Robert Neil Anderson v. Christina L. Anderson , 2015 Miss. App. LEXIS 455 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-01748-COA
ROBERT NEIL ANDERSON APPELLANT
v.
CHRISTINA L. ANDERSON APPELLEE
DATE OF JUDGMENT: 09/12/2013
TRIAL JUDGE: HON. JERRY G. MASON
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CHANCERY
COURT
ATTORNEYS FOR APPELLANT: PAUL HARDIN HOLMES
MARCUS ALAN MCLELLAND
ATTORNEYS FOR APPELLEE: ROBERT D. JONES
ELIZABETH RHAE RANDALL DARSEY
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: GRANTED DIVORCE, DIVIDED MARITAL
PROPERTY, AWARDED ALIMONY TO
APPELLEE, AND AWARDED CUSTODY
AND CHILD SUPPORT TO APPELLEE
DISPOSITION: AFFIRMED: 09/08/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., BARNES AND FAIR, JJ.
FAIR, J., FOR THE COURT:
¶1. Christina and Neil Anderson divorced on May 23, 2012. After a trial, the chancellor
entered a judgment on the issues of equitable division of marital property, debt, and alimony.
Child support, initially agreed on, had become an issue for Neil, who has appealed, asserting
that: (1) the chancellor erred in his equitable division of marital assets and allocation of
marital debts; (2) the chancellor erred in ordering Neil to pay Christina $400 a month in
permanent alimony; and (3) the chancellor erred in ordering Neil to pay $1,219.27 a month
in child support. We find the chancellor acted within his discretion and therefore affirm.
FACTS
¶2. Christina and Neil married on December 11, 1992. During their marriage, they had
three children, who were all teenagers at the time of trial. Christina filed for divorce on May
9, 2011. On June 2, 2011, the court entered a “temporary settlement announcement and
order” (temporary order) based on the parties’ negotiations. Neil was not represented by
counsel. The parties agreed that Christina would have physical and legal custody of the
minor children. The order also set out a visitation schedule. Neil agreed to pay Christina
$1,400 per month in child support and $900 in alimony. Neil subsequently filed a motion to
modify the temporary order, claiming inability to pay.
¶3. On May 23, 2012, both parties consented to divorce on the ground of irreconcilable
differences. As part of the agreement, Christina received exclusive physical and legal
custody of the minor children, subject to Neil’s visitation, on which they agreed. Neil also
agreed to pay Christina $1,219.27 a month in child support. The agreement further stated
that any “contested issues” would be adjudicated in Lauderdale County Chancery Court.
Those issues included the equitable division of marital assets and allocation of marital debt,
alimony, and any noncompliance with the temporary order.
¶4. On December 20, 2012, Christina filed a second contempt motion for Neil’s failure
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to pay child support and alimony.1 The court had found Neil to be in civil contempt and
allowed him the opportunity to purge himself of contempt by paying the monthly child
support arrearages and alimony arrearages, plus interest. Instead, he filed a second motion
to modify the temporary order, again asserting his inability to pay.
¶5. The court held a trial on July 15 and 16, 2013. Both parties testified and submitted
ample evidence, including Rule 8.052 financial statements, credit card statements, tax returns,
savings plan documents, and retirement documents. Neil’s 8.05 showed a gross monthly
income of $6,720, and Christina’s 8.05 showed a gross monthly income of $1,144.11. After
applying and discussing each of the Ferguson3 factors in some detail, the court found the
following marital property subject to equitable distribution: (1) a check payable to Neil and
Christina from a Stifel-Nicolaus investment account; (2) the jointly owned former marital
home; (3) specified personal property; (4) three vehicles; (5) Neil’s Federal Employees
Retirement System (FERS) account from March 2000 to June 2, 2011; (6) Neil’s FERS
Thrift Savings Plan (TSP) account from March 2000 to June 2, 2011; (7) Neil’s military
retirement from December 1992 to June 2, 2011; and (8) Neil’s Ready Reserve TSP account
from December 1992 to June 2, 2011.
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Christina filed her first motion to cite for contempt on December 8, 2011. The
parties resolved the issue through the consent agreement.
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UCCR 8.05.
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Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994).
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¶6. The chancellor next turned to an analysis of the Armstrong4 factors to determine
whether he should award Christina alimony. Considering the Armstrong factors under the
totality of the circumstances, the chancellor found that a need for alimony existed, and
ordered Neil to pay Christina $400 a month in permanent alimony. He further ordered that,
for the three minor children, Neil pay monthly child support in the amount agreed upon in
the consent to divorce ($1,219.27). Additional relevant facts will be discussed in the
analysis.
STANDARD OF REVIEW
¶7. “When [an appellate court] reviews a chancellor’s decision in a case involving divorce
and all related issues, [the court’s] scope of review is limited by the substantial
evidence/manifest error rule.” Yelverton v. Yelverton, 961 So. 2d 19, 24 (¶6) (Miss. 2007).
Therefore, this Court will not disturb the chancellor's findings “unless the chancellor was
manifestly wrong [or] clearly erroneous[,] or a clearly erroneous standard was applied.” Id.
(citation omitted).
DISCUSSION
1. Equitable Distribution
¶8. To equitably divide property, the chancellor must: (1) classify the parties’ assets as
marital or separate, (2) value those assets, and (3) equitably divide the marital assets.
Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994); Ferguson, 639 So. 2d at 928. In
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Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).
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Johnson v. Johnson, 650 So. 2d 1281, 1287 (Miss. 1994), our supreme court stated that all
marital assets are subject to needed equitable distribution in accordance with the factors
provided in Ferguson. “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 of the marriage.”
Hemsley, 639 So. 2d at 914. We review a chancellor’s equitable division under the familiar
manifest-error standard of review. Vaughn v. Vaughn, 56 So. 3d 1283, 1288 (¶17) (Miss. Ct.
App. 2011).
¶9. Neil argues that the chancellor failed to properly classify and distribute the following
assets and liabilities: the marital home, Christina’s Public Employees’ Retirement System
(PERS) account, the Chase credit card debt, the Bank of America credit card debt, the IRS
deficiency, and certain medical and dental bills.
a. Contribution
¶10. Neil argues that the chancellor erred in failing to consider the amounts paid toward
the marital property since the June 2, 2011 temporary order. However, the chancellor
specifically stated he considered the evidence relevant to the “demarcation line,” or
temporary order, as to the equitable distribution of marital property. The record reflects that
he indeed recognized that Neil had paid $40,482 towards the house note since the temporary
order. The chancellor further stated that Neil had financially contributed to the accumulation
of marital property more than Christina. However, the chancellor also recognized that
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Christina contributed more to the stability and harmony of the marital family and
relationships as a stay-at-home mom. The parties stipulated that the equity in the home
amounted to $99,000 or $100,000. Ultimately, the chancellor awarded Christina $45,000
in equity, and Neil received around $55,000 in equity. We find substantial evidence in the
record to support the chancellor’s decision.
b. Classification of Assets
¶11. Neil also argues that the chancellor should have considered Christina’s PERS account,
credit cards, and the children’s medical and dental bills as marital assets.
¶12. Neil claims that he is entitled to a portion of Christina’s PERS funds since she was
awarded one-half of two of his federal retirement plans. On her 8.05, Christina listed her
PERS account balance as $6,370. The chancellor did not address Christina’s retirement
account in his final judgment.
¶13. Neil had four retirement accounts. On his 8.05, he listed his FERS account balance
as $10,418.20 and his TSP balance as $161,000. Neil did not provide the account balances
for his military retirement or Ready Reserve TSP. The chancellor classified all of Neil’s
accounts as marital property subject to equitable distribution. The court awarded Christina
half of Neil’s FERS TSP as of June 2011 (the date of the temporary order), in the amount of
$58,557.49, and half of his FERS account funds. He further stated that Christina, as the
former spouse of a federal employee, would receive 50% of the FERS account for 135
months (March 2002–June 2011). Christina did not receive any percentage from Neil’s
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military retirement or Neil’s Ready Reserve TSP account.
¶14. Neil next argues that the chancellor committed manifest error by failing to address his
Chase Credit card debt and Bank of America credit card debt in the equitable distribution of
marital property. In Neil’s 8.05, both credit cards are stated in his name only. Neil also
agreed in the temporary order to pay both credit card bills.
¶15. Neil finally claims that the chancellor erred in failing to equitably apportion the minor
children’s medical and dental bills listed in Neil’s 8.05. Christina did not list these bills in
her 8.05. In his bench order, the chancellor evaluated all of Neil’s obligations to the minor
children. He did not specifically address the expenses listed in Neil’s 8.05. Rather, the
chancellor stated that, as part of the consent to divorce, Neil was required to maintain a major
policy of insurance for medical and hospitalization on all three children. The chancellor then
ordered Christina to pay 35% and Neil to pay 65% of all doctor, dental, prescription, drug,
orthodontic, optical, hospital, medical, and other healthcare expenses for the minor children
that are in excess of and/or not covered by required insurance.
¶16. Neil’s attorney had the responsibility to inform the chancellor that he had failed to
consider certain accounts at the time he divided the marital estate. See McIntosh v. McIntosh,
977 So. 2d 1257, 1270 (¶46) (Miss. Ct. App. 2008). The attorney should have filed a motion
to amend the final judgment. He did not. Because the issue was not raised at the trial level,
we find it procedurally barred. Id. (citations omitted).
c. IRS Deficiency
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¶17. Neil claims the chancellor erred in holding him responsible for paying the IRS
deficiency of $4,800 on his 2011 taxes. The chancellor stated that the deficiency occurred
before and after Neil and Christina were estranged. The chancellor further stated that “[t]he
[IRS] . . . concluded that Neil is the taxpayer liable for paying the deficiency.” Thus, he held
Neil liable for the income tax deficiency, incurred significantly because of the withdrawal
of funds from the Stifel-Nicolaus investment account in February 2011 and April 2011. We
find the chancellor’s decision supported by substantial evidence.
2. Alimony
¶18. “Alimony awards are within the discretion of the chancellor, and his discretion will
not be reversed on appeal unless the chancellor was manifestly in error in his finding of fact
and abused his discretion.” Armstrong, 618 So. 2d at 1280 (citations omitted). Permanent
alimony should only be considered where one spouse is left with a deficit. See id. “[I]f the
marital assets, after equitable division and in light of the parties’ [nonmarital] assets, will
adequately provide for both parties, then no more need be done.” O’Brien v. O’Brien, 149
So. 3d 508, 515 (¶23) (Miss. Ct. App. 2014) (citation and internal quotation marks omitted).
¶19. Neil argues that the chancellor failed to divide the parties’ marital assets and debts
before awarding alimony. However, the record reflects that the chancellor meticulously
discussed the parties’ marital assets and liabilities and determined the value of each of their
estates prior to discussing the Armstrong factors, which are: (1) the income and expenses of
the parties; (2) the health and earning capacities of the parties; (3) the needs of each party;
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(4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence
or absence of minor children in the home; (7) the age of the parties; (8) the standard of living
of the parties; (9) the tax consequences of the support decree; (10) fault or misconduct; (11)
wasteful dissipation of assets by either party; and (12) any other factor deemed to be fair and
equitable. Armstrong, 618 So. 2d at 1280.
¶20. The chancellor considered Christina’s age, forty-three, and Neil’s age, forty-five. He
recognized they were married for over eighteen years. Neil is employed at maximum earning
capacity as an air traffic controller, while Christina is employed as an assistant physical
education teacher. Both parties agreed that Christina would have exclusive physical and
legal custody of the three children, and that Neil would pay $1,219.27 a month in child
support. Neil and Christina also agreed that Neil would maintain a life insurance policy with
the children as beneficiaries. The chancellor acknowledged that Christina’s monthly gross
income of $1,144.11 was exceedingly less than Neil’s monthly gross income of $6,728.36.
He noted that Neil pays the house note in the amount of $1,557,17 per month. Neither party
was assigned marital fault.
¶21. The chancellor, in his findings of fact, clearly discussed the facts pertaining to each
of the Armstrong factors as related to the parties. Ultimately, the chancellor determined that
Christina would need $400 a month in alimony to account for the deficit between her income
and expenses. After review of the record, we find that the chancellor's judgment was
supported by substantial evidence. See C.A.M.F. v J.B.M., 972 So. 2d 656, 666-67 (¶44)
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(Miss. Ct. App. 2007).
3. Child Support
¶22. Neil argues that the chancellor erred in not modifying his monthly child support
payments. In the consent to divorce, Neil agreed to pay $1,219.27 a month in child support.
At trial, his attorney made an ore tenus motion to adjust a previous calculation error. Neil
claimed that he was only required to pay $1,063 a month in child support, not $1,219.27.
The chancellor did not modify the payment amount.
¶23. Mississippi Code Annotated section 43-19-101(1) (Supp. 2014) provides guidelines
for calculating child support. For three children, the suggested amount is 22% of the payor’s
adjusted gross income. Id. The consent to divorce specified Neil’s obligation to pay
$1,219.27 a month in child support, which, according to Neil, is more than 22% of his
adjusted gross income. Neil argues the amount, applying the 22% statutory guideline, should
instead be $1,063.
¶24. The chancellor properly overruled Neil’s motion. The consent to divorce listed child
support as a stipulated issue, not a contested issue. Further, the agreement carried with it
implied findings by the chancery court regarding Neil’s ability to pay according to the
agreement as well as Christina’s needs to support their three children. Our supreme court has
held that “settlement agreements entered into by divorcing spouses . . . become a part of the
decree and enforceable as such as though entered by the court following contested
proceedings.” Bell v. Bell, 572 So. 2d 841, 844 (Miss. 1990) (citations omitted).
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¶25. “Modification of child support may be warranted only where there is a showing of an
after-arising material change in circumstances regarding one or more of the interested parties
. . . .” Setser v. Piazza, 644 So. 2d 1211, 1215 (Miss. 1994) (citing Gregg v. Montgomery,
587 So. 2d 928, 931 (Miss. 1991)). Neil failed to present any evidence that his
circumstances, or Christina and the children’s circumstances, have changed since the
agreement was signed. We find no error in the chancellor’s ruling.
CONCLUSION
¶26. We find that the chancellor’s equitable distribution was supported by substantial
evidence. We also find the chancellor acted within his discretion to award Christina $400
a month in alimony and $1,219.27 a month in child support. Therefore, we affirm the
chancellor’s ruling.
¶27. THE JUDGMENT OF THE LAUDERDALE COUNTY CHANCERY COURT
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL AND WILSON, JJ., CONCUR. JAMES, J., CONCURS IN PART
WITHOUT SEPARATE WRITTEN OPINION.
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