Billy Cork, Jr. v. Etta Avant Cork
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CA-00752-COA
BILLY CORK, JR.
v.
ETTA AVANT CORK
APPELLANT
APPELLEE
DATE OF JUDGMENT:
4/11/2000
TRIAL JUDGE:
HON. JOHN C. LOVE JR.
COURT FROM WHICH APPEALED: CHOCTAW COUNTY CHANCERY COURT
FOR APPELLANT:
J. NILES MCNEEL
FOR APPELLEE:
CHARLES BRUCE BROWN
NATURE OF THE CASE:
CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:
DIVORCE GRANTED ON THE GROUND OF
IRRECONCILABLE DIFFERENCES
DISPOSITION:
AFFIRMED-3/06/01
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
3/27/2001
BEFORE KING, P.J., BRIDGES, AND THOMAS, JJ.
KING, P.J., FOR THE COURT:
¶1. Billy Cork, Jr. and Etta Avant Cork were granted an irreconcilable differences divorce. The Choctaw
County Chancery Court ordered Mr. Cork to pay Mrs. Cork $400 per month in alimony and awarded her
a portion of his retirement benefits. Aggrieved, Mr. Cork has appealed and assigned the following errors:
I. Whether the trial court erred by awarding Mrs. Cork $400 in alimony; and
II. Whether the trial court erred in awarding Mrs. Cork a portion of Mr. Cork's retirement
benefits.
FACTS
¶2. The Corks were married on December 25, 1973. At the time of their marriage, Mrs. Cork had one
child who was then three years of age. This child lived with the Corks during most of the marriage. The
Corks had no children together.
¶3. During the marriage, the Corks accumulated items of marital property but also maintained some items of
separate property. Mrs. Cork owned a lot in Pheba, Mississippi, which she had received from her family
and a 1969 Malibu, which was acquired prior to the marriage. Mr. Cork owned a 1972 Chevrolet Monte
Carlo, which he acquired prior to the marriage. The parties separated May 1, 1998, in Choctaw County,
Mississippi, and thereafter agreed to an irreconcilable differences divorce pursuant to Miss. Code Ann.
§93-5-2(3) (Rev. 1994) and to allow the chancellor to dispose of the financial matters and other issues
relative to granting a divorce. Among the remaining items were Mrs. Cork's requests for alimony, and a
portion of Mr. Cork's retirement benefits.
¶4. The chancellor determined (1) that the parties had twenty-six years of marriage, of which twenty-two
years were lived as husband and wife, (2) that the husband's income had always exceeded that of the wife,
and was twice that of the wife's at the time of divorce, (3) that the disparity in income and the expenses of
the wife justified an award of alimony in the amount of $400 per month. The chancellor directed that the
$400 per month in alimony would end upon Mr. Cork's retirement, at which time Mrs. Cork would receive
a portion of his retirement benefits. The chancellor provided that the amount of retirement benefits due Mrs.
Cork be calculated as follows:
Retirement amount (received by the husband) x 22 years as husband and wife x .35 (percentage of
marital assets awarded to the wife) / by the husband's total years of service prior to retirement.
¶5. The chancellor also ordered that if the retirement benefit payable to Mrs. Cork was less than $400 per
month, the difference would be supplemented by Mr. Cork, if he obtained other employment after
retirement.
¶6. The court found that Mr. Cork had supported Mrs. Cork's child throughout the marriage and
determined it appropriate that he receive a larger share of the marital estate. The chancellor awarded Mrs.
Cork thirty-five percent (35%) of the marital assets and Mr. Cork sixty-five percent (65%) of the marital
assets. The chancellor found the marital assets as follows:
1) house, shop, and 1.5 acres
2) 1986 Volvo DL
3) 1986 Volvo GL
4) 1981 Chevrolet Pickup
5) 1974 Chevrolet Pickup
6) 1990 Hundai
7) 1977 Buick Electra Limited
8) 1981 Buick Regal
9) Ford Tractor
10) Etta Avant Cork's 401 K Plan
Total
$53,000.00
2,800.00
3,700.00
1,500.00
500.00
1,000.00
600.00
700.00
1,200.00
1,680.00
$66,680.00
¶7. Mrs. Cork was awarded the 1986 Volvo GL, valued at $3,700, 1990 Hyundai, valued at $1,000 and
her 401K, valued at $1,680, and $17,000 for her interest in the marital home. These items totaled 35% of
the marital estate. Each party was directed to pay those debts incurred in his name.
ANALYSIS
Whether the trial court erred by awarding appellee $400 in alimony.
¶8. Alimony awards are within the chancellor's discretion and may not be reversed unless there is a finding
that the chancellor committed manifest error in his findings of fact and abused his discretion. Ethridge v.
Ethridge, 648 So. 2d 1143, 1145-46 (Miss. 1995). To determine whether to award alimony, our
chancellors are guided by the twelve factors enunciated in Armstrong v. Armstrong, 618 So. 2d 1278,
1280 (Miss. 1993), which are:
1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the
parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support
determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be "just and equitable" in connection with the setting of
spousal support.
¶9. The court applied these factors to the evidence presented and determined that an award of alimony was
appropriate. The evidence established (1) that both parties worked continuously during the marriage; (2)
that Mr. Cork then earned approximately $33,000 per year, while Mrs. Cork then earned approximately
$15,000 per year; (3) that the Corks were approximately the same age, she was 50 and he was 51; and
(4) that both parties enjoyed good health.
¶10. While Mr. Cork's income had always been larger than Mrs. Cork's, a steady decline in available
overtime hours caused a decline in his income. The court found that Mr. Cork had adjusted gross income
of $2,142 per month and Mrs. Cork had adjusted gross income of $910 per month. Mrs. Cork offered
proof of present living expenses, as of November 10, 1998, of $1,318, and projected living expenses of
$2,265. Mr. Cork established living expenses of $1,799, as of December 1999, and projected living
expenses as of January 2000, of $1,524.
¶11. The trial court applied the Armstrong factors and determined that an alimony award of $400 per
month was appropriate for Mrs. Cork. This award is supported by substantial, credible evidence.
Accordingly, this Court cannot say the chancellor abused his discretion.
Whether the trial court erred by awarding appellee a portion of appellant's retirement
benefits.
¶12. Mr. Cork has asked this Court to hold the chancellor erred by subjecting his retirement benefits to
equitable distribution. He suggested that she in no way contributed to the accumulation of this asset and
accordingly is not entitled to a proportionate share of it.
¶13. All property acquired during marriage is considered marital property, and subject to equitable
distribution, unless it is clearly shown to be a separate estate apart from the marriage. Hemsley v. Hemsley,
639 So. 2d 909, 914 (Miss. 1994). The party seeking to exclude an item from the marital estate bears the
burden of establishing its separate character. A & L, Inc. v. Grantham, 747 So. 2d 832, 839 (Miss.
1999).
¶14. Mr. Cork did not convince the chancellor, nor has this Court been convinced, that he carried the
burden of proof. Indeed, the record shows absolutely no effort by Mr. Cork to establish his retirement
benefits as a separate estate. Absent such proof, property acquired during marriage is presumed to be
marital property, and subject to equitable distribution according to the Ferguson factors. Hemsley at 915.
¶15. The chancellor's decision properly applied the law, and is supported by substantial evidence;
accordingly, this Court is not at liberty to disturb that decision. McLemore v. McLemore, 762 So. 2d 316,
319 (Miss. 2000).
¶16. THE JUDGMENT OF THE CHANCERY COURT OF CHOCTAW COUNTY,
MISSISSIPPI IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT. STATUTORY INTEREST AND DAMAGES ARE AWARDED TO THE
APPELLEE.
McMILLIN, C.J., SOUTHWICK, P.J., PAYNE, BRIDGES, THOMAS, LEE, MYERS
AND CHANDLER, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.
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