Ann Hatcher McLaurin v. John H. McLaurin
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-00730-COA
ANN HATCHER MCLAURIN
APPELLANT
v.
JOHN H. MCLAURIN
APPELLEE
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
4/15/2002
HON. H. DAVID CLARK, II
NEWTON COUNTY CHANCERY COURT
LAWRENCE PRIMEAUX
JACK W. BRAND
ROGER GOOGE
CIVIL - DOMESTIC RELATIONS
JUDGMENT OF DIVORCE ENTERED DIVIDING
MARITAL ASSETS.
AFFIRMED: 09/02/2003
BEFORE SOUTHWICK, P.J., LEE AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Ann and John McLaurin were divorced on the grounds of irreconcilable differences. They filed
a consent to divorce agreement and submitted several issues to the chancellor for resolution. After the
chancellor divided the marital assets and entered a final judgment, Ann now appeals arguing that the
chancellor erred in denying her alimony and in dividing the marital assets. Finding no error, we affirm.
FACTS
¶2.
The McLaurins were married on August 2, 1956. The McLaurins’ three children were
emancipated at the time of their divorce. After forty-five years of marriage, the McLaurins separated on
December 28, 2000.
¶3.
Ann has been employed with Newton County Farm Bureau since 1968. She serves as both office
manager and secretary. Ann's net income from Farm Bureau is $1, 456.21 per month. Ann has a high
school education.
¶4.
John is a retired fireman. His total retirement income is $1,788 per month. He receives an
additional $250 per month in proceeds from a financed sale of timberland. After deducting health
insurance, John's net income is $1,348.57 per month. John has a high school education.
¶5.
On July 26, 2001, John and Ann executed and filed an agreement, pursuant to Mississippi Code
Annotated Section 93-5-2 (Rev. 1994), to consent to an irreconcilable differences divorce. The parties
specifically agreed to the division of certain marital property, namely two automobiles. Debra received the
1997 Cadillac, and John received the 1998 GMC truck. Each agreed to be responsible for the costs and
debt associated with their vehicle.
¶6.
During the course of the proceedings, John and Ann agreed to sell the marital home, sell John’s
interest in the remaining parcels of real property that he owned jointly with B. C. Broughton, pay all
associated costs of the sales, and divide the proceeds equally between them. John also agreed to provide
medical coverage to Ann, under COBRA, at a cost of $338 per month for twelve months.
¶7.
At the conclusion of the trial which was held on March 26 and 27, 2002, the chancellor rendered
a bench opinion. Thereafter, on April 1, 2002, the chancellor entered a supplemental opinion in which he
determined that the personal property in question was marital property because both parties were gainfully
employed during the marriage and because both parties substantially contributed to the accumulation of the
personal property. The personal property included items such as cash, monetary accounts, furniture and
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accessories, sporting goods, vehicles, tools, jewelry, appliances, and china. The chancellor then valued
the assets and distributed the marital property. Ann received marital property valued at $102,581.96, and
John received marital property valued at $86,611.97. Of the cash available, less outstanding liabilities, the
chancellor evenly distributed Ann and John $9,747.97 each.
¶8.
The chancellor estimated the cash that was to be received from the sale of the home was $130,000,
the four parcels of land from the joint venture was $242,558, and he then determined that each party would
receive one-half of the total, approximately $186,279. The chancellor considered Ann’s medical coverage
through COBRA, for a period of twelve months, and according to the parties' agreement awarded her the
sum of $4,056 to pay the cost of that coverage.
¶9.
The chancellor determined that John would receive total assets valued at $282,638.76 and that Ann
would receive total assets valued at $302,664.75. The chancellor concluded that this division, with Ann
receiving 51.7% of the marital assets and John receiving 48.3%, was equitable and would adequately
provide for the needs of both parties. The chancellor decided that the division of assets was proper after
taking into consideration their standard of living, their income and expenses, the non-existence of nonmarital property, and the cash division to be received by each from the sale of the home and timberland.
The chancellor noted that he had not, as requested by the parties during trial, “equally” divided their marital
assets because this property division eliminated the need for periodic payments and other potential sources
of friction between the parties. The chancellor’s findings of fact and conclusions of law were memorialized
in a judgment for divorce entered on April 15, 2002.
STANDARD OF REVIEW
¶10.
This Court employs a limited standard of review of the division and distribution of property in
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divorces. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). The chancellor's division and distribution
of property "will be upheld if it is supported by substantial credible evidence." Carrow v. Carrow, 642
So.2d 901, 904 (Miss.1994). This Court will not substitute its judgment 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." Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978). The chancellor's findings will not
be disturbed "unless the Chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard
was applied." Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990).
LEGAL ANALYSIS
1.
¶11.
Whether the court erred in rejecting the parties' agreement at trial to
equally divide the assets.
Ann contends that the chancellor erred by rejecting the parties' agreement, during the trial, to
“equally” divide the assets.
The Mississippi Supreme Court has declined to interpret “equitable”
distribution to mean “equal” distribution. Trovato v. Trovato, 649 So.2d 815, 818 (Miss. 1995). "It is
well-settled law that the courts, when making an equitable distribution of marital property, are not required
to divide the property equally. Love v. Love, 687 So.2d 1229, 1232 (Miss. 1997). 'Mississippi is not
a community property state . . . This point cannot be stressed enough.'" Owen v. Owen, 798 So.2d 394,
399 (¶14) (Miss. 2001) (quoting Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss. 1994)).
Divorcing parties have no right to equal distribution even where the parties jointly accumulated the
property. Pierce v. Pierce, 648 So.2d 523, 526 (Miss. 1994). The consent to divorce agreement
controlled the issue before the chancellor. In that document, the parties asked the chancellor to determine
an "equitable division of the marital estate." We also recognize that the chancellor's final decision was in
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fact very close to being equal, as argued by Ann. Therefore, we find that the chancellor did not abuse his
discretion and that this assignment of error is without merit.
2.
¶12.
Whether the chancellor erred in denying alimony.
Ann next argues that the chancellor erred in denying her demand for periodic alimony. Ann claims
that the division of marital assets was unfair and has left her with little cash assets. In Mississippi, the award
of alimony lies within the sound discretion of the court. Armstrong v. Armstrong, 618 So.2d 1278, 1280
(Miss. 1993). 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.” Id.
¶13.
"Alimony is not a completely independent financial issue in a domestic case, in which its
consideration is hermetically sealed from other financial matters." Buckley v. Buckley, 815 So.2d 1260,
1262 (¶10) (Miss. Ct. App. 2002). Alimony together with equitable distribution of property work together
to provide for the parties after divorce. Id. “Therefore, where one expands, the other must recede.”
Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss. 1994). “If the marital assets, after equitable division
and in light of the parties’ non-marital assets, will adequately provide for both parties, then ‘no more need
be done.’” Id. If an equitable division of marital property, considered with each party’s non-marital assets,
leaves a deficit for one party, then alimony should be considered. Id.
¶14.
Here, there were no non-marital assets to be considered. The chancellor found that a “deficit” did
not exist because the division of marital assets was sufficient to provide for Ann’s needs and that such
division eliminated the need for periodic alimony payments. Therefore, in order to determine whether
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alimony was improperly denied, we must first look at whether the equitable division of the marital assets
was sufficient to provide for both parties.
3.
Whether the court erred in the division of marital property.
a.
¶15.
Whether the division was equitable.
Ann claims that the division of marital assets was inequitable and unfair because John received cash
equivalent assets and she received non-cash equivalent assets, such as furniture. Ann further claims that
she was entitled to half of the funds in each joint account and half of the proceeds from the timber sales,
because the sales were a result of a joint asset. John received life insurance policies (valued at $40,090
and $3,594), an IRA account (valued at $5,154.97), 2001 timber sale proceeds (of $9,866), a boat
(valued at $4,500), and an ATV (valued at $3,000) among other things. ¶16.
Upon review, we note that
Ann asked for the furniture. We also find that Ann received cash equivalent assets such as the American
Express 401k account (valued at $62,000), the Union Planters Bank checking account (valued at $5,093),
the joint account at Newton County Bank (valued at $2,116), as well as the John Deere lawn mower
(valued at $300), china (valued at $200) and jewelry (valued at $2,255), in addition to the home furnishings
and appliances (valued at $14,642). Ann will also receive her share of the proceeds of the sales of the
marital home and the timberland, which is expected to be $214,418.50, less expenses. Therefore, we find
that this claim is not supported by the record.
¶17.
We next address whether the chancellor equitably divided the marital assets. In Henderson v.
Henderson, 703 So.2d 262, 265 (¶15) (Miss.1997), the Mississippi Supreme Court held that “[t]he
chancellor's division of marital assets is governed by the principles set forth in Johnson v. Johnson, 650
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So.2d 1281 (Miss.1994), Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), and Hemsley v.
Hemsley, 639 So.2d 909 (Miss.1994).”
¶18.
In Johnson, the court determined that the first step is to characterize the parties' assets as marital
or non-marital pursuant to Hemsley. Henderson, 703 So.2d at 265 (¶15). In Hemsley, the court defined
marital property as any and all property accumulated or acquired during the course of the marriage.
Hemsley, 639 So.2d at 915. "Once the marital assets have been identified, the chancellor should value
and equitably divide the marital property, employing the Ferguson factors as guidelines, in light of each
party's non-marital property." Drumright v. Drumright, 812 So.2d 1021, 1024 (¶ 9) (Miss. Ct. App.
2001). However, "[p]roperty division should be based upon a determination of fair market value of the
assets, and these valuations should be the initial step before determining division." Ferguson, 639 So.2d
at 929.
¶19.
In this case, the chancellor issued a detailed supplemental opinion wherein the chancellor analyzed
the issues involved and applied the applicable standards. The chancellor then entered his findings of fact
and incorporated a discussion of the standards' relevant factors. Properly following the procedure set forth
in Drumright, 812 So.2d at 1024 (¶9), the chancellor first found that the only nonmarital property of
consequence was the incomes earned by the parties. He found all other assets to be marital property. The
chancellor valued the property according to the appraisals and then divided it in detail, awarding John
assets valued at $282,638.76 and Ann assets valued at $302,664.75.
¶20.
The chancellor found that Ann’s monthly net income exceeded John’s monthly net income and that
Ann’s portion of the division of marital property was greater than John’s portion. The chancellor further
found that Ann was the primary reason for the parties’ separation. Therefore, after considering their
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standard of living, their income and expenses, fault, the non-marital property and the cash division to be
received by each, the chancellor ruled that alimony was not necessary.
¶21.
We are of the opinion that Ann has failed to establish error in the chancellor’s judgment. As
discussed above, in his division of assets, the chancellor is not required to divide every asset in half. The
chancellor must only make an equitable distribution of all assets, which he did. "The obligation of a
chancellor is not to follow some precise formula as to each individual component of distribution, alimony,
and other support, but to provide equitably between the spouses in the final outcome." Welch v. Welch,
755 So.2d 6, 10 (¶26) (Miss. Ct. App. 1999).
¶22.
Accordingly, we also find that the chancellor did not err in denying Ann alimony. Following our
standard of review, we did not find that this decision to deny alimony was oppressive, unjust or grossly
inadequate. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993). Ann's share from the
division of the marital assets, $302,664.75, will adequately provide for her needs. Furthermore, the deficit
created by the division of marital assets was not adverse to Ann, but to John. "If there are sufficient marital
assets which, when equitably divided and considered with each spouse's non-marital assets, will adequately
provide for both parties, no more need be done." Id.; Ferguson, 639 So.2d at 929. Therefore, we find
this assignment of error to be without merit.
b.
¶23.
Whether the court erred in giving John credit for a truck payment.
Ann next argues that the chancellor erred in giving credit to John for a truck payment despite the
parties’ agreement in the consent to divorce that John be responsible for his truck debt. The chancellor
did in fact credit John with a payment made in January of 2001. The chancellor did so because the GMC
truck loan was acquired during the marriage and considered a marital debt.
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¶24.
"Assets so acquired or accumulated during the course of the marriage are marital assets and are
subject to an equitable distribution by the chancellor." Flechas v. Flechas, 791 So.2d 295, 299 (¶8)
(Miss. Ct. App. 2001). We find this also includes marital debts. “The ‘course of the marriage’ runs until
the date of the divorce judgment, for purposes of calculating whether or not assets are marital or nonmarital, and an otherwise marital asset may be classified as separate if an order for separate maintenance
is entered.” McIlwain v. McIlwain, 815 So.2d 476, 479 (¶7) (Miss. Ct. App. 2002).
¶25.
The record indicates that the payment was made in January of 2001, prior to the agreed temporary
judgment or the consent to divorce agreement. The record also indicates that only the consent to divorce
agreement contained the language that John would be responsible for the truck's debt. The consent to
divorce agreement would not take effect until the judgment of divorce, which was entered April 15, 2002.
Therefore, the truck debt was properly considered a marital debt and any prior payment was properly
considered by the chancellor. Finding no error, this assignment is without merit.
c.
¶26.
Whether the sale of real property violated the prior
temporary agreed judgment.
Ann also argues in this assignment of error that the sale of the Gipson property violated the
temporary agreed judgment which prevented the sale of any asset. The Gipson property was a parcel of
real property originally owned jointly by John and B. C. Broughton. The Gipson property was sold on June
1, 2001, after the agreed temporary judgment, filed March 5, 2001. This property was sold prior to and
not included in the parties' agreement to sell John's remaining interest in the joint venture with B. C.
Broughton. The chancellor accounted for the sale of the Gipson property as accumulated marital property
in his valuation and equitable division of the assets in the category titled, 2001 timber sales.
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¶27.
This issue was not presented to the trial court. A party who fails to raise an issue at trial waives
any right to complain thereafter. Page v. Siemens Energy and Automation, Inc. 728 So.2d 1075, 1082
(¶27) (Miss. 1998). Therefore, this issue will not be addressed on appeal.
d.
¶28.
Whether the court erred in finding John to be a credible witness.
In Ann's final argument, she claims that the court erred in finding John to be a credible witness. In
a bench trial, the trial judge has sole authority to determine the credibility of the witness. Bodne v. King,
835 So.2d 52, 57 (¶18) (Miss. 2003). The record does not establish error by the chancellor. Therefore,
this assignment of error is without merit.
¶29. THE JUDGMENT OF THE NEWTON COUNTY CHANCERY COURT IS AFFIRMED.
ALL COSTS ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND CHANDLER, JJ., CONCUR.
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