Tommy Anderson v. Carrie Anderson ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-CA-00532-COA
TOMMY ANDERSON APPELLANT
v.
CARRIE ANDERSON APPELLEE
DATE OF JUDGMENT: 07/11/2018
TRIAL JUDGE: HON. C. MICHAEL MALSKI
COURT FROM WHICH APPEALED: LEE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: BRIAN LEE STARLING
ATTORNEY FOR APPELLEE: JAK McGEE SMITH
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 03/31/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Carrie Anderson was granted a divorce from her husband, Tommy (T.J.) Anderson,
on the statutory grounds of adultery and habitual cruel and inhuman treatment. T.J. appealed
the chancery court’s determination of certain issues regarding real and personal property.
Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2. T.J. and Carrie were married on January 12, 2008. The parties have two minor
children, Robert1 (born in 2011) and Jane (born in 2014). On October 2, 2015, Carrie filed
for divorce in the Lee County Chancery Court on the ground of irreconcilable differences.
1
Fictitious names are used for the minor children.
Carrie later filed two amended complaints for divorce on the statutory grounds of adultery
and habitual cruel and inhuman treatment. T.J. filed answers to Carrie’s first and second
amended complaints for divorce. He did not file a counter-complaint seeking any relief.
¶3. The case was tried over a period of eight days, beginning in November 2016 with the
last day of trial on November 9, 2017. On March 8, 2018, the chancery court entered a
“Memorandum Opinion and Final Judgment” granting Carrie a divorce on the statutory
grounds of adultery2 and habitual cruel and inhuman treatment.3
¶4. In its opinion and final judgment, the chancery court addressed the numerous issues
before it, including custody of the couple’s two children, visitation, support, and related
matters; property division; issues surrounding T.J.’s contempt, intentional misrepresentations
to the court, and retroactive child support; attorney’s fees; and the sale of the homestead.
¶5. T.J. appealed following the chancery court’s final judgment with respect to three
issues: (1) the chancery court’s classification of fifty-nine acres deeded to T.J. and Carrie
from Carrie’s grandmother as non-marital property and award of it to Carrie; (2) the chancery
court’s determination on the division of furniture and appliances; and (3) the chancery court’s
determination that T.J. must reimburse his son’s savings account in the amount of $14,000,
plus interest that would have accumulated had the funds not been withdrawn. We now
address the facts relating to these three issues.
2
T.J. admitted at trial to having several sexual relationships during the marriage.
3
We address the evidence relating to this statutory ground in connection with the
facts relating to T.J.’s assertion that the chancery court erred in classifying fifty-nine acres
from Carrie’s grandmother as non-marital property and awarding it to Carrie.
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A. Issues
I. The Fifty-Nine Acres of Land
¶6. Carrie’s grandmother, Clytee Hansberger, owned fifty-nine acres of unimproved real
estate in Pontotoc County, Mississippi. The record contains a September 2013 warranty deed
from Mrs. Hansberger (through CH Farms LLC) to Carrie and T.J. At trial, Carrie testified
that the land was supposed to be put in her name and that the property had “been in the
family a long time” and “would have most likely been given to [her] once [her] grandmother
passed away.”
¶7. According to Carrie’s testimony at trial, when Carrie and T.J. went to have the deed
prepared by the family lawyer, Jimmy Bingham, she “was afraid that [T.J.] would be upset”
if his name was not on the deed, so she had Bingham put his name on the deed. When Carrie
was asked why she did not change the deed so that the property was in her name, alone,
Carrie testified that she was too afraid of T.J. to do so, as follows:
T.J. was standing right next to me with Jimmy Bingham and I was scared of
his reaction of what—I was scared of him. I was afraid what he would do if
I asked Jimmy to do the deed just in my name as it was intended when I went
to his office.
¶8. Regarding Carrie’s fear of T.J., testimony at trial reflects that T.J. attacked Carrie,4
punched numerous holes in the walls and doors in both their Tupelo and Senatobia homes,5
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Carrie testified that T.J. had physically assaulted her on several occasions. One of
Carrie’s witnesses, Brittani Boatwright, testified that while she was an overnight guest of
T.J. and Carrie, she witnessed T.J. grab Carrie, push her up against the fireplace, and hit and
choke her.
5
Carrie testified that T.J. would frequently lose his temper, go into a rage, and punch
holes in the walls and doors of their house. This testimony was corroborated by two other
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killed at least two of their dogs,6 and frequently threatened and verbally abused Carrie. As
noted above, the chancery court granted Carrie a divorce on the statutory ground of habitual
cruel and inhuman treatment (as well as on the ground of adultery).
¶9. Neither Mrs. Hansberger nor Bingham testified at trial. The record reflects that the
property was debt-free when it was deeded to Carrie and T.J., the parties made no financial
contribution toward the property and its maintenance, and the parties did not use it. Carrie
testified that the property was under lease to two gentlemen, which was set up through a trust
with any maintenance being paid through the trust.
II. The Furniture and Appliances
¶10. Carrie testified that her grandmother and other relatives had given her quite a bit of
furniture over the years or that she had furniture that had been hers since college. She
admitted that “everyone [in the family]” used the furniture. Carrie took some of this furniture
from the marital home to her grandmother’s home when she left T.J. Carrie testified that she
returned a number of items to the marital home for T.J.’s use. At trial, Carrie introduced
Exhibit No. 29 that showed what she took and what T.J. got from the division of the marital
personal property.
¶11. The record reflects that T.J. did not file a counter-complaint asking for an equitable
witnesses.
6
As a side job during the marriage, T.J. would train his own dogs as hunting dogs for
sale. Carrie testified that T.J. killed at least two of the dogs when T.J. would lose his temper
or the dog did not appear to meet T.J.’s expectations. She also testified that T.J. hit the dogs
with a bat with “enough force to break bones” and “put shock collars on [the dogs] and turn
it up so high that their whole front body would raise and they would have . . . foam in their
mouth and they would be terrified.”
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division of the personal property. At trial, T.J. made an objection that Carrie got valuable
furniture and that the chancery court should have divided the furniture and appliances. T.J.
did not submit a value for any of the furniture or submit a list of furniture and appliances that
he wanted. T.J. did not deny that he got the furniture listed in Exhibit No. 29.
III. Robert’s Savings Account
¶12. In 2013, Carrie’s grandmother, Mrs. Hansberger, gave $14,000 to T.J. and Carrie’s
son, Robert, as a college fund. Robert was only two years old at the time that Mrs.
Hansberger gave him this college fund. T.J. put this money into a savings account in T.J.’s
and Robert’s names.
¶13. During the marriage, T.J. withdrew sums of money on different occasions from
Robert’s college savings account until there was no money left in the account. T.J. testified
at trial that Carrie was “generally aware” that he had withdrawn the money. Carrie testified
that she was not aware that T.J. had taken this money until the parties separated and she
found a passbook savings account, which showed that T.J. had removed all of the money.
T.J. admitted at trial that he never put any of the money into the parties’ joint account. He
testified that he “paid bills with it” but was unable to specifically account for it.
B. Additional Procedural History
¶14. The chancellor stated on the record at trial that T.J. was “among the most dishonest
individuals that I have had on the stand” in his years as a judge. It was brought out at trial
that T.J., for example, misrepresented his employment history, salary, and commissions to
the chancery court. In its opinion and final judgment, the chancery court declined to
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“catalogue the egregious examples of T.J.’s numerous lies,” but the court did describe an
incident where T.J. denied he had posted derogatory remarks about Carrie on social media.
Later in the trial, when Carrie’s lawyer arranged for a “police computer expert” to testify,
T.J. confessed that he had in fact sent the posting and had lied to the court about it.
¶15. As noted above, the chancery court entered its opinion and final judgment on March
8, 2018, granting Carrie a divorce on two statutory grounds: adultery and habitual cruel and
inhuman treatment. T.J. filed a “Motion from Relief from Order” on July 9, 2018, in which
he primarily sought modification of his child support obligation, but he also requested in that
motion that he “be credited to his judgment debt for half the value of the marital property
removed from the marital home by [Carrie].”
¶16. On July 11, 2018, the chancery court entered its order on T.J.’s motion, addressing
certain child support calculations not at issue in this appeal. As to T.J.’s request regarding
a credit to his judgment debt for alleged marital property removed from the home, the order
provided that “all other provisions of the Court’s Memorandum Opinion and Final Judgment
shall remain in full force and effect unless modified herein.” The July 11, 2018 order also
provided that “[u]pon entry of this order, the court’s Memorandum Opinion and Final
Judgment of March 7, 2018, shall be considered a final judgment [for] all purposes.”7 T.J.
appealed.
STANDARD OF REVIEW
¶17. As the Mississippi Supreme Court recently reiterated in Williams v. Williams, 264 So.
7To avoid repetition, the portions of the chancery court’s opinion and final judgment
relating to the issues on appeal will be set forth in the discussion portion of this opinion.
6
3d 722, 725 (¶5) (Miss. 2019):
This Court will not disturb a chancellor’s judgment when supported by
substantial evidence unless the chancellor abused his discretion, was
manifestly wrong, clearly erroneous, or an erroneous legal standard was
applied. Under this standard of review, our purpose is to determine whether
the chancellor’s ruling was supported by credible evidence, not whether we
agree with that ruling. However, we review the chancellor’s interpretation and
application of the law de novo.
(Citations and quotation marks omitted).
DISCUSSION
I. The Fifty-Nine Acres of Land
¶18. The chancery court found that the fifty-nine acres from Carrie’s grandmother jointly
titled in Carrie’s and T.J.’s names was Carrie’s separate, non-marital property, as follows:
While some coercion may have been placed on Carrie to have T.J.’s name
place on the deed [to the fifty-nine acres], even if there had been no coercion,
the Court would still find the 59 acres to be Carrie’s separate, non-marital
property. The property came from Carrie’s grandmother debt free. The parties
never improved the property or put any money into the property.
The chancery court recognized that “[i]nter vivos gifts and inheritances are considered
non-marital property unless they have been commingled.” McDonald v. McDonald, 115 So.
3d 881, 885-86 (¶12) (Miss. Ct. App. 2013). The chancery court found that “[t]he fact that
the 59 acres was jointly titled [in this case] did not make it a marital asset.” Id. at 886 (¶¶12-
14) (finding property purchased with funds inherited by a husband was the husband’s
separate property despite the property being jointly titled in both the husband and the wife);
see also Marter v. Marter, 95 So. 3d 733,737-38 (¶¶11-16) (Miss. Ct. App. 2012) (finding
that property inherited by a wife prior to marriage and later jointly titled remained the wife’s
separate property); Delk v. Delk, 41 So. 3d 738, 741-42 (¶17) (Miss. Ct. App. 2010)
7
(recognizing that condominium property separately owned by a wife prior to marriage but
later jointly titled did not become marital property until the couple began using the property
as their marital home, and thus the husband was not entitled to a full half of the proceeds
from the condominium). The chancery court expressly noted that “[t]he parties never lived
on or improved the property. There was absolutely no commingling with marital property
nor was the property utilized for domestic purposes.” Continuing, the chancery court found
that the fifty-nine acres did “not los[e] its status as nonmarital property,” and ordered that T.J.
deed his interest in the tract of land to Carrie.
¶19. T.J. asserts that the chancery court committed manifest error in this determination
because the property at issue in this case was never Carrie’s separate property in the first
place, and thus the cases the chancery court relied upon in making its determination,
McDonald, Marter, and Delk, are distinguishable. T.J. argues that in contrast to the
circumstances in these cases, Carrie did not inherit the property, it was not purchased with
inherited money, and was it not property Carrie owned prior to the marriage and later jointly
titled. Rather, the property was acquired during the marriage and titled directly from Mrs.
Hansberger to both T.J. and Carrie as an inter vivos gift; therefore, according to T.J., it is
marital property, and he is entitled to an equitable division of that property.
¶20. Carrie, on the other hand, asserts that the evidence supports the chancery court’s
determination that the fifty-nine acres from her grandmother is her separate property and that
under the cases relied upon by the chancery court, the mere fact that the property is jointly
titled in both her and T.J.’s names does not, standing alone, convert the property to marital
property subject to equitable distribution.
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¶21. In addressing this issue, we acknowledge that “[a]ssets 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.” Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994);
see generally Deborah H. Bell, Bell on Mississippi Family Law § 6.03[1][a], at 139 (2d ed.
2011) (“Because of the presumption in favor of marital property, a spouse seeking separate
classification bears the burden of proof.”). Although, as T.J. asserts, the record does contain
the 2013 warranty deed from Mrs. Hansberger to both T.J. and Carrie obtained by them
during their marriage, we find that the record also contains substantial, credible evidence
supporting the chancery court’s determination that this property is attributable to Carrie’s
separate estate.
¶22. In particular, although neither Mrs. Hansberger nor the attorney who prepared the
deed testified at trial, Carrie testified that it was her grandmother’s intent that she (Carrie)
have the property.8 Moreover, there was ample evidence presented at trial that Carrie
legitimately feared for her safety and welfare if she did not have the land jointly titled, and
thus she was essentially coerced into doing so.9 Cf. Estate of Langston v. Williams, 57 So.
8As detailed in the statement of facts, Carrie testified that the land was supposed to
be put in her name and that the property had “been in the family a long time” and “would
have most likely been given to [her] once [her] grandmother passed away.”
9
As detailed in the statement of facts, Carrie testified that she was too afraid of T.J.
to have title placed in her name alone. Regarding this fear, the record reflects that T.J. had
attacked Carrie, punched numerous holes in the walls and doors in both their Tupelo and
Senatobia homes, killed several of their dogs, and frequently threatened and verbally abused
Carrie. As noted, the chancery court granted Carrie a divorce on the statutory ground of
habitual cruel and inhuman treatment.
9
3d 618, 620-21 (¶10) (Miss. 2011) (describing the analogous concept of undue influence in
the will context as using “undue methods for the purpose of overcoming the free and
unrestrained will of the testator so as to control his acts and to prevent him from being a free
agent”); Bailey v. Estate of Kemp, 955 So. 2d 777, 783 (¶23) (Miss. 2007) (discussing the
analogous concept of duress as requiring “(1) that the dominant party threatened to do
something which he had no legal right to do; and (2) that the wrongful threat overrode the
volition of the victim and caused him to enter an agreement against his free will”).
¶23. In short, there is substantial, credible evidence that the property was intended to be
Carrie’s property and that her fear of T.J. prevented her from having it titled in her name.
The chancery court therefore was correct in relying on McDonald, 115 So. 3d at 885-86(¶¶12-14), in determining that “[t]he fact that the 59 acres was jointly titled [in this case] did
not make it a marital asset.” See also Marter, 95 So. 3d at 737-38 (¶¶11-16); Delk, 41 So.
3d at 741-42 (¶17). The record reflects that the property was debt-free, the parties made no
financial contribution toward the property or its maintenance during the marriage, and the
parties did not use it. We find no manifest error in the chancery court’s determination on this
issue, and we therefore find that T.J.’s first assignment of error is without merit.
II. The Furniture and Appliances
¶24. T.J. asserts that the chancery court erred because it did not address the allocation of
certain appliances and furniture that had been in the couple’s home. T.J. acknowledges that
Carrie testified at trial that the personal property she took from the home when she left was
given to her, alone, or consisted of items she had before she was married. T.J. asserts,
however, that Carrie also admitted at trial that these items were used by the family. For this
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reason, T.J. asserts that even if these items were separate property at one time, they
subsequently were commingled and became marital property subject to equitable distribution.
See Parsons v. Parsons, 741 So. 2d 302, 308 (¶28) (Miss. Ct. App. 1999) (“[W]hen an
individual commingles non-marital assets with joint marital assets, the non-marital assets are
converted into marital assets, subject to an equitable distribution unless subject to an
agreement to the contrary.” (emphasis omitted) (quoting Johnson v. Johnson, 650 So. 2d
1281, 1286 (Miss.1994)).
¶25. Contrary to T.J.’s assertion that the chancery court did not address the allocation of
the furniture and appliances, our review of the chancery court’s opinion and final judgment
shows that the court did address the division of the couple’s personal property, as follows:
“The parties shall have the use, possession, and ownership of the various items of personal
property in their respective possession, except that Carrie shall return to T.J. any and all
firearms in her possession.”
¶26. The record reflects that a list of household items prepared by Carrie was admitted at
trial (Exhibit No. 29) that showed what she took when she left and what T.J. got from the
division of the marital personal property. T.J. did not deny that he got the furniture listed on
Exhibit No. 29. The record reflects that T.J. objected at trial, claiming that Carrie took
valuable furniture and that the chancery court should divide the furniture and appliances.
Although the record reflects that T.J. did not file a counter-claim requesting an equitable
division of this personal property, his “Motion from Relief from Order” filed on July 9, 2018,
requests that he “be credited to his judgment debt for half the value of the marital property
removed from the marital home by [Carrie].” There is nothing in the record from T.J.,
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however, listing or providing a valuation of the furniture and appliances he wanted.
¶27. Under these circumstances, we find no abuse of discretion in the chancery court’s
allocation of this personal property. In this Court’s decision in Kimble v. Kimble, 282 So.
3d 453 (Miss. Ct. App. 2019), we reiterated the principles applicable here:
The foundational step to make an equitable distribution of marital assets is to
determine the value of those assets based on competent proof. It is incumbent
upon the parties, and not the chancellor, to prepare evidence touching on
matters pertinent to the issues to be tried. When a party fails to provide
accurate information, or cooperate in the valuation of assets, the chancellor
is entitled to proceed on the best information available.
Id. at 456 (¶8) (emphasis added) (citations and quotation marks omitted).
¶28. The only evidence the chancery court had relating to the particular personal property
at issue was the list (Exhibit No. 29) Carrie submitted. Under Kimble, it was T.J.’s
responsibility to provide any additional information. Even when the chancellor asked T.J.
if he had such information, T.J. did not submit a list or valuation of the personal property that
he wanted. We find no abuse of discretion in the chancery court’s division of this personal
property because the court was “entitled to proceed on the best information available.” Id.
We therefore find no merit in this assignment of error.
III. Robert’s Savings Account
¶29. On the issue regarding the depletion of Robert’s savings account, the chancery court
found as follows:
During their marriage Carrie’s grandmother gave Carrie, T.J., and [Robert]
$14,000 to put into a savings account for [Robert’s] college education. T.J.
placed this money in his name and in the name of the child. T.J. withdrew the
money from this account. He claims that Carrie knew of the withdrawal.
While the Court does not believe that Carrie knew that T.J. was withdrawing
his son’s money, it would be of small consequence. Carrie knowing would not
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be justification for the withdrawal. T.J. withdrew and used his son’s money.
T.J. will be responsible for replacing any funds he withdrew from his son’s
account in the approximate amount of $14,000 together with any interest those
withdrawals would have generated.
¶30. T.J. asserts that the chancery court committed manifest error when it ordered that T.J.
be fully responsible for replacing the $14,000 removed from Robert’s savings account, in
addition to any lost interest attributable to the missing funds. Citing McLaurin v. McLaurin,
853 So. 2d 1279, 1286 (¶24) (Miss. Ct. App. 2003), T.J. argues that the money taken from
that account was used to pay marital debts, and thus Carrie “should be equally responsible
for replacing the money from the account.”
¶31. We find no merit in T.J.’s assertions. As noted above, when Robert was two years
old, Carrie’s grandmother gave Robert $14,000 as a college fund, and T.J. put this money
into a savings account in T.J.’s and Robert’s names. The record reflects that T.J. withdrew
sums of money on different occasions from this account until there was no money left in the
account. At trial, T.J. testified that Carrie was “generally aware” that he had withdrawn the
money. Carrie, however, testified that she did not know T.J. had taken this money until the
parties separated and she found the passbook savings account showing that the money was
missing. T.J. admitted at trial that he did not put the money in the couple’s joint account.
He testified that he “paid bills with it,” but he could not specifically account for it.
¶32. We find relevant in this analysis that the record reflects a number of incidents
reflecting T.J.’s lack of candor with the chancery court. “[T]he chancellor is vested with the
sole authority and responsibility to assess witness credibility as no jury is present. The
chancellor alone hears the testimony and sees the demeanor of the witnesses.” Culumber v.
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Culumber, 261 So. 3d 1142, 1150 (¶24) (Miss. Ct. App. 2018) (citations and internal
quotation marks omitted). In this case, the chancellor stated on the record that T.J. was
“among the most dishonest individuals that [he had] had on the stand” in the chancellor’s
nearly thirty years as a judge. Particular incidents at trial included T.J. substantially
misstating his employment history and earnings and T.J. denying that he posted messages on
social media berating Carrie and calling her inappropriate names. As described in the
chancery court’s opinion and final judgment,
In Exhibit 43 Carrie was berated and called vile names. T.J. swore that he
knew absolutely nothing about this posting. Several months later, after Carrie’s
attorney had arranged for a police computer expert to testify, T.J. confessed
that he had in fact sent the posting and had lied to the Court about it.
¶33. In light of these circumstances and our limited standard of review, we find that the
chancery court’s order that T.J. replace the funds withdrawn from Robert’s account, plus
interest that would have been generated on those withdrawals, was based on substantial,
credible evidence. We therefore find that T.J.’s assignment of error on this issue is without
merit.
¶34. AFFIRMED.
BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.
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