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STANLEY MALCOLM CARPENTER v. ANNE HUDSON CARPENTER

FEBRUARY 03, 1988

STANLEY MALCOLM CARPENTER
v.
ANNE HUDSON CARPENTER



BEFORE ROY NOBLE LEE, C.J., PRATHER AND ZUCCARO, JJ.

PRATHER, JUSTICE, FOR THE COURT:

The appropriateness of alimony and attorneys fees' awards in a divorce action when the wife's net worth exceeded that of her husband is the subject of this appeal from the Chancery Court of Forrest County. This Court reverses the chancellor's allowance of both alimony and attorney's fees.

I.

 Stanley Malcolm Carpenter and Anne Hudson Carpenter were married on December 28, 1956, and to their marriage four children were born. At the time of the divorce, the children's ages were twenty-six (26), nineteen (19), seventeen (17), and twelve (12). The parties separated and she filed for a divorce in 1983.

 At the time of the divorce in 1985, Stanley Carpenter was 50 years of age, a certified public accountant, who spent most of his professional life as an accounting instructor at the University of Southern Mississippi. He retired from the University in 1983. At that time, he established a private accounting practice in Hattiesburg. The practice was a partnership which was in the process of dissolution, with related litigation in progress.

 Respectively, Ann Carpenter was 49 years of age at the time of the divorce. She has a Master's Degree in Early Childhood Education. However, she had elected in recent years not to work in her chosen field. Rather, at the time of the divorce, she was a door to door saleswoman of first aid supplies.

 Neither of the parties suffers from any kind of physical

 or mental disability. Their twelve year old son has a learning disability.

 Joint custody of the minor children was ordered. The seventeen year old daughter was in the physical custody of her mother, and $300.00 monthly child support was ordered to be paid by her father to her mother. *fn1 The father had physical custody of the nineteen year old daughter and twelve year old son, and although the order does not provide, it is assumed that the father totally supported them. The jointly owned residence of the parties was occupied by the husband with the two minor children in his physical custody, and the husband was making the mortgage payment on the residence of $923.48 monthly. Mrs. Carpenter testified that the fair rental value of the residence was $450-$500 monthly.

 The issue of divorce was uncontested, and Mrs. Carpenter was granted a divorce, $300.00 alimony per month for ten (10) years, and $2,500.00 attorney's fees. The issue of these latter two awards is the subject of this appeal. Also, the chancellor granted a stay on the alimony award pending this appeal.

 The basis for objection to these two monetary awards is twofold: (1) the separate estate of Mrs. Carpenter and (2) the financial inability of Mr. Carpenter.

 II.

 Regarding Mrs. Anne Carpenter's separate estate, the record reveals that Mrs. Carpenter had monthly earning of $800.00 and was a joint beneficiary with her two sisters of a substantial trust. Annual income from the trust ranged from a high of $25,000.00 in 1979 or 1980 to a low of only $1,600.00 one other year. The record is extremely inadequate on the exact details of the trust income. However, Mrs. Carpenter testified that the trust was valued at a quarter of a million the last time she knew of its value. Additionally, the trustee has the right to invade the trust corpus on Mrs. Carpenter's behalf. Apparently, a $12,500.00 trailer and lot in Hancock County was an asset of Mrs. Carpenter's which had come from the trust, and was debt free. Mrs. Carpenter testified that the total value of the trust was at least $250,000; the record suggests that its value is in excess of that.

 It is difficult to accurately deduce from this record the exact extent and nature of the property of these parties. More information comes from the briefs of counsel, but upon which this Court cannot rely. However, from the evidence, it

 appears that the Carpenters are joint owners of a residence and land of some six acres and farm of 98 acres with buildings and equipment and subject to a joint indebtedness which Mr. Carpenter is totally paying.

 Based upon facts at the hearing, appellant's brief contains an analysis of the net worth of the parties, dividing the jointly owned property and indebtedness as follows:

 ASSETS

 STAN ANNE

 Cash Receivables $ 1,800.00 -0- - fees 3,600.00 -0-

 Investment in stocks 2,000.00 -0- Automobiles 6,500.00 6,500.00 98 acre parcel

 (one-half interest) 98,000.00 98,000.00 Residence (one-half

 interest) 67,500.00 67,500.00 ...


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