Franklin v. Franklin
| Docket Number: | 2001-CA-01987-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-25-2003 Opinion Author: Thomas, J. Holding: AFFIRMED IN PART; VACATED AND REMANDED IN PART |
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| Additional Case Information: |
Topic: Divorce: Adultery - Authority to grant new trial - Equitable distribution - Appointment of special chancellor - M.R.A.P. 15 - M.R.A.P. 2(c) - Alimony arrearage - Periodic alimony - Medical expenses - Child custody - Attorney’s fees Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Lee, Myers and Chandler, JJ. Non Participating Judge(s): Griffis, J. Concurs in Result Only: Irving, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 01-09-2001 Appealed from: Lee County Chancery Court Judge: John C. Ross, Jr. Disposition: JUDGMENT OF DIVORCE GRANTED TO CAROLENE FRANKLIN ON GROUND OF ADULTERY; CUSTODY OF MINOR CHILDREN TO CAROLENE FRANKLIN AND ORDER OF CHILD SUPPORT; ALIMONY IN THE AMOUNT OF $2915 PER MONTH TO BE PAID CAROLENE FRANKLIN; AND MARITAL ESTATE TO BE DIVIDED 65% TO DANNY FRANKLIN, 35% TO CAROLENE FRANKLIN Case Number: 45,010 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Danny R. Franklin |
WILLIAM M. BEASLEY
JAK MCGEE SMITH
REBECCA L. HAWKINS |
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| Appellee: | Carolene G. Franklin | T. SWAYZE ALFORD |
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| Topic: | Divorce: Adultery - Authority to grant new trial - Equitable distribution - Appointment of special chancellor - M.R.A.P. 15 - M.R.A.P. 2(c) - Alimony arrearage - Periodic alimony - Medical expenses - Child custody - Attorney’s fees |
| Summary of the Facts: | Carolene Franklin was granted a divorce from Danny Franklin on the ground of adultery. The court awarded Carolene custody of the couple’s four children with child support of $1050 per month. The chancellor valued the marital estate, comprised primarily of various pieces of real property, a cattle and farming operation and the collections business, at $1,037,290. He allocated thirty-five percent of this total, $363,051.50, to Carolene and the remaining sixty-five percent, $674,238.50, to Danny. After subtracting the value of the property awarded to Carolene outright, the chancellor found Danny owed to Carolene as her portion of the marital estate $264,551.50. To this total he added the alimony arrearage for a total of $339,351.50 due Carolene to be paid in 180 monthly installments of $3,132.77. Carolene was granted a lien on Danny's property to secure this debt. Carolene was granted alimony in the amount of $2,915 per month. Danny appeals, and Carolene cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Authority to grant new trial This matter originally came on for hearing before Chancellor Ervin who rendered a memorandum opinion but never entered a final judgment of divorce. After Chancellor Ervin had left the bench, Danny filed a motion for new trial which Chancellor Ross granted. Carolene argues that Chancellor Ross lacked the authority to grant the motion for new trial. Chancellor Ross did not modify Chancellor Ervin's memorandum opinion but adopted it in its entirety as a final judgment in the matter. Carolene had a full opportunity to be heard and present evidence and she offers no argument why the grant of a new trial constituted an abuse of discretion. Issue 2: Equitable distribution Carolene argues that by awarding her only thirty-five percent of the marital assets, the chancellor failed to properly value her contributions as both a homemaker and an integral part of getting Franklin Collection Services up and running. The division of marital assets is a matter of discretion for the chancellor, bearing in mind the equities of the circumstances and the relevant facts and considerations. The chancellor did consider the contribution Carolene made as first a full-time worker at Franklin Collections Service and then as a full-time homemaker. While Carolene received less than half as an absolute number, what she did receive–a house, two vehicles and a cash settlement–were debt free. In light of what each party received, the chancellor did not abuse his discretion. Issue 3: Appointment of special chancellor Danny opposed the authority of former Chancellor Ervin, or any other judge, to rule on the original divorce petition, because the case stood automatically dismissed under M.R.A.P. 15 as of December 15, 1998. However, M.R.A.P. 2(c) allows either the Mississippi Supreme Court or the Mississippi Court of Appeals to suspend the application of any of its rules upon its own motion in the interest of expediting decision or other good cause shown. In issuing its order appointing the special chancellor, the Supreme Court expressed its intention to suspend the application of Rule 15 in this case. Issue 4: Alimony arrearage The chancellor found that Danny had stopped paying Carolene alimony in March 1999, and calculated an arrearage of $74,800. Danny argues this was error. Alimony is income to the payee spouse to meet reasonable needs. Where those needs are met directly by the payor spouse, the payee is not burdened with them. Payments directly to vendors on behalf of the payee may be considered substitute income. Danny is entitled to some credit for the payments he has made to or on behalf of Carolene since February 1999. The case is remanded with instructions to classify each of the payments made and determine whether or not they were court-ordered expenses, such as medical or dental expenses, to which Danny would not be entitled to a credit, and those which were not specifically ordered but derived to Carolene's benefit, such as payment of her household utilities. Issue 5: Periodic alimony Danny argues the amount of periodic alimony granted Carolene is excessive, because the aggregate of the obligations imposed upon him exceed his net monthly income. An award of periodic alimony flows from the obligation of a husband to support his wife in the manner to which she has become accustomed to the extent he is able do so. The court should consider the income and expenses of the parties; the health and earning capacity of the parties; the needs of each party; the obligations and assets of each party; the length of the marriage; the presence or absence of minor children in the home; the age of the parties; the standard of living of the parties; the tax consequences of spousal support; fault or misconduct; wasteful dissipation of assets; and any other relevant factor. Here, the chancellor found that both parties were then in their early to mid forties and in good health; Danny worked but Carolene did not although there was no reason other than the children at home why she did not; and Danny had committed uncondoned adultery during the course of the marriage of twenty years. In addition, the record shows that Carolene has suffered a substantial loss in her standard of living while Danny's only appears to have improved, and Carolene had been out of the work force for some years, and both parties appear to spend indiscriminately. This is sufficient evidence to support the alimony award. Danny also argues that the chancellor ordered him to pay almost $8,000 per month in alimony and child support from an adjusted monthly gross income of only $4370 per month. The financial information provided by both Danny and Carolene has been incomplete or misleading. Therefore, this question is remanded for further evidence on the actual monthly income which may be attributed to Danny. Issue 6: Medical expenses Carolene argues that Danny has failed to pay or reimburse her for medical expenses left unpaid by the insurance. Carolene testified that $2344.68 worth of medical expenses had been incurred but that insurance payments had not yet been posted. The chancellor granted Carolene an amount which obviously included the $2344.68 to which insurance had not yet been applied. This was error since Carolene was due only $10,221.39. Issue 7: Child custody In determining custody, the chancellor should consider the age, health and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of the parents; the home, school and community record of the child; the preference of the child; stability of home environment and employment of each parent; and other relevant factors. Here, the chancellor made no findings at all with regard to these factors. Therefore, this issue is remanded for consideration of all of the necessary factors and on-the-record factual findings. Issue 8: Attorney’s fees Danny argues that Carolene had the ability to pay her attorney’s fees herself. When a party has the means to pay his or her own attorney's fees, an award of fees is not appropriate. The chancellor made no finding that Carolene was unable to pay her own attorney. Therefore, the chancellor erred in granting the award. |
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