Segree v. Segree


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Docket Number: 2009-CA-00757-COA
Linked Case(s): 2009-CA-00757-COA ; 2009-CA-00757-COA ; 2009-CA-00757-COA

Court of Appeals: Opinion Link
Opinion Date: 11-02-2010
Opinion Author: Barnes, J.
Holding: Affirmed in part, reversed and remanded in part.

Additional Case Information: Topic: Divorce - Marital assets - Alimony - Child support - Section 93-5-23 - Attorney's fees
Judge(s) Concurring: King, C.J., Lee, P.J., Ishee and Roberts, JJ.
Dissenting Author : Myers, P.J.
Concur in Part, Concur in Result 1: Griffis and Maxwell, JJ., concur in part and in the result.
Concurs in Result Only: Carlton, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 11-24-2008
Appealed from: WARREN COUNTY CHANCERY COURT
Judge: Vicki Barnes
Disposition: DIVORCE GRANTED AND WIFE AWARDED CUSTODY OF MINOR CHILDREN, PERMANENT PERIODIC ALIMONY, EXCLUSIVE USE OF MARITAL HOME, AND CHILD SUPPORT
Case Number: 2007-289-GN

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: In The Matter of The Dissolution of Marriage: Frank A. Segree, III




R. LOUIS FIELD



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: Susan B. Segree MARK W. PREWITT  

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    Topic: Divorce - Marital assets - Alimony - Child support - Section 93-5-23 - Attorney's fees

    Summary of the Facts: Frank Segree III and Susan Segree were divorced in 2008. In the divorce action, Susan was awarded certain personal property, the exclusive use and possession of the marital home, child support, and periodic permanent alimony. Frank appeals.

    Summary of Opinion Analysis: Issue 1: Marital assets Frank argues that the chancellor’s allocation of the marital assets, specifically the award of the marital home, was in error. When determining the equitable distribution of marital assets, a chancery court must consider contribution to the accumulation of property, prior disposition of or distribution of assets, market and emotional value of assets subject to distribution, the value of non-marital assets, taxes and other economic consequences of the proposed distribution, the extent to which property division can eliminate the need for alimony, the needs of the parties, and any other equitable factors. Here, although it does appear that the chancellor’s judgment awarded Susan a significantly greater portion of the marital assets, this is not necessarily an abuse of discretion. However, the failure to consider all applicable Ferguson factors is error and mandates reversal. In the chancellor’s final judgment, there are no findings of fact regarding the distribution of the non-stipulated marital assets. The court merely stated that it had “considered the testimony of witnesses, exhibits, and the law applicable thereto[.]” The chancellor does not even refer to Ferguson and provides no analysis or reasoning for the distribution and awards set forth in the judgment. Susan argues that both parties “stipulated as to all marital assets and their value”; therefore, a Ferguson analysis was not necessary. However, the parties merely stipulated as to majority of the personal property and the values of the marital home and retirement accounts. They did not stipulate as to the equitable distribution of the marital home, retirement accounts, or the tractor. Thus, the case is remanded for specific findings of fact under Ferguson. Issue 2: Alimony The chancery court awarded Susan $500 in monthly periodic permanent alimony, which was to commence only upon the cessation of child support to the couple’s daughter upon her emancipation. Generally, permanent alimony should be considered if one spouse is left with a deficit after the division of marital assets. The purpose of equitable distribution is to alleviate the need for alimony. Thus, when a case is remanded for further consideration of the division of marital assets, the Court must also remand on the issue of alimony as the proper distribution of the parties’ assets and debts may affect the amount of alimony ultimately awarded. Furthermore, the chancellor failed to make specific findings of facts under Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993), in its award of periodic alimony. Issue 3: Child support Frank argues that it was an abuse of discretion to order him to pay support for one of his daughters, as she was the same age (nineteen years old), education level, and employment level as her sister, who was evidently considered by the chancellor to be emancipated as no child support was awarded on her behalf. Frank claims that the daughter was employed full time and had her own car and bank account. Furthermore, neither daughter graduated from high school, and both daughters no longer attended school. There was also no testimony that either daughter was going to pursue a traditional college education. The chancellor made no conclusions or findings of fact to explain the reasoning for considering one daughter emancipated and the other daughter a minor. Section 93-5-23 states that the duty to support a child terminates upon the emancipation of the child. Here, the chancery court had the discretion to consider the daughter emancipated, without having to consider whether she was employed full time. But, the chancellor also had the discretion to take into account that she had just starting work and was only earning minimum wage. However, the chancellor’s award of child support as it relates to the award of alimony is perplexing. Child support payments are for the benefit of the child, not the recipient parent. There is nothing in the judgment to explain the chancery court’s reasoning for structuring the awards in this manner. Also, all property division, lump sum or periodic alimony payment, and mutual obligations for child support should be considered together, so this issue is also remanded. There is no error, however, in the chancellor’s order for Frank to pay for his daughters’ credit-card debt and medical expenses for one of his daughters. Issue 4: Attorney’s fees The chancellor ordered Frank to pay $4,500 to Susan for attorney’s fees. If the party requesting a divorce establishes an inability to pay, it is appropriate to award attorney’s fees. Although Frank claims that there was no finding by the chancellor that Susan was financially unable to pay, there was clear evidence presented that Susan was unable to pay the attorney’s fees and that there was a disparity in the relative financial positions of the parties. Thus, the chancellor’s award of attorney’s fees to Susan is affirmed. Susan has also requested the payment of her attorney’s fees upon appeal. Susan has not provided the Court evidence of the fees charged by her attorney or the work involved in this appeal.


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