Mary Lucille Paulk Redd v. Zelmer Gordon Redd
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CA-00992-COA
MARY LUCILLE PAULK REDD
v.
ZELMER GORDON REDD
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:
APPELLANT
APPELLEE
05/14/2001
HON. EDWARD E. PATTEN, JR.
LINCOLN COUNTY CHANCERY COURT
WILLIAM D. BOERNER
EDWARD P. LOBRANO JR.
CIVIL - DOMESTIC RELATIONS
FINDING THAT PLAINTIFF IS ENTITLED TO 23% OF
$470,155 WHICH EQUATES TO $108,135
AFFIRMED-10/22/2002
BEFORE KING, P.J., LEE, AND IRVING, JJ.
IRVING, J., FOR THE COURT:
¶1. Mary Lu Redd (Mary Lu) appeals from an order of the Chancery Court of Lincoln County giving her
twenty-three percent of the amount by which the marital estate had been undervalued due to a mathematical
error. She submits a single issue: whether the lower court on remand erred by failing to fairly divide the
remaining marital assets.
¶2. Finding no reversible error, we affirm.
FACTS
¶3. This case is before this Court a second time. Our initial decision is reported at Redd v. Redd, 774 So.
2d 492 (Miss. Ct. App. 2000). Mary Lu and Zelmer Gordon Redd (Zelmer) were married for thirty-two
years, and from that union four children were born. Mary Lu was granted a divorce from Zelmer on the
grounds of habitual cruel and inhuman treatment. The special chancellor, R.B. Reeves, initially determined
that the marital property was valued at 4.6 million dollars. Mary Lu received twenty-three percent of the
marital estate.
¶4. In Mary Lu's initial appeal, this Court found manifest error in the chancellor's valuation of the marital
estate and reversed and remanded. This Court found that the marital estate was actually worth $5,070,155,
or $470,155 more than initially determined by the trial court. We instructed the chancellor on remand to:
reconsider the distribution of marital assets to Mary Lu in light of the valuation error, keeping in mind
the guidelines set forth in Ferguson. We do not address whether the chancellor's distribution to Mary
Lu was equitable since we do not yet know what portion of the discrepancy in the valuation the
chancellor will award on remand. We note, however, in light of the highly deferential standard of
review, that twenty-three percent of the total estate, standing alone, is not grounds for reversal. This is
especially true since the assets awarded to Mary Lu were of the type that would be easy to liquidate,
while Gordon received ongoing business concerns together with total responsibility for the liabilities
attached thereto.
Redd v. Redd, 774 So. 2d 492, 496 (¶15) (Miss. Ct. App. 2000).
¶5. The hearing to address the matter on mandate from this Court commenced on April 16, 2001.
Following arguments from both sides, the chancellor stated, "I simply don't read this opinion as telling me to
revisit the entire case." The lower court issued a judgment on May 17, 2001. The judgment set forth that the
prior written opinion in this case by Judge Reeves contained a valuation error resulting in $470,155 not
being included in the marital estate.(1) Judge Patten utilized the same percentage as had Judge Reeves and
awarded Mary Lu twenty-three percent of the $470,155, or an additional $108,135.
ANALYSIS AND DISCUSSION OF THE ISSUE
¶6. An appellate court's scope of review in domestic relations cases is limited, and an appellate court will
not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an
erroneous legal standard was applied. Johnson v. Johnson, 823 So. 2d 1156, 1159 (¶7) (Miss. 2002)
(citing Ferguson v. Ferguson, 639 So. 2d 921, 930 (Miss. 1994); Bell v. Parker, 563 So. 2d 594, 59697 (Miss. 1990)). Furthermore, the chancellor's findings of fact will not be reversed if there is any
substantial credible evidence which supports them. Dunaway v. Busbin, 498 So. 2d 1218, 1221 (Miss.
1986).
¶7. Mary Lu contends that the lower court on remand committed error in awarding her only twenty-three
percent of the $470,155. Additionally, Mary Lu argues that the trial court committed error in its total
distribution of the marital estate by only awarding her twenty-three percent. Mary Lu further suggests that
the trial court, in both the initial divorce proceeding and on remand, failed to provide any findings of fact to
explain its reasons for such a limited award.
¶8. The Ferguson guidelines are eight considerations that the Mississippi Supreme Court adopted for
chancery courts to use when they equitably divide marital property. Those guidelines include:
1. Substantial contribution to the accumulation of the property. Factors to be considered in
determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
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, and
c. 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 inter vivos gift by or to an individual spouse;
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.
Ferguson, 639 So. 2d at 928.
¶9. The law of this state requires equitable, not equal, distribution of the marital estate. Peterson v.
Peterson, 797 So. 2d 876, 880 (¶17) (Miss. 2001). Equitable division is the fair determination of the
division of marital property based on both spouses' contributions during the marriage. Traxler v. Traxler,
730 So. 2d 1098, 1102 (¶21) (Miss. 1998).
¶10. A review of the record reveals that Judge Reeves in the initial divorce proceeding did in fact consider
the Ferguson guidelines in determining that Mary Lu was entitled to twenty-three percent of the marital
estate. Judge Patten concluded that Judge Reeve's opinion should not be disturbed. Judge Patten on
remand ruled in the following manner regarding Judge Reeve's earlier decision:
The prior Written Opinion of Judge Reeves and resulting order contained a valuation error resulting in
$470,155.00 in total of the marital estate that should have been considered, but was not.
Judge Reeves, after having considered all of the evidence in the case, determined that Mrs. Redd was
entitled to 23% distribution of the marital assets as equitable distribution.
This Court is of the opinion that the aforesaid percentage (23%), which by implication by the Court of
Appeals is at least an acceptable percentage, should not be disturbed.
¶11. Moreover, at the conclusion of the hearing held on April 16, 2001, Judge Patten stated that he did not
read the instructions from this Court, in remanding this case, as requiring him to revisit the entire case or that
he should "conduct an independent Ferguson inquiry . . . that was considered by Judge Reeves." Judge
Patten reasoned that the additional $470,155 was not an omission of assets in the marital estate, but a
"mathematical error in tallying the various assets that constituted the marital estate." Because Judge Reeves
had already performed a Ferguson inquiry, Judge Patten announced that it was his job to divide the
additional $470,155 that had initially been omitted by Judge Reeves due to a mathematical error in
calculating the total marital estate. He acknowledged that this Court stated in its opinion that a twenty-three
percent distribution alone was not grounds for reversal. Moreover, Judge Patten recognized that this Court
found that Mary Lu was awarded assets that were easy to liquidate, whereas, Zelmer was awarded
"ongoing business concerns together with total responsibility for the liabilities attached thereto."
¶12. We find that Judge Patten did not err in not revisiting each of the individual Ferguson guidelines under
the circumstances. Although we instructed the trial judge to take a look at the total distribution of the marital
estate while keeping in mind the Ferguson guidelines, we also said that a twenty-three percent distribution,
standing alone, was not grounds for reversal. Judge Patten did not misconstrue our earlier opinion. In his
ruling, he stated that he had looked at Judge Reeves's opinion and believed that the percentage of
distribution, as previously determined by Judge Reeves, should not be disturbed. In the final judgment
rendered by Judge Reeves, he stated that he had reviewed the Ferguson guidelines. He then discussed the
first of the eight Ferguson guidelines and found that the other guidelines either had no application under the
facts of the case or were discussed in other portions of his opinion. We cannot say that Judge Patten
manifestly erred in essentially adopting Judge Reeves's findings of facts and conclusions of law. Accordingly,
we affirm his decision.
¶13. THE JUDGMENT OF THE CHANCERY COURT OF LINCOLN COUNTY AWARDING
APPELLANT THE SUM OF $108,135 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.
1. Chancellor Edward E. Patten, Jr. was the presiding judge on remand.
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