COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT. DATE OF JUDGMENT: 02/21/2013. TRIAL JUDGE: HON. CARTER O. BISE. TRIAL COURT DISPOSITION: GRANTED WIFE'S REQUEST FOR A DIVORCE BASED ON UNCONDONED ADULTERY, DISTRIBUTED MARITAL PROPERTY, AND GRANTED WIFE LUMP-SUM ALIMONY OF $75,000.
FOR APPELLANT: JOHN ROBERT WHITE JR., PAMELA GUREN BACH.
FOR APPELLEE: DEAN HOLLEMAN.
BEFORE GRIFFIS, P. J., ROBERTS AND CARLTON, JJ. LEE, C.J., IRVING AND GRIFFIS, P. JJ., BARNES, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., NOT PARTICIPATING.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
¶1. On February 22, 2013, the Harrison County Chancery Court granted Susan Ilsley a divorce from Timothy Ilsley on the ground of adultery. The chancery court also distributed the marital estate and awarded Susan lump-sum alimony of $75,000. Susan filed the present appeal, and she asks this Court to review the chancery court's valuation of certain stocks, the valuation of her earning capacity, the amount and type of alimony awarded, and the denial of her request for attorney's fees. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Susan and Timothy were married on April 8, 1978, and over their thirty-four-year marriage, they had two children. Both children are over the age of majority. Susan and Timothy's marital relationship deteriorated, and both parties agree that they have had no sexual relations since 2005. Timothy moved to Missouri in April 2006 for a job transfer with his employer, Isle of Capri Casinos, and he purchased a home; Susan remained in the marital home in Gulfport, Mississippi. She filed for divorce on October 19, 2011, on the grounds of habitual cruel and inhuman treatment, desertion, or irreconcilable differences. On the same day, she filed a motion for temporary relief. Susan filed an amended complaint for divorce on January 25, 2012, to add adultery as a ground for divorce. Timothy filed his answer and counter-complaint for an irreconcilable-differences divorce on March 15, 2012.
¶3. On May 9, 2012, the chancery court entered a temporary order granting each party exclusive use and possession of their respective homes, the contents of their homes, and their cars. Additionally, Timothy was ordered to continue to provide Susan with health insurance, to cover her out-of-pocket health expenses, and to pay her $6,000 per month in spousal support. Susan and Timothy were also ordered to mediate the case, with Timothy to pay the costs of mediation. After mediation was unsuccessful, the chancery court held a trial on August 20-21, 2012. At trial, only Susan and Timothy testified, with much testimony centering around Timothy's ING account that will be addressed in greater length later in this opinion.
¶4. Following the trial, the chancery court issued a final judgment of divorce on February 14, 2013; however, a corrected final judgment of divorce was entered on February 22, 2013, after the initial judgment failed to grant the parties a divorce. Ultimately, Susan was granted a divorce from Timothy on the ground of adultery. The judgment of divorce also classified and divided the parties' assets and determined whether Susan was entitled to alimony and/or attorney's fees.
¶5. The chancery court determined that the line of demarcation for the classification of marital or separate property was May 9, 2012, the date of the temporary order. Neither party had a separate estate, as all property accumulated was deemed to be marital property and subject to equitable distribution, including stocks held in an ING account that had not yet vested, but were given based on Timothy's past performance while employed at Isle of Capri. Their total marital estate was valued at $1,164,676. After performing a
Ferguson -factor analysis for the distribution of the marital property, the chancery court awarded Susan the home in Mississippi, including the contents of the home, the equity, and the remaining debt; Timothy was awarded the same regarding the Missouri home. They were also awarded their respective vehicles and the equity therein. The chancery court divided the parties' savings and retirement accounts and awarded each party half of each account, except for the stocks held in the ING account. In regard to the stocks in the ING account, the chancery court stated:
[T]he only asset to be resolved [is] the disputed ING account, worth $193,497.00. Tim[othy] testif[ied] that he must retain 40% of the shares in the ING account. Further, he cannot dispose of the unvested and disputed 9, 511 shares. That they will ultimately vest is also unknown. The [chancery c]ourt finds that the value of those vested shares is $143,089. [Susan and Timothy] will be entitled to each one-half of those shares. . . . The [chancery c]ourt further finds that [Timothy] will retain any and all interest in and to the 9, 511 shares.
The chancery court directed that Timothy also receive $8,000 in debt: $4,000 from an SBA loan and $4,000 from a student loan on their son's behalf. After equitable distribution, the chancery court found that Susan's estate was valued at $631,341. 50, and Timothy's estate was valued at $482,826. 50.
¶6. The chancery court next considered the alimony factors outlined in Armstrong v. Armstrong, 618 So.2d 1278 (Miss. 1993). The chancery court determined that Susan, at sixty years old, was capable of receiving a $50,000 salary even though she had been unemployed for the last sixteen months and that she will be eligible to receive approximately $866 per month in Social Security payments in January 2015. Fifty-eight-year-old Timothy had a gross income of $21,750 per month, with a net income of $12,456 per month. Neither party has significant health issues, but Susan would have to obtain health insurance at her own expense of approximately $500 per month. The chancery court held: " [C]onsidering the earning capacity ...