Margaret Lynn Owen v. Kenneth Whiteside Owen
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2002-CA-00995-SCT
MARGARET LYNN OWEN
v.
KENNETH WHITESIDE OWEN
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
05/10/2002
HON. JOHN C. ROSS, JR.
UNION COUNTY CHANCERY COURT
JAK McGEE SMITH
J. MARK SHELTON
CIVIL - DOMESTIC RELATIONS
REVERSED AND REMANDED - 04/27/2006
BEFORE COBB, P.J., EASLEY AND DICKINSON, JJ.
EASLEY, JUSTICE, FOR THE COURT:
PROCEDURAL HISTORY
¶1.
Margaret Lynn Owen (Margaret) and Kenneth Whiteside Owen (Kenneth) filed a joint
complaint for divorce in the Chancery Court of Union County, Mississippi, on the grounds
of irreconcilable differences. The parties submitted the property settlement issues to the
chancellor.
The Honorable John C. Ross, Jr., Chancellor, granted the divorce on
irreconcilable differences and ordered the marital assets to be sold with Kenneth receiving
60% of the proceeds and Margaret 40%.
¶2.
In reaching his decision in Owen v. Owen, 798 So. 2d 394, 397 (Miss. 2001) (Owen
I), the chancellor noted the parties’ ages, present incomes, and that Kenneth had substantially
contributed to Margaret obtaining her college degree. The chancellor also noted in Owen I
that Margaret had worked only sporadically during the marriage. The chancellor stated that,
after having reviewed the Ferguson factors, “as a matter of fact that Kenneth . . . [had] been
the primary financial contributor to the assets of the marriage and that he should receive a
greater percentage of any distribution of the marital assets.” Id. (emphasis added).
¶3.
In Owen I, the chancellor found that the couple’s two homes and six vehicles were
marital property and ordered them sold. Id. Kenneth received 60% of the proceeds, and
Margaret received 40%. The chancellor also determined that the couple’s investment
account was marital property and awarded Margaret 40%. Both parties also received a
specific list of personal property items which the chancellor found to be separate assets.
According to Kenneth’s estimates, Margaret received $38,250 in separate personal property
while Kenneth received $8,510. All personal property not specifically separated was deemed
marital property and was ordered to be sold with Kenneth receiving 60% of the proceeds and
Margaret 40%.
¶4.
The chancellor, however, did not specifically address the applicable Ferguson factors.
Margaret appealed the decision to this Court. In an opinion written by then Justice James W.
Smith, Jr., this Court found that “the chancellor erred in failing to specifically address all
applicable Ferguson factors . . . .” Owen I, 798 So. 2d at 396 (emphasis added). The Court
2
reversed the chancellor’s judgment and remanded the case to the chancery court to provide
a record of its findings of fact and conclusions of law concerning each of the applicable
Ferguson factors. Id. at 401.
¶5.
On remand, the chancellor informed the parties that he did not intend to occupy any
further court time with this case and requested the parties to submit briefs on their arguments.
In Judge Ross’s letter dated March 20, 2001, to the attorneys, he stated that he had received
and reviewed the remand from this Court. In his letter, Judge Ross specifically stated, “I do
want you to set forth in letter-brief any matter you believe needs to be considered in
complying with the remand order.” (Emphasis added). Judge Ross requested that the parties
comply by April 15, 2001, unless the parties informed him “this time schedule is [was]
inconvenient . . . .” The record in this case does not indicate that either party objected to
Judge Ross’s request or time schedule. According to the record furnished to this Court on
appeal, neither attorney made any request for a new hearing before Judge Ross issued his
new opinion.
¶6.
The chancellor subsequently issued a supplemental opinion and judgment. The
supplemental opinion contained a six-page analysis of the applicable Ferguson factors. The
chancellor determined that “after a full and extensive consideration . . . [of] the factors
applicable in Ferguson v. Ferguson, supra, . . . that the division of property in the opinion
and judgment of this Court dated March 12, 1999, shall remain unchanged.” That is, the
60/40 percentage of division and distribution of the marital property remained unchanged.
3
On remand, the chancellor failed to address the statement the chancellor erroneously made
in Owen I that Kenneth was entitled to receive a greater percentage, 60%, of any distribution
of the marital assets than Margaret, 40%, based on his being the primary financial
contributor.
¶7.
At a subsequent hearing while the case was remanded, the chancellor heard Kenneth’s
motion for contempt filed against Margaret. The chancery court did not find Margaret in
contempt of court, but the chancellor ordered a $5,000 judgment for the items that were not
delivered by Margaret to the public sale to offset Margaret’s 40% share of the marital
property.
¶8.
Margaret now appeals to this Court contending the chancellor did not comply with the
opinion of this Court in Owen I on remand. Margaret also appeals the $5,000 judgment to
offset the judgment owed by Kenneth to Margaret for her 40% of the marital property.
FACTS
¶9.
In Owens I, we stated the following pertinent facts:
Margaret and Kenneth married in 1987. The couple initially lived in
Texas where Kenneth worked and Margaret attended college. While a full-time
student, Margaret performed the household chores and held several part-time
jobs, using her earnings to pay for school supplies, clothing, and groceries.
Margaret's tuition was paid by both Margaret's father and Kenneth.
In 1992, the couple returned to New Albany, Mississippi. Margaret
initially taught school and worked at a local clothing store. Later, Margaret
started her own business as an artist. Margaret gave Kenneth all income she
earned, and, in return, he wrote her checks for the amount transferred to him.
In essence, Margaret kept whatever she earned, and these “transfers” were
made apparently for tax purposes only. Meanwhile, Kenneth began working
4
as an engineer for Master-Built . . . . Kenneth's ESOP and 401(k) plan were
valued in excess of $5,000 and $7,000, respectively, as of the date of divorce.
During the marriage, the couple purchased two homes. Margaret and
Kenneth took title to the first home jointly, and both helped make extensive
repairs on the home. The second home, in which Kenneth took sole title, was
used as a rental house. Both parties participated in cleaning the second home
and landscaping the yard, but Kenneth testified that he paid Margaret for the
work she performed. All mortgage payments, taxes, and repair payments on
both houses were made by Kenneth.
The couple also owned an investment account which contained a
pre-divorce balance of $14,844 . . . .
At the time of divorce, Margaret earned $1,250 in net monthly income
and spent $2,766 in monthly living expenses, while Kenneth earned $3,107 in
net monthly income and spent $2,651 in monthly living expenses.
The couple filed for divorce in 1998.
Owen I, 798 So. 2d at 396-397.
DISCUSSION
¶10.
This Court employs a limited standard of review of property division and distribution
in divorce cases. Reddell v. Reddell, 696 So. 2d 287, 288 (Miss. 1997). This Court has
repeatedly stated that the chancellor’s division and distribution will be upheld if it is
supported by substantial credible evidence. Carrow v. Carrow, 642 So. 2d 901, 904 (Miss.
1994); see Owen I, 798 So. 2d at 397-98. The “chancery court has authority, where equity
demands, to order a fair division of property accumulated through the joint contributions and
efforts of the parties.” Savelle v. Savelle, 650 So. 2d 476, 479 (Miss. 1995) (citing Hemsley
v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994)). “This Court will not substitute its judgment
5
for that of the chancellor ‘[e]ven if this Court disagree[s] with the lower court on the finding
of fact and might [arrive] at a different conclusion.’” Owen I, 798 So. 2d at 397-98 (quoting
Richardson v. Riley, 355 So. 2d 667, 668 (Miss. 1978).
¶11.
In Carrow, 642 So. 2d at 904, citing Bell v. Parker, 563 So. 2d 594, 596-97 (Miss.
1990), this Court stated that the chancellor’s findings will be upheld unless those findings
are clearly erroneous or an erroneous legal standard was applied. However, the Court will
not hesitate to reverse if it finds the chancellor’s decision is manifestly wrong, or that the
court applied an erroneous legal standard. See Sandlin v. Sandlin, 699 So. 2d 1198, 1203
(Miss. 1997); see also Carrow, 642 So. 2d at 904; Bell, 563 So. 2d at 596-97.
I.
¶12.
Ferguson Factors
Marital property includes “any and all property acquired or accumulated during the
marriage.” Hemsley, 639 So. 2d at 915. The parties’ property must be classified as a marital
or non-marital asset in order for the chancellor to make an equitable division and distribution
of the marital estate. Lauro v. Lauro, 847 So. 2d 843, 847 (Miss. 2003). In Ferguson v.
Ferguson, 639 So. 2d 921, 928 (Miss. 1994), this Court stated , “[t]he chancellor may divide
marital assets, real and personal, as well as award periodic and/or lump sum alimony, as
equity demands.” “This division does not require an automatic fifty-fifty split or a vested
right. . . .” Savelle, 650 So. 2d at 479.
¶13.
The Court in Ferguson established the factors that should be considered in reaching
a decision on the equitable distribution of marital property. Ferguson, 639 So. 2d at 928.
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The Court recognized the need for guidelines to aid chancellors in their adjudication of
marital property division. Id. The Court directed the chancery courts to evaluate the division
of marital assets by the following guidelines, where applicable, to effect an equitable division
of marital property and to support their decisions with findings of fact and conclusions of law
for purposes of appellate review. Id. The Court stated that chancery courts should consider
the following guidelines, where applicable, regarding determination of the equitable division
of marital property:
1.
Substantial contribution to the accumulation of the property. Factors
to be considered in determining contribution are as follows:
a.
b.
c.
Direct or indirect economic contribution to the
acquisition of the property;
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
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
intervivos gift or to an individual spouse;
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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 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. at 928.
¶14.
On remand, the chancellor devoted six pages of the supplemental opinion and
judgment listing the Ferguson factors and findings of fact regarding the applicable factors.
Because this case was remanded in Owen I for the chancellor to specifically address all
applicable Ferguson factors, it is imperative that the Court examine the chancery court’s
findings of fact as to each of the applicable factors. The chancellor stated:
1.
Substantial contribution to the accumulation of the property. Factors
to be considered in determining contribution are as follows:
a.
Direct or indirect economic
acquisition of the property;
contribution to the
Kenneth Whiteside Owen contributed substantially to the
financial acquisition of assets during their marriage. Margaret
Lynn Owen earned a much lesser amount per year, therefore
could not contribute as much to the acquisition of assets.
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;
8
The parties where married for 11 years, and during this
time Margaret performed the household duties and held several
part-time jobs while being a full-time student, and later owned
her own business. Kenneth Whiteside Owen was employed
continually throughout the marriage. Both contributed to the
marital relationship as evidenced by time spent on activities
renovating the marital home. The parties acquired two homes
and both parties helped make extensive repairs on one home and
cleaned/landscaped the rental property.
c.
Contribution to the education, training or other
accomplishment bearing on the earning power of the
spouse accumulating the assets.
Kenneth Whiteside Owen contributed substantially to
Margaret Lynn Owen obtaining a college education with a
degree in art history and French.
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;
After the parties separated, Kenneth Whiteside Owen withdrew money
from an investment account which contained a pre-divorce balance of $14,844.
Margaret Lynn Owen cashed a check from an insurance settlement in the
amount of $830.00.
These sums will be discussed below.
3.
The market value and the emotional value of the assets subject to
distribution;
The parties owned two homes and several vehicles. The only item that
had an appraisal at the time of the hearing was the marital home. Several
items of personal property were valued by the parties themselves. Many items
of property were gifts from Margaret Lynn Owen’s grandmother.
Kenneth Whiteside Owen has retirement benefits in the form of an
ESOP and a 401(k) plan with values of $5,368.00 and $6,910.00, respectively,
as of the date of divorce.
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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
intervivos gift or to an individual spouse;
Margaret Lynn Owen was given several pieces of personal property that
were not to be included as marital assets. These items are:
English walnut silverware chest
Cherry table and chairs
2 Walnut Cellerettes
Walnut beveled glass mirror
Oak letter box
2 Highback oak chairs
Walnut wardrobe
Marble top walnut table
Mahogany tea box
3 Cork display stands
Hardwood easel
Mahogany chest of drawers
Walnut clothes rack
Walnut night stand
Walnut 4 poster bed with canopy
Mahogany chest of drawers with removable top
Mahogany sleigh bed
Oak drop leaf table
12 piece setter of Buttercup Sterling with serving pieces
Margaret’s personal jewelry
Paint brushes, paint, art supplies
Miscellaneous boxes, wooden, marble
Miscellaneous pictures/painting/prints - approximately 35 pieces
Glassware, vases, pottery
Likewise, Kenneth Whiteside Owen was given certain items of personal
property that he acquired before the marriage or were his personal effects.
These are as listed below:
Kitchen pub chairs
Walnut bookcase with glass doors
Ottoman
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Benchcraft sofa and chair
Willow sofa ad chair with cushions
Two (2) white bookcases
Two (2) two drawer filing cabinets
Stereo, CD player
CD’s - approximately 200
VCR
8mm video camera
Kenny’s personal jewelry
Vacuum cleaner
Lawn mower
Edger
Kenny’s tools
Air compressor, hoes, etc.
Welder
Two (2) AR -15 rifles
Two (2) Browning pistols
Ruger Pistol
Tec-22 pistol
Walther PPK pistol
Reloading equipment, press, dies, components
Oaks Country Club Membership
5.
Tax and other economic consequences, and contractual or legal
consequences to third parties, of the proposed distribution;
There are no contractual or legal consequences to third parties in the
distribution of the marital assets to the parties. No proof was offered as to any
potential tax consequence problems for either party.
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 friction between the parties;
To avoid potential sources of future friction between the parties, this
Court ordered that the marital home, rental property and vehicles be sold and
their proceeds divided 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
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At the time of the divorce, Kenneth Whiteside Owen had stable
employment as an engineering manager at Master-Built Products, New
Albany, Mississippi with a net monthly income of $3,107.00; Margaret Lynn
Owen owned a business, earning approximately $1,250.00 per month.
Margaret Lynn Owen has a college degree and income potential much
greater than her current source of income. She will receive a substantial sum
of money when the marital property is sold and the proceeds divided.
8.
Any other factor which in equity should be considered.
[N]one.
¶15.
The chancellor then addressed how the marital property and the proceeds from the
public auction should be divided:
With respect to the motor vehicles, the Court finds the proof that the
1998 Mazda pickup truck had a negative value due to the indebtedness due
thereon. Kenneth Whiteside Owen is hereby given use, possession and
ownership of this automobile and will be required to make all of the payments
due thereon.
With respect to the other vehicles, including the motorcycle, the Court
has previously required that these items of personal property be sold, with
Kenneth Whiteside Owen receiving sixty percent (60%) of the net proceeds
and Margaret Lynn Owen receiving forty percent (40%) of the net proceeds.
Likewise, any and all other items of personal property, including
furniture, were sold at public auction and the proceeds divided, with Kenneth
[sic] Whiteside Owen receiving sixty percent (60%) of the net proceeds and
Margaret Lynn Owen receiving forty percent (40%) of the net proceeds.
The parties received a check in the amount of $830.00 as an insurance
settlement. This check was cashed by Margaret Lynn Owen. Kenneth
Whiteside Owen is entitled to one-half of this check or $415.00.
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At the time of the separation, Kenneth Whiteside Owen had in his name
an investment account with a balance of $14,844.00. Margaret Lynn Owen
should be and is hereby entitled to forty percent (40%) of this or $5,937.60.
The Court finds that Margaret Lynn Owen should be and is hereby
awarded 40% of the total amount of both Kenneth Whiteside Owen’s 401 (k)
plan, of $6,910.00, and ESOP, of $5,368.00, which is $2,764.00 and $2,147.20
respectively, or $4,911.20.
¶16.
That the chancellor did not order a 50/50 division of the marital property does not
require this Court to reverse. See Chamblee v. Chamblee, 637 So. 2d 850, 864 (Miss. 1994)
(“Mississippi is not a community property state. . . .”). “Divorcing parties also have no right
to equal distribution even where the parties jointly accumulated the property.” Owen I,
798 So. 2d at 399 (emphasis added). “[E]quitable distribution of marital property begins
with the assumption that the contribution of the spouses is equal, whether that contribution
is made in the workforce or at home.” Craft v. Craft, 825 So. 2d 605, 614 (Miss. 2002).
Starting from the assumption that the contributions are equal, “the chancellor can adjust the
award in the favor of one of the spouses, after making findings of fact and conclusions of
law, if the application of the Ferguson factors so warrants doing so.” Id. While spouses
have no right to ‘equal’ distribution, spouses are not prohibited from receiving a portion of
marital assets acquired solely by the other spouse's financial contributions where the
non-cash contributing spouse has made alternative contributions to the marriage. See
Hemsley, 639 So. 2d at 915.
¶17.
This Court has declined to interpret “equitable” distribution to mean “equal”
distribution. Trovato v. Trovato, 649 So. 2d 815, 818 (Miss. 1995); see also Chamblee, 637
13
So. 2d at 863-64. There exists no right to “equal” distribution of the marital property. See
Pierce v. Pierce, 648 So. 2d 523, 526 (Miss. 1994).
¶18.
This Court in Owen I, reversed the chancellor for his deficiency in applying the
applicable Ferguson factors and ordered the chancellor to consider the applicable factors in
his new analysis of the division of the marital assets. The chancellor requested that the
parties submit briefs on remand to set forth any matter which needed to be considered in
complying with the remand order of this Court. The chancellor provided a statement of the
Ferguson factors and factual findings as to the applicable factors on remand. However, the
60/40 division of the marital property remained unchanged.
¶19.
In Owen I, we found that “the chancellor committed reversible error in basing the
division of marital assets upon one factor financial contributions [Kenneth’s economic
contributions to the marriage] to the accumulation of marital property rather than upon all
eight Ferguson factors.” Owen I, 798 So. 2d at 398.
¶20.
The chancellor stated that Margaret earned a much lesser amount per year, therefore,
she could not financially contribute as much to the acquisition of assets as Kenneth. The
chancellor found that the parties where married for eleven years, and during this time,
Margaret performed the household duties and held several part-time jobs while being a fulltime student. Margaret obtained a college degree during the marriage that Kenneth helped
to financially support her to secure. Margaret later owned her own business. Kenneth was
employed continually throughout the marriage. Kenneth earned $3,107 per month from his
14
employment as an engineering manager. Margaret earned $1,250 per month from operating
her own business. The chancellor found that Margaret’s college degree provided her income
potential much greater than her current source of income.
¶21.
The chancellor stated that both contributed to the marital relationship as evidenced by
time spent on activities renovating the marital home. The parties acquired two homes, one
being rental property. The chancellor found that both parties helped make repairs on one
home and cleaned/landscaped the rental property. While the non-financial contributions were
stated by the chancellor in the Ferguson analysis, the record does not reflect the chancellor
assigned any specific value to Margaret’s or Kenneth’s non-financial contributions.
Likewise, the chancellor does not provide any stated conclusion of law to explain
maintaining the 60/40 division on remand.
¶22.
On remand, the chancellor properly separated the marital property from the non-
marital property.
The chancellor stated Kenneth’s financial contribution and earning
capacity. The chancellor stated Margaret’s earning capacity. The chancellor also stated
Margaret’s and Kenneth’s non-financial contribution to the accumulation of the marital
assets, such as housework and repairs, without assigning any monetary value to the nonfinancial contributions. Besides the 60/40 division of the several automobiles and the two
homes, other major marital assets which were specifically addressed and divided on a 60/40
basis by the chancellor in the supplemental opinion were: (1) the parties’s investment account
15
in Kenneth’s name with a balance of $14,844.00 and (2) Kenneth’s retirement accounts: a
401 (k) plan, of $6,910.00, and a ESOP, of $5,368.00.
¶23.
In Owen I, this Court found the chancellor improperly focused on Kenneth’s financial
contributions rather than focusing on all the applicable Ferguson factors. Besides stating
the Ferguson factors and a factual finding as to each factor as stated above, the chancellor
does not state how he arrived at the 60/40 division of the marital property. The facts stated
under the Ferguson factors were substantially the same facts that this Court had before it in
Owen I which the Court specifically found improperly focused on Kenneth’s financial
contribution. Owen I, 798 So. 2d at 396-97. The facts from Owen I are restated in this
opinion in the facts section for comparison and review. The chancellor’s judgment regarding
the division and distribution of the marital property remained unchanged on remand. The
fact that the division remains unchanged on remand and the chancellor failed to provide a
conclusion of law to support the 60/40 division on remand is particularly troubling. In Owen
I, the same chancellor stated substantially the same findings of fact as stated under the
applicable Ferguson factors and then concluded that Kenneth was entitled to a greater
percentage of the marital assets, 60%, than Margaret, 40%, because Kenneth was the primary
financial contributor to the accumulation of the assets.
¶24.
The record reflects that on remand the chancellor still focused primarily on Kenneth’s
financial contribution in dividing the marital property with Kenneth receiving 60% of the
marital property and Margaret receiving 40% as this Court found in Owen I. See Owen I,
16
798 So. 2d at 398-99. Margaret’s monthly income, $1,250, is approximately 40% of
Kenneth’s monthly income, $3,107. In Owen I, this Court held, “the chancellor’s division
of property did improperly focus only on Kenneth’s economic contributions to the marriage.”
Id.
¶25.
Besides just stating findings of fact for each applicable factor, the chancellor failed
to provide any conclusion of law for our review on appeal. In Ferguson, this Court held that
chancellors are required to consider the applicable factors and support their decisions with
findings of fact and conclusions of law for appellate review.” Ferguson, 639 So. 2d at 928.
¶26.
As such, we find the chancellor addressed each of the Ferguson factors on remand
in rendering his decision as to the division and distribution of the marital property as
instructed by this Court in Owen I. However, despite the Ferguson factors being listed and
the findings of fact stated as to the applicable factors, we find the chancellor failed to provide
any conclusion of law on remand for our appellate review to explain leaving the 60/40
division from Owen I unchanged. Therefore, the judgment of the chancellor is reversed and
the case remanded to the chancery court to provide an equitable distribution consistent with
this opinion.
II.
¶27.
Motion for Contempt
Subsequent to the divorce and original distribution of assets, Kenneth filed a motion
for contempt alleging that Margaret had failed to deliver certain items for sale at the public
17
auction and that she had damaged the 1966 Jaguar XKE while it was in her possession.1 A
hearing was held on Kenneth’s motion for contempt, and the chancellor rendered his findings
in the supplemental opinion and judgment after addressing the Ferguson factors discussed
in Issue I. Margaret was not found to be in contempt, but Kenneth received a judgement in
the amount of $5,000 to offset the items that Margaret failed to produce for public sale.
Because the judgment also appears to be incomplete as to how the chancellor arrived at the
amount of $5,000, we reverse the chancellor’s judgment and remand the case for the
chancellor to provide a more detailed analysis consistent with this opinion.
1981 Mercedes 300TD
¶28.
The chancellor found that Margaret sold the Mercedes and failed to give Kenneth his
share of the proceeds. The Mercedes sold for $800. The chancellor stated that Margaret
failed to pay Kenneth $800 from the proceeds of the Mercedes ordered to be sold. It appears
that the chancellor used this $800 figure in arriving at the judgment in the amount of $5,000
1
Margaret’s brief additionally discusses a filing cabinet; the keys, books, manuals
spare parts and photo album of restoration of the Jaguar; Kenneth’s tools; and Kenneth’s
compact discs (CDs). Kenneth’s brief does not contain any discussion of these items. It
appears from reviewing the order authorizing public auction and its exhibit “A” that
Margaret correctly notes that these items were not ordered to be produced for sale at the
auction. However, these items were ordered to be Kenneth’s separate personal property.
In the chancellor’s opinion discussing Margaret’s failure to produce these items, it is not
clear from the record that these items factored into the chancellor’s judgment against
Margaret in the amount of $5,000. In fact, the chancellor specifically states that the
judgment was for the items that were not produced for public sale, not items that were not
produced to Kenneth. Therefore, we find the chancellor on remand shall clarify the
judgment as to these specific items.
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to Kenneth to be used to offset the amount owed to Margaret. As such, the chancellor erred
in the determination of the value assigned. Margaret was entitled to receive 40% of the
proceeds of the sale. Therefore, Kenneth was entitled to receive 60%, or $480, not 100% of
the $800. We find this should be remanded for the chancellor to readdress the Mercedes in
order to examine how the chancery court arrived at the judgment in the amount of $5,000.
Camera Equipment
¶29.
The chancellor found that Margaret failed to deliver “certain camera equipment for
the public sale.” The chancellor assigned a value of $830 to the equipment. It appears the
chancellor factored this value into the assessment of the $5,000 judgment. The chancellor’s
opinion does not specifically state what camera equipment was considered. The chancellor’s
prior order of what items were authorized to be produced and sold at the public auction
provided that Margaret would produce 35 mm cameras and lens valued at $125 and a Minolta
35 mm valued at $350. Margaret contends that two cameras were sold, one being a Nikon
camera and another camera. Margaret also contends that the Minolta camera had been lost
prior to the divorce, and therefore, it was impossible for her to produce.2 Regardless,
Margaret argues that the Minolta camera was assigned a value of $350, not $830. On
2
In Margaret’s motion to correct order, she informed the chancery court that the
Minolta camera had been lost on Mount Conti prior to the divorce. However, a review of
the clerk’s index of the record provided and the subsequent order to confirm sale, it does not
appear the chancellor specifically addressed the motion to correct as to the Minolta camera.
19
remand, the chancellor shall readdress the camera equipment in order to examine how the
chancery court arrived at the judgment in the amount of $5,000.
1966 Jaguar XKE
¶30.
In the chancellor’s supplemental opinion and judgment, the chancellor found that the
Jaguar had been damaged while in Margaret’s possession. Margaret contends that the
chancellor erred in finding that she had damaged the Jaguar while it was in her possession.
Margaret testified she had no knowledge of any damage; did not damage the Jaguar; and
could not see any damages in the photographs she reviewed at trial.
¶31.
Kenneth testified that the photographs depicted the condition of the Jaguar after he
received it from Margaret. Kenneth testified and submitted an estimate for repairs that
totaled $3,173.24. The estimate from Parks Chevrolet Company, Inc., was introduced as
exhibit 16. The Jaguar was in Margaret’s possession until the sale. Kenneth purchased the
Jaguar at the sale.
¶32.
Margaret contends the chancellor erroneously factored this into his decision to award
Kenneth $5,000 to offset his obligation to her. However, the chancellor’s supplemental
opinion and judgment does not specifically assess any value to the damage to the Jaguar. The
chancellor’s supplemental opinion and judgment also does not state that Margaret did not
deliver the Jaguar for the public sale. The supplemental opinion only provided that the Jaguar
“had been damaged while in her [Margaret’s] possession.” However, the chancellor’s
supplemental opinion stated that Margaret was responsible for “a judgment of the amount of
20
$5,000.00 to offset the items Margaret Lynn Owen failed to deliver for the public sale.”
(Emphasis added). Without a detailed analysis of how the chancellor computed the $5,000
amount and based on the language provided in the chancellor’s supplemental opinion, this
Court is unable to adequately address this issue. Therefore, the chancellor shall on remand
address how, or if, the Jaguar factored into the judgment in the amount of $5,000 to offset
for items that Margaret failed to produced for the public sale.
¶33.
Margaret also argues that the chancellor erroneously allowed Kenneth to introduce the
estimate from Parks Chevrolet without an expert. However, Margaret provides no authority
to support her position. Failure to cite any authority is a procedural bar, and this Court is
under no obligation to consider the assignment of error. Williams v. State, 708 So. 2d 1358,
1360 (Miss. 1998). Mississippi Rule of Appellate Procedure 28(a)(1)(6) requires that the
argument in an appellant’s brief must contain "the contentions of appellant with respect to
the issues presented, and the reasons for those contentions, with citations to the authorities,
statutes, and parts of the record relied upon." See United Plumbing & Heating Co. v.
Mosley, 835 So. 2d 88, 92 (Miss. App. 2002). Therefore, due to Margaret's complete failure
to cite authority in her brief, the Court does not have to address her assignment of error
regarding the introduction of the estimate.
¶34.
However, this assignment of error will be briefly addressed in order to provide
guidance to the chancellor on remand. It is a well-settled and pronounced legal principle that
when cost of repairs are relied upon as a measure of damages it is necessary to establish that
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(1) the repairs were necessary as a result of the wrongful act, and (2) the cost of repairs were
necessary or reasonable. Bryan Bros. Packing Co. v. Grubbs, 251 Miss. 52, 168 So. 2d 289,
293 (1964) (citing National Fire Ins. Co. of Hartford v. Slayden, 227 Miss. 285, 85 So. 2d
916 (1956); see Sims v. Collins, 762 So. 2d 785, 790 (Miss. App. 2000). In Bryan, this
Court held that it was error for the trial court to admit the testimony of a non-expert as to the
amount of damages done to the vehicle as a result of the accident over the defendant’s
objection. Bryan, 168 So. 2d at 293. Here, Kenneth testified to the cost of repairs, and the
repair estimate was introduced through him. Margaret’s counsel objected to the introduction
of the repair estimate. The chancellor overruled the objection and allowed the estimate to
be introduced. We find the chancellor erred in allowing the estimate to be introduced
without an expert.
¶35.
Furthermore, Margaret contends, based on her testimony, that the chancellor could not
have determined that the Jaguar had been damaged while in her possession. Margaret
testified that to her knowledge there was no damage done to the Jaguar. She also testified
that she could not see any damage in the photographs. As such, Margaret argues that there
was no evidence that the damages occurred while in her possession. Kenneth correctly
argues that the chancellor was well within his discretion as the trier of facts to believe his
testimony over Margaret’s testimony. This Court has repeatedly held that the chancellor’s
findings of fact are required to be respected if supported by credible evidence and not
manifestly wrong. See Bryan, 589 So. 2d at 659; In re Taylor, 609 So. 2d at 393. Likewise,
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it is a well-established proposition that “[i]t was the chancellor's duty to evaluate the
credibility of the witnesses.” Simmons v. Jaggers, 914 So. 2d 693, 697 (Miss. 2005); see
In re Estate of Carter, 912 So. 2d 138, 143 (Miss. 2005) (“Our standard of review is indeed
deferential, as we recognize that a chancellor, being the only one to hear the testimony of
witnesses and observe their demeanor, is in the best position to judge their credibility.”).
¶36.
However, for the reasons stated herein, the case is remanded to the chancery court in
order to provide a detailed analysis, consistent with this opinion, of what, if any, role the
Jaguar played in the determination of the $5,000 judgment.
CONCLUSION
¶37.
We find the chancellor applied the Ferguson factors on remand in rendering his
decision as to the division and distribution of the marital property as instructed by this Court
in Owen I. However, despite the Ferguson factors being listed and the findings of fact
stated as to the applicable factors, the chancellor failed to provide any conclusions of law on
remand for our appellate review to explain leaving the 60/40 division from Owen I
unchanged.
¶38.
In Owen I, the chancellor did provide a conclusion of law as to the 60/40 division
finding that because Kenneth was the primary financial contributor to the accumulation of
the marital assets, Kenneth was entitled to receive a greater percentage of the marital assets
than Margaret. Likewise, Margaret’s monthly earning of $1,250 is 40% of Kenneth’s
monthly income of $3,107. As stated in Owen I, this Court held that the chancellor’s
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conclusion of law improperly focused on Kenneth’s financial contribution in distributing the
marital assets.
¶39.
Based on the chancellor’s failure on remand to illustrate, analyze or provide a
conclusion of law to explain how each of the applicable Ferguson factors and findings of
fact affected his consideration of an equitable division and distribution of the marital
property, we reverse the judgment of the Chancery Court of Union County, Mississippi, and
remand the case to the Chancery Court. On remand, the chancellor shall provide an
application of the Ferguson factors, findings of fact, and a conclusion of law to explain how
he arrived at his determination of what constitutes equitable division and distribution of the
marital property, regardless of the percentages he assigns.
¶40.
Likewise, we find the chancellor did not provide a detailed analysis in his
supplemental opinion and judgment in order to explain how the chancellor arrived at the
judgment in the amount of $5,000 imposed against Margaret to offset for the items that she
failed to produce for sale. As such, the case is also reversed and remanded to the Chancery
Court of Union County, Mississippi, regarding the $5,000 judgment imposed against
Margaret in order for the chancellor to readdress this issue consistent with this opinion.
¶41.
REVERSED AND REMANDED.
SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ.,
CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.
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