Bryan Kent Hawkins v. Suzanne A. Hawkins
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-01774-COA
BRYAN KENT HAWKINS
APPELLANT
v.
SUZANNE A. HAWKINS
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
9/30/2008
HON. SEBE DALE, JR.
LAMAR COUNTY CHANCERY COURT
TIMOTHY M. FARRIS
RAY T. PRICE
CIVIL - DOMESTIC RELATIONS
REQUEST FOR PARTITION DENIED
AFFIRMED – 3/16/2010
BEFORE KING, C.J., BARNES AND ROBERTS, JJ.
BARNES, J., FOR THE COURT:
¶1.
Bryan Hawkins appeals the decision of the Chancery Court of Lamar County which
denied his request to partition real property jointly titled to him and his former wife, Suzanne
Hawkins. Bryan raises two issues: (1) whether the chancellor erred in ruling that the
property settlement agreement implied that Bryan had “contracted his right of partition
away” when he granted Suzanne the use and occupancy of the parties’ homestead, and (2)
even if the chancellor was correct in finding Bryan contracted away his right to partition,
whether the chancellor should have found that the grant of “the use and occupancy of the
homestead” by Suzanne was unreasonable. Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2.
In March 1988, a final judgment of divorce based on irreconcilable differences was
entered in the Chancery Court of Lamar County for Bryan and Suzanne Hawkins, ending
more than eighteen years of marriage. Attached to the judgment was an “Agreement and
Property Settlement” (Agreement) which stated the parties had “reached a full and complete
settlement as to all matters.” The Agreement provided for child custody for the couple’s two
children (who were minors at that time), child support, and permanent alimony for Suzanne
of $600 per month until her death or remarriage. Regarding the property settlement,
paragraph X of the Agreement awarded Suzanne “the use and occupancy of the homestead,”
with Bryan paying the monthly mortgage installments, which included taxes and insurance
on the homestead.
¶3.
Previously, Bryan filed two petitions to modify the final judgment: one in November
1995 and one in August 1998. The 1995 petition requested that the homestead be sold as the
children were no longer minors, with Bryan to receive all of the proceeds from the sale.
Suzanne answered with a counter-petition for contempt of court due to Bryan’s alleged
failure to pay certain expenses and alimony ordered by the divorce judgment. In 1998, Bryan
filed another “Complaint for Modification.” Suzanne duly answered and counter-petitioned
for judicial conveyance of the property. However, in May 2005, the chancery court entered
an order of dismissal without prejudice for lack of prosecution of the action.
¶4.
In February 2008, Bryan filed the instant petition for modification, wherein he
requested that Suzanne’s alimony be terminated and the marital home be sold, with his
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receiving an equitable division of any resulting equity. Before Suzanne filed a formal
response to Bryan’s complaint, the parties appeared before the chancellor, who opined that
the ultimate resolution of the case involved a question of law. Accordingly, the chancellor
requested that the parties agree to the issues before the court, which they determined to be:
(1) does the chancery court have authority to partition the property in question; and (2) did
paragraph X of the Agreement create a life estate in the property in favor of Suzanne. The
parties subsequently submitted memoranda of law on these issues.
¶5.
In October 2008, the chancery court ruled that it did have the authority to partition the
property, and paragraph X did not create a life estate for Suzanne. Further, the chancery
court ruled in favor of Suzanne, stating that the partition could not be granted because an
agreement not to partition the property was implied, since there was no termination clause
in the Agreement. Bryan timely appealed.
STANDARD OF REVIEW
¶6.
This Court’s standard of review regarding a chancellor’s determinations is well
established. The chancellor’s findings will not be disturbed on appeal unless the chancellor
was “manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.”
Nichols v. Funderburk, 883 So. 2d 554, 556 (¶7) (Miss. 2004) (citing Tinnin v. First United
Bank of Miss., 570 So. 2d 1193, 1194 (Miss. 1990)).
However, the chancellor’s
interpretation and application of law is reviewed de novo. Id. (citing Tucker v. Prisock, 791
So. 2d 190, 192 (¶10) (Miss. 2001)).
ANALYSIS
¶7.
Paragraph X of the Agreement provides the following:
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That Suzanne A. Hawkins shall be awarded the use and occupancy of the
homestead of the parties, together with the furniture, furnishings and
appliances contained therein, with the exception of the personal belongings of
Bryan Kent Hawkins, and Bryan Kent Hawkins agrees to satisfy and pay the
monthly mortgage installments on the homestead, it being understood that
taxes and insurance on the homestead are included in the monthly mortgage
payment.
The chancellor found the terms of the award unambiguous and no language of limitation in
the Agreement, and we find no error in this regard. For the two stipulated issues, the
chancellor ruled that Mississippi Code Annotated section 11-21-3 (Rev. 2004) grants the
court the right to partition property “held by joint tenants, tenants in common, or
coparceners,” and paragraph X did not create a life estate in favor of Suzanne. However, the
chancellor went on to explain that he found the core issue, which was not raised by either
party, is whether there is a right to partition the property. He concluded that an agreement
between the parties not to partition is implied, and Bryan is estopped from asserting that
right.
¶8.
Bryan argues that the chancellor erred, as a matter of law, in ruling that paragraph X
of the Agreement implied that Bryan “contracted his right of partition away” when he
granted Suzanne “the ‘use and occupancy of the homestead’ without limitation.” Bryan
contends that the plain language of the Agreement and the parties’ intent was not to limit the
right to partition; therefore, the chancellor should have granted Bryan the partition. Bryan
concludes that the chancellor improperly “rewrote” the Agreement by ruling that an
agreement not to partition was implied.
¶9.
We disagree with Bryan’s contentions. The chancellor relied upon Weeks v. Weeks,
403 So. 2d 148, 149 (Miss. 1981), which held that when a divorce settlement stated that the
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former husband had “the exclusive use, possession and control of the home owned by the
parties,” the former wife, in consenting to the agreement, gave up any right to partition the
jointly owned property, unless the parties agreed to sell the property. For authority, the
Weeks court cited Weiner v. Pierce, 203 So. 2d 598, 603 (Miss. 1967), which stated:
Although the statute gives joint owners the right to have their property
partitioned, the right is not one that cannot be restricted or limited for a
reasonable length of time by contract, will, or deed. It is a well settled general
rule that the right of partition may be limited by the provisions of the deed
under which the parties claim and that joint owners may contract that their
property will not be partitioned for a reasonable length of time.
(Emphasis added.) Importantly, the “general rule is well settled that partition will not be
granted at the suit of one in violation of his own agreement, since the agreement operates as
an estoppel against the right to partition.” Weeks, 403 So. 2d at 149 (quoting 68 C.J.S.,
Partition § 44). Finally, the right not to partition may be express or implied. Id. It is a longstanding rule that property settlements are 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, 932-33 (Miss. 1986) (citing In re Estate
of Kennington, 204 So. 2d 444, 449 (Miss. 1967)); see also McManus v. Howard, 569 So.
2d 1213, 1215 (Miss. 1990) (agreements created during divorce proceedings are contracts
“made by the parties, upon consideration acceptable to each of them, and the law will enforce
them.”).
¶10.
The chancellor noted the homestead in this case is jointly titled to Bryan and Suzanne.
Section 11-21-3 gives the chancellor the right to partition the property of joint tenants;
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however, as stated in Weiner, the right to partition can be limited or restricted for a
reasonable length of time. The Agreement is a binding, unambiguous contract. Because
there is no mention in the Agreement of any limitation on Suzanne’s “use and occupancy of
the homestead,” either express or implied, we agree with the chancellor in our de novo
review of the case that it is implied that the parties agreed not to partition the property. In
reading the unambiguous contract, we conclude, as did the chancellor, that the absence of a
termination provision means that no termination of the terms was intended.
As the
chancellor stated, partitioning the property would be in violation of the intent of the
Agreement; thus, Bryan is estopped from doing so.
¶11.
Bryan argues that the chancellor erroneously relied on Weiner, reasoning that if the
Agreement is not ambiguous, and there is no limiting language restricting the right to
partition, the chancellor cannot find that the parties “contracted away” the right to partition.
We find this argument wholly at odds with the unambiguous language of the Agreement,
which states that Suzanne “shall be awarded the use and occupancy of the homestead.”
Further, our supreme court has held otherwise in similar situations.
¶12.
In Sartin v. Sartin, 405 So. 2d 84, 84 (Miss. 1981), during divorce proceedings, the
former wife was “awarded exclusive use and possession” of the jointly-owned marital home.
Shortly thereafter, the former husband filed a bill for partition, claiming that the property was
incapable of partition in kind, and he had an absolute right to partition under section 11-21-3.
Id. at 85. Citing Weeks as authority, the Sartin court held the former husband was not
allowed to partition the property and have the proceeds divided between himself and his
former wife because it was in derogation of the decree, which gave the former wife the right
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to have the exclusive possession of the property as long as she remained unmarried. Id. at
86.
¶13.
In Rushing v. Rushing, 414 So. 2d 429, 429 (Miss. 1982), the supreme court affirmed
a former husband’s preclusion from partitioning real estate owned by him and his former
wife as tenants in common. The settlement agreement allowed the wife to reside in “and
retain possession of” the marital homestead, which was situated on thirty-four acres of land.
Id. One year later, the former husband filed a petition seeking to partition the thirty-four
acres of land pursuant to section 11-21-3. Id. at 430. Citing Weeks and Sartin, the supreme
court held that such partition would have the effect of annulling the former wife’s right to
occupy the homestead. Id.
¶14.
Accordingly, we find no error in the chancellor’s reliance on Weiner, which is based
upon the same rationale as Weeks and its progeny.
¶15.
Bryan also argues that even if the chancellor was correct in finding Bryan “contracted
away” his right to partition, the chancellor erred in denying the partition because the
limitation on partition has been extended for an unreasonable length of time, contrary to the
rule stated in Weeks and Weiner. Here, the divorce and Agreement were entered more than
twenty years ago, and the parties’ children are now adults. Again, we find Bryan’s argument
is without merit. In Weeks, the supreme court was not called upon to determine what would
be a “reasonable time” for a party to have the full use and occupancy of the homestead in this
situation and, therefore, gave no guideline for what would constitute a “reasonable” time,
except to state that use and occupancy, without partition, did “not extend to a time that
clearly could be said to be unreasonable.” Weeks, 403 So. 2d at 149. Instead, the court held
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the “reasonableness” determination would be made on a case-by-case basis. Id.
¶16.
As in Weeks, here, it is presumed that Bryan knew what he was agreeing to in the
plain, unambiguous language of the property settlement, and there is no evidence to the
contrary. We find this situation is analogous to the situation where a decedent leaves his/her
widow/widower property. Mississippi Code Annotated section 91-1-23 (Rev. 2004) exempts
property from partition or sale for partition during the widowhood “as long as it is occupied
or used by the widow [or widower] unless she [or he] consent.” The Agreement here granted
Suzanne the use and occupancy of the former marital homestead, without limitation as to
time.
¶17.
We conclude the chancery court did not err in denying Bryan’s petition to partition
the homestead property.
¶18. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS
AND MAXWELL, JJ., CONCUR.
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