Morgan David Ewing, Sr. v. Melanie Shae Ewing

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2015-CA-01105-COA

MORGAN DAVID EWING, SR. APPELLANT

v.

MELANIE SHAE EWING APPELLEE

DATE OF JUDGMENT: 03/13/2015
TRIAL JUDGE: HON. MITCHELL M. LUNDY JR.
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: JERRY WESLEY HISAW
ATTORNEY FOR APPELLEE: DAVID MARK SLOCUM JR.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: GRANTED DIVORCE AND AWARDED
WIFE FULL CUSTODY OF THE MINOR
CHILDREN, PROCEEDS FROM THE SALE
OF THE MARITAL HOME, $38,000 IN
LUMP-SUM ALIMONY, $500 IN
MONTHLY PERIODIC ALIMONY, AND
$10,000 IN ATTORNEY’S FEES
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART: 11/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., JAMES AND WILSON, JJ.

GRIFFIS, P.J., FOR THE COURT:

¶1. Morgan David Ewing Sr. and Melanie Shae Ewing were granted a divorce based on

irreconcilable differences. Morgan appeals the DeSoto County Chancery Court’s division

of the marital estate, the alimony award, and the award of attorney’s fees. This Court finds

error and affirms in part and reverses and remands in part.

FACTS AND PROCEDURAL HISTORY
¶2. Morgan and Melanie were married on July 1, 2000. Four children were born of the

marriage. Melanie mostly stayed home with the children while Morgan worked. They

separated on January 2, 2012. On January 17, 2012, Melanie filed a petition for divorce

based on habitual cruel and inhuman treatment or, in the alternative, irreconcilable

differences.

¶3. On February 22, 2012, the chancellor issued a temporary order granting Melanie

custody of the children, $950 per month in child support, and sole use of the marital home.

The order also granted Morgan weekend and phone visitation, and required him to maintain

health insurance on the family. Further, the order required the parties to file a joint tax return

and prohibited dissipation of marital assets.

¶4. After the temporary order but before the final divorce decree, Morgan lost his job and

failed to make several child-support payments, which caused him to go into arrears. During

this time, Morgan took out a loan against his 401(k), then eventually cashed out his 401(k),

valued at around $48,000. As a result of his unsteady employment and financial situation,

Morgan filed for bankruptcy in 2014.

¶5. The divorce proceedings extended over several years. Eventually, Melanie and

Morgan agreed to divorce on the ground of irreconcilable differences. The parties agreed

that Melanie would retain sole custody of the children, and they stipulated to a visitation

schedule. They requested that the chancellor settle the matters of property distribution, child

support, and alimony.

¶6. On February 18, 2015, the chancellor conducted a bench trial on the remaining issues.

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On March 16, 2015, the chancellor entered his judgment granting the divorce and resolving

the disputed issues. The chancellor ordered Morgan to pay $950 per month in child support,

$500 per month in permanent alimony, $38,000 in lump-sum alimony to be paid at monthly

$1,000 increments until satisfied, $10,000 in Melanie’s attorney’s fees to be paid monthly

in $500 increments until satisfied, and two-thirds of all unpaid medical expenses for the

children. The judgment was finalized on April 13, 2015.

¶7. Subsequently, on April 20, 2015, Morgan filed a motion for reconsideration or, in the

alternative, a new trial. Morgan primarily sought a reduction in the awards of child support,

alimony, and attorney’s fees. The chancellor granted Morgan’s motion in part by reducing

the child support to $708.36 per month and giving credit for $3,050 in paid child support.

All other requests were denied.

¶8. Morgan timely appealed the denial of his posttrial motion. On appeal, he argues that

the chancellor erred in (1) dividing the marital estate, (2) granting Melanie periodic alimony,

and (3) awarding attorney’s fees to Melanie.

STANDARD OF REVIEW

¶9. In domestic-relations cases, “[t]his Court will not disturb a chancellor’s judgment

when [it is] supported by substantial evidence unless the chancellor abused his discretion,

was manifestly wrong, 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.

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3d 331, 332 (¶8) (Miss. Ct. App. 2009) (citation omitted).

ANALYSIS

I. Whether the chancellor erred in dividing the marital estate.

¶10. Morgan initially disputes the chancellor’s division of the marital estate when he

awarded $38,000 in lump-sum alimony to Melanie. Morgan contends that the chancellor

failed to conduct a full analysis under the Ferguson1 factors in dividing the marital property.

Morgan also states that the chancellor neither established a line of demarcation determining

when the parties stopped accumulating marital assets nor classified the property as marital

or nonmarital. By extension, Morgan argues the chancellor erred in awarding lump-sum

alimony or, in the alternative, erroneously calculated the amount Melanie should receive.

¶11. “[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)).

A. The Classification and Valuation of Assets

¶12. “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

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Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994).

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So. 2d 909, 914 (Miss. 1994)). Morgan argues the chancellor erred when he did not classify

the parties’ property as marital and nonmarital property. Further, the chancellor, according

to Morgan, did not determine a line of demarcation determining when the parties stopped

accumulating marital assets.

¶13. “[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)). Melanie obtained a temporary order on February 22, 2012, which

awarded her sole temporary custody, use of the marital home, and use of her vehicle. The

temporary order also required Morgan to pay $950 in monthly child support, but did not

award Melanie separate maintenance.

¶14. Morgan argues the time of the demarcation should have been at the point of the

temporary order. “A temporary order may be considered by the chancellor to be a line of

demarcation between marital and separate property[.]” Collins v. Collins, 112 So. 3d 428,

432 (¶11) (Miss. 2013) (citing Cuccia v. Cuccia, 90 So. 3d 1228, 1233 (¶8) (Miss 2012)).

Therefore, the chancellor could have designated either the date of the temporary order or the

date of the divorce as the time for demarcation. Though the chancellor implicitly held the

date of demarcation as the date of the divorce, the chancellor erred when he failed to

explicitly declare either date as the line of demarcation.

¶15. The Collins court held that chancellors should declare a line of demarcation in their

findings. Id. at 432-33 (¶13). In Collins, the Mississippi Supreme Court found that the

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chancellor did not make a finding as to the line of demarcation, but because the opinion

alluded to the date and the parties did not challenge the date, the supreme court did not

remand the case on this issue. Id. at 432 (¶13). Further, the Collins court cautioned that had

the date been disputed or unclear in the judgment, the case would have been remanded. Id.

Here, Morgan and Melanie dispute the date for demarcation. Thus, this issue is remanded

for a finding on the date of demarcation.

¶16. Morgan also argues that the chancellor erroneously failed to classify the assets of the

parties as either marital or nonmarital. Morgan asserts that his 401(k) appreciated in value

over the time of separation, and the appreciation should have been considered separate

property. Unlike with demarcation, the chancellor stated that there was no testimony

presented as to any separate property. Further, the chancellor specifically determined what

he considered as marital property, and assigned values to each of the assets. Therefore, on

remand, the chancellor should determine the line of demarcation and whether the parties

accumulated any separate property.

B. The Ferguson Factors

¶17. Morgan further contends that the chancellor failed to adequately analyze the Ferguson

factors when he determined the distribution of marital property. After classification and

valuation, a chancellor must equitably divide the marital property in accordance with the

factors dictated in Ferguson. 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

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 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.

Ferguson, 639 So. 2d at 928.

¶18. The chancellor stated that he looked to the Ferguson factors when determining the

distribution. The chancellor, however, only made a specific finding in the record regarding

the first factor when he found that Morgan, as the financial provider, and Melanie, as the

domestic provider, contributed equally to the accumulation of the marital assets. The

chancellor determined that because the two parties contributed equally to the accumulation

of assets, they should be divided equally. Morgan argues this finding is insufficient to

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support the division of marital property. This Court agrees.

¶19. “While chancellors need not make findings as to each and every factor set forth in

Ferguson, they cannot simply mention the guidelines and state they are following them and

applying them to the facts of the case.” Lee v. Lee, 78 So. 3d 326, 329 (¶10) (Miss. 2012)

(citing Weathersby v. Weathersby, 693 So. 2d 1348, 1354 (Miss. 1997)); Ferguson, 639 So.

2d at 928) (quotation marks omitted). “The failure to make findings of fact and conclusions

of law is ‘manifest error requiring reversal and remand.’” Id. (quoting Sandlin v. Sandlin,

699 So. 2d 1198, 1204 (Miss. 1997)).

¶20. As previously stated, the chancellor determined each party’s contribution to the

marital property, but did not specifically apply the remaining factors. Melanie argues that

the chancellor found that several of the other Ferguson factors applied, such as the

dissipation of assets and the tax-consequences factor. Arguably, the chancellor did address

the dissipation of assets when he stated that Morgan wrongfully cashed out his 401(k)

account. While a chancellor is not required to fully analyze every Ferguson factor, this is not

a sufficient finding to support the distribution of the marital property.

¶21. Further, the chancellor assessed all of the marital debt to Morgan. “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). The chancellor likewise

failed to make a finding regarding the distribution of the marital debt. This failure constitutes

reversible error, and this Court remands this issue for a proper analysis under Ferguson.

C. Lump-Sum-Alimony Award

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¶22. Morgan next argues that the chancellor erred when he awarded Melanie $38,000 in

lump-sum alimony. Under the property distribution, Morgan would receive $53,500, and

Melanie would receive $15,600.80. To equalize the distribution, the chancellor awarded

Melanie $38,000 in lump-sum alimony to bring her total distribution to $53,600.80. As such,

Morgan contends the chancellor failed to do an appropriate analysis in making the award and,

even if an award was proper, the amount was manifestly wrong.

¶23. An award of lump-sum alimony must be considered under the Ferguson or

Armstrong2 factors depending on the purpose of the award. Davenport v. Davenport, 156

So. 3d 231, 240 (¶30) (Miss. 2014). “If lump-sum alimony is awarded as a mechanism to

equitably divide the marital assets, then chancellors may conduct their analysis under the

Ferguson factors.” Id. at 241 (¶34) (citing Haney v. Haney, 907 So. 2d 948, 955 (¶26) (Miss.

2005)). “[I]f the alimony, lump-sum or otherwise, is awarded subsequent to the equitable

distribution of the marital assets, then chancellors must conduct their analysis under the

Armstrong factors.” Id. (citing Lauro v. Lauro, 847 So. 2d 843, 848 (¶13) (Miss. 2003)).

¶24. The chancellor awarded lump-sum alimony to equalize the property distribution. In

his judgment, the chancellor stated that the lump-sum-alimony award was “to even the

division of marital property.” Therefore, an analysis of the Ferguson factors was required.

As previously discussed, the chancellor did not complete a sufficient Ferguson analysis, and

the failure to do so is reversible error.

¶25. The chancellor committed error when he failed to properly distribute the marital

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Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).

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property and award lump-sum alimony. Therefore, this Court reverses this portion of the

chancellor’s judgment and remands the case for a finding in accordance with the Ferguson

factors to determine the distribution of all marital assets and debts, as well as to determine

the need and proper amount of any lump-sum-alimony award, if necessary.3

II. Whether the chancellor properly awarded periodic alimony.

¶26. Morgan next contends that the chancellor erroneously awarded Melanie $500 per

month in periodic alimony. “[P]eriodic alimony should only be considered if the chancellor

determines that a spouse has suffered a disparity of income and standard of living following

the equitable division of the marital assets.” George v. George, 22 So. 3d 424, 428 (¶6)

(Miss. Ct. App. 2009) (citation omitted). A chancellor must determine an award of alimony

based on the following factors provided in Armstrong:

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

3
We also note that although the chancellor ordered Morgan to pay “$38,000.00 as
lump sum alimony to even the division of marital property,” that was not the effect of the
order. The chancellor’s order awarded Morgan marital property worth $53,500 and Melanie
marital property worth $15,600.80. Therefore, the award of lump-sum alimony essentially
reversed the parties’ positions, leaving Morgan with $15,500 and Melanie with $53,600.80.
This mathematical error would also require reversal. See Hearn v. Hearn, 191 So. 3d 129,
132-33 (¶¶11-15) (Miss. Ct. App. 2016) (citing Jackson v. Jackson, 172 So. 3d 179, 180-82
(¶¶5-8) (Miss. 2015)).

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 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.

Armstrong, 618 So. 2d at 1280.

¶27. The chancellor made specific findings as to several of the Armstrong factors. The

chancellor found that Morgan made $43,200 per year, compared to Melanie’s $1,050 a month

before child support. As to the second factor, the parties were in good health, and Morgan

enjoyed a higher earning capacity. Further, the chancellor found Melanie had a greater need

as the sole custodian of the children, Morgan had reduced his obligations through

bankruptcy, and the marriage had lasted twelve years. The chancellor also found that

Morgan had dissipated his 401(k). Lastly, the chancellor addressed the tax consequences of

alimony. Though the chancellor did not address the age of the parties or their standards of

living, these omissions do not invalidate the chancellor’s findings under Armstrong.

¶28. The income disparity between Morgan and Melanie is an important factor in awarding

periodic alimony. See Davis v. Davis, 832 So. 2d 492, 499 (¶23) (Miss. 2002) (“A

significant disparity in earning capacity is a major factor in the determination of a periodic

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alimony award.”). This finding, coupled with the other Armstrong factors, weighs in favor

of the chancellor’s award of periodic alimony.

¶29. But a chancellor must not only determine the appropriateness of a periodic-alimony

award, but also decide on the amount of the award. “In determining the amount of support

payable to the wife, a chancellor must consider ‘not only reasonable needs of [the] wife but

also [the] right of [the] husband to lead as normal a life as reasonably possible with a decent

standard of living.’” Davis, 832 So. 2d at 497 (¶19) (quoting Massey v. Massey, 475 So. 2d

802, 803 (Miss. 1985)). Here, the chancellor did not take Morgan’s standard of living into

account. While the $500 monthly payments alone might be considered reasonable, the

chancellor did not assess the award in relation to Morgan’s payments for child support, lump-

sum alimony, and attorney’s fees. Thus, the amount of the award of periodic alimony should

be considered in light of the amounts of the other payments on remand.

¶30. The chancellor made a sufficient finding in the record under the Armstrong factors to

support an award of periodic alimony. However, the chancellor failed to consider the

reasonable needs of Morgan and Melanie when determining the amount of the award.

Therefore, this issue is affirmed as to the finding of a need for periodic alimony, but

remanded for consideration of the amount of the award. The chancellor, on remand, should

consider Morgan’s other financial obligations and his ability to maintain a decent standard

of living.

III. Whether the chancellor erred in awarding attorney’s fees.

¶31. As a final point of contention, Morgan argues that the chancellor erred in awarding

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Melanie $10,000 in attorney’s fees. Morgan maintains that the chancellor failed to consider

his ability to pay Melanie’s attorney’s fees and Melanie’s ability to pay her own attorney’s

fees.

¶32. “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)).

¶33. “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).

¶34. The court in McKee stated: “[T]he 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.

Id.

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¶35. The chancellor stated that “[a]ttorney’s fees, according to the McKee factors[,] are

necessary in this case, and $10,000.00 is [a] reasonable [amount of] attorney’s fees to be paid

at the rate of $500.00 per month until paid.” The chancellor made no specific findings

regarding the individual McKee factors. However, the lack of a factor-by-factor analysis

under McKee 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.”).

¶36. Regardless of any specific findings under McKee, the chancellor must determine

whether Melanie was unable to pay her attorney’s fees.

[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.
The supreme court has also held that consideration of the relative worth of the
parties, standing alone, is insufficient. The record must reflect the requesting
spouse’s inability to pay his or her own attorney’s fees.

Owen v. Owen, 22 So. 3d 386, 393 (¶25) (Miss. Ct. App. 2009) (quoting Bates v. Bates, 755

So. 2d 478, 482 (¶11) (Miss. Ct. App. 1999)). The chancellor, nonetheless, failed to make

such a finding in the record.

¶37. Melanie testified that she incurred nearly $11,808.57 in attorney’s fees due to

Morgan’s contempt4 and extended litigation over three years. Melanie also testified that she

could not pay her attorney’s fees, but she provided no further details. The record additionally

4
While the chancellor found Morgan in contempt, he did not appear to assess the
attorney’s fee award based on the contempt. Rather, the chancellor explicitly stated he
awarded attorney’s fees using the McKee factors, which are not required when attorney’s
fees are awarded based on a party’s contempt. See Huseth v. Huseth, 135 So. 2d 846, 860
(¶45) (Miss. 2014).

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indicates that Melanie’s monthly income before child support and alimony was

approximately $1,050, but there was no indication of her expenses that would result in her

inability to pay. Without a specific finding as to Melanie’s financial situation or her inability

to pay her attorney’s fees, the chancellor’s award was improper.

¶38. Further, any property and alimony that Melanie receives after this case is remanded

should be considered in light of her ability or inability to pay her attorney’s fees. See

Hammers v. Hammers, 890 So. 2d 944, 958 (¶55) (Miss. Ct. App. 2004) (finding ability to

pay after considering the equitable distribution of property and alimony award). Therefore,

the chancellor must make specific findings as to Melanie’s financial situation, and her ability

to pay her attorney’s fees after the equitable distribution of marital property and alimony

awards are decided. See Ladner v. Ladner, 49 So. 3d 669, 673 (¶17) (Miss. Ct. App. 2010)

(“On remand, the chancery court must examine [the wife’s] financial situation and make

specific findings as to [the wife’s] ability to pay her attorney’s fees.”) This issue is reversed

and remanded.

¶39. Because the chancellor did not make the appropriate findings under the Ferguson

factors for the distribution of marital property and the award of lump-sum alimony as part

of that distribution, this Court reverses and remands this case for findings consistent with this

opinion. This Court also reverses and remands this case for a finding under the McKee

factors of an attorney’s fee award amount, if appropriate. Lastly, this Court affirms the

chancellor’s assessment of periodic alimony, but remands the award for a determination of

the proper amount, taking into account Morgan’s other financial obligations and his ability

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to maintain a decent standard of living.

¶40. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF
THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND
ONE-HALF TO THE APPELLEE.

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

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