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Proctor v. Proctor

Court of Appeals of Mississippi

January 28, 2014

DONNA LEE (MAYES) PROCTOR, APPELLANT
v.
DOUGLAS ROGER PROCTOR, APPELLEE

Page 616

COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT. DATE OF JUDGMENT: 03/13/2012. TRIAL JUDGE: HON. VICKI B. COBB. TRIAL COURT WIFE GRANTED DIVORCE BASED ON UNCONDONED ADULTERY; WIFE AWARDED $1,500 PER MONTH IN PERMANENT-PERIODIC ALIMONY FOR EIGHT YEARS, THEN REDUCED TO $500 PER MONTH IN PERMANENT-PERIODIC ALIMONY; HUSBAND ORDERED TO PAY COBRA MEDICAL INSURANCE FOR WIFE; MARITAL ESTATE DIVIDED AND DISTRIBUTED.

DISPOSITION: AFFIRMED.

FOR APPELLANT: H.R. GARNER, JERRY WESLEY HISAW.

FOR APPELLEE: MARY LYNN DAMARE'.

BEFORE IRVING, P.J., BARNES, ROBERTS AND JAMES, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND IN THE RESULT.

OPINION

Page 617

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

BARNES, J.

¶1. In this divorce action, Donna Proctor appeals the judgment of the DeSoto County Chancery Court, raising three issues. Donna claims the chancellor erred in the division of the marital property because she failed to subtract $35,000 from Douglas (Doug) Proctor's share of his 401(k)[1] retirement account, and instead deducted it from the balance's total. (The $35,000 had been previously deducted from his account for delinquent medical and attorney's fees he had not paid Donna.) She also claims the chancellor failed to address a pension account in the property distribution. Additionally, Donna argues that her alimony award is inadequate, and she should have been awarded lump-sum alimony. Finally, Donna contends the chancellor erred in reducing the amount of her attorney's fees and expenses. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. Doug and Donna married in 1979 and have two grown children. Before they separated, the couple lived in Hernando, Mississippi. Doug has worked for Delta Airlines (Delta) since 1986. Since approximately 2005, Doug has been living and working in Singapore. At the time of trial, he worked as an airline quality-control manager. His W-2 from 2009 showed gross wages of $148,000, but in 2011 his wages dropped to $87,972. He works twenty days straight, and then has sixteen days off. In Singapore, he resides in a hotel and is paid per diem for his days of work there. On his days off, he is free to leave Singapore, but he must pay for his own living expenses. Donna, who is approximately fifty years old, suffers from severe depression and anxiety, for which she has been hospitalized and is on medication. She has been a homemaker for most of the marriage, and at the time of separation, had no other form of support besides Doug's income.

¶3. The parties separated in July 2007, and Donna filed for divorce. The chancery court ordered Donna to have exclusive use of the marital home, and Doug to pay the mortgage. Doug was to continue to provide health insurance for Donna, and pay her temporary support of $2,250 per month. During the divorce trial in January 2009, Donna moved to amend the pleadings and to add a complaint for separate maintenance. The chancery court granted the amendment and awarded Donna separate maintenance, requiring Doug to pay Donna $2,000 per month,[2] pay the mortgage of $937 per month, provide Donna's health insurance, pay her medical expenses not covered by insurance, and pay her attorney $10,000 in partial attorney's fees. Each party also received a partial distribution of $37,000 in assets from a joint marital savings account. Doug filed a petition to terminate the separate maintenance,

Page 618

which was denied by the chancery court on August 3, 2010.

¶4. In September 2010, Doug moved to Tennessee and filed for divorce there. In October 2010, Donna filed an amended complaint for divorce based on several grounds in the DeSoto County Chancery Court.

¶5. In April 2011, the court entered an order of contempt against Doug in the separate-maintenance action because he had not paid the attorney's fees and medical bills as ordered on August 3, 2010; the contempt order required him to withdraw $35,000 from his Delta 401(k) account to pay these delinquent expenses.

¶6. In August 2011, a trial was held on the divorce action.[3] The chancellor granted Donna a divorce on the ground of adultery and ordered Doug to pay $1,500 per month in permanent-periodic alimony for eight years, when it would then be reduced to $500 per month. Doug was also ordered to provide health insurance for Donna under his employer's COBRA plan for the maximum time allowed. Donna was to be responsible for her medical bills not covered by insurance.

¶7. The court also divided the marital property. Essentially, the two main marital assets were the marital home and Doug's 401(k) account. The marital home was appraised at $240,000, with a mortgage balance of $104,711.44 and a monthly mortgage payment of $923.72. The marital home was ordered to be sold, with Doug to pay the mortgage until then. If the house did not sell within a year, the court would readdress the mortgage payments at that time. Doug's 401(k) account had a balance of $215,228.02 in April 2011, before the court ordered the $35,000 to be withdrawn by Doug to pay for expenses he owed. Chancellor Cobb specifically ordered the $35,000 to " be taken off of the top" of this amount, and the remaining balance of $180,228.02 to be divided equally between the parties.

¶8. A separate hearing was held on attorney's fees, and a final judgment of divorce was entered on May 1, 2012. That same day, the court also denied Donna's motion to reconsider. Donna timely appealed.

STANDARD OF REVIEW

¶9. The standard of review in domestic-relations cases is limited. The appellate court " will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. . . . For questions of law, [the] standard of review is de novo." In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (P8) (Miss. 2010) (quoting Duncan v. Duncan, 774 So.2d 418, 419 (P4) (Miss. 2000)).

ANALYSIS

I. Property Division

¶10. Donna argues that in dividing the 401(k) account, the chancellor erred by not subtracting $35,000 from Doug's share and adding it to her share, instead of taking it " off of the top." Also, Donna claims the chancellor failed to make any findings ...


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