Separate Maintenance and the Wife’s Material Contribution to the Separation

December 3, 2018 § Leave a comment

The chancellor ordered Rickey McCarley to pay separate maintenance to his wife, Kellie. Unhappy with this result, Rickey appealed, arguing that Kellie had materially contributed to the separation and thus was not entitled to separate maintenance.

In McCarley v. McCarley, handed down August 21, 2018, the COA affirmed. Judge Carlton’s opinion:

¶22. This Court has held that “[a] chancellor may award separate maintenance when (1) the parties have separated without fault by the wife and (2) the husband has willfully abandoned the wife and refused to support her.” Williams v. Williams, 224 So. 3d 1282, 1285 (¶9) (Miss. Ct. App. 2017) (citing Jackson [v. Jackson], 114 So. 3d [768] at 775 (¶17) [(Miss. App. 2013)]. In order to receive an award of separate maintenance, a wife does not have to be blameless, “but her (mis)conduct must not have materially contributed to the separation.” Id. (quoting Daigle v. Daigle, 626 So. 2d 140, 145 (Miss. 1993)). In other words, because an award of separate maintenance arises from equitable principles, “equity requires that . . . the requesting spouse . . . show [that] no significant conduct on her part negatively impacted the marriage or contributed to the separation.” Jackson, 114 So. 3d at 774 (¶16); [Fn omitted] see also King v. King, 246 Miss. 798, 152 So. 2d 889, 891 (1963) (holding that where a wife’s fault regarding the separation “is equal to or greater than that of her husband,” it may serve as a defense to the wife’s suit for separate maintenance.).

¶23. In Jackson, 114 So. 3d at 776 (¶21), we reversed the chancellor’s award of separate maintenance to the wife, Linda, after finding that the chancellor failed to first determine whether Linda materially contributed to the separation. This Court explained that “[t]he equitable relief of separate maintenance requires the requisite evidence of a separation without fault of the wife as well as evidence showing no significant misconduct on her behalf materially contributed to the separation of the parties.” Id. The chancellor’s findings below reflected that “Linda asserted that she wanted to work things out with [her husband,] Paul; that she still loved him; and that she would reconcile if Paul met certain unspecified conditions.” Id. at (¶20). This Court explained, however, that Linda bore the burden of establishing in the record not only a “present willingness to reconcile,” but also “that she had not engaged in significant marital misconduct contributing to the separation.” Id. This Court’s review of the record revealed that Paul separated from Linda after a five to six year period during which Linda “adamantly proclaim[ed] no love for Paul; secretly conduct[ed] financial dealings; fail[ed] to provide companionship or other support for the relationship; . . . demand[ed] [Paul] leave the marital home[;] [and] . . .  repeatedly reminded [Paul] that the marital house and land were hers and that he held no interest in the property.” Id. at 777-78 (¶26). This Court determined that Linda’s actions during this time period constituted marital fault and ultimately held that Linda failed to provide substantial evidence to show that “no significant misconduct on her behalf contributed to the separation.” Id.

¶24. In Tackett v. Tackett, 967 So. 2d 1264, 1267 (¶9) (Miss. Ct. App. 2007), we found no error in the chancellor’s award of separate maintenance to the wife, Kim. This Court reiterated that a “wife need not be totally blameless, and an award of separate maintenance may still be appropriate so long as the wife’s conduct did not materially contribute to the separation.” Id. In Tackett, Kim admitted that “she was partly to blame for the couple’s separation[,] but [she] maintained that [her husband] Tim was more this claim. Id. The record also showed that Tim refused Kim’s suggestion to attend marriage counseling. Id. This Court ultimately held that after reviewing the record, “we cannot say that the trial court manifestly erred in finding that Kim did not substantially contribute to the separation, or that such a decision is not supported by substantial evidence.” Id.

¶25. In the case before us, the chancellor’s amended order sets forth her finding that Kellie “is without material fault in the separation and . . . [Rickey] abandoned [Kellie] and has refused to provide any support. Therefore, [Kellie] has met the burden of proof necessary to support her claim for separate maintenance.” The record reflects that at trial the chancellor heard testimony from Kellie, Rickey, Penny, and Rickey’s brother, Roger. Kellie testified that she and Rickey got married in November 1979 and separated in October 2015, after thirty-six years of marriage. Kellie stated that she would characterize the last five years of her marriage as “okay,” explaining that although they “might not have had the happiest marriage,” they were “content.” Kellie admitted that, although she and Rickey had a lot of problems in their marriage, she ultimately believed “that marriage is for better and worse, until death do us part.” Kellie testified that she and Rickey met in April 2016 to discuss whether they should reconcile or seek a divorce. Kellie stated that Rickey informed her that “he would think about what we discussed,” but she “never heard from him.”

¶26. Kellie testified that during the last year of their marriage, Rickey began drinking alcohol excessively. Kellie admitted that Rickey’s drinking did not affect his performance at work, but she explained that most of his drinking occurred on the weekends or on his days off. Kellie also testified that she discovered bills for a credit card and a loan. Kellie explained that she was not previously aware that Rickey had taken out a loan or obtained a new credit card before her discovery of these documents.

¶27. Regarding physical affection, Kellie testified that she was affectionate with Rickey and often hugged and patted him. However, Kellie testified that she and Rickey had not engaged in a sexual relationship since early 2015 and that they slept in separate bedrooms. Kellie stated that when she broached the subject with Rickey, he informed her that his medication prevented him from having an erection. Kellie testified that she attended one of Rickey’s doctor’s appointments where he explained the issue to the doctor, and the doctor responded that Rickey had to choose between “either tak[ing] some medicine to keep him alive or hav[ing] sexual intercourse.” Kellie admitted that she did not know if Rickey was still taking the medicine.

¶28. Roger characterized Rickey and Kellie’s marriage as “not happy.” Roger testified that he never observed Kellie expressing affection towards Rickey. Roger also testified that Rickey was unfaithful to Kellie on a separate occasion earlier in their marriage.

¶29. Rickey opined that his and Kellie’s marriage was not salvageable. Rickey testified that he and Kellie had not been physically affectionate over the last five years of their marriage, stating, “Every time I went to kiss her, she would turn her cheek on me.” Rickey testified that Kellie asked him to give up alcohol but he refused, explaining “I didn’t want to give up the beer.”

¶30. Rickey testified that when he left the marital home, he “wasn’t interested in another woman,” and he did not leave “because of another woman.” Rickey maintained that he was not romantically involved with Penny prior to his and Kellie’s separation in October 2015, and he testified that he did not begin dating Penny until after he had moved out of the marital home. He admitted that he and Penny worked together for years, and that they had talked on the phone for “one or two years” prior to his and Kellie’s separation. Rickey stated that he did not have sexual relations with Penny until after he moved in with her. Penny also testified and confirmed that she and Rickey did not become romantic until December of 2015.

¶31. After reviewing the testimony at trial, we find that the record contains substantial credible evidence supporting the chancellor’s finding that Kellie did not materially contribute to the separation. We therefore affirm the chancellor’s judgment. Knighten [v. Hooper], 71 So. 3d [1208,] at 1209 (¶5) [Miss. App. 2011)].

Nothing earthshaking here. The case does illustrate the way that a chancellor may process and weigh the proof of marital fault and its impact on separation.


Six Factors for the Amount of Separate Maintenance

November 14, 2018 § Leave a comment

In the case of Daigle v. Daigle, 626 So.2d 140, 145 (Miss. 1993) (quoting Lynch v. Lynch, 616 So.2d 294, 296 (Miss. 1993)) the court laid out six factors that the trial court must consider in determining the amount of separate maintenance:

“There are six factors a chancellor should consider in determining the amount of separate maintenance to be awarded: (1) the parties’ health; (2) the parties’ combined earning capacity; (3) the reasonable needs of the spouse requesting separate maintenance and any children; (4) the necessary living expenses of the payor; (5) the fact that the payee spouse has use of the marital home and furnishings; and (6) any other pertinent facts. Id.

Also cited in Williams v. Williams, 224 So. 3d 1282, 1285 (¶9) (Miss. App. 2017).

When Separate Maintenance Morphs into Alimony

December 8, 2015 § 2 Comments

After William Lane’s wife, Stella, obtained a Mississippi separate maintenance judgment, William moved to Texas and obtained a divorce from Stella there. He then petitioned the Mississippi court to terminate alimony because he was no longer married to Stella.

The chancellor refused William’s request, ruling apparently that the separate maintenance would continue as alimony, and William appealed. In Lane v. Lane, decided December 1, 2015, the COA affirmed. Judge Fair, writing for the majority, laid out the rationale:

¶8. “[A] divorce action involving one resident party and one foreign party may or may not be able to adjudicate personal rights, though it can sever a marriage as long as at least one party is a resident of that state.” [Lofton v. Lofton, 924 So.2d 596, 601 (Miss. App. 2006)]. William personally appeared before the Texas court. At the time the suit was filed, he had been a domiciliary of Texas for six months. Stella entered a general appearance through local counsel, ultimately signing the divorce decree along with William as to “form and substance.” The divorce decree specifically did not litigate the issues of support and property division. In fact, the decree declined jurisdiction over all but the divorce itself, deferring to the chancery court and its separate-maintenance judgment for “all issues involving the division of the property and debt of the parties.”

¶9. In Weiss v. Weiss, 579 So. 2d 539, 540-41 (Miss. 1991), the Mississippi Supreme Court reaffirmed that Mississippi law allows for separate litigation of divorce and alimony. Thomas and Barbara Weiss married in Mississippi. Id. at 540. Thomas later moved to Louisiana and filed for divorce. Id. That same year, Barbara filed a request for separate maintenance in Mississippi. Id. The Louisiana court granted the divorce but reserved the issue of alimony for the Mississippi court. Fn2 Id. Our supreme court held that the Mississippi court had jurisdiction to determine alimony because the parties’ foreign divorce decree did not litigate the issue of alimony. Id. at 541.

Fn2 Barbara’s claim for separate maintenance was no longer proper since a divorce had been granted but was convertible to a claim for alimony. Weiss, 579 So. 2d at 541. Separate maintenance and alimony may both result in payments for a short period of time or an extended period of time (the period of time for separate maintenance is more uncertain). Id. at 542.

¶10. The supreme court dealt with a similar issue in [Chapel v. Chapel, 876 So.2d 290 (Miss. 2004)]. In that case, the Jackson County Chancery Court awarded Grace Chapel separate maintenance in 1996. Id. at 292 (¶5). Mr. Chapel was granted a divorce in Virginia in 1997. Chapel, 876 So. 2d at 292 (¶6). The Mississippi chancellor modified the separate-maintenance agreement in 1998 and 2001. Id. at 294 (¶13). Grace argued that the chancellor lacked subject-matter jurisdiction because the Virginia divorce decree terminated the original separate-maintenance agreement. Id. at 293 (¶10). The supreme court held that “the . . . chancery court continues to have jurisdiction in what originally was the separate-maintenance case, but which converted to one for alimony and other claims compatible with divorce actions[] after the date of the foreign divorce.” Id. at 295 (¶15). Fn3 In her treatise, Bell on Mississippi Family Law (2d Edition 2011), Professor Deborah Bell refers to this as a “recharacterization” of separate maintenance as alimony.

Fn3 The supreme court also stated that because “neither party . . . made formal objections to the chancellor’s authority to modify the original separate-maintenance judgment after the Virginia divorce was granted, it is not necessary for the Court to reach the issue of whether . . . a foreign divorce decree[] terminates a domestic court’s order of separate maintenance.” Chapel, 876 So. 2d at 294 (¶11).

¶11. Like the divorce decree in Weiss, the Texas divorce decree in the present case expressly reserved Stella’s rights to enforce the separate-maintenance order. And, similar to the wife in Chapel, Stella was awarded separate maintenance prior to the entry of a foreign divorce decree, and the foreign decree did not address the issue of separate maintenance. We do not find, like the dissent, that Stella’s failure to expressly petition for alimony prohibits the chancellor’s sua sponte “recharacterization” of separate maintenance as alimony. As stated in Weiss, “‘[a]limony’ and ‘maintenance’ are merely different words used in differing situations to describe the same thing.” 579 So. 2d at 541 (citation and quotation omitted) (emphasis added). Mississippi law clearly provides that the chancery court retained jurisdiction over William and Stella’s separate-maintenance agreement, as acknowledged by the Texas court with the consent and agreement of the parties. [Emphasis in original]

It did not help William’s cause that the parties’ divorce agreement in Texas included language specifically acknowledging the continuing jurisdiction of the Mississippi court, and the Texas judgment afforded the Mississippi judgment full faith and credit and recognized its continuing jurisdiction. Any different language in Texas, however, would not have changed the outcome. Once Mississippi’s courts have acquired jurisdiction over the property and support (maintenance) issues, a subsequent divorce in another state is not effective to deprive the Mississippi court of jurisdiction over those issues.

The dissent would have held that by failing to request “recharacterization” of the separate maintenance award as alimony Stella deprived the chancellor of authority, making it erroneous for him to do so. The majority rejected that approach.

The MSSC dealt with a similar set of issues last year in Pierce v. Pierce, about which I posted here.

Oh, and before I leave the subject, here are three quotes you might find helpful next time you have to deal with an alimony case:

  • “Alimony — the ransom that the happy pay to the devil.”  —  H.L. Mencken
  • “Alimony is like buying oats for a dead horse.”  —  Arthur Baer
  • “Judges, as a class, display, in the matter of arranging alimony, that reckless generosity which is found only in men who are giving away someone else’s cash.” —  P.G. Wodehouse

Attorney’s Fees in a Modification Case

March 10, 2014 § Leave a comment

As a general proposition, I think most family lawyers would agree that it’s out of the ordinary for there to be an award of attorney’s fees in a modification case absent a companion claim for contempt.

But it’s not unheard of, and it does happen.

Take, for instance, the recent COA decision in Collins v. Collins, handed down February 25, 2014. In that case, the chancellor had awarded Myra Collins $4,234.74 in attorney’s fees after she prevailed in her quest to obtain an upward modification of separate maintenance. Her ex, Arthur, appealed, arguing that it was erroneous for the chancellor to award attorney’s fees in a modification case when there was no allegation of contempt, and there was no finding of her inability to pay.

Judge Griffis addressed the issue for the court:

¶16. In Labella v. Labella, 722 So. 2d 472, 475 (¶12) (Miss. 1998), the supreme court found that one of the parties “clearly established an inability to pay because she was unemployed at the time of trial and her only income was in the form of unemployment benefits.” The court noted that “[t]he general rule is that if a party is financially able to pay his attorney’[s] fees[,] he should do so, though this is a matter which is entrusted to chancellor’s sound discretion.” Id. at (¶13) (quoting Anderson v. Anderson, 692 So. 2d 65, 74 (Miss. 1997)). Also, in Hammett v. Woods, 602 So. 2d 825, 830 (Miss. 1992), the supreme court ruled that “[w]here the record shows an inability to pay and a disparity in the relative financial positions of the parties, we find no error” in awarding attorney fees. Here, the lower court found that “[Myra] has proven that she has an inability to pay and that [Arthur] has the much, much greater ability to pay attorney’s fees, and therefore an award of fees is appropriate in this modification proceeding.”

 Does this open the door to an attorney’s fee award in every modification case? Probably not, for a couple of reasons. First, this is a separate maintenance case, and, if you think about it, separate maintenance is in effect an ongoing temporary divorce order. Since its purpose is to provide the wife with as close as possible to her reasonable standard of living without rendering the husband destitute, it stands to reason that her standard of living should not be further reduced by having to pay attorney’s fees to mantain that standard of living. To deny her attorney’s fees wouold defeat the purpose. Second, it has always been the law that, although an award of attorney’s fees is not favored in a modification case, it is appropriate where it would impose an unfair burden on the prevailing party, as where there is a clear inability to pay, or the lack of an award would impoverish children, etc.

This case is not an outlier. Rather, it demonstrates that the chancellor has considerable discretion both as to whether to award a fee, and as to its amount.

The Door to Equitable Distribution

December 16, 2013 § Leave a comment

It would seem to be self-evident that the door to equitable division of the marital estate is not open unless and until the trial court has a viable claim for divorce before it.

Yet, in the case of Brown v. Brown, decided by the COA on December 3, 2013, Kimberlye Brown argued that the chancellor erred when she denied Kimberlye’s prayer for equitable distribution after the chancellor had denied both parties a divorce, and, in addition, denied Kimberlye’s claim for separate maintenance. Kimberlye appealed. Judge Lee addressed the issue for the COA majority:

¶19. Kim contends that the chancellor erred in refusing to divide the marital estate. A chancellor has the authority to divide the marital estate after a divorce has been granted. Ferguson v. Ferguson, 639 So. 2d 921, 927 (Miss. 1994). In cases where only separate maintenance has been granted, however, a chancellor does not have the power to award either party a portion of the marital estate. In Daigle v. Daigle, 626 So. 2d 140, 146 (Miss. 1993), the supreme court stated that separate maintenance “is not a dissolution of a marriage and dividing of marital assets . . . .” And the court found that the chancellor erred by dividing the marital assets. Id.

¶20. Furthermore, in Thompson v. Thompson, 527 So. 2d 617, 622-23 (Miss. 1988), the court stated:

The legal duty of the husband to support his wife does not require that he convey any property to her. During cohabitation the wife has the legal right to live in the husband’s home, but he is under no legal duty to convey it to her. And after separation her legal rights are no greater than before. . . . [T]he court should not, under the guise of enforcing that contractual duty, deprive him of his lands or other specific property, where not necessary for the enforcement of that duty.

(Citations omitted).

¶21. By asking the chancellor to divide the marital assets in the absence of a divorce decree, Kim is asking for her legal rights to be greater than they were before the separation. The chancellor did not have the authority to divide the marital assets, because the claims for divorce had been denied. This issue is without merit.

Some of the toughest swivets I ever sweated out as a lawyer were the ones where I argued something I considered so elementary that I did not even bother to gather some authority to take with me, yet I discovered to my chagrin that the chancellor was blithely unaware of the law on the point. A senior chancellor once threatened to throw out my client’s contest of a modification petition filed against him because I had not filed an answer. To compound matters, the lawyer on the other side argued that an answer was absolutely required. Neither found the express language of R81 very persuasive. Ouch.

So you might want to tuck away the above language from the Brown case in that special place where you store your legal survival gear. It just might come in handy after you have successfully defeated your opponent’s claims for divorce and separate maintenance, and opposing counsel rises and says, ” … and now, your honor, about our prayer for equitable distribution …”

The Nexus Between Separate Maintenance and Desertion

December 10, 2013 § Leave a comment

Brenda Reeves left her husband Howard in February, 2008, and, soon after, Howard sued her for separate maintenance. Brenda responded with a motion to dismiss, and, after a hearing, the chancellor found that Howard’s abuse of alcohol, and his physical and emotional abuse of Brenda, were the proximate causes of her departure. He dismissed Howard’s complaint for separate maintenance following the trial, in February, 2010.

In March, 2010, Howard filed a Complaint for Divorce on the ground of desertion, which he shortly after dismissed.

In April, 2011, Howard filed another Complaint for Divorce on the ground of desertion. Brenda again filed a motion to dismiss, which the court denied. At trial in February, 2012, Brenda argued that Howard’s complaint should be dismissed because, under Mississippi law, if the plaintiff had previously filed an unsuccessful separate maintenance action, he must prove that he made a good-faith offer to reconcile with his spouse at least one year prior to filing the divorce complaint. The chancellor ruled that Howard had not submitted adequate proof to meet his burden, and he dismissed Howard’s complaint. Not at all happy with the outcome, Howard appealed.   

In the COA case of Reeves v. Reeves, decided December 3, 2013, the COA affirmed the trial judge’s ruling. This is case law of which you need to be aware. Here is how the COA, by Judge Ishee for a unanimous court, addressed it:

¶8. Howard asserts the chancery court erred in finding that he failed to meet the one-year requirement for seeking a divorce on the ground of desertion. As such, Howard also asserts that the chancery court erred in failing to grant him a desertion-based divorce. The supreme court has addressed divorce cases such as the instant case wherein a separate maintenance action has been adjudicated prior to the filing for divorce on the ground of desertion. See Day v. Day, 501 So. 2d 353, 354 (Miss. 1987). In Day, the supreme court summarized desertion as follows:

If either party, by reason of such conduct on the part of the other as would reasonably render the continuance of the marital relationship unendurable, or dangerous to life, health[,] or safety, is compelled to leave the home and seek safety, peace[,] and protection elsewhere, then the innocent one will ordinarily be justified in severing the marital relation and leaving the domicile of the other, so long as such conditions shall continue, and in such case the one so leaving will be not guilty of desertion. The one whose conduct caused the separation will be guilty of constructive desertion[,] and if the condition is persisted in for a period of one year, the other party will be entitled to a divorce.

Id. at 356 (citation omitted).

¶9. However, the determination of whether desertion exists is viewed differently in light of an adjudicated separate-maintenance order. Id. (citation omitted). The supreme court noted that if a plaintiff seeking divorce can show that, “since the judgment for separate maintenance in favor of the defendant, the conditions have changed and the plaintiff has made efforts of reconciliation with the defendant with no avail, [then] the defendant is now a deserter and the plaintiff is entitled to a divorce for desertion.” Id. (citation omitted). The proof must show that the plaintiff was “honest in his intention to remedy his fault, and that his offers of reconciliation and request to return were made in good faith, with honest intention to abide thereby, and that the defendant deliberately refused his offers.” Id. at 357 (quoting Rylee v. Rylee, 142 Miss. 832, 840-14, 108 So. 161, 163 (1926)).

¶10. The evidence before us fails to prove that Howard made a good-faith reconciliation offer at least one year prior to April 11, 2011, as required by Day and Rylee. Howard testified at trial that he called Brenda once a month asking to reconcile. Brenda disputes this fact and further asserts that Howard’s occasional generic request to reconcile did not include a promise that he would seek rehabilitation for his alcohol abuse, nor did his requests include repentance for his prior abusive actions toward Brenda or promises that the abuse would not occur again. The evidence shows that the only good-faith reconciliation offer acknowledged by both parties was made on or about June 7, 2011 — approximately two months after Howard filed his complaint for divorce on the ground of desertion.

¶11. This was reflected in the chancellor’s following comments made during his ruling:

It seems to me that after a separate[-]maintenance proceeding, in order for the time to start ticking under Day, it is incumbent upon Mr. Reeves to make a good[-]faith offer. . . . I don’t have proof that I think rises to a preponderance of the evidence to show that Mr. Reeves made an offer for Mrs. Reeves to return home, satisfying whatever concerns she may have had, that would have started the one year running as contemplated by Day. I’m going to decline to talk about the reasonableness or unreasonableness of these post[-]filing offers that have transpired between Mr. and Mrs. Reeves . . . .

We agree with the chancellor. The law is clear that, under these circumstances, Howard was required to make a good-faith reconciliation offer at least one year prior to filing a complaint for divorce on the ground of desertion. The evidence simply does not show that he did so. As such, the chancellor did not err in his determination that Howard failed to meet the one year requirement at issue. This issue is dispositive of Howard’s second claim on appeal that the chancery court erred in failing to grant him a divorce on the ground of desertion. These issues are meritless.

Two observations:

  • Notice in ¶10 that the COA finds from the record that Howard had neither (1) undergone rehabilitation for his alcohol abuse, nor (2) repented for his prior conduct. This is language that you can use when you have a separate maintenance case in which the payer claims to have had his offers to reconcile rejected. It seems that what the COA is saying is that the offeror must prove measures to reform, and must make amends with the offended party. “Generic” offers to return home won’t cut it.
  • Cases of this type were more common before irreconcilable differences divorces by consent became available. Every now and again one runs into a pleading and procedural scenario like the Reeves case presented, and you have to be prepared to meet it. Remember that it takes more to prove desertion than mere separation without fault for a year or more. Since a good-faith offer of reconciliation within the one-year period will stop its running, the offended party must prove that she or he would have been willing to reconcile within that first year if a bona fide offer to do so had been made, but none was made. 


June 10, 2013 § Leave a comment

Separate maintenance is that peculiar neverland of the marriage where one is neither quite in a marital relationship, nor quite out of a marital relationship. It’s like limbo.

We are all familiar with the old maxim that, “Separate maintenance is a judicial command to resume cohabitation or to provide support.” The focus in most separate maintenance trials is almost always on the (usually) husband’s adamant refusal to return home to the wife, and the wife’s need for financial help.

That was the focus of the chancellor in the case of Paul Jackson v. Linda Jackson. After the trial, the chancellor noted Paul’s testimony that he had no intention of returning to the marital relationship, primarily due to a subsequent relationship, and accordingly zapped Paul with $600 a month, use of a house and land, proceeds of an income-tax refund check, and “other relief.”

Paul appealed, and in the case of Jackson v. Jackson, handed down from the COA on May 28, 2013, the appellate court reversed. Paul’s complaints on appeal were several-fold, but the one that hit the bulls-eye is in the following language from Judge Carlton’s opinion:

¶11. The factual findings of the chancellor are reviewed to determine if the award is supported by substantial evidence or whether the decision reflects manifest error. Fore v. Fore, 109 So. 3d 137, 138 (¶6) (Miss. Ct. App. 2013); see also Rodgers v. Rodgers, 349 So.2d 540, 541 (Miss. 1977) (finding that where the wife’s course of conduct was a material factor in causing the separation at least equal to, if not great than, that of the husband, the decree of separate maintenance was erroneous); Tackett v. Tackett, 967 So. 2d 1264, 1266-67 (¶¶8-10) (Miss. Ct. App. 2007) (finding that the record supported the award of separate maintenance since evidence showed the wife’s conduct did not materially contribute to the material separation). Additionally and significant to our review of this case, the power of the court to grant the equitable relief of separate maintenance must be based on the requisites of a separation without material fault of the petitioner or requesting spouse and willful abandonment of her by the husband with refusal to support her. See Rodgers, 349 So. 2d at 541; Lynch v. Lynch, 616 So. 2d 294, 296 (Miss. 1993); Pool v. Pool, 989 So. 2d 920, 927 (¶¶20-21) (Miss. Ct. App. 2008). [Emphasis added]

All three prongs of separate maintenance must be present in order to prevail for the claiming party. There must be:

  1. Separation without material fault on the part of the requesting party, and
  2. Willful abandonment by the other party, and
  3. Refusal to support.

Until all three are met, there is no entitlement to separate maintenance.

In Jackson, the COA held that the chancellor had slid past the evidence of Linda’s fault, which the COA deemed considerable as well as material, and concentrated on Paul’s own misconduct and refusal to support. The COA found that Linda had failed to prove that she was without material fault:

¶16. We acknowledge that “[s]eparate maintenance is . . . court-created equitable relief based upon the marriage relationship and is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her until such time as they may be reconciled to each other.” Forthner v. Forthner, 52 So. 3d 1212, 1219 (¶13) (Miss. Ct. App. 2010). Moreover, Linda bore the burden of proof to show more than Paul’s marital misconduct. “The granting of separate maintenance is premised upon the existence of a valid marriage contract” and premised upon a showing that “there is no significant conduct on the part of the requesting spouse that negatively impacts the enjoyment of the marriage contract.” Id. [Fn 4] An award of separate maintenance arises from equitable principles, and equity requires that, as the requesting spouse, Linda show no significant conduct on her part negatively impacted the marriage or contributed to the separation. Linda failed to meet the evidentiary burden required to sustain a separate-maintenance award. Linda also failed in her burden to show that Paul refused to support her, as reflected in the omissions in her Rule 8.05 financial statement. Linda failed to disclose her free residence, real-property remainder interest, business interests, and other assets. We now turn to address jurisprudence applicable to separate maintenance and to the facts of this case.

Fn 4. See also Robinson v. Robinson, 554 So.2d 300, 304 (Miss. 1989).

¶17. In Rodgers [v. Rodgers], 349 So. 2d at 541, the Mississippi Supreme Court explained that the jurisdictional basis of a separate-maintenance decree stems from equitable principles first laid down in Mississippi in Garland v. Garland, 50 Miss. 694 (1874). The very power of the court to grant separate maintenance was based upon the following two requirements: (1) a separation without fault on the part of the wife, and (b) the husband’s willful abandonment of her with refusal to provide support to her. [Fn 5] Rodgers, 349 So. 2d at 541. The Rodgers court explained that these two requirements must be satisfied in order for the court to possess the equitable power to order separate maintenance. Id. The court further explained that the law applicable to separate-maintenance awards includes no requirement that the requesting spouse be blameless. Id.

Fn 5. The application of equal-protection principles allows either spouse to seek the5 equitable remedy of separate maintenance. However, since Linda is the petitioner in this case claiming the entitlement, this opinion refers to the wife as the petitioner in its analysis.

¶18. As previously discussed, our jurisprudence establishes that in order for the court to equitably award separate maintenance, the misconduct of the abandoned spouse must not have materially contributed to the separation. See id. In Rodgers, the supreme court provided guidance explaining that the requesting spouse need not be blameless or without any fault before invoking the equity required for separate maintenance. Id. The supreme court explained that where a wife’s course of conduct is a material factor in the separation at least equal to, if not greater than, that of the husband, the decree of separate maintenance is erroneous. Id. The supreme court in Rodgers found such an award erroneous since the power of the chancery court to grant separate maintenance is based on a separation without fault on the wife’s part and willful abandonment of her by the husband with a refusal by him to support her. Id.

It’s simply not enough to show that the (in this case) husband has departed and won’t come home. The burden is on the requesting party to show that she was not materially at fault, and that he is refusing support. Without all three elements, the case fails.


July 10, 2012 § 3 Comments

We all know the familiar Ferguson approach to equitable distribution: First classify the assets as marital or non-marital; then value them; then divide them equitably (not necessarily equally).

An often-ignored aspect of Ferguson analysis is the demarcation date that the court should use in classifying property as marital or non-marital. It’s important, because the date selected may decide the category where the item is placed. And I say it is often ignored because you seldom hear either side say anything about it in the presentation of the trial.

In Goodwin v. Goodwin, 758 So.2d 384, 386 (Miss. 1999), the MSSC laid down the rule that entry of a separate maintenance order stops accumulation of marital interests in property, and creates a “point of demarcation” to be used by the courts in determining marital vs. separate interests when division ultimately comes before the court. In Goodwin, that portion of the husband’s retirement account accumulated after entry of the separate maintenance order was his separate property, not subject to equitable division.

The line of demarcation rule was extended to temporary orders in the case of Pittman v. Pittman, 791 So.2d 857, 863-64 (Miss.App. 2001). In that case, the court noted that temporary orders, like separate maintenance orders, are simply recognition that the parties have ceased living together as husband and wife; in other words, they have reached the point of no return (at least until reconciliation in good faith in the case of separate maintenance). So interests that accrue after its entry are separate interests.

Both Goodwin and Pittman set out a bright line for the trial courts. But that bright line is there in cases where there has been a separate maintenance or temporary order in the case. What about cases where there is neither?

Professor Bell identifies five other points of demarcation that have been employed in other jurisdictions: (1) the date of separation; (2) the date of filing for divorce; (3) the date of a divorce hearing; (4) the date of the divorce judgment; and (5) a date fixed by the court in its discretion. Bell on Mississippy Family Law, 2nd Ed., § 6.02[3][b], p. 135.

In Doyle v. Doyle, 55 So.3d 1097, 1107 (Miss.App. 2010), the COA held that marital equities continue to accumulate where there was no separate maintenance or temporary order. In Aron v. Aron, 832 So.2d 1257, 1258-59 (Miss.App. 2002), however, the COA held that it was in the chancellor’s discretion to classify the property as marital or non-marital where there was no separate maintenance or temporary order. In either case, the chancellor should consider the parties’ relative contributions in making the division of the post-separation-acquired property. Striebeck v. Striebeck, 5 So.3d 450, 452 (Miss. 2008).

The most recent case on point is Cuccia v. Cuccia, decided by the MSSC on June 28, 2012. The case was before the court on certiorari from the COA, which had reversed the chancellor. The Supreme Court’s opinion stated:

“¶9. In the case before us, a separate maintenance order was not entered, but a temporary support order was issued on May 6, 2008, and filed on May 9, 2008. In reviewing the chancery court’s [divorce judgment], we do not find that he set out the specific date as the line of demarcation in classifying marital verus nonmarital property. He must do so. After determining the line of demarcation, the chancery court must then determine which assets and liabilities are marital and nonmarital in accordance with Ferguson and Hemsley. Then, he must divide the marital estate equitably.” [Footnotes omitted]

So the direction is clear: if the chancellor does not make the demarcation line clear, there is reversible error in the record. You can influence the judge to pick that date, or you can do it via MRCP 59 motion; either way, if you let the record be finalized without a demarcation line, be sure to keep your trial notes, because you’ll need them for the remand trial.

The court gave no direction for how the chancellor should draw the magic line. If the case makes its way back for a third appellate decision we may find out. If not, then we will have to await a more definitive decision.

Until then, give some th0ught to how you want the marital estate divided and why. Give the judge some proof in the record to support a line of demarcation that is in your client’s favor. It might just put some money in your client’s pocket.


May 27, 2011 § 5 Comments

Proving your case by proving certain factors is a fact of legal life in Mississippi.  I’ve referred to it as trial by checklist.  If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot. 

Many lawyers have told me that they print out these checklists and use them at trial.  I encourage you to copy these checklists and use them in your trial notebooks.  And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use.  Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine).  Good.  If it improves practice and makes your (and my) job easier and more effective, I’m all for it. 

Here is an updated list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.


November 5, 2010 § Leave a comment

The Supreme Court yesterday entered an order amending Uniform Chancery Court Rule 8.05, in part.  You can read the amended rule here.

In essence, the amended rule keeps in effect the financial statement with which we are all familiar, and adds a more detailed statement as an option to be used, “By agreement of the parties, or on motion and by order of the Court, or on the Court’s own motion … ”

Check out the more detailed form.  There will likely be cases where it will be more suitable for your use than the original form.

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