Melinda McNeel Seitz v. Robert M. Seitz ( 1995 )

6/3/97
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 95-CA-00722 COA
MELINDA MCNEEL-SEITZ
APPELLANT
v.
ROBERT M. SEITZ
APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND
MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
TRIAL JUDGE: HON. WOODROW WILSON BRAND, JR.
COURT FROM WHICH APPEALED: CLAY COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:
JOSEPH JOSHUA STEVENS, JR.
ATTORNEY FOR APPELLEE:
JOHN W. CROWELL
NATURE OF THE CASE: DOMESTIC RELATIONS: DIVORCE
TRIAL COURT DISPOSITION: THE CHANCELLOR GRANTED DIVORCE AND ORDERED
DISTRIBUTION OF THE PROPERTY, AND CHILD SUPPORT
CERTIORARI FILED: 8/12/97
MANDATE ISSUED: 10/9/97
BEFORE McMILLIN, P.J., DIAZ, AND SOUTHWICK, JJ.
DIAZ, J., FOR THE COURT:
Melinda McNeel-Seitz (Melinda) was granted a divorce from Robert Seitz (Robert) on the grounds
of irreconcilable differences in the Clay County Chancery Court. Melinda was granted primary
physical custody of their child along with child support of $1,250 per month. Furthermore, the
chancellor concluded in part that the marital property subject to division included IRAs, other
retirement accounts and stock obtained after the marriage, excluding Seitz Lumber Company stock
among other things. Concisely stated, Melinda asserts the following issues on appeal to this Court:
(1) whether the chancellor erred in limiting the testimony of Roger N. Hill; (2) whether the chancellor
erred in dividing the marital property; (3) whether the chancellor erred in determining the amount of
child support; (4) whether the chancellor erred in denying Melinda's contempt citation; and (5)
whether the chancellor erred in determining attorney's fees awarded. We hold that the chancellor
erred in excluding the testimony of Roger N. Hill. Accordingly, we must reverse the case and remand
this cause back to the chancery court for further proceedings.
FACTS
Melinda and Bob were married in 1987. After the marriage, Bob received 190 shares of Seitz Lumber
Company stock, fifty percent interest in 100 acres known as the Proctor property, and fifty percent
interest in 132 acres known as the Tibbee property. Furthermore, each party received from the
Seitzes a twenty five percent interest in a 200 acre property known as the Bond property. All other
stock and real estate were acquired by each party prior to the marriage. Mrs. Mamie Seitz, Bob's
mother, testified that the couple's household furniture was acquired by Bob prior to the marriage.
Mamie Seitz testified that the furniture was devised to her husband from the estate of Joy Seitz.
Mamie selected the furniture that was to remain in the family and distributed it among her two sons.
The Joy Seitz estate was closed prior to the marriage.
Bob worked as an office manager at the Seitz Lumber Company, a closely held family corporation,
while Melinda worked as a paralegal. Melinda also spent a lot of time helping her father and his
business ventures. Bob took no active part in Melinda's career other than making a few limited
financial contributions. During the marriage, the couple employed both a nanny and a housekeeper to
help manage the household. Therefore, Melinda was not restricted by her family duties in her pursuit
of her career. Both parties actively pursued their individual careers.
In 1990, the couple decided to separate, and remained separated for about one year. After a brief
attempt at a reconciliation, Melinda and Bob decided on a final separation in 1992. Although the
couple was married for five and a half years, they did not live together for more than forty four
months.
DISCUSSION
Our standard of review in domestic relations matters is limited. We will not reverse the findings of
the chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal
standard was applied. Ferguson v. Ferguson, 639 So. 2d 921, 930 (Miss. 1994). On appeal, we are
required to respect the findings of fact made by a chancellor supported by credible evidence and not
manifestly wrong. Id. Having established this, we review the following issues.
I. EXPERT TESTIMONY
Melinda next contends that the chancellor erred in limiting the testimony of her expert witness, Roger
N. Hill. Mr. Hill was tendered as an expert to testify about the value of the common stock of the
Seitz Lumber Company. Rule 702 of the Mississippi Rules of Evidence states "if scientific, technical
or other specialized knowledge will assist the trier of fact to understand the evidence or to determine
a fact issue, a witness qualified as an expert by knowledge, skill, experience, training or education,
may testify thereto in the form of an opinion or otherwise." In other words, the query is "whether the
particular witness really is an expert in the field in which he or she is tendered." T.K. Stanley Inc. v.
Cason, 614 So. 2d 942, 951 (Miss. 1992).
During voir dire, Mr. Hill's credentials were established. Mr. Hill is a certified public accountant who
has been practicing in West Point, Mississippi since 1979. He earned his degree in accounting from
Mississippi State University, and has earned several professional designations. He has earned a
designation as a Professional Personal Financial Specialist and Personal Financial Planner. He is
registered as an Investment Advisor with the Securities Exchange Commission, as well as with the
Secretary of State of Mississippi. As part of his duties as an accountant, he must evaluate closely held
corporations in accordance with I.R.S. guidelines, which apply to all types of businesses. He has
examined appraisals of equipment, land and other assets of Seitz Lumber Company provided by the
company to the bank when they applied for loans. Hill has also advised clients who were interested in
buying or selling businesses on the methods used in determining the fair market value. The method
used in evaluating these businesses is uniform and applies to all businesses. The chancellor limited
Hill to testify as an expert in the limited capacity as a certified public accountant. He was not
qualified as an expert in calculating the value of the lumber company. At the conclusion of all the
testimony, a proffer was made as to Hill's testimony where it was revealed that Hill would have
presented three ways in which to evaluate a closely held corporation. All three methods apply to the
evaluation of different types of businesses and have been accepted by the Internal Revenue Service as
appropriate methods of evaluating closely held corporations.
This case is distinguishable from previous cases that have held that a reversal based solely on the
lower court's exclusion of an expert witness is inappropriate when a proffer has not been made on the
record. See Hammond v. Grissom, 470 So. 2d 1049, 1052-53 (Miss. 1985). In the present case, Hill's
credentials were established and a proffer was appropriately made. We hold that Roger Hill should
have been duly qualified as an expert and been allowed to testify regarding his evaluation of the Seitz
Lumber Company.
II. DIVISION OF MARITAL PROPERTY
A. Marital Property
In the case sub judice, the chancellor determined that the marital property that should be considered
for equitable distribution included each parties separate IRA accounts, 401-K plans, stock
investments, household goods (except those accumulated by Bob before the marriage), and country
club stock that each party accumulated during the marriage. The lumber company stock was
determined not to be marital property. Because we find that the testimony of Roger Hill was
erroneously limited, the determination of the marital property may be subject to change based upon
the evidence presented on remand.
B. Alimony
Melinda argues that the chancellor erred in failing to consider awarding her lump sum alimony. She
claims that she is entitled to an award of lump sum alimony because of the great disparity in the
parties' separate estates. "It is hornbook law that whether to award alimony and the amount to be
awarded are largely within the discretion of the chancellor." Sarver v. Sarver, 687 So. 2d 749, 756
(Miss. 1997).
The following factors must be considered in determining whether to award lump sum alimony: (1)
substantial contribution to accumulation of wealth by quitting job to become housewife or assisting in
husband's business; (2) long marriage; (3) separate income or separate estate meager in comparison
to that of payor spouse and (4) financial security without lump sum alimony. Creekmore v.
Creekmore, 651 So. 2d 513, 516 (Miss. 1995). The disparity of the separate estates has been the
most compelling factor in determining whether to award lump sum alimony. Id.
It is apparent the court considered each factor in determining the amount of alimony to award. The
court found that Melinda did not make a substantial contribution to their wealth either by
relinquishing her career or assisting Bob in his career; in fact, the chancellor found to the contrary.
Although the parties were married for over five years, apparently, they only lived together for about
forty four months. The chancellor specifically found that from the time of their separation until the
final divorce decree was entered, Melinda had re-established her economic circumstances and career
opportunities. For those reasons, he denied lump sum alimony.
Where lump sum alimony has been awarded in the past, common elements have been present in most
cases. Grogan v. Grogan, 641 So. 2d 734, 742 (Miss. 1994). The first common characteristic is that
the wife's efforts were a material economic benefit to the husband's wealth. Id. These efforts usually
include quitting her job to help him in his business, helping obtain an education, working in his
business, and providing counseling in the husband's business or investments. Id. The second factor is
being a dutiful and faithful housewife. Id. In the present case, although there is no indication that
Melinda was not a dutiful and faithful wife, Melinda did not go out of her way to contribute to the
economic benefit of Bob at her own expense. There was no abuse of discretion here.
III. CHILD SUPPORT
Melinda contends that the chancellor erred in his determination of child support. The chancellor
ordered Bob to pay Melinda $1250 a month in child support. In determining child support, the Court
has recognized several factors for the chancellor to consider. These factors are: (1) the health of the
husband and his earning capacity; (2) the health of the wife and her earning capacity; (3) the entire
sources of income of both parties; (4) the reasonable needs of the wife; (5) the reasonable needs of
the child; (6) the necessary living expenses of the husband; (7) the estimated amount of income taxes
the respective parties must pay on their income; (8) the fact that the wife has the free use of the
home, furnishings and automobile; and (9) such other facts and circumstances bearing on the subject
that might be shown by the evidence. Dufour v. Dufour, 631 So. 2d 192, 194 (Miss. 1994).
Furthermore, statutory guidelines set forth in Section 43-19-101 of the Mississippi Code are usually
used in conjunction with the nine factors above to establish the appropriate child support award.
Draper v. Draper, 658 So. 2d 866, 869 (Miss. 1995). The statutory language specifically states that
the guidelines shall apply unless the judicial body awarding the award makes a written or specific
finding on the record that the application of the guidelines would be unjust or inappropriate under
Section 43-19-103 of the Code. Miss. Code Ann. 43-19-101(2) (Rev. 1994). Taking into
consideration Clara's educational expenses (not including college) as well as an exhibit submitted
detailing Clara's monthly expenses, the chancellor determined that Bob should pay $1250 per month
in child support. We find that substantial evidence supports this finding.
IV. CONTEMPT CITATION
Melinda claims the chancellor erred in failing to grant her any relief on her motion for contempt. In a
previous temporary order entered in February 1993, the chancellor ordered Bob to pay $600 per
month in temporary child support plus the cost of medical insurance and expenses for Melinda and
Clara. In August 1994, Melinda filed a motion for contempt against Bob for $3080 in medical
payments and $600 for one month arrearage in child support.
Bob argues that Melinda charged expenses to his account that were not authorized by the temporary
order, such as meals at the country club and taxes on the Bond property. He contends that he had
paid the medical bills in a timely manner, and that in fact, she owed him money. According to Bob,
the outstanding bills that he owed to Melinda totaled $194.85, while Melinda owed him $287.50. He
testified that he thought he had the right to deduct the money that Melinda owed to him. Apparently,
the chancellor was satisfied with Bob's explanation and denied Melinda's motion for contempt.
"Contempt matters are committed to the substantial discretion of the trial court which, by
institutional circumstance and both temporal and visual proximity, is infinitely more competent to
decide the matter than we are." Varner v. Varner, 666 So. 2d 493, 496 (Miss. 1995). Finding no
abuse of discretion here, we find no merit to this issue.
V. ATTORNEY'S FEES
The chancellor awarded Melinda attorney's fees in the amount of $15,000 and $8,945 for expert
witness fees. Melinda contends that she incurred more than $40,000 in attorney's fees and that she is
unable to pay this fee. She argues that she should be awarded attorney's fees in a sum which would
enable her to fairly present her case.
The determination of awarding attorney's fees in a divorce action is largely entrusted to the sound
discretion of the lower court. Ferguson, 639 So. 2d at 937. The chancellor limited Melinda's
recovery of attorney's fees stating in part:
The plaintiff utilized the services of three attorneys . . . paralegal, herself and her staff. An
examination of the file will reflect no complicated legal question; that at the time, energy and cost
was entirely devoted to discovery which, in the final analysis, was of limited benefit and assistance to
the Court . . . Simply stated, this Court is of the opinion that the award of fees is adequate to
compensate for that which was reasonably necessary and beneficial in the development and
presentation of this case.
We are reluctant to disturb a chancellor's discretionary determination whether to award attorney's
fees and the amount of any award. Ferguson, 639 So. 2d at 937. Considering the record, we cannot
say that the chancellor abused his discretion in awarding the amount of attorney's fees. We find no
merit to this issue.
CONCLUSION
We conclude that the chancellor erroneously limited the testimony of Roger Hill. Hill's background
and methods of evaluating closely held corporations are accepted by the Internal Revenue Service.
Furthermore, a proffer was properly made as to Hill's anticipated testimony. Therefore, we reverse
this case based on this issue. On remand, Hill should be qualified as an expert in evaluating closely
held corporations. Furthermore, the equitable division of the marital assets should be amended if
necessary based on the evidence Hill will present. Finding no merit to the other issues raised on this
appeal, we affirm the judgment in all other respects. Accordingly, we remand this cause back to the
chancery court for proceedings consistent with this opinion.
THE JUDGMENT OF THE CLAY COUNTY CHANCERY COURT IS AFFIRMED IN
PART AND REVERSED IN PART. THIS CAUSE IS REMANDED TO THE CHANCERY
COURT FOR FURTHER PROCEEDINGS. COSTS OF THIS APPEAL ARE TAXED
THREE-FOURTHS TO MELINDA MCNEEL-SEITZ, AND ONE-FOURTH TO ROBERT
M. SEITZ.
BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., COLEMAN, HERRING, HINKEBEIN,
KING, PAYNE, AND SOUTHWICK, JJ., CONCUR.