Tackett v. Tackett


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Docket Number: 2006-CA-01157-COA
Linked Case(s): 2006-CA-01157-SCT

Court of Appeals: Opinion Link
Opinion Date: 11-06-2007
Opinion Author: ROBERTS, J.
Holding: Affirmed

Additional Case Information: Topic: Separate maintenance - Cause of separation - Award
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES AND CARLTON, JJ.,
Judge(s) Concurring Separately: Irving, J. joined by Lee, P.J. and Ishee, J.
Concurs in Result Only: ISHEE, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 05-17-2006
Appealed from: MONROE COUNTY CHANCERY COURT
Judge: Talmadge Littlejohn
Disposition: CHANCELLOR DENIED HUSBAND’S COMPLAINT FOR DIVORCE AND GRANTED WIFE’S PETITION FOR SEPARATE MAINTENANCE
Case Number: 2005-303-48-L

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: TIMOTHY LEE TACKETT




DUNCAN L. LOTT



 

Appellee: KIM OLIVER TACKETT CANDACE COOPER BLALOCK  

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Topic: Separate maintenance - Cause of separation - Award

Summary of the Facts: Tim Tackett filed for divorce from Kim Tackett on the grounds of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. In turn, Kim requested separate maintenance. The chancellor denied Tim’s complaint for divorce and granted Kim’s petition for separate maintenance. Tim appeals.

Summary of Opinion Analysis: Issue 1: Cause of separation The chancellor held that while Kim admittedly shared in the cause of separation, she did not materially contribute to it. Tim argues that Kim’s actions were the only contribution as there was no proof offered of Tim’s misconduct. In order for the trial court to grant a wife’s request for separate maintenance, it must be shown that the separation was without fault on the wife’s part, and willful abandonment of her by the husband coupled with a refusal to support. The wife need not be totally blameless, and an award of separate maintenance may still be appropriate so long as the wife’s conduct did not materially contribute to the separation. The record shows that Kim admitted she was partly to blame for the couple’s separation, but maintained that Tim was more at fault because he left. From the testimony presented at trial, it is obvious that the parties’ separation centered around sex and money. There was no evidence that Kim excessively spent money. When Kim suggested counseling to try to alleviate the couple’s situation, Tim refused. Based on the record, the trial court did not manifestly err in finding that Kim did not substantially contribute to the separation, or that such a decision is not supported by substantial evidence. Issue 2: Award of separate maintenance The chancellor awarded Kim $1,200 per month in separate maintenance, and Tim argues this was excessive. Factors to be considered in setting awards of separate maintenance include the health of the husband and the wife, their combined earning capacity, the reasonable needs of the wife and children, the necessary living expenses of the husband, the fact that the wife has free use of the home and furnishings, and other such facts and circumstances. The trial court found that Kim was not in good physical condition, while Tim’s health was unquestioned. Noting the discrepancy in Tim’s and Kim’s financial situations, as evident from their 8.05 statements, the trial court held that Tim’s earning capacity was greatly superior to Kim’s. The trial court considered the facts that Tim had additional assets (two retirement plans) totaling $24,153.44 and a life insurance policy, while Kim had none. The trial court also noted that, during the marriage, Kim cashed in her retirement account and spent the proceeds on various expenses. In consideration of each parties’ financial state and additional factors considered by the chancellor, an award of $1,200 to Kim is not excessive.


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