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Pettersen v. Pettersen

Court of Appeals of Mississippi

October 23, 2018

FREDERICK A. PETTERSEN APPELLANT
v.
AUDREY S. PETTERSEN APPELLEE

          DATE OF JUDGMENT: 10/05/2016

          JACKSON COUNTY CHANCERY COURT HON. MICHAEL L. FONDREN JUDGE

          ATTORNEY FOR APPELLANT: G. CHARLES BORDIS IV

          ATTORNEY FOR APPELLEE: ROSS JONATHAN FRANCO

          BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.

          BARNES, J.

         ¶1. The Jackson County Chancery Court granted Frederick and Audrey Pettersen an irreconcilable-differences divorce on March 10, 2016, and the parties agreed to let the court resolve any remaining issues concerning child custody and the equitable distribution of marital assets. After trial, the court entered its final judgment dividing the marital assets on October 5, 2016. Frederick appeals the court's finding, claiming the court erred in (1) failing to award him child support; (2) determining the date of demarcation; (3) its determination of the equitable division of the couples' retirement accounts; and (4) its classification of certain real property and other miscellaneous assets. Finding no abuse of discretion in the chancery court's findings, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Frederick and Audrey were married in Richmond, California, on January 23, 1990. At the time of the marriage, Frederick was fifty-two years old; Audrey was thirty-four. Both were chemical engineers employed by Chevron. Frederick retired in 1992, and the couple embarked on a seven-year sailing trip around the world. Three children were born of the marriage: (1) Sara was born in June 1990; (2) Luke was born April 1993; and (3) Ryan was born November 1995. In 2000, the couple bought a marital residence in Gautier, Mississippi. Frederick already owned several rental properties in Mobile, Alabama prior to the marriage.

         ¶3. In March 2009, Audrey left the marital residence, moving out of state with another man. But in December 2010, she returned to Gautier and moved into a rental home she and Frederick owned located at 5101 Deerfield Avenue. Although Audrey never moved back to the marital residence, the parties made attempts at reconciliation throughout their separation, with the last attempt being in July 2014. Also during this period, Audrey returned to college to obtain a degree in education, and Frederick supported her, putting funds into a joint credit-card account for her use.

         ¶4. Frederick filed for divorce on September 3, 2014, seeking a divorce on the grounds of habitual cruel and inhuman treatment and desertion. Audrey filed a counterclaim for divorce. On December 12, 2014, a temporary hearing was held, and a Family Master entered a fill-in-the-blank style temporary order, which simply denied Audrey's request for attorney's fees. It did not address any other issues. On February 13, 2015, the chancery court entered a temporary order stating that the parties were to have joint legal and physical custody of their minor child, Ryan, and visitation was to be equally divided between the parties. Frederick was ordered to pay Audrey a one-time payment of $2, 000, and then $2, 500 per month until further order by the court.[1]

         ¶5. After a day of trial testimony, the parties entered into a written consent to divorce based on irreconcilable differences on March 10, 2016. They agreed that the issue to be decided by the chancery court was the equitable division of marital assets and liabilities. However, an amended consent to divorce on irreconcilable differences was later filed, adding the issues of alimony, attorney's fees, child support, and college expenses, as well as child custody.

         ¶6. On October 5, 2016, the chancery court entered its opinion and final judgment. Because Ryan was almost twenty-one years old, the court did not order child support. Employing the applicable factors from Ferguson v. Ferguson, 639 So.2d 928 (Miss. 1994), the court analyzed and awarded marital assets as follows:[2]

(1) Frederick was awarded the marital residence at 2025 Glen Cove (valued at $162, 400) and ordered to pay Audrey $53, 500 in equity. Audrey was awarded the property at 5101 Deerfield (valued at $55, 400).[3]
(2) Rental properties:
i. 675 Merritt Drive - Deemed a separate asset and awarded to Frederick.
ii. 670 Merritt Drive and 3757 San Juan Drive - Finding that Audrey contributed to the upkeep of these properties and performed bookkeeping services from before 1990 to 2011, the court concluded twenty-percent of the properties' value was marital; so Audrey received ten percent of the value-$6, 860 and $5, 770 respectively.
iii. Patio Apartments: Although Frederick had purchased the Patio Apartments and almost paid off the note on the property prior to the marriage, the chancery court determined it was a marital asset as both parties had "contributed substantially" to the property, and its value ($513, 758.50) was to be split evenly between the parties. Frederick was awarded ownership of the property (including rental proceeds) and ordered to pay Audrey $256, 879.25.
iv. 3940 Bienville Boulevard - As the parties purchased the property during the marriage, it was deemed a marital asset and both parties awarded one-half of its value of $357, 070. Fred was awarded ownership and ordered to pay Audrey her one-half interest of $178, 535.
(3) Retirement Accounts: The chancery court determined that the appreciation of the couple's retirement accounts during the marriage (Audrey - $112, 427.75/Frederick - $810, 020.48) constituted marital property and was subject to property division; therefore $922, 448.23 was to be split equally between the parties. Audrey was to receive her entire retirement account to offset this amount, and Frederick was ordered to convey $348, 796.36 to Audrey via a Qualified Domestic Relations Order.
(4) Liabilities and Debts: The court found no marital liabilities or debts.
(5) All requests for attorney's fees were denied, as both parties had "ample assets to pay for their respective attorneys."

         Frederick filed a motion for reconsideration or to alter the judgment on October 17, requesting the chancery court to reconsider the division of property - specifically the retirement accounts, commercial property, and Patio Apartments. The chancery court denied the motion on December 16, and Frederick appeals the court's decision.

         STANDARD OF REVIEW

         ¶7. A chancellor's decision is reviewed by this Court for abuse of discretion. Jenkins v. Jenkins, 60 So.3d 198, 200 (¶6) (Miss. Ct. App. 2011) (citing Mabus v. Mabus, 890 So.2d 806, 810 (¶14) (Miss. 2003)). "We will not disturb the chancellor's factual findings unless the chancellor was manifestly wrong, clearly erroneous, or the chancellor applied an improper legal standard." Id. at 200-01 (¶6). Questions of law, however, are reviewed de novo. Id. at 201 (¶6).

         DISCUSSION

         I. Whether the chancellor erred by not considering child support.

         ¶8. At the time of the March 2016 hearing, the couple's son, Ryan, was twenty years old and, for the most part, lived several hours away at college. The chancellor commented at the hearing: "It's going to be hard to tell a [twenty]-year-old where to put his head at night." In the October 5, 2016 final judgment, the chancellor found:

At the time of the trial, Ryan was a college student living away from home. He will be an adult in November of 2016. Because he is turning twenty-one in about one month and he is off at college, this [c]ourt will not order child support. Further, the child custody, visitation, and support issues were not presented to this [c]ourt to be decided.[4] After Ryan obtains the age of majority this [c]ourt does not have the power to obligate either party to provide support for Ryan.

         ¶9. Frederick argues that the chancellor should have ordered Audrey to pay child support for Ryan during the duration of the divorce proceedings. He also claims Audrey should have been ordered to pay child support, including college expenses, for the year preceding the filing of his complaint. Mississippi Code Annotated section 93-11-65 (1)(d) (Rev. 2013) provides: "The noncustodial parent's liabilities for past education and necessary support and maintenance and other expenses are limited to a period of one (1) year next preceding the commencement of an action." (Emphasis added). This language is not mandatory, however. The chancery court still maintains discretion on whether to award the child support. Therefore, we find no merit to this claim.

         ¶10. As to his assertion that "[t]he lower [c]ourt's refusal to consider the issue of child support was detrimental to the best interest of the minor child," we note that although both parties presented these issues in their initial complaint/counterclaim, Frederick made no argument below regarding the chancery court's failure to address this issue in the temporary order. At trial, when asked if he wanted custody of Ryan, Frederick replied, "I'm willing to go joint custody. I don't have a problem with that." Frederick's attorney also remarked at trial that Ryan was "going to be an adult in November," and there was no real concern conveyed by the parties on this issue during the trial. It was actually the chancery court's decision to put the issue of child custody and support in the amended consent to divorce "just to ...


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