Lauro v. Lauro
| Docket Number: | 2001-CA-00801-SCT Linked Case(s): 2001-CA-00801-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-05-2003 Opinion Author: Carlson, J. Holding: Affirmed in Part; Reversed and Remanded in Part |
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| Additional Case Information: |
Topic: Divorce: Adultery - Equitable distribution - Alimony - Attorney’s fees - Child custody - Insurance - Assessment of penalties Judge(s) Concurring: Pittman, C.J., Smith, P.J., Waller, Cobb, Diaz and Graves, JJ. Dissenting Author : McRae, P.J. Concur in Part, Dissent in Part 1: Easley, J., Concurs in Part and Dissents in Part Without Separate Written Opinion Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 07-19-2001 Appealed from: Jones County Chancery Court Judge: Franklin C. McKenzie, Jr. Disposition: Granted the Appellee a divorce, awarded custody, alimony, and attorney's fees. Case Number: 99-0379 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Francis Joseph Lauro |
DENNIS LEON SHARP
MARK A. CHINN
KAREN H. SPENCER
JAMES EMORY PRICE, III |
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| Appellee: | Helen Rita Lauro | TERRY L. CAVES |
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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: Adultery - Equitable distribution - Alimony - Attorney’s fees - Child custody - Insurance - Assessment of penalties |
| Summary of the Facts: | Helen Lauro was granted a divorce from Francis Lauro on the ground of adultery. Helen was granted primary physical and legal custody of their three minor children, permanent periodic alimony, child support and attorney's fees. Frank appeals, and Helen cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Equitable distribution Frank argues that the chancellor erred in failing to make the required finding of facts and conclusions of law in his distribution of marital assets and in failing to address all the marital assets that were subject to equitable distribution such as Helen's IRA. In attempting to effect an equitable division of marital property, the court should consider substantial contribution to the accumulation of the property; degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets; market value and emotional value of the assets; value of assets not ordinarily subject to such distribution; tax and other economic consequences; extent to which property division may be utilized to eliminate periodic payments and other potential sources of future friction between the parties; needs of the parties for financial security; and any other equitable factor. Failure to make findings of fact and conclusions of law with regard to these factors is reversible error. Because the chancellor in this case failed to make specific findings as to how the marital property was classified and divided, the case is reversed and remanded for clarification. Issue 2: Alimony Frank argues the chancellor abused his discretion in awarding alimony to Helen in an amount which was against the overwhelming weight of the evidence. Factors to be considered in awarding alimony include the income and expenses of the parties; the health and earning capacities of the parties; the needs of each party; the obligations and assets of each party; length of the marriage; the presence or absence of minor children in the home; age of the parties; standard of living of the parties; tax consequences of the spousal support order; fault or misconduct; wasteful dissipation of assets by either party; and any other equitable factor. Alimony is considered only after the marital property has been equitably divided and the chancellor determines one spouse has suffered a deficit. Child support must also be considered collectively with all property division. On remand, the chancellor must reconsider not only the issue of equitable distribution, but also the awards of alimony and child support after he has properly divided the marital assets. Issue 3: Attorney’s fees On remand, the chancellor must also reconsider the award of attorney's fees to Helen. Issue 4: Custody Frank argues that the chancellor committed error in awarding primary legal custody to Helen. Frank and Helen agree that at the trial they stipulated that they would share joint legal custody and the chancellor accepted the stipulation. Therefore, this issue is reversed and remanded to allow the chancellor to correct the terms of custody consistent with the prior stipulation of the parties. Issue 5: Insurance Helen requested that Frank maintain a medical insurance policy for Helen and the three minor children and that Frank be responsible for all hospital, doctor, dental, drug and optical expenses not covered by insurance. Because the chancellor’s opinion and judgment are devoid of any evidence that he considered this issue, this issue is remanded for consideration. Issue 6: Attorney’s fees on appeal Helen asks that Frank be ordered to pay her attorney’s fees for defending this appeal. Helen has failed to cite any legal authority which supports her entitlement to attorney’s fees for defending this appeal. Therefore, the issue cannot be considered. Issue 7: Assessment of penalties Helen requests that a penalty plus interest be assessed on the judgment. Statutory penalties apply only to an unconditional affirmance. Because the case is reversed and remanded for consideration of the issue of marital distribution, the prerequisite that the matter be unconditionally affirmed fails. |
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