Jose Hoss Serio v. Melissa Dawn Serio
203 So. 3d 24
| Miss. Ct. App. | 2016Background
- Jose and Melissa Serio divorced after a ~19-year marriage; chancery court divided the marital estate and awarded Melissa $6,400/month permanent alimony.
- Jose is a nurse practitioner with multiple income streams: salary, bonuses, moonlighting, and part-owner distributions from two after-hours clinics; income projection disputes were central to alimony computation.
- Melissa earned LPN income (~$3,503 gross monthly) and received an inheritance in 2010; a UMB bank account held $24,682.98 at trial after a large March 26, 2014 deposit of $47,160.94.
- Chancellor assigned Jose responsibility for his entire 2013 tax liability (~$76,170), finding he failed to pay estimated taxes despite having funds.
- Jose appealed, challenging: the chancellor’s computation of his taxable income, the award and permanence of alimony, classification of Melissa’s UMB account as separate property, and the allocation of the 2013 tax liability.
- Court of Appeals affirmed in part, reversed classification of the UMB funds as separate property, and remanded for redivision and reconsideration of alimony and related adjustments.
Issues
| Issue | Jose's Argument | Melissa's Argument | Held |
|---|---|---|---|
| Computation of Jose’s income for support | Chancellor used overstated/2013-based after-tax income; should use prorated 2014 income and exclude assumed extra moonlighting | Chancellor’s factual income finding was within discretion; Jose declined to present more 2014 evidence | Affirmed: appellate court will not disturb chancellor’s income finding absent manifest error; chancellor reasonably considered available income (including distributable clinic profits) |
| Nature and amount of alimony (permanent vs rehabilitative; $6,400/mo) | Award is excessive and should be rehabilitative; based on erroneous income and forces Jose to work extra to meet payments | Armstrong factors support permanent alimony given income disparity, marriage length, and Melissa’s limited earning prospects | Affirmed: chancellor properly applied Armstrong and relevant factors; permanent periodic alimony was not an abuse of discretion |
| Classification of Melissa’s UMB account ($24,682.98) | Deposit was not traced to separate inheritance; account had negative balance before large deposit and Melissa did not adequately trace funds; should be marital property | Melissa testified money came from inheritance and account was separate | Reversed: insufficient evidence that funds were separate property; remand to treat $24,682.98 as marital property and reassess division (and consider whether $22,477.96 was dissipated for marital purposes) |
| 2013 tax liability (~$76,170) | Tax debt arose from joint practices and common handling of finances; Melissa should bear part because she filed separately and claimed dependents | Jose had segregated accounts after separation and failed to pay estimates despite having resources; liability is his responsibility | Affirmed: chancellor reasonably assigned full 2013 tax liability to Jose based on findings about segregation of accounts and failure to pay estimates |
Key Cases Cited
- Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994) (appellate standard: chancery findings will not be disturbed unless manifestly wrong)
- Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993) (factors for awarding alimony)
- Rogillio v. Rogillio, 57 So. 3d 1246 (Miss. 2011) (purpose and scope of permanent alimony)
- Lauro v. Lauro, 847 So. 2d 843 (Miss. 2003) (rehabilitative alimony explained)
- Allgood v. Allgood, 62 So. 3d 443 (Miss. Ct. App. 2011) (burden to trace separate-property funds and presumption that assets are marital)
- Tilley v. Tilley, 610 So. 2d 348 (Miss. 1992) (deference to chancery court on alimony and divorce-related factual findings)
- Flechas v. Flechas, 724 So. 2d 948 (Miss. 1998) (chancellor’s discretion in alimony and when appellate relief is warranted)