Yolanda A. Gutierrez v. Richard A. Bucci
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CA-01142-COA
YOLANDA A. GUTIERREZ
v.
RICHARD A. BUCCI
APPELLANT
APPELLEE
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
12/01/1999
HON. WILLIAM H. MYERS
JACKSON COUNTY CHANCERY COURT
WILLIAM LEE GUICE III
MARIA M. COBB
EARL L. DENHAM
WENDY C. HOLLINGSWORTH
CIVIL - DOMESTIC RELATIONS
DIVORCE GRANTED; PHYSICAL CUSTODY
AWARDED TO FATHER
AFFIRMED - 09/24/2002
10/15/2002
BEFORE SOUTHWICK, P.J., BRIDGES, AND LEE, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1. Dr. Richard Bucci was granted a divorce from Dr. Yolanda A. Guiterrez on the ground of adultery.
Physical custody of the couple's two daughters was awarded to Dr. Bucci. Dr. Guiterrez appeals arguing
that the chancellor erred as to custody and in classifying certain assets as being the separate property of Dr.
Bucci. We find no reversible error and affirm.
STATEMENT OF FACTS
¶2. Richard Bucci and Yolanda Guiterrez were married in May 1987 in Mobile, Alabama. At first, the
couple resided in New Orleans. Dr. Gutierrez had immigrated to the United States from her native
Nicaragua in 1982. She received a medical degree from a university in Nicaragua before arriving in the
United States. However, Dr. Gutierrez was unable to obtain a medical license in Louisiana. When the
couple married, she was working as a medical assistant. Dr. Bucci had been a staff physician for eight years
at Oschner Clinic in New Orleans and had also become a partner.
¶3. Dr. Bucci hired an attorney to facilitate his wife's obtaining of a Louisiana medical license. This was
unsuccessful. The couple relocated to Mobile, Alabama in 1988 so that Dr. Gutierrez might obtain her
medical license and begin a medical residency at the University of South Alabama. Dr. Gutierrez arrived in
Mobile in July 1988. The next month, the couple's first child, Johana, was born. A few months later, Dr.
Bucci left Oschner and relinquished his partnership interest. After moving to Mobile, Dr. Bucci was
employed full-time at Providence Hospital in Mobile and part-time at Singing River Hospital Systems in
Pascagoula, Mississippi. In 1989, Dr. Bucci began full-time employment as an emergency room doctor at
Singing River.
¶4. Dr. Gutierrez completed her residency in 1991. The couple then moved to Pascagoula in 1992. The
couple's second child, Carolina, was born in February 1993. In June 1996, Dr. Gutierrez began working
full-time at a children's clinic in Pascagoula.
¶5. In either December 1995 or January 1996, Dr. Gutierrez met Keith Cooper at a video store. Sometime
thereafter, they began having an affair. Dr. Gutierrez took Cooper on a trip to California in the spring of
1997. Dr. Gutierrez asserted that the affair ended later that year.
¶6. At some point, Dr. Bucci discovered the affair. He filed for divorce on the ground of adultery on
October 24, 1997. Dr. Gutierrez counterclaimed and alleged habitual cruel and inhuman treatment or
alternatively sought a divorce based on irreconcilable differences. Under a temporary court order, custody
of the two children alternated between the parents each week. The children remained in the marital home
and each parent moved in and out as custody changed.
¶7. After two hearings in January and May 1998, Dr. Gutierrez was found in contempt of court. The first
hearing concerned Dr. Gutierrez's violation of the temporary custody order. Dr. Gutierrez often returned the
children to Dr. Bucci after the time designated by the court. She also did not vacate the marital residence
when Dr. Bucci was to have the children. The second hearing dealt with Dr. Gutierrez's refusal to provide
Dr. Bucci with access to a second home that she had purchased at about the time of the filing of the
divorce. The court required Dr. Gutierrez to provide Dr. Bucci with a key to the new home. Dr. Gutierrez
also placed a lock on the door to the master bedroom.
¶8. Hearings concerning the divorce were held between June 1998 and May 1999. Numerous witnesses
were called by both parties. More than eighty exhibits were entered into evidence.
¶9. Judgment was entered on December 1, 1999. Dr. Bucci was granted a divorce on the ground of
adultery. He was awarded primary physical custody of the children, and Dr. Gutierrez was allowed
visitation. Dr. Gutierrez was ordered to pay child support.
¶10. Dr. Gutierrez filed a motion to require the chancellor to issue findings of fact and conclusions of law to
support his judgment. On June 30, 2000, the chancellor issued his sixty-six page findings of fact and
conclusions of law. Dr. Gutierrez's notice of appeal was filed shortly thereafter.
DISCUSSION
¶11. Dr. Gutierrez asserts on appeal that the chancellor erred in granting Dr. Bucci physical custody of the
children, erred by not ordering Dr. Bucci to pay child support, and erred in classifying certain properties as
being Dr. Bucci's separate property. Because we uphold the decision to award custody to the father, we do
not discuss the issue of whether the father should pay child support had we reversed that custody
determination.
1. Custody
¶12. In matters of child custody, this Court employs a limited standard of review. Which parent should be
awarded primary custody is determined by reference to identified factors. Lee v. Lee, 798 So. 2d 1284,
1288 (Miss. 2001). The decision of the chancellor as to the placement of the child will only be reversed if
manifestly wrong, clearly erroneous, or arrived at by application of an erroneous legal standard. Williams
v. Williams, 656 So. 2d 325, 330 (Miss. 1995).
¶13. There is at least one circumstance where this Court does not accord the chancellor the usual level of
deference. "Where the chancellor adopts, verbatim, findings of fact and conclusions of law prepared by a
party to the litigation, this Court analyzes such findings with greater care and the evidence is subjected to
heightened scrutiny." Brooks v. Brooks, 652 So. 2d 1113, 1118 (Miss. 1995). Dr. Gutierrez asserts in her
brief that the chancellor adopted the "factually inaccurate proposed findings of fact and conclusions of law
submitted . . ." by her now ex-husband's attorney. It is true that the chancellor invited proposed findings of
fact and conclusions of law from both parties. However, the proposals were not made part of the appellate
record. We have no meaningful way to evaluate Dr. Gutierrez's assertion. Thus, we will grant the
chancellor's findings the usual level of deference.
¶14. We examine the challenges made by Dr. Gutierrez to the chancellor's findings.
a. Age, Health, and Sex of the Children
¶15. The chancellor found this factor to weigh slightly in favor of Dr. Gutierrez. At the conclusion of the
hearings, Johana was ten years old; Carolina was six years old. The chancellor found that since both
children were in excellent health, that health did not affect custody. The chancellor found that as both
children were girls, this favored custody by their mother. The chancellor also found that the children were
not of tender age and related well to both parents.
¶16. Dr. Gutierrez asserts that the children were of tender age and that the "tender years" doctrine
presumes that she as the mother is better suited to raise two young girls. That doctrine holds that "'[i]n all
cases where any child is of such tender age as to require the mother's care for its physical welfare it should
be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared
for by other persons.'" Law v. Page, 618 So. 2d 96, 101 (Miss. 1993).
¶17. An older decision stated that "this Court has continuously held that if the mother of a child of tender
years -- especially a female -- is so fit, then she should have custody." Buntyn v. Smallwood, 412 So. 2d
236, 238 (Miss. 1982). Later, though, the Supreme Court held that the tender years doctrine only created
a rebuttable presumption. Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). Even if the children
are of the age to which the tender years doctrine might apply, the doctrine "is but one factor out of many to
be considered in a child custody case." Blevins v. Bardwell, 784 So. 2d 166, 173 (Miss. 2001). Children
who are seven years or older are "long past the age prior to which it requires attention of such character
from the mother." Torrence v. Moore, 455 So. 2d 778, 780 (Miss. 1984).
¶18. The chancellor's evaluation of this factor was not clearly erroneous.
b. Continuity of Care Prior to Separation
¶19. The chancellor found that this factor favored Dr. Bucci. The chancellor stated that "[w]hether or not it
was the case earlier during the marriage, the evidence clearly establishes [Dr. Bucci] had provided
continuity of care of the minor children prior to the separation of the parties for a significant period of time
and was the primary caregiver at the time the parties separated." Dr. Gutierrez's argues the evidence was
not so clear. She had testified that she was the primary caregiver and that Dr. Bucci was "never around and
generally had no time to spend with the family."
¶20. Evidence came in part from a witness whose testimony Dr. Gutierrez complains should not have been
given much weight. Amada Ecury was employed as a nanny for the children from March to August 1997.
What weight and credibility to be given her evidence is for the chancellor, not for an appeals court. Rogers
v. Morin, 791 So. 2d 815, 826 (Miss. 2001). Because of the long hours worked by both parents, the
couple employed several nannies during their marriage. Dr. Gutierrez argues that had either parent been able
to spend much time with the children, no nanny would have been needed. From this observation, Dr.
Gutierrez appears to argue that neither she nor Dr. Bucci could be considered the primary caregiver; the
nanny was. However, what is being compared is the care provided by the parents. That a third party,
whether a nanny or a day care center, was also involved does not obliterate the need to make this
comparison between the parents. It is possible that in some marriages neither parent provides relevant care.
That does not seem the case here.
¶21. Ecury usually resided with the family for five days each week and would also stay in the household on
the weekends if both doctor parents were working. Ecury testified that Dr. Bucci spent more time with the
children than did Dr. Gutierrez. Ecury stated that this was because Dr. Bucci's schedule would allow him to
work three or four days and then have the same number of days off. She testified that Dr. Bucci took the
children swimming, to parks, on vacation, and on other activities, while Dr. Gutierrez's schedule prevented
her from participating. If Ecury was unable or did not take the children to various activities, Dr. Bucci
usually did so.
¶22. We do not examine each statement by Ecury that is challenged by Dr. Gutierrez. As just one example,
Dr. Gutierrez disagrees that she allowed the children to have their way or that they usually cried when she
was with them in order to manipulate her. Dr. Bucci allegedly did not allow such behavior. The evidence
was conflicting and there is support for the chancellor's various findings.
¶23. There is also a complaint about the chancellor's reliance on certain testimony to reach the following
conclusion about Dr. Gutierrez's admitted affair: "Testimony, particularly that of Mrs. Ecury, established that
Yolanda spent her time off with Mr. Cooper rather than with the children." Dr. Gutierrez argues that this is a
misstatement of fact since Ecury stated that though she believed that Dr. Gutierrez was having an affair, she
was not certain. First, this finding was not made under the continuity of care factor but under the moral
fitness factor discussed below. The finding is also taken out of context. Ecury's testimony was that Dr.
Gutierrez did not spend much of her time off with the children. Other testimony, including that of Dr.
Gutierrez, established that she spent time with her paramour and not her children. We find no error on this
point.
¶24. One witness who was present just about every day at the private school that the children attended,
testified that she saw Dr. Bucci at the school with the children more often than she saw Dr. Gutierrez. She
described once seeing Dr. Gutierrez go to one of the children's classrooms, staying briefly, and then leaving.
That witness then saw the child sitting in her teacher's lap and crying. She did not know what had
happened. That was an ambiguous incident that was presented as such.
¶25. The overall testimony supports the chancellor's finding that although Dr. Gutierrez was more involved
with the children during the early part of the marriage, that her involvement declined with the advent of her
affair and that Dr. Bucci became the primary caregiver.
c. Best Parenting Skills, Willingness and Capacity to Provide Primary Care
¶26. Dr. Gutierrez argues the chancellor's findings on this factor "do not accurately summarize the testimony
of the witnesses at trial." Dr. Gutierrez asserts that the chancellor ignored the favorable testimony both of a
neighbor Mamie Futch, and of Pam Larson, a licensed practicing nurse who worked for Dr. Gutierrez. The
chancellor discussed the testimony of both of these witnesses in his findings and noted that they were quite
favorable towards Dr. Gutierrez.
¶27. Even so, the chancellor found that this factor favored Dr. Bucci. The chancellor noted that Dr.
Gutierrez testified that Keith Cooper forced his way into her house demanding a prescription painkiller. Dr.
Gutierrez testified that she thought Cooper had a gun with him. Cooper made Dr. Gutierrez drive to Mobile
and obtain a prescription. Dr. Gutierrez never reported this incident to the authorities and stated at trial that
she did not believe Cooper to be a "bad person" or a "criminal" but just someone that "was having a bad
time at the time . . . ."
¶28. The chancellor found that Dr. Gutierrez routinely violated the visitation order by bringing the children
home late or not vacating the marital residence when she was required. Dr. Gutierrez entered the marital
residence during the weeks that Dr. Bucci was residing there. Dr. Gutierrez also entered the marital
residence when she was not to be there in order to take pictures of the home and of Dr. Bucci's living area.
Dr. Gutierrez removed the children's clothing from the marital residence and refused to pack the children's
clothes during the weekly changes of custody because she said that it was too much trouble. Dr. Gutierrez
also removed the children's furniture from the residence despite that she had bunk beds for the children at
her home. Dr. Gutierrez's violation of his orders placed the children "under great stress and clearly ignor[ed]
their welfare."
¶29. The chancellor found that Dr. Gutierrez did not save for the children while Dr. Bucci did. Dr. Gutierrez
claimed to have spent all of her income on the household and the children. However, Dr. Gutierrez testified
at trial that she had saved some money for her children but withdrew those funds. She could not recall on
what she had spent those funds.
¶30. The chancellor's findings on this factor were not clearly erroneous.
d. Responsibilities of each Parent's Employment
¶31. The chancellor found this factor to be neutral. The work schedules of each doctor "could be
compatible with their children's routines." Dr. Gutierrez asserts that her schedule would allow her more time
with the girls each evening and on the weekend. Dr. Gutierrez argues that Dr. Bucci's schedule requires him
"periodically [to] be away until late in the evening and over night." However, Dr. Gutierrez's schedule
requires the same of her. We find no error.
e. Physical and Mental Health
¶32. This factor was found to favor Dr. Bucci. The chancellor found that Dr. Gutierrez took prescription
medication other than Loritab for back pain, that the evidence was "highly suggestive" that she developed
an addiction to Loritab, and that she admitted that she self-prescribed Ambien. We examine these findings.
¶33. Dr. Gutierrez testified that she took Loritab for back pain. She testified that one of Dr. Bucci's coworkers, who was a neurosurgeon, diagnosed her with a bulging disk in her back and "put her on
medication for that . . . ." Whether this medication was Loritab or another drug is unclear.
¶34. At one point, Dr. Gutierrez denied having self-prescribed Loritab. At another hearing, Dr. Gutierrez
testified that she could not recall if she had ever self-prescribed Loritab. Later at that hearing, she stated
that "I believe I have." She admitted that she prescribed Loritab for her mother under both her name and
her mother's name; for her paramour, Keith Cooper, using the name "Rosa Gonzalez"; and also for her
sister. There was no testimony indicating that either of Dr. Gutierrez's family members had medical
conditions requiring Loritab. Cooper testified and was asked several questions about his and Dr. Gutierrez's
use of Loritab. To each inquiry, Cooper invoked his Fifth Amendment right against self-incrimination.
¶35. Pharmacy records introduced at trial indicated that Dr. Gutierrez self-prescribed Loritab, Paxil, and
hydrocodone, a generic form of Loritab. Dr. Bucci testified that he refused to bring home any more sample
packs of Loritab and Lorcet after he noticed that those packs were disappearing. Dr. Bucci testified that he
also had experienced pain from a bulging disc and had used Loritab.
¶36. The chancellor erroneously found that Dr. Gutierrez admitted that she self-prescribed "Ambien," a
sleeping pill. The only reference to Ambien is from Dr. Bucci. He testified that Dr. Gutierrez once asked him
to pick up an Ambien prescription for her. We find no significance to this factual error as to the selfprescribing of Ambien, since the larger problem expressed in the findings was Dr. Gutierrez's possible
misuse of Loritab. Both Dr. Bucci and Dr. Gutierrez underwent drug tests whose results were negative for
the drugs tested.
¶37. The evidence raised concerns about Dr. Gutierrez's possible misuse of Loritab. The chancellor had to
make a decision on each factor based on the evidence before him, some of which was inconclusive. We
find no error in this factor being weighed in favor of the father.
e. Moral fitness
¶38. Dr. Gutierrez asserts that the moral fitness factor took the "lion's share of the chancellor's attention"
and that she was unfairly penalized for her affair with Keith Cooper. Marital infidelity cannot be used as the
sole basis for denying physical custody to the offending parent. McKee v. Flynt, 630 So. 2d 44, 49 (Miss.
1993). However, the chancellor stated that Dr. Gutierrez's "behavior throughout gives the Court serious
concern about her moral fitness."
¶39. Dr. Gutierrez asserts that her affair was her only act of moral indiscretion during the marriage. She
claimed that she met Keith Cooper in late 1995 or early 1996 and that their relationship did not become
sexual until mid-1996. She stated that she expressed great remorse for the affair. Dr. Bucci testified that Dr.
Gutierrez never apologized to him; Dr. Gutierrez corroborates that. She testified that though Dr. Bucci
knew of the affair that he "never talked to me about it which is what I would have expected a caring
husband to do." She also asserted that Dr. Bucci "does everything always behind my back." It was only
after Dr. Bucci had filed for divorce that Dr. Gutierrez claims to have made any attempt to discuss with Dr.
Bucci and apologize for the affair.
¶40. To show her husband's alleged moral unfitness, Dr. Gutierrez claimed that he kept a large amount of
pornography in the house. He would leave Playboy magazines in common areas where the children could
easily see them, and kept a large stack of them in a room that he used as his office. She also testified that
Dr. Bucci had a large box full of pornographic movies easily accessible by the children and that these
movies were sometimes left by Dr. Bucci in the videocassette recorder where the children could have seen
them.
¶41. Dr. Gutierrez offered into evidence two issues of Playboy magazine and also two pornographic
videos. The jacket of each video was said to have extremely graphic photographs of adults engaged in
various sexual activities. Also introduced was a pornographic catalog that Dr. Bucci had ordered and had
sent either to his office or to his mother's home in Mobile.
¶42. What apparently was found to damage Dr. Gutierrez's credibility on the details of many incidents was
that she offered photographs that she had taken that purported to show numerous magazines and videos
lying about the marital residence. On careful questioning after an initial denial, Dr. Gutierrez admitted that
she had staged the photographs. The only videos clearly depicted in the photographs were the two entered
into evidence. She also admitted that these were the only pornographic videos that she could find; therefore,
a photographed cardboard box that allegedly and openly contained many more such videos was not what it
was first said to be.
¶43. Dr. Gutierrez admitted that she took these two videos from Dr. Bucci's locker at the hospital and
placed them in the home for the purpose of producing her photographs. These two videos were the only
ones that she could find, but she asserted that Dr. Bucci at one time had a collection of more than twenty.
Dr. Bucci admitted that the videos were his but denied that they ever were in the house. Dr. Bucci testified
that he owned only those two videos introduced into evidence.
¶44. When first asked about the photograph of the Playboy magazines and their peculiar arrangement, Dr.
Gutierrez stated that she found them in that way in the home. Later she admitted to having spread them out
and having arranged them so that the title could be seen in the picture. Dr. Gutierrez admitted to rearranging
both the magazines and videos several times in order to take additional photographs. She claimed it was
necessary to rearrange the magazines and videos because while she was taking the photographs she "heard
one of my daughters calling me and I had to hide everything." Dr. Gutierrez claimed that she was attempting
to demonstrate to the court what the house looked like before Dr. Bucci removed all of the videos.
¶45. Dr. Gutierrez also claimed that Dr. Bucci left adult materials all over the house. However, both a nanny
and one of Dr. Gutierrez's nurses, who were frequently in the house for baby sitting and other reasons,
stated that they had not seen any adult videos or magazines lying around the house. Another witness
testified that she had seen a particular magazine, but her credibility was undermined when the specific
magazine that she allegedly saw was published over a year after she last worked for the family.
¶46. There were other alleged incidents which were part of Dr. Gutierrez's effort to portray her husband as
overcome with the need to view pornography. The chancellor found most of the evidence presented on this
point to have been discredited. Dr. Bucci did admit to viewing pornography, but denied that it was to the
degree that his wife asserted. He also denied having such materials at the house or in other locations where
his daughters could see them. The chancellor accepted that testimony, and we find no error in that choice.
¶47. Dr. Gutierrez takes issue with two other findings regarding her character. The first is that she admitted
to using marijuana at some time in the past. The other statement is that prior to the birth of their first
daughter, that Dr. Gutierrez and her husband used illicit drugs and viewed adult movies together. Though
Dr. Gutierrez denied that she smoked marijuana, she did admit at one hearing that before she and her
husband were married, that they used "recreational drugs" on one occasion. The chancellor said that he
would not consider anything that either party did before the marriage. Thus, the chancellor's finding
concerning marijuana was erroneous. In the totality of the evidence underlying this factor, the error was
inconsequential. As to the other contested finding here, Dr. Gutierrez admitted to having watched adult
movies with Dr. Bucci.
¶48. The chancellor's discussion of moral fitness did not dominate his conclusions. Some minor errors in the
findings were made. After reviewing the nearly one thousand page transcript and the chancellor's sixty-six
page findings of fact and conclusions of law, we find it clear that Dr. Gutierrez's affair with Keith Cooper
was not the sole reason that she was denied custody. Other findings in the chancellor's written opinion could
apply to this factor as well. The chancellor noted Dr. Gutierrez's general unreliability, such as her testimony
concerning Loritab, the photographs purporting to demonstrate Dr. Bucci's penchant for pornography,
misrepresentation of her income, and refusal to cooperate in discovery as to her financial status. Dr.
Gutierrez refused to produce certain financial records such as checks, bank statements, and credit card
statements relating to the time period in which she was involved with Keith Cooper.
¶49. This factor was properly found to weigh in favor of Dr. Bucci.
f. Stability of the Home Environment
¶50. The chancellor found that from "the entirety of the evidence it is obvious that the environment in
Richard's home would be much more stable than Yolanda's." The chancellor based this conclusion on Dr.
Gutierrez's refusal to comply with court orders concerning custody, the children's clothing, use of the home
she had purchased, and harassment of Dr. Bucci. The chancellor found that Dr. Bucci had done what he
could to promote harmony between the children and their mother. The chancellor noted that Dr. Gutierrez's
"disregard of this Court's orders, her erratic and obsessive behavior, and her flagrant and continuous
harassment of Richard have exposed her daughters to the very scenes from which this Court sought to
protect them."
¶51. The chancellor mentioned that Dr. Jane Cook, a clinical counselor, gave her opinion that each parent
had a strong emotional tie with the children and that they should have an equal role in the lives of the
children. While Dr. Cook may have been designated by the chancellor as an expert, that designation did not
obligate the chancellor to adopt her position as to the awarding of custody.
¶52. We cannot say that the chancellor's finding on this factor was clearly erroneous.
¶53. The overall conclusion that it was in the best interest of the children to award custody to the father is
supported by this evidence. We affirm the custody decision.
2. Division of Property
¶54. A chancellor's decision concerning the distribution of marital assets will not be disturbed unless such a
decision is clearly erroneous, manifestly wrong, or arrived at through the application of an erroneous legal
standard. Franks v. Franks, 759 So. 2d 1164, 1166 (Miss. 1999). The chancellor properly began by
classifying the properties of each spouse as either marital or non-marital. Franks, 759 So. 2d at 1166. The
chancellor then employed factors enumerated by the Supreme Court to arrive at an equitable distribution of
the marital property. Id. With the standard of review in mind, we look to the chancellor's classification of
certain properties.
a. Harley-Davidson Motorcycles
¶55. During the marriage, Dr. Bucci purchased three Harley-Davidson motorcycles. The total value of the
motorcycles was $23,190.00. The chancellor classified two of the motorcycles, a 1983 Harley Sturgis and
1997 FXWG Harley, having a total value of $17,155, as being the separate non-marital property of Dr.
Bucci. This classification was based on the fact that the two motorcycles were purchased purely with funds
from a retirement account established by Dr. Bucci before his marriage to Dr. Gutierrez. Dr. Bucci did not
contribute funds to this particular account during the marriage. The chancellor classified the remaining
motorcycle, a 1996 Harley Sportster, as marital property as the testimony revealed it was purchased with
funds both from the retirement account and from the couple's joint checking account. Even so, the
chancellor also awarded the third motorcycle to Dr. Bucci as part of his distribution of marital assets.
¶56. Dr. Gutierrez argues that the two motorcycles are marital property because they were acquired during
the marriage. She argues that she is entitled to exactly half the value of three motorcycles or $11,995. If
property is obtained during marriage by the use of assets attributable to one's separate estate prior to
marriage, then the property may retain its character as separate property. Arthur v. Arthur, 691 So. 2d
997, 1002 (Miss. 1997).
¶57. Dr. Gutierrez argues that the first two motorcycles became marital property because she would use
them on occasion. We do not find that occasional riding of one of the motorcycles by the nonpurchasing
spouse necessarily causes the separate property to lose that classification. This Court recently concluded
that even when the marital home was purchased during the marriage with funds attributable to one spouse's
pre-marital estate, it may retain its non-marital character at least when the joint use is not long-term. Wilson
v. Wilson, 2001-CA-00659-COA (¶ 6) (Miss. Ct. App. June 25, 2002).
¶58. As to the 1983 Harley Sturgis and 1997 FXWG Harley, Dr. Bucci paid for them exclusively with
funds accumulated prior to his marriage. The classification of those two motorcycles as the separate nonmarital property of Dr. Bucci was correct. The third motorcycle was classified as a marital asset, but
awarded to the husband. We find no error that in awarding marital assets, that consideration is given to the
primary user of those assets. That was Dr. Bucci, and his receipt of the third bike despite that the other two
were to be his as well was not error in itself, if the overall marital property distribution was equitable.
b. Edgewater Drive Lots
¶59. Dr. Bucci was at one time a shareholder with two other physicians in a corporation known as
Sandpiper, Inc. The corporation was formed by Dr. Bucci and two other physicians to purchase and hold
properties. Two of those properties were located on Edgewater Drive in Ocean Springs, Mississippi. The
funds invested by Dr. Bucci in Sandpiper, Inc. came solely from the sale of properties Dr. Bucci owned in
New Orleans acquired and paid for prior to his marriage to Dr. Gutierrez. The corporation was later
dissolved and Dr. Bucci received the two Edgewater Drive properties. Dr. Bucci's financial statement listed
these two Edgewater Drive properties as having an estimated aggregate value of $85,000.
¶60. Dr. Gutierrez argues that these properties should not have been classified as her husband's separate
property. She argues that because Dr. Bucci used marital funds to make the mortgage payments on them,
that they became marital property by virtue of commingling.
¶61. Dr. Bucci disputes this as a factual matter by saying in his brief that the two Edgewater Properties did
not carry mortgages. However, a financial statement filed by Dr. Bucci with the chancery court lists these
two properties as having mortgages aggregating approximately $80,647.00. The payment on each mortgage
is listed as $466.29, for a total of $932.58 per month. Dr. Bucci testified at a 1999 hearing that he had
been paying for the mortgages on these properties out of his salary since mid-1998.
¶62. The chancellor should not have classified the Edgewater Drive properties as being the separate nonmarital property of Dr. Bucci. That is because Dr. Bucci used marital funds to pay the mortgages. That
changed their character from non-marital to marital. Johnson v. Johnson, 650 So. 2d 1281, 1286 (Miss.
1994). The chancellor properly noted as to other investment property that Dr. Bucci used marital funds to
pay those mortgages. As to that other property, however, the chancellor found that because Dr. Gutierrez
wasted a substantial amount of marital assets, that Dr. Bucci's use of marital funds for the mortgage
payments could be overlooked. The chancellor specifically found that Dr. Bucci used marital funds to pay
the mortgage payment of $1,200 on a house he received from the Sandpiper dissolution until the house was
sold. The chancellor found the total of these payments to total approximately $6,800.
¶63. The dissipation of assets finding is derived from evidence such as the following. After the couple
separated, Dr. Gutierrez bought a house with marital funds worth $195,000. Included in that amount was
approximately $80,000 that she spent either on the residence or its furnishings. A portion of those funds
came from her withdrawal of retirement funds which were accumulated during the marriage, totaling
approximately $44,500. Dr. Gutierrez also traded in a 1997 Lexus for a 1999 Lexus. She received $38,
000 on her trade-in but ended the transaction owing $48,000 on a $55,000 vehicle. Dr. Gutierrez's
financial disclosure statement listed her 1997 Lexus as having equity of $10,000 and an outstanding loan of
$40,000 attached to it.
¶64. The chancellor noted that Dr. Gutierrez's income at the time of the final hearing was approximately
$173,000, but that she had accumulated little or no savings, had consumed what she had saved, and had
also incurred a considerable debt. It was Dr. Gutierrez's contention that the majority of her income was
used to buy clothes for the children, pay household expenses, and purchase groceries for the family. The
evidence did not support this. The chancellor noted that Dr. Gutierrez leased a Ford Explorer for Keith
Cooper and made some lease payments on his behalf. A rough approximation of the amount of marital
funds spent on Mr. Cooper cannot be made because Dr. Gutierrez never produced copies of all her bank
and credit card statements. Approximately $14,700 was loaned or given to members of Dr. Gutierrez's
family. She claimed that the loan had been repaid but produced no documentation of any payments
received.
¶65. Returning now to the misclassified Edgewater Drive properties, we find that the chancellor's reasoning
for excusing the expenditure of marital funds for the Sandpiper house applies equally well to the Edgewater
Drive tracts. Considering the market value of the latter properties and their mortgages, the net value is only
$5,000. The chancellor found that Dr. Gutierrez wasted considerably more marital assets than that.
¶66. Equitable distribution of marital assets does not mean equal distribution. Owen v. Owen, 798 So. 2d
394, 399 (Miss. 2001). The chancellor considered all relevant factors and made specific findings on the
record. Regardless of what label the chancellor may have placed upon the Edgewater Drive properties, his
decision, based on the record in this matter, to award those properties and to assign the attached debts to
Dr. Bucci was not clearly erroneous.
¶67. THE JUDGMENT OF THE CHANCERY COURT OF JACKSON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, CHANDLER AND
BRANTLEY, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. MYERS, J.,
NOT PARTICIPATING.
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