Daughn SPAHN, Appellant
v.
Joseph Gilbert SPAHN, Appellee.
Court of Appeals of Mississippi.
*10 T. Swayze Alford, attorney for appellant.
H.R. Garner, Hernando, attorney for appellee.
Before KING, C.J., GRIFFIS and BARNES, JJ.
KING, C.J., for the Court.
¶ 1. Dаughn Spahn appeals the Tate County Chancery Court's denial of her motion for a new trial, in which she alternatively sought to alter or amend the judgment of divorce. Daughn raises fourteen assignments of error, which we have condensed to four, since a majority of Daughn's issues involve equitable distribution. Finding no error, wе affirm.
FACTS
¶ 2. Daughn and Joseph Spahn were married on December 10, 1994. In 1997, Daughn gave birth to Joseph Gunner Spahn, the Spahn's only child. Joseph's son from a previous marriage also lived with the Spahns. Joseph is the sole proprietor of M & R Construction and Supply Company, which he and his father founded in 1977 in Senatobia, Mississippi. Joseph purchased Spahn House in April of 1994, so that Daughn could run it as a bed and breakfast. Spahn House also served as the Spahn's residence. In 1996, Joseph conveyed a one-half interest in Spahn House to Daughn. Throughout the marriage, Joseph ran M & R while Daughn operated Spahn House. Jоseph also received additional monthly income from renting out space in a warehouse he had owned since the early 1980s. In addition to running Spahn House, Daughn performed tasks for M & R such as answering telephone calls as well as hosting M & R business functions at Spahn House.
*11 ¶ 3. Daughn filed for a divorce on March 19, 2003, after which time Joseph moved out of the marital home and purchased a house on Camille Street in Senatobia. On August 19, 2004, Daughn and Joseph moved to withdraw adversarial grounds for divorce and proceed with an irreconcilable differences divorce. The parties left the issues of equitable distribution of marital assets, child support, alimony, and attorneys' fees to be decided by thе chancellor. Their divorce was granted October 13, 2004.
I. WHETHER THE CHANCELLOR ERRED IN CALCULATING JOSEPH'S ADJUSTED GROSS INCOME FOR PURPOSES OF CALCULATING CHILD SUPPORT.
¶ 4. In reviewing domestic relations cases, this Court will not overturn a chancellor's findings which are based on substantial credible evidence unless the findings were manifestly wrong, clearly erroneous, or an incorrect legal standard was applied. Magruder v. Magruder,
¶ 5. Daughn claims that the chancellor erred in accepting at face value Joseph's Rule 8.05 financial declaration to calculate child support. Daughn contends that the figure submitted and accepted was artificially low for the sole proprietor of a business with a gross annual business income оf $1,421,873. Joseph's Rule 8.05 financial statement showed a net income of $2,796 per month. The chancellor noted in his opinion that Daughn contended that improper deductions, such as automobile payments and entertainment expenses, were made in calculating his net income, yet Daughn offered no specific proof of the amounts of the improper deductions.
¶ 6. Carlton Dixon, the court-appointed CPA and accountant for M & R, testified that Joseph's adjusted gross income, according to his 2003 tax return, was $45,248 and that his taxable income was $34,398. Joseph testified that his income varies from year to yeаr, and after taxes he earns between $30,000 and $50,000. Joseph admitted that although his 2003 tax return reflected an adjusted gross income of $45,248, he had deposited $50,302 in his personal checking account in 2003. Therefore, based on Joseph's testimony, the chancellor imputed additional income of $500 dollars a month to Joseph, making his adjusted gross income $3,296.14 per month. The chancellor then ordered Joseph to pay fourteen percent of that figure, $461.45, per month in child support, in accordance with Mississippi Code Annotated XX-XX-XXX (Rev.2004).
¶ 7. We find that the chancellor's finding of Joseph's adjusted gross income for purpоses of calculating child support was based on the substantial credible evidence provided by Joseph's Rule 8.05 financial statement, Joseph's 2003 federal tax return, Joseph's testimony, and Dixon's testimony. We also find that the chancellor correctly applied Mississippi Code Annotated XX-XX-XXX in determining the аmount of child support. This issue fails.
II. WHETHER THE CHANCELLOR ERRED IN HIS CLASSIFICATION AND DIVISION OF MARITAL PROPERTY.
¶ 8. Daughn claims that the chancellor's division of marital property was erroneous with respect to Spahn House and its contents, the life insurance policies, Joseph's IRA, and a number of other assets. Daughn also argues that the chancellor erred in his classificatiоn of the warehouse and lot on Tate Street and the house on Camille Street as Joseph's non-marital property.
*12 Classification
¶ 9. A chancellor's first step in equitable distribution is classifying property as marital or non-marital property. Ericson v. Tullos,
¶ 10. The relevant testimony regarding the warehouse and adjoining lot revealed that Joseph had owned the property since the early 1980s. He took out a mortgage on the property in 1998 to pay off the 1994 loan he obtained to purchase Spahn House. Jоseph maintains a separate account at Senatobia Bank in which he deposits the rental income and from which he pays the mortgage, taxes, insurance, and maintenance of the property. Because Joseph acquired the warehouse prior to the marriage and did not сommingle the proceeds from the warehouse, nor use the warehouse for family purposes, we find that the chancellor was correct in classifying the warehouse as Joseph's non-marital property.
¶ 11. It is well established that property acquired through joint efforts during the course of marriage is dеemed marital property. Johnston v. Johnston,
Equitable Distribution of Marital Property
¶ 12. In reviewing questions of equitable distribution, this Court will examine the chancellor's application of the Ferguson factors. Phillips v. Phillips,
(1) Substantial contribution to the accumulation of the property, including these factors: direсt or indirect economic contribution to the acquisition of the property, 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 contribution to the education, training or other accomplishment bеaring 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 vаlue 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 pаrties;
(7) the needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
(8) any other factor which in equity should be considered.
Ferguson v. Ferguson,
¶ 13. The chancellor classified the following property as marital: M & R Construction Co., Spahn House, the furnishings in Spahn House, the Protective Life insurance policy, the Jefferson Pilot life insurance policy, the Guardian Life insurance policy, the joint E-trade account, AIM mutual funds, and 200 shares in First Tennessee stock. Based on the evidence presented by the parties, the chancellor assigned value to each item of marital property, and determined thаt the total value of all marital property was $434,063.50. Next, the chancellor conducted a Ferguson analysis and made the following findings. Throughout the marriage, Daughn operated Spahn House, which indirectly contributed to the growth of M & R Construction. Daughn also performed many duties, although minor in comparison to Josеph's contributions, for M & R Construction which attributed to its growth. Neither party expended, withdrew, nor disposed of any marital assets to any great degree. Further, the furnishings within Spahn House, the Protective Life insurance policy, the Jefferson Pilot life insurance policy, the Guardian Life insurance policy, the joint E-tradе account, the AIM mutual funds, and the 200 shares of First Tennessee stock were all acquired during the course of the marriage through the joint and equal efforts of both parties. The chancellor then awarded Daughn Spahn House and its contents, 100 shares of First Tennessee stock, and a one-half interest in the AIM mutual funds, for a total award of $211,196.50 of the marital property. Joseph was awarded M & R Construction, the Protective Life Policy, the Jefferson Pilot policy, the Guardian Life policy, one-half of the AIM account, and 100 shares of First Tennessee stock, *14 for a total award of $222,867. Therefore, Daughn received 48 percent of the marital estate, while Joseph received 52 percent of the marital estate.
¶ 14. Equitable distribution does not require equal distribution. Dobbs v. Dobbs,
Remaining Personal Property
¶ 15. Daughn argues that the chancellor erred in failing to address several items of personal property which Joseph possessed and which Daughn claims are marital assets which should have been included in the equitable distribution.[1] However, after conducting a thorough Ferguson analysis and equitably dividing the marital assets, the chancellor stated in his order, "Unless specifically addressed herein, each party may keep and become the sole owner of any personal property in their respective possessions as of this time." We find that the chancellor did not abuse his discretion in allowing each party to retain the remaining personal property in their respective possessions.
III. WHETHER THE CHANCELLOR ERRED WHEN HE FAILED TO REQUIRE JOSEPH TO PAY FOR DAUGHN'S MEDICAL INSURANCE COVERAGE AS HAD BEEN PROVIDED IN THE TEMPORARY SUPPORT ORDER.
¶ 16. An agreed temporary order filed on May 23, 2003, provided that Joseph would maintain Daughn's medical insurance. On August 19, 2004, the chancellor granted a joint motion of the parties to withdraw their adversarial grounds for divorce, and instead proceed with an irreconcilable differences divorce. While Daughn and Joseph came to an agreement as to many terms of the divorce, they left many issues to be decided by the chancellor, including what, if any, medical, disability or life insurance should be maintained by each party. The chancellor's judgment and accompanying opinion are silent as to whether either party must maintain medical insurance for the other.
¶ 17. Where a chancellor's findings are silent as to a particular issue, there is a presumption thаt the chancellor resolved the issue in favor of the appellee. Love v. Barnett,
IV. ATTORNEY'S FEES
¶ 18. Daughn argues on appeal that she accumulated $49,000 in attorney's fees, and that she received no liquid assets in the equitable distribution from which she could pay her attorney's fees. The award of attorney's fees is left to the disсretion of the trial court. Langdon v. Langdon,
¶ 19. THE JUDGMENT OF THE TATE COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES ISHEE AND ROBERTS, JJ., CONCUR.
NOTES
Notes
[1] The items of personal property in question are a Jeep Cherokee, an antique Jeep, a Ford pick-up truck, and a gun collection. The Jeep Cherokee, while titled in Joseph's name, was purchased for and is driven by Joseph's son from a previous marriage. Daughn's testimony at trial revealed that she was uncertain whether the antique Jeep was purchased prior to or during the marriage. There is no testimony in the record regarding the Ford pick-up truck. Regarding the gun collection, Daughn testified that Joseph owned at least half of the guns prior to the marriage and received other guns during the marriage as gifts and inheritances. No proof was presented to show that any of the guns obtained during the marriage were purchased with marital assets.