Evelyn Ann Lazarus v. Thomas Sutton Lazarus
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-CA-00904-COA
EVELYN ANN LAZARUS
APPELLANT
v.
THOMAS SUTTON LAZARUS
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
6/8/2001
HON. FRANKLIN C. MCKENZIE, JR.
JONES COUNTY CHANCERY COURT
ED PITTMAN, JR.
DAVID M. RATCLIFF
CIVIL - DOMESTIC RELATIONS
DIVORCE GRANTED, PROPERTY
DISTRIBUTED
AFFIRMED - 4/01/2003
BEFORE THOMAS, P.J., IRVING AND MYERS, JJ.
MYERS, J., FOR THE COURT:
¶1.
Evelyn Ann Lazarus (“Evelyn”) and Thomas Sutton Lazarus (“Thomas”) appeared before Judge
Frank McKenzie of the Chancery Court of the Second Judicial District of Jones County, seeking an
irreconcilable differences divorce. Chancellor McKenzie took the matter under advisement, and asked
Evelyn and Thomas to provide more information so that the chancellor could rule on property division,
alimony, child support, and custody. On December 22, 2000, the chancellor issued his order and opinion.
He found that the Lazaruses should share legal and physical custody of their college-age daughter. No
child support was ordered, but the chancellor ordered Thomas to pay all of the child’s college expenses
as long as the child maintains a “C” average. Additionally, Thomas would be responsible for all medical
and dental expenses of the child.
¶2.
The chancery court found the Lazaruses to have only three marital assets: their home, Thomas’s
retirement account, and Evelyn’s retirement account. The chancellor awarded each spouse one-half of the
other spouse’s retirement account and vested title in the home to Evelyn, who would also be responsible
for the house payments. Evelyn now appeals the chancellor’s ruling. We affirm.
Issues
I. Whether the trial court used an incorrect amount for the value of Thomas’s retirement,
thereby reducing Evelyn’s just share in the property division.
II. Whether the trial court incorrectly analyzed the parties’ respective estates and therefore
failed to award alimony to Evelyn.
III. Whether the trial court considered incorrect facts regarding the minor child of the
parties, thereby failing to properly impose child support obligations on Thomas.
Standard of Review
¶3.
All of the issues raised by Evelyn involve the same standard of review. It must be reasonably
certain to the Court that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or
applied an erroneous legal standard. Barton v. Barton, 790 So. 2d 169, 175 (¶17) (Miss. 2001) (citing
Cummings v. Benderman, 681 So. 2d 97, 100 (Miss. 1996)); Duncan v. Duncan, 774 So. 2d 418, 419
(¶4) (Miss. 2000).
Discussion
¶4.
We pause before discussing the merits of this case to note additional procedural history.
Neither Evelyn nor her attorney received notice of the entry of the judgment. When Evelyn’s lawyer
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found out that a judgment had been entered in his case, he filed a motion for an out of time appeal in
accordance with M.R.A.P. 4(h). The trial court denied this motion. Evelyn then appealed that
judgment.
¶5.
Thomas’s attorney filed a motion to dismiss the appeal with the Mississippi Supreme Court
citing Rule 4(a) of the Mississippi Rules of Appellate Procedure. The supreme court denied Thomas’s
motion, and we now reach the merits of the appeal.
I. Property Division
¶6.
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.
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Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994). The chancellor need not consider all eight
of the factors, but must consider all applicable to the property in question. Carrow v. Carrow, 741 So.
2d 200, 202 (¶10) (Miss. 1999).
¶7.
In order for the Court to make a meaningful review of the chancellor’s decision, he must “separately
consider and make findings of fact as to each of the relevant Ferguson factors as a prelude to his actual
determination.” Baker v. Baker, 807 So. 2d 476, 479 (¶12) (Miss. Ct. App. 2001) (citing Heigle v.
Heigle, 771 So. 2d 341, 346-47 (¶¶ 16-17) (Miss. 2000)). The failure to make such findings is an abuse
of discretion that requires reversal and remand. Id. (citing Heigle, 771 So. 2d at 348 (¶20)).
¶8.
The chancellor made detailed findings using the Ferguson factors. Evelyn was awarded the marital
home and a cash payment (representing her share of Thomas’s retirement account) of $29,138.30. The
chancellor found that these assets, given Evelyn’s lifestyle, her employment, and level of education, should
provide her with a good standard of living. Given the chancellor’s meticulous findings, we cannot hold the
property division to be erroneous. The judgment regarding the property division is therefore affirmed.
II. Alimony
¶9.
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). They 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;
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(11) wasteful dissipation of assets by either party; or
(12) any other factor deemed just and equitable.
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).
¶10.
The chancellor makes it clear that he has considered the Armstrong factors, and sees no need for
alimony. While Evelyn’s testimony indicated she was concerned about her health, her Rule 8.05 statement
indicated she had medical bills of $150 per month. She has lost no wages due to hospitalization or illness.
She has medical insurance provided through her employer. Additionally, she stated she is only two credit
hours away from a graduate degree. After reviewing the standard of living that Evelyn enjoyed during the
marriage, the chancellor concluded that Evelyn should be able to enjoy a comparable lifestyle on her
income and her share of the marital assets. Given the chancellor’s findings of fact, we affirm the judgment
as it concerns alimony.
III. Child Support
¶11.
Child support award guidelines are governed by Miss. Code Ann. § 43-19-101 (Rev. 2000). For
one child, there is a rebuttable presumption that fourteen percent of the supporting parent’s gross income
should be awarded for support. Id. However, in cases where the adjusted gross income of the parent
paying child support is over $50,000, the chancellor may make written findings that the statutory guidelines
are not applicable Id. In the case before us, Thomas has an adjusted gross income that does exceed
$50,000. The chancellor noted this and Thomas’s excellent record of providing for all needs of his
daughter,1 including educational needs. As such, the chancellor ordered Thomas to continue to provide
for Erin’s educational needs. The chancellor stated that he would revisit this issue if Thomas should fail to
1
This is supported by Evelyn’s testimony to that fact.
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provide for Erin. Again, we cannot find that this was an abuse of the chancellor’s discretion. As such, we
affirm.
¶12. THE JUDGMENT OF THE CHANCERY COURT FOR THE SECOND JUDICIAL
DISTRICT OF JONES COUNTY IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED
TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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