Parker v. Parker
| Docket Number: | 2006-CA-01925-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-15-2008 Opinion Author: IRVING, J. Holding: Affirmed in Part, Reversed and Rendered in Part |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Propriety of judicial sale - Marital property - Attorney’s fees - Findings of fact Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 06-26-2006 Appealed from: Itawamba County Chancery Court Judge: Talmadge Littlejohn Disposition: IRRECONCILABLE DIFFERENCES DIVORCE ENTERED AND PROPERTY DIVIDED Case Number: 2002-0397-29 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JAMES PARKER |
FRANKLIN B. LIEBLING,
TAMMY L. WOOLBRIGHT |
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| Appellee: | NANCY CAROLYN PARKER | C. MICHAEL MALSKI, LUANNE S. THOMPSON | ||
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: Irreconcilable differences - Propriety of judicial sale - Marital property - Attorney’s fees - Findings of fact |
| Summary of the Facts: | James Parker and Nancy Parker were granted an irreconcilable differences divorce. At a hearing, the court informed the parties that if they could not come to an agreement, the court would conduct a judicial sale of all of the marital property due to the insufficient evaluations before the court. The court also gave the parties time to file additional information with the court. Despite the allowance, the parties did not come to an agreement as to the value of the marital estate. Consequently, all of the marital estate – including the businesses – was sold at judicial sale. The sale netted $296,512.66, of which James received $35,681.33 and Nancy received $260,831.33. The chancellor made this division by splitting the marital proceeds equally and then reducing James’ award because of his disposal of marital property. The chancellor also awarded Nancy ten thousand dollars in attorney’s fees, which was paid to her from James’ proceeds. James appeals. |
| Summary of Opinion Analysis: | Issue 1: Propriety of judicial sale James argues that the chancellor erred in ordering a judicial sale of the marital property. A partition sale is appropriate only where doing so is better for the parties involved than a partition in kind, or the property is incapable of being equally divided. Nothing in the record indicates that a partition sale was in the parties’ best interest or that the property at issue was incapable of being equitably divided in kind. In fact, the chancellor did not address this when ordering a judicial sale of the property. Although moot in this case, as the property has been sold, chancellors are urged in the future to order an evaluation rather than resorting to a judicial sale of marital property. Issue 2: Marital property Marital property is any and all property acquired or accumulated during the marriage. Separate property that has been commingled with the joint marital estate also becomes marital property subject to equitable distribution. Three acres contiguous to the Parkers’ eighty-five acre marital estate was given to James in return for the clearing of some land by James. James argues that this was a gift and not subject to marital distribution. Because there is no evidence in the record to suggest that the property in question was not commingled with the marital estate, the court did not err in considering this part of the marital estate. Prior to his marriage to Nancy, James owned a one-half interest in the approximately eighty-five acres upon which the marital home is situated. James argues that his one-half interest that he owned prior to the marriage should have been considered separate property. It is clear that at least one-half of the property that James complains of was clearly commingled, as Nancy helped pay off the loan that was used to purchase the property. There is no indication that the remaining one-half was somehow kept separate. In the absence of any evidence showing that the one-half interest that James brought into the marriage remained separate, the chancellor’s findings are not clearly erroneous. Prior to his marriage to Nancy, James owned and ran Parker’s Quick Lube 1. However, the shop was foreclosed on. After his marriage to Nancy, James was able to repurchase Quick Lube 1. It is clear that the business itself is marital property, as Nancy helped James pay for his repurchase of the shop. However, James argues that he should have been given credit for establishing and building up equity in Quick Lube 1. It is clear that whatever equity existed in Quick Lube 1 was commingled with the marital estate after James’s marriage to Nancy. James argues that the court erred in ordering the clerk to deduct from James’s portion of the marital estate the difference between the stipulated value of Quick Lube 3 and the amount for which James sold it. James transferred it in clear contravention of a court order preventing the disposal of marital property. Had James not improperly disposed of the property, it would have been sold at judicial sale, as the parties did not stipulate to its value until after the judicial sale. The court did not err in ordering James to pay Nancy one-half of the stipulated value of the shop, as she received none of the proceeds from James’s sale of the shop. James conveyed a house and 3.01 acres to a couple from whom he had purchased the property. James clearly conveyed the property in direct contravention of the court’s order to the contrary. Thus, the court did not err in ordering James to pay Nancy one-half of the appraised value of the property. In contravention of the court’s prohibition on disposal of marital property, James leased Quick Lube 2 to Jerry Enis with an option to purchase the property at some future date. At the judicial sale of the property, Enis arrived and declared to the potential buyers that he had a lease with an option to purchase on the property. Thereafter, no other bids were taken on the property, and Enis bought it for $55,850, $44,150 below the appraised value of the property. Given that James leased the property to Enis in direct contravention of the court’s order and that the improper lease had a significant chilling effect on bidding on the property at the judicial sale, the court did not err in ordering James to pay Nancy for the reduction in value. James argues that the chancellor erred in failing to address marital debts that were paid by him after his separation from Nancy but before the court’s judgment. He claims he paid marital debts with funds from his monthly retirement benefit, which is a non-marital asset. The only evidence that James paid for marital debts with his retirement funds is his own testimony to that effect. Therefore, there was insufficient evidence for the chancellor to credit James for his payments from his retirement account. Issue 3: Attorney’s fees James argues that there was insufficient evidence supporting an award of attorney’s fees and that Nancy was financially capable of paying her attorney’s fees. The chancellor wholly failed to address any factors or what considerations prompted him to award attorney’s fees to Nancy. Furthermore, Nancy was clearly able to pay her attorney’s fees, as the court awarded her nearly $261,000 as part of its judgment. Thus, the award of attorney’s fees is reversed and rendered. Issue 4: Findings of fact James argues that the chancellor did not address the one-half interest that he owned in the marital estate prior to his marriage to Nancy and that the chancellor did not discuss the equity and work that James had put into establishing the Quick Lube business. The court conducted an extensive analysis of the relevant Ferguson factors. Additionally, the court specifically addressed the assets about which James complains. There is ample evidence to support the court’s findings. |
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