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Baswell v. Baswell

Court of Appeals of Mississippi

January 31, 2017

BOBBY FRANKLIN BASWELL APPELLANT
v.
ELIZABETH BASWELL APPELLEE

          DATE OF JUDGMENT: 10/01/2015

         HON. JOHN ANDREW HATCHER UNION COUNTY CHANCERY COURT

          ATTORNEY FOR APPELLANT: JOHN PATRICK ROBBINS

          ATTORNEY FOR APPELLEE: CHRISTOPHER ALAN CHILDERS

         En Banc.

          CARLTON, J.

         ¶1. Bobby Baswell appeals the Union County Chancery Court's judgment awarding Elizabeth Baswell periodic alimony and attorney's fees. On appeal, Bobby raises the following issues: (1) whether the chancellor erred by awarding Elizabeth periodic alimony; and (2) whether the chancellor erred by awarding Elizabeth attorney's fees. Finding no error, we affirm.

         FACTS

         ¶2. Bobby and Elizabeth married on October 4, 1985. In March 2013, they separated. On February 23, 2015, Bobby filed a complaint for divorce. In an order filed on October 2, 2015, the chancellor granted the parties an irreconcilable-differences divorce. The chancellor acknowledged that, on the day of trial, the parties stipulated the only remaining issues between them related to alimony and attorney's fees.[1]

         ¶3. The chancellor found that the parties' division of their assets and debts left Elizabeth with a deficit. As a result, the chancellor analyzed the Armstrong[2] factors to determine whether to award Elizabeth periodic alimony. The chancellor first determined that Bobby's net monthly income totaled $2, 544.79 and that his reasonable monthly expenses totaled $1, 477.50, which left Bobby with a monthly surplus of $1, 067.29. The chancellor next determined that Elizabeth's net monthly income totaled $907 and that her reasonable monthly expenses totaled $886.59, which left her with a monthly surplus of $20.41. The chancellor therefore found that consideration of the parties' incomes and expenses favored Elizabeth. In addition, based on his calculations of the parties' incomes and expenses, the chancellor concluded that the needs of each party was a factor that also weighed in Elizabeth's favor. ¶4. While Bobby was healthy and possessed a good earning capacity, the chancellor found that Elizabeth had received Social Security disability pay for a number of years and that her disabilities prohibited her from working. As a result, the chancellor concluded that this factor also favored Elizabeth. In considering the parties' obligations and assets, the chancellor noted that Bobby's Rule 8.05[3] financial statement reflected a monthly automobile payment of $300 but no actual automobile. The chancellor also noted the parties' agreement that Elizabeth would keep the marital home and retain responsibility for the related mortgage payments. Based on these considerations, the chancellor concluded that this factor favored Elizabeth.

         ¶5. The chancellor next found that the parties had been married twenty-seven years at the time of their separation and almost thirty years at the time of their divorce. As a result, the chancellor determined that the length of the parties' marriage favored Elizabeth. Although the parties had three children during their marriage, the children were adults. Thus, even though Bobby's fiancée and her grandchildren lived with Bobby, and even though the parties' grown daughter and her husband lived with Elizabeth, the chancellor concluded that the parties had no legal obligation to pay for anyone other than themselves. As a result, the chancellor considered this factor to be neutral. The chancellor likewise considered the parties' ages-Bobby was fifty years old, and Elizabeth was forty-seven years old-to be a neutral factor.

         ¶6. The chancellor next found that the parties had a marginal standard of living prior to their final separation. Following their final separation, Bobby had been forced to file for bankruptcy, and the chancellor determined that Elizabeth's lifestyle had diminished considerably. As a result, the chancellor found that each party's standard of living had deteriorated. However, after concluding that Elizabeth's lifestyle had deteriorated the most, the chancellor determined that this factor weighed in her favor.

         ¶7. The chancellor also considered any tax consequences resulting from a spousal-support order, but he noted that no evidence had been submitted on the issue. As a result, the chancellor concluded that this factor was neutral. In addition, the chancellor found no evidence that either party had wastefully dissipated assets, and he therefore determined this factor to be neutral.

         ¶8. In discussing the parties' fault or misconduct and any other just and equitable factors, the chancellor concluded that these factors clearly favored Elizabeth. The chancellor stated that Bobby, "without warning or notice, vacated the marital home, moved in with the woman he calls his fiancé[e] . . . [and] her three (3) grandchildren, and continues to live with her in a state of unlawful cohabitation." The chancellor further stated that Bobby "left the marital relationship without justifiable cause or reason under the law at a time when [Elizabeth] was disabled, he knew her disability, and her disability has since worsened to . . . where she [cannot] even earn the little bit of income she was making while the parties were together . . . ." In addition, the ...


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