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Chism v. Chism

Court of Appeals of Mississippi

June 4, 2019


          DATE OF JUDGMENT: 03/19/2018





          BARNES, C.J.

         ¶1. This appeal originates from a divorce action filed by Mark Chism. Ultimately, the parties agreed upon an irreconcilable-differences divorce, with the chancery court deciding property division and alimony. Mark now appeals the DeSoto County Chancery Court's judgment regarding the contested matters.

         ¶2. Mark claims the chancery court improperly conducted the trial even though he requested a continuance because his attorney was allowed to withdraw two days beforehand, and he therefore had to represent himself at trial. Additionally, he disagrees with the valuation of his business for property division, as the only proof presented for its value was Landaria's estimate. Mark further complains that the chancery court erred in finding him in contempt and ordering him incarcerated for lack of payment of support to Landaria and lack of compliance with discovery requests. He also claims error with the chancery court's award to Landaria of lump-sum alimony and related failure to consider his temporary support payments to her-and her award of attorney's fees.

         ¶3. We find no error and affirm the issues related to Mark's lack of counsel at trial, his contempt, and Landaria's award of attorney's fees. As to the valuation of the business, we find there was insufficient proof and it is necessary to reverse and remand to the chancery court for further proceedings on this issue, as well as Landaria's award of alimony, which should be reconsidered in light of the business valuation.


         ¶4. In July 2010 the parties were married. No children were born of the marriage. The parties opened a profitable chicken-wing and fried-catfish business, Memphis Best Wings, at 5144 Riverdale Road in Memphis, Tennessee during the marriage. Landaria quit her job teaching to work at the restaurant when it opened. She received a salary of $700 per week, working daily from 9:00 a.m. until closing.

         ¶5. After five years of marriage, the parties finally separated in June 2015. Mark filed for divorce and division of the marital property in August 2015. Landaria answered and counterclaimed for divorce, property division, and attorney's fees. She also petitioned the court for temporary spousal support. In October 2015, a temporary order was entered, requiring Mark to pay Landaria $500 a month in temporary alimony and $500 a month toward a vehicle upon proof of the amount she was paying toward a vehicle.

         ¶6. Discovery ensued, and both parties obtained new counsel.[1] Numerous discovery disputes occurred, with both parties being granted motions to compel. In August and September 2017, Mark had motions for contempt granted against him for failure to pay Landaria's temporary support and failure to comply with motions to compel discovery, which resulted in his being incarcerated. Numerous continuances occurred due in part to Mark's failure to keep an attorney and his failure to cooperate with the discovery process, which were undoubtedly related.

         ¶7. The chancellor allowed Mark's third attorney to withdraw on one day's notice, two days before trial on March 16, 2018, under the condition that the trial would not be continued. Even so, Mark moved for a continuance, which the chancery court denied. Before trial, the parties had agreed to an irreconcilable-differences divorce, and trial proceeded on property division and alimony, with Mark representing himself. It was Mark's contention that the couple had no joint assets, debt, or real property; not surprisingly, Landaria disagreed. Testimony ensued about these matters. Five years before the parties married, Mark purchased a home as an "unfinished foreclosure." It was valued at $650, 000, with Mark owing approximately $435, 000 at the time of trial. Landaria also owned a home that she had inherited. She took out a mortgage against that property in excess of $30, 000 to use for a second Best Wing business location that subsequently closed after the parties separated. Mark testified to owning approximately nine vehicles and two motorcycles, including a 2016 Corvette, a 2015 Mercedes S Class, a 2006 Harley Davidson Road Glide, a 2013 Honda Gold Wing motorcycle, a 2015 Chevrolet Colorado, and a restored 1959 Corvette. The parties disputed the values of many of the vehicles, especially the 1959 Corvette, which Mark claimed was worth $15, 000, while according to Landaria's research the value was $60, 000. Also, the marital home contained a $9, 000 piano, as well as furnishings valued at $35, 000 to $40, 000.

         ¶8. Mark confirmed the amount reported on his Uniform Chancery Court Rule 8.05 financial declaration form for net monthly income was $5, 400, with monthly expenses totaling $4, 873, including his residential mortgage of $2, 300 and two car payments of $960 each for the Mercedes and 2016 Corvette. Mark maintained only one bank account for both personal and business matters. As an example of his business income, Mark confirmed that in July 2017 his deposits were $22, 447.72; however, some customers paid cash. Mark claimed he did not retain cash from the business for personal use. After payment of all business and personal bills, funds still remained in the couple's bank account. For August 2017, $31, 046 was deposited. Mark testified that he was considering expanding his business in the future.

         ¶9. Partway through the hearing, the chancellor warned Mark that he perceived Mark's testimony on his personal and business finances "ludicrous" and untruthful based upon Mark's responses and documentation introduced to impeach his testimony. The hearing resumed with Landaria's testimony. At the time of trial, she was employed at a Catholic school where her income was $628 biweekly. She owned a 2006 Toyota Matrix purchased after separation, with a car payment of $423.33 per month. Mark currently owed her $20, 000 for the vehicle allowance ordered by the court in October 2015. Landaria claimed she had no money to pay her attorney's fees. Regarding Mark's retention of cash from the business for personal use, Landaria testified that after taking the cash home from the restaurant to count it, Mark did not deposit the hundred-dollar bills; instead, she said he hid them from her in the house and then used this cash to purchase all of his vehicles. The chancellor, however, found Landaria's explanation "ludicrous," commenting that the more truthful scenario was probably that the couple was living off of the cash made at the restaurant. Landaria agreed with this assessment.

         ¶10. The chancellor began his financial fact findings from the bench by reiterating strongly that even after his warning to Mark, he still did not find his testimony truthful:

I believe that through your testimony, having heard it live and in person and seen your demeanor, that you have attempted throughout this proceeding to tinkle on my leg and try to convince me that it's raining, and I don't buy it. There is no way you can maintain the lifestyle that you maintain in collecting and restoring vintage automobiles, driving one and two-year old Corvettes and Mercedes, living in a $650, 000 house with only $5, 400 per month in income. That just doesn't compute.

         However, the chancellor found the chicken-wing business was worth $1, 000, 000, based solely upon Landaria's estimate and the figure provided on her Rule 8.05 financial form. Mark did not include this asset on his Rule 8.05 form, and did not offer any testimony to rebut her estimate. Mark was found in contempt for nonpayment of the vehicle allowance as required by the temporary order, resulting in his second incarceration. Additionally, Mark was ordered to pay $96, 000 in lump-sum alimony at the rate of $2, 000 a month, as well as $2, 500 per month toward Landaria's property division award of $521, 999, which included one-half the value of the business and twenty-five percent of the equity in the marital home or $30, 000, as well as attorney's fees totaling $27, 572.58. She also received several of the vehicles in the property distribution, including the restored 1959 Corvette with a value of $59, 000.

         ¶11. Mark retained new counsel post-trial. Both parties filed post-trial motions to reconsider under Mississippi Rule of Civil Procedure 59. Among other matters, Mark argued the chancery court erred in not appointing a business valuation expert because there was inadequate proof of the business's value offered by the parties. Landaria requested the chancery court clarify payment of attorney's fees and alter the equitable distribution of marital property because of misrepresentations Mark made to the court about possession of two vehicles. Mark's motion was denied, and ...

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