Cosentino v. Cosentino
| Docket Number: | 2006-CA-01613-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-01-2008 Opinion Author: IRVING, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Periodic alimony Judge(s) Concurring: KING, C.J., LEE, P.J., CHANDLER, ISHEE AND ROBERTS, JJ. Dissenting Author : GRIFFIS, J., with separate written opinion. Dissent Joined By : MYERS, P.J., BARNES AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 02-06-2006 Appealed from: Jackson County Chancery Court Judge: Jaye A. Bradley, Sr. Disposition: ON REMAND, CHANCELLOR UPHELD PREVIOUS ALIMONY AWARD Case Number: 2001-2294-JB |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | DOUGLAS G. COSENTINO |
JOSEPH R. MEADOW |
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| Appellee: | PHYLLIS L. COSENTINO | EARL L. DENHAM, WENDY C. HOLLINGSWORTH | ||
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| Topic: | Divorce: Irreconcilable differences - Periodic alimony |
| Summary of the Facts: | Douglas Cosentino and Phyllis Cosentino agreed to an irreconcilable differences divorce, and the chancellor divided the marital estate, which was valued at approximately $5.1 million. Phyllis was awarded $2,615,815, and Douglas was awarded $2,560,390. The chancellor also awarded Phyllis $7,000 per month in periodic alimony. In a first appeal, the Court reversed and remanded for an analysis of the Ferguson factors. Both parties were offered but declined the opportunity to be heard on remand, so the chancellor issued a ruling based on the evidence that had been presented during the alimony hearing. The court awarded $7,000 in permanent periodic alimony to Phyllis. Douglas appeals. |
| Summary of Opinion Analysis: | After this case was remanded for the chancellor to make specific findings, she again failed to provide any justification for the alimony award. The chancellor did not address whether Phyllis’s property settlement of more than two million dollars eliminated her need for alimony. The chancellor did not articulate any reason why Phyllis needed more than the $2,615,815 that she was awarded. Inasmuch as alimony should only be awarded when the division of the marital estate leaves one party in a deficit, the record simply does not support the chancellor’s award. The chancellor’s finding that Phyllis could easily outlive her share of the marital estate is speculative at best, as the converse is also true: Phyllis may not outlive her share of the marital estate. The proper question before the chancellor was whether Phyllis needed alimony at the time of the property division, not whether she may need it at some time in the future. Thus, the case is reversed and remanded. |
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