Impact on the Harmony and Stability of the Marriage

July 16, 2019 § Leave a comment

Eleanor Ellison and Stephen Williams had a stormy relationship punctuated with Stephen’s numerous departures. After Stephen left her once again and moved in with another woman, Eleanor filed for divorce. Following a trial, the chancellor divided the marital estate, and Eleanor was displeased with the outcome, even though she received a larger share of the marital estate.

She appealed, and one of the issues she raised was that the chancellor had given inadequate attention to the effect of Stephen’s conduct on the marriage, which, of course, is one of the Ferguson factors.

In Ellison v. Williams, handed down June 18, 2019, the COA reversed and remanded on the issue. Judge Westbrooks wrote for a 5-4 court:

¶11. Ellison also asserts that the chancellor should have considered Williams’s extramarital affair. We agree. The Mississippi Supreme Court has reversed and remanded cases when the chancellor did not consider how an extramarital relationship “impacted and burdened the stability and harmony of the marriage.” Watson v. Watson, 882 So. 2d 95, 108 (¶68) (Miss. 2004) (quoting Singley v. Singley, 846 So. 2d 1004, 1009 (¶13) (Miss. 2002)). “Mississippi is in a minority of states in which marital misconduct is a factor for consideration in property division.” Deborah H. Bell, Bell on Mississippi Family Law § 6.08[2][e], 176 (2d ed. 2011).

¶12. Here, Ellison did receive a slightly larger portion of the marital estate than Williams, but the chancellor did not cite that as his reasoning. The chancellor stated that he was aware it was Ellison’s family home that they first resided in and then leveraged to purchase another home; he therefore awarded Ellison sixty percent. The chancellor awarded Ellison a fault-based divorce but then did not directly consider how Williams’s absences and infidelity affected the stability and harmony of the home when dividing the estate. Because we believe the chancellor’s lack of consideration was error, we reverse and remand for further proceedings on this issue to allow the chancellor to consider the extramarital relationship in equitably dividing their estate. Additionally, we reverse and remand to allow the chancellor to make a full Ferguson analysis on the record.

Judge Tindell, joined by Carlton, Greenlee, and McCarty, disagreed in part. His concurring and dissenting opinion:

¶20. Because the chancellor heard evidence of Williams’s extramarital relationship and thereafter awarded Ellison with a greater percentage of the marital estate, I would affirm the chancellor’s judgment in its entirety. Where substantial evidence supports a chancellor’s findings, the Court is without authority to disturb the chancellor’s conclusions even if it would have found otherwise in the original matter. Joel v. Joel, 43 So. 3d 424, 429 (¶14) (Miss. 2010). We have previously held that “failure to make an explicit factor-by-factor analysis does not necessarily require reversal where we are satisfied that the chancellor considered the relevant facts.” Palmer v. Palmer, 841 So. 2d 185, 190 (¶18) (Miss. Ct. App. 2003). Unless the chancellor’s judgment was manifestly wrong, clearly erroneous, or applies an erroneous legal standard, the judgment should stand. Carambat v. Carambat, 72 So. 3d 505, 510-11 (¶24) (Miss. 2011).

¶21. The final judgment does address Williams’s adultery in the chancellor’s findings of fact. Further, after conducting a full Ferguson analysis, the chancellor awarded Ellison sixty percent of the marital assets and forty percent to Williams. Substantial evidence supported the chancellor awarding a greater portion of the marital estate to Ellison, and he did so accordingly. For these reasons, I find no manifest error in his conclusions and respectfully dissent in part from the majority’s opinion.

To say that there is a crazy-quilt of decisions on point would be a laughable understatement: the chancellor must address all of the Ferguson factors; the chancellor must address only the pertinent Ferguson factors; the chancellor’s consideration of the Ferguson factors may be gleaned from her findings in the record, regardless whether she ever mentions Ferguson; Ferguson factors must be specifically addressed; adulterous conduct must be considered for its impact on the stability of the household; the chancellor may not use property division to punish misconduct or reward good conduct.

Another Deference Decision with an Appellate Attorney’s Fees Point

February 5, 2014 § 2 Comments

The COA’s decision in Proctor v. Proctor, handed down January 28, 2014, is one of those cases where the appellate court deferred to the chancellor’s discretion, both on application of the Ferguson factors in equitable distribution, and on the Armstrong factors vis a vis alimony.

I talked about deference in a previous post. Proctor is an illustration of how stout the trial judge’s judgment can be when she invokes the applicable factors and her decision is supported by substantial evidence in the record. You might want to pay particular attention to Judge Barnes’ opinion at ¶ 19, where she points out that equitable division need only be equitable, not equal. That seems to be a concept that many lawyers and litigants do not grasp.

Another point that bears mention is at ¶ 36, where Judge Barnes addresses Ms. Proctor’s request for an award of attorney’s fees on appeal:

Donna makes a cursory request that this Court award her attorney’s fees on her appeal, in an amount equal to one-half of the amount that was awarded by the chancery court, according to Grant v. Grant, 765 So. 2d 1263, 1268 (¶19) (Miss. 2000), and Durr v. Durr, 912 So. 2d 1033, 1041 (¶30) (Miss. Ct. App. 2005). The distinguishing feature of these cases, however, is that the appellee was requesting attorney’s fees for defending the case on appeal, not the appellant prosecuting the appeal, unsuccessfully. Therefore, we deny Donna’s request. 

Tailoring Your Proof to Fit Your Case

August 22, 2013 § 2 Comments

Yesterday I visited the COA’s decision in Pelton v. Pelton, which the COA reversed because the chancellor did not make findings on the Ferguson and Armstrong factors.

All most of us know about Pelton is what we read in the opinion.

But before you dismiss this as the fault of the chancellor, consider the possibility that the record may not have included what the judge needed to adjudicate this case. I’m not saying that’s what happened here. I’m merely pointing out that sometimes the judge has to make do with what he or she has in the record. And sometimes what is in the record is not enough to cover all of the factors.

For example: in an equitable distribution case, the judge must first determine which assets are marital, and then go through the Ferguson factors to determine whether and how they should be divided. I have heard cases where there is next to no evidence as to when or how the assets were acquired. I have heard cases with scant evidence upon which to make Ferguson findings.

In a child custody case, the judge can not make Albright findings on evidence that is not in the record. So if you want the judge to consider your client as the parent with continuity of care, then you will have to put on proof to that effect. Another chancellor related his experience in a case a couple of years ago where the custodial parent defending a custody modification put on no proof as to Albright factors at all. What exactly is the chancellor to do in that situation?

MRE 614 does allow the judge to call witnesses and intrrogate them, which would seem to be a viable option where the best interest of a child is involved. But that should be a last resort in a contested case, and, in my experience, is rare in chancery court.

The bottom line is that you have to make your record. The chancellor can not rule on evidence not in the record. The appellate courts can not find that the trial judge’s ruling is supported by substantial evidence in the record when it is not there.

Inadequate Findings in a Factor Case = Remand

August 21, 2013 § 3 Comments

Most lawyers, when they are through with a case, don’t want to revisit it. That’s what makes a remand so detestable. Those do-overs are a pain.

The most sure-fire way to get a do-over is for the trial judge not to address the factors in a factor case. For those of you who have not been paying attention, certain kinds of cases require that the chancellor consider certain factors in making an adjudication. I have called it Trial by Checklist. When the chancellor does not tick off the items on the checklist, remand is practically automatic.

The latest example is the COA’s August 13, 2013, decision in Pelton v. Pelton, in which the chancellor did not: classify the assets as marital or non-marital; do an analysis of the Ferguson factors in making equitable distribution; or apply the Armstrong factors for alimony. Result is a do-over. 

If you wind up with an adjudication in which you feel that the chancellor did not address the applicable factors, or where you feel that they were not adequately addressed, here are several suggestions to remedy the situation:

  1. File a timely R59 motion asking the court to make specific findings on the applicable factors. In Pelton, the parties did file post-trial motions, but the COA decision does not spell out what the parties were asking the court to do.
  2. If you are concerned that you did not make a good enough record for the judge to make findings on the proper factors, ask the court to reopen the proof to allow you to make a record. That would be a R59 motion, which must be filed within 10 days of the judgment.
  3. You can also in a R59 motion offer to do proposed findings of fact and conclusions of law.


May 7, 2013 § Leave a comment

The COA case of Jones v. Jones, decided April 30, 2012, is a reminder that, if the equitable division of the marital estate has made adequate provision for the spouses, there should be no award of alimony — not even nominal alimony.

In Jones, the chancellor carefully considered and analyzed all of the Ferguson factors as they applied to the case, and specifically found that the equitable division made sufficient provision for Jane Jones (she received 62.5% of the marital estate). He nonetheless awarded her nominal alimony of $10 a month in case she needed alimony in the future.

The COA affirmed the chancellor’s decision on equitable distribution, but reversed and rendered as to the nominal alimony. Judge Maxwell wrote for a unanimous court:

¶35. However, we do find manifest error with the award of “nominal” permanent—or periodic—alimony in the amount of $10 per month. See Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993) (reviewing alimony awards for manifest error). We note the chancellor correctly identified and applied the Armstrong factors. See id. But he did so after acknowledging he had made sufficient provision for Jane through the equitable division of the property so that permanent alimony was not needed. Alimony should only be considered if the property division leaves one spouse in a deficit. Johnson, 650 So. 2d at 1287. “If there are sufficient assets to provide for both parties, then there is no more to be done.” Carter v. Carter, 98 So. 3d 1109, 1112 (¶8) (Miss. Ct. App. 2012) (citing Johnson, 650 So. 2d at 1287).

¶36. By referring to the award as “nominal” alimony, it does not appear that the chancellor was trying to address an actual deficit in the property award. Rather, he admits he was simply leaving the door open in case future events prove Jane has a need and John has an ability to pay. Such a contingency plan, while well-meaning, simply is not supported by our law. Alimony is to be considered as a remedy to an actual insufficiency in the marital assets, not as a contingency for a possible insufficiency in the future. Because the chancellor found the division of marital property left no need for alimony, we find it was error for the chancellor to nonetheless award “nominal” alimony. We reverse and render the award of $10 per month in permanent alimony award.

A good way to think about this is that equitable division is the gateway to alimony. Only after the chancellor has evaluated the Ferguson factors and adjudicated equitable division, and then having found that the equitable division leaves a discrepancy, may the chancellor even consider awarding periodic or rehabilitative alimony.

A caveat: Lump sum alimony, contrary to periodic or rehabilitative alimony, is a tool to achieve an equitable division of the marital estate.

Another consideration to bear in mind: I have tried contested cases where the lawyers have stipulated that the only issue is alimony, and they offered no proof whatsoever on the Ferguson factors. That, in my opinion, plants error in the record. You can not get to alimony without first going through Ferguson.


April 11, 2012 § Leave a comment

I posted here about allocating marital debt. Debts that are clearly for the benefit of the household are debts that the court should assign to one or both parties in a divorce, applying the equitable principles laid out in Ferguson. No distinction is made between secured and unsecured debt.

Under our case law, we treat debts the same as we do assets for the purposes of equitable division. We classify them as marital or non-marital, place a valuation (the loan balance) on them, and equitably assign responsibility for them. That approach works well in general for debts that are secured by assets that are subject to equitable distribution. The debt in most instances reduces the asset value and goes with the person who gets the asset. Fair enough.

But what about where the debt is for expenses such as day-to-day living expenses or other family expenses that do not result in an asset in the household? I’m talking about credit card debt to pay the light bill, or to buy Christmas presents, or to pay for a family weekend in Gatlinburg, or to buy groceries at Wal-Mart? None of that kind of debt produces an asset. It’s debt that produced cash that was spent up in the ordinary course of living. Had the parties lived within their means, those expenses would have been paid out of ordinary income by the parties, but they chose to incur debt for them instead.

Expenses of the types described immediately above are part of routine, everyday life. If it is reasonable to allocate marital debts for those kinds of expenses to the parties, then why would it not be reasonable to track back through the marriage and account for all expenses, whether charged on a credit card or not, and allocate them between the parties? Say, for instance, that the parties in a hypothetical case spent $30,000 in a hypothetical year on groceries, household goods, utilities, toys for the children, medicine, cable tv, internet access, yard work, medications, property taxes, and on and on and on. If they filed for divorce, why would it not be reasonable, under the same logic we apply to marital debt, to go back and investigate how much they each contributed and then charge the one who contributed less with the difference? And if it is reasonable to do that, why do we not do it in all cases, even where the parties have been married 10, 20 or 30 years or more? Why not examine each year of the marriage, reconstruct the expenditures and equitably allocate the expenditures? Imagine what it would be like to try such a case. Horrors.

As absurd as the above sounds, we take exactly that approach in regard to marital debt. There is no limit on it. There is no threshhold. Whatever the debt is, and however long it took to amass it, we allocate it equitably. As it stands now, there is no limit to how far one can go back to claim reimbursement for or an allocation of marital debt or for how much.

It is logical, of course, that the debt is merely the residue left over after the expenses have been paid. In a divorce, debt is literally the ashes of a failed marriage. The debts are still there long after the expenses have gone away, and equity requires that the parties who enjoyed its benefits should share its burden. I understand that. What I don’t understand is that we have not imposed any reasonable parameters on it.


April 2, 2012 § 1 Comment

Chancellors are often called upon to adjudicate issues of marital debt between warring divorce combatants. Many times the debt is secured by an asset, such as a car, or a home, or an appliance, and the debt often follows the asset with the effect of reducing its value in equitable division.

More and more frequently, though, I am seeing cases where the court is asked to divide marital debt that did not result in the acquisition of an asset. Some examples: Credit card debt for living expenses; credit card debt for a trip to Disney World; a loan to pay off pre-marital debts; or an IRA loan that paid a spouse’s credit card.

So what exactly is the state of Mississippi law vis a vis allocation of credit card debt in a divorce? Here are some cases that I think aptly set out the law on the point:

  • “The courts of this state have consistently held that expenses incurred for the family, or due to the actions of a family member, are marital debt and should be treated as such on dissolution of the marriage.” Shoffner v. Shoffner, 909 So.2d 1245, 1251 (Miss.App. 2005). In that case, the court affirmed the trial judge’s order that Mrs Shoffner pay $6,486.04 of marital credit card debt based on extensive lists, prepared and offered into evidence by Mr. Shoffner, showing expenditures for automobile maintenance, holiday gifts for the family, gasoline, meals for the family, and so on.
  • In Turpin v. Turpin, 699 So.2d 560, 565 (Miss. 1997), the Mississippi Supreme Court upheld the chancellor’s order that each party pay one-half of the marital debt in the absence of evidence that the debt primarily benefitted one or the other.
  • In Bullock v. Bullock, 699 So.2d 1205, 1212 (Miss. 1997), the court affirmed an order for the husband to pay the wife’s credit cards where they had been used to purchase a television, sheets and other household items for the marital dwelling, and to pay for two nights in a hotel when he locked her out of the house.
  • In Harbit v. Harbit, 3 So.3d 156, 161 (Miss.App. 2009), the court of appeals upheld the chancellor’s order classifying the debt in the wife’s name on her vehicle as marital, since she had borrowed the money to pay household expenses during a period when the husband was unemployed.
  • There is a presumption that all debt is marital, since there is a corollary presumption that all assets are marital. Horn v. Horn, 909 So.2d 1151, 1165 (Miss.App. 2005).
  • The fact that the spending may have been unreasonable or out of control is not dispositive. Wasteful spending and negligence in financial affairs are factors that the chancellor may consider in dividing the marital estate, but they are not controlling. Prescott v. Prescott, 736 So.2d 409, 418 (Miss.App. 1999).
  • Debts incurred by a spouse pursuing goals other than the general welfare of the marriage are considered separate, and not marital, debt. Garriga v. Garriga, 770 So.2d 978, 984 (Miss.App. 2000).
  • Debt incurred to pay a spouse’s gambling debts is separate debt. Lowrey v. Lowrey, 25 So.3d 274, 289 (Miss. 2010).
  • Debt incurred to pay off a party’s pre-marital debt should be classified as non-marital. Fitzgerald v. Fitzgerald, 914 So.2d 193, 197 (Miss.App. 2005).
  • Post-separation debt to pay pre-separation obligations may be considered marital only if there is adequate evidence to support a finding that the underlying debts were, in fact, marital. Phillips v. Phillips, 45 So.3d 684, 698-99 (Miss.App. 2010).
  • In making a determination of how to allocate the marital debt, the court has to apply the Ferguson factors. Pulliam v. Smith, 872 So.2d 790, 796 (Miss.App. 2004).
  • In Gambrell, v. Gambrell, 650 So.2d 517, 522 (Miss. 1995), the court said that “The liabilities as well as the assets of the parties must be taken into consideration when the chancellor effects an equitable distribution of marital [assets] and any other relief that may be appropriate such as alimony or child support.”

So, in a nutshell, our law is that the debts that are clearly for the benefit of the household are debts that the court should assign to one or both parties, according to the equitable principles laid out in Ferguson.

For my part, I question the wisdom of treating marital debt for living expenses the same way we do assets, but that’s the subject of another post. For now, as they say, it is what it is.


February 22, 2012 § Leave a comment

What is the proper role of alimony vis a vis equitable distribution? In Williamson v. Williamson, decided by the COA on January 10, 2012, Judge Carlton’s opinion stated:

¶21. The record reflects that in equitably dividing the marital property, the chancellor erroneously applied the Armstrong factors by awarding Mary alimony in order to create equalization of the parties’ incomes. The chancellor then ordered Will to pay Mary $594 per month to be applied toward the mortgage on the marital home; and, in addition to that amount, the chancellor awarded Mary $200 per month in periodic alimony, for a total of $794, or approximately $800, until the former home sold. [Footnote omitted] As evidenced by the chancellor’s findings, the chancellor accomplished the ordered equitable division of the marital property by aid of an award of periodic alimony in favor of Mary in order to make the parties’ financial situations “equalized.” The record shows, as set forth in the excerpts herein, that the chancellor had not completed an equitable division of the marital property prior to considering alimony. In accordance with precedent, the equitable division of the marital property must be completed prior to determining if either spouse suffers a deficit in the division of the marital estate warranting an award of alimony. The record in this case shows, however, that the chancellor used alimony to equalize the parties’ future incomes instead of awarding alimony based upon need existing after completion of an equitable division of the marital property.

¶22. Mississippi now embraces the process of equitable division of the marital property. In applying the “equitable” division of the marital property in accordance with the Ferguson factors, alimony fails to serve as the primary method to equalize property division. See Lowrey, 25 So. 3d at 292 (¶44) (“[A]limony has become a secondary remedy to property division . . . . ‘One of the goals of adopting equitable distribution was to alleviate the need for alimony.’”). Alimony, instead, assists in the event the chancellor determines that a need exists by a spouse after the completion of the equitable division of the marital property. See id. at 293 (¶44) (“If the situation is such that an equitable division of marital property, considered with each party’s non-marital assets, leaves a deficit for one party, then alimony based on the value of non-marital assets should be considered.”); George v. George, 22 So. 3d 424, 428 (¶7) (Miss. Ct. App. 2009) (“[A]n award of periodic alimony is based upon need.”).

The proper procedure follows this sequence:

  1. Determine which assets are marital and which are non-marital;
  2. Adjudicate the values of both marital and non-marital assets;
  3. Apply the Ferguson factors to the proof in the record to determine whether there should be an equitable division of the marital estate, and, if so, how it should be accomplished;
  4. If the equitable division of the marital estate, considered with each party’s non-marital property, leaves a deficit for one party, then the court should analyze the evidence in light of the Armstrong factors to determine whether alimony should be awarded.

From a pratice standpoint, then, here is what you need to give the chancellor so that she or he can do the job:

  • An itemization of all assets, showing which your client claims to be marital and which your client claims to be non-marital. The best way to present this itemization is through lists introduced into evidence, rather than just a narration by your client. Have your client testify as to her basis for putting each asset into either category.
  • Assign values to each asset. In advance of trial have your client assign values to each asset. Real property, heavy equipment, leaseholds, buildings, fine art and jewelry, business operations and interests, and other assets other than automobiles and ordinary personal property should have values established by appraisals. Again, this should be done by lists and documentation as much as possible, although experts may be needed as to some items.
  • Offer proof as to each Ferguson factor. Have a copy of the factors to use as an outline as you develop testimony at trial. You might also want to look at the Cheatham factors for lump-sum alimony.
  • Whether your client is trying to get alimony or trying to resist it, put on proof as to the Armstrong factors. Have a copy of the factors to use as an outline as you develop testimony at trial.

In my opinion, one of the chief causes of failure on appeal is that the lawyers do an inadequate job of making a record that the chancellor can use in making a decision. This forces the trial judge to have to patch something together in an attempt to cover everything, and the result is a flaw that the COA will find reversible. Make your record as airtight as the truth allows.


January 30, 2012 § 1 Comment

We’ve talked here before about whether you should make a record when you present an uncontested divorce.

In Luse v. Luse, 992 So.2d 659, 661 (Miss. App. 2008), the COA held that an appellant who had failed to answer, defend or otherwise appear in the case could not raise for the first time on appeal issues about the sufficiency of the chancellor’s findings.

So what happens when the defaulted party does appear via a timely motion under MRCP 59, say, and asks the chancellor to set aside the judgment because she failed to make the required findings of fact under Ferguson, or Armstrong, or any of the other required checklists of factors? That’s what happened in the case of Lee v. Lee in the chancery court of Desoto County. Corey Lee showed up late for his divorce trial, popping in just as the chancellor was in the middle of his opinion dividing the marital estate, awarding custody, and assessing child support. Corey enlisted a lawyer who filed a timely MRCP 59 motion.

In his motion, Corey challenged the judge’s ruling on the basis that it did not address the Ferguson factors for equitable distribution. The judgment did state that it was based on consideration of the Ferguson factors, but did not spell out the evidence relied on as to each applicable factor as required under Sandlin v. Sandlin, 699 So.2d 1198, 1204 (Miss. 1997).

On appeal the COA affirmed, citing Luse.

The Supreme Court granted cert, and in an opinion rendered January 26, 2012, in Lee v. Lee, Justice Dickinson said for the court:

¶7. A divorce judgment entered when a party fails to appear is “a special kind of default judgment.” [Mayoza v. Mayoza, 526 So.2d 547, 548 (Miss. 1988)]. And to obtain relief from such judgments, absent parties are required to raise the issues in post-trial motions under Rules 52, 59, or 60 of the Mississippi Rules of Civil Procedure. [Mayoza, 548-49.] Although Corey filed a Rule 59 motion, the Court of Appeals held that the motion did not address the equitable-distribution issue; and, therefore, the issue was procedurally barred.

¶8. In its holding, the Court of Appeals relied on Luse v. Luse, in which, John Luse neither answered his wife’s complaint for divorce nor appeared at the divorce hearing. The chancellor granted John’s wife a divorce and awarded her ownership of marital property. John never filed a timely post-trial motion challenging the property division, so he first raised the issue on appeal, and the Court of Appeals properly held that John’s claim was procedurally barred.

¶9. But unlike John Luse, Corey Lee raised the issue before the chancellor. In his Rule 59 motion, Corey argued that the division of martial property was inequitable. At the hearing on the motion, Corey’s attorney specifically argued that the chancellor had failed to make findings of fact and conclusions of law, as required by Ferguson. Therefore, Corey is not procedurally barred from raising this issue on appeal.

* * *

¶13. By failing to appear at the hearing, Corey forfeited his right to present evidence and prosecute his divorce complaint. But he did not forfeit the right to challenge the sufficiency of the evidence or the judgment. And whether absent or present at the trial, the appropriate time to challenge a judgment is after it has been entered. Corey did so in his Rule 59 motion and at the hearing following it. The fact that Corey failed to attend the divorce trial does not relieve the chancellor of his duty to base his decision on the evidence, regardless of by whom presented, nor did it nullify this Court’s mandate in Ferguson.

The decision reversed the COA and the chancellor, setting aside the divorce.

So how do you avoid the same trap the next time you present an uncontested divorce? My suggestion is that you make a point of putting on proof of each factor, and prepare proposed findings of fact and conclusions of fact, incorporating them in the judgment you hand to the chancellor at the conclusion of the hearing. Make specific findings as to each checklist factor that applies in your case. If you are asking for equitable distribution, address the Ferguson factors. For custody, address the Albright factors. For alimony, address Armstrong. And so on through as many as apply in your case. You know in advance (or you should know) what your client’s testimony will be on each point, so simply wrap it up into a neat package for the judge. In the alternative, you lazy lawyers can appear and just put on the proof and ask the chancellor to do it. If the chancellor is in a benevolent mood, he or she might do it for you. Or you may be dispatched to do it yourself and come back another time.


August 24, 2011 § 5 Comments

It is almost a platitude of Mississippi law that, “Courts may divide marital assets between divorcing spouses in a fair and equitable manner — equal division is not required.”  Bell, Mississippi Family Law, § 6.01[4].

The sticking point is where to draw the line between “fair and equitable” and “equal.” The appellate decisions come in all sizes, colors and flavors.

Bond v. Bond, decided by the COA August 16, 2011, is the latest iteration on the point. In that case, Jimmie Lee proved that his wife, Donna, had committed adultery during their four-year marriage. The chancellor awarded Jimmie Lee 90% of the equitable division, and gave Donna the remaining 10%. Jimmie Lee appealed, aggrieved that Donna got such a generous share, and charged that the chancellor erred in failing to make sufficient findings of Donna’s adultery.

Judge Maxwell’s opinion sets out the applicable law about as clearly as can be done:

In ordering an equitable distribution of property, chancellors must apply the Ferguson factors, which include:

(1) contribution to the accumulation of property, (2) dissipation of assets, (3) the market or emotional value of assets subject to distribution, (4) the value of assets not subject to distribution, (5) the tax and economic consequences of the distribution, (6) the extent to which property division may eliminate the need for alimony, (7) the financial security needs of the parties, and (8) any other factor that in equity should be considered.

Hults v. Hults, 11 So. 3d 1273, 1281 (¶36) (Miss. Ct. App. 2009) (citing Ferguson v. Ferguson, 639 So. 2d 921, 928-29 (Miss. 1994)). Chancellors should also consider each party’s marital fault. Singley v. Singley, 846 So. 2d 1004, 1013-14 (¶26) (Miss. 2002). There is a presumption that “the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value.” Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). In reviewing a chancellor’s findings, we do not conduct a Ferguson analysis anew. Goellner v. Goellner, 11 So. 3d 1251, 1264 (¶45) (Miss. Ct. App. 2009). Rather, we examine the chancellor’s judgment and the record to ensure the chancellor applied the correct legal standard and did not commit an abuse of discretion. Id. at 1266 (¶52).

In Carrow v. Carrow, 642 So. 2d 901, 905 (Miss. 1994), the Mississippi Supreme Court held that a chancellor erred in finding a wife’s “adulterous conduct precluded her from being entitled to any form of equitable distribution of the property upon divorce.” The Carrow court instructed that chancellors should not view equitable distribution as a means to punish the offending spouse for marital misconduct. See id. at 904 (citing Chamblee v. Chamblee, 637 So. 2d 850, 863 (Miss. 1994)). Rather, “marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship.” Id. at 904-05 (citing Ferguson, 639 So. 2d at 927).

The court found that the chancellor had, indeed, taken into consideration Donna’s fault when he considered the Ferguson factor dealing with the parties’ relative contributions to the stability and harmony of the marriage. The chancellor had found under that factor that:

“Neither Jimmie nor Donna did all they could to provide stability and harmony to the family. Donna became infatuated with another man and her romantic relationship with this third party caused the dissolution of the marriage.”

So here are a few points to ponder about this decision:

  • The rule that equitable division does not require an equal division, but only a fair division, is alive and well.
  • A 90-10 split in equitable distribution will be found fair if the judge addresses all of the Ferguson factors and justifies the decision.
  • The judge is only required to address all of the Ferguson factors, not to analyze them in excruciating, lengthy detail. In this case, the chancellor’s two-sentence recitation was found adequate to support the award.

This case reminded me of the student who got a 90 on a test and wanted the teacher to re-grade it in hopes of an even better grade. Jimmie Lee’s “grade” stayed the same after the appeal, but it’s somewhat of a head-scratcher why he appealed in the first place, given the pretty clear holding in the Carrow case.

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