Hawkins v. Hawkins
Docket Number: | 2008-CA-01774-COA Linked Case(s): 2008-CT-01774-SCT ; 2008-CA-01774-COA |
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Court of Appeals: |
Opinion Link Opinion Date: 03-16-2010 Opinion Author: Barnes, J. Holding: Affirmed |
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Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Modification of property settlement agreement - Right to partition Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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Trial Court: |
Date of Trial Judgment: 09-30-2008 Appealed from: Lamar County Chancery Court Judge: Sebe Dale, Jr. Disposition: REQUEST FOR PARTITION DENIED. Case Number: 12,433-T |
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Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. |
Party Name: | Attorney Name: | Brief(s) Available: | ||
Appellant: | BRYAN KENT HAWKINS |
TIMOTHY M. FARRIS |
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Appellee: | SUZANNE A. HAWKINS | RAY T. PRICE |
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 - Modification of property settlement agreement - Right to partition |
Summary of the Facts: | Bryan and Suzanne Hawkins were granted an irreconcilable differences divorce. Attached to the judgment was an “Agreement and Property Settlement” which stated the parties had reached a full and complete settlement as to all matters. The Agreement provided for child custody for the couple’s two children (who were minors at that time), child support, and permanent alimony for Suzanne of $600 per month until her death or remarriage. The Agreement awarded Suzanne the use and occupancy of the homestead, with Bryan paying the monthly mortgage installments, which included taxes and insurance on the homestead. Bryan filed a petition for modification, wherein he requested that Suzanne’s alimony be terminated and the marital home be sold, with his receiving an equitable division of any resulting equity. The chancery court ruled in favor of Suzanne, stating that the partition could not be granted because an agreement not to partition the property was implied, since there was no termination clause in the Agreement. Bryan appeals. |
Summary of Opinion Analysis: | Bryan argues that the chancellor erred, as a matter of law, in ruling that the Agreement implied that Bryan “contracted his right of partition away” when he granted Suzanne “the ‘use and occupancy of the homestead’ without limitation.” The general rule is well settled that partition will not be granted at the suit of one in violation of his own agreement, since the agreement operates as an estoppel against the right to partition. It is a longstanding rule that property settlements are not subject to modification. Because there is no mention in the Agreement of any limitation on Suzanne’s “use and occupancy of the homestead,” either express or implied, the chancellor properly found that it is implied that the parties agreed not to partition the property. The absence of a termination provision means that no termination of the terms was intended. As the chancellor stated, partitioning the property would be in violation of the intent of the Agreement; thus, Bryan is estopped from doing so. |
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