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 …”


February 26, 2013 § 5 Comments

The case of Fore v. Fore, handed down February 19, 2013, by the COA, is one of those cases that leaves you scratching your head in wonderment. Oh, and the Fore decision was written by Judge Fair. Fore by Fair. You can’t make this kind of stuff up.

Anyway, what happened was that Darlene Fore, age 57, filed for divorce charging her husband, Cotton, age 70, with post-separation adultery. Cotton counterclaimed, charging Darlene with post-separation adultery. Darlene added that, if she were to be denied a divorce, she wanted separate maintenance.

As the opinion states, “The divorce was vigorously litigated, as evidenced by the twenty-five single-spaced pages of the trial court docket. For eighteen months the parties enthusiastically pursued all means of discovery allowed by the Mississippi Rules of Civil Procedure. Private investigators were hired. Contempt pleadings, motions for continuances, mediation attempts, amendments of pleadings, and volumes of subpoenas were filed, pursued, and argued.”

The chancellor bifurcated the trial so that the divorce issues would be tried first and separately from the remaining issues.

The trial took five days and produced a trial transcript of more than 800 pages.

The judge rendered a seven-page opinion denying either party a divorce, finding that neither had proven the ground pled by clear and convincing evidence. Oh, and he denied Darlene’s plea for separate maintenance because she testified that she would not return to live with Cotton under any circumstances.

So, after the dust cleared, neither party had a divorce, and Darlene was out in the cold with no support and no Cotton to go home to.

The COA affirmed, deferring to the chancellor’s scope of authority on the facts, and finding that his conclusions of law were correct.

What is the head-scratcher here is that, if both parties wanted a divorce, why did they not just enter into a consent? What would be the down side? If alimony and equitable distribution were issues on trial of the consent, they could still have the satisfaction of putting on proof of how despicable each other were while being assured that there would be a divorce. It’s hard for me to understand, with the consent statute, why this would happen.

It may be that one of the parties out of pure stubbornness refused the idea of a consent. That does happen from time to time. When I practiced I had to cajole and convince more than one divorce client that a consent was the best way to go, and that we were not giving anything up.

After I had written this, I found that Phillip Thomas had a post on his blog on this very case. As a lawyer who does not do divorce work, he found the outcome exceedingly difficult to understand. Join the crowd, Mr. Thomas.

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