Before Pittman, P.j., Roberts And Smith, JJ.
The opinion of the court was delivered by: Smith, Justice, For The Court:
DATE OF JUDGMENT: 10/28/96
TRIAL JUDGE: HON. DONALD B. PATTERSON
COURT FROM WHICH APPEALED: COPIAH COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
¶1. Thomas and Martha Traxler were married on July 31, 1971 in Mississippi. Two children, Casey Anne Traxler and Ty A. Traxler, were born of this marriage. The parties were separated in March of 1995. The oldest child, Casey, was twenty-one years old at the time of trial and is emancipated. Ty is enrolled in college at Copiah Lincoln Community College on a full athletic scholarship which includes an endowment of $1,000.00 per semester over and above standard college costs and expenses.
¶2. The parties jointly purchased a home located at 119 Mathis Road, Crystal Springs, Mississippi seventeen years ago, which at the time of trial had an approximate mortgage balance of $51,709.00 with estimated equity in the amount of $33,290.00. The parties have no interest in any other real property.
¶3. Thomas earns approximately $56,400.00 annually from his employment at the Federal Small Business Administration where he has worked for approximately 18 years. He has an adjusted gross monthly income of approximately $3150.00. At the time of trial, the balance of his retirement account was $46,000.00, which he is eligible to receive upon retirement. He is exempt from Social Security retirement benefits due to his Civil Service Retirement System employment status.
¶4. Martha earns approximately $34,679.00 per year from her employment as a school counselor at Copiah County Schools. She has an adjusted gross monthly income of approximately $2023.00. At the time of trial, the balance of her retirement account was $19000.00. Martha has contributed into Social Security during her years of employment and will be eligible for benefits upon her retirement. Martha has been continuously employed throughout the marriage.
¶5. The parties have accumulated household furnishings and personal property throughout the twenty-five years of marriage. There is dispute as to the actual value of the household furnishings and some personal property.
¶6. Thomas maintained two whole life insurance policies that were purchased during the marriage with marital assets. There is a Kansas City Life Insurance policy which contained a cash value of $2,049.00, and Lamar Life Insurance policy with a cash value of $3,495.00. However, due to loans, their net cash value was $1,817.00 at the time of trial. In dispute as a marital asset is a $50,000.00 Southern Farm Bureau Life Insurance policy, owned by Thomas, but purchased for the benefit of his mother, Ms. Annette Traxler, for estate purposes during the marriage. The approximate cash value of the policy, $25,000.00, and the ownership was returned to Annette Traxler prior to trial. Thomas and Martha testified that the policy was obtained for estate purposes. There is dispute as to how the premiums of the policy were paid.
¶7. During the marriage, Thomas managed four single family rental units owned by his mother that earned the family extra income. The amount of the income was estimated to be $300.00 per month. After the separation of the parties, Thomas moved to Brandon, Mississippi into a one bedroom apartment. Subsequently, Annette began managing the rental units and retaining any profits.
¶8. Martha Traxler initiated this action by filing a Complaint on July 21, 1995, for Divorce in the Chancery Court of Copiah County, Mississippi pursuant to Miss. Code Ann. Section 93-5-1 (Supp 1997). Martha requested the custody of the minor child, child support and maintenance, title to the marital home, periodic and lump sum alimony, payment of marital debt, and attorney fees. Thomas Traxler filed an Answer and Counter Complaint for Divorce on September 7, 1995 alleging habitual cruelty and inhuman treatment and requesting an equitable division of the marital property and attorney fees, pursuant to Miss. Code Ann. Section 93-5-2 (Supp 1997).
¶9. On July 23, 1996, the question of monthly child support and maintenance as well as the division of marital property and attorney fees were submitted via a signed Consent Agreement pursuant to Miss. Code Ann. Section 93-5-2(3) (Supp 1997).
¶10. After a full hearing in open court and the parties submission of their respective Findings of Fact and Conclusions of Law, the Chancellor made the following ruling:
1) Martha would receive $750.00 in monthly periodic alimony, all equity ($33,000.00) in the marital home and the parties would divide all personal property contained in the house via an auction process unless otherwise agreed. Additionally, Martha would receive title to the home and child support for the remaining un-emancipated child in the amount of $225.00 per month, when the child remained with her for more than any 30 day period. The parties would divide health care cost not covered by insurance and reasonable and necessary college expenses for the child with Thomas paying 61% and Martha 39% of said costs.
2) The Court found both parties to have some ability to pay attorney fees and the total fees were combined and Thomas was ordered to pay 61% and Martha 39% .
3) The Court found the oldest child, Casey Traxler, emancipated due to her age with no future obligation of support but allowed her to obtain possession of the U.S. savings bonds, which were purchased during the marriage, valued at $2000.00. Thomas was ordered to hold the remaining bonds in Ty Traxler's name in trust, in the amount of $11,000.00, for educational purposes.
4) A life insurance policy through Southern Farm Bureau, purchased during the marriage for the benefit of Thomas's mother, Annette Traxler was found not to be a marital asset. A $5000.00 loan from Annette Traxler to Martha and Thomas Traxler was found not to be an enforceable debt in these proceedings.
¶11. Thomas Traxler filed a Motion for Reconsideration on November 12, 1996, and after a hearing on the Motion, the Court denied the relief requested in an order entered November 27, 1996. A Notice of Appeal was filed by the Appellant on December 27, 1996. Appellee thereafter filed a Notice of Cross Appeal on January 9, 1997. Aggrieved by the decision of the lower court, Thomas appeals and raises the following issues:
I. WHETHER THE LOWER COURT ERRED WHEN IT CONSIDERED ALL RETIREMENT BENEFITS ACCUMULATED BY EACH PARTY AS MARITAL ASSETS, AND THEREFORE SUBJECT TO EQUITABLE DISTRIBUTION.
II. WHETHER THE LOWER COURT ERRED WHEN IT ATTEMPTED TO CONSIDER ALL RETIREMENT BENEFITS AS MARITAL ASSETS, BUT FAILED TO CONSIDER MARTHA TRAXLER'S SOCIAL SECURITY FOR PURPOSES OF EQUITABLE DISTRIBUTION.
III. WHETHER RENTAL INCOME RECEIVED BY THOMAS TRAXLER DURING THE MARRIAGE BUT DISPENSED WITH PRIOR TO DIVORCE JUDGMENT, SHOULD HAVE BEEN INCLUDED AS A MARITAL ASSET FOR PURPOSE OF EQUITABLE DISTRIBUTION AND AWARDING PERIODIC ALIMONY.
IV. WHETHER AN AWARD OF $750.00 PER MONTH PERIODIC ALIMONY AWARD WAS EXCESSIVE.
V. WHETHER THE LOWER COURT ABUSED ITS DISCRETION WHEN ORDERING THOMAS TRAXLER TO PAY 61% OF COMBINED ATTORNEY'S FEES WITHOUT PROOF OF HER INABILITY TO PAY.
¶12. Martha Traxler raises on cross-appeal the following issue:
I. WHETHER A LIFE INSURANCE POLICY CASH VALUE OWNED BY THOMAS TRAXLER IS A MARITAL ASSET.
¶13. The court's standard of review in domestic relations matters is limited. We will not disturb the findings of a Chancellor unless the Chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was ...