Lewis v. Pagel
| Docket Number: | 2013-CA-01631-SCT Linked Case(s): 2013-CA-01631-SCT CONSOLIDATED WITH NO. 2008-CT-01362-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 08-13-2015 Opinion Author: Chandler, J. Holding: Affirmed in part, reversed in part, and remanded. |
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| Additional Case Information: |
Topic: Divorce - Equitable distribution - Ferguson factors - Lump-sum alimony - Modification of child support - Contempt - Attorney's fees Judge(s) Concurring: Waller, C.J., Dickinson and Randolph, P.JJ., Lamar, Kitchens, King and Coleman, JJ. Non Participating Judge(s): Pierce, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 03-06-2013 Appealed from: HARRISON COUNTY CHANCERY COURT Judge: CARTER O. BISE Disposition: Entered an order of divorce Case Number: 2402 06 00747(4) |
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| Consolidated: Consolidated with 2008-CT-01362-SCT Drake L. Lewis v. Tonia D. Lewis; Harrison Chancery Court 2nd District; LC Case #: C2402-06-00747(4); Ruling Date: 07/11/2008; Ruling Judge: Carter Bise | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Drake L. Lewis |
THOMAS WRIGHT TEEL |
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| Appellee: | Tonia D. (Lewis) Pagel | DEAN HOLLEMAN | ||
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 - Equitable distribution - Ferguson factors - Lump-sum alimony - Modification of child support - Contempt - Attorney's fees |
| Summary of the Facts: | Drake and Tonia Lewis were granted a divorce. Drake appealed, and the Court of Appeals affirmed in part and reversed in part and remanded. The Supreme Court granted certiorari and modified the Court of Appeals order on remand. During the appellate process, both parties filed motions for modification of child support and for contempt. After the remand, the chancellor held a hearing and entered an order addressing the property division. The chancellor entered a separate order modifying child support, finding Drake in contempt and awarding Tonia attorney’s fees. Drake appeals. |
| Summary of Opinion Analysis: | Issue 1: Equitable distribution Drake argues that the chancellor erred as a matter of law by failing to make a detailed analysis of all the Ferguson factors on remand. In the judgment on remand, the chancellor discussed only the Ferguson factors pertaining to separate property and stated that his analysis of all other Ferguson factors remained the same. It is clear that the chancellor performed a new equitable distribution on remand and did not err by incorporating by reference some of his findings from the divorce judgment. Drake appears to argue that the chancellor erred in his valuation of Legacy Holdings, Inc., a general contracting business constructing residential homes. However, in the award of Legacy to Drake, the chancellor clearly stated that Legacy had no value except for accounts receivable. Because the chancellor found Legacy had no value, the chancellor subtracted the previously determined value of Legacy from Drake’s allotment of assets in the recalculated equitable distribution. There is no error. Drake argues that the chancellor erred by classifying the proceeds from the parties’ sale of the Richland Road property as marital, because the parties had agreed to share the Richland Road proceeds equally as their separate property. Because the classification of the Richland Road proceeds was outside the scope of the Court of Appeals’ instructions on remand, the chancellor properly did not consider the issue. This is because the chancellor’s previous holding that the Richland Road property was marital was affirmed by the Court of Appeals and had become the law of the case. Drake also argues that the chancellor failed to consider the tax consequences attendant to Legacy as required by Ferguson. Contrary to Drake’s argument, the chancellor specifically addressed the tax consequences of awarding Legacy to Drake. Drake also argues that the chancellor abused his discretion by awarding Tonia substantially more assets. However, Tonia did not receive substantially more assets. Including the lump-sum alimony award to Tonia and Drake’s separate property of $210,000, the distribution left Drake with $759,100 and Tonia with $755,733. The chancellor’s division of the property was approximately equal. Drake’s argument that he received substantially less than Tonia relies on circumstances that occurred after the divorce judgment. However, the date for determination of equitable distribution is, at the earliest, the date of separation, or, at the latest, the date of divorce. Issue 2: Lump-sum alimony Drake argues that, in awarding lump-sum alimony, the chancellor erred by failing to apply Cheatham v. Cheatham, 537 So. 2d 435, 438-40 (Miss. 1988), which predates Ferguson and sets out factors for determining whether lump-sum alimony is appropriate. When lump-sum alimony is awarded as a mechanism to equitably divide the marital assets, then chancellors may conduct their analysis under the Ferguson factors. This is because the Cheatham factors are really nothing more than an earlier version of the Ferguson factors, and both are used for the same purpose. But when the chancellor awards lump-sum or periodic alimony after equitably dividing the estate, the chancellor should consider the Armstrong factors. Here, the chancellor, relying on Armstrong, awarded Tonia $100,000 in lump-sum alimony after equitably dividing the marital estate. The chancellor properly relied on Armstrong and not Cheatham in making the lump-sum alimony award. Drake also argues that the chancellor manifestly erred by awarding lump-sum alimony because Tonia received more marital assets than Drake in the equitable distribution. However, the chancellor was within his discretion in determining that, considering the needs and assets of the parties, Tonia should be awarded lump-sum alimony. Issue 3: Modification of child support Drake argues that the chancellor erred in denying his request for a downward modification of child support, because the chancellor departed from the statutory guidelines without adequate explanation. In a child-support modification decision, the chancellor first must find that a material change in circumstances warrants a modification before determining the amount of child support with reference to the guidelines. Because the chancellor in this case found no material change in circumstances, the chancellor did not reach the issue of setting the amount of child support. And Drake cannot now complain of the amount of child support awarded in the divorce judgment, because he did not appeal that issue. Drake also argues that the chancellor erred by imputing income to him and failing to recognize the reduction in income Drake suffered because his loan to Legacy was not repaid. In the modification proceedings, Drake and his tax preparer testified that Drake never recouped the value of the loan due to the closure of Legacy in August 2008, after which he received no further repayment and “wrote off” approximately $156,000. This evidence was undisputed. However, the chancellor failed to address the fact that Drake’s monthly income no longer included repayments from the Legacy loan. Therefore, this issue is reversed and remanded. Drake also argues that equitable considerations demand that the modification of college expenses and any further modifications ordered by the chancellor should be retroactive to the date that the Court of Appeals remanded the case, or to the original trial date in October 2010. This issue is without merit. Even if a petition for modification is pending, child-support payments vest when due and, once vested, cannot be forgiven or modified. Issue 4: Contempt Drake argues that the chancellor erred by finding him in contempt because he was entitled to setoffs for the $20,000 in rehabilitative alimony that he paid before the modification of rehabilitative alimony and college expenses that he paid in excess of what had been ordered in the divorce judgment. However, the chancellor was not manifestly wrong in holding Drake in contempt. By unilaterally reducing child support, Drake willfully ignored an order of the court. The $20,000 that Drake overpaid in rehabilitative alimony was allocated as alimony, not child support. Drake also argues that the chancellor erred by awarding Tonia $5,000 in attorney’s fees associated with bringing the contempt action. However, there is no error. |
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