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Dauenhauer v. Dauenhauer

Court of Appeals of Mississippi

November 13, 2018

JULIA WALKER DAUENHAUER APPELLANT
v.
STEVEN DAUENHAUER APPELLEE

          DATE OF JUDGMENT: 02/24/2017

          HANCOCK COUNTY CHANCERY COURT TRIAL HON. JAMES B. PERSONS JUDGE.

          ATTORNEY FOR APPELLANT: EDWARD GIBSON

          ATTORNEY FOR APPELLEE: CLEMENT S. BENVENUTTI

          BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

          CARLTON, J.

         ¶1. The Hancock County Chancery Court granted Steven and Julia Dauenhauer a divorce based the ground of irreconcilable differences. The chancellor also distributed the marital property and awarded Steven rehabilitative alimony.

         ¶2. Julia now appeals the chancellor's judgment, arguing that: (1) the chancellor erred in awarding Steven rehabilitative alimony; (2) the chancellor erred in determining the date of the end of the accumulation of marital assets; (3) the chancellor erred in his classification of Julia's retirement accounts as marital property; and (4) the chancellor erred in awarding attorney's fees to Steven. Finding error only with the portion of the chancellor's judgment ordering Julia to pay Steven's attorney's fees, we affirm in part and reverse and render in part.

         FACTS

         ¶3. Julia and Steven first married in 1981. The marriage produced two children. In 2001, Julia and Steven obtained a divorce based on irreconcilable differences. The couple eventually reconciled and remarried in November 2003. At the time of their remarriage, Julia worked as a registered nurse at Hancock Medical Center and Steven worked as a recreation specialist at the Seabee Base in Gulfport, Mississippi.

         ¶4. During their second marriage, Julia returned to school and obtained a Bachelor of Science degree in Nursing in 2011 and a Master of Science degree in Nursing in 2012. Julia also obtained a nurse practitioner's license in 2013. In 2006, Steven changed career paths and became an associate pastor at a church. Steven was eventually laid off due to the church's financial difficulty, and in 2013 and part of 2014, he worked as an outside plant technician for AT&T. In 2014, Steven obtained employment as a school bus driver and character education teacher for the Hancock County School District.

         ¶5. Steven and Julia separated on April 30, 2015. At this time, both children had reached the age of adulthood. On May 1, 2015, Julia moved out of the marital home located at 919 Combel Street, Waveland, Mississippi and into a new home.

         ¶6. On August 12, 2015, Steven filed a complaint for separate maintenance, asserting that his income was insufficient to pay the normal and usual expenses of maintenance on the marital domicile. In his complaint, Steven claimed that Julia abandoned him and that he was without fault for the separation. Steven also requested attorney's fees, explaining that he lacked sufficient income to pay for his attorney.

         ¶7. On September 9, 2015, Julia filed her answer to Steven's complaint, denying that she abandoned Steven and alleging that Steven's actions and behavior significantly contributed to their separation. Julia asserted that Steven was "painfully underemployed by his own choice and that his refusal to work, among numerous other factors, substantially eroded the marital relationship and caused the separation of the parties." Julia also filed a counter complaint for divorce, asserting that she was without fault for the separation and seeking a divorce on the ground of habitual cruel and inhuman treatment, or, in the alternative, irreconcilable differences. Julia further requested that the marital home located at 919 Combel Street be placed on the market for sale or be refinanced by Steven in his name only, with the proceeds utilized first to pay for any current outstanding indebtedness and the net proceeds being equally divided by the parties.

         ¶8. The chancellor heard arguments from the parties regarding Steven's complaint for separate maintenance. The parties reached a temporary agreement as to separate maintenance and the marital property, and on September 11, 2015, the chancellor ratified an order of temporary relief memorializing the parties' agreement on the issues.

         ¶9. On January 28, 2016, Steven filed his answer to Julia's counter complaint for divorce. Steven moved to dismiss the complaint pursuant to Mississippi Rule of Civil Procedure 12(b)(6), alleging that Julia failed to state a claim against him upon which any relief may be granted. Steven also argued that Julia was without clean hands and therefore should not be granted any of the relief sought in her counter complaint for divorce.

         ¶10. The chancellor held a trial on the matter on May 12, 13, and 16, 2016. During the trial, Steven and Julia reached an agreement to withdraw the fault pleadings and consented to a divorce on the ground of irreconcilable differences. The parties reserved the following issues for the chancellor's determination: (1) Identify marital property and equitably divide the same; (2) Identify the marital debt and equitably divide the responsibility for paying same; (3) Determine the amount of award of attorney's fees from Julia to Steven, if any; and (4) Determine if Steven is entitled to an award of alimony of any kind or nature and award him the same if appropriate.

         ¶11. The trial then resumed. As the trial recessed for lunch, the chancellor observed that Steven failed to mention "the issue of spousal support" in any of Steven's pleadings. At the chancellor's suggestion, Steven's counsel made an ore tenus motion to amend his answer to Julia's counter complaint and request that Steven be granted spousal support of "whatever kind or nature the [c]ourt deems appropriate" and that Steven be awarded attorney's fees. The chancellor granted the ore tenus motion and requested the details of the motion be included in the consent to adjudicate.

         ¶12. After hearing testimony, the chancellor advised the parties that, "the date for determining equitable distribution, in my view, should be the date of the temporary order"- September 11, 2015. The chancellor also directed the parties to make post-trial submissions to aid in his consideration of the issues.

         ¶13. On December 2, 2016, the chancellor entered a judgment granting the divorce on the ground of irreconcilable differences. In his judgment, the chancellor applied the Ferguson factors and set forth his equitable division of the marital property. The chancellor then applied the Armstrong factors and ultimately awarded Steven rehabilitative alimony. ¶14. Over the next few months, Steven and Julia filed several motions requesting that the chancellor amend his judgment, which we discuss at length later in this opinion. The chancellor entered an amended judgment of divorce on February 24, 2017. Aggrieved, Julia filed a notice of appeal on March 24, 2017, wherein she stated that she is appealing from the final amended judgment entered on February 24, 2017 and the chancellor's February 24, 2017 order denying Julia's motion for amended judgment notwithstanding the verdict, or, in the alternative, for new trial.[1] After Julia filed her notice of appeal, the chancellor addressed a pending motion filed by Steven and issued a second amended judgment of divorce on April 17, 2017.

         DISCUSSION

         I. Rehabilitative Alimony

         ¶15. Julia argues that the chancellor erred in awarding Steven rehabilitative alimony in the amount of $2, 000 per month for 48 months, for a total of $96, 000. Julia specifically argues that the chancellor erred in his application of the Armstrong factors and thus erroneously awarded Steven alimony. Julia maintains that the chancellor erred in his determination of Steven's monthly expenses, specifically Steven's monthly payments for the marital home. Julia also asserts that the chancellor awarded Steven $98, 788.09 of the marital estate and awarded Julia $98.668.11; however, the chancellor assigned Julia $58, 860.85 in debt but assigned Steven only $21, 858.79. Julia claims that because Steven was not destitute, the record does not support an award of rehabilitative alimony. Julia also argues that Steven testified at trial that he chose to remain underemployed.

         ¶16. When reviewing an alimony award, we "will not disturb a chancellor's findings regarding the award . . . unless there is manifest error." Larson v. Larson, 192 So.3d 1137, 1141 (¶11) (Miss. Ct. App. 2016). "Mississippi precedent establishes that the chancellor's award of alimony is a matter primarily within the discretion of the chancery court because of its peculiar opportunity to sense the equities of the situation before it." Serio v. Serio, 203 So.3d 24, 28 (¶10) (Miss. Ct. App. 2016) (internal quotation marks omitted).

         ¶17. Chancellors utilize the following factors set forth by the Mississippi Supreme Court when determining an award of alimony:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each ...

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