Hal Eugene Palmer v. Sara Goodwin Palmer
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-CA-01950-COA
HAL EUGENE PALMER
APPELLANT
v.
SARA GOODWIN PALMER
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:
APPELLEE
11/28/2001
HON. JAMES S. GORE
CHICKASAW COUNTY CHANCERY COURT
REX F. SANDERSON
GARY L. CARNATHAN
CIVIL - DOMESTIC RELATIONS
DIVORCE GRANTED BASED ON ADULTERY;
PROPERTY DIVISION; ALIMONY GRANTED
TO WIFE.
AFFIRMED - 4/01/2003
BEFORE SOUTHWICK, P.J., BRIDGES AND MYERS, JJ.
MYERS, J., FOR THE COURT:
¶1.
The chancellor granted Sara Palmer a divorce from her husband based on the ground of adultery.
The chancellor awarded periodic alimony and divided the marital assets. The husband appeals asserting:
1. THE TRIAL COURT ERRED BY AWARDING ALIMONY TO THE WIFE OR IN THE
ALTERNATIVE, IN AWARDING ALIMONY IN AN AMOUNT THAT WAS MORE THAN THE
HUSBAND CAN PAY;
2. THE TRIAL COURT ERRED BY NOT CONSIDERING THE VALUE OF THE WIFE'S
SEPARATE ESTATE NOR DID IT CONSIDER THE MARITAL DEBT WHEN DIVIDING THE
MARITAL PROPERTY.
STATEMENT OF THE FACTS
¶2.
Sara Goodwin Palmer and Hal Eugene Palmer were married on December 26, 1964. Their
relationship resulted in two children, both of whom had reached the age of majority prior to the trial court
proceeding.
¶3.
The two lived together until Sara left their marital home on June 11, 2000. They have not cohabited
since that date. Sara filed her complaint seeking an irreconcilable differences divorce on August 10. They
filed a stipulation to the irreconcilable difference divorce on October 24. On January 17, 2001, Sara filed
a motion that sought to withdraw the consent divorce and sought a divorce based on adultery. The motion
was granted January 22.
¶4.
A hearing was held and on September 6, 2001, the trial court issued its opinion. Gene submitted
a motion seeking a new trial and on November 28, the trial court issued an amended judgment. The
amended judgment was filed the next day. It granted Sara:
1. A divorce based on the ground of adultery;
2. The marital home valued between $62,000 and $86,270, including all furniture and appliances;
3. The 1994 Buick valued between $3,500 and $7,000;
4. Fifty percent of Gene's 401(k), total which was valued at $78,210.22 resulting in Sara receiving
$39,105.11;
5. Her entire 401(k) , which was valued at $3,000;
6. A $5,000 certificate of deposit;
7. $30,000 life insurance policy on Gene naming her as beneficiary; and
8. Periodic alimony of $600 per month.
¶5.
Gene was awarded:
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1. A house and lot purchased after their separation with marital funds valued at about $30,000 and
insured for $40,000.00;
2. A lawnmower worth $3,000;
3. The guns valued at $600;
4 $400 in a savings account;
5. Bonds, valued at less than $2,000 at the time of the hearing but listed as being worth $6,500 at
the time of the completion of the 8.05 statement;
6. Fifty percent of his 401(k), total which was valued at $78,210.22 resulting in Gene receiving
$39,105.11; and
7. His Goodyear pension plan valued at $50, 496.03 which Gene will draw at age 65.
¶6.
Gene was fifty-nine years old at the time of the hearing. Gene is in deteriorating health. Gene has
arthritis in his knees, back, and shoulders. He has had a hernia repaired, has been scheduled for gall
bladder surgery, and has a growth on his kidney.
¶7.
Gene never completed high school but had managed to provide a comfortable lifestyle through
positions at a Western Auto store and his current employment as a tire salesman for Goodyear. He has
worked for Goodyear for the last fifteen years. His approximate net income is $1,950 per month, which
includes $409 withheld as part of his 401(k) and $466 withheld as payment on a loan used to purchase his
new residence. Gene's actual base salary without commission is $1,620.
¶8.
Gene's expenses are $1,182.90 per month not including the $466 per month withdrawal from his
salary. His liabilities totaled $38,900.
¶9.
Sara was fifty-five years old at the time of the hearing. She is in fairly good health, although she
suffers from high blood pressure and a thyroid condition.
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¶10.
Sara is a high school graduate and works at the Chickasaw County Farm Bureau as a secretary
and receptionist. Sara nets approximately $800 per month, which does not include her $111.66 monthly
401(k) contribution. Her monthly expenses totaled $1,241. This does not include what she will have to
pay for medical insurance once she loses coverage through Goodyear. Sara has no liabilities. Sara also
has an undivided one-half remainder interest in 116 acres of land. Her aunt has a life estate in the land.
LEGAL ANALYSIS
¶11.
All of the issues raised by Gene involve the same standard of review. It must be reasonably certain
to this Court that the chancellor abused his discretion, was manifestly wrong, was clearly erroneous or
applied an erroneous legal standard to render a reversal. Barton v. Barton, 790 So. 2d 169, 175 (¶17)
(Miss. 2001); Duncan v. Duncan, 774 So. 2d 418, 419 (¶4) (Miss. 2000).
1. DID THE TRIAL COURT ERR BY AWARDING ALIMONY TO THE WIFE OR IN THE
ALTERNATIVE, IN AWARDING ALIMONY IN AN AMOUNT THAT WAS MORE THAN THE
HUSBAND CAN PAY?
¶12.
The guidelines to be used in determining if alimony is appropriate in a particular case were
established in Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993). The factors 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;
(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 just and equitable.
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Id. at 1280. Unlike property division, an on-the-record analysis of the Armstrong factors is not necessary.
Thompson v. Thompson, 816 So. 2d 417, 420 (¶9) (Miss. Ct. App. 2002).
¶13.
Gene first argues that alimony should not be awarded because after the division of marital assets,
Sara had no deficit. Equitable distribution is primarily used to attempt a severance of the relationship so
that both can begin separate lives. Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994). Alimony
should only be awarded if a spouse would be left with a deficit. Johnson v. Johnson, 650 So. 2d 1281,
1287 (Miss. 1994).
¶14.
A review of the chancellor's judgment and the record reveals that Sara's expenses each month
outpace her income by several hundred dollars. Additionally, Sara will have to obtain medical insurance
now that she will not be covered by Gene's company policy. The quote presented by her testimony from
the company she worked for was almost three hundred dollars. Gene argues that Sara could sell the assets
she was awarded, move into a more practical and economical living arrangement, and then invest the
money to cover the difference between her income and expenses. This is curious since Gene also argues
that the division of the property was erroneous. An alimony award was proper.
¶15.
Gene's next argument is that the alimony was unduly burdensome. It is true that alimony should not
be used to make one spouse destitute while the other lives in comfort. Hemsley v. Hemsley, 639 So. 2d
909, 914 (Miss. 1994). A review of the record reflects that Gene is not able to pay alimony because of
his new girlfriend, the woman with whom he committed adultery. The woman testified that she pays for
nothing, while Gene pays all the bills. We will not allow a person to persuade us that he or she can not
afford alimony payments because he or she wishes to spend that money on other relationships.
¶16.
Although the chancellor did not go through the Armstrong factors one by one, it is apparent that
the chancellor considered all the factors by the in-depth recitation of facts provided in the judgment. We
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cannot say that the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or applied
an erroneous legal standard.
2. DID THE TRIAL COURT ERR BY NOT CONSIDERING THE VALUE OF THE WIFE'S
SEPARATE ESTATE OR THE MARITAL DEBT WHEN DIVIDING THE MARITAL PROPERTY?
¶17.
The Mississippi Supreme Court has stated eight factors a chancellor should consider when
equitably dividing marital property:
(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. The chancellor need not consider all eight of the factors, but must consider
all that are applicable to the property in question. Carrow v. Carrow, 741 So. 2d 200, 202 (¶10) (Miss.
1999).
¶18.
In order for this Court to make a meaningful review of the chancellor’s decision, the chancellor
must “separately consider and make findings of fact as to each of the relevant Ferguson factors as a
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prelude to his actual determination.” Heigle v. Heigle, 771 So. 2d 341, 346-47 (¶¶ 16, 17) (Miss. 2000);
Baker v. Baker, 807 So. 2d 476, 479 (¶12) (Miss. Ct. App. 2001) . The failure to make such findings
is an abuse of discretion that requires reversal and remand. Heigle, 771 So. 2d at 348 (¶20); Baker,807
So. 2d at 479 (¶12) . The chancellor’s opinion and order in the instant case does include findings of fact
as to the relevant Ferguson factors. The chancellor's recitation of the facts prior to his discussion of the
Ferguson factors was sufficient. Although it would have been helpful for chancellors to individually analyze
each factor, providing a factual foundation is sufficient. We cannot say the chancellor abused his discretion,
was manifestly wrong, was clearly erroneous, or applied an erroneous legal standard.
CONCLUSION
¶19.
When a chancellor provides a recitation of facts in his judgment that covers most, if not all the
Ferguson and Armstrong factors, no reversal is required. A chancellor is in the best position to hear the
testimony and view the evidence. Gene has not proven that reversal is required.
¶20. THE JUDGMENT OF THE CHANCERY COURT OF CHICKASAW COUNTY IS
AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, CHANDLER AND
GRIFFIS, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY SOUTHWICK, P.J.
IRVING, J., DISSENTING:
¶21.
The majority affirms the chancellor's decision ordering Hal Eugene Palmer (Gene) to pay an amount
of alimony which I believe, based on the record before us, is beyond his means to pay. Therefore, I
respectfully dissent.
¶22.
Gene argues in this appeal that the trial court erred in awarding alimony to his former wife, or in the
alternative, erred in awarding an amount beyond his means to pay.
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¶23.
A perusal of the record reflects that Gene was given assets valued at $125,601.114 as his share
of the marital estate while Sara was given assets valued at $142,605.11 as her share. Sara's share included
the marital domicile valued by an appraiser at $62,000, although the property was valued on the county's
tax rolls at $78,210. In arriving at the $142,605.11 figure, I included the lower value. Also, a 1994 Buick,
valued between $3,500 and $7,000, was included in Sara's share. As to this asset, I also used the lower
value. In addition to her marital share of the estate, Sara has a separate estate consisting of a one half
undivided interest in 116 acres of land in which another person owns a life estate.
¶24.
Gene's base salary is $1,620; with commissions, it is $1,950. His living expenses are $1,648.90.
This figure includes the mortgage payment on the house where Gene lives but does not include monthly
payments of (a) $100 on a VISA credit card, (2) $50 on a note owed to Goodyear, and (3) $20 on an
indebtedness owed to Lowe's. When these amounts are factored in, Gene's monthly expenses total
$1,818.90. When the $600 monthly alimony payment is added to Gene's monthly expenses, his total
monthly expenditures come to $2,418.90, a figure well above his $1,950 monthly income. Gene is paying
$409 from his monthly income toward his 401(k) plan. When this figure is deducted from his monthly
income, Gene has only $1,541.50 with which to pay obligations totaling $2,418.90.
¶25.
Based on the facts presented in the preceding paragraphs, I cannot understand how the majority
can justify affirming the trial judge's award of $600 per month in alimony. Even if Gene stopped payments
toward his 401 (k), plan he still would not have enough income to pay his monthly expenses and the $600
in alimony.
¶26.
On the other hand, Sara has a monthly income of $911.66 and monthly expenses of $1,241.
When the $600 alimony payment is added to Sara's monthly income, she will have a total monthly income
of $1,511.66, which figure is $270.66 more than her monthly expenses.
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¶27.
It appears that the majority's only justification for affirming the trial judge stems from the fact that
Gene has a live-in girlfriend who does not help Gene pay any of Gene's expenses. The majority, without
citing any authority, says: "We will not allow a person to persuade us that he or she cannot afford alimony
payments because he or she wishes to spend that money on other relationships."
¶28.
I find no evidence in the record that Gene was spending any money on his live-in girlfriend. There
is no evidence or suggestion that he was paying any of her bills. I know of no authority in this state which
requires the girlfriend of a divorced man to help support the man in order to free up some of his income so
that his former spouse might receive an award of alimony.
¶29.
As previously observed, I know of no Mississippi authority which directly addresses the issue of
whether the income of a live-in girlfriend may be considered in determining a divorcing spouse's alimony
obligation. However, I did find at least one case from another jurisdiction which, though not exactly on
point, is nevertheless helpful.
¶30.
In In re the Marriage of James J. Close and Mary E. Close, 478 N. W. 2d 852 (Iowa Ct. App.
1991), a former wife argued unsuccessfully in the trial court that the husband's live-in girlfriend's income
should be considered in determining the husband's child support obligation. Id. at 854. On appeal, the
Iowa Court of Appeals held that "[t]he possible support available to [the husband [was] not a consideration
the district court must weigh in setting the child support award." Id. at 855. The Iowa Court of Appeals
further opined, "The trial court in this case was not persuaded that James' girlfriend's income was a factor
to be considered in fashioning the award and neither are we." Id. ¶31.
In our case, there is no
evidence that Gene's live-in girlfriend contributed to Gene's household expenses. Had she done so
voluntarily, I believe that the amount she contributed could have been considered by the trial judge in
assessing the amount of alimony Gene should pay Sara, but that is not the case. Consequently, for the
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reasons presented, I dissent. I would reverse and remand to the trial court for further consideration of the
alimony award in light of Gene's ability to pay from Gene's income.
SOUTHWICK, P.J., JOINS THIS SEPARATE OPINION.
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