Owens v. Owens


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Docket Number: 2005-CA-00866-COA
Linked Case(s): 2005-CA-00866-COA

Court of Appeals: Opinion Link
Opinion Date: 10-10-2006
Opinion Author: Irving, J.
Holding: AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Additional Case Information: Topic: Divorce: Irreconcilable differences - Child custody - Equitable distribution - Retirement fund - Vehicles - Marital home - Credit card debt
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Chandler, Griffis, Barnes, Ishee and Roberts, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 03-21-2005
Appealed from: Chickasaw County Chancery Court
Judge: Kenneth M. Burns
Disposition: MARITAL ASSETS DIVIDED AND CONTESTED CUSTODY OF MINOR CHILD AWARDED TO MOTHER.
Case Number: 2004-0170-1B

  Party Name: Attorney Name:  
Appellant: James A. Owens, Jr.




PHILLIP M. WHITEHEAD



 

Appellee: Martha Sue Owens ELIZABETH B. FOX  

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Topic: Divorce: Irreconcilable differences - Child custody - Equitable distribution - Retirement fund - Vehicles - Marital home - Credit card debt

Summary of the Facts: James Owens and Martha Owens agreed to an irreconcilable differences divorce. The chancellor divided the contested marital assets and granted custody of the parties’ minor child to Martha. The court declined to adjudicate a credit card debt specifically submitted by the parties. James appeals.

Summary of Opinion Analysis: Issue 1: Custody James argues that the chancellor failed to properly weigh the evidence presented in light of the Albright factors, and, therefore, he should have custody of the couple’s child. The chancellor in indicated that he relied heavily on the Court’s holding in Sparkman v. Sparkman, 441 So. 2d 1361 (Miss. 1983), that in the absence of some unusual and compelling circumstance dictating otherwise, it is not in the best interest of siblings to be separated. James argues that the chancellor placed too much emphasis on Sparkman, treating it as an overriding concern instead of looking at the child’s best interests. When siblings have been separated, other circumstances have dictated that the division is in the best interest of the children. When other circumstances do not require the separation of children, Mississippi courts should attempt to keep siblings together. Although the chancellor in this case obviously placed great emphasis on the fact that granting James custody would split up the child and his sister, the chancellor did not err in relying on Sparkman in making its decision. The chancellor addressed each of the Albright factors, including the reasoning of Sparkman as an additional factor. The chancellor erred in finding that the employment status factor favors neither parent, as it clearly favors James. He is disabled and does not work, and can therefore spend more time caring for his son. Although he is unemployed, he still draws an income from Social Security disability payments. Furthermore, James is not unemployed because he cannot hold a stable job, but because he is disabled and unable to work. However, substantial evidence supports the chancellor’s decision to place the child with Martha. Regardless of the fact that the employment factor favors James, all the other factors reviewed by the chancellor properly favored neither parent or favored Martha. Issue 2: Equitable distribution The chancellor erred in his analysis and application of the Ferguson factors. First, the chancellor found that Martha had made greater contributions to the marriage because she had worked and contributed economically to the marriage. No attempt was made to determine the domestic contributions of the parties, even though Ferguson and more recent Mississippi case law indicates that a party’s domestic contributions to a marriage must be taken into account under this factor. Second, the chancellor found that Martha had a greater attachment to the marital home because “she lives there and it is where she reared her children.” This logic would apply equally to James. Finally, the chancellor entirely neglected to address the factor pertaining to the parties’ income and ability to provide for themselves. The evidence produced indicated that James’ disability prevents him from obtaining employment. By contrast, the testimony indicated that Martha is in a much better position to provide for herself, but this factor was not even addressed by the chancellor. Issue 3: Retirement fund James argues that the chancellor erred in awarding him only one-sixth of the value of Martha’s retirement fund. It appears from the record that, although James was unable to work for most of the time during which the retirement fund was accrued, he made substantial domestic contributions to the marriage during that time. Furthermore, the chancellor must look at the parties’ respective incomes and their ability to provide for themselves when determining a proper split of this asset. Because the chancellor applied an erroneous legal standard, the case is reversed and remanded for a new determination of the proper division of the retirement fund. Issue 4: Vehicles Martha and James submitted the ownership of their two vehicles, a Cutlass and an Expedition, as an issue for the chancellor to rule upon. Because the evidence indicated that James used the Cutlass while Martha primarily used the Expedition, the chancellor awarded James ownership of the Cutlass and Martha ownership of the Expedition. James argues that the evidence indicates that he paid at least $7,000 toward the purchase of the Expedition, which cost over $30,000 at the time of its purchase, and had a balance of only around $2,300 left on it at the time of the divorce proceedings. Adequate evidence supports the chancellor’s division of these assets. Although there was little evidence produced to indicate the relative value of these two vehicles, they were both of about the same age. Furthermore, the evidence presented indicated that Martha primarily used the Expedition, while James used the Cutlass. Issue 5: Marital home James argues that the chancellor inequitably divided the marital home. The chancellor valued the marital home and land as worth $47,500. The chancellor appears to have achieved this figure by taking the median between James’ valuation of the property at $50,000 in his financial statement and Martha’s valuation of the property at $45,000 in her financial statement. The chancellor’s valuation of the property at $47,500 is supported by Martha’s testimony that the house is in need of repairs, such as painting and a new septic system. Thus, the chancellor did not err in placing the value of the house at $47,500 and awarding James half of that value as his equitable share of the house. Issue 6: Credit card debt In his opinion, the chancellor stated that he had insufficient evidence to form an opinion as to which party should be responsible for the MasterCard debt. This issue was specifically given to the chancellor to adjudicate by James and Martha. Although the evidence concerning the debt was sparse, there was still evidence from which the chancellor could have adjudicated the debt. Furthermore, a chancellor should not refuse to adjudicate an issue which has specifically been placed before the chancellor for adjudication on the basis of insufficient evidence without first informing the parties that they have not provided sufficient information for adjudication.


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