Hemsley v. Hemsley

STATEMENT OF THE CASE

PITTMAN, Justice,

for the Court:

Elizabeth M. Hemsley (Bitsy) filed a complaint for divorce against James M. Hemsley (Mike) on April 4, 1991, alleging as grounds for divorce, inter alia, irreconcilable differences pursuant to Miss.Code Ann. § 93-5-2 (Supp.1992). On January 10, 1992, Mike and Bitsy filed a consent in wilting, signed by both parties, for the court to resolve the questions of alimony and property rights, including the payment of attorney’s fees and costs. The lower court awarded Bitsy $1,400.00 per month in permanent, periodic alimony, and 50% of Mike’s military and civil service retirement benefits, and further ordered Mike to pay 50% of Bitsy’s attorney’s fees in the amount of $2,820.59. Feeling aggrieved, Mike filed this appeal assigning the following errors:

I. THE COURT ERRED BY AWARDING ALIMONY TO ELIZABETH M. HEMSLEY OR, IN THE ALTERNATIVE, IN AWARDING AN AMOUNT OF ALIMONY WHICH WAS MORE THAN JAMES MICHAEL HEMSLEY COULD AFFORD TO PAY.

II. THE COURT ERRED IN AWARDING FIFTY (50%) PERCENT OF JAMES MICHAEL HEMSLEY’S MILITARY RETIREMENT BENEFITS AND CIVIL SERVICE RETIREMENT BENEFITS TO ELIZABETH M. HEMSLEY.

III. THE COURT ERRED BY ORDERING JAMES MICHAEL HEMS-LEY TO PAY ONE-HALF (%) OF ELIZABETH M. HEMSLEY’S ATTORNEY’S FEES WHEN ELIZABETH M. HEMSLEY HAD A SEPARATE ESTATE SUFFICIENT TO PAY HER ATTORNEY’S FEES.

STATEMENT OF FACTS

Bitsy and Mike were married on June 18, 1966, in Baltimore, Maryland. During their marriage, two children were born, James Michael Hemsley, Jr., born February 15, 1969, and Bonnie Jean Hemsley, born December 13, 1970. The couple lived in many different localities because Mike was a member of the Armed Forces. In 1983, the couple moved to Mississippi where they resided until their separation on April 4, 1991,

At the time of trial, Bitsy was 48 years old. During their marriage, Bitsy worked either part-time or full-time in order to help support the family. She had a high school education and was attending classes in business administration at Hinds Community College. At the time of trial, she was employed as a secretary. In 1990, Bitsy earned approximately $21,678.00, and in 1991, she earned $21,900.00. Bitsy estimated that both figures included $2,000 in overtime.

Bitsy testified that she has suffered from a heart condition for 21 years and needs medication, Lanoxin and Inderal, costing approximately $150.00 per month. The condition, arrhythmia, occurred as a result of her pregnancy with Bonnie in 1970. She also suffered from chronic sinus problems which required surgery four years prior to trial. She testified that she had to take Hümibid to control her sinus problems. She further stated that she suffers from diverticulitis and chronic yeast infections. Finally, she testified that Mike exposed her to herpes. Although she has not tested positive for herpes, her doctor told her that it could occur at any time.

Mike was 47 years old at the time of trial and was a member of the Army until 1977. His only health complaint was an elevated cholesterol level which was being treated by medication. Mike obtained a bachelor’s degree in engineering in 1966. He was an engineer officer with the Army from 1966 to 1977. While he was with the Army, Mike went to school at night and obtained a master’s degree in harbor, coastal and ocean engineering. After leaving the Army, Mike took a job with his brother’s engineering firm for a three year period. In 1980, he returned to the federal government as a civilian employee. Since that time, with the exception of a six-month period where he worked for the Department of the Army, Mike has worked either for the Corps of Engineers or for the National Oceanic and Atmospheric Administration. He was also a member of the Army Reserve. At the time of trial, he was working as a coastal/ocean engineer and his job title was Supervisory General Engineer.

Both Mike, Jr., and Bonnie were over the age of 21 years at the time of trial. Mike, Jr., lacked one or two years in obtaining a chemical engineering degree at Mississippi State University and Bonnie was contemplating law school. Mike and Bitsy both expressed a desire to help them children complete their education by providing financial support.

Mike and Bitsy separated on April 4,1991. Bitsy filed a complaint for divorce alleging, inter alia, irreconcilable differences. Mike and Bitsy consented to a divorce- on the ground of irreconcilable differences and requested that the lower court resolve the following issues:

(1) Custody, maintenance and college expenses of the minor child of the parties;

(2) Lump sum alimony;

(3) Periodic alimony;

(4) Settlement of any property rights, including but not limited to division of personalty and division of retirement benefits, both civil and military;

(5) Premium payment and maintenance of hospitalization, medical, dental, accident and health insurance policies;

(6) Maintenance of life insurance;

(7) Propriety and imposition of liens or other orders to secure payment of any award by Court;

(8) Payments of debts; and

(9) Payment of attorney’s fees.

After reviewing the testimony of the parties and the financial information they provided, the lower court awarded Bitsy $1,400.00 per month in permanent, periodic alimony, 50% of Mike’s military retirement, and 50% of Mike’s civil service retirement as of the date of judgment. The lower court also awarded Bitsy 50% of her attorney’s fees which amounted to $2,820.59. Finding no error in the chancellor’s award of periodic alimony, retirement benefits and attorney’s fees, we affirm. Bracey v. Bracey, 408 So.2d 1387 (Miss.1982); Savell v. Savell, 290 So.2d 621 (Miss.1974); See Miss.Code Ann. § 93-5-23.” Colvin v. Colvin, 487 So.2d 840, 841 (Miss.1986).

LAW

I. THE COURT ERRED BY AWARDING ALIMONY TO ELIZABETH M. HEMSLEY OR, IN THE ALTERNATIVE, IN AWARDING AN AMOUNT OF ALIMONY WHICH WAS MORE THAN JAMES MICHAEL HEMS-LEY COULD AFFORD TO PAY.

Mike contends that the lower court lacked the statutory authority to award periodic alimony, or in the alternative, that the amount of periodic alimony awarded was excessive. According to Mike, lump sum alimony is a division of property and would have been within the statutory authority of the lower court, whereas periodic alimony is considered spousal support and is not a division of property. Mike argues that periodic alimony is not specifically provided for in § 93-5-2(3) and further that in Kergosien v. Kergosien, 471 So.2d 1206 (Miss.1985), this Court held that “[d]ivorce is a creature of statute; it is not a gift to be bestowed by the chancellor. ... It is a statutory act and the statutes must be strictly followed as they are in derogation of the common law.” Id. at 1210.

Mike also argues that his consent to allow the chancellor to decide the issue of periodic alimony does not confer subject matter jurisdiction upon the lower court. “It has been often said that the jurisdiction of courts is such a public matter that it cannot be affected by a private agreement, and that the jurisdiction of a court can therefore neither be acquired nor lost as a result of an agreement of the parties.” 20 Am.Jur.2d Courts § 139 (1965).

This Court, however, effectively dealt with this issue in Taylor v. Taylor, 392 So.2d 1145 (Miss.1981).

A scrutiny of Section 93-5-2 reveals that it does not literally use the word “alimony”, but rather speaks in direct terms only to “sufficient provision by written agreement” for the maintenance of children of the marriage and “for the settlement of any property rights between the parties.” ... It could be argued that the legislature did not intend any alimony in divorces based upon irreconcilable differences but only intended adequate provision for the minor children of the parties as well as an adjustment of property rights. In our opinion such construction upon the legislative intention would be strained and unrealistic because the question of alimony normally arises in a great majority of divorce suits, a factor of which the legislature was undoubtedly aware at the time the statute was passed. To so construe the legislature’s intent would limit the application of the irreconcilable differences statute to the wealthy few with sufficient property for division between themselves for their maintenance without the necessity of considering alimony and its obligations. We are of the opinion the legislature did not intend this result and in its wisdom enacted the statute for the benefit of all the citizens, including those without property or sufficient wealth for a lump sum alimony settlement; for after all they, on occasion, also have irreconcilable differences to arise.

Id. at 1148. Thus, Mike’s argument that the lower court did not have the authority to award periodic alimony is without merit.

In the alternative, Mike contends that the award of periodic alimony in the amount of $1,400.00 per month was excessive. In determining a reasonable award for alimony, the following factors should be considered:

(1) the health of the husband and his earning capacity;

(2) the health of the wife and her earning capacity;

(3) the entire sources of income of both parties;

(4) the reasonable needs of the .wife;

(5) the reasonable needs of the child;

(6) the necessary living expenses of the husband;

(7) the estimated amount of income taxes the respective parties must pay on their incomes;

(8) the fact that the wife has the free use of the home, furnishings and automobile, and

(9) such other facts and circumstances bearing on the subject that might be shown by the evidence.

Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147, 153 (1955).

Bitsy introduced Exhibit 5, which indicated that her gross pay totaled $2,042.50 per month, giving her an annual gross of $24,-510.00. Her only source of income came from her secretarial job. At the time of trial, Bitsy was attending classes in business administration at Hinds Community College. Bitsy suffers from a heart condition called arrhythmia, and chronic sinus problems requiring medication of approximately $150.00 per month.

Bitsy listed her expenses of $2,920.00 per month in Exhibit 5. With her net income amounting to $1,540.39 per month and alimony in the amount of $1,400.00 per month before taxes, Bitsy will not be able to meet her monthly expenses.

Mike testified that he was in good health with the exception of an elevated cholesterol level, which was being treated with medication. He had a master’s degree in harbor, coastal and ocean engineering. Mike introduced an exhibit indicating that he grossed $5,308.17 per month from his job. He also had other sources of income totalling $450.84 per month. His total gross income per month totaled $5,759.01. (The total on Exhibit 3 of $5,601.04 failed to take into account the $157.97 per month received from the Army Reserves.) Thus, Mike’s gross income for the year totaled $69,108.12.

Mike listed his expenses in Exhibit 3 which totaled $3,687.96 per month. (The figure listed of $4,387.96 includes $700.00 of temporary alimony. The temporary and periodic alimony are not being considered at this time.) Mike estimated that his net income per month only totaled $3,760.23. Thus, without considering alimony of any type, Mike has only $72.27 left after paying all of his expenses.

A careful review of both Mike and Bitsy’s expenses reveal that some items may be overstated and inflated. Basically, Mike will have net income of $4,000.00 per month and he will have approximately $2,600.00 per month to pay for expenses after he pays Bitsy $1,400.00 in alimony. Bitsy will also have approximately $2,940.00 per month (net pay of $1,540.00 plus $1,400.00 in alimony less taxes applicable to the alimony) to pay for her expenses. A review of the record does not indicate any reason why Mike’s expenses should be more than Bitsy’s expenses, especially given Bitsy’s medical condition. The chancellor did not abuse his discretion in awarding Bitsy $1,400.00 per month in alimony.

II. THE COURT ERRED IN AWARDING FIFTY (50%) PERCENT OF JAMES MICHAEL HEMSLEY’S MILITARY RETIREMENT BENEFITS AND CIVIL SERVICE RETIREMENT BENEFITS TO ELIZABETH M. HEMSLEY.

Mike contends that Bitsy has no property right in his military retirement pay and that it can only be considered as part of the income stream available to divorcing spouses when the chancellor determines the amount of alimony to award.

Bitsy, however, maintains that the lower court did have the authority to make an equitable division of Mike’s military and civil service retirement benefits. The federal government has vested state courts with the power to allocate military retirement pay pursuant to a divorce decree. 10 U.S.C. § 1408(c)(1) (Supp.1992). See Powers v. Powers, 465 So.2d 1036, 1037 (Miss.1985) (state courts in Mississippi have power to allocate military retirement pay pursuant to divorce decree). A spouse who has made a material contribution toward the acquisition of an asset titled in the name of the other may claim an equitable interest in such jointly accumulated property. Jones v. Jones, 532 So.2d 574, 580-81 (Miss.1988). See also White v. White, 557 So.2d 480, 484 (Miss.1989); Johnson v. Johnson, 550 So.2d 416, 420 (Miss.1989).

In the case sub judice the chancellor’s findings of fact in part held:

The wife contributed her share by rocking the cradle, keeping the house, and caring for the children. Although the husband was bringing in the income, still marriage is pretty much a 50/60 partnership as to property acquired during the marriage regardless of the role played by the parties. Certainly we recognize that Mississippi is not a community property state, but many of our cases indicate that the Court still should make an equitable division of the property acquired during the marital relationship. Equity means equal fairness, (emphasis added).

In addition the opinion stated:

The Court feels that it would be grossly unfair to allow the defendant to divorce his wife and either remarry or allow some other woman to reap the benefits of the plan acquired during the best years of their life. He should not live in comfort while the ex-spouse becomes destitute. So it would seem in equity that the retirement benefits should be for the marriage and not for either individual party to the marriage and, also, to some degree, the children until they reach their majority.

There is a distinction between alimony and retirement benefits. In Brown v. Brown, 574 So.2d 688 (Miss.1990), this Court noted that the Federal Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408 (hereinafter FUSFSPA), “allowed the states to treat the military retirement pensions of their domiciliaries as personal property subject to state property laws.” Brown, 574 So.2d at 690. In reference to a spouse’s equitable right to a share of the other spouse’s military retirement pay, this Court reiterated that a chancery court has authority, where equity so demands, to order a fair division of property accumulated through the joint contributions and efforts of the parties. Brown, 574 So.2d at 690. See also Brendel v. Brendel, 566 So.2d 1269, 1273 (Miss.1990); Jones v. Jones, 532 So.2d 574, 580-81 (Miss.1988); Regan v. Regan, 507 So.2d 54, 56 (Miss.1987); Watts v. Watts, 466 So.2d 889, 891 (Miss.1985); Clark v. Clark, 293 So.2d 447, 459 (1974).

Assets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.

In Newman v. Newman, 558 So.2d 821 (Miss.1990), this Court recognized that “a former spouse’s rights vel non in his or her former mate’s military retirement pension ... is subject to the personal property laws of the states.... ” Id. at 823 (emphasis added). In Southern v. Glenn, 568 So.2d 281 (Miss.1990), this Court stated that “[a] spouse’s military retirement pension is an asset....” Id. at 283 n. 1. The chancellor had the authority to order a fair division of the retirement benefits since they were accumulated through the joint contributions and efforts of the parties. Brown, 574 So.2d at 690.

There are those who would impose “title” absolutes to property acquired during marriage. They would grant almost all property rights based on title or grant almost all property rights to the income earner. This ignores reality. We must recognize that married parties usually create estates together. In 1619 at the first Legislative Assembly in the “new world” the General Assembly of (the colony) Virginia in a petition to the founding company said:

The thirde petition humbly presented by this General assembly to the Treasurer, Counsell, & Company is, that it may plainely be expressed in the great Commission (as indeed it is not) that the an-tient planters of both sortes, ... and suche also as were brought hither upon the Companies coste, may have their second, third, and more divisions sucessively in as lardge and free manner as any other Planters. Also they wilbe pleased to allowe to the male children of them and of all others begotten in Virginia, being the only hope of a Posterity, a single share a piece, and shares for their wives as for themselves; because that in a newe plantation it is not knowen, whether man or woman be the more necessary, (emphasis added).

John Pory, Proceedings of the General Assembly of Virginia, July SO-August U, 1619, (W.J. Van Schreeven & G. Reese eds. 1969). Likewise, today in acquiring a marital estate, courts cannot tell who is the most important, the man or the woman. Presently the law often deals with a fiction that the parties are deemed to enter into marriage with two separate estates. Most parties enter into marriage with no estate and proceed to build an estate together. Therefore, in the event of a divorce, there is more often than not one estate. If the breadwinner happens to be the husband and has all property in his name, this serves to relegate the non-breadwinner wife to the equivalent of a maid — and upon division of the marital estate entitled to a minimum wage credit for her homemaking service. We abandon such an approach.

We, today, recognize that marital partners can be .equal contributors whether or not they both are at work in the marketplace.

We define marital property for the purpose of divorce as being any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor. We assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value.

In arriving at an equitable distribution the chancellor should follow those guidelines as set out in Ferguson v. Ferguson, 639 So.2d 921, decided July 7, 1994. We conclude that, the chancellor’s award of fifty percent of the retirement benefits was amply supported by the record and the law and that he appropriately recognized both the property and income aspects of this asset.

The chancellor ordered that Bitsy’s alimony be reduced by her share of the retirement benefits once Mike started to receive his benefits. The chancellor stated the following:

The Court also recognizes the fact that when the retirement benefits commence to be paid the plaintiff must give the defendant credit on the periodic alimony for all amounts received from the retirement plans. Therefore, the periodic alimony will self-adjust by reducing the amount in proportion to the amount received when the plaintiff commences to receive those benefits or when the defendant retires and no longer has a regular employment income.

III. THE COURT ERRED BY ORDERING JAMES MICHAEL HEMSLEY TO PAY ONE-HALF Ok) OF ELIZABETH M. HEMS-LEY’S ATTORNEY’S FEES WHEN ELIZABETH M. HEMS-LEY HAD A SEPARATE ESTATE SUFFICIENT TO PAY HER ATTORNEY’S FEES.

In the present case, Bitsy admitted that she had a savings account with a balance in excess of $9,100.00 which she received as her share of the proceeds from the sale of the marital residence. She admitted that she could pay her attorney’s fees out of this account. She also has an annual income over $20,000.00. On redirect, Bitsy testified that she owed her father $1,200.00, and that she was going to have to invade her savings in order to repay the loan. As a result, she would only have $7,800.00 to pay her attorney’s fee of $5,641.18. If she is forced to pay the entire amount, her savings would be reduced to $2,158.82.

“Generally the award of attorney’s fees in a divorce case is left to the discretion of the trial court.” Cheatham v. Cheatham, 537 So.2d 435, 440 (Miss.1988). See also Holleman v. Holleman, 527 So.2d 90, 95 (Miss.1988); Carpenter v. Carpenter, 519 So.2d 891, 895 (Miss.1988); Devereaux, Devereaux, 493 So.2d 1310 (Miss.1986); McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). Given the fact that Bitsy’s take-home pay and alimony will barely cover her monthly expenses, the chancellor did not err in awarding Bitsy one-half of her attorney’s fees.

CONCLUSION

The lower court did have the authority to award periodic alimony, and the lower court did not abuse its discretion in determining the amount of alimony. Furthermore, the award of 50% of Mike’s retirement benefits was not error. Finally, the chancellor did not abuse his discretion in awarding attorney’s fees.

AFFIRMED.

PRATHER, P.J., and SULLIVAN, BANKS, JAMES L. ROBERTS, Jr., and SMITH, JJ., concur.

HAWKINS, C.J., concurs in part and dissents in part as to Part II with separate written opinion joined in part by DAN M. LEE, P.J., and McRAE, J.

DAN M. LEE, P.J., dissents with separate written opinion joined by McRAE, J.

McRAE, J., dissents with separate written opinion joined by DAN M. LEE, P.J.