Owen v. Owen


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Docket Number: 2002-CA-00995-SCT

Supreme Court: Opinion Link
Opinion Date: 04-27-2006
Opinion Author: Easley, J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Divorce: Irreconcilable differences - Ferguson factors - Motion for contempt - M.R.A.P. 28(a)(1)(6)
Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Carlson and Dickinson, JJ.
Non Participating Judge(s): Diaz and Randolph, JJ.
Dissenting Author : Graves, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 05-10-2002
Appealed from: Union County Chancery Court
Judge: John C. Ross, Jr.
Disposition: The chancellor, granted a divorce on irreconcilable differences and ordered the marital assets to be sold with Kenneth receiving 60% of the proceeds and Margaret 40%.
Case Number: 98-0241

  Party Name: Attorney Name:  
Appellant: Margaret Lynn Owen




JAK McGEE SMITH



 

Appellee: Kenneth Whiteside Owen J. MARK SHELTON  

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Topic: Divorce: Irreconcilable differences - Ferguson factors - Motion for contempt - M.R.A.P. 28(a)(1)(6)

Summary of the Facts: Margaret Owen and Kenneth Owen filed a joint complaint for divorce on the grounds of irreconcilable differences. The parties submitted the property settlement issues to the chancellor. The chancellor granted the divorce on irreconcilable differences and ordered the marital assets to be sold with Kenneth receiving 60% of the proceeds and Margaret 40%. The chancellor, however, did not specifically address the applicable Ferguson factors. Margaret appealed the decision, and the Supreme Court found that the chancellor erred in failing to specifically address all applicable Ferguson factors. On remand, the chancellor informed the parties that he did not intend to occupy any further court time with this case and requested the parties to submit briefs on their arguments and to set forth in letter-brief any matter they believed needed to be considered in complying with the remand order. The chancellor subsequently issued a supplemental opinion and judgment which contained a six-page analysis of the applicable Ferguson factors. The chancellor ruled that the 60/40 percentage of division and distribution of the marital property would remain unchanged. At a subsequent hearing while the case was remanded, the chancellor heard Kenneth’s motion for contempt filed against Margaret. The chancery court did not find Margaret in contempt of court, but the chancellor ordered a $5,000 judgment for the items that were not delivered by Margaret to the public sale to offset Margaret’s 40% share of the marital property. Margaret appeals.

Summary of Opinion Analysis: Issue 1: Ferguson factors On remand, the chancellor devoted six pages of the supplemental opinion and judgment listing the Ferguson factors and findings of fact regarding the applicable factors. The chancellor properly separated the marital property from the nonmarital property. The chancellor stated Kenneth’s financial contribution and earning capacity. The chancellor stated Margaret’s earning capacity. The chancellor also stated Margaret’s and Kenneth’s non-financial contribution to the accumulation of the marital assets, such as housework and repairs, without assigning any monetary value to the nonfinancial contributions. The chancellor does not state how he arrived at the 60/40 division of the marital property. The chancellor’s judgment regarding the division and distribution of the marital property remained unchanged on remand. The fact that the division remains unchanged on remand and the chancellor failed to provide a conclusion of law to support the 60/40 division on remand is particularly troubling. In the first appeal, the same chancellor stated substantially the same findings of fact as stated under the applicable Ferguson factors and then concluded that Kenneth was entitled to a greater percentage of the marital assets, 60%, than Margaret, 40%, because Kenneth was the primary financial contributor to the accumulation of the assets. The record reflects that on remand the chancellor still focused primarily on Kenneth’s financial contribution in dividing the marital property with Kenneth receiving 60% of the marital property and Margaret receiving 40%. Besides just stating findings of fact for each applicable factor, the chancellor failed to provide any conclusion of law for review on appeal. Therefore, the judgment of the chancellor is reversed and the case remanded to the chancery court to provide an equitable distribution. Issue 2: Motion for contempt Subsequent to the divorce and original distribution of assets, Kenneth filed a motion for contempt alleging that Margaret had failed to deliver certain items for sale at the public auction and that she had damaged the 1966 Jaguar XKE while it was in her possession. Margaret was not found to be in contempt, but Kenneth received a judgement in the amount of $5,000 to offset the items that Margaret failed to produce for public sale. Because the judgment also appears to be incomplete as to how the chancellor arrived at the amount of $5,000, the chancellor’s judgment is reversed and the case remanded for the chancellor to provide a more detailed analysis consistent with this opinion. Margaret also argues that the chancellor erroneously allowed Kenneth to introduce an estimate from Parks Chevrolet without an expert. Due to Margaret's complete failure to cite authority in her brief as required by M.R.A.P. 28(a)(1)(6), the Court does not have to address her assignment of error regarding the introduction of the estimate. However, it is a well-settled and pronounced legal principle that when cost of repairs are relied upon as a measure of damages it is necessary to establish that the repairs were necessary as a result of the wrongful act, and the cost of repairs were necessary or reasonable. Thus, the chancellor erred in allowing the estimate to be introduced without an expert.


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