Elizabeth Ericson v. Debra Sue Tullos
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-00200-COA
ELIZABETH ERICSON
EXECUTRIX OF THE ESTATE OF
RICHARD SPANG, DECEASED
APPELLANT/CROSS APPELLEE
v.
DEBRA SUE TULLOS
APPELLEE/COUNTER
CLAIMANT ( CROSS APPELLANT)
v.
ELIZABETH ERICSON, EXECUTRIX
OF THE ESTATE OF RICHARD
SPANG, DECEASED
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 / CROSS APPELLEE
12/31/2001
HON. THOMAS L. ZEBERT
RANKIN COUNTY CHANCERY COURT
DEBRA LYNN ALLEN
B. RUTH JOHNSON
CIVIL - DOMESTIC RELATIONS
CHANCELLOR DIVIDED MARITAL ASSETS
AND DENIED ALIMONY TO HUSBAND.
AFFIRMED - 06/22/2004
BEFORE BRIDGES P.J., IRVING AND GRIFFIS, JJ.
BRIDGES, P.J., FOR THE COURT:
¶1.
This appeal comes from a divorce case heard in the Chancery Court of Rankin County. On May
8, 2000, Richard Spang filed his complaint for divorce alleging habitual cruel and inhuman treatment as
grounds for the divorce and, in the alternative, irreconcilable differences. The parties agreed to execute
a voluntary consent to divorce on the grounds of irreconcilable differences and the only issues presented
to the court for resolution were financial in nature. Each party sought an equitable distribution of the assets,
with Richard seeking a finding that certain assets were non-marital in nature. In addition, Richard sought
alimony from his former wife, Debra Sue Tullos.
¶2.
A trial was held after which the court requested, and each party presented, extensive proposed
findings of fact and conclusions of law. On November 30, 2001, the court issued its own detailed findings
of fact and conclusions of law and on January 8, 2002, the court entered its final judgment of divorce.
¶3.
Richard appealed to this Court on the sole issue of alimony. However, Debra filed a motion to
dismiss the appeal, along with a cross-appeal, alleging that dismissal was proper since no post trial motions
had been filed. After reviewing Debra's motion to dismiss, this Court denied the motion and now addresses
the appeal on the merits.
¶4.
Following the perfection of the appeal in this case, Richard Spang died and an order was entered
in this Court on March 22, 2004 substituting the executrix of said deceased's estate as a party in his place
and stead.
ISSUE ON APPEAL
I. WHETHER THE CHANCELLOR ERRED IN DENYING AN AWARD OF ALIMONY TO
RICHARD.
ISSUE ON CROSS-APPEAL
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I. WHETHER THE CHANCELLOR'S DECISION WAS AGAINST THE OVERWHELMING
WEIGHT OF THE EVIDENCE AND WHETHER HE COMMITTED MANIFEST ERROR IN
DETERMINING MARITAL ASSETS AS EITHER NON-MARITAL OR MARITAL.
FACTS
¶5.
Richard was seriously injured and disabled on January 30, 1990. He suffers a C-5, C-6
compression leaving him a complete quadriplegic with no use of his legs, limited use of his right arm and
limited lung capacity. He is severely disabled, confined to a wheelchair, and rendered a quadriplegic. He
also requires attendant care assistance for help in his daily and nightly activities. The assistance he requires
includes: bathing, dressing, physical exercise, massage, help in using his standing device, getting in and out
of bed, turning nightly, transportation, meal preparation, and maintaining his home and medical equipment.
Richard also uses a catheter and requires assistance to cleanse his bowels.
¶6.
In December 1991, Richard and Debra began living together. On October 21, 1991, they were
married in Tupelo, Mississippi, and there were no children born of the marriage. On May 8, 2000, Richard
filed his complaint for divorce alleging habitual cruel and inhuman treatment as grounds for the divorce and,
in the alternative, irreconcilable differences; however, the parties voluntarily entered a valid consent to
divorce on the grounds of irreconcilable differences and also agreed to allow the court to decide certain
issues. The three issues before the lower court for resolution were the equitable distribution of marital
property, whether Richard should be awarded alimony, and attorneys fees. Richard was awarded the
majority of his remaining settlement proceeds in the court's equitable distribution, but was denied an award
of alimony.
¶7.
It is from this judgment of divorce that Richard appealed and Debra cross-appeals.
STANDARD OF REVIEW
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¶8.
In Mississippi, the standard of review employed in domestic relations cases is limited by the
substantial evidence/manifest error rule.
This Court may reverse a chancellor's findings of fact only when there is no substantial
credible evidence in the record to justify his findings. Our scope of review in domestic
relations matters is limited under the familiar rule that this Court will not disturb a
chancellor's findings unless manifestly wrong, clearly erroneous, or if the chancellor applied
an erroneous legal standard.
Jundoosing v. Jundoosing, 826 So. 2d 85, 88 (¶10) (Miss. 2002) (citations omitted).
ANALYSIS
I. WHETHER THE CHANCELLOR ERRED IN DENYING AN AWARD OF ALIMONY TO
RICHARD.
¶9.
In the area of domestic relations, the division of marital assets is governed under the law as
stated in Hemsley and Ferguson.1
First, the character of the parties' assets, marital or nonmarital, must be determined
pursuant to Hemsley. The marital property is then equitably divided, employing the
Ferguson factors as guidelines, in light of each parties' nonmarital property. If there are
sufficient marital assets which, when equitably divided and considered with each spouse's
nonmarital assets, will adequately provide for both parties, no more need be done.
Johnson v. Johnson, 650 So. 2d 1281, 1287 (Miss. 1995) (citations omitted).
¶10.
Whether to award alimony is governed under the law as stated in Armstrong v. Armstrong, 618
So.2d 1278 (Miss. 1993). The Mississippi Supreme Court stated that "alimony awards are within the
discretion of the chancellor and his discretion will not be reversed on appeal unless the chancellor was
manifestly in error in his finding of fact and abused his discretion. In the case of a claimed inadequacy or
outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust or
grossly inadequate as to evidence an abuse of discretion." Id. at 1280 (citations omitted). The guidelines
1
Hemsley v. Hemsley, 639 So. 2d 909 (Miss. 1994) and Ferguson v. Ferguson, 639 So. 2d
921 (Miss. 1994).
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to be used in determining if alimony is appropriate in a particular case were established in Armstrong.
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;
(11) wasteful dissipation of assets by either party; or
(12) any other factor deemed just and equitable.
Id. at 1280. In examining these factors, the chancellor may consider them as an "overall combination" and
need not individually list each one. Hoggatt v. Hoggatt, 766 So. 2d 9 (¶ 9 ) (Miss. Ct. App. 2000).
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).
¶11.
The court applied these factors to the evidence presented and determined that an award of alimony
was not appropriate. The evidence established (1) Debra currently earns $87,084 gross income per year
as an executive at State Farm Insurance Company and she is in reasonably good health, although she has
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had back surgery; (2) Richard's current monthly income is derived solely from Social Security and consists
of $1,190 and long term disability payments of $1,064.08 for a total of $2,254.08; however, his long term
disability payment of $1,064.08 ends in 2006, at the time when Richard will have by that time depleted his
assets, therefore, reducing his interest income; (3) Richard is obviously disabled and limited in his earning
capacity; (4) the marriage is of moderate length; (5) there are no minor children of the parties; (6) Debra
was born March 11, 1957, and is forty-seven years of age and Richard was born June 30, 1941, and is
sixty-three years of age; (7) the parties enjoyed a reasonably comfortable standard of living in that they
owned their own home and have generally done so since they were married; (8) neither party wasted or
dissipated assets; and (9) since Richard is disabled, he will need to pay personnel to help in his daily
activities and will need to do so every day of his life.
¶12.
In the present case, the chancellor, in his findings of facts and conclusions of law, properly analyzed
and applied the Armstrong factors in this case with respect to alimony. Upon reviewing the detailed
analysis taken by the court of the position and needs of the parties, we find that the chancellor in no way
abused his discretion in finding that Richard was not entitled to an award of alimony. Therefore, we find
this issue is without merit and we can not say the chancellor abused his discretion.
ISSUE ON CROSS-APPEAL
I. WHETHER THE CHANCELLOR'S DECISION WAS AGAINST THE OVERWHELMING
WEIGHT OF THE EVIDENCE AND WHETHER HE COMMITTED MANIFEST ERROR IN
DETERMINING MARITAL ASSETS AS EITHER NON-MARITAL OR MARITAL.
¶13.
Debra argues that the chancellor erred in his determination that the personal injury proceeds and
other assets (including the adjacent lot, the AmSouth CD, and the Met Life insurance policy (f/k/a New
England Mutual Life ) were non-marital property. She also claims that the chancellor erred in his refusal
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to award Debra pre-marital and post- marital agreed upon temporary order contributions to the State
Farm Insurance Company Incentive and Thrift Plan.
¶14.
This Court must look to the chancellor's application of the Ferguson factors when reviewing
questions of equitable distribution. Ferguson, 639 So. 2d at 928; see also Johnson v. Johnson, 650 So.
2d 1281, 1287 (Miss. 1995); Hemsley v. Hemsley, 639 So. 2d 909, 914-15 (Miss. 1994). In Ferguson,
the Mississippi Supreme Court held that chancery courts should consider the following guidelines when
"attempting to effect an equitable distribution of marital property."
(1) Substantial contribution to the accumulation of property
a) direct or indirect economic contribution
b) contribution to stability and harmony of the marital relationship measured by quality,
quantity of time spent on family duties and duration of marriage
c) contribution to the education, training or other accomplishment bearing on the earning
power of spouse accumulating assets
(2) Degree to which each spouse has expanded, withdrawn, or otherwise disposed of marital
assets and any prior distribution of assets.
(3) Market value and emotional value of assets subject to distribution.
(4) 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 or by an individual spouse.
(5) Tax and other economic consequences, and contractual or legal consequences to third parties,
of the proposed distribution.
(6) Extent to which property division may be utilized to eliminate periodic payments and other
potential sources of friction.
(7) Needs of the parties.
(8) Any other factor which in equity should be considered.
Ferguson, 639 So. 2d at 928.
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¶15.
This Court has also held that "the chancellor is not required to address each and every factor and
may consider only the factors which he finds applicable to the marital property at issue." Burham-Steptoe
v. Steptoe, 755 So. 2d 1225, 1233 (¶24) (Miss. Ct. App. 1999) (citing Weathersby v. Weathersby, 693
So. 2d 1348, 1354 (Miss. 1997)). "All property acquired during marriage is considered marital property,
and subject to equitable distribution, unless it is clearly shown to be a separate estate apart from the
marriage." Cork v. Cork, 811 So. 2d 427, 430 (¶ 13) (Miss. Ct. App. 2001) (citing Hemsley, 639 So.
2d at 914).
¶16.
In his findings of fact and conclusions of law, it is clear that the chancellor equitably disposed of all
of the property, including various investment accounts, IRA accounts, ESOP accounts, the marital home
with its accompanying lot and accrued value of certain "whole life" insurance policies, in accordance with
the Ferguson factors and applicable case law. This Court is not at liberty to disturb that decision.
¶17. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS AFFIRMED
ON DIRECT AND CROSS APPEAL. COSTS OF THIS APPEAL ARE ASSESSED ONE HALF
TO THE APPELLANT AND ONE HALF TO THE APPELLEE .
KING, C.J., SOUTHWICK, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER
AND GRIFFIS, JJ., CONCUR.
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