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PAUL J. O'NEILL v. AVIS O'NEILL

SEPTEMBER 13, 1989

PAUL J. O'NEILL
v.
AVIS O'NEILL



BEFORE DAN LEE, P.J., PRATHER AND ROBERTSON, JJ.

PRATHER, JUSTICE, FOR THE COURT:

This partition suit comes from the Chancery Court of the First Judicial District of Hinds County, Mississippi. The parties, former spouses, were owners of a home located in Jackson, Mississippi. On the petition of Avis O'Neill (hereinafter Avis) and pursuant to an order of the trial court, the house was sold at a partition sale. Paul O'Neill, Avis' former husband (hereinafter Paul), purchased the house at the sale subject to an existing mortgage. On a motion by Avis, however, the trial court set aside the sale for the reason that the sale was not conducted pursuant to the direction of the trial court. At the second partition sale, Avis purchased the house; this sale was approved and the proceeds were distributed.

Paul now appeals the trial court's decision to set aside the first partition sale and order another sale, assigning as error the following:

 (1) The trial court erred in holding that a partition sale of a home to the appellant subject to a mortgage should be set aside as inconsistent with the court's order directing a partition sale, when the order and the notice of sale, was drafted by the appellee's counsel and stated that the sale was subject to the mortgage.

 (2) The trial court erred in not holding that the appellee was barred by the doctrine of judicial and equitable estoppel from having a partition sale set aside when the appellant purchased the home in good faith relying upon the representations and actions of the appellee and her counsel and in accordance with the" Notice of Sale "published by the appellee.

 (3) The trial court abused its discretion in setting aside the partition sale to the appellant of the home of the parties in that the appellee was not harmed by the sale, it was done at her attorneys' direction, and the appellee had acted in good faith.

 Avis cross-appealed claiming that Paul filed a frivolous appeal and requested that this Court award her the costs and attorney's fees she incurred defending this appeal.

 I.

 Avis O'Neill and Paul O'Neill were awarded a divorce on the ground of irreconcilable differences on January 31, 1983. In the final divorce decree, the chancellor awarded Avis the exclusive use and occupancy of the marital domicile for the benefit of and as a part of the support and maintenance of the minor child of the parties. In September of 1983, Avis and the minor child moved their residence to another state with the permission of the trial court. At the time of the move, however, Avis failed to petition the trial court for a modification of that portion of the final decree which required Avis to discharge the mortgage indebtedness on the marital domicile.

 On October 21, 1983, Avis filed a complaint to partition the property described as Lot 132 Sunkist Subdivision, Part 1, according to Plat Book 26 at page 46 of the land records of Hinds County, Mississippi, in Chancery Clerk's office at Jackson, naming Paul and Deposit Guaranty Mortgage Company, the mortgage holder, as defendants under Miss. Code Ann. 11-21-1 (1972). She prayed for an order appointing a Commissioner to sell the property, either publicly or privately, and to be awarded a portion of the proceeds from the sale sufficient to satisfy the terms of the final decree entered in the divorce between the parties. The complaint also contained a prayer for all expenses of the litigation to be imposed as a lien against the proceeds of the sale due to Paul. Paul counterclaimed for reimbursement of expenses of repairing and maintaining the house and of making mortgage payments.

 In November of 1983, Paul began to occupy the house. In December of 1984, the chancellor modified the final divorce decree by awarding Paul the exclusive use and possession of the marital domicile subject to the right of either party to have the property partitioned. The chancellor further ordered Paul to discharge all mortgage indebtedness accruing subsequent to October 31, 1983. Paul appealed the order of modification to this Court. This Court affirmed the decision of the chancellor and awarded Avis attorney's fees, stating the following:

 In considering the merit of the allegations before us and the history of litigation and resistance alluded to in the record, this appeal appears more closely akin to harassment than a quest for justice.

 O'Neill v. O'Neill, 501 So. 2d 1117, 1120 (Miss. 1987).

 On May 27, 1985, Avis filed her motion for appointment of special commissioner averring that an equitable and equal division in kind could not be made of the property, that a

 special commissioner should be appointed under 11-21-11, Miss. Code Ann. The trial court, on July 31, 1985, appointed Carol English as special commissioner and ordered her to proceed with and effect the sale of the property. The trial court further ordered that the proceeds of the sale would be determined subsequent to the sale.

 The legal notice which advertised the sale stated that the property would be sold subject to a mortgage in favor of Deposit Guaranty Mortgage Company in the amount of $33,487.11.

 At the sale, the highest bidder was Paul for a cash purchase price of $47,000.00. On September 11, 1985, the special commissioner's report of sale and motion to pay fees and expenses was filed, and the order confirming the report was entered; both report and order were prepared by Paul's attorney and recited a cash purchase price of $47,000.00. The order directed that the proceeds from the sale be kept in an interest bearing account at the direction of a special commissioner, the distribution to be determined at the trial of the action. The ...


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