COURT FROM WHICH APPEALED: ATTALA COUNTY CHANCERY COURT. DATE OF JUDGMENT: 03/25/2013. TRIAL JUDGE: HON. EDWARD C. FENWICK. TRIAL COURT DISPOSITION: JUDGMENT OF DIVORCE ENTERED; PROPERTY DIVIDED.
FOR APPELLANT: SABRINA D. HOWELL A.E. (RUSTY) HARLOW JR.
JAMES WILLARD WYLIE, APPELLEE, Pro se.
EN BANC. LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
¶1. Kimberly Wylie appeals the judgment entered in the dissolution of her marriage from James Wylie. The chancellor divided the marital property and then awarded Kimberly rehabilitative alimony for three years, together with $2,500 in attorney's fees. Kimberly argues that the chancellor was in error to not award her periodic alimony, instead of three years of rehabilitative alimony, and to not award a higher sum for attorney's fees.
¶2. Kimberly and James were married on November 26, 1987. They separated on April 24, 2012. Two children were born of the marriage, both of whom are emancipated.
¶3. Kimberly filed a complaint for divorce on the grounds of irreconcilable differences, habitual cruel and inhuman treatment, and uncondoned adultery. Kimberly asked the court for temporary and permanent alimony, temporary and permanent use of the marital residence, and an equitable division of the marital property. James answered the complaint and filed a counterclaim. His alleged that he was entitled to a divorce on the grounds of habitual cruel and inhuman treatment and irreconcilable differences. James also asked for an equitable division of the marital property and attorney's fees.
¶4. At trial, James admitted that he was openly living with another woman with whom he had fathered a child. James testified that he quit school in the ninth grade and began working as a carpenter. He later worked in logging and as a part-time mechanic on weekends. In May 2008, James began working as a pipeliner in the oil business. James testified that his gross income was $86,000 in 2008, $96,000 in 2009, $89,000 in 2010, $95,000 in 2011, and $129,935 in 2012. However, James said that at the time of trial he was between jobs, and he was receiving $2,179 per month in unemployment benefits.
¶5. Kimberly testified that she last worked in the pharmacy at Walmart in 2008. She earned between $500 and $600 per month in that job. Kimberly admitted that she had not attempted to find employment since she left Walmart due to health reasons. Kimberly stated that she suffered from diabetes, high blood pressure and sleep apnea, as well as another condition that has never been diagnosed. Kimberly applied for Social Security disability benefits, but her claim was denied.
¶6. The chancellor entered a judgment of divorce that granted Kimberly a divorce on the ground of adultery. The chancellor divided the marital property, which is not an issue in this appeal, and awarded Kimberly rehabilitative alimony of $700 per month for three years. The chancellor also awarded Kimberly $2,500 in attorney's fees.
STANDARD OF REVIEW
¶7. Our scope of review in domestic-relations matters is strictly limited. Curry v. Frazier, 119 So.3d 362, 365 (¶ 8) (Miss.Ct.App. 2013). " A chancellor's findings will not be disturbed when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard." Id.
¶8. The chancellor followed the proper procedure for the equitable division of assets and the award of alimony. See, e.g., Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss. 1994). Kimberly was awarded equity
in the marital home of $35,000, a 2005 Pontiac automobile with equity of $6,325, and certain household furnishings valued at less than $8,000. James was awarded his truck with a debt of $20,000 and equity of $1,277. He was also awarded his tools, guns, dining-room table, and two rings. James was ordered to pay the mortgage on the marital home, approximately $344 per month.
¶9. The chancellor determined that alimony was appropriate. The chancellor concluded that " under the facts of this case because the marital assets are not large enough to offset the disparity in the two (2) parties' incomes, the court must consider alimony . . . ." The chancellor then considered the Armstrong factors and determined that James should pay Kimberley $700 per month in rehabilitative alimony for three years.
¶10. Kimberly argues that it was error for the chancellor to award her rehabilitative alimony of $700 for three years instead of periodic alimony. Kimberly claims that based on her limited work history and earning capacity, as opposed to James's strong work history and earning capacity, equity requires more than a time-limited award of rehabilitative alimony that is unjust, oppressive, and so grossly inadequate. Kimberly argues that $700 per month for three years will leave her unable to meet her estimated living expenses of $2,032 each month.
¶11. In Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993), the Mississippi Supreme Court set forth the factors to be used to determine whether a spouse is entitled to alimony. These factors include:
1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or ...