Dickerson v. Dickerson


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Docket Number: 2008-CA-01100-COA

Court of Appeals: Opinion Link
Opinion Date: 04-20-2010
Opinion Author: Maxwell, J.
Holding: Affirmed

Additional Case Information: Topic: Divorce: Adultery - Distribution of marital property - Lump sum alimony - Attorney's fees
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee and Roberts, JJ.
Non Participating Judge(s): Carlton, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 05-23-2008
Appealed from: WARREN COUNTY CHANCERY COURT
Judge: Vicki Barnes
Disposition: DIVORCE GRANTED TO WIFE ON GROUND OF ADULTERY; PROPERTY DESIGNATED AND DIVIDED; LUMP-SUM ALIMONY AWARDED TO WIFE; ATTORNEYS’ FEES AWARDED TO WIFE
Case Number: 2006-206GN

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: Jeff Dickerson




JAMES L. PENLEY, JR.



 
  • Appellant #1 Brief

  • Appellee: Bonnie Lynn Dickerson MARCIE TANNER SOUTHERLAND  

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    Topic: Divorce: Adultery - Distribution of marital property - Lump sum alimony - Attorney's fees

    Summary of the Facts: Jeff and Bonnie Lynn Dickerson were divorced on the ground of Jeff’s uncondoned adultery. The chancellor classified, valued, and divided the parties’ property. The chancellor also awarded attorneys’ fees to Lynn. Jeff appeals.

    Summary of Opinion Analysis: Issue 1: Adultery Jeff argues the chancellor should have granted him a divorce on the ground of adultery based on Lynn’s alleged adultery with an unidentified man and Lynn’s relationship with another man after her separation from Jeff. Where adultery is alleged, the plaintiff must prove by clear and convincing evidence: an adulterous inclination and a reasonable opportunity to satisfy that inclination. Establishing an “adulterous inclination” requires proof of either the defendant’s infatuation with a particular person or general adulterous propensity. Here, there was abundant evidence of Jeff’s adultery, including Jeff’s and the other woman’s multiple admissions. Accordingly, the chancellor was well within her discretion in granting a divorce to Lynn. This is true even though Jeff asserts that Lynn also had adulterous affairs of her own. With regard to Lynn’s alleged adultery with an unidentified man, the only witness to this admittedly did not observe anything of a sexual nature occur during the sole encounter between Lynn and the man. Lynn’s relationship with the second man began months after the parties’ separation and did not cause the separation. On the other hand, the evidence showed Jeff committed adultery prior to the parties’ separation and continued his relationship with the woman up until and well after his separation from Lynn. Issue 2: Distribution of property Jeff argues that the chancellor’s distribution of marital property is not supported by substantial evidence, because the chancellor failed to give adequate weight to his efforts in accumulating assets and Lynn’s alleged lack of contributions. Jeff and Lynn agreed upon the classification and valuation of many items of property, but submitted others for the chancellor to decide. The chancellor thoroughly analyzed the facts and applicable law in a sixty-one page final judgment. Twenty-one of these pages are devoted solely to issues related to property division. The chancellor ultimately ordered an equitable division and awarded an unequal sum favoring Lynn. Jeff testified that Lynn never worked with him at his company, Dickerson Tire, and she contributed nothing to the operation of the business. However, testimony by both Lynn and another witness familiar with the business contradicted Jeff’s characterization of Lynn’s efforts. The chancellor recognized Dickerson Tire was a substantial non-marital asset owned by Jeff. The parties agreed that the business had a value of $300,000 and an equitable value of $215,065.42 at the time of the parties’ separation. Thus, Jeff’s separate estate is of considerable value given the parties’ overall assets. There is a substantial disparity between Jeff’s and Lynn’s separate estates given that Lynn has no separate estate. The chancellor also noted Jeff’s marital fault – his adulterous relationship prior to the parties’ separation – and trial testimony that Lynn performed household duties such as cleaning. Chancellors need not divide the marital estate equally when ordering an equitable division. Here, the chancellor acted well within her discretion. Issue 3: Lump sum alimony The chancellor ordered Jeff to pay $10,096.02 in lump-sum alimony. This is the exact amount owed on Lynn’s 2001 Lexus vehicle, which she drove during the marriage. Jeff argues this award was inappropriate because: the marriage was short; Lynn possesses a real estate license; and Lynn has been living with a man who is providing for her. A lump-sum award may be necessary where the marital property is not easily divided between the parties. Lump-sum alimony is closely tied to equitable distribution, and it is really nothing more than equitable distribution in the form of cash. It is improper to award lump-sum alimony based upon nothing more than one spouse’s need and the other’s ability to pay. Here, the chancellor’s analysis was thorough. Notably, in awarding lump-sum alimony to Lynn, the chancellor considered the disparity in the parties’ respective incomes; Jeff’s significant separate estate compared to Lynn’s non-existent separate estate; and Lynn’s lack of financial security in part because she has no savings or retirement accounts. Thus, there was no error. Issue 4: Attorney’s fees The chancellor ordered Jeff to pay Lynn’s attorneys’ fees, which totaled $15,056.39. Jeff argues the number of hours logged by Lynn’s attorneys was excessive, because the divorce case was simply a continuation of prior temporary matters. The parties stipulated that the items billed by Lynn’s attorneys were legitimate, and the amount was reasonable. Matters stipulated at trial are procedurally barred from being appealed. Furthermore, some of the attorneys’ fees were generated during proceedings in which Jeff was found in contempt of a court order to pay temporary support. Attorneys’ fees are properly assessed against a party found to be in contempt. Thus, the chancellor did not manifestly err in crafting the attorneys’ fees award.


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