IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-02120-COA
RAYMOND CURTIS BRANCH APPELLANT
v.
LAUREN HOOVER BRANCH APPELLEE
DATE OF JUDGMENT: 11/12/2013
TRIAL JUDGE: HON. VICKI B. COBB
COURT FROM WHICH APPEALED: MONTGOMERY COUNTY CHANCERY
COURT
ATTORNEY FOR APPELLANT: TIFFANY ALAYNE YATES
ATTORNEY FOR APPELLEE: LUTHER PUTNAM CRULL JR.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: DIVORCE GRANTED TO APPELLEE ON
GROUND OF ADULTERY; CUSTODY OF
TWO MINOR CHILDREN AWARDED TO
APPELLEE, WITH VISITATION AWARDED
TO APPELLANT; APPELLANT ORDERED
TO PAY CHILD SUPPORT, ORDERED TO
MAINTAIN HEALTH INSURANCE FOR
CHILDREN, AND ORDERED TO PAY
SEVENTY-FIVE PERCENT OF MEDICAL
AND EDUCATIONAL EXPENSES FOR
CHILDREN; APPELLANT ORDERED TO
MAINTAIN LIFE-INSURANCE POLICY AS
LONG AS ONE CHILD IS
UNEMANCIPATED; MARITAL PROPERTY
DIVIDED; APPELLANT AWARDED ALL
INTEREST AND ASSETS OWNED BY HIS
BUSINESS; APPELLANT ORDERED TO
PAY REHABILITATIVE ALIMONY TO
APPELLEE FOR SEVENTY-TWO MONTHS;
APPELLANT ORDERED TO PAY $28,242.95
IN ATTORNEY’S FEES
DISPOSITION: AFFIRMED: 09/15/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING AND GRIFFIS, P.JJ., AND MAXWELL, J.
GRIFFIS, P.J., FOR THE COURT:
¶1. Raymond Curtis Branch (Curt) argues that the chancery court erred in its calculation
of child support, the division of marital property, and the award of alimony. Curt also argues
that the chancellor erred in granting sole legal custody to his wife, setting visitation with
transportation costs, and ordering him to pay his wife’s attorney’s fees. We find no error and
affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Curt and Lauren Branch married in 1999. Prior to marriage, Curt and Lauren attended
Mississippi State University together. After they graduated in 1999, they moved to Jackson
for Curt to attend dental school. While Curt went to school, Lauren worked as an interior
designer for an architectural firm.
¶3. In 2003, Curt graduated from dental school, and they moved to Winona, where Curt
worked for Lauren’s father’s dental clinic. Lauren continued to commute to Jackson for
work until she became pregnant with their second child. They had two children, one born
in 2002 and the second in 2004.
¶4. Curt attended several dental seminars. At a seminar in Tunica in June 2011, Curt met
Kirsten Lipert, a dental equipment sales representative. Curt and Kirsten continued to see
each other at other dental seminars in Florence, Alabama, and Nashville, Tennessee. In
August 2011, while at the Nashville seminar, Curt and Kirsten initiated a sexual relationship.
¶5. Curt and Kirsten continued to see each other over the course of several months. In
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November 2011, Curt admitted his affair to Lauren. They separated, and Curt lived in an
apartment until June 2012. Curt then moved to Kirsten’s house in Franklin, Tennessee.
¶6. On November 22, 2011, Lauren filed a complaint for divorce and a petition for
temporary relief. On March 19, 2012, the chancellor entered an agreed temporary order that
awarded Lauren temporary custody of the children, use of the home, separate maintenance,
temporary child support, and other expenses, totaling $4,360 per month.
¶7. A hearing on their divorce began on June 11, 2013. On September 12, 2013, the
chancellor granted Lauren a divorce on the grounds of adultery. The chancellor issued a
bench opinion that set child custody and visitation, child support, rehabilitative alimony,
distribution of marital property, and attorney’s fees.
¶8. On November 19, 2013, the chancellor entered a final judgment, which incorporated
her bench rulings. The chancellor awarded full legal and physical custody of the children to
Lauren and gave Curt visitation privileges, provided he pay the transportation costs to and
from Winona. Lauren also received the equity in the marital home and rehabilitative alimony
of $1,000 per month for seventy-two months. The chancellor also ordered Curt to pay $1,800
per month in child support, pay seventy-five percent of the children’s education costs, and
maintain a life-insurance policy of $500,000 with the children and Lauren as beneficiaries,
until emancipation of the children. Further, the chancellor held Curt responsible for his
student-loan and line-of-credit debts. Curt appeals this judgment.
STANDARD OF REVIEW
¶9. In domestic-relations cases, this Court will not disturb a chancellor’s judgment when
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it is supported by substantial credible evidence unless the chancellor abused her discretion,
was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Rolison
v. Rolison, 105 So. 3d 1136, 1137 (¶4) (Miss. Ct. App. 2012) (citation omitted). “If the
chancellor’s findings are supported by substantial evidence, then we will affirm.” Id.
(citation omitted). Questions of law, however, are reviewed de novo. Price v. Price, 22 So.
3d 331, 332 (¶8) (Miss. Ct. App. 2009) (citation omitted).
ANALYSIS
I. Whether the chancellor erred in granting sole legal custody to Lauren,
with visitation and transportation costs to Curt.
¶10. Curt contends the chancellor erred in awarding Lauren sole legal custody of their
children. Further, Curt argues the chancellor’s determinations on legal custody, visitation,
and transportation costs interfere with his relationship with his children and are not in the
best interests of the children.
A. Legal Custody
¶11. “‘Legal custody’ means more than simply having information about one’s child; such
responsibility and authority means sharing of ‘decision-making rights, the responsibilities[,]
and the authority relating to the health, education[,] and welfare of a child.’” Lowrey v.
Lowrey, 25 So. 3d 274, 296-97 (¶54) (Miss. 2009) (quoting Miss. Code Ann. § 93-5-24
(Supp. 2014)). Further, “[t]he statute creates a presumption in favor of joint custody where
the parents have agreed to it.” Id.
¶12. Curt primarily contends the chancellor erred in awarding Lauren sole legal custody
on the basis of her objection to any type of joint-custody arrangement rather than making the
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decision based on the best interests of the children. The record, however, indicates the
chancellor made a finding that the best interests of the children favored Lauren having sole
physical and legal custody.
¶13. A chancellor determines custody based on a number of factors set forth in Albright
v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). “The Albright factors are a guide for
chancellors in weighing the facts to determine the child’s best interest.” Hamby v. Hamby,
102 So. 3d 334, 337 (¶14) (Miss. Ct. App. 2012) (quoting Wilson v. Wilson, 79 So. 3d 551,
566 (¶63) (Miss. Ct. App. 2012)). Further, “the chancellor has the ultimate discretion to
weigh the evidence the way he sees fit.” Id.
¶14. The Albright factors are:
(1) the child’s age, health, and sex; (2) which parent had the continuity of care
before the separation; (3) which parent has the best parenting skills; (4) which
parent has the willingness and capacity to provide primary child care; (5) each
parent’s employment and its responsibilities; (6) each parent’s physical and
mental health and age; (7) the emotional ties between the child and each
parent; (8) each parent’s moral fitness; (9) the child’s home, school[,] and
community record; (10) the child’s preference, if the child is over twelve years
old; (11) the stability of the home environment; and (12) any other relevant
equitable factor.
Id. at (¶15) (citation omitted).
¶15. The chancellor included an Albright analysis in her bench ruling, and incorporated
those findings into the November 19, 2013 judgment. The chancellor found the factors of
the children’s age, health, and sex; continuity of care; parenting skills; employment; moral
fitness; children’s home, school, and community record; and stability of the home
environment all weighed in favor of Lauren. The chancellor also found the factor of the
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children’s preference inapplicable as neither child had reached the required age to voice a
preference.
¶16. The chancellor further determined in the bench ruling that the willingness to provide
child care, emotional ties, and the physical and mental health of the parents were neutral
factors, even though the chancellor later found these factors favored Lauren in the judgment.
Despite these inconsistencies between the ruling from the bench and the order, the factors
predominately favored Lauren.
¶17. In the judgment, the chancellor extended these findings to the determinations of
physical and legal custody. Curt rests his argument on the chancellor’s bench ruling when
the chancellor stated, “normally I don’t grant joint legal custody unless both parties are
agreeable to that.” However, the Mississippi Supreme Court has “noted that parents who
experience substantial animosity will find it ‘manifestly impossible’ to function under a joint
custody award.” Deborah H. Bell, Mississippi Family Law § 5.04(3)(b) (2005) (quoting
Rutledge v. Rutledge, 487 So. 2d 218, 220 (Miss. 1986)).
¶18. While the chancellor must address the best interests of the child in determining legal
custody, the chancellor retains discretion in determining custody. “[U]nless the parents are
capable of sharing joint custody cooperatively, it is incumbent upon a chancellor not to award
joint custody. This is for the chancellor to determine as he or she is in the best position to
evaluate the credibility, sincerity, capabilities[,] and intentions of the parties.” Crider v.
Crider, 904 So. 2d 142, 147 (¶13) (Miss. 2005).
¶19. We find that the chancellor properly applied the Albright factors to resolve the issue
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of custody. Curt correctly claims that the chancellor only addressed legal custody in the
bench opinion in the context of Lauren’s objection to joint custody. Nevertheless, the
chancellor included legal custody in the conclusion of the Albright analysis in the judgment
of divorce. Therefore, we find no error in the chancellor’s award of sole legal custody to
Lauren.
B. Visitation
¶20. Curt next objects to the visitation schedule and the requirement that he pay all
transportation costs in order to exercise his visitation. The chancellor awarded Curt visitation
on every other weekend, alternating holidays, half of summer vacation, and other
concessions. Curt opposes this arrangement because the distance between Nashville and
Winona requires a twelve-hour round-trip that would interfere with his visitation.
¶21. “The chancellor has broad discretion when determining appropriate visitation and the
limitations thereon.” Fountain v. Fountain, 877 So. 2d 474, 481 (¶26) (Miss. Ct. App. 2003)
(citing Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994)). “In determining
visitation, the chancellor must continue to keep the best interest of the child as his paramount
concern while always being attentive to the rights of the non-custodial parent, recognizing
the need to maintain a healthy, loving relationship between the non-custodial parent and his
child.” Id.
¶22. “The supreme court has addressed the very issue of what would encompass the
minimum of a liberal visitation provision.” Chalk v. Lentz, 744 So. 2d 789, 792 (¶9) (Miss.
Ct. App. 1999) (quoting Crowson v. Moseley, 480 So. 2d 1150, 1153 (Miss. 1985)). The
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supreme court has “held that ‘children at the least are entitled to the company of [the
noncustodial parent] two full week-ends a month during the school year, with the visitation
to terminate late Sunday afternoon as opposed to Sunday morning, and a five-week period
during summer vacation.’” Id.
¶23. The chancellor awarded liberal visitation following the same guidelines set forth in
Chalk. Curt challenges this visitation schedule based on the time required to transport the
children from Winona to Nashville then back to Winona. Though the chancellor did not alter
visitation to account for the distance between Winona and Nashville, the chancellor enjoys
wide discretion in setting visitation and was not required to do so. See Fountain, 877 So. 2d
at 481 (¶27) (court upheld standard visitation when custodial parent moved to Florida while
noncustodial parent remained in Mississippi). Therefore, we find that Curt failed to show
the visitation arrangement compromises his relationship with his children or undermines the
best interests of the children.
¶24. The chancellor also retains discretion in determining transportation costs. Ballard v.
Ballard, 843 So. 2d 76, 80 (¶15) (Miss. Ct. App. 2003). “There is no authority in Mississippi
to the effect that the non-custodial parent is entitled to the assistance of the former spouse
in the logistical aspects of exercising visitation rights.” Hulse v. Hulse, 724 So. 2d 918, 919
(¶6) (Miss. Ct. App. 1998). However, any interference in the noncustodial parent’s ability
to exercise visitation may warrant a compromise in transportation costs. Id. at (¶5).
¶25. This Court in Hulse stated:
In those cases where it could be demonstrated that the ability of the
non-custodial parent to enjoy a suitable visitation schedule was substantially
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impaired because of difficulties in transportation that could only be resolved
by the reasonable participation of the custodial parent, it could well be that the
chancellor would be manifestly in error in refusing to order some measure of
cooperation from the custodial parent. That, however, would appear to be a
question of fact and not an issue of law.
Id.
¶26. As to the interference with his visitation rights, Curt merely asserts that bearing the
transportation costs will pose a financial strain. Although Curt may eventually be able to
establish an undue financial burden or interference with his visitation rights, he may do so
in a modification proceeding at a later date. Based on the evidence before the chancellor at
the time of the divorce, we find that the chancellor did not abuse her discretion in setting the
visitation schedule and costs.
II. Whether the chancellor erred in calculating child support.
¶27. Curt next claims that the chancellor erred in determining the amount of child support
due. He claims the chancellor made an improper calculation of his adjusted gross income.
Primarily, Curt argues the chancellor inaccurately determined his actual income and failed
to account for taxes and expenses in the final calculation of his adjusted gross income.
¶28. “Both parents are obligated to provide financially for their children.” Forrest v.
McCoy, 941 So. 2d 889, 891 (¶11) (Miss. Ct. App. 2006) (citing Lacey v. Lacey, 822 So. 2d
1132, 1140 (¶36) (Miss. Ct. App. 2002)). “The statutory presumption is that the
non-custodial parent will provide support and it will be in a specific percentage of gross
income.” Id.
¶29. Statutory guidelines dictate the child-support amount based upon a percentage of the
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noncustodial parent’s adjusted gross income. White v. White, 722 So. 2d 731, 733 (¶17)
(Miss. Ct. App. 1998). Mississippi Code Annotated section 43-19-101(1) (Supp. 2014) sets
the percentage of child support for two minor children at twenty percent.
¶30. “[C]omputing one’s income for taxation is different than computing one’s income for
child support purposes . . . . Our statutes delineate what is to be considered as gross income
for the purposes of computing child support.” Bustin v. Bustin, 806 So. 2d 1136, 1140 (¶11)
(Miss. Ct. App. 2001).
¶31. Gross income pursuant to Mississippi Code Annotated section 43-19-101(3)(a) (Supp.
2014) is calculated as follows:
Determine gross income from all potential sources that may reasonably be
expected to be available to the absent parent including, but not limited to, the
following: wages and salary income; income from self-employment; income
from commissions; income from investments, including dividends, interest
income[,] and income on any trust account or property; absent parent’s portion
of any joint income of both parents; workers’ compensation, disability,
unemployment, annuity and retirement benefits, including an Individual
Retirement Account (IRA); any other payments made by any person, private
entity, federal or state government or any unit of local government; alimony;
any income earned from an interest in or from inherited property; any other
form of earned income; and gross income shall exclude any monetary benefits
derived from a second household, such as income of the absent parent’s
current spouse[.]
Additionally, “in arriving at the adjusted gross income figure, the chancellor must include
income from many sources, but not all expenses. The allowable deductions for this figure
are statutory, and they differ from the allowable deductions for income tax purposes . . . .”
Coggins v. Coggins, 81 So. 3d 285, 291 (¶19) (Miss. Ct. App. 2012).
¶32. Here, Curt used a tax professional, Chris Mahan, to show his gross income for tax
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purposes. A chancellor, however, is not required to use gross income for tax purposes to
discern gross income for child-support purposes. See Nix v. Nix, 790 So. 2d 198, 200 (¶5)
(Miss. 2001) (“The chancellor, applying equity principles, may consider . . . expenditures in
determining whether they were legitimate business expenditures in ultimately determining
. . . available income to meet . . . [the] child-support obligation.”). Therefore, Mahan’s
estimation of Curt’s income did not bind the chancellor to that amount.
¶33. When determining Curt’s adjusted gross income, the chancellor found Curt was not
forthcoming about his income. “[E]ach party in every domestic case involving economic
issues and/or property division shall provide the opposite party or counsel, if known, the
following disclosures: . . . [a] detailed written statement of actual income and expenses and
assets and liabilities[.]” UCCR 8.05. This form must also include tax information. Id.
¶34. On his Rule 8.05 financial statement, Curt disclosed his income, expenses, assets, and
liabilities and attached only his 2012 tax information, which showed a loss for the tax year.
Curt did not disclose any additional tax information. Although Curt contends the chancellor
erred in calculating his tax deductions, Curt did not supply the chancellor with sufficient
information regarding these deductions.
¶35. Further, the chancellor questioned several transactions between Kirsten and Curt, but
did not attribute these transactions to Curt’s income. Based on Curt’s testimony, which the
chancellor deemed evasive, the chancellor imputed additional income to his reported income.
According to Swiderski v. Swiderski, 18 So. 3d 280, 286 (¶25) (Miss. Ct. App. 2009), this
Court held:
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Where a chancellor is not convinced of the honesty or veracity of the parent
concerning the parent’s ability to abide by his or her financial obligations, the
chancellor is not precluded from factoring this skepticism in the equation when
determining the amount of the child support award. Furthermore, [t]he
chancellor can base child support on the parent’s potential earning capacity.
(Internal citations and quotations omitted).
¶36. The chancellor here looked to Curt’s reported income of $750 per day as a contract
worker at Delta Dental Care Clinic, where Curt testified he worked two days a week and an
additional day every other week. Thus, the chancellor computed Curt’s income at $750 per
day for three days a week, totaling $117,000 annual earnings. This calculation did not take
into account Curt’s additional work at Nashville Smiles, including his earnings as a fifty
percent owner.
¶37. Chancellors often have a difficult time in deciding financial matters in a divorce. The
chancellor must rely on the parties to present detailed, relevant financial information.
Sometimes the circumstances of the divorce may cause some ambiguity as to the current or
future earning capacity of one or both spouses. Here, the circumstances of the divorce
created an even more difficult decision by the chancellor. If Curt had continued his dental
practice in Winona, there would have been accurate historical financial information upon
which the chancellor could have based her opinion. This did not happen. Curt’s professional
relationship with Lauren’s father had a negative impact on his future earning capacity.
Likewise, Curt’s decision to relocate from Winona, where he had spent several years building
his dental practice, to the Nashville area, where he would have to start over building his
dental practice, had a negative impact on his future earning capacity. Nevertheless, the
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chancellor must deal with the parties as she finds them and make the best decision possible
based on the financial information that is available and offered by the parties into evidence.
¶38. The chancellor determined that Curt’s adjusted gross income was $117,000. The
chancellor determined the monthly child-support payment would be $1,950 and subtracted
taxes for a child-support award of $1,800 per month. Based on the evidence presented, we
find that the chancellor’s decision was reasonable and supported by the evidence presented
at trial. We also recognize that the chancellor’s determination of child support may be
modified, increased, or decreased based on Curt’s income as his dental practice in the
Nashville area becomes more established. As a result, we find no merit to this issue.
III. Whether the chancellor erred in the division of marital property.
¶39. Curt’s main contentions concerning the chancellor’s division of the marital property
are the chancellor failed to classify the property, and the chancellor erroneously attributed
additional income to Curt. “[W]hen dividing marital property, ‘chancellors are directed to
(1) classify the parties’ assets as marital or separate; (2) determine the value of those assets;
(3) divide the marital estate equitably based upon the factors set forth in Ferguson; and (4)
consider the appropriateness of alimony if either party is left with a deficiency.’” Roberts
v. Roberts, 135 So. 3d 935, 940 (¶13) (Miss. Ct. App. 2014) (quoting Dickerson v.
Dickerson, 34 So. 3d 637, 643-44 (¶23) (Miss. Ct. App. 2010)).
¶40. “In dividing the property of the divorcing couple, the chancellor must first classify
their assets and liabilities as belonging to the marriage, to the husband, or to the wife.” Smith
v. Smith, 856 So. 2d 717, 719 (¶8) (Miss. Ct. App. 2003) (citing Hemsley v. Hemsley, 639
13
So. 2d 909, 914 (Miss. 1994)).
¶41. After classification and valuation, chancellors must equitably divide the marital
property in accordance with the factors dictated in Ferguson v. Ferguson, 639 So. 2d 921,
928 (Miss. 1994). The factors are:
(1) Substantial contribution to the accumulation of the property. Factors to be
considered in determining contribution are as follows: (a) [d]irect 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[;]
(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[;]
(3) The market value and the emotional value of the 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; and
(8) Any other factor which in equity should be considered.
Id.
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¶42. Curt primarily argues the chancellor incorrectly classified his interest in Nashville
Smiles as marital property even though the business opened after Curt and Lauren separated.
“[W]hen equitably dividing marital property upon divorce, the date of valuation is necessarily
within the discretion of the chancellor.” Hensarling v. Hensarling, 824 So. 2d 583, 591 (¶25)
(Miss. 2002) (quoting MacDonald v. MacDonald, 698 So. 2d 1079, 1086 (¶35) (Miss.
1997)). Further, “for the purposes of accumulating marital property, the time period runs
from the date of marriage until the final judgment of divorce[,] [b]ut [the supreme court] has
carved out an exception when an order for separate maintenance has been entered.” Cuccia
v. Cuccia, 90 So. 3d 1228, 1232-33 (¶8) (Miss. 2012).
¶43. The chancellor entered a temporary agreed order on March 19, 2012, which included
separate maintenance for Lauren in the sum of $1,200.
Assets acquired after an order for separate maintenance should be considered
the separate property of the parties, absent a showing of either (1) contribution
to the acquisition of the asset by the other spouse as contemplated in our
decisions in [Ferguson, 639 So. 2d at 928-29], and Magee v. Magee, 661 So.
2d 1117, 1123 (Miss. 1995) or, (2) acquisition of the asset through the use of
marital property.
Godwin v. Godwin, 758 So. 2d 384, 386 (¶7) (Miss. 1999) (internal citations omitted).
¶44. According to Curt’s testimony, Nashville Smiles began operation in late March 2012,
but Curt did not give a precise date. Regardless, Curt contends the business opened after the
agreed temporary order, which effectively ended any further accumulation of marital
property. Therefore, the business could not be considered an asset in determining the
equitable division of property.
¶45. At the hearing for the bench rulings, the chancellor stated, “Nashville Smiles is a
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dental business that is not subject to equitable division.” The chancellor did not state
whether Nashville Smiles constituted marital property or not. However, a failure to classify
property does not automatically result in reversible error if the division of property is fair.
Kimbrough v. Kimbrough, 76 So. 3d 715, 721 (¶27) (Miss. Ct. App. 2011).
¶46. Curt fails to show how the chancellor considered Nashville Smiles in dividing the
marital property or how she inequitably divided the property. We have determined that the
chancellor primarily looked at Nashville Smiles to determine Curt’s current earning capacity.
Further, the chancellor did not consider Nashville Smiles in allocating the equity in the
marital home. Rather, the chancellor allowed Curt to retain the entirety of his retirement plan
rather than divide the equity in the home and divide Curt’s retirement.
¶47. As a further example of the inequitable division, Curt argues the chancellor
disproportionately allocated the marital debt to him. “Debts acquired during the course of
the marriage are also subject to equitable distribution.” Carter v. Carter, 98 So. 3d 1109,
1114 (¶15) (Miss. Ct. App. 2012) (citation omitted). Curt fails to prove, however, the
chancellor erred in allocating the debt. The chancellor’s division did leave the majority of
the debt to Curt, but a large portion of the debt, including attorney’s fees, is Curt’s separate
debt. Therefore, Curt cannot show the chancellor inequitably allocated the debts.
¶48. Therefore, we find no merit to this issue.
IV. Whether the chancellor erred in her determination of alimony.
¶49. The chancellor awarded Lauren rehabilitative alimony of $1,000 for seventy-two
months. According to Curt, the chancellor erred in granting alimony because of an incorrect
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assessment of Curt’s income and other relevant factors. Chancellors determine an award of
alimony based on the factors provided by Armstrong v. Armstrong, 618 So. 2d 1278, 1280
(Miss. 1993):
1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require
that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the
time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in
connection with the setting of spousal support.
Id.
¶50. Specifically, “[r]ehabilitative alimony provides for a party who is trying to become
self-supporting and prevents that party from becoming destitute while searching for a means
of income. Moreover, ‘[t]he primary purpose of rehabilitative alimony is to give the former
spouse the opportunity to enter the work force.’” McCarrell v. McCarrell, 19 So. 3d 168,
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170 (¶8) (Miss. Ct. App. 2009) (quoting Alexis v. Tarver, 879 So. 2d 1078, 1080 (¶7) (Miss.
Ct. App. 2004)) (internal citation omitted).
¶51. The chancellor correctly evaluated the award of alimony under the Armstrong factors.
The chancellor found the factors of Lauren’s earning capacity, income and expenses, needs,
obligations and assets, and custody of the children weighed in Lauren’s favor. Also, the
chancellor found Curt’s fault for the dissolution of the marriage favored Lauren. Further, the
chancellor found the length of the marriage, the age of the parties, and the dissipation of
assets did not favor alimony.
¶52. Primarily, the chancellor determined Lauren’s position as a stay-at-home mom and
her need for initial support ultimately favored an award of alimony. Also, based upon the
financial records, the chancellor stated Lauren could have received a higher award, but
lessened the amount and time for alimony. Further, the chancellor specifically intended the
alimony award to support Lauren until she found sustainable employment and became self-
sufficient.
¶53. Curt also contends on appeal the chancellor considered information not in evidence
when the chancellor heard testimony on the financial information of Curt’s girlfriend,
Kirsten. The chancellor, Curt argues, incorrectly imputed a portion of Curt’s income based
upon the unsubstantiated inference that Curt pays a portion of Kirsten’s financial obligations.
However, Curt does not show how the chancellor used this inference to unfairly increase
Curt’s income and erroneously award alimony.
¶54. Therefore, we find no merit to this issue.
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V. Whether the chancellor erred in granting attorney’s fees.
¶55. As a final point of contention, Curt argues the chancellor erred in awarding Lauren
attorney’s fees. Curt maintains the chancellor failed to consider his ability to pay attorney’s
fees or that Lauren’s parents paid her fees at the time of the judgment.
¶56. “An award of attorney’s fees in domestic cases is largely a matter entrusted to the
sound discretion of the trial court.” Lauro v. Lauro, 924 So. 2d 584, 591 (¶29) (Miss. Ct.
App. 2006) (citations omitted). “Unless the chancellor is manifestly wrong, his decision
regarding attorney[’s] fees will not be disturbed on appeal.” Id. (citing Bredemeier v.
Jackson, 689 So. 2d 770, 778 (Miss. 1997)).
¶57. “Generally, unless the party requesting attorney[’s] fees can establish the inability to
pay, such fees should not be awarded.” Bredemeier, 689 So. 2d at 778 (citing Dunn v. Dunn,
609 So. 2d 1277, 1287 (Miss. 1992)). In order to determine the amount of attorney’s fees,
a chancellor must look to the factors enumerated in McKee v. McKee, 418 So. 2d 764, 767
(Miss. 1982).
¶58. The court in McKee stated: “We are also of the opinion the allowance of attorney[’]s
fees should be only in such amount as will compensate for the services rendered. It must be
fair and just to all concerned after it has been determined that the legal work being
compensated was reasonably required and necessary.” Id. The specific factors include
the relative financial ability of the parties, the skill and standing of the attorney
employed, the nature of the case and novelty and difficulty of the questions at
issue, as well as the degree of responsibility involved in the management of the
cause, the time and labor required, the usual and customary charge in the
community, and the preclusion of other employment by the attorney due to the
acceptance of the case.
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Id. Further, “[w]here the record shows an inability to pay and a disparity in the relative
financial positions of the parties, there is no error in awarding attorney’s fees.” Tatum v.
Tatum, 105 So. 3d 1141, 1144 (¶9) (Miss. Ct. App. 2012) (citation omitted).
¶59. The chancellor found Lauren lacked the ability to pay her attorney’s fees. Though the
chancellor did not explicitly consider the individual McKee factors, the chancellor found the
fees reasonable in accordance with McKee. The lack of a factor-by-factor analysis under
McKee, however, does not necessarily require reversal. See A & L Inc. v. Grantham, 747 So.
2d 832, 845 (¶61) (Miss. 1999) (“Reversal is warranted only where the failure to make
sufficient findings of fact and conclusions of law constitutes manifest error.”).
¶60. Further, the chancellor found the home equity Lauren received almost covered the
entirety of the fees, but the chancellor did not require Lauren to use the equity as payment
for the attorney’s fees. Appellate courts have found a party is not required to liquidate all
assets to pay for attorney’s fees. See Hemsley, 639 So. 2d at 915 (court ruled wife did not
have to liquidate savings account to cover attorney’s fees); Wells v. Wells, 800 So. 2d 1239,
1247 (¶¶16-17) (Miss. Ct. App. 2001) (court ruled wife did not have to use alimony to pay
attorney’s fees or liquidate retirement account to pay fees).
¶61. The chancellor did not, however, address the payments of Lauren’s attorney’s fees by
her parents and Curt’s ability to pay the fees. In determining attorney’s fees, the chancellor
must determine the parties’ relative abilities to pay. McKee, 418 So. 2d at 767. Despite this
omission in the findings, the chancellor accurately relied on the financial position of Lauren
and correctly awarded her attorney’s fees. Therefore, the chancellor did not commit a
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manifest error, and this issue is without merit.
¶62. In addition, Lauren asks for the award of attorney’s fees on appeal in an amount equal
to one-half of the $28,242.95 in attorney’s fees awarded to her by the chancellor. In Lauro,
this Court held that we “generally award[] attorney’s fees on appeal in the amount of one-half
of what was awarded in the lower court. Lauro, 924 So. 2d at 592 (¶33) (citing Monroe v.
Monroe, 745 So. 2d 249, 253 (¶17) (Miss. 1999)). Attorney’s fees are based upon necessity
rather than entitlement. Id.” Here, we agree that Lauren is entitled to an award of attorney’s
fees for this appeal. Hence, we have determined that an award to Lauren of the sum of
$14,121.48 as attorney’s fees on appeal is a reasonable amount.
¶63. THE JUDGMENT OF THE MONTGOMERY COUNTY CHANCERY COURT
IS AFFIRMED, AND AN AWARD OF $14,121.48 IN ATTORNEY’S FEES ON
APPEAL IS GRANTED TO THE APPELLEE. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR,
JAMES AND WILSON, JJ., CONCUR.
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