Fogarty v. Fogarty
| Docket Number: | 2004-CA-02244-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 02-28-2006 Opinion Author: Myers, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Marital asset - Marital residence - Alimony Judge(s) Concurring: King, C.J., Lee, P.J., Southwick, Irving, Chandler, Griffis, Barnes, Ishee and Roberts, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 10-14-2004 Appealed from: Panola County Chancery Court Judge: Mitchell M. Lundy, Jr. Disposition: GRANTED DIVORCE AND DIVISION OF MARITAL ASSETS Case Number: B-00-02-80 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Mary Jane Daugherty Fogarty |
DAVID L. WALKER |
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| Appellee: | Larry Joe Fogarty | ADAM A. PITTMAN |
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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: Irreconcilable differences - Marital asset - Marital residence - Alimony |
| Summary of the Facts: | Mary Jane and Larry Fogarty entered a consent to divorce and agreement to allow the court to determine issues. The court found the marital assets to have a value of $48,000 with liabilities of $26,000, leaving a net value of the marital estate of $22,000. Larry was given the airplane, while Mary Jane was given the lawnmower and the four-wheeler. The marital residence was distributed to Larry while Mary Jane received all of the contents. Additionally, Mary Jane was allowed to remain in the house, rent free, for two years. The body shop was distributed to Larry. Larry was to pay Mary Jane $200 per month for twenty-four months as rehabilitative alimony and assume all credit card debt. Finally, Larry was ordered to pay Mary Jane’s attorney fees in the amount of $3025. Mary Jane appeals. |
| Summary of Opinion Analysis: | Issue 1: Marital asset Mary Jane argues that the chancellor erred in determining that the body shop was a non-marital asset. In the chancellor’s findings of fact and conclusion of law, property was separated between marital and non-marital. A non-marital asset attributed to Mary Jane was the vehicle purchased by her since the separation. Larry’s non-marital property was the trailer home and property he purchased following the separation. Included in the marital property classification is the body shop. The chancellor included in his finding that a value had not been attached to the body shop, and it was shown to produce income to the husband and was to be dealt with later as alimony. The record shows that the body shop did not have any assets. All assets of the body shop were leased from the prior operator of the body shop. The inventory of the shop was held on consignment and was not property of the shop. With the lack of assets, the sole asset of the body shop is the goodwill attributed to Larry. The chancellor avoided inequity by using the value of the body shop in determining alimony and not in the division of property. This was proper. Issue 2: Marital residence Mary Jane argues that she did not receive any equitable interest in the marital residence. Equitable division of assets does not require that each party continue to have a possessory interest in the asset. A party being divested of her interest in an asset is compensated for her divestiture by receiving other assets or through monetary compensation. Mary Jane received the latter in this case. She received two years free rent, valued at $9,600, as compensation for her interest in the marital residence. Issue 3: Alimony Mary Jane argues that the chancellor erred in his award of rehabilitative alimony and in failing to award lump sum alimony. The reasons given for the award of alimony were that Mary Jane would have a free place to live for two years, that the parties had a long marriage and that she was receiving disability income. The chancellor’s distribution gives Larry an estate valued at $14,975 and Mary Jane an estate of $11,100. When these estates are reviewed in combination with the two year rehabilitative alimony of $200 per month, Mary Jane’s estate is valued at $15,900 and Larry’s estate is valued at $10,175. There was no error in the chancellor’s distribution. |
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