Dogan v. Dogan
| Docket Number: | 2011-CA-01104-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-09-2012 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Habitual cruel and inhuman treatment - Gross income - Equitable distribution - Marital assets - Residuary trust - Alimony - Child support - Attorney's fees Judge(s) Concurring: Irving, P.J., Barnes, Ishee, Carlton, Russell and Fair, JJ. Non Participating Judge(s): Lee, C.J., Griffis, P.J., and Maxwell, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 06-29-2011 Appealed from: Hinds County Chancery Court Judge: J. Dewayne Thomas Disposition: JUDGMENT OF DIVORCE ENTERED ON THE GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT, WIFE AWARDED ALIMONY, JOINT LEGAL CUSTODY OF ONE MINOR AND CHILD SUPPORT ORDERED, AND EQUITABLY DIVIDED PROPERTY Case Number: G2009-1341-T/1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Barbara Carraway Dogan |
SHARON PATTERSON THIBODEAUX |
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| Appellee: | David Wade Dogan, III | PRO SE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Divorce: Habitual cruel and inhuman treatment - Gross income - Equitable distribution - Marital assets - Residuary trust - Alimony - Child support - Attorney's fees |
| Summary of the Facts: | Barbara Dogan filed for divorce from David Dogan III citing irreconcilable differences. Barbara later filed an amended complaint for divorce, adding the ground of habitual cruel and inhuman treatment, and a motion for temporary relief. The chancery court granted Barbara and David a divorce on the ground of habitual cruel and inhuman treatment. Additionally, the chancellor provided an equitable distribution of Barbara and David’s assets and awarded Barbara rehabilitative alimony and permanent periodic alimony. Barbara appeals. |
| Summary of Opinion Analysis: | Issue 1: Gross income Barbara argues that the chancellor erred in finding David’s monthly gross income was $19,000, and that as a result, the amount of alimony and child support she was awarded was also incorrect. Barbara alleges that David’s income should have been $25,809 per month and not $19,000 as the chancellor found. Barbara also argues that David committed a fraud upon the court by stating on his Rule 8.05 financial statement that his monthly income was $15,000 and shortly thereafter stating on his home loan application that his monthly income was approximately $35,000. On appeal, there are four requirements to vacate a decree due to fraud. Barbara has failed to meet these requirements. Assuming the discrepancy on the Rule 8.05 financial statement and loan application to be true, Barbara was aware of it at the time of the original decree. Additionally, the chancellor addressed the discrepancy. The chancellor was not manifestly wrong or clearly erroneous in determining David’s monthly income was $19,000. The chancellor looked at David’s monthly income for previous years and the current year and the evidence presented through David’s Rule 8.05 financial statement and the firm’s financial account, and determined that an accurate reflection of David’s income was $19,000. Issue 2: Equitable distribution An asset or debt that is acquired or accumulated during the marriage is considered marital property, and all marital property is subject to equitable division. The chancellor is to value and equitably divide the marital property, employing the Ferguson factors as guidelines, in light of each party's non-marital property. If there is a deficit for one party, then alimony should be considered. Barbara argues that the chancellor erred in classifying David’s Grayhawk home as marital debt and erred in allocating all debt from the East Manor home to her. Barbara also argues that the chancellor failed to consider the value of home furnishings that David had previously removed from the marital home when determining David’s total of marital property. The parties had agreed to a fifty/fifty split of the marital assets. The chancellor credited both parties with the amount of equity in their respective homes. Barbara received $154,875 in equity while David received $61,000. The chancellor also ordered them to pay the outstanding debt on their respective homes. The chancellor’s division of the marital property resulted in David’s share of the marital estate to be $443,606 and Barbara’s marital estate to be $450,836. Thus, the chancellor appears to have granted the fifty/fifty split agreed upon by the parties with over $7,000 more of the overall assets in Barbara’s favor. There is no error. Issue 3: Residuary trust Barbara argues that the chancellor erred in valuing her share of the Living Trust at $250,000 to $300,000. The Living Trust contains approximately $760,000 and may be partially funded by her step-mother’s home and half of its contents. The parties disagreed as to how much interest Barbara could earn and how much she could take out without invading the Living Trust’s principal. Neither party produced a specific and reliable valuation of the Living Trust; therefore, the burden fell on the chancellor to make a valuation. He did not err in making a conservative valuation of the trust. Issue 4: Alimony Barbara argues that the chancellor erred in determining her alimony and applying the Armstrong factors. When awarding alimony, the chancellor should consider the reasonable needs of the wife and the right of the husband to lead as normal a life a possible with a decent standard of living. Here, the chancellor did not err in considering David’s decreased income, his ability to pay, and Barbara’s reasonable needs. Barbara argues it was error for the chancellor to increase her earning capacity from what it currently was in light of her medical issues, age, and inexperience. The chancellor did not err in finding that David’s earning capacity would be decreased by the loss of a substantial client and that Barbara is a licensed attorney with significant mediation experience and an interest in returning to work. Barbara argues that David dissipated marital assets in a total amount of $239,732.70 over an eight-month period. The amount that David expended includes the purchase of a house, moving expenses, furnishings for a house, attorney’s fees and trial expenses, prepayment of taxes, and a new car. The chancellor noted that he accounted for “the parties’ use and dissipation of assets in [the] equitable distribution of the marital property” and there is no error. Thus, the chancellor did not improperly weigh the Armstrong factors when awarding Barbara permanent periodic alimony. Barbara also argues that the chancellor erred in awarding rehabilitative alimony of $2,000 per month for sixty months, because the chancellor’s finding of her potential income to be $3,500 per month was not supported by the evidence. Although Barbara’s health and lack of recent courtroom experience may limit her income, she is capable of going back to work. Therefore, the chancellor’s decision was sufficient to help Barbara return to the work force. Issue 5: Child support Barbara argues that the chancellor erred by awarding less child support than required by statute. The chancellor deviated from the statutorily required amount of fourteen percent by awarding $400 per month for the only minor child the time of the divorce. The chancellor found that the minor child had the use of a vehicle, an almost completed undergraduate degree, personal assets such as jewelry and clothes, and three bank accounts. Thus, the chancellor did not exceed his authority in deviating from the statutory guidelines found in section 43-19-101. Issue 6: Attorney’s fees Barbara argues that the chancellor erred in failing to award her attorney’s fees. If a wife is financially able to pay her attorney, she is not entitled to attorney's fees. Barbara has presented no proof that she is unable to pay her fees or that paying her fees would deplete her estate. Thus, there was no error. |
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