Mary K. Lawson Henderson v. Howard Hugh Henderson

IN THE SUPREME COURT OF MISSISSIPPI
NO. 1998-CA-01171-SCT
MARY K. LAWSON HENDERSON
v.
HOWARD HUGH HENDERSON

DATE OF JUDGMENT: 06/17/1998
TRIAL JUDGE: HON. WILLIAM JOSEPH LUTZ
COURT FROM WHICH MADISON COUNTY CHANCERY COURT
APPEALED:
ATTORNEYS FOR LISA B. MILNER
APPELLANT:
TAMMY M. VOYNIK
ATTORNEY FOR APPELLEE: JOHN ROBERT WHITE
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART; REVERSED IN PART AND
REMANDED - 4/13/2000
MOTION FOR REHEARING
FILED:
MANDATE ISSUED: 5/4/2000

EN BANC.

MILLS, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. This appeal arises from the June 17, 1998, decree of the Madison County Chancery Court ordering the
equitable distribution of Mary and Howard Henderson's property incident to their divorce. This case was
initially tried in 1994, at which time Mary was granted a divorce from Howard on the ground of
uncondoned adultery. She was given custody of their minor child, awarded assets valued well in excess of
$350,000, and granted periodic alimony in the amount of $683 per month. In contrast, Howard was
awarded assets valued at under $20,000. The Court of Appeals affirmed the chancery court's order with
regard to the distribution of assets and alimony. This Court, however, having granted Howard's petition for
writ of certiorari, found that the chancery court failed to classify assets as marital or nonmarital, failed to
make on-the-record determinations of the economic issues presented, and failed to consider the equitable
distribution of the marital assets in conjunction with the award of alimony. Accordingly, the case was
reversed and remanded on all economic issues.

¶2. The matter was retried in 1998, whereupon the chancellor, having classified all assets as marital or
nonmarital, awarded Mary's mother one third of the net equity in the marital domicile and divided the
remainder of the marital estate equally between Mary and Howard. Neither party was awarded periodic
alimony.

¶3. Aggrieved by the chancellor's order, Mary appeals to this Court asserting the following issues as error:

I. Whether the chancery court erred in granting Howard one third of the net equity in the
marital domicile when the majority of the construction costs were contributed by Mary's
mother.

II. Whether the amount awarded to Howard, totaling $91,640.90, was excessive and
inequitable under the circumstances of the case.

III. Whether the chancery court erred in failing to grant Mary permanent periodic alimony
and ordering her to repay amounts received as alimony pursuant to the 1994 judgment.

Howard, on cross-appeal, offers one assignment of error:

IV. Whether the chancery court erred in awarding Mary's deceased mother a one third
equitable interest in the marital domicile.

STATEMENT OF FACTS

¶4. The underlying facts of this case are largely undisputed and are laid out in the Court's original decision,
Henderson v. Henderson, 703 So. 2d 262 (Miss. 1997). They are summarized here, along with
subsequent events relevant to this appeal.

¶5. Mary and Howard Henderson were married in 1981 and divorced in 1994. One child was born to the
marriage, Ryan Lawson, born July 21, 1982. At the time of the divorce, Howard was earning
approximately $65,000 per year as a parts and service director at Patty Peck Honda, and Mary was
earning approximately $35,000 as a public school teacher.

¶6. During their first year of marriage, Howard and Mary lived in a house trailer owned by Howard. The
following year, they moved into a traditional home on Springdale Road. Mary's father, J.B. Lawson,
contributed approximately $32,000 to the purchase and improvement of this house. The Springdale Road
house was eventually sold, and the proceeds, which totaled $44,743, were invested in the construction of a
3,600 square foot house at 123 Carriage Lane in Madison, Mississippi.

¶7. Mary and Howard began construction on this new home in 1991. The testimony of the parties indicates
that the Carriage Lane home cost approximately $235,000 to build. Of this amount, Mary's mother, Lula
Lawson, contributed approximately $120,000.

¶8. Both parties testified at trial that Mrs. Lawson made this contribution with the expectation of living in the
Carriage Lane home under the care of Mary and Howard until her death. The house was built handicap
accessible, and handrails were installed throughout the home to accommodate Mrs. Lawson.

¶9. In July of 1992, Mary, Howard, Ryan, and Mrs. Lawson moved into the house on Carriage Lane with
Mrs. Lawson occupying a separate apartment attached to the house. In October of 1993, Howard and
Mary separated. Howard left the marital home, and shortly thereafter, Mary filed for divorce on the ground
of uncondoned adultery and, alternatively, irreconcilable differences.
¶10. On October 12, 1994, in a corrected final judgment of divorce, Chancellor Ray H. Montgomery
granted Mary a divorce from Howard on the ground of uncondoned adultery. Mary was awarded custody
of Ryan, and Howard was ordered to pay $560 per month in child support.

¶11. Mary was granted full use and ownership of the Carriage Lane home which had a net equity of
approximately $200,000; a Medley/Schwab account, valued at $46,000; an A..B. Culbertson account,
valued at $19,212.21; her teacher's retirement account, valued at $36,000; her annuity account, valued at
approximately $4,800; her credit union account, valued at $5,062.12; a checking account valued at $700;
and a 1991 Dodge Caravan, valued at approximately $8,000. She was also awarded $683 per month in
periodic alimony and $4,352.92 in attorney's fees and expenses.

¶12. Howard was awarded a pontoon boat, valued between $5,000 and $6,000; a 401K plan, valued at
$1,300; an A.B. Culbertson account, valued at $9,000; a bicycle rack; a stereo receiver; a turntable; tapes;
and a watercolor painting.

¶13. Aggrieved, Howard appealed. The Court of Appeals affirmed in part and reversed and rendered in
part. Henderson v. Henderson, 691 So.2d 1037 (Miss. Ct. App. 1996) (table).

¶14. This Court on writ of certiorari affirmed as to the granting of the divorce but reversed and remanded
on all economic issues, finding that the chancellor failed to make the requisite findings of fact with regard to
the classification of assets as marital or non-marital, failed to consider the equitable distribution of the
marital assets in conjunction with the award of periodic alimony, and failed to make the requisite on the
record determinations of the economic issues. Henderson, 703 So.2d at 262.

¶15. On remand, Chancellor Lutz, in an order dated June 17, 1998, made specific determinations regarding
the classification of the assets as marital and non-marital and made awards accordingly. He specifically
granted the following assets to Mary: 1) possession of the marital home; 2) one third of the net equity of the
marital home at the time of the divorce or $66,633.33; 3) PERS account in the amount of $36,000; 4)
Medley/Schwab account of $48,000 (a gift from her parents that was never commingled); 5) Culbertson
account of $19,212 (also a gift from her parents that was never commingled); 6) $4800 in her Tax
Sheltered Annuity; 7) $5,062 in the Credit Union Account; 8) $700 in her checking account; 9) the Dodge
van valued at $8,000; 10) the home furnishings valued at $5,000; 11) monthly child support in the amount
of $600; and 12) life insurance policy covering Howard in the amount of $70,000.

¶16. Howard received the following assets: 1) one third of the net equity of the marital home at the time of
the divorce or $66,633.33; 2) $13,453.57 as property settlement; 3) the pontoon boat valued at $5,500;
4) his 401K valued at $1,300; 5) Culbertson Account valued at $9,000; and 6) his checking account in the
amount of $3,000.

¶17. The most significant of the chancellor's findings was his determination that one third of the net equity in
the Carriage Lane home was nonmarital property belonging to Mrs. Lawson. As Mrs. Lawson had died in
the interim between trials, the award was made to her estate. Mary is Mrs. Lawson's sole heir; as such, the
award to Mrs. Lawson went to her. In dividing the marital estate, the chancellor awarded the marital home
to Mary with Howard receiving one third of its net equity. Of the remaining marital assets, Mary received
$45,707.14 and Howard received $18,800. To compensate for this discrepancy, Mary was required to
pay Howard $13,453.57 as a property settlement.
¶18. In considering the issue of alimony, Chancellor Lutz found that Mary was entitled to $400 per month in
rehabilitative alimony for 36 months totaling $14,400, but denied her request for permanent periodic
alimony. Chancellor Lutz further ordered Mary to repay the $25,954 she received in periodic alimony
pursuant to Chancellor Montgomery's 1994 divorce order. Offsetting this amount against the amount of
rehabilitative alimony to which he found her entitled, Chancellor Lutz ordered Mary to repay Howard $11,
554.

STANDARD OF REVIEW

¶19. In matters of equitable distribution and alimony, the Court enjoys only limited powers of review.
Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and
their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in
the record. Hammett v. Woods, 602 So.2d 825, 827 (Miss. 1992). In other words, "[t]he Court will not
disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an
erroneous legal standard was applied." Bell v. Parker, 563 So.2d 594, 596-97 (Miss. 1990).

DISCUSSION

¶20. The appropriate process by which marital assets should be distributed pursuant to divorce is well
settled.

First, the character of the parties' assets, i.e., marital or nonmarital, must be determined . . . The
marital property is then equitably divided, employing the Ferguson factors as guidelines, in light of
each parties' nonmarital property. Ferguson, 639 So.2d at 928. If there are sufficient marital assets
which, when equitably divided and considered with each spouse's nonmarital assets, will adequately
provide for both parties, no more need be done. If the situation is such that an equitable division of
marital property, considered with each party's nonmarital assets, leaves a deficit for one party, then
alimony based on the value of nonmarital assets should be considered.

Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss. 1994). In support of the order, the chancellor must
also provide specific findings of fact with regard to property acquisition, classification of assets, and
distribution of the marital estate. Henderson v. Henderson 703 So. 2d 262, 264 (Miss. 1997). In light of
the foregoing criteria, the assignments of error regarding the equitable distribution of property proffered by
Howard and Mary are addressed below. Howard's issue on cross-appeal will be addressed first.

I. Whether the chancellor committed manifest error in awarding Mary's deceased mother a
one third equitable interest in the marital domicile.

¶21. The chancellor below found that Mary's mother contributed approximately $116,000 to the
construction of the house on Carriage Lane, and that, in return, she expected to live there as long as her
health permitted. Both parties testified at trial that it was understood that Mrs. Lawson would live with them
in the Carriage Lane home and that they would care for her until her death. Mrs. Lawson was, in fact, living
in the Carriage Lane home at the time of the divorce in 1994, and continued to live there until her death.

¶22. Based on these findings, the chancellor concluded that Mrs. Lawson gave the money to the
Hendersons in a "bargained for exchange" and, therefore, had a viable interest in the marital domicile. In
light of this conclusion, he awarded the estate of Mrs. Lawson $66,633.33, which represented one third of
the net equity of the home.
¶23. On cross-appeal to this Court, Howard complains that the chancellor committed manifest error in
awarding Mary's mother an equitable interest in the home. He requests that the interest allocated to Mrs.
Lawson by the chancellor be returned to the marital estate and divided equally between him and Mary.
Howard submits that it was never contemplated that Mrs. Lawson would receive any ownership interest in
the house. Rather, he argues, she furnished the money for the construction of the house in exchange for the
assurance that she could live there and be taken care of for the remainder of her life.

¶24. This contention is clearly supported by the record. Both parties testified that Mrs. Lawson did not
expect to own any part of the house. She expected only to live there under Mary and Howard's care until
her death. Howard argues that as Mrs. Lawson was able to live in the Carriage Lane home until she died,
any obligation owed to her has been satisfied. In response to Howard's complaint, Mary argues that Mrs.
Lawson did, in fact, intend to procure an interest in the Carriage Lane home. She contends that Mrs.
Lawson's monetary contributions to the construction of the house were made in the anticipation that the
house would belong to her as well. Mary's argument is without merit. At trial both parties testified with
respect to Mrs. Lawson's expectations in the Carriage Lane home. Their testimony clearly illustrates that
neither Howard, Mary, nor her mother ever anticipated that Mrs. Lawson would receive an ownership
interest in the house in exchange for her money. The house was titled to Mary and Howard as joint tenants
and was intended by all parties to be the Hendersons' marital domicile. Mrs. Lawson was not named in the
deed, nor was any written document presented evidencing any ownership in the house in her. Mrs. Lawson
was able to live in the house on Carriage Lane until her death, and as such, her estate has no further claim
upon the property.

¶25. In light of the above, we hold that the chancellor improperly considered Mrs. Lawson's contributions
to the Carriage Lane home and that his award of one third of the net equity in the home to Mrs. Lawson
runs contrary to the facts contained in the record. However, this does not end our analysis.

¶26. The record shows that the chancellor considered Mrs. Lawson's $116,000 contribution in determining
what share of the marital domicile was due to both parties under the first Ferguson factor. Ferguson v.
Ferguson, 639 So.2d 921, 928 (Miss. 1994). He determined that the $116,000 was Mary's contribution
alone. This was also error. Mrs. Lawson's $116,000 contribution was not a gift to her daughter. It was the
consideration in an agreement between Mrs. Lawson and the Hendersons. It was procured by both Mary
and Howard. We have stated that all assets "acquired or accumulated during the marriage" are marital
assets subject to equitable distribution. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss. 1994).
Therefore, Mary alone did not directly or indirectly contribute $116,000 to the acquisition of the marital
home. Gifts may be made to either party to a marriage or to the marital union itself. Under facts such as
those before us, we can only conclude that the contribution of Mary's father, on the one hand, and the
contributions bargained for from Mrs. Lawson on the other, were both made to the marital union of the
parties, rather than to an individual partner of the marriage. Therefore, such assets, absent clear proof
otherwise, are assets of the marital estate. To the contrary, in this case, we find the separate investment
accounts given by her parents to Mary to be part of her separate estate since these assets clearly were
given to her individually and were never commingled with marital assets. Both Mary and Howard
contributed this amount together.

¶27. Therefore, it was error for the chancellor to consider Mrs. Lawson's contribution as a factor weighing
in Mary's favor alone in determining what share of the marital home Mary and Howard would each receive.
¶28. Having established these points, we must now consider the overall distribution of the marital estate to
determine equity and fairness.

II. Whether the chancellor erred in granting Howard $66,633.33 or one third of the net
equity in the marital domicile when the bulk of the construction costs were contributed by
Mary's mother.

¶29. Mary argues on appeal that the chancellor committed manifest error in awarding Howard one third of
the net equity in the Carriage Lane house considering that Mary's mother paid for the bulk of construction.
Mary contends that Howard received a windfall in that his contribution to the building cost was insignificant
relative to that made by Mrs. Lawson. Based on this fact, Mary urges this Court to reverse the chancellor's
decision and remand for a more equitable distribution.

¶30. Consistent with our findings in issue I above that the chancellor should not have awarded a one third
interest in the marital home to Mrs. Lawson, nor should he have taken into consideration Mrs. Lawson's
contribution to the building of the marital home as favoring Mary alone, and after weighing the factors
established in Ferguson, we now hold that Howard should receive a one half share of the net equity in the
home.

¶31. Testimony at trial established that the Carriage Lane home cost approximately $235,000 to build and
was financed as follows: the $116,000 consideration from Mrs. Lawson; the $44,743 netted from the sale
of their house on Springdale Road; and a construction loan for an additional $70,000. Testimony further
established that Howard participated to some extent in building the house in that he assisted in constructing
the frame, built all the decks, and did what he could to minimize building costs.

¶32. Howard lived in the Carriage Lane house for one year and two months. During this time, Howard and
Mary paid roughly $9,500 in house payments from their joint account. Howard did not contribute to the
house payments beyond the couple's separation.

¶33. The chancellor is afforded broad discretion in effecting the equitable distribution of the marital estate,
but he is required to consider, where applicable, the following factors:

(1) the economic and domestic contributions by each party to the marriage, (2) the expenditures and
disposal of the marital assets by each party, (3) the market value and emotional value of the marital
assets, (4) the value of the nonmarital property, (5) tax, economic, contractual, and legal
consequences of the distribution, (6) the elimination of alimony and other future frictional contact
between the parties, (7) the income and earning capacity of each party, and (8) any other relevant
factor that should be considered in making an equitable distribution.

Bullock v. Bullock, 699 So. 2d 1205, 1211 (Miss. 1997) (quoting Love v. Love, 687 So. 2d 1229,
1231-32 (Miss. 1997).

¶34. In the case sub judice, the chancellor, in applying the foregoing guidelines, found that both Mary and
Howard worked during the marriage. Each made significant financial contributions to the support of the
family and neither spouse unnecessarily expended marital funds. Consistent with the testimony at trial, the
chancellor acknowledged that Howard contributed more financially to the family unit than Mary. However,
he found that Mary provided a significant amount of domestic work and was a strong maternal presence in
the family, while Howard was a strong father figure and a "jack of all trades" around the home. He
recognized that the Carriage Lane house had a market value of $285,000, as stipulated by the parties. He
also recognized that Mary had a strong emotional attachment to the home. The chancellor further found that
Mary, unlike Howard, had a separate vested retirement plan and a significant separate estate of
approximately $79,066.86.

¶35. Additional information in the record indicates that Howard and Mary both worked during the
marriage. At the time of the 1994 trial Howard was earning a gross income of approximately $65,000;
Mary was earning about $35,400. The couple maintained a joint account into which their incomes were
deposited, and both incomes were used to pay the family's bills. At the time of the 1998 trial, Mary's
income had increased to approximately $42,000; Howard's income had remained the same.

¶36. The record also indicates that during the marriage, Mary took voluntary deductions from her monthly
check which went into her own savings, a salary protection plan, and a cancer policy in addition to her
health insurance. In contrast, all of Howard earnings, excepting mandatory deductions, were deposited in
their joint account and used to meet the family's needs. He had no separate savings plan nor significant
retirement account. Virtually all of Howard's earnings went into the building and maintenance of the home
while Mary enjoyed substantial deductions for her separate savings and retirement accounts.

¶37. It is clear that each party made significant contributions to the acquisition of the marital home.
However, in determining the equitable distribution of marital assets we also remember our analysis in
Trovato v. Trovato, 649 So. 2d 815 (Miss. 1995) wherein we found that a spouse is not per se entitled to
a share of a marital asset proportionately equal to her economic contribution to the asset's acquisition.
Rather, economic contribution to the acquisition of a marital asset is but one of many factors that must be
considered. Furthermore, we stated in Hemsley that the economic contributions of individual partners
should be considered of equal value regardless of the ostensible disparity:

We, today, recognize that marital partners can be equal contributors whether or not they both are at
work in the marketplace.

....

We assume for divorce purposes that the contributions and efforts of the marital partners, whether
economic, domestic or otherwise are of equal value.

Hemsley, 639 So.2d at 915. Thus, the fact that Howard made a larger financial contribution than Mary to
the acquisition of the marital home does not necessarily warrant awarding him a greater share. The
chancellor found and the record reflects that a weighing of all the other Ferguson factors yields a balance
between both Mary and Howard. Therefore, the net equity at the time of the divorce of the marital home,
which the chancellor determined to be $199,900, should be divided equally between the two. We do not
divide the current net equity of the home or considered growth in value subsequent to the divorce since
Mary has been living in, maintaining and paying the mortgage on the house since the divorce. Mary should
benefit from any appreciation in the value of the house since that time.

III. Whether the total amount awarded to Howard was excessive.

¶38. Mary also argues that the aggregate award given Howard, which came to approximately $99,000,
was excessive given the circumstances of the case. In addition to one third of the net equity in the marital
home, valued at $66,633.33, the chancellor awarded Howard marital assets valued at $18,800 and
ordered Mary to pay Howard $13,543.57 as a property settlement. Mary claims that this award is
excessive and amounts to manifest error. The crux of Mary's argument is that the chancellor failed to
consider properly the Ferguson factors when distributing the property. We hold that Mary's claim is
without merit for the same reasons as stated above.

¶39. The chancellor made specific findings with regard to the Ferguson factors, and those findings are
supported by the record. Of particular weight is the fact that Mary had a significant separate estate and a
vested retirement, while Howard had no separate estate and little retirement funds. Therefore, we hold that
the amount awarded to Howard was not excessive.

II. Whether the lower court erred in failing to grant Mary permanent periodic alimony and
ordering her to repay amounts received as alimony pursuant to the 1994 judgment.

¶40. The final issue before the Court is whether the chancellor committed manifest error in denying Mary's
request for permanent periodic alimony and ordering her to repay the alimony she received from Howard
pursuant to the 1994 order. She argues that the chancellor failed to consider properly the discrepancy in the
incomes and expenses of the parties, their respective ages, and Howard's adultery.

¶41. "Whether to award alimony, and the amount to be awarded, are largely within the discretion of the
chancellor." Magee v. Magee, 661 So.2d 1117, 1122 (Miss. 1995) (quoting Cherry v. Cherry, 593
So.2d 13, 19 (Miss. 1991)). While this is true, the chancellor must still consider the following factors when
evaluating the need for alimony:

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.
Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993) (citing Hammonds v. Hammonds, 597
So.2d 653, 655 (Miss.1992)). The chancellor made specific findings on each of the above listed factors.
Those findings relevant to Mary's assignment of error are set forth below.

¶42. With regard to the income and expenses of the parties, the chancellor found the following:

Mary's 1994 budget was reviewed carefully and several expenditures were found to be excessive or
unnecessary. In reviewing Mary's deductions the Court finds that the deductions for an annuity,
savings bonds and credit union are voluntary and will be added back to Mary's income. This
increases Mary's monthly income to $1,807.63. The Court finds the following expenses excessive as
listed in Mary's financial statement and makes the following adjustments: telephone $50 dollars,
clothing $150, entertainment $200, incidentals $100, school tuition $0, Ryan's school supplies $25,
Ryan's incidentals $25, Ryan's sports activities, $50. Mary's reasonable monthly expenses at the time
of trial were $2,830.32.

Howard's net income at the time of trial was $3,387.29. The Court finds his listed expenses to be
reasonable and total $1,910.73.

¶43. With regard to Howard's adulterous relationship, the chancellor found that Howard had admitted
committing adultery but testified that the adultery occurred after the separation and was not the cause
thereof. This testimony, apparently, was had during the first trial in 1994, as there is no evidence of it in the
1998 record.

¶44. With regard to the parties' ages, the chancellor found that Mary and Howard were 47 and 43,
respectively.

¶45. In denying Mary's request for permanent periodic alimony, the chancellor recognized that Howard
made more money than Mary, but noted that Mary had a substantial separate estate and a vested
retirement. Howard had no separate estate and had been unable to save for retirement during the marriage.
Howard would need to aggressively save in order to provide for his future. The chancellor strongly urged
Mary to sell the house on Carriage Lane, noting that a 3,600 square foot home was an extravagance for
two people. With her share of the equity in the home, she could afford to buy a smaller, more efficient home
out right, thus eliminating her monthly house payment and realizing additional savings on the upkeep of a
smaller home. The chancellor also found that Mary could increase her income by obtaining a masters
degree in administration. Based on this he awarded her $14,400 in rehabilitative alimony. This amount was
offset against the $25,954 she had received in periodic alimony, leaving a deficit of $11,554, which Mary
was required to repay Howard.

¶46. We find that the chancellor properly considered the requisite factors in considering the issue of alimony
and that his decision to deny Mary permanent periodic alimony was well within the chancellor's power and
discretion in such cases. We therefore hold that Mary failed to show that the chancellor committed manifest
error. The chancellor's order with regard to alimony is affirmed.

CONCLUSION

¶47. In conclusion, we find that the Carriage Lane home was marital property to be divided equally
between Howard and Mary at its value at the time of the divorce. The remaining assets should be awarded
as follows:
Mary Henderson: 1) possession of the marital home; 2) one half of the net equity of the marital home at
the time of the divorce or $99,950; 3) PERS account in the amount of $36,000; 4) Medley/Schwab
account of $48,000 which; 5) Culbertson account of $19,212; 6) $4800 in her Tax Sheltered Annuity; 7)
$5,062 in the Credit Union Account; 8) $700 in her checking account; 9) the Dodge van valued at $8,000;
10) the home furnishings valued at $5,000; 11) monthly child support in the amount of $600; 12) life
insurance policy covering Howard in the amount of $70,000.

Howard Henderson: 1) one half of the net equity of the marital home at the time of the divorce or $99,
950; 2) $13,453.57 as property settlement; 3) the pontoon boat valued at $5,500; 4) his 401K valued at
$1,300; 5) Culbertson Account valued at $9,000; 6) his checking account equaling $3,000.

¶48. We hold that an equitable lien in favor of Howard should be imposed against the Carriage Lane house
for the value of the amount Mary owes Howard on repayment of alimony ($11,554) plus Howard's share
of the net equity of the Carriage Lane house ($99,950). We remand to the lower court for such further
orders as the chancellor may deem proper to resolve these issues in a manner consistent with this opinion.

¶49. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

PRATHER, C.J., BANKS, P.J., WALLER AND COBB, JJ., CONCUR. SMITH, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PITTMAN, P.J.
McRAE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

SMITH, JUSTICE, DISSENTING:

¶50. In my view, the majority allows a windfall to Howard regarding the distribution of the proceeds
concerning the couples' home. Here, it is clear that Mary through large financial contributions from her
mother, made significantly a larger contribution to the overall value of the home, thus equal distribution is an
abuse of discretion. I respectfully disagree and accordingly dissent.

PITTMAN, P.J., JOINS THIS OPINION.

McRAE, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶51. While I agree that the majority is correct in dividing the marital home equally between Howard and
Mary, it errs in using the value of the home at the time of the divorce instead of present day value. Such an
error provides Mary Henderson with a tremendous windfall at the expense of her ex-husband. The house
should be divided equally at present value with Mary being credited for the house payments, or a portion
thereof, she made after separation. Originally the chancellor divided the interest of the house using 1994 as
the time to establish the value of the house which was wrong as it should have been from the date of the
hearing. We should not set it here because we do not know if the value has since gone up or down.
Accordingly, I dissent.

¶52. Today's majority opinion focuses on the net equity of the marital home at the time of the divorce,
which the chancellor determined to be $199,900. Since then property values have skyrocketed in Madison
County, Mississippi. Such an oversight by the majority produces a windfall of at the very least $50,000 for
Mary Henderson. If today's values were used, the house and property would probably be valued at
approximately $350,000 and at the very least $325,000 in June, 1998, thus creating a greater windfall.

¶53. The majority recognizes that since present day value of the house is not being considered, Mary will
benefit from any appreciation in the value of the house. It allows this based on the fact that Mary has been
paying the mortgage on the house for the past six years. Such a proposition is ludicrous when considering
that Mary would have been forced to pay rent regardless of where she lived and taking into account what
Howard contributed during the marriage. If this Court chooses to consider Mary's recent mortgage
payments which have taken place after the divorce settlement, then it must surely look to the present value
of the house.

¶54. An examination of the amount of money each party made during the marriage demonstrates that
Howard contributed almost $200,000 more than his wife did, even were we to include the money given by
Mrs. Lawson. During the marriage, Howard earned $492,630 and his wife contributed a total of $300,485
including the money given by her parents. One of the factors to be used in dividing the marital assets is
substantial contribution to the accumulation of the property. Ferguson v. Ferguson, 639 So.2d 921, 928
(Miss. 1994).

¶55. The chancellor found that Howard not only played a part in building the house financially, but he also
took an active role in the construction of the house in order to cut costs including assisting in frame work,
building all of the decks and making sure that the house was handicap accessible. The chancellor also found
that Howard was a strong father and a "jack of all trades" around the home. In fact, Mary herself testified
that Howard did his best to provide for the family including; taking care of a number of things around the
house.

¶56. Even the majority concedes that during their marriage:

Mary took voluntary deductions from her monthly check which went into her own savings, a salary
protection plan, and a cancer policy in addition to her health insurance. In contrast, all of Howard
earnings, excepting mandatory deductions, were deposited in their joint account and used to meet the
family's needs. He had no separate savings plan nor significant retirement account. Virtually all of
Howard's earnings went into the building and maintenance of the home while Mary enjoyed broad
deductions for her separate savings and retirement accounts.

Howard deserves an equal share of the house he helped build, at today's market value.

¶57. As to issue IV, while taking into consideration the Armstrong factors, Armstrong v. Armstrong,
618 So.2d 1278, 1280 (Miss. 1993), the chancellor was correct in refusing to grant Mary permanent
periodic alimony. In fact, one wonders why Mary was granted alimony in the first place. At the first trial,
Mary was awarded $600 a month in child support and an additional $400 in alimony for 36 months. All of
this despite the fact that Mary, in the words of the chancellor, ended up with "significant investments, home
equity and a vested retirement." Although there was some disparity in their salaries, Mary's earnings were
used for health insurance, life insurance and investments solely for her retirement, while Howard's were
deposited each month into their joint account and used to support the family. The remaining amount of
Mary's salary was also put into the joint account. The chancellor acknowledged that Howard was at a
substantial disadvantage because his income during the marriage went toward paying family and marital
expenses and he was unable to amass a substantial retirement fund as Mary had done.
¶58. The chancellor was correct to deny permanent periodic alimony and order the repayment of past
alimony as neither was warranted by the evidence. To hold that alimony "vests" as it comes due and is not
recoverable infringes on the very right and purpose of an appeal. If some time after a chancellor renders his
decision, this Court finds that alimony was erroneously granted, such a finding would be "too little, too late"
as the payments would have continuously been made throughout the appeal process. Restricting an
appellant's right to recover payments made pursuant to an improper order removes not only this Court's
power to review the trial court's decision, but makes any appeal in such a situation impractical. The issue
was kept alive, and we ordered all issues to be reviewed. The chancellor can adjust the payments, and that
is exactly what he did.

¶59. Instead of playing the role of "super chancellor," the majority should send this case back and request a
better finding of facts based on the record and allow redistribution with proper instructions to the chancellor
to use the present market value of the house. This case should be remanded for a proper hearing on the
assets at today's present value and an equal distribution, allowing Mary credit for the mortgage payments
she has made on the house since separation. One can only conclude that the majority has no faith in the trial
judge with its decision here at the appellate level and instead has chosen to play the role of "super
chancellor." Accordingly, I dissent in part.