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Thornton v. Thornton

Court of Appeals of Mississippi

August 14, 2018

BRENDA HARNESS THORNTON APPELLANT
v.
TIMOTHY TERRELL THORNTON SR. APPELLEE

          DATE OF JUDGMENT: 11/21/2016

          PIKE COUNTY CHANCERY COURT HON. WAYNE SMITH JUDGE.

          ATTORNEY FOR APPELLANT: AMELIA SHA'METTA CARTER

          ATTORNEY FOR APPELLEE: EDWIN L. BEAN JR.

          BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.

          CARLTON, J.

         ¶1. On August 26, 2016, Tim and Brenda Thornton obtained a divorce in the Pike County Chancery Court. The chancellor entered an order distributing the marital property and awarding alimony to Brenda. Brenda appeals the chancellor's judgment and raises seven assignments of error: (1) whether the chancellor analyzed the factors set forth in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994), when he distributed the marital property; (2) whether the chancellor erred in his distribution of Tim's Sanderson Farms retirement account; (3) whether the chancellor erred in not awarding Brenda lump sum alimony; (4) whether Brenda should be charged with paying the outstanding loan on a 2009 Dodge Ram; (5) whether the chancellor should have classified and equitably divided the $90, 000 insurance policy; (6) whether the chancellor erred in crediting Tim with $1, 600 in child support payments; and (7) whether the nature of the entire award by the chancellor can be considered equitable. Finding error, we reverse and remand the chancellor's judgment.

         FACTS

         ¶2. Tim and Brenda Thornton were married on February 26, 2000. They separated on June 9, 2014. Their union resulted in two children. Tim works as a supervisor at Sanderson Farms, and did so at the time of the chancellor's decision. Brenda is disabled and unemployed.

         ¶3. Brenda filed a motion for divorce on August 19, 2015, on the grounds of adultery or, in the alternative, habitual cruel and inhuman treatment, desertion, or irreconcilable differences. The trial court entered a temporary order on November 2, 2015, ordering Tim to pay child support in the amount of seven hundred dollars.

         ¶4. The matter was heard on August 3, 2016. While in chancery court, Tim's attorney disclosed to the court that Tim had committed adultery and was willing to admit those allegations to the court. A judgment was entered by the chancellor on August 26, 2016, granting Brenda a divorce on the ground of adultery. The chancellor also determined that Tim failed to pay the previously ordered child support on time and found him in contempt. Furthermore, the record reflects that the chancellor altered the child support payments to six hundred and seventy-eight dollars per month until the children reach the age of twenty-one or are emancipated.

         ¶5. The record reflects a lack of appraisal of the marital property by either party. During the hearing on August 3, 2016, Tim agreed to Brenda's estimation of value for the marital home at $112, 000.[1] The tax appraisal proposed by the new attorney of record for Brenda set the home's value at $56, 699. The chancellor determined the value of the marital home to be $84, 349.50, leaving the equity value of the home at $32, 633.80.

         ¶6. The record indicates the chancellor listed and considered the marital property - both real and personal - in his determination of an equitable distribution. The chancellor ordered that $7, 123.90 be transferred from Tim's retirement account to Brenda. Concerning the vehicles purchased during the marriage, the chancellor found that a 2000 Dodge Durango and a 2015 Chrysler 2000 would be the sole property of Tim, while Brenda would retain the 2009 Dodge Ram for her own personal property.

         ¶7. Concerning the parties' personal property, the chancellor divided it as follows:

(I) Timothy Thornton Sr.

A. Samsung Refrigerator

$ 1, 000.00

B. Bedroom/Living Room Set (purchased post-separation)

$ 1, 200.00

C. Collectibles

$ 6, 500.00

D. Airbrush Equipment

$ 1, 500.00

E. Vizio Home System

$ 400.00

F. Craftsman Cutter and Weed Eater

$ 450.00

G. DVD Collection

$ 2, 000.00

H. Car Stereo and Amp

$ 1, 000.00

I. 2000 Dodge Durango

$ 950.00

TOTAL

$ 15, 000.00

(II) Brenda Harness Thornton

A. Whirlpool Stove

$ 200.00

B. 55" Samsung TV

$ 400.00

C. Stainless Steel Refrigerator

$ 300.00

D. 5 Bedroom Sets

$ 3, 000.00

E. Home Entertainment

$ 400.00

F. Living Room Suite

$ 1, 500.00

G. 4 TVs

$ 1, 200.00

H. 2009 Dodge Truck (net value)

$ 14, 800.00

TOTAL

$ 21, 800.00

         ¶8. While the record does reflect the chancellor's intention in distributing the marital property, the chancellor does not mention the factors set forth in Ferguson, 639 So.2d at 928. Furthermore, the record is silent on the chancellor's reasoning behind the distribution except for one line of the judgment entered on August 26, 2016: "[T]he [c]ourt finds that based upon the testimony and the estimated values of personal and real property that the division is equitable. The [c]ourt also took into consideration the adulterous affair by [Tim]."

         ¶9. Regardless of the omission of the Ferguson factors, the chancellor specifically outlined the Hemsley factors in the question of alimony. Hemsley v. Hemsley, 639 So.2d at 909, 913 (Miss. 1994). The record reflects a thorough analysis of the factors under Hemsley, supporting the chancellor's decision to find that Brenda was entitled to permanent alimony in the amount of $200 per month.

         ¶10. On September 6, 2016, Brenda filed a timely motion to reconsider the judgment or to alter or amend the judgment pursuant to Mississippi Rules of Civil Procedure 52(b) and 59(e), respectively.[2] On October 31, 2016, Brenda filed a Rule 60(b) ...


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