Lowrey v. Lowrey
| Docket Number: | 2007-CA-01988-SCT Linked Case(s): 2007-CA-01988-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 11-05-2009 Opinion Author: Randolph, J. Holding: ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART. ON CROSS-APPEAL: AFFIRMED |
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| Additional Case Information: |
Topic: Divorce - Equitable division - Alimony - Child support - Section 43-19-101 - Child custody - Section 93-5-24(4) Judge(s) Concurring: Waller, C.J., Carlson, P.J., Dickinson, Lamar, Kitchens and Chandler, JJ. Non Participating Judge(s): Graves, P.J. Concur in Part, Concur in Result 1: Pierce, J. with separate written opinion. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 09-06-2007 Appealed from: Lamar County Chancery Court Judge: James H.C. Thomas, Jr. Disposition: The judgment ordered: (1) paramount2 physical custody of the three children to Perrin; (2) joint legal custody; (3) visitation for Emelie, Erin, and Brittny; (4) child support in the amount of $200 per month to be paid by Cynthia; (5) periodic alimony for Cynthia of $900 per month derived from the division of a marital asset, Perrin’s retirement account; and (6) division of home equity and personalty. From that judgment, with the exception of visitation, Perrin appeals and Cynthia cross-appeals. Case Number: 2002-0254-GN-TH |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | PERRIN H. LOWREY |
THOMAS T. BUCHANAN |
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| Appellee: | CYNTHIA NELSON LOWREY | WILLIAM MATTHEW THOMPSON, MARK A. CHINN | ||
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| Topic: | Divorce - Equitable division - Alimony - Child support - Section 43-19-101 - Child custody - Section 93-5-24(4) |
| Summary of the Facts: | Cynthia and Perrin Lowrey were divorced in 2002. In 2003, Cynthia moved for relief from that judgment, claiming that she had been overreached, and that the property settlement she had agreed to was inequitable. Her motion was overruled. Cynthia appealed. The Court of Appeals affirmed the divorce, but reversed and remanded with instructions to resolve the unresolved matters of child custody, child visitation, child support, property division, and alimony. On remand, the judge ordered paramount physical custody of the three children to Perrin; joint legal custody; visitation; child support in the amount of $200 per month to be paid by Cynthia; periodic alimony for Cynthia of $900 per month derived from the division of a marital asset, Perrin’s retirement account; and division of home equity and personalty. Perrin appeals, and Cynthia cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Equitable division An equitable division of property does not necessarily mean an equal division of property. Fairness is the prevailing guideline in marital division. Here, the chancellor made findings of fact without support in the record and failed to identify the specific factors and weights given the limited factors interspersed in the opinion. He also failed to explain why certain factors were deemed inapplicable. The chancellor correctly found wasteful dissipation, but the amount the chancellor found is not supported by substantial evidence, resulting in manifest error. Additionally, there is no evidence that the market value of the retirement account at the time of the divorce was considered, although that evidence was admitted. For purposes of determination of equitable division in this case, the date for determination would be either the date of separation (at the earliest) or the date of divorce (at the latest). The record reveals no acquisition of assets between the two dates (late June and early September of 2002) that would alter that consideration. Thus, there is no legal basis for using a date after the date of divorce, as was done here. Alimony, custody, and child-support proceedings should be determined at the time of hearing, and the chancellor also is required to take into consideration the statutory guidelines and exceptions regarding child support. The judgment as to equitable distribution of marital property is reversed because the judgment failed to consider the market value of Perrin’s retirement account, to calculate the correct amount of wasteful dissipation, and to credit Perrin for the marital and nonmarital assets that he expended, or was committed to expend, before the date of divorce. By her own admission, for years preceding the separation, Cynthia was a prodigious gambler. She offered no evidence to contradict other witnesses who testified that she had not contributed to the stability of the marriage since 1995, whether measured by quality or quantity of time. The record clearly reveals that in the 2000-2002 time frame, the majority of her time was devoted to gambling, as well as wasting family assets. Whether the chancellor took her lack of contribution to the family into account in assigning her share is not available for appellate review, as he did not provide any findings of fact or conclusions of law regarding this. The chancellor did make a finding of fact regarding disposal of marital assets, but substantial evidence does not support the totality of the wasteful dissipation. There is no fault in the chancellor’s finding that Cynthia dissipated assets due to her gambling addiction. Thus, Cynthia’s contention that there was no dissipation is without merit. Gambling losses can be considered as dissipation in an equitable distribution of marital assets. However, the amount of wasteful dissipation charged to Cynthia in the findings of fact, $122,000, significantly understates the amount dissipated and the timing of the waste. The finding that Perrin’s actions caused his wife’s gambling problem is not supported by substantial evidence. Substantial evidence, whether testamentary or documentary, supports no other conclusion than that the depletion of marital assets was due to Cynthia’s excessive gambling, and not by any action of Perrin. None of the debt repayment that Perrin had to make, or committed to make, during the marriage was credited. The findings of fact make no mention of Perrin’s paying off the debts Cynthia created, except to mention that Perrin successfully had challenged part of the debt, a benefit that also inured to her. Repayment of gambling debts is not the type of domestic purpose in which nonmarital property would become marital when commingled. At the time of the divorce, Perrin was employed, with a gross income of $6,963 per month, netting $4,160. However, the findings of fact consider events occurring post-divorce, i.e., his retirement, after which his income was $4,798. The findings refer to his life expectancy (from sources unknown, as no evidence was introduced) and no judicial knowledge of record is found to support a finding that he would receive $1,324,270 over the next twenty-three years. The court neither analyzed the present net value of the retirement account as of date of divorce, nor considered market value. The chancellor found that seventy percent of total retirement benefits were accumulated during the marriage, but provided no analysis of how this number was derived. With regard to alimony, it is abundantly clear the award of lump-sum alimony, albeit deemed periodic alimony, was based on an errant division of marital property. There is ample support in the record that the chancellor was eminently correct in determining that wasteful dissipation occurred. If the chancellor finds on remand that the wasteful dissipation exceeded one-half of the value of the marital estate, no more need be done as to equitable distribution of marital assets. Issue 2: Child support Perrin argues that the chancellor’s child-support award deviates downward from the guidelines, and that the chancellor gave no reason for the deviation. The chancellor not only deviated from the statutory guidelines, he failed to consider all of Cynthia’s income in determining the amount. No reason is given for the deviation downward from the statutory guideline in section 43-19-101 that calls for twenty-two percent for three children. Although all three girls are estranged from Cynthia, estrangement is not a basis for deviation from statutory child-support guidelines and is not an excuse for failing to pay child support. Cynthia’s income is comparable to that of many other noncustodial parents in Mississippi. Therefore, the chancellor’s determination that Cynthia pay only $200 in monthly child support is reversed. According to the statutory guidelines, Cynthia should pay twenty percent of her current adjusted gross income. Issue 3: Child custody The polestar consideration in child custody cases is the best interest and welfare of the child. Perrin testified that Cynthia had no relationship with her daughters for years leading up to the hearing. He never refused to allow the girls to have a relationship with their mother. He encouraged a relationship after the divorce. Perrin stated that Cynthia had not telephoned the girls in three to four years. Although all the girls were busy with extracurricular activities, Cynthia showed little interest. The chancellor was persuaded by the election of the children, the disparity in the physical and emotional health of the parents, and the recommendation of the guardian ad litem, in his decision to award physical custody to Perrin. Cynthia argues that the chancellor erred in not awarding her primary physical custody. Cynthia’s arguments are without merit, as substantial credible evidence supports the chancellor’s decision to award physical custody to Perrin. Regarding legal custody, the chancellor applied an erroneous legal standard, thus, his findings of fact do not support his conclusions of law. The chancellor granted joint custody. The chancellor cited Cynthia’s “early continuity of care prior to the separation and the willingness to care for her children and emotional ties with her children.” Cynthia’s continuity of care ceased minimally seven years prior to separation. Although she may have emotional ties to the children, no substantial evidence was presented to support her willingness to care for the children. Section 93-5-24(4) creates a presumption in favor of joint custody where the parents have agreed to it. However, these parties have not agreed to joint custody. Thus, full legal custody of the minor children is given to Perrin. |
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