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Mamiaro v. Mamiaro

Court of Appeals of Mississippi

July 21, 2015

ARTHUR EDWARD MAMIARO, JR., APPELLANT
v.
MARKETA (BLAZKOVA) MAMIARO, APPELLEE

DATE OF JUDGMENT: 11/08/2013.

COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT. TRIAL JUDGE: HON. PERCY L. LYNCHARD JR. TRIAL COURT DISPOSITION: GRANTED DIVORCE, DIVIDED MARITAL PROPERTY, AND AWARDED ALIMONYTO THE APPELLEE.

FOR APPELLANT: M. W. ZUMMACH, GREGORY C. MORTON.

FOR APPELLEE: A. E. (RUSTY) HARLOW JR., KATHI CRESTMAN WILSON.

GRIFFIS, P.J., BARNES, ISHEE, MAXWELL AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND IRVING, P.J. WILSON, J., NOT PARTICIPATING.

OPINION

Page 52

EN BANC.

FAIR, J.

[¶1] After almost eleven years of marriage, Arthur and Marketa Mamiaro separated on April 10, 2011. Four months later, Arthur filed for divorce in DeSoto County Chancery Court. After a day of trial on July 23, 2013, the chancellor distributed the couple's marital property in equal portions and awarded Marketa permanent alimony. On appeal, Arthur argues the following: (1) the chancellor erred in his determination of the marital estate by failing to classify as marital property a $1,000 savings account maintained by Marketa; and (2) the chancellor erred in awarding Marketa permanent alimony. Finding the chancellor acted within his discretion, we affirm.

FACTS

[¶2] The chancellor granted the parties an irreconcilable differences divorce and provided for joint legal and physical custody of their two children, ordering Arthur to pay Marketa $767 a month in child support.

[¶3] The chancellor then determined that the total value of the couple's marital estate amounted to $150,639. The chancellor did not classify Marketa's separate savings account maintained by Marketa as

Page 53

marital property, since Arthur and Marketa had maintained separate accounts since the divorce filing.

[¶4] The chancellor's division of the marital property between the parties was essentially even. Turning to the issue of alimony, he found that Arthur worked for Jabil Circuit Inc. in a management capacity and, after allowable expenses, earned a monthly net income of $6,421.62. The chancellor also found that Marketa had spent ten years as a stay-at-home mother but had worked for the past two years as a personal trainer at the DeSoto Athletic Club. After allowable expenses, the chancellor calculated Marketa's earned monthly net income to be $2,585. He then found that, due to the difference in the parties' monthly incomes, the distribution left Marketa with a deficit in income of close to $4,000 a month. The chancellor then turned to an analysis of the Armstrong [1] factors to determine whether he should award Marketa alimony. Considering the Armstrong factors under the totality of the circumstances, the chancellor found that a need for alimony existed, and ordered Arthur to pay Marketa $725 a month in permanent alimony. The chancellor also ordered the parties to pay their own attorney's fees since they possessed the assets to do so and had failed to show an inability to pay.

STANDARD OF REVIEW

[¶5] " When [an appellate court] reviews a chancellor's decision in a case involving divorce and all related issues, [the court's] scope of review is limited by the substantial evidence/manifest error rule." Yelverton v. Yelverton, 961 So.2d 19, 24 (¶ 6) (Miss. 2007). Therefore, this Court will not disturb the chancellor's findings " unless the chancellor was manifestly wrong [or] clearly erroneous[,] or a clearly erroneous standard was applied." Id. (citation omitted).

DISCUSSION

1. Marketa's Savings Account

[¶6] To equitably divide property, the chancellor must: (1) classify the parties' assets as marital or separate, (2) value those assets, and (3) equitably divide the marital assets. Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss. 1994); Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994). Here, Arthur argues that the chancellor erred his determination of the property by excluding funds held in Marketa's savings account.

[¶7] In Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss. 1994), our supreme court stated that all marital assets are subject to possible equitable distribution in accordance with the factors provided in Ferguson. Marital property is " any and all property acquired or accumulated during the marriage . . . and [is] subject to an equitable distribution by the chancellor." Hemsley, 639 So.2d at 915. Further, such marital " [a]ssets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties' separate estates prior to the marriage or outside of the marriage." Id. at 914. We review a chancellor's equitable division under the familiar manifest-error standard of review. Vaughn v. Vaughn, 56 So.3d 1283, 1288 (¶ 17) (Miss. Ct.App. 2011).

[¶8] Arthur argues that the chancellor erred in his classification and division of marital property. He claims that, since the chancellor classified his investment-account funds he withdrew during the parties' separation as marital property, the

Page 54

chancellor should have likewise considered Marketa's savings account as marital property.

[¶9] Arthur testified at the hearing that, prior to filing for divorce, he withdrew about $30,000 from an investment account. According to his testimony, Arthur used $20,000 of the withdrawn funds as a retainer for his attorney, he used some of the money to hire a private investigator, and he used the remainder of the money to take his children on several trips. The chancellor found that Arthur withdrew $38,400 from the marital assets and that Marketa would have otherwise been entitled to fifty percent of the funds. The chancellor therefore ordered Arthur to reimburse Marketa for half of the withdrawn funds.

[¶10] Arthur also testified that he opened a savings account around the time he filed for divorce. On the day of the hearing, the account balance was $224.52. He also testified that he opened a checking account after filing for divorce. The checking ...


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