Seymour v. Seymour
| Docket Number: | 2005-CA-00668-COA Linked Case(s): 2005-CA-00668-COA ; 2005-CT-00668-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-31-2006 Opinion Author: King, C.J. Holding: Affirmed in part and Reversed and Rendered in part. |
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| Additional Case Information: |
Topic: Divorce: Adultery - Child support - Shares of stock - Division of marital assets - Periodic alimony - Attorney’s fees Judge(s) Concurring: Myers, P.J., Chandler, Barnes, Ishee and Roberts, JJ. Dissenting Author : Southwick, J. Dissent Joined By : Lee, P.J., Irving and Griffis, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 02-22-2005 Appealed from: Harrison County Chancery Court Judge: Jim Persons Disposition: CHANCERY COURT ENTERED JUDGMENT OF DIVORCE Case Number: C2402-03-00988 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Phillip Michael Seymour |
WILLIAM E. TISDALE |
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| Appellee: | Karen Ellen Seymour | THOMAS WRIGHT TEEL |
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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. |
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| Topic: | Divorce: Adultery - Child support - Shares of stock - Division of marital assets - Periodic alimony - Attorney’s fees |
| Summary of the Facts: | Karen Seymour was granted a fault-based divorce from Phillip Seymour on the grounds of adultery. The chancellor awarded Karen legal and physical custody of the three minor children and ordered Phillip to pay $800 per month in child support. Phillip was also ordered to pay one-half of the children’s tuition and to maintain their health insurance. The court divided and distributed the marital property, awarded Karen $1,000 per month in periodic alimony, and awarded Karen $2,000 in attorney’s fees. Phillip appeals. |
| Summary of Opinion Analysis: | Issue 1: Child support Phillip argues that the court’s order requiring him to pay $800 per month in child support plus one-half of the children’s parochial school tuition, $262 per month, exceeds the statutory guidelines. The child support guidelines provide that twenty-two percent of the non-custodial parent’s adjusted gross income is an appropriate award for the support of three children. Since Phillip was ordered to pay twenty-two percent of his reported adjusted gross income plus one-half of the girls’ parochial school tuition, the chancellor was required to make specific findings of fact to justify deviation from the child support guidelines. The chancellor made specific findings which were sufficient to support the award. Issue 2: Shares of stock Phillip owns 11,000 shares of stock in Seymour & Sons. In his Rule 8.05 financial statement, Phillip estimated that his 11,000 shares were worth $157,500. At the beginning of trial, Phillip testified that he was willing to give Karen one-half of the stock regardless of its value. The court asked whether Phillip was stipulating that he would give Karen half of the shares, and Phillip answered in the affirmative. Phillip argues that the chancellor erred in failing to enforce the stipulation of the parties to divide the Seymour & Sons stock equally. Stipulations may be set aside for several reasons, including material mistake of fact, misrepresentation, inadvertence and improvidence. The restrictions placed on the transfer of Seymour & Sons stock included a right of first refusal in favor of the family member shareholders. Accordingly, Phillip’s oral stipulation at trial was invalid because, if enforced, it would have affected the rights of third parties. The stipulation was also properly set aside by the trial court as a mistake of fact, since Phillip incorrectly believed that he could freely transfer half of his shares to Karen. Phillip also argues that the court erred in assigning a value of $157,500 to his 11,000 shares of stock. The only evidence presented at trial regarding the stock’s value came from Phillip’s Rule 8.05 financial declaration. The chancellor did not err in using Phillip’s own submission of evidence to determine the stock’s value. Issue 3: Division of marital assets Phillip argues that the disparity in the award of marital property is an abuse of discretion. The most relevant findings which support the chancellor’s division of marital property concern the value of the non-marital property, the needs of the parties, and each party’s income and earning capacities. While Phillip’s non-marital property consists of the Seymour & Sons stock, Karen owns no non-marital property. There will be four people in Karen’s household as opposed to only one in Phillip’s. Phillip earns more than $50,000 per year, while Karen, a homemaker with minimal work force experience, earns only $18,000. Although Phillip received a very small portion of the marital estate, the chancellor did not abuse his discretion. Issue 4: Periodic alimony The record indicates that Karen’s total monthly intake, comprised of her salary, alimony and child support, is nearly equal to her total monthly expenses. A review of Phillip’s reported income contrasted with his total monthly expenses, reveals that his expenses slightly exceed his reported income. However, the chancellor was aware that Phillip received more than his reported income, although he was less than forthcoming about the amount of money he receives from plumbing jobs. The record is clear that Karen’s income along with her share of marital property and child support would not cover the basic monthly expenses for herself and her children. The addition of $1,000 per month in alimony leaves Karen with only a moderate surplus after paying the basic monthly expenses for her and her children. Thus, the chancellor did not abuse his discretion. Issue 5: Attorney’s fees The party requesting attorney’s fees has the burden of proving his inability to pay. There is no evidence in the record to show that Karen is unable to pay her own attorney’s fees. Thus, the award of attorney’s fees is reversed and rendered. |
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