Mary Ruth Buckley v. Mark Rayborn Buckley
Annotate this Case
Download PDF
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CA-02057-COA
MARY RUTH BUCKLEY
v.
MARK RAYBORN BUCKLEY
APPELLANT
APPELLEE
DATE OF TRIAL COURT 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:
CERTIORARI FILED:
MANDATE ISSUED:
09/14/2000
HON. H. DAVID CLARK II
JASPER COUNTY CHANCERY COURT
THOMAS L. TULLOS
NOTHING FILED
CIVIL - DOMESTIC RELATIONS
DIVORCE GRANTED
REVERSED AND REMANDED - 05/07/2002
5/28/2002
BEFORE SOUTHWICK, P.J., LEE, AND CHANDLER, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1. Mary Ruth Buckley and Mark Rayborn Buckley were granted a divorce based upon irreconcilable
differences. Mrs. Buckley appeals, arguing that the chancellor erred by not awarding periodic alimony. We
agree. Therefore the cause is reversed and remanded.
STATEMENT OF FACTS
¶2. Mark Rayborn Buckley and Mary Ruth Buckley were married in November 1979. Two children were
born to them. Mrs. Buckley sought a divorce in October 1999 based on her husband's alleged adultery or
alternatively based on irreconcilable differences. In November 1999, the chancery court entered a
temporary order that awarded custody and control of the two children to Mrs. Buckley and outlined the
visitation rights granted to Mr. Buckley. Mrs. Buckley was awarded $480 per month in child support and
$245 in periodic alimony.
¶3. A trial was held on May 15, 2000. Shortly before it began, the chancellor announced that the parties
had agreed to a divorce on the grounds of irreconcilable differences. What was for decision by the
chancellor would be equitable distribution of all property and debts, alimony, and child support, including
medical insurance coverage.
¶4. During the trial, the parties agreed to sell the real property, satisfy the debts attached to those properties
from the proceeds, and then have the chancellor divide the remainder between them. The parties also
agreed that child support should be fixed at $480 per month and that the children would be covered by the
state medical insurance program known as "CHIPS" with any amount not covered paid equally by both
parties. The parties agreed on the distribution of all personal property and settled on a visitation schedule.
The parties stipulated as to the amount of attorney's fees incurred by Mrs. Buckley. What was still
unresolved was alimony and the payment of the attorney's fees.
¶5. At the conclusion of Mrs. Buckley's case, Mr. Buckley made a motion to dismiss the claim for alimony
and for attorney's fees. The chancellor denied the motion, announcing that he would not rule on the issue of
alimony until he had made a "complete and final equitable distribution" and that could not be done until the
real property was sold. The trial was then recessed for several months.
¶6. When the trial resumed on September 12, 2000, the Buckleys agreed as to which items of personal
property each party would receive and agreed on the valuation of those properties. The chancellor awarded
Mrs. Buckley $1200 in attorney's fees but denied alimony. The judgment of divorce was entered on
September 14, 2000. Mrs. Buckley appeals.
DISCUSSION
¶7. Mr. Buckley's trial counsel filed a motion to withdraw before the appeal was perfected. The chancellor
granted the motion on the ground that Mr. Buckley had failed to cooperate with counsel. Nothing has been
filed by Mr. Buckley or his counsel on appeal.
¶8. The Supreme Court has held that an appellee's failure to file a brief can be considered the equivalent of
a confession of error. Reversal will occur "unless the reviewing court can say with confidence, after
considering the record and brief of appealing party, that there was no error." Selman v. Selman, 722 So.
2d 547, 551 (Miss. 1998). That is a lowered standard of review, but a hard look at the case by the
reviewing court for plausible error is still required.
1. Alimony
¶9. Mrs. Buckley appeals only the chancellor's refusal to award her periodic alimony. She requests alimony
of $500 per month. When alimony is not awarded at all or is considered inadequate, normally we will affirm
unless "the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of
discretion." Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). Because of the quasiconfession of error by the appellee, our review is not so exacting. Still, some reasonable argument of error
must be presented.
¶10. Alimony is not a completely independent financial issue in a domestic case, in which its consideration is
hermetically sealed from other financial matters. Alimony together with equitable distribution of property
work together to provide for the parties after a divorce. "Therefore, where one expands, the other must
recede." Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994). Once an equitable division of marital
property has been made, the chancellor should then consider whether there is a need for alimony. Godwin
v. Godwin, 758 So. 2d 384, 387 (Miss. 1999). As with other of the inevitably recurring issues in divorces,
the Supreme Court has announced factors that it wishes chancellors to use in structuring their decision.
Twelve factors have been identified by the Court. Armstrong, 618 So. 2d at 1280. We will consider each.
(1) The income and expenses of the parties
¶11. The chancellor found that Mr. Buckley's income, based on an amended income statement provided at
the last hearing, was about $2160 per month. After deductions for taxes and for the $480 in child support
payments, he would make $1200 per month. Earlier financial reports indicated that Mr. Buckley made
substantially more money than the latest financial statement indicated. For example, in 1997 Mr. Buckley's
tax return indicated that his profit from his various enterprises was $47,000. That is about $3900 per
month, or close to twice the figure the chancellor used.
¶12. The chancellor stated that "we had some testimony from Mrs. Buckley previously with regard to her
income and expenses, but that has obviously changed. She's moved to Sumrall. She has a new job. Her
testimony is that she's making $5.35 an hour. . . . Monthly, that would be $927.00 gross." The chancellor
found that Mrs. Buckley would pay no income taxes, but would have to pay about eighty-five dollars in
Medicare and Social Security taxes. Her monthly income including the child support payment would be
$1322.
¶13. The chancellor certainly may note what the total monthly income of the recipient spouse may be after
adding in child support. Though these funds are spent in the mother's discretion, they are for the children's
food, clothing, housing, and other expenses. It would be incorrect for the chancellor to decide that Mrs.
Buckley's income of $1322 which had to support herself and two children could be equated to Mr.
Buckley's $1200 per month for support just of himself.
¶14. Thus how the chancellor evaluated the relative financial positions of the two spouses after adding in the
child support to Mrs. Buckley's total is the central question. Certainly the money being paid in child support
has to be deducted from the amount that Mr. Buckley has available to him. However, it can be fatal error
for the chancellor to combine the mother's actual income and the child support into a total sum for analytical
purposes if by doing so the court loses sight that the mother is supporting not only herself with that money
but the children as well. The chancellor made no specific findings on the record as to the expenses of either
party but did have the financial disclosure statements of both before him and apparently accepted their
accuracy.
¶15. Mrs. Buckley argues that Mr. Buckley has the financial ability to pay alimony as his income is much
greater than hers. Mrs. Buckley's argument is based on Mr. Buckley's 1999 income and not the financial
statement utilized by the chancellor. Mr. Buckley's income appears to have fluctuated considerably, with the
chancellor's decision based on the lowest amount of income that had appeared in any financial statement.
We find that the financial picture was distorted by that fact.
¶16. What is evident is that during this marriage Mr. Buckley had been the primary provider of financial
support for the family. His income for most of the recent years has been much more than was the case in the
final financial report on which the chancellor relied. Mrs. Buckley's ability to maintain herself without
alimony in the manner to which she had become accustomed during the marriage is not apparent on this
record. In addition to these shortcomings, we also must apply a less deferential review standard arising
from the absence of an appellee's brief.
¶17. We cannot conclude "with confidence" that no error occurred in evaluating income. What confidence
we do have leads us in the direction of finding error in the analysis of this factor.
(2) The health and earning capacities of the parties
¶18. The chancellor found that Mrs. Buckley's wage earning capacity was not as great as that of Mr.
Buckley. The chancellor made no specific finding as to the health of either party but the record did contain
testimony as to each's relative health. Neither spouse had extensive formal education. Mr. Buckley left
school after the tenth grade. He took welding classes at Jones Junior College for several months before he
married Mrs. Buckley in 1979. Mr. Buckley has been the breadwinner for the family. Mrs. Buckley had
recently been employed in minimum wage positions. It would appear that the former husband has the much
greater income potential.
(3) The needs of each party
¶19. The chancellor made no specific finding as to the needs of each party.
(4) The obligations and assets of each party
¶20. The chancellor decided the issue of alimony after the distribution of the marital assets. The chancellor
noted that Mrs. Buckley was awarded $31,439.49 while Mr. Buckley was awarded $17,136.93. The
chancellor stated that while Mrs. Buckley's award was not "quite double" that of Mr. Buckley's that it was
"certainly a great deal more."
(5) The length of the marriage
¶21. The chancellor found that the Buckleys' twenty-year marriage was "long-standing."
(6) The presence or absence of minor children in the home
¶22. The chancellor noted that there were two children and that both children would reside in the home of
Mrs. Buckley.
(7) The age of the parties
¶23. The chancellor made no specific finding as to this factor, but the record indicates that Mr. Buckley was
born in 1959 and his former wife in 1958.
(8) The standard of living of the parties, both during the marriage and at the time of the
support determination
¶24. The chancellor found that during the marriage that "both of the parties were gainfully employed." The
chancellor found that Mr. Buckley "made more money than the wife." The chancellor found that "the wife
tended home, took care of the children, in addition to working outside of the home for a large part of the
marriage . . . ."
(9) The tax consequences of the spousal support order
¶25. The chancellor stated that because of Mr. Buckley's income that Mr. Buckley will "in all probability"
pay federal income tax but no state income tax. The chancellor stated that Mrs. Buckley would not pay
income taxes but would owe Social Security and Medicare taxes on her wages. The chancellor found that
taking the tax implications into consideration that the income of parties "are not really that different." The
chancellor then noted that Mrs. Buckley will more likely receive an earned-income-tax credit, although he
also stated that the amount of the credit was unknown. However, the chancellor himself stated that "there
has been no testimony really with regard to the tax implications."
¶26. Mrs. Buckley notes in her brief that the chancellor did not award her any share of the tax deductions.
The chancellor awarded Mr. Buckley the tax deductions for both children based on the premise that Mrs.
Buckley would not earn enough to pay federal or state income taxes and to award her the deductions would
waste the benefit of those deductions. The chancellor stated that "I am fairly certain that, if Mr. Buckley is
allowed to claim those deductions, certainly it would prevent the diversion of those funds to the federal
government, as opposed to his children, and I'd rather the money go to his children." We do not find
anything to cause us to disturb this finding standing by itself. However, since we are remanding the case, this
matter can be reconsidered.
(10) Fault or misconduct
¶27. The chancellor found that "Mr. Buckley's indiscretions greatly contributed to the break-up of this
marriage; and were the cause of the separation of the parties and the divorce."
¶28. The chancellor did not at much length consider Mrs. Buckley's permanent medical condition that was
caused by Mr. Buckley's indiscretions. A nurse practitioner testified on Mrs. Buckley's behalf regarding the
effect of the venereal disease that she had contracted from her husband. Mrs. Buckley would require an
annual pelvic exam and pap smear at a cost of $100, but that was something recommended for a woman of
Mrs. Buckley's age regardless of medical condition. Treatments for the venereal disease would be needed
whenever she had an outbreak though it was difficult to estimate how many treatments would be required.
Over the previous year, the nurse had treated Mrs. Buckley either three or four times for her condition. The
chancellor asked if the nurse could say "with any degree of medical certainty, what her additional cost
would be;" she could not.
¶29. What weight the chancellor gave this permanent condition is unknown. The fact that one spouse
causes another to contract an uncomfortable, embarrassing disease, which may affect the likelihood of that
spouse again becoming married, must be included in the evaluations of fault and misconduct. We find
nothing pre-ordained about the manner in which Mr. Buckley's infecting his wife with a venereal disease had
to be measured. Whatever the chancellor awarded, Mrs. Buckley could argue that this venereal disease
means that she should have been awarded more. There are few absolutes in divorce. However, under our
relaxed standard of review, we cannot gain the confidence necessary that the chancellor gave proper weight
to fault.
(11) Wasteful dissipation of assets by either party
¶30. Although not specifically labeling Mrs. Buckley's actions as "wasteful dissipation" of marital assets, the
chancellor found, and Mrs. Buckley admitted, that she had withdrawn from the couple's savings account
$6,733 after the separation of the parties despite the fact that Mr. Buckley was providing Mrs. Buckley
with financial support by "paying the house note, the insurance, the taxes, and his car note . . . ." The
chancellor credited this amount to Mrs. Buckley when distributing the marital assets among the parties.
(12) Other factors
¶31. Mrs. Buckley argues in her brief that the chancellor should have considered the effect of other
consequences of Mr. Buckley's indiscretions on her ability to remarry. Specifically, Mrs. Buckley argues
that her former husband infected her with a venereal disease which makes it improbable that she will
remarry.
¶32. The chancellor did not address this issue in the manner that Mrs. Buckley seeks, but he had found that
Mr. Buckley was primarily at fault in causing the divorce. In distributing proceeds from the sale of the real
property, Mrs. Buckley received $3,563.59 to compensate her for outstanding medical bills, a portion of
which related to the medical problems caused by Mr. Buckley.
¶33. We also note that the chancellor was operating under the conclusion that alimony should not be
awarded. Instead, equitable "distribution was made for a particular purpose and that is to avoid problems
between the parties in the future by way of eliminating the need for alimony." The chancellor distributed to
Mrs. Buckley about $14,000 more in marital assets; "the variance in this equitable distribution [would]
eliminate the need for alimony."
¶34. We cannot, especially under our less deferential review standard, find that the equitable distribution of
$14,000 more in marital assets takes the place of permanent alimony. A one-time distribution of a relatively
small amount of property and the permanent bar to the receipt of alimony even if Mr. Buckley's income
returns to his more normal levels, are a poor substitute for support.
Summary regarding alimony
¶35. Had Mr. Buckley filed a brief and not inferentially confessed error when he failed to do so, we would
with considerable deference to the chancellor have analyzed this decision to increase the amount of
equitable distribution in favor of Mrs. Buckley in order to avoid alimony. Absent a brief, however, to affirm
we must find that error clearly did not occur. That clarity does not exist. We would be troubled by the
chancellor's refusal to grant alimony on these facts regardless of our standard of review.
¶36. We reverse and remand with instructions for the chancellor to award alimony.
2. Post-Appeal Motion for Attorney's Fees
¶37. Mrs. Buckley filed a post-appeal motion for attorney's fees in the amount of $1,100 for preparation of
her appeal. When the trial court has required one spouse to pay the other's attorney's fees below, ordinarily
we award one-half that sum on appeal. This is not done "when the permanent alimony awarded to the wife
gives her sufficient means to meet the obligation of counsel fees on appeal." McKee v. McKee, 418 So. 2d
764, 767 (Miss. 1982). Since no permanent alimony has yet been awarded, that exception does not apply.
¶38. The chancery court awarded Mrs. Buckley $1,200 in attorney's fees. Therefore, the appropriate
amount to award in response to the motion is $600.
¶39. THE JUDGMENT OF THE CHANCERY COURT OF JASPER COUNTY IS REVERSED
AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS AS NEEDED TO
AWARD ALIMONY. THE APPELLANT'S MOTION FOR ATTORNEY'S FEES IS
GRANTED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLEE.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.