Since both parties are living the above statute has no application in the present case. Counsel for appellant cite Blackmon v. Blackmon, 350 So.2d 44 (Miss. 1977). In that case Mr. and Mrs. Blackmon already owned certain real property as tenants in common when she was granted a divorce from him.

Id. at 86 (citing Welborn v. Welborn, 386 So.2d 722 (Miss. 1980); Blackmon v. Blackmon, 350 So.2d 44 (Miss. 1977)). In those cases, the court held that the occupying ex-spouse had a right to move elsewhere, request partition, and thus surrender the divorce decree's award of exclusive occupancy.

See, e.g., Trigg v. Trigg, 498 So.2d 334, 335 (Miss. 1986); Welborn v. Welborn, 386 So.2d 722 (Miss. 1980); Blackmon v. Blackmon, 350 So.2d 44 (Miss. 1977). The right of partition, however, is subject to the paramount authority and responsibility of the Chancery Court in cases such as this to make such orders as are necessary and appropriate for "the care, custody and maintenance of the children of the marriage."

If the contrary were true, every conveyance between husband and wife, resulting as the product of a divorce settlement, would annul the homestead exemption rights of the party receiving title to the real property. See Section 85-3-21, Mississippi Code of 1972, as amended; also Grass v. Great American Bank, 414 So.2d 561, (Fla.App.1982); Edmonson v. Meacham, 50 Miss. 34 (1874); Blackmon v. Blackmon, 350 So.2d 44 (Miss.1977).         d.

This Court declines to impose any damages for a frivolous appeal under Mississippi Supreme Court Rule 38. Although solicitor's fees may be allowed in a partition suit by the trial judge to the solicitor or to the complainant to be taxed as a common charge on all interests, Miss. Code Ann. § 11-21-31, such authority is usually not allowed when the partition suit is resisted and the defendant employs an attorney in good faith to represent his interest. Blackmon v. Blackmon, 350 So.2d 44 (Miss. 1977); Parnell v. Smith, 309 So.2d 853 (Miss. 1975).

) 160 (1852); Hathaway v. North, 190 Miss. 697, 1 So.2d 490 (1941); Garrett v. Colvin, 77 Miss. 408, 26 So. 963 (1899); Barnes v. Rogers, 206 Miss. 887, 41 So.2d 58 (1949). In Blackmon v. Blackmon, 350 So.2d 44, 46 (Miss. 1977) this Court cited Lynch v. Lynch, 196 Miss. 276, 17 So.2d 195 (1944) which held that all that was necessary for a partition is "that the parties be co-tenants of whatever is to be partitioned." In Steele v. Mack, 341 So.2d 1322, 1325 (Miss.

Welborn v. Welborn, 386 So.2d 722 (Miss. 1980); Blackmon v. Blackmon, 350 So.2d 44 (Miss. 1977). This is so even though the defendant in the partition action, ex-spouse though he or she be, continued to reside in the property and claim homestead exemption with respect to it.

The spouse to whom the exclusive use of the home is granted, however, is not defeated in seeking partition. Blackmon v. Blackmon, 350 So.2d 44 (Miss. 1977). None of the above Mississippi decisions create in one owner the affirmative defense of hardship or oppression as relied upon by the appellant Mrs. Daughtrey. For her supporting legal authority, the appellant relies upon two Oklahoma cases.

Germane, though not controlling, are the following cases, cited in Weeks, supra: Welborn v. Welborn, 386 So.2d 722 (Miss. 1980); Blackmon v. Blackmon, 350 So.2d 44 (Miss. 1977). Welborn is factually distinguishable from the instant case because in it the ex-wife Mrs. Welborn, who had been given the right to occupy the dwelling, sought partition.

We affirm. Appellant primarily relies on the cases of Blackmon v. Blackmon, 350 So.2d 44 (Miss. 1977), and Welborn v. Welborn, 386 So.2d 722 (Miss. 1980).