Wise v. Wise


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Docket Number: 2008-CA-02138-COA

Court of Appeals: Opinion Link
Opinion Date: 04-27-2010
Opinion Author: Roberts, J.
Holding: Affirmed

Additional Case Information: Topic: Divorce: Irreconcilable differences - Division of marital property
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee and Maxwell, JJ.
Non Participating Judge(s): Carlton, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 11-20-2008
Appealed from: PERRY COUNTY CHANCERY COURT
Judge: Sebe Dale, Jr.
Disposition: GRANTED DIVORCE AND DIVIDED PARTIES’ PROPERTY
Case Number: 2006-0058-GN-D

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: Cathy D. Wise




THOMAS W. CROCKETT, JR.



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: Tim Wise DAVID ALAN PUMFORD  

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    Topic: Divorce: Irreconcilable differences - Division of marital property

    Summary of the Facts: Cathy Wise filed for divorce from Tim Wise. The chancellor granted the parties a divorce on the ground of irreconcilable differences and divided the marital property. Cathy appeals.

    Summary of Opinion Analysis: Tim and Cathy owned a number of convenience stores and formed Tim’s, Inc. with both Tim and Cathy owning one-half of the stock in the corporation, and they transferred ownership of the stores to the corporation. Cathy now argues that the chancellor erred in failing to make a finding of fact as to the value of both the common stock of Tim’s, Inc., as well as the value of the assets of the Beaumont store. Cathy also argues the chancellor was manifestly wrong and clearly erroneous in his ruling pertaining to the overall property distribution as it was inequitable. Chancellors are required to make a finding of fact as to the market value of the assets involved in an equitable distribution. Failure to do so has often resulted in appellate courts reversing and remanding the case in order for such findings to be made. However, such a result is not always the case when an asset is not explicitly valued. The record shows that the chancellor gave no indication that he intended to value the common stock of Tim’s, Inc., at any amount other than the $0 figure arrived at in the most recent appraisal. On the date originally set for trial, Cathy’s second attorney withdrew from the case as a result of health issues, and the trial date was delayed. As a result of the delay, the chancellor ordered an updated appraisal of the value of the common stock in Tim’s, Inc. The chancellor was given no additional evidence by either Cathy or Tim from which to base a finding of value for the common stock of Tim’s, Inc. As such, although to do so would have been the preferred method, there was no abuse of discretion in the failure of the chancellor to make an explicit finding of fact on the value of the business as a whole or on the Beaumont store specifically when the only indication of value was the most recent court-ordered appraisal. Cathy argues that given the length of the marriage and her contributions thereto, the chancellor’s division of property was inequitable and manifestly erroneous. The chancellor determined that all property that the parties owned was marital property, with the sole exception of a mobile home Tim purchased with funds won at a casino after the separation. The chancellor then proceeded to make his findings of fact related to the Ferguson guidelines. He noted Cathy’s contributions to the marital assets in a domestic capacity, and the contributions of both parties from outside employment prior to the purchase of the three stores. However, the chancellor found that while Cathy was a 50% shareholder in Tim’s, Inc., she was “substantially less” than a 50% operator of the business. Additionally, he found that although Cathy had some participation in the operation of the convenience stores, she did not have a significant role in the financial or managerial decisions of either the business or the farm property the parties owned. With regard to waste of assets, or otherwise withdrawn or expended marital assets absent a court order, the chancellor found this to be equal between the parties with some notable exceptions. The chancellor found that Cathy made loans to her brothers from the marital assets totaling $23,050. Further, he found that during the parties’ separation Cathy charged $844.34 to the business for goods and services from which the business received no benefit. Additionally, during the separation the chancellor established a salary to be paid to the parties from the proceeds of the business. The chancellor found that Cathy received an overpayment of salary in the amount of $9,425. Finally, the chancellor found that although it was Cathy’s responsibility, Tim paid the property taxes on the marital home for two years, which totaled $904.95. In discussing the financial needs of the parties and the extent to which a property division could eliminate the need for periodic payment, he found that neither Tim nor Cathy had any impediment that would prevent them from working and that both exhibited an ability for operating a business. The record shows that the $23,050 figure identified by the chancellor as loans to Cathy’s brothers is not accurate. Certain checks, which are identified in detail in paragraph twenty, cannot be labeled as waste on the part of Cathy as they benefitted both parties. Therefore, the total amount of waste identified by the chancellor of $34,224.29 must be reduced to $26,674.29. There was no abuse of discretion in the division of the assets and liabilities of Tim’s, Inc., between the parties.


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