John Kendall Myrick, Jr. v. Dee Bunnell Myrick

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-CA-00701-COA

JOHN KENDALL MYRICK, JR. APPELLANT

v.

DEE BUNNELL MYRICK APPELLEE

DATE OF JUDGMENT: 04/22/2014
TRIAL JUDGE: HON. JOHNNY LEE WILLIAMS
COURT FROM WHICH APPEALED: PERRY COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: NANCY E. STEEN
ATTORNEY FOR APPELLEE: ALLEN FLOWERS
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: GRANTED IRRECONCILABLE-
DIFFERENCES DIVORCE, DIVIDED
MARITAL ASSETS, AND AWARDED WIFE
ALIMONY
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 02/23/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

BARNES, J., FOR THE COURT:

¶1. In this irreconcilable-differences divorce case, we must determine whether the

chancellor erred in dividing the marital property and awarding alimony to the wife. Finding

error with the chancellor’s award of periodic alimony to the wife, we affirm in part and

reverse and remand in part.

PROCEDURAL HISTORY

¶2. John Kendall Myrick (Ken) and Dee Bunnell Myrick were married in 1981. The
couple had three children. On May 29, 2013, Dee filed for divorce in the Perry County

Chancery Court. The chancellor entered a temporary order on November 14, 2013, in which

he ordered Ken to pay Dee $800 per month. In exchange, Ken was relieved of his obligation

to pay the monthly mortgage payment on the marital home.

¶3. Ultimately, the parties agreed to an irreconcilable-differences divorce, and submitted

the issues of property division and attorney’s fees to the chancellor. After a trial, the

chancellor awarded Dee the marital residence, twelve acres of land, her entire 401(k)

account, and various personal items. Ken was ordered to pay Dee the amount of $72,000 in

lump-sum alimony at the rate of $600 per month for ten years. The chancellor explained

“[t]his money [was] to assist Dee in paying off marital debts, and is based on need.”

¶4. Both parties subsequently filed motions to reconsider. Ken moved to reconsider the

alimony award, arguing only that the lump sum was “excessive, and should be reduced or

vacated,” but not that it was beyond the scope of issues submitted for decision. The

chancellor entered an amended order in which he corrected several clerical errors, changed

the nature of the $600-per-month alimony payment from lump-sum to periodic alimony

(without a termination date or reason), and ordered Ken to maintain a life-insurance policy

in the amount of $72,000 with Dee as the beneficiary.1

¶5. Ken now appeals, asserting that the chancellor erred in dividing the marital property

and awarding alimony to Dee.

FACTS

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Both the original order and the amended order fail to mention the matter of
attorney’s fees, and neither party has addressed this issue in their respective appellate briefs.

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¶6. During the marriage, Ken was employed at Camp Shelby in Hattiesburg, Mississippi,

from 1981 through 2005. Ken retired as a result of a service-related disability and began

receiving $1,671 per month. Ken worked for another company but his disability interfered

with his ability to retain employment. Ken was deemed one hundred percent disabled in

2007. Ken receives disability payments from the Department of Veterans Affairs (VA) in

the amount of $3,017.50 per month and Social Security disability payments of $552 per

month. Including his retirement, Social Security disability, and VA benefits, Ken’s monthly

income was $5,241.50. Ken is only taxed on the retirement income, which amounts to

$1,700 annually.

¶7. Dee was employed by the United States Postal Service in Hattiesburg. Her net salary

was $3,887.73 per month. As a mail carrier, Dee also receives a monthly stipend of

approximately $1,000 for wear and tear on her vehicle. Dee had a retirement account

containing $167,000 but had borrowed $43,000 from the account in 2012. At the time of

trial, the balance of the loan was $32,000.

¶8. Although neither party obtained an appraisal on the marital home, they agreed on its

value of $184,000. The home was located on twenty acres, which Dee’s father had gifted

the couple. There was testimony that they owed $150,518.62 on the home, leaving

$33,481.38 in equity. Dee testified that the home needed substantial repairs. The couple also

owned an additional twelve acres of land that Dee’s father had given the couple several years

prior to their divorce. Dee estimated its value at $15,600.

¶9. The chancellor awarded Dee the following: the marital home and surrounding twenty

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acres; the twelve acres from her father; her retirement account; the household furniture; the

washer and dryer; the lawn mower; and the tractor. The chancellor ordered Dee to be

responsible for the mortgage on the marital home, as well as any insurance, taxes, and

repairs. As previously stated, the chancellor first awarded Dee $600 per month in lump-sum

alimony for ten years, but later amended the judgment to change the nature of the $600-per-

month alimony payment from lump sum to periodic.

STANDARD OF REVIEW

¶10. This Court has a limited standard of review in domestic-relations cases, and “[u]nder

the standard of review utilized to review a [chancellor]’s findings of fact, particularly in the

areas of divorce, alimony[,] and child support, [the appellate court] will not overturn the

[chancellor’s decision] on appeal unless [his] findings were manifestly wrong.” In re

Dissolution of Marriage of Wood, 35 So. 3d 507, 512 (¶8) (Miss. 2010). “The distribution

of marital assets in a divorce will be affirmed if ‘it is supported by substantial credible

evidence.’” Lowrey v. Lowrey, 25 So. 3d 274, 285 (¶26) (Miss. 2009) (quoting Bowen v.

Bowen, 982 So. 2d 385, 393-94 (¶32) (Miss. 2008)). “However, the [appellate court] will

not hesitate to reverse if it finds the chancellor’s decision is manifestly wrong, or that the

court applied an erroneous legal standard.” Id. (quoting Owen v. Owen, 928 So. 2d 156, 160

(¶11) (Miss. 2006)).

DISCUSSION

I. Division of Marital Property

¶11. Ken argues the chancellor failed to make an equitable division of the marital property.

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First, we note the chancellor classified the parties’ assets and divided the marital estate by

following the factors outlined in Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994).

The Ferguson factors are as follows:

1. Substantial contribution to the accumulation of the property. Factors to be
considered in determining contribution are as follows:

a. Direct or indirect economic contribution to the acquisition of
the property;

b. Contribution to the stability and harmony of the marital and
family relationships as measured by quality, quantity of time
spent on family duties[,] and duration of the marriage; and

c. Contribution to the education, training[,] or other
accomplishment bearing on the earning power of the spouse
accumulating the assets.

2. 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.

3. The market value and the emotional value of the assets subject to
distribution.

4. The value of assets not ordinarily, absent equitable factors to the contrary,
subject to such distribution, such as property brought to the marriage by the
parties and property acquired by inheritance or inter vivos gift by or to an
individual spouse;

5. Tax and other economic consequences, and contractual or legal
consequences to third parties, of the proposed distribution;

6. The extent to which property division may, with equity to both parties, be
utilized to eliminate periodic payments and other potential sources of future
friction between the parties;

7. The needs of the parties for financial security with due regard to the
combination of assets, income[,] and earning capacity; and,

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 8. Any other factor which in equity should be considered.

Id.

¶12. The chancellor determined that both Ken and Dee contributed to the accumulation of

property, as well as the parties’ debts. The chancellor found no evidence of waste by either

party. The chancellor found Dee had an emotional attachment to the marital home as well

as the land surrounding it and the additional twelve acres. The chancellor noted the condition

of the house, stating it might “not have much, if any, equity given its current state of

deterioration.” The chancellor indicated neither party produced evidence of any nonmarital

assets to be considered or of any tax consequences resulting from the property division.

¶13. The chancellor noted Ken’s net monthly income of $5,000 and Dee’s of $3,800. The

chancellor considered that Ken was disabled but his income was not affected by his health,

whereas Dee’s health issues would ultimately impact her ability to work in the future.

¶14. Although Dee was awarded the marital home, the twelve acres, and her retirement

account, Dee was held responsible for the mortgage indebtedness on the home as well as

taxes, insurance, and repair costs.

¶15. We find substantial, credible evidence supports the chancellor’s division of marital

property; thus, this issue is without merit.

II. Periodic Alimony

¶16. Next, Ken argues the chancellor erred in awarding Dee $600 per month in periodic

alimony, primarily because this issue was not included in the parties’ signed consent, which

is necessary in an irreconcilable-differences divorce under Mississippi Code Annotated

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section 93-5-2(3) (Rev. 2013), and second, because it was not supported by the facts. Ken

explains that the chancellor initially awarded lump-sum alimony to Dee in the amount of

$72,000 to be paid at the rate of $600 per month for ten years. Ken claims that in that

original decision, “the chancellor compounded the inequity of the property distribution by

adding” this lump-sum award. However, in the final amended judgment, unrequested by

either party’s motion for reconsideration, the chancellor converted the lump-sum alimony

award to permanent periodic alimony. Ken correctly asserts that this award of periodic

alimony is not proper in the irreconcilable-differences divorce where the parties did not

consent to it.

¶17. Mississippi statutory law specifically lays out the procedure for a divorce on the

ground of irreconcilable differences. Parties may consent to the divorce and submit to the

trial court any unresolved issues:

If the parties are unable to agree upon adequate and sufficient provisions for
the custody and maintenance of any children of that marriage or any property
rights between them, they may consent to a divorce on the ground of
irreconcilable differences and permit the court to decide the issues upon which
they cannot agree. Such consent must be in writing, signed by both parties
personally, must state that the parties voluntarily consent to permit the court
to decide such issues, which shall be specifically set forth in such consent, and
that the parties understand that the decision of the court shall be a binding and
lawful judgment.

Miss. Code Ann. § 93-5-2(3) (Rev. 2013) (emphasis added). “Divorce in Mississippi is a

creature of statute,” and the parties must strictly adhere to the statutory mandates of

irreconcilable-differences divorce. Engel v. Engel, 920 So. 2d 505, 510 (¶17) (Miss. Ct.

App. 2006) (quoting Massingill v. Massingill, 594 So. 2d 1173, 1175 (Miss. 1992)). “The

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language of [s]ection 93-5-2(3) is clear. A chancellor may decide contested issues in a

divorce based upon irreconcilable differences. However, he is limited to the resolution of

those issues specifically identified and personally agreed to in writing by the parties.”

Wideman v. Wideman, 909 So. 2d 140, 146 (¶22) (Miss. Ct. App. 2005).

¶18. Dee initially petitioned the court for a divorce on the basis of habitual cruel and

inhuman treatment, uncondoned adultery, or, in the alternative, irreconcilable differences.

She requested “temporary relief” of a “reasonable sum” for monthly alimony. In November

2013, the chancellor issued a temporary order, ordering Ken to “contribute” $800 a month

to Dee in lieu of the house payment.

¶19. In February 2014, Dee and Ken signed a consent agreement to an irreconcilable-

differences divorce. It listed matters the chancellor should decide as “property division,

including allocation of debt”; attorney’s fees; and “division of all real property.” No mention

was made of alimony. The chancellor granted Dee and Ken’s motion to dismiss fault

grounds. The chancellor had, however, ordered the temporary relief of alimony when the

divorce sought was based on fault grounds, rather than irreconcilable differences.

¶20. In Engel, this Court reversed the chancery court’s judgment in an irreconcilable-

differences-divorce case because the consent failed to comply with required statutory

language, and the parties failed to set forth with specificity the issues to be decided by the

court, even though the appellant suffered no prejudice. Engel, 920 So. 2d at 509 (¶¶14, 16).

Here, the parties did not specify alimony as an issue to be decided by the chancellor; so he

cannot now award it.

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¶21. Ken cites to Wideman, 909 So. 2d 140, and Gordon v. Gordon, 126 So. 3d 922 (Miss.

Ct. App. 2013), for support. In Wideman, this Court affirmed a chancellor’s refusal to

consider an award of attorney’s fees in a divorce action where the parties did not include this

issue in their consent agreement. Wideman, 909 So. 2d at 145-46 (¶22). Likewise, in

Gordon, this Court affirmed the chancellor’s refusal to hear issues of child custody, support,

and equitable distribution because the parties stated in their consent agreement the only issue

the chancellor had to resolve was related to misappropriation of funds. Gordon, 126 So. 3d

at 926 (¶12).

¶22. Dee argues, and the separate opinion agrees, that alimony is an integral part of

“property division” analysis, and is therefore proper here, citing the Ferguson factor

regarding “the extent to which distribution can eliminate future periodic payments.”

Ferguson, 639 So. 2d at 925. However, in an irreconcilable-differences divorce, the statute

is clear that the resolution of all issues must be specifically set forth in the consent

agreement. The court’s award of periodic alimony was without authority and must be

reversed.

¶23. Under the circumstances of this case, however, we find that the case should be

remanded for further consideration rather than rendered in Ken’s favor. The original order

of the court ordered Ken to pay Dee the amount of $72,000 in lump-sum alimony at the rate

of $600 per month for ten years. The chancellor explained “[t]his money [was] to assist Dee

in paying off marital debts, and is based on need.” In Ken’s motion to reconsider, he only

argued that the lump-sum alimony was “excessive, and should be reduced or vacated.” He

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did not argue that lump-sum alimony was beyond the scope of issues presented for decision.

Unlike periodic alimony, lump-sum alimony may be considered part of the property

settlement under Mississippi law.

¶24. In Beezley v. Beezley, 917 So. 2d 803, 806 (¶10) (Miss. Ct. App. 2005), this Court

noted that “[l]ump sum alimony is a fixed and irrevocable sum, used either as alimony or as

part of property division.” (emphasis added) (citing Wray v. Wray, 394 So. 2d 1341, 1345

(Miss. 1981)). In Dean Bell’s treatise, Bell on Mississippi Family Law § 6.11(2) (1st ed.

2005), she notes that there is “some confusion between lump sum payments, which are

genuinely alimony and not a part of property division.” She cites our opinion East v. East,

775 So. 2d 741, 745 (¶9) (Miss. Ct. App. 2000), where we found that in a $21,500 equity

transfer from the husband to the wife in the marital home and portable metal building “was

labeled lump-sum alimony, yet, in effect, [was] a portion of the chancellor’s equitable

distribution of the estate.” We corrected the chancellor’s erroneous label and determined the

award to be part of the equitable distribution of property. Id.

¶25. Here, there is confusion as to whether the chancery court intended its original lump-

sum award to be in the nature of alimony or property division. The chancellor analyzed the

award under the Armstrong2 factors following his completion of the property division under

the Ferguson factors, indicating that the award was in the nature of alimony – to which Ken

had not consented. However, the chancellor expressly noted that the award was to assist Dee

in payment of the marital debts, which he could have allocated to Ken under the property

2
Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).

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division, indicating that the award may have been in the nature of property division,3 to

which Ken did consent.

¶26. Therefore, we remand for the chancellor to clarify whether lump-sum alimony, which

was initially awarded, was intended to be part of the property division, which might be

reinstated, or was intended to be alimony, which may not be reinstated.

¶27. THE JUDGMENT OF THE PERRY COUNTY CHANCERY COURT IS
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS
OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT AND
THE APPELLEE.

IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON AND WILSON, JJ.,
CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN
OPINION. LEE, C.J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION, JOINED BY FAIR, J.; JAMES, J., JOINS IN
PART. GREENLEE, J., NOT PARTICIPATING.

LEE, C.J., CONCURRING IN PART AND DISSENTING IN PART:

¶28. I agree with the majority’s decision regarding the division of marital property, but I

cannot find that the chancellor abused his discretion in awarding alimony to Dee even though

it was not included in the parties’ signed consent. First, Ken raised this issue for the first

time on appeal; thus, we are not required to address this issue. See Pierce v. Pierce, 132 So.

3d 553, 567 (¶37) (Miss. 2014).

¶29. Second, as a general rule, alimony is considered collectively with all property division.

See Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994); see also Lauro v. Lauro, 847

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See Cuccia v. Cuccia, 90 So. 3d 1228, 1233 (¶12) (Miss. 2012) (“Marital debt lies
within the factors set forth in Ferguson, as it may be defined as an ‘economic consequence’
or as ‘any other factor which in equity should be considered.’”); see generally Bell at §
6:08(4) (assignment of debt).

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So. 2d 843, 849 (¶15) (Miss. 2003) (“[C]ase law mandates that [the wife’s] award of alimony

be considered together with the equitable distribution of the marital property.”); Faerber v.

Faerber, 13 So. 3d 853, 863 (¶39) (Miss. Ct. App. 2009) (reversal of chancellor’s division

of marital property requires reversal of alimony award). After the chancellor distributes the

marital assets, “[i]f there are sufficient marital assets [that], when equitably divided and

considered with each spouse’s non-marital assets, will adequately provide for both parties,

no more need be done.” Johnson v. Johnson, 650 So. 2d 1281, 1287 (Miss. 1994). “If the

situation is such that an equitable division of marital property . . . leaves a deficit for one

party, then alimony . . . should be considered.” Id. In Johnston v. Johnston, 722 So. 2d 453,

458 (¶12) (Miss. 1998), the Mississippi Supreme Court found no abuse of discretion by the

chancellor in awarding alimony when the parties did not specifically request it. The issues

submitted to the chancellor for a determination included “an equitable division of the marital

assets” and “the equity position of each party.” Id. The supreme court emphasized “the wide

latitude of discretion vested in the chancellor in awarding alimony,” and found that because

these issues were submitted “the chancellor did not err in determining that an award of lump

sum alimony was appropriate.” Id. Ultimately though, the supreme court reversed for the

chancellor to determine the fair market value of the husband’s interest in his grandmother’s

estate and to reevaluate “an appropriate award of alimony.” Id. at 459 (¶16).

¶30. Third, and perhaps most important, the chancellor has the ultimate authority when

granting divorces and approving property settlements. Mississippi Code Annotated section

93-5-2(3) (Rev. 2013) states that once the parties have submitted issues for the chancellor’s

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decision,

[n]o divorce shall be granted pursuant to this subsection until all matters
involving . . . property rights between the parties raised by the pleadings have
been either adjudicated by the court or agreed upon by the parties and found
to be adequate and sufficient by the court and included in the judgment of
divorce.

(Emphasis added). The chancellor is statutorily charged with adjudicating or approving

property rights between the parties. While the parties may submit issues that they request the

chancellor to decide, nevertheless, the chancellor is required to approve the entire settlement

as a whole, not just in parts. See also Taylor v. Taylor, 392 So. 2d 1145, 1147 (Miss. 1981)

(“[T]he statute has accordingly authorized the court to change or modify any decree for

continuous alimony . . . . Such being true, the parties may not by contract or agreement

deprive the court of that power, nor may the court itself renounce it. It is a continuing duty

of the court as well as a continuing power.”). For instance, consider that the parties have

submitted a settlement agreement that is so one-sided, unreasonable, and unfair that no

chancellor could be expected to approve it, or that one party was under intimidation or duress

when signing the agreement, yet the parties continue to seek a divorce. If a chancellor in

good conscience could never approve such a settlement, what is the chancellor to do? Send

it back for the parties to redraft the agreement? And then keep sending it back time after

time to no avail?

¶31. Section 93-5-2(3) requires the chancellor to find agreements to be adequate and

sufficient, not just in part, but in toto. Having received an agreement and having heard

evidence thereto, it becomes the responsibility of the chancellor to render justice under the

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law and equity. Once the chancellor has rendered a judgment the parties have the right to

appeal the chancellor’s judgment under an abuse-of-discretion standard. This is exactly what

happened in this case. The chancellor was to decide the issues of “[p]roperty division,

including allocation of debt; attorney’s fees; [and] division of real property.” After equitably

dividing the marital assets, the chancellor examined the Armstrong factors and determined

that Dee should be awarded alimony. In Armstrong v. Armstrong, 618 So. 2d 1278, 1280

(Miss. 1993), the supreme court outlined which factors a court should consider when making

a general award of alimony. Those factors are as follows: (1) “[t]he income and expenses

of the parties”; (2) “[t]he health and earning capacities of the parties”; (3) “[t]he needs of

each party”; (4) “[t]he obligations and assets of each party”; (5) “[t]he length of the

marriage”; (6) “[t]he presence or absence of minor children in the home, which may require

that one or both of the parties either pay, or personally provide, child care”; (7) “[t]he age of

the parties”; (8) “[t]he standard of living of the parties, both during the marriage and at the

time of the support determination”; (9) “[t]he tax consequences of the spousal support order”;

(10) “[f]ault or misconduct”; (11) “[w]asteful dissipation of assets by either party”; or (12)

“[a]ny other factor deemed by the court to be ‘just and equitable’ in connection with the

setting of spousal support.” Id. “Whether to award alimony, and the amount to be awarded,

are largely within the discretion of the chancellor.” Cherry v. Cherry, 593 So. 2d 13, 19

(Miss. 1991).

¶32. The chancellor mentioned that the parties had been married for thirty-one years and

raised three children together. Both parties had health issues, but only Dee’s “declining

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health could potentially affect her ability to work, which could render her destitute.” The

chancellor noted that Ken’s health issues do not impact his monthly income of $5,241.50.

The chancellor further noted that Ken had a larger monthly income and lower living expenses

since he lived with his mother; whereas, Dee was living on a limited income and was

responsible for the debt on the marital home. The chancellor discussed Dee’s investments

in unsuccessful ventures, but determined that Ken had failed to prove this amounted to

wasteful dissipation. The chancellor found that several factors did not need to be considered,

namely the presence or absence of minor children, the standard of living of the parties, tax

consequences, and fault or misconduct. We note that during the trial, testimony was elicited

from Dee that she needed approximately $1,250 per month from Ken in order to pay the

mortgage on the marital home as well as other joint debts. Ken did not object to this

testimony.

¶33. In his original ruling, the chancellor specifically stated that the $600 per month in

lump-sum alimony for ten years was to “assist Dee in paying off marital debts, and [was]

based on need.” In changing the lump-sum award to $600 per month in periodic alimony,

the chancellor clearly recognized equity demanded this support for Dee due to her health

problems and limited income, as well as her assumption of much of the marital debt. Clearly,

the chancellor’s intent in awarding alimony was to help Dee pay the mortgage, taxes,

insurance, and maintenance/repairs on the marital home. After reviewing the learned

chancellor’s judgment, I cannot find an abuse of discretion. Therefore, I dissent.

FAIR, J., JOINS THIS OPINION. JAMES, J., JOINS THIS OPINION IN
PART.

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