         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 WHICH APPEALED:                 LOWNDES COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                    W. HOWARD GUN
ATTORNEY FOR APPELLEE:                     ROY ANDRE’ PERKINS
NATURE OF THE CASE:                        CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION:                   APPELLEE AWARDED OWNERSHIP 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 their marriage, Robert and Beverly Coleman built a home together. Their

relationship ended in divorce. In the divorce, the court granted Beverly use of the home until

their son reached the age of majority. When this occurred, the Colemans came back to court

for a division. The chancellor granted Beverly sole ownership of the home and granted

Robert the amount of money he put into the home along with his percentage of the increased

value of the home. Robert appeals this judgment. We find no error and affirm.

                                          FACTS
¶2.    In their 2002 divorce, Beverly was granted “exclusive use and possession of the

marital residence” until their child reached the age of majority. The home is situated on

family land deeded to Beverly and Robert by Beverly’s mother. As instructed in the divorce

decree, Beverly paid the monthly mortgage payments, taxes, and insurance for the home after

the divorce. Robert was to divide equally with Beverly any maintenance payments regarding

the home, but he never did. The court’s judgment gave no instruction as to what would occur

when the child reached the age of majority.

¶3.    In 2013, their child turned twenty-one years old. Beverly filed a petition with the

court and asked for exclusive possession, title, and ownership of the home. Robert filed an

answer and a counterclaim to partition the land. He later filed a motion for summary

judgment on his counterclaim for the partition of the land, requesting that the court go

forward in the matter as a partition rather than a modification of the divorce decree. The

chancellor granted summary judgment to the extent that the court instructed the parties to

proceed with the partition. The judge concluded that “the parties are not married, the

property is no longer the marital homestead and the property is subject by law to a division

by partition as provided by statute.”

¶4.    Following a hearing on the partition, the chancellor granted title to Beverly. Beverly

was instructed to pay Robert $34,103.70. This amount constitutes half of the equity in the

home at the time of the divorce adjusted for the increased value of the home. Robert now

appeals, claiming that the trial court abused its discretion by improperly modifying the

divorce decree and inequitably partitioning the home. It is from this judgment that Robert



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now appeals.

                                 STANDARD OF REVIEW

¶5.    This Court has a limited standard of review in appeals from 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 abuse of discretion. Id. This Court “will not disturb the factual

findings of a chancellor when supported by substantial evidence unless we can say with

reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly

erroneous, or applied an erroneous legal standard.” Id. (quoting Biglane v. Under the Hill

Corp., 949 So. 2d 9, 13-14 (¶17) (Miss. 2007)). This Court reviews questions of law de

novo. Id.

                                         ANALYSIS

¶6.    Mississippi Code Annotated section 11-21-9 (Rev. 2004) allows the chancellor to

determine all questions concerning title. Jones, 95 So. 3d at 754 (¶11). Mississippi’s statutes

“in reference to the partition of real estate . . . give the right of partition by decree of the

chancery court upon the application of any tenant in common or joint tenant.” Rushing v.

Rushing, 414 So. 2d 429, 431 (Miss. 1982).

       I.      Whether the chancellor improperly modified the divorce decree.

¶7.    “A cotenant wishing to partite real property subject to a divorce decree is not required

to file suit to modify the decree, but may exercise her statutory right to partition by filing a

petition for partition.” Mosby v. Mosby, 962 So. 2d 119, 123 (¶12) (Miss. Ct. App. 2007)

(citing Blackmon v. Blackmon, 350 So. 2d 44, 46 (Miss. 1977)). Robert argues that the



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chancellor essentially modified the divorce decree and that this modification was improper.

¶8.     “This argument is without merit because the chancellor clearly granted the petition

for partition and did not, in fact, modify the decree.” Id. Robert requested a partition, and

the chancellor stated in his judgment that “the parties are no longer married, the equities need

to be adjusted[,] and the partition statutes provide a sound method of arriving at a just and

equitable result.” The court “proceeded accordingly under partition.” As the chancellor’s

decision was based upon the partition statutes and he did not modify the divorce decree, the

Court finds this issue without merit.

       II.    Whether the chancellor abused his discretion in the partition of the
              home.

¶9.    When parties seek a partition of land, “the question of title shall be tried and

determined in the suit and the court shall have power to determine all questions of title.”

Miss. Code Ann. § 11-21-9. In doing so, “[t]he court may adjust the equities between and

determine all claims of the several cotenants . . . .” Id.

¶10.   Generally, “a partition in kind, rather than a partition by sale, is the preferred method

of dividing property in Mississippi.” Cathey v. McPhail & Assocs., 989 So. 2d 494, 495 (¶4)

(Miss. Ct. App. 2008) (citing Fuller v. Chimento, 824 So. 2d 599, 601 (¶8) (Miss. 2002)).

Robert and Beverly agreed that the home could not be divided in kind and that it should be

sold under statute. They also agreed to a private sale to allow Beverly to purchase the home.

A chancellor may order the sale of property and “a division of the proceeds among the

cotenants according to their respective interests.” Miss. Code Ann. § 11-21-11 (Rev. 2004).

As both parties agreed to a sale, the chancellor essentially needed to “adjust the equities

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between and determine all claims” of Robert and Beverly and divide “the proceeds” between

Beverly and Robert “according to their respective interests.” Miss. Code Ann. §§ 11-21-9

& 11-21-11.

¶11.   Beverly paid the mortgage over twelve years, paring down the mortgage and building

equity in the home. In 2014, when the partition was granted by the chancellor, the home was

valued at $187,000. The equity in the home at that time was $144,787.73, with a mortgage

balance of $42,212.27. At the time of the divorce, the home was valued at $115,000, with

a mortgage balance of $72,585.36.

¶12.   Beverly also paid for the insurance on the home and the taxes, and she in turn received

the benefit of living on the property. Though Robert was ordered in the divorce decree to

split maintenance costs on the home equally with Beverly, it is undisputed that he never paid

for any maintenance. The chancellor set Robert’s amount of equity in the home prior to the

divorce at $21,000 – essentially half of the payments made on the home prior to the divorce.

This calculates to a 18.26% interest in the home, the same as Beverly’s interest at the time

of the divorce. Thus, Robert’s interest in the home at the 2014 appraisal value was

$34,146.20.

¶13.   The chancellor found that Beverly should receive the benefit of the mortgage

payments made on the home. He reasoned that Robert received a benefit because his interest

in the home grew due to Beverly’s continued payments on the home. The chancellor found

that “it [was] equitable to give Robert the benefit of the appreciation equity, but to allow him

to profit from the efforts and payments of Beverly would not be equitable.” In sum, the court



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concluded that “Robert did not pay any of the required expenses, so he should not get any

credit; however, neither should he have to pay for his displacement . . . from the property.

Beverly’s efforts paid down the mortgage and she should get that benefit; however, she did

not pay rent for the use and occupancy of Robert’s one[-]half.”

¶14.   Finally, Robert’s share was reduced by $42.50, one-half of the cost of a bathroom

heater installed in the home. The heater was considered an improvement under the partition

statute. See Miss. Code Ann. § 11-21-27 (Rev. 2004). This left a total of $34,103.70 owed

to Robert for his share of the home.

¶15.   Keeping in mind the appropriate standard of review, this Court holds that the

chancellor’s findings of fact and conclusions of law are supported by substantial evidence

and are not an abuse of discretion. Robert did not provide any alternatives to the findings of

the chancellor. Furthermore, the parties both agreed that a sale to Beverly was ideal. The

chancellor’s well-reasoned conclusions are supported by the record and the briefs of the

parties. The partition statutes allow for the chancellor to divide the proceeds among the

cotenants according to their interests in the property. Miss. Code Ann. § 11-21-11. After

inspecting the record, this Court is unable to see that Robert was denied any of his rights as

a cotenant in the chancellor’s final decree. Finding no error, this Court affirms.

¶16. THE JUDGMENT OF THE CHANCERY COURT OF LOWNDES COUNTY
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

       LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR AND WILSON,
JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN
OPINION.



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