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Myers and Dederich v. Myers

August 04, 1998

MYERS AND DEDERICH
v.
MYERS



Before McMILLIN, P.j., Diaz, And King, JJ.

The opinion of the court was delivered by: King, J

JOHN KENNETH MYERS AND LYNDA DEDERICH, APPELLANTS v. BETTY GAYLE MYERS, APPELLEE

DATE OF JUDGMENT: 07/29/96

TRIAL JUDGE: HON. FRANKLIN C. MCKENZIE JR.

COURT FROM WHICH APPEALED: JONES COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

TRIAL COURT DISPOSITION: DIVORCE GRANTED TO APPELLEE ON GROUND OF ADULTERY

DISPOSITION AFFIRMED IN PART; REVERSED AND REMANDED IN PART- 8/4/98

¶1. Betty Gale Myers was granted a divorce from her husband, John Kenneth Myers, on the ground of adultery. In the division of marital assets, the Jones County Chancery Court set aside certain real and personal property conveyances from Mr. Myers to his sister as fraudulent, placed a $98,000 certificate of deposit purchased with proceeds of a personal injury settlement into a constructive trust for Mrs. Myers, and divided remaining marital property equally between the parties. Aggrieved, Mr. Myers assigns six points of error on appeal:

(1) The Court erred in failing to make specific findings of fact and Conclusions of law as requested by the Husband.

(2) The Court erred in granting the Wife's divorce on the grounds of adultery.

(3) The Court erred in identifying the marital assets of the parties.

(4) The Court erred in finding a constructive trust as to a certificate of deposit in the name of the Husband.

(5) The Court erred in finding that certain real and personal property conveyances between the Husband and his sister were fraudulent conveyances.

(6) The Court erred in granting attorney's fees to the Wife.

¶2. Finding error only in the chancellor's determination that the certificate of deposit belonged solely to Mrs. Myers and his subsequent imposing of a constructive trust upon the certificate of deposit, we reverse in part and remand. We affirm the remaining portions of the chancery courtjudgment.

FACTS

¶3. John and Betty Gale Myers were married in July of 1971 and divorced in July of 1996. The couple had three children. At the time of the divorce, the children were adults. Throughout the marriage, Mr. Myers operated a grocery store, raised cattle, and sold used cars and farm equipment. Mrs. Myers assisted Mr. Myers with some of the businesses and later worked as cashier in the University of Southern Mississippi's business office. After being injured in a car accident in 1985, she stayed at home to care for the family.

¶4. Mrs. Myers initially filed for divorce in February of 1994, alleging the grounds of habitual cruel and inhuman treatment. The Jones County Chancery Court ruled that Mrs. Myers failed to sufficiently establish this ground of divorce. In January of 1995, Mrs. Myers again filed for divorce, alleging constructive desertion, adultery, and cruel and inhuman treatment. In March of 1995, she amended the second complaint, adding the ground of natural impotency. Mr. Myers filed a Motion to Dismiss the claims of natural impotency and constructive desertion which was granted. The Court consolidated the second complaint for divorce with Mrs. Myers' suit to set aside certain conveyances between Mr. Myers and his sister and an interpleader filed by the First Magnolia Bank for Savings regarding a certificate of deposit in Mr. Myers' name. After a trial in this cause, the chancellor found adulterous conduct by Mr. Myers and granted the divorce.

¶5. The chancellor found that Mr. Myers had fraudulently conveyed real and personal property to his sister, Lynda Dederich, and set aside these conveyances. The Court determined that these fraudulently conveyed items were marital property, subject to division by the court.

ΒΆ6. The chancellor found that a certificate of deposit, held in Mr. Myers' name, was part of the proceeds of a personal injury award to Mrs. Myers. Because the certificate of deposit was held in Mr. Myers' name for the sole purpose of FDIC insurance, the court held it to be the ...


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