Smith v. Smith


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Docket Number: 2002-CA-01657-COA

Court of Appeals: Opinion Link
Opinion Date: 10-07-2003
Opinion Author: Myers, J.
Holding: AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Additional Case Information: Topic: Divorce: Desertion - Division of marital assets - Periodic alimony - Attorney’s fees
Judge(s) Concurring: King, P.J., Bridges, Thomas, Lee and Chandler, JJ.
Judge(s) Concurring Separately: Southwick, P.J., Joined by McMillin, C.J., Bridges, Lee, Irving, and Griffis, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 09-06-2002
Appealed from: Monroe County Chancery Court
Judge: John C. Ross, Jr.
Disposition: DIVORCE GRANTED ON GROUNDS OF DESERTION
Case Number: 97-0583

  Party Name: Attorney Name:  
Appellant: Nellie Lou Smith




DEEDY BOLAND



 

Appellee: John William Smith C. MICHAEL MALSKI  

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Topic: Divorce: Desertion - Division of marital assets - Periodic alimony - Attorney’s fees

Summary of the Facts: Nellie Smith was granted a divorce from her husband, John Smith, on the ground of desertion. Nellie was awarded the couple’s home and the 18.63 acres on which it sat, the 63/100 acre used to gain access to the homestead, a 55 acre tract, 2 acres purchased at a sheriff’s sale, a 50% interest in the two retirement accounts, and a 1987 Toyota Supra. John received numerous items of personal property including a 1990 Dodge truck, a 1990 Dodge van, a 1992 GMC truck, a 50% interest in the retirement plans, and the $253.80 he received a month from his retirement accounts. The chancellor denied alimony to Nellie as well as attorney’s fees. Nellie appeals.

Summary of Opinion Analysis: Issue1: Division of marital assets Nellie argues that the court failed to make an equitable division of the marital estate. In dividing the property, the chancellor must first classify the parties’ assets and liabilities as belonging to the marriage, to the husband, or to the wife and then look to the Ferguson factors to determine how to divide the marital assets. Here, the chancellor abused his discretion in classifying and distributing the assets of the marital estate. He failed to identify the assets as assets of the husband, of the wife, or of the marriage. Issue 2: Periodic alimony Nellie argues that the court erred in failing to award her periodic alimony. Factors to be considered when deciding whether periodic alimony is appropriate include the parties’ income and expenses; their health and earning capacities; each party’s needs; each party’s obligations and assets; length of the marriage; presence or absence of minor children in the home; the parties’ ages; the parties’ standard of living; tax consequences of the spousal support order; fault or misconduct; wasteful dissipation of assets; and any other equitable factor. Because the chancellor failed to use these factors, the determination of alimony is reversed and remanded. Issue 3: Attorney’s fees Because the distribution of marital property and receipt of alimony, if any, will have a role in the determination of whether Nellie should receive attorney’s fees, that issue is also remanded.


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