McIntosh v. McIntosh


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Docket Number: 2006-CA-01762-COA

Court of Appeals: Opinion Link
Opinion Date: 03-25-2008
Opinion Author: Irving, J.
Holding: The judgment of the Washington County Chancery Court in Cause No. 2006-CA-02136 is reversed and rendered and remanded. The judgment of the Washington County Chancery Court in Cause No. 2006-CA-01762 is affirmed.

Additional Case Information: Topic: Divorce: Habitual cruel and inhuman treatment - Separate maintenance - Division of marital estate - Alimony - Attorney’s fees - Motion for stay - M.R.C.P. 59(e) - Supersedeas bond - M.R.A.P. 8(b)(1)
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

Trial Court: Date of Trial Judgment: 10-02-2006
Appealed from: WASHINGTON COUNTY CHANCERY COURT
Judge: Marie Wilson
Disposition: DENIED MOTION FOR SEPARATE MAINTENANCE AND GRANTED DIVORCE ON THE GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT
Case Number: 05-1011
  Consolidated: Consolidated with 2006-CA-02136-COA; Peirce McIntosh v. Gay Reed McIntosh; Washington Chancery Court; LC Case #: 05-1011; Ruling Date: 10/02/2006; Ruling Judge: Marie Wilson

  Party Name: Attorney Name:  
Appellant: GAY REED MCINTOSH




EDWARD D. LAMAR, FRANK J. DANTONE



 

Appellee: PEIRCE MCINTOSH JOHN H. DANIELS  

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Topic: Divorce: Habitual cruel and inhuman treatment - Separate maintenance - Division of marital estate - Alimony - Attorney’s fees - Motion for stay - M.R.C.P. 59(e) - Supersedeas bond - M.R.A.P. 8(b)(1)

Summary of the Facts: The chancery court entered a judgment of divorce in favor of Peirce McIntosh on the ground of cruel and inhuman treatment, which was stayed upon motion by Gay McIntosh. Gay appealed initially, and her appeal was assigned cause number 2006-CA-01762. Shortly thereafter, Peirce appealed the chancellor’s decision to stay the final judgment of divorce and to reinstate the order of temporary support. Peirce’s appeal was assigned cause number 2006-CA-02136 and has been consolidated with Gay’s.

Summary of Opinion Analysis: Issue 1: Habitual cruel and inhuman treatment Gay argues that the chancellor erred in granting Peirce a divorce on the ground of habitual cruel and inhuman treatment. In order to uphold a cruel and inhuman treatment divorce, the conduct of the offending spouse must be so unkind as to be cruel, that is, so unreasonably harsh and severe as to be inhumane, so lacking in human qualities, so unfeeling or brutal as to endanger, or put one in reasonable apprehension of danger to life, limb, or health. Such conduct must be habitual, that is, done so often, or continued so long, that its recurrence may be reasonably expected whenever occasion or opportunity presents itself. Here, there is considerable evidence that the marriage had a negative impact on Peirce’s health. Gay admitted that she had stolen checks from Peirce’s checkbook, cashed in Peirce’s savings bonds, failed to use money to pay the rent, and returned items to stores for cash after using a credit card to make the purchases. Because it is clear that Peirce’s mental and physical health has deteriorated as a result of Gay’s antics, the proof is sufficient to support a divorce on the ground of habitual cruel and inhuman treatment. Issue 2: Separate maintenance The power to grant separate maintenance to a wife is based on separation without fault on the wife’s part, and willful abandonment of her by the husband with refusal to support her. Gay argues that she is entitled to separate maintenance. However, she failed to satisfy both prongs of the test, as she failed to prove that Peirce refused to support her. Issue 3: Division of marital estate Gay argues that the chancellor erred in failing to consider Peirce’s PERS account, deferred compensation plan, and non-retirement accounts when dividing the marital estate. It was the responsibility of Gay’s attorney to inform the chancellor that the chancellor had failed to consider certain accounts at the time she divided the marital estate. This should have been done by filing a motion to amend the final judgment of divorce, prior to bringing this issue on appeal. The attorney failed to do so. Therefore, this issue is procedurally barred because it was not first raised at the trial level. Issue 4: Alimony Gay argues that the chancellor erred in declining to award her periodic, lump sum, or rehabilitative alimony. Alimony is considered only after the marital property has been equitably divided and the chancellor determines one spouse has suffered a deficit. In light of the fact that the chancellor essentially split the marital estate equally, the chancellor did not abuse her discretion in denying an award of alimony to Gay. The disparity between Gay and Peirce’s estate is less than five hundred dollars. Issue 5: Attorney’s fees Gay requested attorney’s fees in the amount of $12,022.50 for 68.70 hours of work and expenses in the amount of $829.52. The chancellor concluded that Gay’s attorney’s fees were excessive and unreasonable and reduced them by half. Although the chancellor noted that Gay testified that she was unable to pay her attorney’s fees, the chancellor found that Gay will have a “small amount of extra money” after she pays her reasonable attorney’s fees. Thus, there is no merit to this issue. Issue 6: Motion for stay Peirce argues that the chancery court erred in granting a stay of the final judgment of divorce and that the chancery court lacked authority to reinstate its temporary order. Pursuant to M.R.C.P. 59(e), the chancery court lost jurisdiction ten days after the court entered its final judgment of divorce, as Gay failed to file a post trial motion. Moreover, a temporary order terminates when a final judgment is entered. Therefore, the chancery court erred in granting the stay and in reinstating its temporary order of support. The chancery court’s reinstatement of the temporary order is remanded, with directions to make an accounting of what Peirce would have been required to pay under the final judgment had it not been stayed and what he has paid pursuant to the temporary order. Issue 7: Supersedeas bond Peirce argues that the chancellor erred in granting the stay without requiring Gay to post a supersedeas bond. While the chancellor erred in granting the stay without requiring Gay to post a supersedeas bond, this issue is moot and the stay is dissolved. If Gay desires to maintain a stay of this cause pending further judicial proceedings, she is required to post a supersedeas bond pursuant to M.R.A.P. 8(b)(1) or any other applicable law.


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