Ronald Rodriguez v. Anne Rodriguez
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-00132-COA
RONALD RODRIGUEZ
APPELLANT/CROSSAPPELLEE
v.
ANNE RODRIGUEZ (ARMSTRONG)
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR THE APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE/CROSSAPPELLANT
12/12/2006
HON. THOMAS L. ZEBERT
RANKIN COUNTY CHANCERY COURT
MICHAEL P. YOUNGER
WILLIAM R. WRIGHT
W. BENTON GREGG
TRHESA BRYAN BARKSDALE
CIVIL - DOMESTIC RELATIONS
JUDGMENT OF DIVORCE ENTERED
AFFIRMED - 1/20/2009
EN BANC.
KING, C.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
This appeal stems from a judgment entered by the Rankin County Chancery Court
granting Anne Rodriguez (Anne) a divorce from Ronald Rodriguez (Ronnie) on the ground
of uncondoned adultery. On January 7, 2006, Anne secretly recorded a conversation between
herself and Ronnie. She repeatedly asked if he had an affair with another woman. After
much probing, Ronnie admitted to having two affairs early in their marriage. He claimed that
one of the women had been from Jackson and the other from New Orleans. This recording
was admitted into evidence, during the hearing on September 22, 2006, along with a series
of diary entries Anne had kept during the days surrounding this confrontation. These entries
purported to document Ronnie’s multiple attempts at asking for forgiveness – bringing up
such things as Jesus forgiving an adulterer on the cross and women they knew personally
forgiving their own husbands for adultery. After hearing testimony from both Anne and
Ronnie, along with portions of the tape, and seeing the diary entries, the chancellor found
that grounds for divorce existed based on uncondoned adultery. He issued the judgment for
divorce on December 12, 2006.
¶2.
Also on December 12, 2006, the chancellor heard testimony from Anne and Ronnie
regarding the marital estate, the amount of alimony requested, and attorneys’ fees. Ronnie
and Anne stipulated that they would split the marital estate equally. Anne requested $900
a month in periodic alimony and asked for an award of her remaining attorneys’ fees which
equaled $6,709.20. After the December 12 hearing, at the chancellor’s behest, counsel for
both parties submitted competing, proposed findings of fact and conclusions of law. The
chancellor then adopted, verbatim, Ronnie’s proposed property division. This order and
opinion, which was released on December 12, 2006, included roughly equal division of the
marital estate with Ronnie receiving slightly more out of certain accounts and Anne receiving
$300 a month in periodic alimony. Both parties were ordered to pay their own attorneys’
fees.
¶3.
Ronnie and Anne both filed their notices of appeal with the Chancery Clerk of Rankin
County on January 22, 2007. Ronnie challenged the sufficiency of the evidence in awarding
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the divorce based upon adultery. Anne challenged the division of assets, amount of alimony,
and denial of attorneys’ fees as ordered by the chancellor through his adoption of Ronnie’s
proposed order and opinion. Finding no error, we affirm the chancellor’s decisions.
ISSUE ON APPEAL
WHETHER THE CHANCERY COURT ERRED IN GRANTING A
DIVORCE BASED ON ADULTERY.
¶4.
A chancellor is required to make specific findings of fact when a party alleges
adultery as a ground for divorce. Dillon v. Dillon, 498 So. 2d 328, 330 (Miss. 1986). When
these findings have been made, this Court will only set them aside if they are “manifestly
wrong, clearly erroneous, or an erroneous legal standard was applied.” Brooks v. Brooks,
652 So. 2d 1113, 1117 (Miss. 1995).
¶5.
The supreme court has repeatedly held that “[a]dultery may be shown by evidence or
by admissions and either are sufficient to support a decree of divorce.” Id. at 1119 (quoting
Jordan v. Jordan, 510 So. 2d 131, 132 (Miss. 1987)). Adultery can be proven through
circumstantial evidence due to the inherently secretive nature of the acts involved. Holden
v. Frasher-Holden, 680 So. 2d 795, 798 (Miss. 1996). In order to grant a divorce based upon
circumstantial evidence there must be clear and convincing evidence of (1) “an adulterous
inclination” and (2) a “reasonable opportunity to satisfy that inclination.” Id. Evidence of
inclination and opportunity must “be inconsistent with a reasonable theory of innocence.”
Id. Adultery can also be proven by direct proof in the form of the defendant’s own
admissions. See Davis v. Davis, 832 So. 2d 492, 496 (¶12) (Miss. 2002) (wife “satisfied this
burden when, on direct examination, [husband] admitted to the adulterous conduct”).
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¶6.
This Court is reluctant to disturb the factual findings of a chancellor because of “[t]he
credibility of the witnesses and the weight of their testimony, as well as the interpretation of
evidence where it is capable of more than one reasonable interpretation, are primarily for the
chancellor as the trier of facts.” Rainey v. Rainey, 205 So. 2d 514, 515 (Miss. 1967). The
chancellor’s factual findings are “insulated from disturbance on appellate review” if they are
“supported by substantial credible evidence.” McAdory v. McAdory, 608 So. 2d 695, 699
(Miss. 1992) (citing Jones v. Jones, 532 So. 2d 574, 581 (Miss. 1988)). However, we “may
reverse a divorce decree based on adultery when the evidence is lacking.” Lister v. Lister,
981 So. 2d 340, 344 (¶25) (Miss. Ct. App. 2008). The evidence must rise above a mere
suspicion or mere jealousy before this Court can accept the findings as sufficient. McAdory,
608 So. 2d at 701 (“'Trifles light as air' may be sufficient to convince the jealous or the
suspicious, but they do not impress the court with the same degree of credulity. Before
accepting charges so seriously affecting the character of a person, the evidence must be clear
and convincing.”) (quoting Banks v. Banks, 118 Miss. 783, 788, 79 So. 841, 842 (1918)).
¶7.
The chancellor found that Anne provided sufficient evidence to prove adultery
through the presentation of the taped conversation and her supplemental diary entries. The
chancellor deemed the tape to be a credible source and found that the statements made by
Ronnie on the tape recording were truthful. On the tape, Ronnie swears that he had sex with
“only those two.” He informs Anne that the affairs were with a woman in New Orleans and
another from Jackson. He claims that he did not remember their names, but he had
intercourse with each of the women more than once. These admissions are supplemented by
Anne’s diary entries which detail Ronnie’s multiple requests for Anne’s forgiveness. The
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tape recording and the diary entries sufficiently support the chancellor’s finding that Anne
proved the adultery by clear and convincing evidence. Finding that the evidence presented
met the clear and convincing standard required for adultery, there was no abuse of discretion
by the chancellor. Because this Court finds that the chancellor did not manifestly err in his
findings of fact or conclusions of law regarding the grounds for divorce, we must affirm his
decision to grant Anne the divorce based upon uncondoned adultery.
ISSUES ON CROSS-APPEAL
I. WHETHER THE CHANCERY COURT ERRED IN THE MANNER IN
WHICH IT DISTRIBUTED THE MARITAL ASSETS.
¶8.
“This Court employs a limited standard of review of property division and distribution
in divorce cases.” Bowen v. Bowen, 982 So. 2d 385, 393 (¶32) (Miss. 2008) (quoting Owen
v. Owen, 928 So. 2d 156, 160 (¶10) (Miss. 2006)). The chancellor’s distribution of the
marital assets will be affirmed as long as “it is supported by substantial credible evidence.”
Id. at 394. We will not overturn a decision of the chancellor “even if this Court disagrees
with the lower court on the finding of fact and might [arrive] at a different conclusion.” Id.
¶9.
When ruling on the distribution of marital assets, the chancellor must make certain
findings regarding the application of the factors set out in Ferguson v. Ferguson, 639 So. 2d
921, 928 (Miss. 1994). Ronnie and Anne entered into a stipulation on December 12, 2006,
which stated that the chancery court would “proceed with its financial inquiries in this cause
as if the Court’s analysis of equitable distribution under Ferguson . . . had resulted in a
finding that the marital estate should be divided equally.”
¶10.
After the hearing on December 12, 2006, the parties’ respective counsel(s) submitted
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competing, proposed findings of fact and conclusions of law. Ronnie’s proposal was adopted
verbatim by the chancellor as the equitable division of the marital estate. The supreme court
has stated that “whether a trial court may adopt verbatim, in whole or in part, the findings of
fact and conclusions of law of a party is within the court's sound discretion.”
Rice
Researchers, Inc. v. Hiter, 512 So. 2d 1259, 1266 (Miss. 1987). When a chancellor does
adopt, verbatim, the proposed findings of fact and conclusions of law prepared by a party,
this Court “analyzes such findings with greater care and the evidence is subjected to
heightened scrutiny.” Gutierrez v. Bucci, 827 So. 2d 27, 31 (¶13) (Miss. Ct. App. 2002)
(quoting Brooks, 652 So. 2d at 1118). The findings will be viewed with a more critical eye
than if the chancellor had made independent judicial findings of fact and conclusions of law.
Rice Researchers, 512 So. 2d at 1265. “Where the chancellor has failed to make his own
findings of fact and conclusions of law, this Court will ‘review the record de novo.’”
Holden, 680 So. 2d at 798 (citing Brooks, 652 So. 2d at 1118)). This will ensure that the
chancellor has adequately performed his judicial function and made decisions regarding the
facts of the case because he is the one who can most fairly make decisions based upon the
credibility of the evidence as a whole. Rice Researchers, 512 So. 2d at 1265. Thus, we will
analyze the record under the Ferguson factors to ensure that the chancellor was not
manifestly wrong in his adoption of Ronnie’s proposed property division. See Ferguson, 639
So. 2d at 928.
1. Substantial contribution to the accumulation of the property.
¶11.
The three sub-factors that should be considered in determining the parties’
contributions are:
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(a) direct or indirect economic contribution to the acquisition of the property;
(b) [c]ontribution to the stability and harmony of the marital and family
relationships as measured by quality, quantity of time spent on family duties
and duration of the marriage; and (c) [c]ontribution to the education, training
or other accomplishment bearing on the earning power of the spouse
accumulating the assets.
Id. In determining the contributions of each spouse, it is imperative to remember that a
spouse working inside the home as a homemaker will be presumed to contribute equally as
the wage-earning spouse. Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994).
¶12.
Ronnie was the primary breadwinner for the family, while Anne worked within the
home for the majority of their thirty-seven-year marriage. Ronnie and Anne both testified
that Anne took care of the parties’ two children, the marital home, and Ronnie while he
worked full time. For this factor, it will be presumed that each party contributed equally to
the accumulation of the marital estate.
2. The degree to which each spouse has expended, withdrawn or otherwise
disposed of marital assets and any prior distribution of such assets by
agreement, decree, or otherwise.
¶13.
Anne withdrew considerable amounts of money from their joint checking account
upon the parties’ separation. She spent $36,323.49 while awaiting the divorce hearing on
what she deemed to be reasonable living expenses. This withdrawal was properly taken into
account during the final calculation of property division. She was allowed to keep the
remainder of the monies she withdrew with no requirement to pay those monies back to the
marital estate. Some of the dissipated amount was credited to her through property division,
which is proper. See Buckley v. Buckley, 815 So. 2d 1260, 1265 (¶30) (Miss. Ct. App. 2002).
There is no evidence of prior distribution of assets by agreement. The dissent points out that
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marital property continues to accumulate and, absent a separate maintenance or temporary
support order, the legitimate spending of marital assets is not wasteful dissipation of marital
assets. See Barnett v. Barnett, 908 So. 2d 833, 841 (¶17) (Miss. Ct. App. 2005); Pittman v.
Pittman, 791 So. 2d 857, 865 (¶22) (Miss. Ct. App. 2001); Turnley v. Turnley, 726 So. 2d
1258, 1266 (Miss. Ct. App. 1998). We acknowledge this precedent, but we also note that,
in the current case, the chancellor instructed Anne to only spend $5,000.1 At no point,
according to the evidence found in the trial record, did Anne attempt to file for any type of
temporary support or separate maintenance. Nor is there any evidence that she attempted to
find any type of employment. Even if the chancellor’s estimate on how much she would
need to survive was overly conservative, it was not within Anne’s discretion to spend over
seven times that amount without further approval from the chancellor. The more appropriate
remedy would have been to petition the chancery court for separate maintenance. See
Wilbourne v. Wilbourne, 748 So. 2d 184, 187-88 (¶¶7-8) (Miss. Ct. App. 1999). As such,
the finding that there was a wasteful dissipation of assets was not an abuse of the chancellor’s
discretion or manifestly erroneous.
3. The market value and the emotional value of the assets subject to
distribution.
¶14.
Anne and Ronnie both had emotional attachments to certain items of property. Anne
wanted some of the antiques and gifts that she had received from family members. She
wanted to give other antiques to the parties’ children. Ronnie wished to keep his interest in
1
While there is no direct evidence of this agreement, there are references to the
agreement in the trial record. For example, Anne was asked about a hearing in chambers
where the chancellor suggested that she go ahead and use $5,000 for her expenses.
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the hunting camp, the camp-trailer located at the hunting camp, and the boat and boat trailer.
The parties stipulated that the marital home would be sold and the proceeds divided
equitably. The parties had many of the items appraised, such as the house, the household
goods, and Anne’s jewelry. These appraisal values and the party who especially wanted
these items were taken into account during the division of the property as evidenced by the
adopted order and opinion. The value of the house was divided equally, the household goods
were distributed almost exclusively according to Anne’s wishes, and Anne kept the jewelry
given to her during the marriage. Ronnie was allowed to keep the camp, the camp-trailer,
and the boat and boat trailer.
¶15.
The dissent argues that it was error for the chancellor not to assign individual values
to all property before equitably dividing the marital estate. However, our review of the order
adopted by the chancellor and the trial court record show that the verbatim adoption of
Ronnie’s proposed findings also included the adoption of a majority of Anne’s proposed
division of the marital assets. There is no difference between what Anne proposed and what
Ronnie proposed in the division of the assets concerning the hunting camp, the boat and boat
trailer, and the camp-trailer. Both parties agreed that Ronnie should be awarded these assets.
Also, the differing values that were assigned to the hunting camp, camp-trailer, and boat and
boat trailer are not fatal to the property division. It has been repeatedly held that “an
equitable division of property does not necessarily mean an equal division of property.”
Chamblee v. Chamblee, 637 So. 2d 850, 863-64 (Miss. 1994). The division must only be
equitable and fair. Pierce v. Pierce, 648 So. 2d 523, 526 (Miss. 1994).
¶16.
Ronnie incorporated Anne’s proposed division of assets into his proposed and
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eventually adopted findings of fact with regard to all property except for some bank accounts.
These contested accounts were assigned values and then divided equitably in the findings
adopted by the chancellor. Thus, this case should not be remanded in order for the chancellor
to assign values to properties when there was no dispute over how they should be divided.
All of the disputed assets (the bank accounts) had a monetary value assigned to them. Even
if we took Anne’s proposed values as correct, the adopted division of the marital estate could
be reasonably viewed as equitable.
4. The value of assets not ordinarily, absent equitable factors to the contrary,
subject to such distribution, such as property brought to the marriage by the
parties and property acquired by inheritance or inter vivos gift by or to an
individual spouse.
¶17.
There was discussion of various inheritances that had been received during the
marriage. Anne and Ronnie both testified that the money had gone to pay different things
for the family, and none of the money was still in either of the parties’ possession. The
household goods that Anne had inherited from other family members were divided according
to Anne’s proposals and adopted in Ronnie’s proposed property division, which was, in turn,
adopted by the chancellor.
5. Tax and other economic consequences, and contractual or legal
consequences to third parties, of the proposed distribution.
¶18.
There were no adverse tax or other economic consequences of the proposed
distribution, nor were there any legal consequences to third parties that needed to be taken
into account. The division order stated that the parties would be allocated one-half of the
homestead exemption, and Ronnie would be allocated the mortgage interest deduction
because he was paying the mortgage on the home until such time that it could be sold. The
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dissent again disagrees with the chancellor on this factor. However, there was neither any
proof offered at trial nor any argument by either party that the tax treatment was unfair. See
Owen, 928 So. 2d at 163. Allowing Ronnie to enjoy the tax break while he pays the upkeep
and mortgage on the house is not unfair. The fact that he is also living in the home does not
change this. Because he had been paying the mortgage and all upkeep costs on the property,
as well as all taxes and insurance, it is equitable for him to enjoy the interest deduction on
the marital home until such a time when it could be sold and the proceeds divided equally as
found in the property division order.
6. The extent to which property division may, with equity to both parties, be
utilized to eliminate periodic payments and other potential sources of future
friction between the parties.
¶19.
The equitable distribution of the marital home and all assets including the various
bank accounts will allow each party to have a reasonable existence without the need for
substantial alimony. The equitable distribution of the marital estate will eliminate the need
for lump-sum alimony or substantial periodic alimony. Some alimony is appropriate as the
earning capacity of the parties is unequal, which is discussed below in the examination of the
alimony award. The dissent suggests that the chancellor should reconsider the division of
property under Ferguson and then consider, under the Armstrong factors, whether Anne
suffers a deficit justifying alimony. However, we find that there is no problem with the way
the chancellor originally divided the marital estate; thus, the alimony should not be
reconsidered for this factor as it was equitable under the chancellor’s original property
division.
7. The needs of the parties for financial security with due regard to the
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combination of assets, income, and earning capacity.
¶20.
At the time of trial, both parties were nearing retirement age. Ronnie had already
retired from his career and was working for the Courthouse Racquet Club. Anne testified
that she was willing to go back to work. Both stated, at the divorce hearing, that they were
in good health. Their good health and ability to work, in combination with the liquidation
of the marital home and the division of the various bank accounts, will allow the parties to
each have reasonable financial security.
8. Any other factor which in equity should be considered.
¶21.
No other factors are necessary for consideration under this analysis. The dissent
claims that Ronnie’s infidelities should have been taken into consideration when dividing the
property. “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.” Carrow v. Carrow, 741 So. 2d 200, 203 (¶20) (Miss. 1999). It does not appear
from the trial transcript that Ronnie’s adultery placed such a burden on the stability and
harmony of the marital and family relationship that the chancellor was bound to consider the
adultery in the equitable distribution. The facts of this case reveal that the complained of
affairs had happened many years ago, during the beginning of the couple’s marriage, and the
affairs had not, in any way, interrupted the family relationship. Both parties had equally
participated in the marriage and child rearing either through work or household duties.
Ronnie had not been absent from the family in order to pursue the adulterous relationships.
This is much different than the case of Watson v. Watson, 882 So. 2d 95, 108 (¶¶67-68)
(Miss. 2004), where the court noted that the husband’s adulterous affair was not a:
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“slip-up,” peccadillo, or occasional indiscretion. He moved out of the marital
home he had shared with his wife for twenty years, and began an open,
continuous, adulterous affair. He began to invest his time, society,
companionship and assets into the nurturing and development of another home
leaving [the remaining spouse] to her own emotional survival. This is the stuff
of “marital fault” which led the [supreme] court to reverse the chancellor for
dividing the marital property equally, a division which obviously placed
“minimal weight” upon fault. The central question is whether the adulterous
conduct “impacted and burdened the stability and harmony of the marriage.”
(Citing Singley v. Singley, 846 So. 2d 1004, 1009 (¶13) ((Miss. 2004)).
¶22.
While it is true that Anne testified that the admission of the affair led to the actual end
of the marriage, it was not of such a nature that a failure to expressly consider it in the
application of the Ferguson factors was a manifest error. See Ory v. Ory, 936 So. 2d 405,
413 (¶23) (Miss. Ct. App. 2006) (holding that it was not error for the chancellor to not
expressly consider, on the record, the adultery of one party when dividing up the marital
estate). Finally, it must be remembered that the parties agreed to an equal split of the
property. Anne entered into that stipulation knowing of the adultery.
¶23.
By looking at the factors mandated under Ferguson, it is clear that an equal division
of property, as stipulated by the parties, was appropriate in this case. Ronnie’s proposed
division of marital property distributed the assets fairly and equitably. It awarded Anne
reasonable alimony and divided most assets in a way that each party was gaining about half
of the marital estate. Ronnie’s division compensated for the monies that Anne had removed
from the marital estate when the parties separated, but it was otherwise an equal division of
the marital assets.
¶24.
After our de novo review of the trial court record through the lens of the Ferguson
factors, it is apparent that the chancellor neither committed manifest error nor abused his
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discretion in the manner or method in which he divided the marital estate. The parties
stipulated to an equal division of the marital assets, and the parties received an equal division
of those assets with the inclusion of alimony for Anne and accounting for the dissipation of
marital funds by Anne. Thus, we affirm the judgment of the chancery court.
II. WHETHER THE CHANCERY COURT ERRED IN THE AMOUNT
OF ALIMONY AWARDED.
¶25.
The chancery court awarded, through the adoption of Ronnie’s proposed order,
alimony to Anne in the amount of $300 per month. We have already deemed the adoption
of Ronnie’s proposed order to be permissible. Anne does not challenge the award of alimony
– only the amount awarded. Anne requested an award of $900 per month during the divorce
hearing.
¶26.
This Court will not disturb a chancellor’s findings regarding the award or amount of
alimony unless there is manifest error. Armstrong v. Armstrong, 618 So. 2d 1278, 1280
(Miss. 1993) (citing Powers v. Powers, 568 So. 2d 255, 257-58 (Miss. 1990)). In a case
such as this, where the recipient of alimony claims an inadequate amount was awarded, we
will overturn the chancellor only when the decision is seen as “so oppressive, unjust or
grossly inadequate” as to demonstrate an abuse of discretion. Id. (citing McNally v. McNally,
516 So. 2d 499, 501 (Miss. 1987)).
¶27.
This deferential standard is subject to heightened scrutiny if there is a verbatim
adoption of one party’s proposed order. Brooks, 652 So. 2d at 1117. The verbatim adoption
of one party’s proposed findings of fact must be viewed with a more critical eye than if the
chancellor made his own independent findings. Rice Researchers, 512 So. 2d at 1266. The
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chancellor must consider the twelve factors identified in Armstrong in order to determine the
proper amount of permanent alimony. The goal is to balance the reasonable needs of the
spouse receiving alimony with the right of the paying spouse to lead as normal a life as
possible. Curtis v. Curtis, 796 So. 2d 1044, 1051 (¶33) (Miss. Ct. App. 2001) (quoting Gray
v. Gray, 562 So. 2d 79, 83 (Miss. 1990)). All twelve of these factors do not have to be
considered in every case for this Court to affirm the chancellor’s holding. Voda v. Voda, 731
So. 2d 1152, 1155 (¶11) (Miss. 1999). If the chancellor fails to make on-the-record findings
of fact regarding the Armstrong factors, the case does not have to be remanded as long as
there are sufficient facts available for an equitable determination to be made. Roberson v.
Roberson, 949 So. 2d 866, 869 (¶6) (Miss. Ct. App. 2007) (citing Holcombe v. Holcombe,
813 So. 2d 700, 704 (¶12) (Miss. 2002)). This Court will presume that all the Armstrong
factors were considered by a chancellor when he has awarded alimony to a party. Id.
¶28.
A lack of an on-the-record consideration of the Armstrong factors will only be
reversed on appeal if “it appears that the chancellor's failure to make findings of fact and
corresponding conclusions of law constitutes manifest error.” Id. To determine if manifest
error exists in the present case, we will review all of the facts and apply the Armstrong
factors on review.
1. Income and expenses of the parties.
¶29.
Ronnie claimed in his 8.05 financial disclosure that his total monthly income was
$4,046, which included monies from his current job at the Courthouse Racquet Club,
pensions and retirement accounts, social security benefits, and dividend income. He also
claimed that he has expenses of approximately $4,568 a month. Anne claimed in her 8.05
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financial disclosure that she had no monthly income.2 She also stated on her 8.05 that she
had approximately $2,592 in monthly expenses not including unknowns such as property
insurance, utilities, and automobile-related expenses including insurance and note payments.
At the divorce hearing, she submitted an approximate calculation of the monies spent over
the ten-month period awaiting the divorce proceedings. These expenses (not including the
$21,314.49 she spent in attorneys’ fees), when broken down into a per month figure, totaled
approximately $1,602.97 a month. This ten-month period included only $200 a month in rent
because she lived with her daughter. She estimated in her 8.05 statement that rent would be
near $1,500 per month when she began living on her own. Adding the $1,500 dollars
anticipated rent to the $1,602.97 average she spent in the ten months preceding the hearing,
Anne’s monthly expenses would be approximately $3,000 dollars a month.
2. Health and earning capacity of the parties.
¶30.
Both parties are in good health and capable of work. Anne only has a high school
degree and little work experience. Ronnie is retired and works at the Courthouse Racquet
Club making approximately $550 per month.
3. Needs of each party.
¶31.
No special needs are apparent from the record for either party besides the needs
specified under the expenses of each party’s 8.05 financial statement.
4. Obligations and assets of each party.
¶32.
The Rodriguezes' assets at the time of the trial included: a home appraised at
2
Anne had been paying her living expenses out of the money she removed from the
various accounts upon the couple’s separation.
16
$630,000, a hunting club, a 2001 Ford truck, a 2001 Cadillac, a Fleetwood camp-trailer, a
26' deck boat, various guns, household goods, a four-wheeler, two riding lawnmowers, and
several checking, savings, pension, and IRA accounts. The chancery court divided these
assets equitably, as detailed above. Anne was to take over the payments on the Cadillac;
Ronnie would pay for the Ford truck and the interest in the hunting club. He was also
responsible for the home mortgage until the home was sold and the proceeds could be
divided equally between the parties.
5. Length of the marriage.
¶33.
The parties were married for thirty-seven years.
6. Presence or absence of minor children in the home.
¶34.
The parties have two grown, emancipated children.
7. Age of the parties.
¶35.
At the time of trial, Ronnie was almost sixty-three years of age. Anne was fifty-nine
years old.
8. Standard of living during the marriage and at support determination.
¶36.
The parties maintained a comfortable existence. They owned a home on the water at
the Ross Barnett Reservoir, sent their children to private schools and college, and never
wanted for clothes or food. Their income obviously had shrunk due to Ronnie’s retirement,
but the parties shared numerous pensions, savings accounts, IRAs, and bank accounts. At
the time of the support determination, Ronnie was still residing in the marital home and
stated that he had touched none of the marital funds. He testified that all the monies he
received every month went to pay the bills associated with the house and other expenses.
17
Anne was living with her daughter, and had been since the separation, but she expressed a
desire to rent or buy a small house in the area. She testified that she deemed all the money
she spent since the separation as reasonable.
9. Tax consequences of the spousal support order.
¶37.
Both parties would be responsible for their tax obligations, and Anne’s taxable income
would be increased by the amount of the alimony awarded. Ronnie’s taxable income would
be reduced by the amount of the alimony awarded.
10. Fault or misconduct of the parties.
¶38.
Anne was granted a divorce on the grounds of uncondoned adultery from Ronnie.
11. Wasteful dissipation of the assets by either party.
¶39.
Anne spent $36,323.49 out of the marital estate while awaiting the divorce
proceeding. The chancery court had only authorized her to spend $5,000 on living expenses.
This money was taken out of various joint accounts during the couple’s separation. This can
reasonably be viewed as a dissipation of marital assets by Anne.
12. Other equitable factors.
¶40.
The record suggests no other relevant factors for consideration.
¶41.
After considering the twelve factors and the corresponding facts found in the trial
court record, it is clear that the chancellor was neither manifestly wrong nor did he abuse his
discretion when he awarded Anne only $300 a month in periodic alimony. The award was
not oppressive, unjust, or grossly inadequate. Even with the higher level of scrutiny due to
the verbatim adoption of Ronnie’s proposed order, this alimony award was reasonable,
especially in light of Anne’s receipt of nearly half of the marital estate.
18
III. WHETHER THE CHANCERY COURT ERRED IN THE DENIAL OF
ATTORNEYS’ FEES.
¶42.
The standard of review for overturning an award or denial of attorneys’ fees is abuse
of discretion. Voda, 731 So. 2d at 1157 (¶29) (citing Johnson v. Johnson, 650 So. 2d 1281,
1288-89 (Miss. 1994)). “In order for this Court to say that the chancellor has abused his
discretion, there must be insufficient evidence to support his conclusions.” Mabus v. Mabus,
910 So. 2d 486, 488-89 (¶7) (Miss. 2005).
¶43.
An award of attorneys’ fees is “justified where the equities suggest one party should
assist the other, and the other party is unable to pay.” Haney v. Haney, 907 So. 2d 948, 957
(¶41) (Miss. 2005) (citing Brooks, 652 So. 2d at 1120). The party requesting attorneys’ fees
must prove an inability to pay. Dunn v. Dunn, 609 So. 2d 1277, 1287 (Miss. 1992) (citing
Jones v. Starr, 586 So. 2d 788, 792 (Miss. 1991); Martin v. Martin, 566 So. 2d 704, 707
(Miss. 1990)). An inability to pay could be created if one party would be forced to liquidate
a portion of their retirement or savings accounts in order to pay attorneys’ fees. Wells v.
Wells, 800 So. 2d 1239, 1246 (¶¶16-17) (Miss. Ct. App. 2001).
¶44.
Anne did not prove an inability to pay her attorneys’ fees. She has sufficient
liquidated funds including the cash she withdrew from various accounts upon the couple’s
separation to make the required payments. She has already managed to pay $21,314.49 of
the total $28,023.69 that she owed. She testified in court that she was willing to return to the
work force. She will be receiving a substantial sum of money upon the sale of the marital
home, and she was awarded a checking account with over $20,000 in it. Anne was also
awarded the more than $12,000 in cash that was in her possession at the time of the divorce
19
hearing. These funds are sufficient enough for Anne to pay the remaining $6,709.20 in
attorneys’ fees and still have ample resources on which to live. The dissent claims that this
issue should also be reconsidered on remand because the property division should be
reconsidered. Because we do not find that the property division was in error, we also do not
find that the chancellor abused his discretion in declining to award Anne’s attorneys’ fees.
Therefore, this issue is without merit.
CONCLUSION
¶45.
We find no error in the chancellor's decisions on any issues raised herein.
Accordingly, we affirm the judgment of the chancery court.
¶46. THE JUDGMENT OF THE CHANCERY COURT OF RANKIN COUNTY IS
AFFIRMED ON DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL
ARE DIVIDED EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND
THE APPELLEE/CROSS-APPELLANT.
LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, AND ROBERTS , JJ.,
CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY GRIFFIS, J.
CARLTON, J., DISSENTING:
¶47.
I respectfully dissent from the majority’s opinion on two grounds. First, I submit that
the chancellor abused his discretion when he failed to set forth findings of fact and
conclusions of law when he adopted verbatim Ronnie’s proposed order because the parties
disputed what constituted a 50/50 split. Second, the record conveys that the chancellor
misapplied the governing law under Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994)
in distributing the Rodriguezes’ marital property, specifically, Anne’s use of marital assets
for living expenses pending their divorce.
20
¶48.
I submit that the record fails to contain sufficient facts for the Court to rely on any
implied findings supporting the portion of the chancellor’s decision regarding the couple’s
use of marital assets pending their divorce and its effect on final distribution. In utilizing
either a heightened or de novo standard of review, I submit that the Court should remand this
case to the chancellor to set forth findings of fact and conclusions of law as to what
constituted reasonable living expenses or unreasonable dissipation of marital assets by the
parties so that the equity of the chancellor’s division may be appropriately reviewed.
I. The chancellor abused his discretion in adopting verbatim Ronnie’s
proposed order without making findings of fact and conclusions of law to
support his decision.
¶49.
Marital property consists of those assets acquired and accumulated during the
marriage which are subject to equitable distribution by the chancellor.
Berryman v.
Berryman, 907 So. 2d 944, 947 (¶13) (Miss. 2005) (citing Hemsley v. Hemsley, 639 So. 2d
909, 915 (Miss. 1994)). In Ferguson, the supreme court created a list of factors that
chancellors are to use as a guideline to create a fair division of marital property. Ferguson,
639 So. 2d at 928. These include the following factors:
1. [A spouse’s] substantial contribution to the accumulation of marital
property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of
the property;
b. Contribution to the stability and harmony of the marital and
family relationships as measured by quality, quantity of time
spent on family, duties and duration of the marriage; and
c.
Contribution to the education, training or other
accomplishment bearing on the earning power of the spouse
accumulating the assets.
21
2. The degree to which each spouse has expended, withdrawn or otherwise
disposed of marital assets and any prior distribution of such assets and any
prior distribution of such assets by agreement, decree or otherwise.
3. The market value and emotional value of assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary,
subject to such distribution, such as property brought to the marriage by the
parties and property acquired by inheritance or inter vivos gift by or to an
individual spouse[.]
5. Tax and other economic consequences, and contractual or legal
consequences to third parties, of the proposed distribution[.]
6. The extent to which property division may, with equity to both parties, be
utilized to eliminate periodic payments and other potential sources of future
friction between the parties[.]
7. The needs of the parties for financial security with due regard to the
combination of assets, income and earning capacity[.]
8. Any other factor which in equity should be considered.
Id. Not only are chancellors directed to use the Ferguson factors, they are also directed to
support their decisions with findings of fact and conclusions of law for the purpose of
appellate review. Id.
¶50.
Generally, this Court will not reverse findings of fact made by a chancellor when
those findings are supported by substantial credible evidence in the record. Tricon Metals
& Servs., Inc. v. Topp, 516 So. 2d 236, 238 (Miss. 1987). In reviewing a chancellor’s
judgment, this Court does not conduct a new Ferguson analysis. Spahn v. Spahn, 959 So.
2d 8, 12 (¶12) (Miss. Ct. App. 2006). Rather, the Court’s duty is to review the chancellor’s
decision under an abuse of discretion standard. Gray v. Gray, 909 So. 2d 108, 110 (¶7)
(Miss. Ct. App. 2005).
22
¶51.
When there are no findings of fact to review from the chancellor’s decision, the Court
can invoke the doctrine of implied findings. See Tricon Metals, 516 So. 2d at 238. In such
a situation, the Court assumes that the chancellor made “determinations of fact sufficient to
support the judgment.” Pace v. Owens, 511 So. 2d 489, 492 (Miss. 1987) (citing Rives v.
Peterson, 493 So. 2d 316, 317 (Miss. 1986)). However, “[u]se of the implied findings
doctrine . . . is not always possible” when the court does not “have . . . enough help from the
[chancellor]” to “derive the findings [he] ought to have made.” Tricon Metals, 516 So. 2d
at 238 (quoting Pace, 511 So. 2d at 492).
¶52.
Our Court gives great deference to a chancellor’s judgment “because [the chancellor]
is in a better position to determine what action would be fair and equitable in the situation
than a court of appellate jurisdiction.” Turnley v. Turnley, 726 So. 2d 1258, 1265 (¶23)
(Miss. Ct. App. 1998) (citation omitted). Generally, the place for initial fact finding is in a
trial court, not the appellate court. See Educational Placement Servs. v. Wilson, 487 So. 2d
1316, 1320 (Miss. 1986).
¶53.
It is within a chancellor’s sound discretion to adopt verbatim the findings of fact and
conclusions of law submitted by a party. Thomas v. Scarborough, 977 So. 2d 393, 396 (¶9)
(Miss. Ct. App. 2007) (citation omitted). However, “[w]here the chancellor adopts, verbatim,
findings of fact and conclusions of law prepared by a party . . . this Court analyzes such
findings with greater care and the evidence is subjected to heightened scrutiny.” Gutierrez
v. Bucci, 827 So. 2d 27, 31 (¶13) (Miss. Ct. App. 2002) (quoting Brooks v. Brooks, 652 So.
2d 1113, 1118 (Miss. 1995)).
¶54.
The problem with adopting a party’s findings verbatim is “that these findings simply
23
are not the same as findings independently made by the trial judge after impartially and
judiciously sifting through the conflicts and nuances of the case.” Thomas, 977 So. 2d at 396
(¶9). Moreover, this Court has held that it is error for a chancellor to adopt a party’s
proposed findings when the evidence does not reasonably support the chancellor’s findings.
Id.
¶55.
For example, in Gray, 909 So. 2d at 111 (¶¶11-12), the supreme court reversed and
remanded a case when it found that the chancellor provided neither any Ferguson analysis
nor any explanation for his decision and merely announced his judgment, divided the
property, and awarded alimony. Similarly, in Sandlin v. Sandlin, 699 So. 2d 1198, 1204
(Miss. 1997), the supreme court reversed and remanded a case in which it found that the
court “could not evaluate the basis that [the chancellor had] used to determine the division
of property.” I respectfully submit that since no agreement existed between Ronnie and
Anne as to what constituted a 50/50 split, the chancellor abused his discretion in adopting
Ronnie’s order without making his own findings in support of his decision. See Sandlin, 699
So. 2d at 1204; Tricon Metals, 516 So. 2d at 239; Snoddy v. Snoddy, 791 So. 2d 333, 338
(¶17) (Miss. Ct. App. 2001); Forsythe v. Akers, 768 So. 2d 943, 947 (¶9) (Miss. Ct. App.
2000); Gray, 909 So. 2d at 111 (¶12). Therefore, I submit that this case should be remanded
to the chancellor to reflect his findings regarding whether a 50/50 split or an equitable result
was achieved when he distributed the Rodriguezes’ property as he did.
¶56.
A de novo review is warranted in a case where the chancellor adopts one party’s
findings and misapplies the law. Brooks, 652 So. 2d at 1118. I submit that the chancellor
in this case, like the chancellor in Brooks, erred when he failed to make his own findings and,
24
as discussed further under Section II below, apparently misapplied the law with respect to
the dissipation of marital assets and reasonable living expenses. Therefore, as in Brooks, I
submit that this case warrants a de novo review.
II. The chancellor misapplied the law under Ferguson when he
distributed the Rodriguezes’ marital assets.
¶57.
I submit that the chancellor erred when he failed to make his own findings of fact and
conclusions of law under the Ferguson factors. Without such findings or conclusions, it
appears that the chancellor misapplied the law regarding the dissipation of assets and living
expenses. Therefore, I review de novo chancellor’s adopted findings. See Wilson v. Wilson,
811 So. 2d 342, 344 (¶6) (Miss. Ct. App. 2001).
1. Contribution to Marital Property
¶58.
I agree with the majority’s opinion under this factor.
2. Disposition and Distribution of Marital Assets
¶59.
The majority finds under this factor that Anne withdrew considerable amounts of
money from the couple’s joint accounts upon their separation and that Anne’s withdrawal
was properly taken into account during the final calculation of the property division. Ronnie
contends in his brief that Anne had been authorized under a “gentleman’s agreement” 3 that
was reached in the presence of the chancellor to use up to $5,000 for living expenses pending
their judgment of divorce.4 In contrast, Ronnie, who was receiving $4,046 in monthly
3
It should be noted that the chancellor did not issue an order enforcing this
“agreement.”
4
Under this “gentlemen’s agreement,” Anne would have been entitled to spend, on
average, $500 a month in living expenses. Under federal poverty guidelines, an annual
income of $10,400 for a household of one is considered the threshold of poverty level. U.S.
25
income, was given no restrictions as to the amount of money he could spend.
¶60.
Under our case law, ordinary and reasonable living expenses used during separation
do not constitute a dissipation of marital assets. See Pittman v. Pittman, 791 So. 2d 857, 865
(¶22) (Miss. Ct. App. 2001); see also Turnley, 726 So. 2d at 1266 (¶26). Additionally,
marital assets are deemed to still be accumulating unless a separate maintenance order or
temporary support order is entered. Marshall v. Marshall, 979 So. 2d 699, 701 (¶9) (Miss.
Ct. App. 2007) (citations omitted). Furthermore, this Court has stated that if there has been
no maintenance or temporary support order entered, that neither party need consult the other
before using marital assets for legitimate marital expenses. Barnett v. Barnett, 908 So. 2d
833, 841 (¶17) (Miss. Ct. App. 2005).
¶61.
For example, in Pittman, the Court stated that “if marital funds . . . are used for
legitimate expenses of both parties during a separation, the person who has been making the
disbursements from the account does not [under the facts of this case] . . . need to provide
equivalent amounts of separate funds at the time of the actual divorce as part of a distribution
of marital property.” Pittman, 791 So. 2d at 865 (¶22).
¶62.
Similarly, in Turnley, the Court affirmed the chancellor’s judgment that the wife had
not “wasted” her husband’s $300 a month disability payments pending their divorce because
she had used the payments to support herself and their children. Turnley, 726 So. 2d at 1266
(¶26). Because the wife had provided a reasonable explanation for the use of her husband’s
Dep’t of Health & Human Servs., 2008 DHS Poverty Guidelines of 2008,
http://aspe.hhs.gov/poverty/08Poverty.shtml (last visited on January 7, 2009). In light of the
federal poverty guidelines and the Rodriguezes’ available assets, I submit that such an
agreement was not equitable, reasonable, or fair.
26
disability payments, the chancellor found that she was not required to reimburse her husband.
Id.
¶63.
Here, no maintenance or temporary support order was entered before the Rodriguezes’
divorce. Moreover, Anne and Ronnie disagree on how much of the couple’s joint marital
funds Anne spent pending their divorce. Ronnie argues that Anne spent $36,323.49 from the
time of their separation to their judgment of divorce ten months later.
¶64.
Anne and Ronnie agree that Anne spent $21,314.49 on legal fees pending their
divorce. Assuming Ronnie was correct about Anne spending $36,323.49, this means that
Anne spent, on average, approximately $1,500 per month pending their divorce. In contrast,
Ronnie received approximately $40,000 in income pending their divorce. The chancellor
awarded an investment account of $52,300 to Ronnie “to offset the cash assets that [Anne]
withdrew prior to the separation of the parties and spent during the course of [the] litigation.”
Because of this specific distribution, Ronnie was awarded $211,106 in account assets, and
Anne was awarded $198,551 in account assets.
¶65.
Since the chancellor did not provide any findings as to how much Anne or Ronnie
spent pending their divorce and since there was no order of the court enforcing the
“gentleman’s agreement,” I would remand the case for the chancellor to make findings of
fact and conclusions of law regarding how much of the marital assets were spent by each
party and whether such expenditures were reasonable. See Pittman, 791 So. 2d at 864-65
(¶21).
3. Market and Emotional Value of Assets
¶66.
Ronnie and Anne submitted differing market values for various assets. Specifically,
27
the Rodriguezes’ hunting camp, camp-trailer, and boat and boat trailer were assigned
strikingly different values by Ronnie and Anne. The chancellor’s opinion fails to reflect if
the value of these items was determined or even considered in the final distribution of the
property. In order to achieve an equitable division of assets, the fair market value of the
assets should be considered before any allocation. See id. at 867 (¶37).
¶67.
In Wilson, the Court reversed the chancellor’s judgment and remanded the case
because he assigned several items to one party without assigning them any value. Wilson,
811 So. 2d at 346 (¶14). The Court stated that “some actual value should be assigned to [the
items] to insure that the division [was] equitable.” Id. at (¶13). I submit that this case should
be remanded on this issue for findings of fact in accordance with the analysis set forth in
Wilson. See also Aron v. Aron, 832 So. 2d 1257, 1260 (¶¶14-16) (Miss. Ct. App. 2002)
(reversing and remanding so chancellor could make valuations of marital property in order
to create an equitable distribution).
4. Value of Assets Not Ordinarily Subject to Distribution
¶68.
I agree with the majority’s opinion under this factor.
5. Tax Consequences of Distribution
¶69.
The majority states: “Ronnie would be allocated the mortgage interest deduction
because he was paying the mortgage on the home until such time that it could be sold.” It
appears that the majority assumed that the chancellor awarded Ronnie the deduction because
he was paying the monthly mortgage payments. However, the chancellor’s opinion contains
no such analysis, similar or otherwise, regarding why Ronnie was to be awarded the
mortgage deduction and not Anne. According to the record, Ronnie was paying $730 a
28
month on the mortgage, and while doing so, he enjoyed the privilege of living in the marital
home pending their divorce. At the same time, Anne was paying $200 a month in rent to her
daughter.
¶70.
Under Hemsley, a spouse working as a homemaker will be presumed to contribute
equally as the wage-earning spouse. Hemsley, 639 So. 2d at 915. In this case, Ronnie was
the primary breadwinner, and Anne worked within the home for the majority of their thirtyseven-year marriage. Because there are no explicit or implicit findings in the chancellor’s
opinion as to why Ronnie received the entire deduction and because no agreement existed
as to what constituted a 50/50 split, I would remand this case to the chancellor to make
findings on this issue.
6. Alimony
¶71.
“Upon remand, [a] chancellor must reconsider not only the issue of equitable
distribution, but also the award[] of alimony . . . after he has properly divided the marital
assets” as directed by Ferguson. Lauro v. Lauro, 847 So. 2d 843, 848 (¶12) (Miss. 2003).
“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.” Id. at (¶13) (citation omitted). In Armstrong v.
Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993), the supreme court set out twelve factors for
the chancellor to consider in making an award of alimony.
¶72.
I contend that this case should be remanded to the chancellor to reconsider the
equitable distribution of the Rodriguezes’ property under the Ferguson factors and, upon
doing so, consider the Armstrong factors in order to determine whether Anne suffers a
29
deficit.
7. Needs of the Parties for Financial Security
¶73.
I find that the case should be remanded for the chancellor to consider this issue after
applying the Ferguson factors to the facts of the case. See Drumright v. Drumright, 812 So.
2d 1021, 1025 (¶9) (Miss. Ct. App. 2001). The chancellor should then make findings of fact
and conclusions of law supporting his decision under this issue.
8. Any Other Factors
a. Ronnie’s Adultery
¶74.
The Court has stated that marital misconduct is a proper factor for a chancellor to
consider in the equitable distribution of marital property when the “misconduct places a
burden on the stability and harmony of the marital and family relationship.” Ory v. Ory, 936
So. 2d 405, 413 (¶23) (Miss. Ct. App. 2006) (quoting Singley v. Singley, 846 So. 2d 1004,
1007 (¶8) (Miss. 2002)). It is within the chancellor’s discretion in this case to consider
Ronnie’s adulterous conduct and its impact, if any, on the destruction of the marriage. See
Sullivan v. Sullivan, 990 So. 2d 783, 788 (¶19) (Miss. Ct. App. 2008).
b. Attorney’s Fees
¶75.
Finally, Anne cross-appeals the chancellor’s decision denying her an award of
attorney’s fees. It is within the chancellor’s discretion to award attorney’s fees. Spahn, 959
So. 2d at 15 (¶18). The chancellor should consider each party’s financial ability when
deciding whether to award attorney’s fees. Id. Assets received as part of an equitable
distribution can be considered in determining a party’s ability to pay his attorney’s fees.
Hankins v. Hankins, 729 So. 2d 1283, 1286 (¶13) (Miss. 1999) (reversing and remanding for
30
chancellor to consider the $210,000 award in equitable distribution in determining the party’s
ability to pay attorney’s fees). Since I would remand this case for findings of fact and
conclusions of law under Ferguson, I submit that the chancellor should also reconsider an
award of attorney’s fees in light of his Ferguson analysis. See Pittman, 791 So. 2d at 870-71
(¶¶54-57).
CONCLUSION
¶76.
I respectfully submit that the chancellor abused his discretion and apparently
misapplied the law when he adopted Ronnie’s proposed order verbatim without supporting
Ferguson findings and conclusions of law because the parties did not reach an agreement as
to what constituted a 50/50 split of the marital property. Without such findings, we cannot
review whether sufficient evidence supports his decision. I recognize that due to crushing
caseloads, trial courts must, at times, rely on party submissions. Thomas, 977 So. 2d at 396
(¶9). However, such reliance is error when the evidence does not substantially support the
chancellor’s findings. See id. For the above reasons, I would reverse and remand this case
for findings of fact and conclusions of law under Ferguson.
GRIFFIS, J., JOINS THIS SEPARATE OPINION.
31
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