Partiting the Former Marital Residence

January 14, 2016 § 2 Comments

Robert and Betty Coleman were divorced in 2002. Under the terms of the divorce judgment, Beverly got exclusive use and possession of the former marital residence, which was situated on family land deeded to the couple by Beverly’s mother, until the parties’ minor child attained majority age. Beverly was responsible to pay the mortgage debt, taxes, and insurance on the property, and the parties were to split equally any maintenance expenses. The judgment did not spell out what was to be done when the child turned 21.

In the years following the divorce, Beverly lived in the home and dutifully paid the sums assigned to her. Robert never paid any of the maintenance expenses.

When the child turned 21 in 2013, Beverly filed an action, apparently for modification of the divorce judgment, seeking possession, title to, and ownership of the home.

Robert counterclaimed for partition, and he filed a motion for a summary judgment that partition, rather than modification, was the proper avenue to accomplish the division. The chancellor agreed with Robert, ruling that “the parties are not married, the property is no longer the marital homestead and the property is subject by law to a division by partition as provided by statute.” That’s a neat, pinpoint ruling that avoids the problem that property division may not be modified.

A hearing was held on the petition, and the chancellor ruled that Betty should have title. He adjusted the equities by ordering Beverly to pay Robert $34,103.70, which amounted to his half-equity in the property at the time of the divorce adjusted upward for appreciation over time.

Robert appealed, arguing that the trial court impermissibly modified the divorce judgment and unfairly partited the property.

In Coleman v. Coleman, handed down January 12, 2016, the COA, by Judge Griffis, affirmed.

So, did the chancellor improperly modify the divorce judgment? Judge Griffis responds:

¶7. “A cotenant wishing to partite real property subject to a divorce decree is not required to file suit to modify the decree, but may exercise her statutory right to partition by filing a petition for partition.” Mosby v. Mosby, 962 So. 2d 119, 123 (¶12) (Miss. Ct. App. 2007) (citing Blackmon v. Blackmon, 350 So. 2d 44, 46 (Miss. 1977)). Robert argues that the chancellor essentially modified the divorce decree and that this modification was improper.

¶8. “This argument is without merit because the chancellor clearly granted the petition for partition and did not, in fact, modify the decree.” Id. Robert requested a partition, and the chancellor stated in his judgment that “the parties are no longer married, the equities need to be adjusted[,] and the partition statutes provide a sound method of arriving at a just and equitable result.” The court “proceeded accordingly under partition.” As the chancellor’s decision was based upon the partition statutes and he did not modify the divorce decree, the Court finds this issue without merit.

And did the chancellor abuse his discretion in how he awarded title and adjusted the equities? Again, Judge Griffis:

¶9. When parties seek a partition of land, “the question of title shall be tried and determined in the suit and the court shall have power to determine all questions of title.” Miss. Code Ann. § 11-21-9. In doing so, “[t]he court may adjust the equities between and determine all claims of the several cotenants . . . .” Id.

¶10. Generally, “a partition in kind, rather than a partition by sale, is the preferred method of dividing property in Mississippi.” Cathey v. McPhail & Assocs., 989 So. 2d 494, 495 (¶4) (Miss. Ct. App. 2008) (citing Fuller v. Chimento, 824 So. 2d 599, 601 (¶8) (Miss. 2002)). Robert and Beverly agreed that the home could not be divided in kind and that it should be sold under statute. They also agreed to a private sale to allow Beverly to purchase the home. A chancellor may order the sale of property and “a division of the proceeds among the cotenants according to their respective interests.” Miss. Code Ann. § 11-21-11 (Rev. 2004). As both parties agreed to a sale, the chancellor essentially needed to “adjust the equities between and determine all claims” of Robert and Beverly and divide “the proceeds” between Beverly and Robert “according to their respective interests.” Miss. Code Ann. §§ 11-21-9 & 11-21-11.

As for how the chancellor adjusted the equities, the COA went through the court’s analysis, and found it proper that Robert was awarded his equity at the time of the divorce plus its appreciation, and Beverly was awarded her equity at the time of the divorce, plus its appreciation, plus the additional equity that accrued over the years due to her payment of the mortgage debt. The COA found no merit in Robert’s argument.

Most crucially, the trial judge’s findings were supported by substantial evidence:

¶15. Keeping in mind the appropriate standard of review, this Court holds that the chancellor’s findings of fact and conclusions of law are supported by substantial evidence and are not an abuse of discretion. Robert did not provide any alternatives to the findings of the chancellor. Furthermore, the parties both agreed that a sale to Beverly was ideal. The chancellor’s well-reasoned conclusions are supported by the record and the briefs of the parties. The partition statutes allow for the chancellor to divide the proceeds among the cotenants according to their interests in the property. Miss. Code Ann. § 11-21-11. After inspecting the record, this Court is unable to see that Robert was denied any of his rights as a cotenant in the chancellor’s final decree. Finding no error, this Court affirms.

This is not one of those spectacular, keeper cases that one whips out every few trials. It’s just a workaday, nuts-and-bolts decision that provides a glimpse into the quotidian matters that stream steadily through the chancery courts every day, and how the chancellors are called upon to fashion common-sense, practical solutions.

Tagged: ,

§ 2 Responses to Partiting the Former Marital Residence

  • Michael L. Prewitt says:

    Your Honor, let me pose a question, please about the following scenario that Coleman v Coleman might provide the answer to.

    A divorce was granted nine years ago. The grounds were stipulated to but custody of minor children, ownership of the residence, debts, etc. were litigated. Husband awarded former marital residence but Husband ordered to pay Wife “X” dollars for her equity in the home and to do so within a few months time. Wife was then to convey her interest in the home to the Husband, following payment. Husband never pays and the Wife of course never signs over her interest in the former marital residence.

    It seems to me that the seven year statute of limitations would prevent the Wife from seeking to enforce this Judgment (her right to collect her equity in the house) by means of a contempt action. However, Coleman v Coleman suggests the Wife could pursue a partition action and avoid the SOL imposed in a contempt action and still recover her equitable share. I would appreciate your thoughts on that approach. mlp

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

What’s this?

You are currently reading Partiting the Former Marital Residence at The Better Chancery Practice Blog.


%d bloggers like this: