Wilson v. Wilson
| Docket Number: | 2011-CA-00619-COA Linked Case(s): 2011-CA-00619-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-11-2013 Opinion Author: Irving, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Habitual cruel and inhuman treatment - Timeliness of appeal - M.R.A.P. 4(a) - M.R.A.P. 26(1) - Section 3-3-7(1) - Division of marital property - Classification of property - Ferguson analysis - Retirement account Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts, Carlton, Maxwell, Fair and James, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 03-25-2011 Appealed from: Hinds County Chancery Court Judge: Denise Owens Disposition: DIVORCE GRANTED, APPELLEE AWARDED PHYSICAL CUSTODY OF MINOR CHILD, AND MARITAL PROPERTY DIVIDED Case Number: G2009-1850 O/3 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Penny Wilson |
EARNESTINE ALEXANDER |
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| Appellee: | Gregory Wilson | TAMEKIA R. GOLIDAY | ||
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| Topic: | Divorce: Habitual cruel and inhuman treatment - Timeliness of appeal - M.R.A.P. 4(a) - M.R.A.P. 26(1) - Section 3-3-7(1) - Division of marital property - Classification of property - Ferguson analysis - Retirement account |
| Summary of the Facts: | Penny Wilson was granted a divorce from Gregory Wilson on the ground of habitual cruel and inhuman treatment. The court awarded physical custody of the couple’s minor child to Gregory and made determinations regarding the distribution of marital property. Penny appeals. |
| Summary of Opinion Analysis: | Issue 1: Timeliness of appeal Gregory argues that Penny’s appeal is untimely, because it was filed outside the thirty-day period allowed by M.R.A.P. 4(a). However, Gregory has neglected to consider M.R.A.P. 26(a) and section 3-3-7(1) which provides that the last Monday of April is a legal holiday. As the last day of Penny’s thirty-day period to file her appeal was a legal holiday, Penny’s appeal is timely. Issue 2: Division of property Penny argues that the chancery court erred in classifying the marital home, her rental properties, and her credit union account as marital property. Generally, property acquired during the course of the marriage or brought into the marriage and used by the family is marital property. Nonmarital assets, such as inheritances and gifts, may become marital if commingled with marital property or utilized for domestic purposes, absent an agreement to the contrary. Penny’s home was properly classified as marital property. Although Penny had purchased the home prior to her marriage to Gregory, both Penny and Gregory worked to maintain and care for the house after their marriage and lived in the house as a family. With regard to the rental properties which were acquired during the marriage, Penny testified that Gregory did not contribute to the purchase of the properties. Gregory, while admitting that he did not give Penny any money to purchase the properties, testified that he performed substantial electrical work on all of the properties. Thus, the chancery court did not err in finding that the rental properties were marital property. With regard to Penny’s account, Penny has failed to demonstrate that the account contained nonmarital funds that were never commingled. The record only contains evidence that at least $86,347.32 of the account balance is from the certificates of deposit. The certificates of deposit were properly classified as marital property because they were purchased during the marriage. Additionally, it is unclear from the record whether the account contained funds from the rental properties, Penny’s salary, or her severance package from Delphi Packard. Penny also argues that the chancery court erred in its Ferguson analysis by not considering her employment status. There is no evidence that Penny is unable to find a job or that her employment opportunities are limited in any respect. Additionally, the court considered Penny’s income from the rental properties, her unemployment benefits, and the sum of money that Penny had hidden prior to trial. Thus, the court conducted a proper analysis. Penny argues that she is entitled to a percentage of Gregory’s retirement account because she is unemployed and no longer has a separate retirement account. The chancery court acted within its discretion in denying Penny a portion of Gregory’s retirement funds. The court used Gregory’s retirement funds to offset the amount awarded to Penny from her severance package and the funds remaining unaccounted for from the credit union account. |
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