An Assertion is not Conclusive Proof

February 25, 2020 § Leave a comment

Raymond Reynolds appealed from the chancellor’s ruling on equitable distribution in his divorce case with his wife, Kay. Raymond complained on appeal that the chancellor had erred in not considering Kay’s withdrawal of $6,000 from their joint account counter to the temporary order’s injunction.

The COA affirmed 10-0 in Reynolds v. Reynolds, decided December 17, 2019. Here’s how Judge Tindell’s opinion dealt with Raymond’s claim:

¶19. Prior to distribution, the chancellor entered a temporary order on May 20, 2014, which enjoined the parties from liquidating, transferring, or changing beneficiaries for any marital assets. Raymond claims that Kay transferred approximately $6,000 from the couple’s joint checking account after this order was entered. Raymond now argues that the chancellor abused his discretion by failing to consider this transfer in his Ferguson analysis before distributing the couple’s marital assets.

¶20. The second Ferguson factor requires the chancellor to consider any dissipation of the marital assets, or “the degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.” Ferguson, 639 So. 2d at 928. While Mississippi has no specific test for discerning the dissipation of marital assets, “we find it reasonable when considering if marital assets have been dissipated to look to whether the assets in question were actually wasted or misused.” Smith v. Smith, 90 So. 3d 1259, 1268 (¶37) (Miss. Ct. App. 2011).

¶21. In his final judgment, the chancellor stated that he did not find any unreasonable dissipation of marital assets by either party prior to the injunction of the temporary order or prior to trial. Raymond disagrees with this finding, arguing that he provided the chancellor with undisputed testimony that Kay took approximately $6,000 from the parties’ joint checking account in violation of the temporary order and that the chancellor failed to include this in his Ferguson analysis. However, Kay disputed Raymond’s testimony herself by testifying that Raymond actually withdrew $7,000 from the joint checking account, and she did not. She further testified that when she withdrew from the account, there was only approximately $1,000 left in the account.

¶22. Also, as Kay asserts in her brief, no evidence exists in the record establishing if or exactly when any transfers from the joint checking account would have occurred. Raymond provided no documentation of the alleged transfer to the chancellor prior to or during the trial. The only evidence Raymond used to establish this claim is his own testimony and nothing more. As such, the chancellor had no substantial evidence of Kay’s alleged transfer before him to incorporate into his Ferguson analysis. We therefore find Raymond’s argument to be without merit and find that the chancellor was well within his discretion in determining that no dissipation of assets occurred.

Every chancellor can recount from experience many times when the only evidence on a particular point is one party’s assertion opposed by the other party’s assertion, both unsupported by any other evidence. In that situation the lawyers have left it up to the judge to conclude either that (1) both are credible and the conflict simply can not be resolved, or (2) one is credible and the other is not, and the court goes with the credible one.

When I am presented with a similar situation I wonder why neither party offered the bank statements into evidence, or a series of corroborating text messages, or an admission, or something, anything, to break the tie. Most lawyers do enough discovery to foresee the conflicted positions and to anticipate a way around it. I’m not trying to criticize the lawyering in this case because I don’t know everything that transpired. I am only using this case to illustrate for you what can happen when the testimony is conflicting on a point that proves to be important in your case.

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