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Ward v. Ward

Court of Appeals of Mississippi

February 4, 2014

Carol Lynn WARD, Appellant/Cross-Appellee
v.
Wilmer Keith WARD, Appellee/Cross-Appellant.

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[Copyrighted Material Omitted]

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Thomas Wright Teel, Biloxi, attorney for appellant.

Dean Holleman, Haley Lynn Zelenka, attorneys for appellee.

Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.

GRIFFIS, P.J.

¶ 1. Lynn and Keith Ward agreed to a divorce on the ground of irreconcilable differences. They submitted to the chancellor the issues of spousal support, child support, division of assets, and attorney's fees. Lynn now appeals the chancellor's awards, and Keith cross-appeals. We find no error and affirm.

FACTS

¶ 2. Lynn and Keith were married on September 30, 1995, in Harrison County, Mississippi. At the time of the marriage, they lived in Long Beach, Mississippi. They moved to Anchorage, Alaska, in 1996, and then to Gulfport, Mississippi, in July 1999. During their marriage, Keith was employed with Federal Express as a pilot. He had served with the United States Air Force from April 1988 to June 2008. Lynn was a homemaker. In 1999, their first child, Logan, was born, and in 2001, their second child, Jackson, was born. In 2009, Jackson was diagnosed with type 1 diabetes.

¶ 3. In the spring of 2010, Keith filed for divorce. A trial was held in September 2010, and the chancellor issued his final judgment in January 2012. Keith filed a motion for reconsideration, and the chancellor issued a new judgment in August 2012. Both judgments are discussed in detail below.

A. January 2012 Judgment

¶ 4. The chancellor addressed property located in Kona, Hawaii. The chancellor

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found that the property was titled only in Keith's name, although he had purchased it in 2004 with a friend. Keith stated at trial that he had paid $250,000 for the property and sold it for $145,000. His Rule 8.05 financial statement,[1] filed in 2010, showed the property to have a mortgage of $192,000. Keith testified that Lynn knew of the Kona property, but Lynn denied any knowledge of this property. Keith admitted that Lynn found out about the property after she overheard him discuss the property while on the phone. The property also included a tax loss of $47,000. The chancellor found that the deficient balance on this property was Keith's sole responsibility. The chancellor also found that because the debt on this property solely belonged to Keith, it was only fair that he should be able to claim the tax benefit of the loss exclusively.

¶ 5. The chancellor also addressed FNS LLC, a failed pizza restaurant that Keith had opened in Germantown, Tennessee, in 2006. Keith had borrowed $250,000, with a business partner, to finance this operation. He also borrowed another $150,000 from his mother, Lynn Bates (" Bates" ). Lynn testified that she had no knowledge of these transactions. Keith admitted that Lynn did not know about FNS at the time of its formation. But Lynn admitted that she attended FNS's grand opening. Keith argued that because Lynn attended the grand opening, she should be liable for one-half of FNS's deficiency. Lynn claimed that FNS had a loss value for tax purposes of $384,894, which Keith was able to claim as an annual tax loss. On his statement of liabilities, Keith showed a debt of $160,000 to Bates. The chancellor found that FNS debt belonged exclusively to Keith, as did the claim of its tax loss.

¶ 6. The chancellor found that Keith had a 401(k) with Vanguard valued at $350,000, a Fedex Corporation employee pension plan valued at $245,507.73, and a pilot's pension plan valued at $157,591.21. Because these were accumulated after the marriage, the chancellor executed a qualified domestic-relations order on each fund, which conveyed to Lynn a one-half interest in each. Lynn was awarded one-half of 15/20ths of Keith's military-retirement benefits.

¶ 7. Finally, the chancellor found both parties at fault for the dissolution of the marriage, and awarded Lynn alimony of $4,000 a month.

B. August 2012 Judgment

¶ 8. Based on Keith's motion for reconsideration, the chancellor modified his original judgment. In this judgment, the chancellor found Lynn partially responsible for the debts incurred in the Kona property and the FNS investment. Because Lynn had little income at that time, the chancellor required that Lynn forfeit any interest in Keith's 401(k) and deferred-compensation plan due to her share in the investments debt. The chancellor found that Keith did not commit waste by investing in the Kona property and FNS, and that to force him to bear the responsibility solely would not be fair. Finally, the chancellor found Lynn responsible for the dissolution of the marriage, citing her alcohol abuse, and lessened her alimony award to $2,500.

¶ 9. Lynn now argues on appeal that the chancellor erred in its Ferguson [2] and Armstrong [3] analyses. Specifically, Lynn asserts that the chancellor did not correctly

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consider Keith's waste of marital assets, and the chancellor incorrectly lowered Lynn's periodic-alimony award. Keith cross-appeals, and argues that the chancellor erred in his ...


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