IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-01813-COA ROBERT E. COLEMAN APPELLANT

v. BEVERLY LYNN COLEMAN APPELLEE DATE OF JUDGMENT: 12/01/2014 TRIAL JUDGE: HON. H.J. DAVIDSON JR. COURT FROM W HICH APPEALED: LOW NDES COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: W

. HOW ARD GUN ATTORNEY FOR APPELLEE: ROY ANDRE’ PERKINS NATURE OF THE CASE: CIVIL - REAL PROPERTY TRIAL COURT DISPOSITION: APPELLEE AW ARDED OW NERSHIP OF HOUSE UPON PAYMENT OF $34,103.70 TO APPELLANT DISPOSITION: AFFIRMED: 01/12/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GRIFFIS, P.J., FOR THE COURT: ¶1. During t heir m arriage, Robert and Beverly Colem an b uilt a hom e t ogether. Their relationship ended in divorce. In t he divorce, t he court granted Beverly use of the hom e until their son reached the age of m ajority

. W hen this occurred, the Colem ans cam e back to court f or a d ivision. T he chancellor granted Beverly s o l e o w n e r s hip o f the hom e and granted Robert the am ount of m oney he p ut into the hom e along with h is percentage of the increased value of the hom e. Robert appeals this judgm ent. W e f ind no error and af

f irm

. FACTS¶2. In their 2002 divorce, B e v erly was granted “exclusive use and possession of the

m arital r esidence” until t hei r c h i l d r e ached t he age o f m ajority

. The hom e is situated on f am ily land deeded to Beverly and Robert by Beverly ’ s m other. A s instructed in the divorce decree, B everly paid the m onthly m ortgage pay m e nts, taxes, and insurance f o r the hom e af

ter the divorce. Robert was to divide equally with Beverly any m a i ntenance pay m ents regarding the hom e, but he never did. The court’s judgm ent gave no instruction as to what would occur when the child reached the age of m ajority

. ¶3. In 2013, their child turned twenty

- one y ears old. Beverly f iled a p etition with the
court and asked f

or exclusive possession, title, and ownership of the h om e. R obert f iled an

answer and a counterclaim to partitio n t h e l and. He later f iled a m otion f

or sum m ary judgm ent on his counterclaim f or the partition of the land, requesting t hat the court go f orward in the m atter as a partition rather than a m odif ication of the d ivorce decree. The chancellor granted sum m ary judgm ent to the extent that t h e c ourt i nstructed the parties to proceed with the par t i t i o n . T he judge c o ncluded that “the parties are not m arried, the property is no longer the m arital hom estead and the property is subject by law to a division by partition as provided by

statute.” ¶4. Following a hearing o n the partition, the chancellor granted t itle to Beverly

. Beverly

was instructed to pay Robert $34,103.70. This am o unt constitutes half of the equity

in the hom e at t he tim e of the divorce adjus t e d f o r the increased value o f the hom e. Robert now appeals , claim ing that t he trial court abused its discretion b y i m properly m o dif

y ing the divorce decree and inequitably partitioning the hom e . It is f rom this judgm ent that Robert

2now appeals. S TANDARD OF REVIEW

¶5. This Court has a lim ited standard of review in appeals f rom the chancery court. Jones v. Graphia , 95 So. 3d 751, 753 (¶6) (Miss. Ct. App. 2012). The standard of review as to a chancellor’s decision is ab u s e o f discretion. Id. T his Court “will not d isturb the f actual f in d i n g s o f a chancellor when supported by substantial evidence unless we can say with reasonable certainty t hat the chancellor a bused his discretion, was m anif e stly wrong, clearly

erroneous, or applied an erroneous legal standard.” Id. (quoting Biglane v. Under the Hill Corp. , 949 So. 2 d 9 , 13-14 (¶17) (Miss. 2007) )

. This Court reviews questions of law de

novo. I d. ANALYSIS ¶6. Mississippi C ode Annotated section 11- 2 1

- 9 ( Rev. 2004) allows t he chancellor to determ ine all questions concerning title. Jones , 95 So. 3d at 754 (¶11). Mississippi’s statutes “in ref erence to t he pa r t i t i on o f real estate

. . . g ive the right of partition by decree of the chancery court upon the application of any tenant i n com m on or j oint tenant.” R u s h i ng v. Rushing , 414 So. 2d 429, 431 (Miss. 1982). I. W hether the chancellor improperly modified the divorce decree. ¶7. “A cotenant wishing to partite real property subject t o a divorce decree i s not required
to f i le suit to m o dif

y the decree, but m a y exercise her statutory right to partition by f iling a petition f or partition.” M

osby v. Mosby , 962 So. 2d 1 19, 123 ( ¶12) (Miss. Ct. App. 2007) (citing Blackmon v. Blackmon , 350 So. 2d 44, 46 (Miss. 1977)). Robert argues that the

3chancellor essentially m o dif ied the divorce decree and that this m odif ication was im

proper. ¶8. “This argum ent is without m erit because the chancellor clearly granted the petition f or partition and did not, in f act, m odif

y the decree.” Id. R obert requested a partition, and the chancellor stated in his j udgm ent that “the parties a re n o l onger m arried, the equities need
to be adjusted[ ,] and the partition statutes provide a s ound m ethod o f arriving at a just and equitable result.” The court “proceeded accordingly under partition.” As t he chancellor’s decision was based upon the p artition statutes and he d id not m odif y the divorce decree, the Court f inds this issue without m erit. II. W hether the chancel l o r a b u s e d h i s discretion i n the partition of the home

. ¶9. W h en par t i e s s e e k a partition of land, “the q uestion of t itle shall be tried and determ ined in the suit and the court shall have power to d eterm i ne all questio n s o f t i t le.” Miss. Code Ann. § 11-21-9. In doing s o, “ [ t ]he court m ay adjust the equities between and determ ine all claim s of

the several cotenants . . . .” Id. ¶10. Generally , “a partition i n kind, rather than a p artition by s ale, is the pref erred m ethod of dividing property in M ississippi.” Cathey v. McPhail & Assocs. , 989 So. 2d 494, 495 (¶4) (Miss. Ct. App. 2008 ) ( c i t i n g F u l ler v. Chimento , 824 So. 2 d 599, 601 ( ¶8) (Miss. 2002)). Robert a nd B everly agreed that the hom e could not be divided in kind and that it should be sold under statute. They also a greed to a private sale to allow Beverly to purchase the hom e. A ch a n c e l lor m ay order the sale of property and “a d ivision o f the proceeds am ong the
cotenants according to their respective interests.” Miss. C ode Ann. § 11-21-11 ( Rev. 2004). A s b o t h p arties agreed to a sale, the chancellor essentially needed to “adjust the equitie s

4between a nd determ ine all claim s” of Robert and Beverly and divide “the proceeds” between

Beverly a nd Robert “according to their respective interests.” Miss. Code Ann. §§ 11-21-9 & 11-21-11. ¶11. Beverly p aid the m ortgage over twelve y ears, paring down t he m ortgage and building equity in the hom e . In 2 014, when the partition was granted by the chancellor, the hom e was valued at $187,000. The equity in the hom e at that tim e was $144,787.73, w ith a m ortgage balance of

$42,212.27. At the tim e of the divorce, the hom e was valued at $115,000, with

a m ortgage balance of $72,585.36. ¶12. Beverly a lso paid f o r the insurance on the hom e a nd the taxes, and she in turn received the ben e f i t o f l i v i ng on the p roperty

. Though Robert was ordered in the divorce decree to split m aintenance costs on the h o m e equally with Beverly , it is undisputed that he never paid f or any m aintenance. The c hancellor set Robert’s am ount of equity in the hom e prior to the divorce at $21,000

– essentially half of the pay m ents m ade on the hom e prior to the divorce. This calculates to a 18.26% interest in the hom e, t he s a m e a s Beverly ’s interest at the tim e of the divorce. Thus, Robert’s interest i n the hom e at the 2014 appraisal value was $34,146.20. ¶13. The chan c e l lor f

ound that Beverly should receive the benef it of the m ortgage
pay m ents m ade on the h om e. He reasoned that Robert received a benef it b ecause h is interest in t he h om e grew due to Beverly ’s continued pay m e nts on the hom e. The chancellor f ound that “ it [ was] e quitable to give Robert the benef it of t he appreciation equity , but to allow h im
to prof it f rom the ef f o rts a nd pay

m ents of Beverly would not be equitable.” I n s um , the court

5concluded that “Robert d id not pay any of the required ex p e n s e s , s o h e s hould not get any

c r e d i t ; however, neither s h ould he have to pay f or h is displacem ent

. . . f

rom the prop e r t y . Beverly ’ s ef

f orts paid d own the m ortgage and s he should get t hat benef it; however, she did not pay rent f o r the use and occupancy of Robert’s one[ -]half

.” ¶14. Finally , Robert’s share was re d u c e d b y $42.50, one-half o f the cost of a bathroom heater installed in the hom e. The h eater w as considered an im provem ent u nder t he partition
statute. See Miss. Code A nn. § 11-21-27 (Rev. 2004). This lef t a total of $ 34,103.70 owed to Robert f

or his share of

the hom e. ¶15. K e e p i ng in m ind the appropriate standard of review, this Court holds that t h e chancel l o r ’ s f

indings of f

act and conclusions of law a r e s u pported b y substantial evidence and are n ot an a

buse o f discretion. Robert d id not provide a ny alternatives to t he f indings of the chancellor. Furtherm ore, the parties both agreed that a sale to Be v e rly was ideal. The chancellor’s well-reasoned conclusions are supported by the rec o r d a n d t he brief s of the parties. The partition statutes allow f o r t h e chancellor to divide the proceeds am ong the
cotenants according to their interests in the property

. Miss. C o d e A n n . § 1 1 -21-11. Af ter inspecting the record, this Court is unable t o see that Robert was denied any of his rights as a cotenant in the chancellor’s f inal decree. Finding no error, this Court af f irm s. ¶16. THE JUDGMENT O F THE CHANCERY COURT OF L OWNDES COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE AS S E S S E D TO THE APPELLANT. LEE, C .J., IRVING, P.J., B A R NES, ISHEE, CARLTON, FAIR A ND WILSON, J J., CONCUR. JAMES, J ., CONCURS I N PART WITHOUT SEPARA T E W R I T T E N OPINION.

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