BRIEF OF APPELLANT

E-Filed Document
Sep 29 2014 16:22:26
2014-CA-00865
Pages: 20
IN THE SUPREME COURT OF THE STATE OF MI
MI\~SISSIPPI
SISSIPPI
MAXWELL LOMAX,
APPELLANT
vs.
VS.
CAUSE NO. 2014-TS-00865
20]4-TS-00865
TARA LOMAX,
APPELLEE
ON APPEAL FROM
THE CHANCERY COURT OF
OF DESOTO COUNTY, MISSISSIPPI
BRIEF OF APPELLANT
Respectfully Submitted,
Submitte ,
lsi David Clay Vanderburg
Vanderhurg
/s/
David Clay Vanderburg
Vanderburh MSB#6088
Attorney for AppellantJ'Defendant
Appellant'Defendant
P.O. Box 523
Hernando, MS 38632
662-429-9680
I
TABLE OF CONTENTS
Page
Table of Contents.. ....... ................ ........................... .. .. .. . . .. . .. .. .. .. . .. .. .. ..
i
Certificate of Interested Persons ... . .. ... .......... ....... .. .. .......... ·I·. ............. ... .. ..
11
Table of Authorities ... .... ... .. ........... .. ...... . .... ....... .. ... ....... ·[ · . ... .... ....... ....... iv
Statement of the Issues ............... .. . .. ......... .. . .. .... .... . .. ........ . .. ... ............. . ...... 1
I
Statement of the Case ............................... . ........................... .... .... . ...... . .... 2
Summary of the Argument ....... .. ... . ... .. .. ... .... ... . ..... .. ... .. ... . .1.... ................ ..... 4
I
Argument ... ..... .................. ............ . .......... ... .. ..... ...... .... . ........ . .... .. . .... ... 8
Conclusion .. ..... ................................. ................ ..........
J....................... 14
Certificate of Service ..... ..... ............ ..... .... ... ..... .. ... ... .. .............. ... ... .. . ...... ... 15
IN THE SUPREME COURT OF THE STATE OF MI(3SISSIPPI
MAXWELL LOMAX,
APPELLANT
VS.
CAUSE NO. 2014-TS-00865
TARA LOMAX,
APPEL LEE
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the followirfg listed persons have
an interest in the outcome of the case. These representations are made in order that the
justices of this Court may evaluate possible disqualifications or recusal.
Parties:
1.
Tara Lomax, Appellee
4498 Westminister Circle
Southaven, MS 38671
2.
Maxwell Lomax, Appellant
P.O. Box 442
Olive Branch, MS 38654
Attorneys
1.
Honorable David Clay Vanderburg
Attorney for Appellant
P.O. Box 523
Hernando, MS 38632
622-429-9680
2.
Honorable Martin Zummach
Attorney for Appellee
7125 Getwell Rd, Suite 201
Southaven, MS 38671-0266
3.
Honorable Percy Lynchard
Chancery Court Judge
P.O. Box340
Hernando, MS 38632
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Respectfully Si1bmitted,
/s/ David Clay Vanderburg
David Clay Vanderburg MSB#6088
Attorney for Appellant
P.O. Box 523
Hernando, MS 38632
662-429-9680
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TABLE OF AUTHORITIES
Cases
Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994).....
.1. . .... .... . . . . . . .
I
7
Hemsley v. Hemsley 639 So. 2d 909 (Miss. 1994)....................................... 11
Holladay v. Holladay 776 So. 2d 662 (Miss. 2000) .......................................8
Rayner v. Lindsey 138 So. 2d 902(Miss. 1962) ............................................ 13
Reddell vs. Reddell 696 So. 2d 287 (Miss. 1997)........................................ .12
Webb v. Blake (1923) 31 Ga app 101, (119 Se. 447) ................................. .14
-IV-
STATEMENT OF ISSUES
A. The Court erred in granting a divorce to the Plaintiff, Tara Lomax, on the
grounds of Habitual, Cruel and Inhuman Treatment.
B. The Court erred in denying the testimony of witnessei; and the Defendant
concerning an altercation between the parties prior to the marriage;
C. The Court erred in division of property acquired by the parties prior to and
during the marriage and not returning the engagement ring to the
Defendant.
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STATEMENT OF THE CASE
A . Nature o(the Case:
The parties are Tara Lomax "Tara" and Maxr ell Lomax "Max".
The parties were married October 25, 2013 and separated on or about
January 11 , 2014. This was a short marriage. Tara alleged as her
grounds for divorce habitual, cruel and inhuman treatment. Max did
not want a divorce. No children were born or ado1pted unto the
marriage.
Tara lived in a home in Southaven, Mississippi that was owned by
her father. During the marriage, Max moved into the home of Tara.
While each party brought personal property into the marriage, there
was no real property acquired by the parties duririg the marriage.
Tara and Max had an agreement as to the wedding ring that was
given to Tara by Max. The wedding ring was froin Max's mother. This
ring was given to Tara on the condition that if the marriage fell
through, then in that event, the wedding ring would be returned to
Max's mother. At the time of the marriage, Max could not afford a
wedding ring sufficient for Tara. This wedding ring was loaned to Max
to give to Tara, until such time as Max could afford a wedding ring
sufficient for Tara. (Tr. 37-38). Max testified as follows: "The
wedding band and the accessory that goes with a wedding band, the
little diamonds. Well, while Tara and I were at my mother's, I told my
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mother, you know, that I wanted to marry Tara, mid I told her that I
could not completely finance a ring by myself right now. And she said,
well, Max, she said as long as I get my ring back --
Mr. Zummach: Your Honor, I would object to any hearsay...
Q: "By Mr. Vanderburg" Was Tara present when your mother was
telling ya'll this?
A: Yes.
Q: What did Tara tell your mother?
A: She said don't worry about it. If things don't work out, I will give to
you right back.
The Wedding ring was never returned to Max's mother. The Court
allowed Tara to keep the wedding ring.
B. Course ofproceedings below:
Tara Lomax filed a Complaint for Divorce a~;ainst her husband,
Max.well Lomax, February 7, 2014. An Amended Complaint for
Divorce was filed April 16, 2014.
While Max.well Lomax filed an Answer and Affirmative Defenses
to the Amended Complaint for Divorce, he did not file a CounterComplaint. It was Max's position that he did not want the divorce.
Max wanted the parties to try marriage counselin15.
This case proceeded to trial May 23, 2014. Max was called as an
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adverse witness. Tara testified. Tara offered cert1in exhibits and
photographs of an alleged assault. Max contends the photographs and
injuries of Tara were prior to the marriage.
The Court granted a Divorce (R.E. 4) to Tara Lomax on May 23,
2014. Further, the Court divided non-marital projperty and martial
property. The Court denied returning the engagement ring to Max
Lomax.
SUMMARY OF THE ARGUMENT
A. The Court erred in granting a divorce to the Plaintiff, Tara Lomax, on the
grounds of Habitual, Cruel and lnhwnan Treatment.
This was a short marriage. The parties married October 25, 2013.
The parties separated on or about the 11 1h day of January, 2014. (TR. 4-5).
Tara did not have sufficient grounds for the Oourt to grant her a
divorce. Further, her testimony was not corroborated.
B.
The Court erred in denying the testimony of witnesses concerning an
a1tercation between the parties that occurred prior to the marriage;
Max and Tara dated prior to the marriage. On July 21, 2012, prior
to the marriage, the parties had an altercation. Max was driving an
automobile and Tara was a passenger. While traveling down Highway 310
in Panola County, Mississippi, Tara grabbed the gear shift of the
automobile. This caused the automobile to stop. Tara ruld Max hit the
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windshield. The parties returned to the home of Max in Hannontown,
Mississippi. Hannontown is in Lafayette County, Mi!;sissippi. A police
report of this incident was made by the Lafayette County Sheriff's Deputy.
The Deputy made the scene in Harmontown, Mississippi. He noticed
injuries to Tara that were caused by the accident. He made a police report
of this incident.
Max further testified that Tara received injunes while dancing at a
bar in DeSoto County, Mississippi. Both incidents oc~urred prior to the
marriage.
Tara had photographs of these injuries which were allowed into
evidence. Tara testified these injuries occurred during the marriage.
Max was not allowed to present evidence thc.t the injuries occurred
prior to the marriage.
C. The Court erred in division of property acquired by the parties prior to
and during the marriage; and not returning the engagement to Max.
Max owned a Mitsubishi automobile prior to the marriage. He
placed the title to the automobile in the name of his wife, Tara Lomax. A
loan was taken against the automobile in the name of Tara Lomax in the
amount of $5,000.00.
Tara purchased a 2°d vehicle during the marriage. Thi.; vehicle was a Range
Rover. At the time of the divorce this vehicle, (Range Rover) had an equity
of $7,359.00. The Court did not award Max any equity in the Range Rover.
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The Court ordered Max to reimburse Tara $3,500.00. This
being approximately Yz of the money owed on the Mitsubishi automobile.
The parties' income was substantially the same. However, the
marital assets of the parties were not divided equally. This being less than a
six month marriage, the marital property should have been divided equally.
This was not done by the Court.
Max and Tara went to visit Max's mother prior to the marriage.
The agreement between the parties and Max's mother, was that the
engagement ring would be given to Tara on the condi tion if the marriage
ended, then the ring would be returned to Max' s mother.
This was all agreed to by the parties. (Tr. 37-.38) Max stated, "She
said don't worry about it. If things don't work out, I will give it to you right
back."
Q. Because your mother gave the wedding ring, I gue5;s, to you to give to
Tara?
A. That is correct. Not to give to her, to loan to Tara until I could afford tountil I could afford to buy the stone that goes into the m iddle.
Q. Did Tara have- - was that the understanding Tara left with?
A. Absolutely .....
Q. Ok. So the wedding ring was given to Tara under these conditions?
A. It was.
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Q. That until you got able to buy her the wedding ring that she wanted, this
would be used as a wedding ring?
A. That is correct. And she acknowledged that, and we talked about it in
text messages that we have.
The Court made a division of personal properties acquired by the
parties before and during the marriage. The Mitsubishi automobile was
owned by Max prior to the marriage. He placed the title to the automobile
in the name of Tara. A $5,000.00 loan was taken out Jn the name of Tara
Lomax prior to the marriage.
Tara purchased a 2nd automobile during the marriage. This was a
Range Rover. This vehicle had an equity of $7,359.00. Max was not
awarded any equity in the Range Rover. Max was ord~red to pay Tara
$3,500.00 being half the loan taken out against the Mitsubishi automobile.
Tara was allowed to keep the wedding ring. The wedding ring
came from Max's mother prior to the marriage. Max a::id Tara had an
agreement that the wedding ring would be returned to Max's mother if the
marriage did not work out. The Court refused to honor this agreement and
refused to return the wedding ring to Max.
The Court awarded the Mitsubishi automobilE to Tara and required
Max to pay a partial indebtedness owed on the automobile of $3,500.00.
However, the Court failed to give Max any credit for ':he Range Rover
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automobile that was titled in the name of Tara Lomax. This automobile
had equity of $7,359.00 which was not properly distributed as marital
property.
ARGUMENT
A. The Court erred in granting a divorce to the Plaintiff, Tara Lomax, on the
grounds of Habitual, Cruel and Inhuman Treatment.
Tara Lomax filed for divorce on the grounds of Habitual Cruel and
Inhuman Treatment. This grounds for divorce must be corroborated. In
order to warrant a divorce on the grounds of Habitual Cruel and Inhuman
Treatment, the proof must be such as to endanger the life, limb, or health
of the complainant or create a reasonable apprehension of danger thereto.
A divorce is not authorized for every slight act of violence which
an angered husband may commit against his wife. Habitual Cruel and
Inhuman Treatment may be established only by a continuous course of
conduct on the part of the offending spouse which was so unkind,
unfeeling, or brutal as to endanger or put one in reasonable apprehension
of danger to life, limb, or health, and further, such couduct must be
habitual, that is, done often enough or so continuously that it may
reasonably be said to be a permanent condition. Holla:iay v. Holladay, 776
So. 2d. 662(Miss. 2000). The evidence requires more than mere
unkindness, rudeness, or incompatibility to support thi~ granting of a
divorce on the grounds of cruel and inhuman treatment.
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B. The Court erred in denying the testimony of witness•;!S and the Defendant
concerning an altercation between the parties prior to the marriage;
Max testified that the parties had an altercation one evening
leaving Sardis Lake. (Tr. 27). " But after she threw the car up in park a
couple of times, Sir, about three times, I slammed my car up in park.
Tara's head, as well as mine, hit the dash and the windshield and that's
where a lot of bruises came from on the facial area." (Tr. 28-29).
James Kimmons Gray was called to testify as. a witness for Max.
He is employed with the Lafayette County Sheriff's Department as a
Deputy Sheriff. As part of his duties he works the north side of the lake,
the Harmontown area. (Tr. 79). Deputy Gray testified that he got a call on
July 21 , 2012 from a Mr. Max Lomax. He testified he made a report of the
incident. (Tr. 79). The Court allowed this testimony ::Or impeachment
purposes. (Tr. 80). Deputy Gray, "on this particular night when I arrived
there, it was more of a squabble, a lover's squabble or quarrel. They had-I had talked to the Complainant first, and he said tha1 they had been out on
the boat that day, and they had gotten into an argument on the boat. And
they had come back to shore, got in a vehicle, and was coming back to
Harmontown. And somewhere in Panola County on :~ 10, there was an
incident in the vehicle where there was an argument, and the Complainant
said she grabbed the gear shift and threw it in park as they were going
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down the road throwing them into the dashboard. He said at the time that
she was pregnant and that -- I don't know as far as any damages to the
child or anything. I don't know."
Generally, it may be said that any legally competent evidence which,
when taken alone or in conjunction with other evideace, tends to prove or
disprove a material or controlling issue or to defeat the rights asserted by
one or the other of the parties, and sheds any light upon or touches the
issues in such a way as to enable the Court to draw a logical and
reasonable inference with respect to the matter or a principal fact in
issue, is relevant. Rayner v. Lindsey 138 So. 2d 902 (Miss. 1962).
If the evidence is logically relevant, that is, has some tendency to
prove or disprove a matter in issue it does not become inadmissible nearly
because it is incomplete, weak, or remote in time.
M1~rely
because a fact is
remote in point of time or probative value does not of itself preclude it's
admissibility, but it's admissibility depends to a large extent on the nature
and circumstances of the case.
The testimony of Max and Deputy James Kimmons Gray was
relevant. This evidence tends to disprove a material fact asserted by Tara.
This evidence should have been allowed by the Cour: without restrictions.
C. The Court erred in division of property acquired by the parties prior to and
during the marriage and not returning the engagement ring to Max.
The parties owned two vehicles during the mctrriage. The
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Mitsubishi automobile was titled to Tara. The Range Rover was titled to
Tara. Max had a loaner automobile that was not in his name. The parties
had divided their remaining personal property. A $5,000.00 debt was
owed on the Mitsubishi automobile. The Range Rover had indebtedness
but had an equity of $7,359.00. Max received no eqt1ity from the Range
Rover.
The Court has to make a determination and to define clearly and
plainly what constitutes "marital" property. This mar well lead to the
identification of 2 classes of property. Those being "marital" and "nonmarital." In Ferguson v. Ferguson, 639 So. 2d 921 ()v:liss.1994) the
Supreme Court declared "property division should be based upon a
determination of the fair market value of the assets and that these
valuations should be the initial step in determining division.
Marital property is any and all property acqui:ed or accumulated
by the parties during the marriage. Assets so acquired or accumulated
during the course of the marriage are marital assets and are subject to an
equitable distribution by the Chancellor. Hemsley v. Hemsley 639 So. 2d
909 (Miss. 1994). All other property is non marital property. Non marital
assets, commonly being property acquired by inheritance, or inter vivos
gift by or to an individual spouse and property brought to the marriage by
the parties is normally not subject to such distributiorf.
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The Court gave no interest in the Range Rover to Max. The Court
failed to properly determine equitable distribution o: the marital assets of
the parties.
In the final analysis, all awards should be considered together to
determine that they are equitable and fair.
The parties had an agreement prior to the marriage concerning the
wedding ring that was given to Tara by Max. The wedding ring came from
Max's mother. The parties agreed that if the marriage did not work out,
then the wedding ring would be returned to Max's mother. This was not
done. Further, the Court erred in not returning the wedding ring to Max.
In regards to the return of the engagement ring, there was an
agreement between the parties that was a binding, unambiguous contract.
There was an oral agreement between Max, Tara and Max's mother that if
the marriage ended then the wedding ring would be returned to Tara. The
Court failed to enforce this agreement.
In Reddell vs. Reddell 696 So. 2d 287 (Miss. 1997), the Court
reversed the award of equity division of marital assets at the time of the
granting of the divorce to the wife, where the Trial C'Jurt had failed to
include in it's consideration the assets that had been acquired by the wife
during the marriage. It was error to consider only the jointly acquired
assets of the husband, with the Court pointing out that "one objective of
equitable distribution of property is a fair division ba!;ed upon the facts of
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the case."
The general rule is that gifts inter vivos must be fully and
completely executed; that is, there must be a donative intent to transfer
title to the property, a delivery by the donor, and an acceptance by the
donee. If anything remains to be done, the transactio constitutes merely
an executory agreement to give, and the title to the property does not pass.
Thus a delivery of property without a donative intent does not amount to a
gift, and neither does a mere intention to give withot.t delivery of the
property. The intention must be executed by a complete and unconditional
delivery.
A gift between persons occupying confidential relations toward
each other is, if it's validly is attacked, always jealorn:ly scrutinized by a
court of equity, and unless found to have been made freely, voluntarily,
and with a full understanding of the facts, will be invalidated.
Where Plaintiff had loaned a diamond to her ~;on, and the son gave
it to Defendant on becoming engaged to her, but man-iage between the son
and the Defendant never occurred, it was held in Webb v. Blake (1923) 31
Ga app 101 , (119 Se. 447), syllabus opinion by the Court, that Plaintiff
could maintain trover to obtain its return. 46 ALR 3rd 608-609.
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CONCLUSION
Tara Lomax did not have sufficient grounds to obtain a divorce on
Habitual Cruel and Inhuman Treatment.
Further, the Court erred in failing to return the engagement ring to Max
Lomax. This was heir property, and Tarahad agreed to return this ring to Max's
mother if the parties ever divorced.
For the foregoing reasons, the Court's Order of Divorce (R.E. 4) entered
May 23, 2014 should be reversed and rendered.
Respectfully Submitted,
/s/ David Clay Vanderburg
David Clay V m1derburg MSB#6088
Attorney for Appellant
P.O. Box 523
Hernando, MS 38632
662-429-9680
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CERTIFICATE OF SERVICE
I, David Clay Vanderburg, certify that I have this day mailed, by United States
Mail, postage pre-paid, a true and correct copy of the above and fo1egoing Brief of
Appellant to the following:
1.
Hon. Martin Zummach
Attorney for Appellee
7125 Getwell Rd., Ste. 201
Southaven, MS 38671
2.
Hon. Percy Lynchard
P.O. Box 340
Hernando, MS 38632
SO CERTIFIED, this the 29th day of September, 2014.
/s/ David Clay Vanderburg
David Clay Vanderburg MSB 1#6088
Certifying Attorney
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