Frank A. Segree, III v. Susan B. Segree
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-00757-COA
IN THE MATTER OF THE DISSOLUTION OF
MARRIAGE: FRANK A. SEGREE, III
APPELLANT
v.
SUSAN B. SEGREE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEE
11/24/2008
HON. VICKI R. BARNES
WARREN COUNTY CHANCERY COURT
R. LOUIS FIELD
MARK W. PREWITT
CIVIL - DOMESTIC RELATIONS
DIVORCE GRANTED AND WIFE
AWARDED CUSTODY OF MINOR
CHILDREN, PERMANENT PERIODIC
ALIMONY, EXCLUSIVE USE OF MARITAL
HOME, AND CHILD SUPPORT
AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 11/02/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, P.J., BARNES AND ROBERTS, JJ.
BARNES, J., FOR THE COURT:
¶1.
Frank Segree III and Susan Segree were divorced on September 15, 2008. In the
divorce action, Susan was awarded certain personal property, the exclusive use and
possession of the marital home, child support, and periodic permanent alimony. Frank
appeals, claiming that the chancellor erred in her distribution of the marital assets and her
award of child support and periodic permanent alimony to Susan. We affirm the chancery
court’s judgment ordering Frank to pay one daughter’s medical insurance and expenses and
both daughters’ credit cards, and we affirm the award of attorney’s fees to Susan. However,
as the chancellor’s award of marital assets was not supported by specific findings of fact, we
reverse the chancellor’s judgment as it relates to the non-stipulated marital assets, alimony,
and child support, and we remand the case for further proceedings in accordance with this
opinion.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶2.
Frank and Susan were married on June 4, 1983, in Franklin County, Florida. The
couple moved to Vicksburg, Mississippi, where they lived for approximately sixteen years.
Three children were born of the marriage: Robert Segree, who is legally emancipated, and
twin daughters, Rebecca and Jacquelyn Segree, whose date of birth is June 6, 1989.1 All
three children still live in the marital home.
¶3.
The couple had marital issues during their last years of marriage that resulted in both
parties filing divorce complaints, which were later withdrawn. Finally, Frank told Susan that
he was unhappy in the marriage, and the couple separated on June 12, 2007. Later that same
month, Frank began dating another woman, Yolanda Davidson, and he occasionally stayed
with Davidson on weekends when he was home from working in Memphis. Susan, who was
forty-four years old at the time of the separation, is a high-school graduate, in good health,
1
Since this action, the two daughters have become emancipated. See Miss. Code
Ann. 93-11-65(8)(a)(i) (Supp. 2009).
2
and works full time for Citi Financial. Frank, who was forty-one years old at the time of
separation, has a G.E.D. and is a master pilot employed by the United States Corp of
Engineers.
¶4.
On July 17, 2007, Susan filed a complaint for divorce on the grounds of adultery
and/or habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences.
A temporary order was entered by the chancery court on November 14, 2007, requiring
Frank to pay all debts normally paid by him and $100 per month in child support. On June
16, 2008, Susan filed an amended complaint for divorce, with permission from the chancery
court, which included a request for separate maintenance. A hearing on the divorce
complaint was held on July 1, 2008.
¶5.
At the hearing, the parties stipulated that Frank would receive two automobiles – a
2005 Mercury and a 2007 Dodge, a motorcycle, and a boat plus a motor. The parties also
stipulated to the value of the marital home, the value of the couple’s retirement accounts, and
that Susan would receive the household furnishings and lawnmower. The chancery court
entered its final judgment on September 15, 2008, granting Susan a divorce on the ground
of adultery. Frank was awarded the stipulated items of personal property, along with a travel
trailer. Frank was also ordered to continue to pay Rebecca’s and Jacquelyn’s individual
credit-card debt “in the amounts and manner he has previously provided,” and to pay $84,200
in outstanding debt on the marital home from his thrift savings plan (TSP). The judgment
also awarded Susan: (1) permanent care and custody of her minor children, Rebecca and
Jacquelyn, (2) ability to claim both minor children for tax purposes, (3) monthly child
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support of $825 for Rebecca, (4) use and ownership of the cemetery lots, (5) one-half of
Frank’s retirement account (total value of $138,000), (6) her retirement account (total value
of $20,868), (7) sole use and ownership of the marital home (valued at $100,000), (8) onehalf of the remainder of Frank’s TSP, (9) $500 in monthly permanent periodic alimony (to
commence upon cessation of child-support payments), and (10) $4,500 in attorney’s fees.
Susan also received various personalty such as a late-model sedan and a Kubota tractor.
¶6.
Susan and Frank each filed motions for reconsideration. Susan’s motion noted issues
with federal compliance as it related to Frank’s TSP and complained that the court’s
judgment failed to address medical insurance and payment of medical bills for the minor
child or children. Frank’s motion argued that the chancery court’s division of the marital
assets, and awards of child support, alimony, and attorney’s fees, were erroneous. On
November 24, 2008, the chancery court, on its own motion, amended its judgment and
ordered Frank to provide medical insurance and costs for Rebecca, awarded a portable
generator to Frank, and awarded Susan ownership of certain tractor tires. On May 1, 2009,
the chancellor entered an order overruling Frank’s and Susan’s motions for reconsideration.
Frank timely appeals the denial of his motion.
¶7.
We affirm the chancery court’s order requiring Frank to pay Rebecca’s medical
insurance and expenses and both daughters’ credit-card debts, and we affirm the award of
attorney’s fees to Susan. However, we find that the chancellor failed to provide the
appropriate Ferguson test in the award of marital assets and reverse the judgment as it
pertains to the equitable distribution of marital assets, the award of permanent periodic
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alimony, and the award of child support for Rebecca and remand for further proceedings
consistent with this opinion.
STANDARD OF REVIEW
¶8.
This Court “will not disturb a chancellor’s judgment when supported by substantial
evidence unless the chancellor abused his discretion, was manifestly wrong, clearly
erroneous, or an erroneous legal standard was applied.” Benal v. Benal, 22 So. 3d 369, 372
(¶4) (Miss. Ct. App. 2009) (quoting Chapel v. Chapel, 876 So. 2d 290, 292 (¶8) (Miss.
2004)). If the chancellor’s findings are supported by substantial evidence, then we will
affirm. Minter v. Minter, 29 So. 3d 840, 850 (¶36) (Miss. Ct. App. 2009) (citation omitted).
I.
Whether the chancery court erred in its allocation and division of
marital assets and its award of permanent alimony and child
support.
A.
¶9.
Marital Assets
Frank contends that the chancellor’s allocation of the marital assets, specifically the
award of the marital home, was in error. When determining the equitable distribution of
marital assets, a chancery court must review the “well-known factors established by
Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994).” Smith v. Smith, 994 So. 2d 882,
885 (¶9) (Miss. Ct. App. 2008). Those factors are:
(1) contribution to the accumulation of property, (2) prior disposition of or
distribution of assets, (3) market and emotional value of assets subject to
distribution, (4) the value of non-marital assets, (5) taxes and other economic
consequences of the proposed distribution, (6) the extent to which property
division can eliminate the need for alimony, (7) the needs of the parties, and
(8) any other equitable factors.
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Smith, 994 So. 2d at 885-86 (¶9). Here, although it does appear that the chancellor’s
judgment awarded Susan a significantly greater portion of the marital assets, this is not
necessarily an abuse of discretion.
“[E]quitable distribution does not require equal
distribution.” Morris v. Morris, 5 So. 3d 476, 492 (¶39) (Miss. Ct. App. 2008) (citing
Bresnahan v. Bresnahan, 818 So. 2d 1113, 1122 (¶11) (Miss. 2002)).
¶10.
However, “[t]he failure to consider all applicable Ferguson factors is error and
mandates reversal.” Lowrey v. Lowrey, 25 So. 3d 274, 286 (¶29) (Miss. 2009). If the
chancellor fails to provide “specific findings of fact and conclusions of law” in regard to the
Ferguson factors, then the case should be reversed and remanded for such findings of fact.
Johnson v. Johnson, 823 So. 2d 1156, 1161 (¶12) (Miss. 2002); see also Heigle v. Heigle,
771 So. 2d 341, 348 (¶21) (Miss. 2000) (reversed and remanded for further findings as “the
chancellor made no conclusions of law to support the division of the marital estate.”); Baker
v. Baker, 807 So. 2d 476, 480 (¶13) (Miss. Ct. App. 2001) (reversed and remanded as
chancellor’s conclusory statements regarding contributions to the marriage, and the statement
that he used the Ferguson factors, were not sufficient for the appellate court to understand
factors considered in the chancellor’s determination).
¶11.
In the chancellor’s final judgment, there are no findings of fact regarding the
distribution of the non-stipulated marital assets.
The court merely stated that it had
“considered the testimony of witnesses, exhibits, and the law applicable thereto[.]” The
chancellor does not even refer to Ferguson and provides no analysis or reasoning for the
distribution and awards set forth in the judgment. A chancery court’s failure “to specifically
6
address these issues on the record deprives an appellate court of the information necessary
to undertake a meaningful review of the chancellor’s decision to determine whether an abuse
of discretion has occurred that would require reversal.” Baker, 807 So. 2d at 479 (¶12)
(citing Kilpatrick v. Kilpatrick, 732 So. 2d 876, 881 (¶19) (Miss. 1999)).
¶12.
Susan contends that both parties “stipulated as to all marital assets and their value”;
therefore, a Ferguson analysis was not necessary. However, the parties merely stipulated as
to majority of the personal property and the values of the marital home and retirement
accounts. They did not stipulate as to the equitable distribution of the marital home,
retirement accounts, or the tractor. The chancery court still had a duty to examine the marital
property at issue and make a factual determination, using Ferguson, on the equitable
distribution of those assets. This she failed to do on the record. Accordingly, as it pertains
to the distribution of the marital assets, we must reverse the chancellor’s judgment and
remand the case for specific findings of fact under Ferguson.
B.
¶13.
Alimony
The chancery court awarded Susan $500 in monthly periodic permanent alimony,
which was to commence only upon the cessation of child support to Rebecca upon her
emancipation. “Generally, permanent alimony should be considered if one spouse is left with
a deficit after the division of marital assets.” Elliott v. Elliott, 11 So. 3d 784, 786 (¶8) (Miss.
Ct. App. 2009). In assessing the fairness of the alimony award, we must consider the overall
result “rather than a separate assessment of the different issues.” Baker, 807 So. 2d at 481
(¶17) (citing Turpin v. Turpin, 699 So. 2d 560, 564-65 (¶16) (Miss. 1997)). “Alimony and
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equitable distribution are distinct concepts, but together they command the entire field of
financial settlement of divorce. Therefore, where one expands, the other must recede.”
Daniels v. Daniels, 950 So. 2d 1044, 1047 (¶10) (Miss. Ct. App. 2007) (quoting Lauro v.
Lauro, 847 So. 2d 843, 849 (¶13) (Miss. 2003)). The purpose of “equitable distribution is
to alleviate the need for alimony.” Elliott, 11 So. 3d at 786 (¶8) (citing Ferguson, 639 So.
2d at 929). Thus, when a case is remanded for further consideration of the division of marital
assets, this Court must also remand on the issue of alimony as the “proper distribution of the
parties’ assets and debts may affect the amount of alimony ultimately awarded[.]” Fitzgerald
v. Fitzgerald, 914 So. 2d 193, 198 (¶¶26-27) (Miss. Ct. App. 2005) (citing Lauro, 847 So.
2d at 850 (¶17)). Accordingly, we must reverse and remand on this issue as well.
¶14.
Furthermore, the chancellor failed to make specific findings of facts under Armstrong
v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993), in its award of periodic alimony. While
this is not necessarily fatal to the consideration of an award of periodic alimony on appeal,
we would recommend on remand that if the chancellor determines that periodic alimony is
warranted, findings of fact should be provided to support the award. See Carroll v. Carroll,
976 So. 2d 880, 888 (¶18) (Miss. Ct. App. 2007) (“[w]hile an appellate court will affirm an
award of alimony without a complete recitation on the record of an Armstrong analysis
enunciating each factor, we must reverse if it is clear no such analysis occurred, or if the
information in the record does not support a chancery court’s findings.”)
C.
Child Support, Medical Insurance, Payment of Medical Bills
and Credit Card Debt
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¶15.
Frank asserts that it was an abuse of discretion to order him to pay support for
Rebecca, as she was the same age (nineteen years old), education level, and employment
level as her sister, Jacquelyn, who was evidently considered by the chancellor to be
emancipated as no child support was awarded on her behalf. Frank claims that Rebecca was
employed full time and had her own car and bank account. Furthermore, neither daughter
graduated from high school, and both daughters no longer attended school. There was also
no testimony that either daughter was going to pursue a traditional college education.
¶16.
“When reviewing child support awards, this Court examines the record to determine
whether the chancellor’s award is supported by sufficient evidence.” Parker v. Miss. Dep’t.
of Human Servs., 827 So. 2d 18, 19 (¶3) (Miss. Ct. App. 2002) (citing Powell v. Powell, 644
So. 2d 269, 275 (Miss. 1994)). It was undisputed that Jacquelyn had maintained a full-time
job as a sales clerk for the previous year and one-half, although she was only making
minimum wage. As to Rebecca’s employment status, the testimony reflects that Rebecca had
two jobs: she had just started working at Klondyke’s the day prior to the hearing, making
minimum wage, and she had part-time work on the weekends at the local skating rink. Susan
claimed that Rebecca was not working full time at Klondyke’s. When questioned upon
cross-examination, she stated:
A.
[Rebecca] started yesterday at Klondyke’s.
Q.
Full-time?
A.
I don’t know that it’s full-time.
....
9
She told me that she was going to work when she was needed.
I wouldn’t call that full-time.
Frank, however, refuted this testimony, claiming that Rebecca was working full time at
Klondyke’s. He said that, to his knowledge, her work schedule was “six days a week from
10:30 to 6:30 every evening for fifty dollars a day.”
¶17.
The chancellor made no conclusions or findings of fact to explain the reasoning for
considering Jacquelyn emancipated and Rebecca a minor. Mississippi Code Annotated
section 93-5-23 (Supp. 2006) states that the duty to support a child “terminates upon the
emancipation of the child. The court may determine that emancipation has occurred pursuant
to [s]ection 93-11-65.” 2 Mississippi Code Annotated section 93-11-65(8)(a) (Supp. 2006)
also states that “[t]he duty of support of a child terminates upon the emancipation of the
child.” Further, the pertinent part of subsection 8(b)(i) states that “the court may determine
that emancipation has occurred and no other support obligation exists when the child . . .
[d]iscontinues full-time enrollment in school having attained the age of eighteen (18) years,
unless the child is disabled[.]” Miss. Code Ann. § 93-11-65(8)(b)(i) (Supp. 2006). Prior to
the 2006 amendment to this statute, the section provided that emancipation has occurred
when the child “[d]iscontinues full-time enrollment in school and obtains full-time
employment prior to attaining the age of twenty-one (21) years[.]” (Emphasis added).
However, this prior version is not applicable to our present case as the final judgment was
2
This portion of statute was amended in 2006. Previously, the statute specifically
listed the factors in determining whether emancipation had occurred. However, the current
amended statute is the one applicable to this case.
10
not entered until September 15, 2008. Thus, Frank is correct; the chancery court had the
discretion to consider Rebecca emancipated, without having to consider whether she was
employed full time. But, the chancellor also had the discretion to take into account that
Rebecca had just starting work and was only earning minimum wage.
¶18.
We are somewhat perplexed with this unique award of child support as it relates to
the award of alimony. Susan’s alimony was to start only when the child support for Rebecca
ceased, which makes us question whether a portion of the $825 monthly child support would
be considered alimony. “Child support payments are for the benefit of the child, not the
recipient parent.” Andres v. Andres, 22 So. 3d 314, 319 (¶18) (Miss. Ct. App. 2009) (quoting
Strack v. Sticklin, 959 So. 2d 1, 6 (¶15) (Miss. Ct. App. 2006)). Yet, there is nothing in the
judgment to explain the chancery court’s reasoning for structuring the awards in this manner.
¶19.
Also, this Court must consider child support collectively, along with equitable division
of marital assets and the periodic alimony. The supreme court held in Lauro, 847 So. 2d at
848-49 (¶13), that “[a]ll property division, lump sum or periodic alimony payment, and
mutual obligations for child support should be considered together.” Consequently, we
reverse and remand on the issue of the child-support award.
¶20.
We find no error in the chancellor’s order for Frank to pay for Rebecca and
Jacquelyn’s credit-card debt and medical expenses for Rebecca. At the hearing, upon crossexamination, Frank testified that he did not object to paying the girls’ medical insurance and
expenses, stating:
Q.
You intend to maintain the two girls on your medical insurance?
11
A.
Absolutely.
Q.
And you’ll pay the medical bills that are not covered? You need to
answer aloud[.]
A.
Yes.
Frank already had given Rebecca and Jacquelyn credit cards for their expenses since he
worked out of town; the girls merely had to contact Frank and let him know approximately
how much they had spent. This arrangement had been in place for approximately two years.
Frank testified at the hearing that he did not mind continuing to help the girls with their
expenses, stating:
Q.
You’ve attributed two hundred and fifty dollars a month for both of
your two girls or is that two fifty per child?
A.
It’s whatever the girls need a month, Mr. Prewitt. I don’t care if it’s
four thousand, if that’s what it takes.
Q.
Okay. Then you acknowledge that your children still have current
needs and need some kind of support or else you wouldn’t be doing it,
Frank?
A.
Correct. And I’ll also acknowledge that I want them to be full and
gainfully employed and be productive citizens; correct.
Thus, we find that it was not an abuse of discretion for the chancellor to order Frank to pay
for Rebecca’s medical expenses, medical insurance, and both daughter’s credit-card debt and
affirm on this issue.
II.
¶21.
Whether the chancellor erred in awarding Susan attorney’s fees.
The chancellor ordered Frank to pay $4,500 to Susan for attorney’s fees. If the party
requesting a divorce “establishes an inability to pay[,]” it is appropriate to award attorney’s
12
fees. Stewart v. Stewart, 2 So. 3d 770, 776 (¶18) (Miss. Ct. App. 2009) (citing Gray v. Gray,
745 So. 2d 234, 239 (¶26) (Miss. 1999)). “As the issue of whether to award attorney’s fees
in a divorce case is a discretionary matter left to the chancellor, this Court is ‘reluctant to
disturb’ such a finding.” Id. (citing Young v. Young, 796 So. 2d 264, 268 (¶11) (Miss. Ct.
App. 2001)).
¶22.
This Court has stated that in cases where we reverse and remand “for the chancellor
to make specific findings of fact and conclusions of law to support the equitable division of
assets and the award of alimony, the Lauro decision also requires that we remand to allow
the chancellor an opportunity to reconsider the award of attorney’s fees.” Gray v. Gray, 909
So. 2d 108, 113 (¶22) (Miss. Ct. App. 2005) (citing Lauro, 847 So. 2d at 850 (¶18)). “On
remand, the chancellor may indeed revisit the award of attorney’s fees.” Id. However,
although Frank claims that there was no finding by the chancellor that Susan was financially
unable to pay, there was clear evidence presented that Susan was unable to pay the attorney’s
fees and that there was a “disparity in the relative financial positions of the parties[.]” See
Owen v. Owen, 22 So. 3d 386, 393 (¶25) (Miss. Ct. App. 2009) (citation omitted). Frank’s
income was significantly greater than Susan’s, and he was the one who had left the marriage.
Therefore, we find that Frank’s argument lacks merit and affirm the chancellor’s award of
attorney’s fees to Susan.
III.
¶23.
Whether the Court should award attorney’s fees to Susan on
appeal.
In her brief to this Court, Susan included a motion requesting the payment of her
13
attorney’s fees upon appeal. Attorney’s fees on appeal are generally awarded “in the amount
of one-half of what was awarded in the lower court.” Scurlock v. Purser, 985 So. 2d 362,
365 (¶9) (Miss. Ct. App. 2008) (quoting Makamson v. Makamson, 928 So. 2d 218, 222 (¶18)
(Miss. Ct. App. 2006)). “But ultimately, the decision whether to award attorney’s fees on
appeal is discretionary with this Court.” Howard v. Howard, 968 So. 2d 961, 980 (¶53)
(Miss. Ct. App. 2007) (citing Riddick v. Riddick, 906 So. 2d 813, 829 (¶52) (Miss. Ct. App.
2004)).
¶24.
We are also “precluded from considering the issue” if no authority is cited “for
entitlement to attorney’s fees for defending an appeal.” Larue v. Larue, 969 So. 2d 99, 11213 (¶45) (Miss. Ct. App. 2007) (citing Lauro, 847 So. 2d at 851 (¶21)).
Nor has Susan
provided this Court evidence of the fees charged by her attorney or the work involved in this
appeal. See Monroe v. Monroe, 745 So. 2d 249, 253 (¶18) (Miss. 1999). Moreover, as we
are reversing on the issues of equitable distribution of marital assets, alimony, and child
support, we decline to award attorney’s fees to Susan for her appeal.
CONCLUSION
¶25.
We affirm the chancery court’s judgment ordering Frank to pay Rebecca’s medical
insurance and expenses and both daughters’ credit-card debt, and we affirm the award of
attorney’s fees to Susan. However, as the chancellor failed to provide the appropriate
findings of fact pertaining to the equitable distribution of the marital assets (particularly the
award of the marital home), the award of permanent periodic alimony, and the award of child
support for Rebecca, we must reverse the chancellor’s judgment and remand for proceedings
14
in accordance with this opinion.
¶26. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF
THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND
APPELLEE.
KING, C.J., LEE, P.J., ISHEE AND ROBERTS, JJ., CONCUR. IRVING,
GRIFFIS AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT.
CARLTON, J., CONCURS IN RESULT ONLY. MYERS, P.J., DISSENTS.
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