Dye v. Dye
Docket Number: | 2008-CA-00712-COA | |
Court of Appeals: |
Opinion Link Opinion Date: 12-01-2009 Opinion Author: IRVING, J. Holding: AFFIRMED IN PART; REVERSED AND REMANDED IN PART |
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Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Equitable distribution - Marital property - Retirement account Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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Trial Court: |
Date of Trial Judgment: 03-24-2008 Appealed from: PONTOTOC COUNTY CHANCERY COURT Judge: Talmadge Littlejohn Disposition: DIVORCE GRANTED AND PROPERTY DIVISION ORDERED Case Number: 2005-0431-58-L |
Party Name: | Attorney Name: | Brief(s) Available: | ||
Appellant: | DARIAN DYE |
RICHARD SHANE MCLAUGHLIN,
MECHELLE NICOLE MCLAUGHLIN |
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Appellee: | FRANCES DYE | WILL R. FORD, WILLIAM L. GRIFFIN JR. |
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. |
Topic: | Divorce: Irreconcilable differences - Equitable distribution - Marital property - Retirement account |
Summary of the Facts: | Darian and Frances Dye were granted an irreconcilable differences divorce. The chancellor awarded Frances sole legal and physical custody of the parties’ three minor children and divided the marital estate. Darian appeals. |
Summary of Opinion Analysis: | Darian argues that the chancellor erred by factoring his Day-Brite retirement account, valued at $68,803, into the distribution of the marital estate. The chancellor awarded the entire Day-Brite account to Darian, which, according to the chancellor, was valued at $68,803. The chancellor did not discuss Darian’s testimony that he had expended approximately $30,000 of the account. Because the record is unclear whether Darian’s retirement account was completely depleted or was reduced by only $30,000, the case is reversed and remanded for the chancellor to make a determination of the amount, if any, that remains in the retirement account. Also, the chancellor should make a determination as to whether Darian’s expenditures, which were made with money withdrawn from the account, were legitimate marital expenses that should not be charged against him. Darian also argues that the chancellor erred in failing to find that the portion of the retirement account that he had accumulated prior to the marriage is his separate estate. Assets are not subject to distribution where it can be shown that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage. The chancellor erred in considering the entirety of Darian’s retirement account as a part of the martial estate. Darian also argues that the chancellor erred in classifying two Ford tractors, a bushhog, and a finishing mower, with a total value of $30,000, as marital property. Darian points to his trial testimony that the equipment belonged to his father and that he simply insured it under his homeowners insurance policy because it was cost-effective to do so. Darian’s testimony was not the only evidence before the chancellor on this point. Frances also testified regarding the ownership of the equipment. Where conflicting testimony is presented, expert and otherwise, the chancellor is required to make a judgment on the credibility of the witnesses in order to resolve the questions before the court. Based on the evidence before him, the chancellor was not manifestly wrong or clearly erroneous in finding that the equipment was marital property. Darian also argues that the chancellor erred in ordering him to provide COBRA health insurance for Frances. The chancellor did not err in ordering Darian to provide COBRA insurance to Frances for thirty-six months. |
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