith – the parties divorced but resumed cohabitation
shortly thereafter, holding themselves out as a married couple and otherwise conducting
themselves as husband and wife for an additional twenty years and adding two children to
the family after the divorce.
490 So. 2d at 873.
Both the husband and the wife
unquestionably knew that they had no legal marriage, but the court nonetheless affirmed an
equitable distribution of the property obtained through their joint efforts. In doing so, the
court reaffirmed its holdings in Chrismond and Taylor. Its analysis, from which good faith
is conspicuously absent, is instructive:
Notwithstanding [that the legal relationship of husband and wife may
be created only in conformity with the procedures authorized by the statute law
of this state], upon permanent separation, our law authorizes and sanctions an
8
equitable division of property accumulated by two persons as a result of their
joint efforts. This would be the case were a common law business partnership
breaking up. It is equally the case where a man and woman, who have
accumulated property in the course of a non-marital cohabitation, permanently
separate.
Chrismond v. Chrismond, 211 Miss. 746, 52 So. 2d 624 (Miss. 1951)
is instructive. The facts of that case reflected that Lon and Mable Chrismond
had lived together for approximately ten years, only to discover that they were
not legally married because Lon Chrismond's prior marriage to another woman
had never been lawfully terminated. Upon the breakup of the relationship
between the Chrismonds, however, this Court held that Mable was
entitled to an equitable division of the property accumulated by
their joint efforts during the time they lived together as man and
wife.
211 Miss. 746, 52 So. 2d at 629.
This was so held, despite the fact that there existed between the two no legally
effective marriage. The Chrismond court then found as a fact that Mable
Chrismond had cared for Lon Chrismond and kept house for him, had assisted
him in the accumulation of property and had worked with him in his business.
The authority to order an equitable division of the property accumulated by the
Chrismonds through their joint efforts during the time they were living
together was held well within “the equity powers of the court.” 52 So. 2d at
629.
In Taylor v. Taylor, 317 So. 2d 422 (Miss. 1975) the parties had “lived
together and shared the vicissitudes of life for eighteen years.” 317 So. 2d at
423. No lawful marriage between the parties existed. Taylor recognized that
in such setting, and upon the permanent separation of the parties, alimony is
not allowable. On the other hand, the Taylor court recognized and reaffirmed
the rule of Chrismond authorizing award to the woman of
a share of the property accumulated by the joint efforts of the
parties during their relationship.
317 So. 2d at 423.
The Taylor court recognized that one means of effecting such a property
division was a directive that the man pay a fixed sum at periodic intervals for
a specified period of time, in that instance $75.00 per month for a period of 36
9
months. The argument that this was in effect an award of alimony, which
would not have been authorized because the parties were not married, was
correctly rejected.
Pickens, 490 So. 2d at 875 (footnote omitted). It bears mentioning that the Pickens court’s
rationale closely mirrors that of the Kansas Supreme Court’s 1898 decision in Werner, which
was relied upon by the Chrismond court. Both base a putative spouse’s right to recovery on
equitable principles, reflecting her contribution to the acquisition of the assets and
analogizing the dissolution of a void marriage to the dissolution of a business partnership.
Pickens, 490 So. 2d at 875; Werner, 53 P. at 128.
¶17.
Because we find that good faith is not required under Mississippi law to support an
equitable distribution of property acquired during a void marriage, this issue is without merit.
2.
¶18.
Ferguson Factors; Extent of the Award
In his remaining issue, Eddie argues that the chancellor erred in failing to consider the
familiar Ferguson guidelines, as outlined in Ferguson v. Ferguson, 639 So. 2d 921, 928
(Miss. 1994), in effecting an equitable division of the property.
¶19.
The chancellor, in her written opinion, made no express mention of Ferguson or its
specific factors. Strictly speaking, however, Ferguson on its own terms is applicable only
where the chancellor addresses the equitable division of “marital property” “incident to a
divorce.” Id. at 925. Furthermore, the supreme court has held that the chancellor is only
required to address those factors that are relevant to the case at hand, Weathersby v.
Weathersby, 693 So. 2d 1348, 1354 (Miss. 1997), and we have previously held that failure
to provide an express factor-by-factor analysis does not necessarily require reversal where
we are satisfied that the chancellor considered the relevant facts. Palmer v. Palmer, 841 So.
10
2d 185, 190 (¶18) (Miss. Ct. App. 2003).
¶20.
On appeal, Eddie argues that the chancellor failed to determine the value of certain
assets subject to equitable distribution, particularly Eddie’s retirement account and two of
the vehicles, the 1993 Chevrolet and the 1991 Mazda truck. As to the vehicles, it plainly
appears from the record that the chancellor did consider the value of the vehicles, noting that
neither vehicle was subject to a lien and that Eddie had valued them in his Rule 8.05 3
financial declaration at $2,500 and $900, respectively. She also noted testimony where the
older vehicles were described as high-mileage and unreliable. As to Eddie’s pension, the
chancellor noted that the only evidence as to its value was Eddie’s acknowledgment that it
currently paid out $1,962.63 per month. She acknowledged that no precise value had been
established, but she attributed this to Eddie’s refusal to disclose the retirement account on his
Rule 8.05 declaration and his purported inability to recall its value.
¶21.
Eddie also identifies three factors he alleges that the chancellor failed to consider in
rendering her judgment. First, he asserts that the chancellor failed to consider “the degree
to which [either] spouse has expended, withdrawn, or otherwise disposed of the marital
assets.” Ferguson, 639 So. 2d at 928. He fails, however, to identify any relevant evidence
concerning this factor that the chancellor failed to consider; in fact, Eddie expressly
acknowledges that there does not “appear to have been any evidence adduced on that point.”
Second, Eddie argues that the chancellor failed to consider his financial security and the
relative financial security of the parties after the distribution of property. Curiously, Eddie
asserts that this factor could not have been considered because the chancellor did not know
3
Uniform Chancery Court Rule 8.05.
11
the total cash value of Eddie’s pension or what it paid per month; but the latter was
established in his Rule 8.05 statement and by his testimony at trial. On our review of the
record, it appears that the chancellor considered all of the evidence offered at trial on this
point.
¶22.
Third, Eddie argues that the chancellor neglected to consider other factors that should
be considered in equity. See id. In particular, he asserts that the chancellor “ignored or
excused” Fannie’s bigamy. This proposition is also plainly without merit, as the chancellor’s
written opinion did address Fannie’s bigamy. The chancellor did, however, also consider
other relevant facts, particularly that Fannie was sixteen years of age when she married
Johnny Tate, and that Tate had abandoned his young family shortly thereafter. She also
noted that Eddie was unquestionably aware of Fannie’s prior marriage, if not that it was still
legally in effect, because he and Fannie had raised a child born to that marriage. The
chancellor also noted that Eddie could hardly claim in equity to be an “innocent” party to the
void marriage, as over its thirty-seven years he frequently subjected Fannie to physical and
emotional abuse; in fact, testimony indicated that Fannie had originally sought a divorce
because of Eddie’s abusive treatment, and that her disability stemmed from a “nervous
breakdown” she suffered after being stabbed in the eye during a particularly violent incident.
Fannie’s testimony in this respect was corroborated by each of the three children who
testified at the hearing.
¶23.
After a thorough review of the record, we are satisfied that the chancellor did not err
in effecting the equitable division.
¶24.
THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS
12
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE, P.J., CARLTON AND MAXWELL, JJ., CONCUR.
BARNES, J., CONCURS IN PART AND IN THE RESULT. IRVING, J., CONCURS
IN RESULT ONLY. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY ISHEE AND ROBERTS, JJ.
GRIFFIS, J., DISSENTING:
¶25.
Because I find error in the chancellor’s division of property in this case, I respectfully
dissent from the majority’s holding. Accordingly, I would reverse the chancellor’s judgment
and remand this case for further proceedings.
¶26.
The chancellor ruled that Fannie Cotton’s bigamy rendered the marriage void and
granted Eddie Cotton’s request for an annulment. Because Eddie and Fannie were never
legally married, Fannie is not entitled to the equitable distribution of property incident to a
divorce. In Ferguson v. Ferguson, 639 So. 2d 921, 925 (Miss. 1994), the supreme court
stated:
This Court has “long recognized that, incident to a divorce, the chancery court
has authority, where the equities so suggest, to order a fair division of property
accumulated through the joint contributions and efforts of the parties.” Brown
v. Brown, 574 So. 2d 688, 690 (Miss. 1990); Brendel v. Brendel, 566 So. 2d
1269, 1273 (Miss. 1990); Jones v. Jones, 532 So. 2d 574, 580-81 (Miss. 1988);
Clark v. Clark, 293 So. 2d 447, 450 (Miss. 1974). With this opinion, this
Court adopts guidelines for application of the equitable distribution method of
division of marital property.
The key concept in the equitable division of property is that the property be “marital
property” and that it be divided “incident to a divorce.”
¶27.
However, an exception exists because the equitable powers of the chancery court
allow an equitable division of property when the purported marriage, which the parties
13
entered in good faith, turns out to be a void marriage. Chrismond v. Chrismond, 211 Miss.
746, 757, 52 So. 2d 624, 629 (1951) (emphasis added). Thus, the question here is whether
Fannie entered into her void marriage with Eddie in good faith.
¶28.
In Chrismond, the husband and wife were formally married; however, when the
marriage began to break down, the husband revealed that he had never divorced his previous
wife. Id. at 750, 52 So. 2d at 625. The supreme court held that the wife, who believed that
she was lawfully married and had no knowledge of the husband's bigamy, was entitled to an
equitable division of property, stating:
We think that the equity powers of the court are sufficient to protect the rights
of the putative wife, where the supposed marriage which she entered into in
good faith turns out to be void, and that she is entitled to an equitable division
of the property accumulated by their joint efforts during the time they lived
together as man and wife.
Id. at 757, 52 So. 2d at 629 (emphasis added).
¶29.
The facts of this case are distinguishable from Chrismond. There, the wife had no
reason to believe that her marriage was void. She entered the marriage in good faith, and to
deny her an equitable distribution of property would have been a truly inequitable result. It
was the husband who knew his marriage was void. Here, however, Fannie knew that she had
been married to Johnny Tate. She also knew, or should have known, that she had not
acquired a divorce from Tate at the time she married Eddie. Fannie testified that she did not
get a divorce from Tate. The only evidence that she and Tate ever divorced was her
testimony that she received a call from Tate – after she had married Eddie – in which Tate
told her that he had gotten a divorce.
¶30.
I find the chancellor's ruling that Fannie entered the void marriage in good faith is
14
clearly erroneous, manifestly wrong, contrary to the law of this state and violates public
policy. The chancellor stated the following:
Mrs. Cotton appeared to be unaware that she was still married at the time of
her marriage to Mr. Cotton, but when questioned further, she indicated that she
became aware that her prior marriage had not been dissolved at some later
time. The court did notice that Mrs. Cotton was sixteen (16) years old when
she married Mr. Tate and only twenty-three (23) years old when she married
Mr. Cotton. As a mature adult now, she probably should have understood that
she should have been certain that she was divorced from Mr. Tate before
marrying Mr. Cotton, as should Mr. Cotton, but they were only 23 and 24
years old when they married, and they obviously did not fully appreciate the
importance of being certain that she was divorced before they married. . . . It
appears that the parties entered into their purported marriage in good faith.
There was no proof that Mrs. Cotton knew she was still married and concealed
that fact from Mr. Cotton. She was merely mistaken about the status of her
first marriage.
¶31.
The supreme court has held that: “All persons are presumed to know the legal effect
of their acts.” Crabb v. Wilkinson, 202 Miss. 274, 280, 32 So. 2d 356, 358 (1947). Fannie
testified that she did not obtain a divorce from Tate. She also testified that she knew nothing
about a divorce until after her marriage to Eddie. There is absolutely no evidence in the
record to show that Fannie was unaware of the requirement that she first be divorced from
her first husband before she could enter into a second marriage.
¶32.
Even if this were the case, and even if she “did not fully appreciate the importance of
being certain that she was divorced,” such reasoning used as the basis to support an equitable
distribution of property as if the parties had entered a legal marriage is contrary to the clear
public policy of the State of Mississippi in favor and support of lawful marriage. To allow
an equitable distribution as the chancellor and the majority have done, in effect, sanctions
Fannie's act of bigamy by giving her the same rights to marital property as a party dissolving
15
a valid marriage. Public policy requires that, in order to avoid the creation of a bigamous
relationship, a person should be sure he or she is divorced before attempting to enter a
subsequent marriage.
¶33.
On one occasion, in a split decision, the supreme court awarded support to a wife who
purported to marry her second husband before obtaining a divorce from her first husband.
Taylor v. Taylor, 317 So. 2d 422, 422-23 (Miss. 1975). The supreme court made it clear that
the ruling was not based on law or equity but on the basis of sympathy, stating:
The facts in this case demonstrate without question that the chancellor did
what a decent regard for the sensibilities of humanity demanded. . . . The
chancellor appears to have decided that the strict letter of the law ought not to
require him to ignore that he was dealing with human beings.
Id. at 423. Further, the wife was only awarded $75 per month for three years. Id. at 422.
As this Court held in Nichols v. Funderburk, 881 So. 2d 266, 270 (¶15) (Miss. Ct. App.
2003): “Granting of monthly support for a limited period of time is not the same as equitable
division of property . . . .”
¶34.
The majority holds that there is no requirement of good faith in order for the
chancellor to execute an equitable distribution of this couple’s property; instead, it is simply
one factor to be considered.4 However, it is clear from the chancellor’s order that this finding
4
The majority states that the Chrismond court did not hold that a showing of good
faith is absolutely required for a putative spouse to seek an equitable distribution. As basis
for this statement, the majority finds that the Chrismond decision cited as a “leading case”
Werner v. Werner, 53 P. 127 (Kan. 1898), which does not mention a good-faith requirement.
However, a reading of the Chrismond decision reveals that Werner was cited for the
proposition that the rule prohibiting an alimony award to a putative spouse does not preclude
an equitable distribution of property. Chrismond, 211 Miss. at 758, 52 So. 2d at 629. The
Chrismond court further states the good-faith requirement must be satisfied by the person
seeking an equitable distribution of property, citing both 35 Am. Jur. Marriage § 53 and
16
of good faith on the part of Fannie was the basis for the property division pursuant to the
annulment. The chancellor found that Fannie was merely young when she married Eddie;
therefore, she did not appreciate the requirement that she be divorced from her first husband
before she married Eddie. The chancellor concluded: “It appears that the parties entered into
their purported marriage in good faith. There was no proof that Mrs. Cotton knew she was
still married and concealed that fact from Mr. Cotton. She was merely mistaken about the
status of her first marriage.” It was only after making this finding of good faith that the
chancellor proceeded to consider the factors for the equitable distribution of the property: the
length of the purported marriage, the contribution of each spouse, fault, and etc.
¶35.
I find that the chancellor erred in holding that Fannie entered into the void marriage
in good faith. Because her bigamous relationship rendered her marriage to Eddie void, she
is not entitled to an equitable distribution of property. However, she is entitled to her share
of the property owned by her and Eddie as joint tenants. Accordingly, I would reverse the
judgment of the chancellor and remand this case for the chancellor to distribute the parties’
joint property.
ISHEE AND ROBERTS, JJ., JOIN THIS OPINION.
Krauter v. Krauter, 190 P. 1088 (Okla. 1920), for this specific proposition. Id. at 757-59,
52 So. 2d at 629.
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