Diana Lynn Carter Larson v. Mark Alan Larson , 2016 Miss. App. LEXIS 348 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-00598-COA
DIANA LYNN CARTER LARSON APPELLANT
v.
MARK ALAN LARSON APPELLEE
DATE OF JUDGMENT: 01/20/2014
TRIAL JUDGE: HON. MITCHELL M. LUNDY JR.
COURT FROM WHICH APPEALED: PANOLA COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: JAMES ROGER FRANKS JR.
WILLIAM RUFUS WHEELER JR.
ATTORNEY FOR APPELLEE: THOMAS ALAN WOMBLE
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: DENIED APPELLANT REHABILITATIVE
AND PERMANENT ALIMONY AND
REDUCED APPELLANT’S EQUITY IN
THE MARITAL HOME
DISPOSITION: AFFIRMED – 05/31/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., CARLTON AND JAMES, JJ.
IRVING, P.J., FOR THE COURT:
¶1. Diana Lynn Carter Larson appeals the Chancery Court of Panola County’s division
of property and alimony in her divorce action. Diana raises two issues: (1) the chancellor
erred in determining the equity in the marital home; and (2) the chancellor erred in not
awarding her permanent or rehabilitative alimony.
¶2. Finding no error, we affirm.
FACTS
¶3. Mark Alan Larson and Diana married on February 14, 1992. Mark filed for divorce
on September 8, 2008, on the ground of irreconcilable differences. On September 11, 2008,
Mark amended his complaint to include the grounds of adultery, habitual cruel and inhuman
treatment, abandonment, and, in the alternative, irreconcilable differences. On December 17,
2010, the chancellor issued a ruling granting Mark a divorce on the ground of adultery. The
chancellor distributed the couple’s assets and assessed the amount of alimony payable to
Diana. She was awarded $80,000 worth of equity in the marital home and lump-sum alimony
of $36,000, in addition to other property.1 Diana, aggrieved by the allocation of the marital
assets and the alimony award, filed a request for reconsideration, which was denied. On
January 7, 2011, the chancery court issued a judgment of divorce. On February 2, 2011,
Diana appealed the court’s decision.
¶4. On March 3, 2013, this Court affirmed in part and reversed and remanded in part the
chancellor’s judgment. Larson v. Larson, 122 So. 3d 1213, 1219 (¶18) (Miss. Ct. App.
2013). This Court’s instructions on remand were for the chancellor to conduct an on-the-
record analysis of the Armstrong2 factors, which are factors considered when making an
alimony determination, and to state the chancellor’s reasoning in awarding Diana her portion
of equity in the marital home. Id. at (¶17). On remand, the chancellor awarded Diana
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The equity in the marital home and alimony are the only items disputed in this
appeal, but the chancellor also awarded Diana: (1) her IRA account; (2) $25,000 for her one-
half interest in a Quiznos restaurant; (3) a vehicle; (4) furs and jewelry; (5) an annuity; and
(6) a condominium in Destin, Florida, valued at $1,000,000 with a $574,000 outstanding
mortgage.
2
Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).
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$80,000 in equity, but the record supported a finding that there was in fact only $28,500
worth of equity in the home. On December 2, 2013, the chancery court heard oral arguments.
On December 17, 2013, the chancery court entered its judgment denying Diana’s request for
periodic and rehabilitative alimony. In addition, the judgment provided a detailed analysis
of the Armstrong factors, awarding Diana $28,500 of the equity in the marital home and
$87,500 in lump-sum alimony. Diana now appeals the chancellor’s judgment following
remand from this Court.
DISCUSSION
¶5. “The overall standard for reviewing the findings of a chancellor is a familiar one and
[an appellate] [c]ourt will not disturb those findings unless manifestly wrong, clearly
erroneous, or an erroneous legal standard was applied.” Hill v. Se. Flooring Co., 596 So. 2d
874, 877 (Miss. 1992).
I. Allocation of Equity in the Marital Home
¶6. Diana argues that the chancellor erred in determining the equity distribution in the
marital home. She alleges the valuation of the marital home only accounted for the value of
the home and did not account for the personal content and furnishing within the home. Diana
valued the items at an additional $474,080, which had not been distributed between the
parties. She also argues the second mortgage on the marital home should not have been
allowed to affect the valuation on remand, because the chancellor had excluded the second
mortgage during the prior trial-court proceeding. She states that the original valuation for
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the marital home was $285,000, but there was also a $106,500 mortgage on the property.
This left $178,500 of equity to split between the parties. On remand, the chancellor allowed
the $150,000 mortgage to affect the valuation, which reduced the amount of equity in the
home to $28,500, of which Diana received the entire amount. Diana argues she is entitled to
a valuation and distribution of the furnishings in the home and a revaluation of the property
without the second mortgage as a factor.
¶7. In response, Mark argues that Diana’s assertion that the chancellor improperly valued
the marital home is barred. He states the remanded portion of this Court’s decision was
limited to the on-the-record analysis of the Armstrong factors and clarification of Diana’s
equity award in the marital home. Mark alleges the other arguments raised by Diana have
already been rejected and should be barred by caselaw and res judicata. He further alleges
that Diana has previously argued that the marital home was insured for $632,100 and the
value of the property inside the home had a value of $474,080. This argument has been
heard and rejected by the chancery court as well as this Court. Larson, 122 So. 3d at 1218-19
(¶¶12-13). Mark argues this argument should be barred since it has already been factored
into previous decisions. He also argues that this Court limited the scope of the remand to
address the allocation of the $80,000 worth of equity and the analysis of the alimony award.
In addition, he contends this Court gave no indication that there was a need to adjust the
award on the basis of the valuation of the furnishings within the home or the amount of
insurance on the home. He further contends this Court contemplated Diana’s argument in
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the prior appeal and rejected her argument that the award needed to be changed based on
those grounds.
¶8. If an “issue was raised on appeal then it has been previously litigated and therefore
is barred from consideration in the present proceedings.” Pruett v. Thigpen, 444 So. 2d 819,
823 (Miss. 1984). This Court finds that Diana’s arguments regarding the valuation of the
marital home are barred, as they have been previously contemplated3 by this Court in
deciding Larson, 122 So. 3d 1213 (¶¶12-13). Mark is correct in his assertion that the law of
the case governs, and it is well established that “[it is] the practice of courts generally to
refuse to reopen what has previously been decided.” Cossitt v. Alfa Ins., 726 So. 2d 132, 141
(¶47) (Miss. 1998). Diana has failed to present an argument that reflects the limited scope
of this Court’s instructions to the chancellor on remand.
¶9. Nevertheless, the chancellor did not abuse his discretion in making his award to
Diana. This Court’s instructions to the chancery court on remand, with respect to the equity
in the marital home, were for the chancellor to state his reasoning for awarding Diana her
portion of equity in the marital home. It appears the chancellor originally based his
calculations of the positive equity in the marital home on the assumption that only one
mortgage existed on the property. Mark brought the second mortgage of $150,000 to the
court’s attention during the trial. However, the chancellor excluded the second mortgage on
3
Although not directly addressed by this Court in its previous opinion, the arguments
presented, with respect to this issue, were contemplated in the trial court’s opinion and in
this Court’s denial of Diana’s motion for rehearing in cause number 2011-CA-0305-COA.
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the property, because it had not been included in the parties’ Rule 8.054 financial statements.
According to the record, there is no dispute that a second mortgage existed during the time
of these proceedings. On remand, the chancellor accepted this error as evidenced by his
statement in his opinion that “it appears the equity of the marital residence is disturbing to
the Court [of Appeals] and frankly it is to this chancellor.” The chancellor corrected this
error by properly adjusting the amount of equity distributed to Diana. It is clear from the
chancellor’s opinion that he weighed all factors in his decision and found the award in line
with Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994),5 as evidenced by his
statements that “[t]his [c]hancellor attempted to make an equitable division and be fair to
both sides,” and that “the $80,000 appeared to be equitable and sufficient for Diana’s needs.”
In addition, the chancellor’s original order valued the “home and furnishings” with respect
to the marital home at $285,000. Although Diana argues the furnishings within the home
were worth significantly more, she provides no evidence to support her contention. In the
absence of that information, this argument is without merit.
II. Permanent and Rehabilitative Alimony
4
UCCR 8.05.
5
“All property division, lump sum or periodic alimony payment, and mutual
obligations for child support should be considered together. Alimony and equitable
distribution are distinct concepts, but together they command the entire field of financial
settlement of divorce. Therefore, where one expands, the other must recede. Thus, the
chancellor may divide marital assets, real and personal, as well as award periodic and/or
lump sum alimony, as equity demands.” Ferguson, 639 So. 2d at 929 (internal citations and
quotations omitted).
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¶10. Diana argues the chancellor erred in not awarding her permanent or rehabilitative
alimony. She asserts that the chancellor’s award was grossly inadequate in light of the
parties’ respective financial situations. She argues that Mark receives approximately $6,500
per month in income compared to the $230 disability payment she receives each month as
well as a $10,000 annuity payment every five years. She contends that “[a]limony, if
allowed, should be reasonable in amount, commensurate with the wife’s accustomed standard
of living, minus her own resources, and considering the ability of the husband to pay.” Gray
v. Gray, 562 So. 2d 79, 83 (¶4) (Miss. 1990). She also contends that the distribution made
by the chancellor falls below her accustomed standard of living, and therefore should be
adjusted.
¶11. In response, Mark argues that the chancellor did not abuse his discretion by not
awarding Diana alimony. “[T]his court will not disturb a chancellor’s findings regarding the
award or amount of alimony unless there is manifest error.” Rodriguez v. Rodriguez, 2 So.
3d 720, 730 (¶26) (Miss. Ct. App. 2009) (citing Armstrong, 618 So. 2d at 1280). According
to Mark the chancellor conducted an analysis of the Armstrong factors as ordered, and his
findings support the fact that Diana was not entitled to rehabilitative or permanent alimony.
Mark argues that the chancellor carefully weighed the factors and found that ten of the
twelve factors weighed in favor of Mark, the other two favored neither party, and therefore
“not one single factor weighed in favor of granting . . . [Diana] alimony.”
¶12. This Court is of the opinion that the chancellor satisfied his obligation on remand.
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The on-the-record analysis of the facts of the case gave context as to how he arrived at his
decisions. The chancellor did not abuse his discretion. The chancellor was instructed to
address the distribution of equity in the marital home and analyze the Armstrong factors with
respect to the alimony. The following factors are to be considered by the chancellor in
arriving at findings and entering a judgment for alimony:
(1) [t]he income and expenses of the parties; (2) [t]he health and earning
capacities of the parties; (3) [t]he needs of each party; (4) [t]he obligations and
assets of each party; (5) [t]he length of the marriage; (6) [t]he presence or
absence of minor children in the home, which may require that one or both of
the parties either pay, or personally provide, child care; (7) [t]he age of the
parties; (8) [t]he standard of living of the parties, both during the marriage and
at the time of the support determination; (9) [t]he tax consequences of the
spousal support order; (10) [f]ault or misconduct; (11) [w]asteful dissipation
of assets by either party; or (12) [a]ny other factor deemed by the court to be
“just and equitable” in connection with the setting of spousal support.
Armstrong, 618 So. 2d at 1280. As evidenced from the court’s judgment, the chancellor
went step by step through each factor explaining his analysis. The court’s judgment stated:
(1) The parties[’] income and expenses. Mark[’s] . . . income is, without a
doubt, greater than Diana’s. However, out of that income comes great
expenses[.] (i.e.[,] the house mortgages as well as living expenses and
educational expenses of the parties[’] minor child, Alan, without the benefit
of financial help from Diana). Diana left the marital residence to move to
Florida to become knowledgeable in the real estate market in that area and
according to testimony, she had numerous contacts in that arena. Her expenses
further were not that great and [she] was not “saddled” with expenses of the
minor child, Alan. (2) The parties[’] health and earning capacities. At the
time of the divorce both parties’ health was good and even though Mark’s
earning capacity was greater, Diana was capable of making a living in the real
estate market in Florida. (3) Each party’s needs. The division of the marital
assets as well as $36,000.00 [in] lump-sum alimony . . . and the $80,000.00
appeared to be equitable and sufficient for Diana’s needs. (4) Each party’s
obligations and assets. Diana’s obligations were not that great[,] especially in
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view of the fact that she had no financial obligations to support the minor child
and his educational or medical needs. Her equitable division of assets
appeared substantial in view of her estimate of the value of the condominium
and the equity thereon, which was given to her. (5) The length of marriage.
Although the marriage was some sixteen years, they lived apart and separate
for some years with Diana choosing to reside in [F]lorida and learn the Florida
real estate business. (6) The presence or absence of the minor children in the
home, which may require that one or both of the parties either pay, or
personally provide[,] child care. Diana does not have the responsibility
financially with regard to the health, education[,] and support of their minor
child, Alan. This is huge and “insulates” Diana from the financial pitfalls of
raising a child to majority (and then some). (7) The parties’ age. This Court
doesn’t consider this to be a factor. (8) The parties’ standard of living, both
during the marriage and at the time of the support determination. This factor
concerned the Court as both parties lived above their respective means. (9)
The parties[’] tax consequences of any spousal support order. The Court did
take this into consideration[,] hopefully not burdening Diana with tax
consequences of a support order. (10) Fault or misconduct. The Court did
take this, somewhat, into consideration in its ruling. Diana’s marital infidelity
and deciding to remove herself from the marital home and from the trials and
tribulations of the marriage and raising an adolescent son definitely was an
important consideration. (11) Wasteful dissipation of assets by either party.
As noted before, Diana’s lavish lifestyle was a continuous drain and wasteful
dissipation of assets. Living outside the marriage in West Palm Beach and
excessive gambling was not helpful to the marriage, nor the accumulation of
assets. (12) Any other factor deemed by the Court to be “just and equitable”
in connection with the setting of spousal support. A huge factor in not
awarding any alimony, rehabilitative or period[ic][,] was [the] “just and
equitable” factor . . . . [T]his Court placed the entire financial obligation of
raising the parties’ child . . . on Mark. This Court also felt that the lump-sum
alimony in the amount of $36,000 was another equitable factor that negated
periodic or rehabilitative alimony being awarded.
¶13. The chancellor demonstrated his analysis of the Armstrong factors. On remand, this
Court gave the chancellor the instruction to, “[i]f necessary, . . . make adjustments to his
equitable-distribution award.” Accordingly, the chancellor’s award to Diana of $28,500 of
equity in the marital home and the award of $51,500 of additional alimony were not manifest
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error, and this Court does not find that the chancellor abused his discretion.
¶14. Accordingly, we affirm.
¶15. THE JUDGMENT OF THE CHANCERY COURT OF PANOLA COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., GRIFFIS, PJ., BARNES, ISHEE, CARLTON, FAIR AND WILSON,
JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN
OPINION. GREENLEE, J., NOT PARTICIPATING.
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