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Ory v. Ory12/13/2005
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 12/13/2005
EN BANC.
. Alan Ory appeals the decision of the Lamar County Chancery Court regarding the validity of his divorce and the distribution of the marital assets. Rejecting Alan's claim of invalidity but finding error in the classification and calculation in value of certain marital assets, we affirm in part and reverse and remand in part.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
. Alan and Sharon Ory were married on November 4, 1995, in Lamar County, Mississippi, and lived together until on or about October 20, 2001. During their marriage, Alan was an employee and part-owner of SpeeDee Oil Change in Hattiesburg, and Sharon worked as a respiratory therapist at Forrest General Hospital, also in Hattiesburg. On October 24, 2001, Alan filed for divorce on the grounds of habitual cruel and inhuman treatment and adultery, or in the alternative, irreconcilable differences. Sharon answered and counterclaimed that she also was entitled to a divorce on the ground of habitual cruel and inhuman treatment, or in the alternative, irreconcilable differences. On January 24, 2003, the Chancery Court of Lamar County issued an order granting Alan the divorce on the ground of habitual cruel and inhuman treatment. The order granting the divorce ("judgment of divorce") stated that the chancery court reserved for a later date other issues such as the distribution of the marital assets. After hearings held in September and October 2003, the chancellor issued a second judgment which ordered the distribution of the marital assets ("distribution judgment"); this judgment was issued on January 23, 2004.
. In arriving at the distribution, the chancellor evaluated the following assets:
a. An eighty-acre parcel of land deeded to Sharon prior to the marriage;
b. The Orys' marital home and a five-acre section of the larger parcel, upon which the home was constructed;
c. The appreciation during the marriage of Alan's share of the SpeeDee Oil Change franchise;
d. Sharon's retirement fund of $36,520, accumulated during the marriage;
e. A motorcycle, tractor, pick-up truck, desk, and tools.
. In the distribution judgment, the chancellor valued the marital assets at $280,077 and awarded each party fifty percent of the marital estate, or $140,038.50 apiece. Sharon was awarded the marital home, fee simple title to the entire eighty-acre parcel of land, the contents of her retirement account, and the furnishings in the home. Alan was awarded the appreciation in value of the SpeeDee Oil Change franchise as well as the motorcycle, tractor, truck, desk, and tools. Because the value of the assets distributed to Sharon slightly outweighed those awarded to Alan, the chancellor required that Sharon pay Alan a total of $13,034.50 to make up for the imbalance. Additionally, the chancellor ordered Sharon to reimburse Alan $49,000 for payments he made prior to the marriage to pay off a lien on Sharon's parcel of land. Taking into account the effect of the $49,000 payment, Sharon's award was effectively reduced to $91,038.50, and Alan's award increased to $189,038.50.
. Dissatisfied with the chancellor's distribution, Alan filed a motion for new trial asserting that the chancellor's decision was against the overwhelming weight of the evidence. Upon the chancery court's denial of his motion, Alan, represented by new counsel, appealed to this court, asserting the following: (1) that the chancellor erred in awarding the divorce on the ground of habitual cruel and inhuman
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