Carroll v. Carroll
| Docket Number: | 2010-CA-00823-COA Linked Case(s): 2010-CT-00823-SCT ; 2010-CA-00823-COA |
|
| Court of Appeals: |
Opinion Link Opinion Date: 02-28-2012 Opinion Author: Ishee, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Divorce - Armstrong analysis - Alimony - Double recovery - Attorney's fees on appeal Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Roberts, Carlton, Maxwell and Russell, JJ. Non Participating Judge(s): Fair, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
|
| Trial Court: |
Date of Trial Judgment: 03-31-2010 Appealed from: Monroe County Chancery Court Judge: Talmadge D. Littlejohn Disposition: AWARDED WIFE PERIODIC ALIMONY AND LUMP-SUM ALIMONY Case Number: 2003-490-48-L |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Roger A. Carroll |
RALPH STEWART GUERNSEY |
|
|
| Appellee: | Anna F. Carroll | CARTER DOBBS, JR. | ||
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. |
|
| Topic: | Divorce - Armstrong analysis - Alimony - Double recovery - Attorney's fees on appeal |
| Summary of the Facts: | Roger and Anna Carroll separated in 2003, and Anna filed for divorce shortly thereafter. At the time of the separation, Roger owned a sand and gravel business that he purchased from his parents for approximately $450,000. He sold the business in 2004, two months before the trial on his divorce from Anna, for $500,000. When he sold the business, Roger paid his mother, Verna Mae Carroll, $191,772.29 to satisfy a promissory note Verna Mae had extended to him to purchase the business. Thereafter, Anna filed suit against Verna Mae to set aside the $191,772.29 payment as fraudulent, claiming the money was marital property and subject to division by the chancery court during the divorce proceedings. The chancery court found $153,274.65 of the sum paid to Verna Mae was fraudulently conveyed, and ordered her to pay the money to the chancery court so that it could consider the money for the division of marital property. Verna Mae appealed, and the Court of Appeals reversed and rendered. The same month that Roger moved out of the marital home in 2003, he purchased a helicopter for $85,000, which later crashed and was destroyed. With no insurance on the helicopter, Roger was forced to pay the bank loan on the helicopter for $60,000 through a certificate of deposit. At trial, evidence was introduced to show that Roger’s income from the sand and gravel business averaged $13,575.78 per month, which was paid to him by the corporation for his personal living expenses. He also received an additional income of $9,498.75 from unreported cash sales. Roger offered no proof to refute the evidence or to demonstrate his income potential or indebtedness. The principal assets of the parties consisted of the marital home and its contents, and the sand and gravel business owned by Roger. The chancellor granted the divorce. In 2005, Anna filed a complaint for contempt of court against Roger, alleging that he had not paid all of the alimony payments as ordered by the chancery court, nor the attorney’s fees and mortgage payments on the marital home. The chancellor found Roger delinquent in the amount of $8,235.10 in alimony and mortgage payments. Shortly thereafter, Roger paid the money to Anna and purged himself of the contempt of court for failure to pay. Anna filed another contempt citation a few months later, asserting Roger had failed to pay child support and alimony. The chancery court found Roger in contempt of court and ordered him to pay $16,000 for past due alimony payments, $20,000 for Anna’s previous attorney’s fees, and $1,000 for Anna’s current attorney’s fees. Roger appealed, and the Court of Appeals affirmed the chancery court’s judgment in part and reversed and remanded in part, on the issue of the chancellor’s award of alimony. After conducting a hearing, the chancery court issued a bench order requiring Roger to pay Anna $2,749.04 per month as periodic alimony, and to pay her lump-sum alimony in the amount of the first and second mortgages secured by the marital home. The chancellor also imposed a lien on Roger’s property to secure payment of the alimony. Roger appeals. |
| Summary of Opinion Analysis: | Issue 1: Armstrong analysis Roger argues that the chancery court abused its discretion in finding that he has the ability to earn in excess of $13,000 per month and that the chancellor failed to consider any new evidence regarding Roger’s economic status, and improperly relied on the trial evidence, which showed that Roger had substantial assets and income. He also claims that the chancellor conducted an analysis of the alimony award using Davis v. Davis, 832 So. 2d 492 (Miss. 2002), instead of using Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993). The record shows that the chancellor did, in fact, consider Roger’s amended 8.05 financial statement, in which Roger claimed to have $0 in income each month. However, the chancellor stated that he found it “incredible” that Roger would claim that he received no income each month, yet still had considerable living expenses. While the chancellor was not required to do so on remand, he did conduct a Ferguson analysis concerning the division of the marital property to support his final judgment. The chancellor also conducted an analysis regarding alimony, per the mandate of the remand. The chancellor gave a detailed factual account of his finding for alimony. Although the chancellor repeatedly refers to the Davis factors when conducting his analysis, he used the factors from both Davis and Armstrong. The chancellor’s analysis includes every factor required by both cases. The chancellor was not manifestly wrong or clearly erroneous in his award of periodic alimony. Issue 2: Alimony Roger argues the amount of alimony awarded creates an impossible financial dilemma. The facts of this case indicate Roger has the potential to earn in excess of $13,000 per month. Roger has offered no proof to refute the evidence or to demonstrate his income potential or indebtedness. It is improbable that Roger earns no income yet still has considerable living expenses. In addition, shortly before the divorce, Roger owned a sand and gravel business worth $500,000. He also purchased an $85,000 helicopter and an $11,412 helicopter engine. Additional evidence shows that Roger has been capable of paying the required sums to Anna when faced with contempt charges. Thus, this argument is without merit. Roger also argues the award of lump-sum alimony in addition to periodic alimony constitutes double recovery. Double recovery is a doctrine that prevents unjust enrichment by prohibiting recovery for the same damages multiple times. In this case, the award of periodic and lump-sum alimony does not constitute double recovery. The lump-sum payment of $89,375 covers the two mortgages secured by the marital home. The chancellor clearly outlined in his ruling that once the lump-sum amount was paid, Roger could petition the chancery court for a reduction in periodic alimony payments. After the mortgage debt is paid, Anna’s periodic alimony amount will no longer include payments for the mortgage. The alimony award does not constitute double recovery. Issue 3: Attorney’s fees Anna requests the Court to order Roger to pay her attorney’s fees and expenses on this appeal. When allowed, the Court has generally granted attorney’s fees in the amount of one-half of what was awarded in the chancery court. The chancery court found Anna was unable to pay her attorney’s fees and awarded her $41,587.50. Anna’s motion for attorney’s fees on appeal is granted, but only in the amount of $9,750. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
