DRUMRIGHT v. DRUMRIGHT

IRVING, J., FOR THE COURT:

¶ 1. The Chancery Court of Jackson County granted James and Patricia Rae Drumright a divorce on the ground of irreconcilable differences. The parties could not agree on the propriety of an award of alimony nor an equitable division of the marital assets and agreed to allow the chancellor to resolve these issues. James, feeling aggrieved by the decisions of the chancellor, has appealed and assigns as error the following issues: (1) the trial court committed manifest error and an abuse of discretion in dividing the marital assets, (2) the trial court was clearly erroneous and committed an abuse of discretion in ordering James to pay Patricia $150 per week for a period of sixty months as periodic alimony, (3) the trial court committed manifest error and an abuse of discretion in awarding Patricia $25,000 for an alleged assault, and (4) the trial court committed manifest error and an abuse of discretion in awarding attorney's fees in favor of Patricia.

¶ 2. Finding reversible error, we affirm in part, reverse and remand in part, and reverse and render in part.

¶ 3. James and Patricia were married on February 12, 1993. They separated in November 1995, had a brief effort at reconciliation in April 1996 and were divorced on May 11, 1998, pursuant to a complaint for divorce which was filed on December 4, 1995, and tried on May 8 and October 27-28, 1997.

¶ 4. Prior to the marriage, James had purchased a lot and begun construction on a home in Ocean Springs. Patricia testified that "almost all of it" had been completed prior to the marriage. However, James and Patricia occupied the home prior to their marriage, and Patricia assumed the supervision of the interior design. Shortly after the marriage, James changed the deed on the home to include Patricia.

¶ 5. Before the marriage, Patricia was employed as an interior designer. She received a monthly income of approximately $1,000. At the time of the marriage, her assets included approximately $83,000 worth of personal property. After the marriage, and at the request of James, Patricia terminated her employment and worked within the home supervising the remaining interior design. At the time of the divorce, Patricia was employed with an annual income just over $16,000.

¶ 6. James worked as a nurse anesthetist and received a monthly income of approximately $8,000. Because he worked on a contracting basis, his salary would vary from time to time depending on the demand for his services. Often, he would go months at a time without work. Originally, James's income was submitted as $10,000 monthly; however, the proper amount of $8,000 was brought to the court's attention and accepted as such.

¶ 7. After some two and a half years of marriage, the couple began to experience some differences which led first to a separation and ultimately to the divorce. In the judgment of divorce, the chancellor found the home to be marital property and ordered it sold with the proceeds of the sale to be divided equally between the parties. The chancellor ordered James responsible for the marital debt. However, the chancellor also ordered that certain items, claimed by both James and Patricia, be sold and the proceeds applied to the marital debt. Additionally, the chancellor awarded judgment to Patricia in the amount $25,000 as compensation for injuries allegedly suffered by her in acts of domestic violence visited upon her by James. Finally, the chancellor found James responsible for all of Patricia's attorney's fees. Additional facts will be given during the discussion of the issues.

¶ 8. James argues that the trial court committed manifest error and abused its discretion in dividing the marital assets. He contends that the trial court committed reversible error in ignoring his premarital interest in the home. James also contends that the chancellor erred in ordering the disputed marital property, i.e., the fixtures in the home, sold to satisfy marital debts.

I(a) Equal Division of the Proceeds from the Sale of the Marital Domicile

¶ 9. In Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994), the supreme court defined the factors to be considered as a guideline for the equitable distribution of marital property. Further, the court has outlined the steps involved in the process of applying the equitable distribution factors listed in Ferguson. Id. at 929. First, the chancellor is to classify the parties' assets as marital or non-marital based on the Mississippi Supreme Court's decision in Hemsley v. Hemsley, 639 So.2d 909 (Miss. 1994). Second, the chancellor is to value and equitably divide the marital property, employing the Ferguson factors as guidelines, in light of each party's non-marital property. However, "[p]roperty division should be based upon a determination of fair market value of the assets, and these valuations should be the initial step before determining division." Ferguson, 639 So.2d at 929. Third, if the marital assets, after equitable division and in light of the parties' non-marital assets, will adequately provide for both parties, then "no more need be done." Finally, if an equitable division of marital property, considered with each party's non-marital assets, leaves a deficit for one party, then alimony should be considered. Kilpatrick v. Kilpatrick, 732 So.2d 876 (¶ 16) (Miss. 1999).

¶ 10. Under the first step, marital property can be defined as that which was acquired during the course of the marriage. Waring v. Waring, 747 So.2d 252, 255 (Miss. 1999). Also, property brought into the marriage by one partner and used by the family becomes a marital asset, losing its identity as a separate estate. Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss. 1994).

¶ 11. This Court will not overturn the trial court's ruling unless it finds it to be manifestly wrong, clearly erroneous, or that an improper legal standard was employed. Arthur v. Arthur, 691 So.2d 997, 1001 (Miss. 1997). Absent a finding of one of these circumstances, we are compelled to affirm the chancellor's finding.

¶ 12. In the case sub judice, the home was occupied by both James and Patricia, and both of their names were included on the deed. Even though James owned a major premarital interest in the home, once Patricia moved into the home following the marriage, she gained an equitable interest. Additionally, James changed the deed to include Patricia which resulted in Patricia having a legal interest in the home. It is undisputed that the home was the marital domicile of the parties.

¶ 13. It also is undisputed that the home was near completion prior to the marriage. Patricia testified that "almost all of it" was completed, and James testified that 95% of it was finished. The testimony was that James did most of the construction work himself and that the market value of the home after completion was substantial. James testified that he believed the value of the home upon completion was around $199,000, and Patricia testified that she had been told by a real estate agent that the house would list anywhere between $250,000 and $275,000. The lot on which the home was built was acquired by James prior to the marriage at a cost of $45,000. There was an outstanding premarital construction loan in the amount of $70,000. After the parties were married, they acquired a second mortgage on the home for around $20,000 and refinanced the entire indebtedness. As stated, the chancellor ordered the home sold and the proceeds divided equally between the parties.

¶ 14. It is well-settled law that the courts, when making an equitable distribution of marital property, are not required to divide the property equally. Love v. Love, 687 So.2d 1229, 1232 (Miss. 1997). We agree with the chancellor that the home became marital property and thus a part of the marital estate to be equitably divided. However, due the unique and specific facts of this case, we do not believe an equitable distribution of the marital estate can be accomplished without James being given some credit and consideration for the value of that which he had acquired exclusively before the marriage.

¶ 15. Though commingled property is included in the marital estate, that fact does not and should not prevent the court, as a part of the equitable division analysis, from giving due consideration to the pre-commingled value of the commingled asset, nor does it mean that the party who brought the asset into the marriage should be given credit in the exact percentage of ownership that existed before the asset became commingled.

¶ 16. Further, we point out that the conveyance from James making Patricia a joint owner of the property did not mandate that she be given half the value of the home as a part of the equitable division. On the other hand, the fact that the home was approximately ninety-five percent complete when the parties married does not mean that Patricia could never be entitled to a fifty percent interest in an equitable division of the marital estate. What the court must look to is the relative contribution of parties to the marital estate. In our judgment, therein lies the problem with what the chancellor did. Because of the short duration of this marriage and no financial or other contribution by Patricia to ninety-five percent completion of the home, it is difficult to see how Patricia could acquire an equitable claim to fifty percent of the value of the home.

¶ 17. As stated, property division should be based upon a determination of fair market value of the assets, and these valuations should be the initial step before determining division. The chancellor, however, made no evaluation of the assets. Additionally, in Ferguson the Mississippi Supreme Court directed chancellors to make specific findings of fact. The chancellor did not do that here, and in the absence of specific findings of facts and conclusions of law by the chancellor, we cannot say that the chancellor did not abuse his discretion in the division of the proceeds from the home, and we reverse and remand this matter for further consideration. This reversal should not be interpreted to mean that we are holding that Patricia's in-home contributions do not count, nor are we implying that they could never entitle her to an equal division of the value of the marital domicile in an equitable division of the marital estate. They certainly do count and could at some point arise to that level of entitlement. The problem here is that there has been little time for those contributions to garner such weight.

¶ 18. Each of the parties submitted lists of personal items which each claimed to be premarital assets. The chancellor awarded James all of the items on James's list except the ones which the chancellor concluded were a part of the realty and four items which the chancellor awarded to Patricia. The items which the chancellor concluded were a part of the realty were the garage door opener, cooktop, dishwasher, refrigerator, vacuum system and wall oven/microwave. The four items awarded to Patricia from James's list were three pieces of art work and a gold plated place setting for eight. The purchase price of these four items was listed as $3,300, but no value was given as of the date of distribution. The remaining personal property in the marital domicile, except items showing a purchase price of approximately $20,000, was ordered sold and the proceeds applied to the marital debt. The excepted items were awarded to Patricia, and again, no value was placed on these items as of the date of distribution. As far as we can tell from the record, James was not given any of the disputed or undisputed household property comprising the marital estate.

¶ 19. We are unable to ascertain from the record whether the chancellor valued the marital estate as required by Ferguson. There is some evidence as to the acquisition cost of the household items, including those given to Patricia, but there is no evidence, so far as we can tell, as to the value of those items at the time of the divorce. However, since all of the marital household property, not given to Patricia, was ordered sold and the proceeds applied to the marital debt, we believe the chancellor operated within permissible limits. We arrive at this conclusion because we are convinced that, given the vast difference in the parties' income and income earning potential, the chancellor would have operated within the proper range of his discretion had he ordered the items divided equally and ordered James responsible for all of the marital debt. Since most of the items were ordered sold and the proceeds applied to the marital debt, we see no net harm to James. Accordingly, we affirm the chancellor in this regard.

¶ 20. James contends that the chancellor erred in awarding Patricia periodic alimony in the amount of $150 per week for sixty months. He contends that financial indiscretions committed by Patricia during the marriage brings into question the propriety of granting alimony in any form or amount.

¶ 21. Alimony awards are largely at the discretion of the trial judge. A chancellor's decision regarding the amount and type of alimony will be upheld on appeal unless the decision is found to be manifestly in error either in fact or law, or otherwise an abuse of discretion. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993).

¶ 22. Under Mississippi law, the chancellor must consider the following factors when making alimony determinations:

1. The income and expenses of the parties;

2. The health and earning capacities of the parties;

3. The needs of each party;

4. The obligations and assets of each party;

5. The length of the marriage;

6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;

7. The age of the parties;

8. The standard of living of the parties, both during the marriage and at the time of the support determination;

9. The tax consequences of the spousal support order;

10. Fault or misconduct;

11. Wasteful dissipation of assets by either party; or

12. Any other factor deemed by the court to be "just and equitable" in connection with the setting of spousal support.

¶ 23. There are three different categories of alimony — periodic, rehabilitative, and lump sum. Hubbard v. Hubbard, 656 So.2d 124, 129-30 (Miss. 1995). "Rehabilitative periodic alimony is an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim." Id. at 130. It is subject to modification and has a time limit set by the court. Periodic alimony does not have a termination date and continues until the death of either spouse, the remarriage of the recipient, or further order of the court based on a change in circumstances. Id. at 129. Lump sum alimony differs in that it is a final settlement, not subject to modification. It is sometimes referred to as alimony in gross. Id. When determining which type of alimony has been awarded we look to the substance of what has been provided, and not the label. Bowe v. Bowe, 557 So.2d 793, 795 (Miss. 1990). We inquire not what the court entering the prior judgment meant but what the judgment means. Id.

¶ 24. Here the alimony awarded has a time limitation attached and appears to be for the purpose of rehabilitating Patricia, allowing her to become self-supporting. The chancellor, in his judgment, seems to be reasoning that the amount of James's income, along with the disparity between the incomes of James and Patricia, validates the award which will enable Patricia to rehabilitate herself in order to maintain the standard of living she has become accustomed to or somewhere near it. Accordingly, we affirm the award of alimony as rehabilitative periodic alimony rather than periodic alimony as stated in the judgment.

¶ 25. The chancellor awarded Patricia $25,000 in damages for injuries inflicted upon her by James during the course of the marriage. James argues that the evidence presented was wholly insufficient to support the award.

¶ 26. Before addressing the merits of this issue, we point out that a claim for personal injury arising out of an assault and battery properly belongs in the circuit court. However, in this case, the parties submitted the personal injury damage claim to the chancellor as one of the issues for resolution in this irreconcilable divorce. We now turn to the merits of this issue.

¶ 27. A party must prove that he or she is entitled to damages to a reasonable certainty. An award cannot be based on speculation and conjecture. Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1164 (Miss. 1992). However, "[w]here the existence of damages has been established, a plaintiff will not be denied the damages awarded by a fact finder merely because a measure of speculation and conjecture is required in determining the amount of the damages." TXG Intrastate Pipeline Co. v. Grosnickle, 716 So.2d 991 (¶ 86) (Miss. 1997).

¶ 28. In the case at bar, Patricia testified of being assaulted by James on two occasions, one time in May 1994 and again on September 15, 1996. Patricia testified that in the May 1994 incident, she tried to prevent James from leaving the house because he had been drinking a lot. She stood in front of the doorway, but James knocked her away, and she fell and hit the back of her head and neck on the tile. She testified that she had to have surgery in August 1994 as a result of the injuries she had received in the assault. In the September 15 incident, James knocked her down. She was transported by ambulance to the hospital where she was treated and released. She was given two shots and a prescription upon being released. There were no medical reports or testimony from any physician or medical experts detailing Patricia's injuries.

¶ 29. A two-page itemization of medical bills with attachments was offered and admitted into evidence over James's objection that they had not been authenticated and that no showing had been made that they were reasonable or necessary in conjunction with the September 15 incident. This was the only medical evidence admitted in this case. Prior to the admission of the itemization of medical bills, Patricia testified that the medical bills reflected on the itemization were the result of the September 15 incident. On cross-examination, the following dialogue occurred between Patricia and James's counsel:

Q. None of this itemization has anything to do with that incident of September 15th, 1996 does it?

A. No, sir. Only to the extent the medical coverage was not continued.

Q. Okay. Now, the next page itemization has nothing to do with that incident, does it?

A. No, sir. Only the history of the medical coverage.

Q. Okay. The next page still has nothing to do with, because the last item there is August 5th of '96 before the incident that you complained of on September 15th of '96; is that correct?

A. That's correct. Same reason.

¶ 30. In the judgment rendered by the chancellor, only the September 15 incident is discussed. Not even a reference is made to the May 1994 incident. The testimony offered by Patricia failed to provide a nexus between the September 15, 1996 incident and the damages she claimed as being supported by the itemization of medical bills. First, the prescription drugs described in her exhibit of the medical bills were prescribed for her prior to the incident. Second, the bill for medical treatment provided in December of 1996 did not indicate vital information such as the type of treatment, the diagnosis, the extent of injury, or the reason for the treatment. In fact, her testimony was that she had not yet undergone any surgery as a result of the September 15 incident.

¶ 31. Without expert medical testimony explaining the treatment, the Court has no means of determining if the treatment rendered was reasonably necessary or even related to the incident. The only testimony directly referring to the incident indicated that on the night of the incident Patricia was taken to the Ocean Springs Hospital where she was treated and released. As stated, and shown by the above colloquy, nothing in the itemization of medical bills related specifically to the September 15 incident. That conclusion is buttressed even further by this exchange:

Q. The first items on the summary there is not a itemized expenditure there from November 15th of '96. This is all things that occurred since then, right?

A. November?

Q. Excuse me, September 15, '96.

A. With the exception of, yeah they all have.

Q. And this is medication, right?

A. Yes, sir.

Q. And it is all medication that you had been taking before?

A. Only when I had been injured before.

Q. Okay, Same thing true with K B. The second block of things itemized in Exhibit 13; isn't that correct?

A. That's correct.

Q. All right. Now, the $211 is the Amserve bill?

A. Yes, sir.

Q. That you say is what is left after the insurance paid the rest?

A. Yes, sir.

Q. Okay. The $1,534 is that the bill from Singing River Hospital when they checked you out and gave you two shots.

A. No, sir, this is the bill from Singing River Hospital when I had the myelogram.

Q. That is when you went finally and got a myelogram?

A. Yes, sir.

Q. More than three months after the incident of September 15th?

A. Yes, sir.

Q. Okay.

A. Because first we started with a CAT scan and then we sequed [sic] into an MRI and then we went to a myelogram.

Q. And Gulf Coast Radiology Group do you see that?

A. Yes, sir.

Q. $523?

A. Yes, sir.

Q. When was that service rendered?

A. That service was rendered 12-30.

Q. December 30th, more than three months after that incident on December 15th [sic]?

A. Correct. But that was post other procedures.

Q. All right. And then the Heart Center?

A. Yes, sir.

Q. And did I understand you to say earlier that that's not related to the incident of September 15th?

A. That's correct.

¶ 32. While it is clear that the medical information, which was the subject of the colloquies between counsel and Drumwright, did not relate to the September 15 incident, we are unable to determine whether some of it may have related to the May incident. We note that when she was asked if it was all medication she had been taking before [meaning the September 15 incident], her response was, "[o]nly when I had been injured before." There was no explanation whether she was referring to the May injury or another unrelated to James.

¶ 33. Due to the absence of specific expert medical evidence detailing the damages Patricia suffered, as well as the absence of expert testimony that the treatment provided was reasonable and necessary medical treatment for injuries received at the hands of James during one or both of the attacks, we reach the inevitable conclusion that Patricia failed to present proof sufficient to support an award of $25,000. This fact becomes even more evident in light of the fact that the chancellor also said in his judgment that the $25,000 awarded for personal injury included a lump sum amount for future medicals. There was no expert medical testimony that Patricia was likely to incur future medical expenses as a result of the two assaults by James. Patricia had five surgeries prior to marrying James. The record is silent as to whether she was still incurring medical costs relating to any of those procedures. However, there is simply no evidence in the record which would support an award for future medicals arising out of any injury caused her by James.

¶ 34. Having determined that Patricia failed to present sufficient evidence to support the specific amount of the personal injury award, at first blush it would appear that we should reverse and render on this issue. However, it is clear that she suffered injury on two occasions at the hands of James. Her testimony is uncontradicted that the May 1994 incident necessitated surgery in August 1994. James denied assaulting Patricia in the September 15 incident. He was charged criminally and pleaded not guilty but was found guilty of domestic violence in this incident. The chancellor heard James's version and Patricia's and accepted Patricia's, which he was entitled to do.

¶ 35. As stated, Patricia clearly established that she had been injured by James, yet she failed to produce any evidence as to the extent of her injuries, and the treatment and diagnosis regarding them. It is unclear whether any of the medical information or bills that were present related to the May 1994 injury. Under these circumstances, we believe the proper course is to reverse and render that undetermined portion of the award that was for future medicals and remand this issue to the chancellor with directions that he reconsider the award. Upon remand, however, Patricia shall not be allowed to supplement the record with respect to any medical expenses which might be offered or medical reports detailing the treatment, diagnosis or prognosis resulting from either of the incidents. To allow such supplementation would, in our opinion, give Patricia two bites at the apple. No such evidence was produced in the initial trial, and she should not be allowed to correct this deficiency on remand. However, she should not be prevented from giving testimony concerning the medical bills about which she testified during the first trial.

¶ 36. The award of attorney's fees in a divorce case is left to the discretion of the trial court. Hemsley, 639 So.2d at 915. The party seeking attorney's fees is charged with the burden of proving inability to pay. Jones v. Starr, 586 So.2d 788, 792 (Miss. 1991). Normally, if the party is able to pay his or her own attorney's fees an award of such fees is inappropriate. Id. However, in Hemsley, the court allowed an award of attorney's fees even though the requesting party could pay her own because to do so would render her "barely [able to] cover her monthly expenses;" thus, creating an unreasonable burden. See Hemsley, 639 So.2d at 915.

¶ 37. Here the amount of Patricia's income along with the vast disparity in the incomes of James and Patricia call for an award of attorney's fees in favor of Patricia. However, the award should be limited to the charges for time spent on issues on which she prevailed. Accordingly, we affirm Patricia's entitlement to attorney's fees but reverse and remand the amount to be awarded consistent with this opinion.

¶ 38. THE JUDGMENT OF THE CHANCERY COURT OF JACKSON COUNTY IS AFFIRMED AS TO THE AWARD OF ALIMONY BUT MODIFIED TO MAKE THE AWARD REHABILITATIVE PERIODIC ALIMONY INSTEAD OF PERIODIC; THE JUDGMENT AS TO THE DIVISION OF THE PERSONAL PROPERTY OF THE MARITAL ESTATE IS AFFIRMED BUT REVERSED AND REMANDED AS TO THE DIVISION OF THE MARITAL HOME; THE JUDGMENT AS TO THE AWARD OF $25,000 FOR PERSONAL INJURY IS REVERSED AND REMANDED, AND THE JUDGMENT OF AWARD OF ATTORNEY'S FEES IS AFFIRMED AS TO THE APPELLEE'S ENTITLEMENT BUT REVERSED AND REMANDED AS TO THE AMOUNT. COSTS OF THIS APPEAL ARE ASSESSED THREE FOURTHS TO APPELLANT AND ONE FOURTH TO APPELLEE.