Bowen v. Bowen
| Docket Number: | 2007-CA-00045-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 05-22-2008 Opinion Author: Carlson, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Promissory note - Marital assets - IRA and stock brokerage accounts - Credit for alimony - Gambling Judge(s) Concurring: Smith, C.J., Waller and Diaz, P.JJ., Dickinson, Randolph and Lamar, JJ. Dissenting Author : Easley, J., without separate written opinion. Concurs in Result Only: Graves, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 12-07-2006 Appealed from: Harrison County Chancery Court Judge: Sanford R. Steckler Disposition: The chancellor also awarded Betty half of the equity in the marital home or insurance proceeds from any damage due to Hurricane Katrina, and he further found that Betty had a partial ability to pay her attorney’s fees due to the equitable distribution of property, and thus awarded her $2,000. All other provisions of the judgment of divorce previously entered but not discussed in the order, including ordering Joe to pay Betty’s outstanding past medical bills and to give Betty ten percent of his financial accounts, remained in full force and effect. Case Number: 2003-01232(3) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JOE M. BOWEN |
CLEMENT S. BENVENUTTI |
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| Appellee: | BETTY CAROL BOWEN | THOMAS WRIGHT TEEL |
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| Topic: | Divorce: Irreconcilable differences - Promissory note - Marital assets - IRA and stock brokerage accounts - Credit for alimony - Gambling |
| Summary of the Facts: | Joe and Betty Bowen were granted a divorce on the ground of irreconcilable differences. The chancellor awarded Betty one-half of the insurance proceeds from the marital home which was destroyed in Hurricane Katrina; ownership and possession of the vehicle she drove; and ten percent of each of Joe’s financial accounts. The chancellor furthered ordered Joe to pay Betty $430 per month in rehabilitative alimony for five years, to pay Betty’s outstanding medical bills, and to pay $2,000 of Betty’s attorney’s fees. Betty filed a motion to reconsider. The chancellor entered an order granting Betty’s motion to reconsider. The chancellor found that Betty was entitled to lump sum alimony in the amount of $60,000, an amount equal to ten percent of Joe’s mortgage note of $600,000. Joe was to pay thirty payments of $2,000 each until paid in full. The chancellor also awarded Betty half of the equity in the marital home or insurance proceeds from any damage due to Hurricane Katrina, and he further found that Betty had a partial ability to pay her attorney’s fees due to the equitable distribution of property, and thus awarded her $2,000. Joe appeals. |
| Summary of Opinion Analysis: | Issue 1: Promissory note Joe argues that the record lacks substantial evidence to show that the promissory note from the sale of a marina owned by Joe and his brother was a marital asset. Where a party commingles non-marital assets or uses them for familial benefit, those assets become marital assets. Clearly, after the marriage, Joe and Betty lived and worked at the marina. Thus, the chancellor did not err in finding that Betty was entitled to share in the benefit of the marina note. Joe also argues that Betty would be entitled to share in any increase in the value of the marina which occurred only during the thirteen months of marriage in which he owned it, and not the entire twenty-five years he owned it. However, the chancellor did not award Betty a portion of the promissory note as a marital asset but awarded Betty lump-sum alimony in the amount of $60,000. Issue 2: IRA and stock brokerage accounts Joe argues that the chancellor erred in granting Betty a ten percent interest in his accounts where the chancellor did not specifically find that the accounts were marital property. Marital property is defined as any and all property acquired or accumulated during the marriage. Where there is conflicting testimony, the chancellor, as the trier of fact, is the judge of the credibility of the witnesses. Here, the chancellor acted well within his discretion, based upon the evidence presented, in determining that Betty was entitled to a portion of the accounts. Issue 3: Credit for alimony Joe argues that the chancellor was clearly erroneous in failing to give him credit for temporary rehabilitative alimony payments paid between December 2003 and December 2005 and lump-sum alimony payments paid between December 2005 and December 2006. Joe fails to direct the Court to case law stating that temporary support should be considered in equitable distribution; therefore, this issue is procedurally barred. In addition, the chancellor was free to exercise his discretion in equitable distribution. Issue 4: Gambling Joe argues that the chancellor erred by failing to make an adjustment to Betty’s award after finding that Betty had gambled. However, the chancellor did not find that Betty wasted or dissipated the marital assets. |
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