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Prescott v. Prescott

March 23, 1999

BETTY J. PRESCOTT APPELLANT
v.
FREDRIC L. PRESCOTT, SR. APPELLEE



Before Bridges, P.j., Diaz, And Southwick, JJ.

The opinion of the court was delivered by: Southwick, J.

DATE OF JUDGMENT: 03/20/97

TRIAL JUDGE: HON. HOLLIS MCGHEE

COURT FROM WHICH APPEALED: FRANKLIN COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

TRIAL COURT DISPOSITION: APPELLANT GRANTED DIVORCE; EQUITABLE DISTRIBUTION OF MARITAL ESTATE; ALIMONY AWARDED; $7500 IN ATTORNEY'S FEES AWARDED

DISPOSITION: AFFIRMED IN PART, REVERSED AND REMANDED IN PART - 03/23/99

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

¶1. Betty J. Prescott and Frederic L. Prescott, Sr., were granted a divorce based upon irreconcilable differences. Mrs. Prescott was awarded a portion of certain employment benefits that Mr. Prescott had earned. Attorneys' fees were awarded to Mrs. Prescott. Both parties appeal, each arguing that the property division was inequitable. Mr. Prescott also challenges the attorneys' fees. We affirm in part, but reverse for further consideration of the retirement annuity, the automobiles, and the attorneys' fees. Those portions of the decree are remanded for further proceedings.

FACTS

¶2. Betty J. Prescott and Frederic L. Prescott were married on October 29, 1988. At the time of their marriage, Mr. Prescott had been employed by the Plantation Pipeline Company, located in Baton Rouge, Louisiana, for thirty-one years. Mrs. Prescott served as the office manager of Tree Mart, Inc., a logging equipment and service business near McComb, Mississippi. The couple resided in Franklin County, Mississippi, in a home owned by Mrs. Prescott's disabled daughter.

¶3. The Prescotts separated on September 24, 1995. Two days later, Mrs. Prescott filed for divorce. Ultimately the parties agreed to a divorce based on irreconcilable differences. At the time of the separation, Mr. Prescott had a retirement account valued at $268,435 and a thrift plan worth $315,000 which had been rolled into an A.G. Edwards account. We will refer to the account in the same manner as did the chancellor, "the thrift account." Plantation offered Mr. Prescott early retirement and a severance pay package worth $67,500. The offer was accepted in October 1995. He retired with 38 years and 8 months of service but continues to perform occasional contract work for his old employer. He also receives $2,400 per month from his thrift account.

¶4. In the November 3, 1995 order, Mr. Prescott was ordered to pay temporary support in the amount of $534 per month, which included $150 in alimony and the $384 mortgage payment on the home. At the trial held on three days spread from September to November 1996, much of the focus was on the allocation to the marriage of the benefits that Mr. Prescott had earned at Plantation. As will be detailed below, a senior benefits analyst for Plantation, Mary Guerin, provided calculations. Using these figures, the chancellor determined that the marital estate consisted of $68,000 from Mr. Prescott's thrift account, $47,330 from his retirement account, and a share of his severance package valued at $14,530. A Tree Mart profit sharing plan worth $7,000 and 1.28 acres of land in Amite County valued at $600 were also included. Mrs. Prescott was awarded 55% of the marital estate, while Mr. Prescott received 45%.

¶5. The chancellor ordered Mr. Prescott to pay Mrs. Prescott's credit card debt, which totaled $14,848.91, and further awarded her the 1989 Honda Accord and the 1992 Ford truck. Mrs. Prescott was held to be solely responsible for the loan taken out for improvements on the home owned by Mrs. Prescott's daughter where the couple resided. The chancellor denied Mrs. Prescott's request for alimony. Mrs. Prescott filed a post-judgment motion to amend, and sought attorneys' fees and temporary alimony for January, 1997. The chancellor amended the judgment, awarded Mrs. Prescott $7,500 in attorneys' fees but denied the month of temporary alimony.

¶6. Mrs. Prescott appeals, seeking a larger portion of Mr. Prescott's retirement account and severance package, full payment of her attorneys' fees, and lump sum alimony. Mr. Prescott cross-appeals, arguing that Mrs. Prescott is not entitled to any percentage of his thrift account, retirement account, or severance package. Among other claims, he alleges that he should be awarded the 1989 Honda Accord, that Mrs. Prescott should be responsible for her own credit card debt and for paying one-half of the $12,000 loan that he obtained in order to pay her debts.

DISCUSSION

I. The marital estate

¶7. The chancellor valued the marital estate at $137,500 as follows:

Thrift Plan (A.G. Edwards) $68,000

Retirement Account $47,330

Severance Pay $14,530

Tree Mart Profit Sharing $7,000

1.28 acres located in Amite County $600

Many of these amounts were allocations to the period of the marriage of benefits that were earned at Plantation. Mrs. Prescott was awarded 55% of the marital estate, or $75,625. Mrs. Prescott argues that she is entitled to the entirety of Mr. Prescott's severance package and a greater share of his retirement account. On appeal there is no argument presented as to the thrift plan.

A. The severance package

¶8. The deposition of Mary Guerin, senior benefits analyst for Plantation, was introduced at trial. She explained that in calculating a severance benefit, employees were given two weeks credit for each year of service up to a maximum credit of 65 weeks. Because Mr. Prescott had been employed for 38 years, he received the 65 weeks credit. His applicable weekly wage was calculated to be $1,038.40. Multiplying that figure by 65 gives the value of the severance package, $67,496.

¶9. When asked to calculate the value of the package for a seven year period, which was the length of the marriage, the formula remained the same. The weekly wage was multiplied by 14 rather than 65, with the result being $14,537.60. The chancellor determined that this amount was to be included in the marital estate, of which Mrs. Prescott received 55%.

ΒΆ10. On appeal, Mrs. Prescott argues that the entire severance package should be considered part of the marital estate since it did not come into existence until 1995. The date of the creation of the entitlement is not disputed, but the severance package itself is based on an employee's total years of service with the company. The package is proportional, as the longer an employee's time with the company, the greater the value of severance. Mr. Prescott had been employed by the company for nearly 32 years when the parties married. Therefore, the vast majority of the benefits arising under the severance package are allocable to the period ...


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