Jason Castle v. Mary Castle

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-CA-00213-COA

JASON CASTLE APPELLANT

v.

MARY CASTLE APPELLEE

DATE OF JUDGMENT: 12/20/2016
TRIAL JUDGE: HON. JERRY G. MASON
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CHANCERY
COURT
ATTORNEY FOR APPELLANT: DAVID BRIDGES
ATTORNEY FOR APPELLEE: MARK A. CHINN
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED: 10/16/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

FAIR, J., FOR THE COURT:

¶1. After fifteen years of marriage, Mary and Jason Castle separated as a result of Jason’s

adultery. The Castles later consented to an irreconcilable differences divorce, agreed on all

issues related to custody of their three children, and agreed that the chancery court would

decide all issues related to the equitable distribution of the marital estate, alimony, child

support, and attorney’s fees. After a three-day trial, the chancery court divided the marital

estate and awarded Mary an “equalization payment” of $584,608.41, lump-sum alimony of

$1,600,000, periodic alimony of $6,500 per month, and child support of $3,200 per month.

On appeal, Jason argues that the chancery court erred by classifying a house as a marital

asset. The house was intended to serve as the marital home but was still under construction
at the time of the separation, and Jason argues that it was his separate property. Jason also

argues that the awards of lump-sum alimony and periodic alimony are excessive. After

review of the record, we find the chancellor acted within his discretion. Thus, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Mary and Jason married in 1999 in Tuscaloosa, Alabama. At the time, Mary was

twenty-three years old, and Jason was twenty-five. During their marriage, the Castles had

a son (born in 2001) and two daughters (born in 2002 and 2004).

¶3. Prior to the marriage, Mary had finished one semester of community college and had

worked at a daycare and as a clerk at a video rental store. During the marriage, Mary was

a stay-at-home mother and did not work outside the home. The Castles’ daughters both have

dyslexia and attend regular tutoring outside of school. The daughters also have health issues

that require them to see out-of-town doctors. In addition, all three Castle children are

involved in extracurricular activities.

¶4. Jason began working for his father in the pipeline industry when he was fifteen years

old, and he went to work in the industry full-time when he was eighteen years old. In the

early years of the parties’ marriage, Jason worked for several different pipeline construction

companies operating heavy equipment. Eventually he was promoted to foreman. In 2005,

Jason began working for his father’s company, Progressive Pipeline Inc. (PPI), as a

superintendent, and PPI later promoted him to construction manager.

¶5. Jason’s father, Mike Castle Sr., and two partners formed PPI in 1999. PPI built

2
transmission pipelines throughout the southeastern United States. Eventually, Mike Sr.

bought out his two partners.

¶6. In 2008, Mike Sr. formed Progressive Pipeline Holdings LLC (PPH), a holding

company with seven subsidiaries. Mike Sr. created PPH for estate planning purposes

because his three sons could not have afforded to purchase an interest in PPI. At the time it

was formed, PPH had little or no book value because it had no significant assets or contracts.

Mike Sr. gave Jason and another son, Mike Jr., each a twenty-percent non-voting interest in

PPH. He gave his youngest son, Zachary, a ten-percent non-voting interest. Mike Sr.

retained a fifty-percent voting interest.

¶7. In 2008 and 2009, PPI subcontracted many of its projects to PPH so that PPH could

establish a work history, obtain bonding, satisfy state licensing requirements, and develop

client relationships. By 2012, PPH had essentially taken over the operations of PPI. Jason

worked as a construction manager for PPH. Between 2010 and 2015, Jason’s reported

earnings from salary and wages ranged from $148,620 to $214,575, with an average of about

$180,000.

¶8. In addition to his base salary, Jason also received cash distributions from PPH. As the

only voting member of PPH, Mike Sr. decides whether and when to make such distributions.

Jason received cash distributions from PPH of $1,500,000 in 2012; $1,000,000 in 2014; and

$2,000,000 in 2015. Jason’s K-1 statements for those years show that his share of PPH’s

ordinary business income was $8,107,749 in 2012, $3,887,401 in 2013, $2,865,024 in 2014,

3
and $7,343,995 in 2015. PPH pays quarterly tax estimates for Jason based on his share of

PPH’s income. Jason’s share of the PPH’s income is reportable income to Jason. However,

Jason has no legal right to insist on distributions from PPH. And most of Jason’s PPH

earnings remain with PPH as retained earnings subject to distribution by his father but

nevertheless remaining Jason’s property subject to distribution by Mike Sr. At trial, Mike

Sr. testified that PPH would not make any distributions in 2016 because business had slowed

due to a drop in oil prices. From the $22,204,169 credited to Jason’s PPH account for 2012

through 2015, he received distributions totaling $4,500,000 in addition to the approximately

$720,000 he received in salary for the four years leading up to and including the year of

separation and filing for divorce.

¶9. Jason and Mary agreed to appoint Annette Herrin to appraise Jason’s interest in PPH.

Herrin is a certified public accountant, and she testified at trial as an expert in business

valuation. Herrin testified that as of December 31, 2014, PPH’s net value was $49,429,463,

and PPH’s net income for 2014 was $34,555,828. Herrin valued Jason’s twenty percent non-

voting interest in PPH at $5,930,000. Herrin testified that she discounted Jason’s interest in

the company because it was a closely-held family business controlled by Mike Sr.

¶10. In 2008, the Castles moved into a four-bedroom, three-bath home in Collinsville. In

2011, Jason and his brother Zachary formed Castle Holdings LLC to acquire 103.5 acres of

land near Meridian, where they planned to build homes. Mike Sr. or PPI loaned Castle

Holdings approximately $222,525, which covered most or all of the purchase price for the

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land. Mike Sr. testified that he did not expect his sons to repay the loan and considered the

money a gift.

¶11. Both Jason and Zachary built homes on the property. Jason first built a house at 209A

Mt. Horeb Road (the 209A house). The 209A house is a two-bedroom, two-bathroom house

with approximately 1,800 square feet. Jason and Mary agreed that the 209A house was

worth $277,884. At trial, Mary referred to the 209A house as “the barn.” She testified that

they built the 209A house primarily to store “Jason’s toys” and only intended to live in it a

short time while they built their “forever home” nearby on the same property. The Castles

moved into the 209A house in 2012, at which point they sold their Collinsville home for

$365,000.

¶12. In May 2014, Zachary signed a warranty deed conveying 56.6 acres of the Castle

Holdings property to Jason and Mary as joint tenants with full rights of survivorship. Jason

testified that he did know about the conveyance until after Mary filed for the divorce.

Zachary did not testify, and there is no explanation in the record as to why the property was

conveyed from Castle Holdings to Jason and Mary at that time.

¶13. The same month that the property was conveyed to them as joint tenants, Mary and

Jason began construction of a second home at 209B Mt. Horeb Road (the 209B house). The

209B house, which was intended to be the Castles’ “forever home,” is located only about 600

or 700 feet away from the 209A house. The 209B house is an 8,237-square-foot, three-story,

five-bedroom, seven-bathroom house with an elevator. Mary and Jason agreed that the 209B

5
house is worth $1,500,000. Mary referred to the 209B house as “the castle.”

¶14. Mary testified that she spent almost two years planning and designing the 209B house.

According to Mary, she “picked out almost every detail of the whole house,” modified some

of the floor plan, and “made changes to [the] layouts of some of the rooms.” Mary testified

that she spent countless hours selecting brick, stone, cabinetry, carpet, tile, stains, lighting,

hardware, bathroom finishes, and appliances for the home. She also designed an elaborate

staircase in the home.

¶15. Mary testified that Jason chose some of the floors, the roof, and an air conditioner,

designed a “safe room” for his guns, and helped design a bar area in the basement. However,

Mary testified that she “did everything else” as far as designing the home. She testified she

interacted with their contractor on an almost daily basis. Jason agreed that Mary helped to

design the house, but he disapproved of many of her choices, which he considered

extravagant. Originally, the account used to pay for construction of the 209B house was a

joint account, and Mary wrote most of the checks for the construction. The account was

funded with Jason’s distributions from PPH.

¶16. In November 2014, Mary discovered that Jason was having an affair. The Castles

separated because of Jason’s affair. They briefly reconciled, but Mary later discovered that

Jason had not ended the affair. They separated again, and in April 2015 Mary filed for

divorce on the grounds of adultery or, in the alternative, irreconcilable differences.

¶17. In May 2015, the parties consented to an irreconcilable differences divorce. They

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subsequently agreed to share joint legal custody of their three minor children, that Mary

would have physical custody of all three children, and that Jason would have visitation

pursuant to an agreed schedule. They also agreed that the chancery court would decide all

issues related to child support, equitable distribution, alimony, and attorney’s fees.

¶18. In May 2015, the chancery court entered an agreed temporary order. The parties

agreed and the order provided that Jason would continue to pay the mortgage, insurance,

taxes, and utilities on the 209A house; maintain health insurance for Mary and the children

and pay all of their uninsured healthcare expenses; continue to pay a number of other

expenses and bills for Mary and the children; and pay “temporary family support” of $1,000

per week to Mary. In March 2016, the temporary order was amended to increase the

temporary family-support payment to $1,300 per week.

¶19. After the couple separated, Jason continued to live in the 209A house with Mary and

the children until December 2015. Jason then moved into the “castle” at 209B in January

2016. Mary and the children never lived in that house.

¶20. A three-day trial on all remaining issues was held in August 2016. Jason admitted to

the affair during trial. On December 20, 2016, the chancery court entered a memorandum

opinion and final judgment, which granted the parties an irreconcilable-differences divorce

and resolved all issues submitted to the court for decision.

¶21. The chancery court ruled that Jason’s interest in PPH was non-marital property

because it was essentially a gift to Jason from Mike Sr. For the same reasons, the court ruled

7
that distributions from PPH that Jason deposited in separate bank accounts were Jason’s

separate property. However, the court found that the 209B house was marital property. The

court granted Jason the exclusive use and possession of the 209B house but awarded Mary

twenty-five percent of its value in the equitable distribution of the marital estate.

¶22. Because the court awarded Jason substantially more marital property than Mary, the

court ordered Jason to make an “equalization payment” to Mary of $584,608.41.1 In

addition, because Jason had significantly more separate property than Mary—consisting

primarily of his interest in PPH—the chancery court awarded Mary lump-sum alimony of

$1,600,000. The court stated that the equalization payment and lump-sum alimony would

allow Mary to continue to stay at home with the couple’s children, buy a home without a

mortgage, and pay off her credit card debt. The court also awarded Mary permanent periodic

alimony of $6,500 per month and child support of $3,200 per month.

¶23. Jason filed a timely motion for a new trial and reconsideration. He argued, among

other things, that the court erred by classifying the 209B house as marital property and by

awarding Mary an equalization payment, lump-sum alimony, and periodic alimony. He

argued that no alimony was warranted or, in the alternative, that the amounts awarded were

excessive. On February 9, 2017, the chancery court denied Jason’s motion except to amend

1
The chancery court determined that Mary should receive twenty-five percent of the
value of the 209B house ($375,000) and fifty percent of the value of all other marital
property ($397,787.22). The equalization payment was necessary because Mary received
marital property with a total value of only $188,718.81. Jason received marital property with
a total value of $2,107,021.63.

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the payment schedule for lump-sum alimony.2 Jason then filed a timely notice of appeal.

ANALYSIS

¶24. “When reviewing a decision of a chancellor, this Court applies a limited abuse of

discretion standard of review.” Mabus v. Mabus, 890 So. 2d 806, 810 (¶14) (Miss. 2003).

We “will not disturb the chancellor’s opinion when supported by substantial evidence unless

the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an

erroneous legal standard was applied.” Id. at 819 (¶53). However, “[a] chancellor’s

conclusions of law are reviewed de novo.” Lowrey v. Lowrey, 25 So. 3d 274, 285 (¶26)

(Miss. 2009).

¶25. We review the chancellor’s equitable distribution of the marital estate “to ensure that

the chancellor followed the appropriate standards and did not abuse his discretion.” Inge v.

Inge, 227 So. 3d 1185, 1188 (¶8) (Miss. Ct. App. 2017) (quoting McKnight v. McKnight, 951

So. 2d 594, 596 (¶6) (Miss. Ct. App. 2007)). Similarly, “[a]limony awards are within the

discretion of the chancellor,” and we will not reverse unless the chancellor’s findings of fact

are manifestly erroneous, the award is so inadequate or excessive as to be an abuse of

discretion, or the chancellor “applied an erroneous legal standard.” Armstrong v. Armstrong,

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

¶26. As noted above, Jason argues that the chancery court erred by classifying the 209B

2
The chancery court ordered Jason to make six semiannual payments $266,666.67,
with the first payment due on June 15, 2017.

9
house as a marital asset. He also argues that the award of lump-sum alimony and periodic

alimony were erroneous and excessive. We address these issues in turn below.

I. The 209B House

¶27. “[W]hen dealing with property in divorce,” the chancery court must first “determine

what assets are marital and what assets are nonmarital.” Carter v. Carter, 98 So. 3d 1109,

1112 (¶8) (Miss. Ct. App. 2012). Our Supreme Court has “define[d] marital property for the

purpose of divorce as being any and all property acquired or accumulated during the

marriage.” Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). Such assets “are marital

assets and are subject to an equitable distribution by the chancellor.” Id. However,

“[p]roperty acquired in a spouse’s individual capacity through an inter-vivos gift or

inheritance is separate property, even if such property is acquired during the marriage.”

Rhodes v. Rhodes, 52 So. 3d 430, 441 (¶40) (Miss. Ct. App. 2011).

¶28. “The law presumes that all property acquired or accumulated during marriage is

marital property.” Stroh v. Stroh, 221 So. 3d 399, 409 (¶27) (Miss. Ct. App. 2017). The

party claiming that the asset is separate, nonmarital property has the burden of proof and

must overcome the presumption that the asset is marital property. Id.; Rhodes, 52 So. 3d at

441 (¶42). After the chancery court determines whether each of the party’s assets are marital

or nonmarital, the court must apply the Ferguson factors to equitably divide the marital

estate. Carney v. Carney, 201 So. 3d 432, 440 (¶27) (Miss. 2016).

¶29. In this case, the chancery court ruled that Jason failed to rebut the presumption that

10
the 209B house was marital property. On appeal, Jason argues that the 209B house was

separate property because it was built on land that was originally purchased by Castle

Holdings LLC with money that, in substance, was a gift from Mike Sr. In addition, the

construction account was funded by Jason’s distributions from PPH, which the chancery

court deemed separate property. Finally, Jason emphasizes that the 209B house was not

completed until after Mary filed for divorce, so Mary never lived in the home.

¶30. It is true that a “gift made to one spouse during the marriage remains the separate

property of that spouse.” Allgood v. Allgood, 62 So. 3d 443, 447 (¶13) (Miss. Ct. App. 2011)

(emphasis added). However, “[g]ifts may be made to either party to a marriage or to the

marital union itself.” Henderson v. Henderson, 757 So. 2d 285, 291 (¶26) (Miss. 2000).

“Whether a gift was made to one or both spouses is determined by the donor’s intent.”

Deborah H. Bell, Mississippi Family Law § 6.03[1][a], at 139 (2d ed. 2011). And, “absent

clear proof otherwise,” gifts to the marital union “are assets of the marital estate.”

Henderson, 757 So. 2d at 291 (¶26).

¶31. As discussed above, Jason and Zachary formed an LLC to acquire the property at

issue, and the LLC subsequently conveyed the property to Jason and Mary as joint tenants

with rights of survivorship. Jason claims that he was unaware that Zachary, acting on behalf

of their LLC, conveyed the property to Mary and him. In any event, the formal titling of

property is not determinative of its marital or separate character; the chancery court must

determine whether, in substance, the property should be treated as marital or separate. See

11
Rhodes, 52 So. 3d at 437 (¶22).

¶32. The evidence at trial showed that Jason acquired the property specifically because he

and Mary planned to build their marital home on the property. The Castles built the smaller

209A house as a temporary house, and the family lived there for over two years prior to the

separation. During that time, they began construction on the much larger 209B house, only

600 or 700 feet away from the 209A house. The Castles never intended for the 209A house

to be the permanent marital home and always intended to move into the 209B house as soon

as it was finished. Moreover, although Jason complained that Mary spent extravagantly on

the design and furnishings of the 209B house, he acknowledged that Mary was extensively

involved in the design and construction of the house. There is no dispute that the 209B house

would have been the marital home but for Jason’s continued infidelity, which led to the

breakdown of the marriage and the divorce.

¶33. The chancery court found that the land on which the Castles built the 209B home was

essentially “a gift from [Mike Sr.] through Castle Holdings[] LLC,” and the land was

conveyed to Mary and Jason as joint tenants with rights of survivorship in 2014, when the

Castles had been married for over fourteen years.3 The court also found that “Mary and

Jason jointly participated in the planning and designing of [the house] as their anticipated

marital home.” The court acknowledged that the house was constructed using distributions

3
The chancery court’s opinion correctly stated that “title to the property does not
determine the issue of marital or non-marital property.”

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from PPH, which the court deemed Jason’s separate property, but the court found that “Mary

contributed her time and effort in the construction of the house before construction started

and after construction started.” On these facts, the court found that “Jason failed to rebut the

presumption that the [land and home] are marital property.” Therefore, the court found that

the 209B house was marital property subject to equitable distribution.

¶34. We cannot say that the chancery court clearly or manifestly erred by finding that the

209B house was marital property. To begin with, although Jason emphasizes that the land

on which the house was built was essentially a “gift” from Mike Sr., that is not the end of the

inquiry. The gift was made three years before the parties separated, and the clear purpose

of the gift was to allow Jason and Mary to build a new home for their family. Under the

circumstances, the chancery court properly treated the gift as a gift to the marital union, not

as a gift of separate property to Jason alone. See Watson v. Watson, 882 So. 2d 95, 107-08

(¶¶61-65) (Miss. 2004) (holding that contributions of one spouse’s parents to the marital

home were “assets of the marital estate” “absent clear proof otherwise”) (quoting Henderson

v. Henderson, 757 So. 2d 285, 291 (¶26) (Miss. 2000)).

¶35. Moreover, it is clear that the parties both contributed time and efforts to the planning,

design, and construction of the 209B house. The chancery court found that most or all of the

funds used to build the house had been Jason’s separate property; however, when Jason

contributed those funds toward the construction of the marital home, the funds lost their

separate character. See Singley v. Singley, 846 So. 2d 1004, 1011-12 (¶¶19-21) (Miss. 2002).

13
The chancery court had discretion to give Jason credit for his monetary contributions to the

home, and the court exercised that discretion by awarding Jason seventy-five percent of the

value of the home. See id. But the fact that the home was built with separate funds does not

automatically make it separate property. Stroh, 221 So. 3d at 409 (¶30) (finding that a

property was marital property even though it was purchased with separate funds).

¶36. Finally, we agree with the chancery court that it is not dispositive that Mary never

moved into the 209B house. Jason and Mary planned to move into the 209B house as their

marital home, and Mary and the children lived in the 209A house—only 600 or 700 feet

away—throughout the construction of the 209B house. The 209A house is on the same

property as the 209B house, and it was only intended to serve as a temporary house for the

family. It appears that the Castles planned that the 209A house would have served as a guest

house or for storage of “Jason’s toys” once the 209B house was complete. There is no

dispute that the 209A house is marital property, and we see no reason that the adjacent 209B

house should or must be treated differently.

¶37. As stated above, we begin with a presumption “that all property acquired during

marriage is equitable property.” Stroh, 221 So. 3d at 409 (¶27). On the facts of this case,

we cannot say that the chancery court clearly or manifestly erred by finding that Jason failed

to rebut that presumption with respect to the 209B house.

II. Lump-Sum Alimony

¶38. Jason next argues that the chancery court abused its discretion by awarding Mary

14
$1,600,000 in lump-sum alimony, payable in six semiannual installments of $266,666.67.

This Court recently summarized the characteristics and permissible purposes of an award of

lump-sum alimony:

Lump-sum alimony . . . is a fixed and irrevocable amount, used either as
alimony or as a part of property division. It may be payable as a single, lump
sum (as its name implies) or in fixed periodic installments. Lump-sum
alimony has been described as a means of adjusting financial inequities that
remain after property division. It is intended as an equalizer between the
parties to serve equity amongst them completely once and for all. When lump-
sum alimony is awarded as a mechanism to equitably divide the marital assets,
then chancellors may conduct their analysis under the Ferguson factors.
However, when a chancellor awards lump-sum . . . alimony after equitably
dividing the estate, the chancellor should consider the Armstrong factors.

Stroh, 221 So. 3d at 413 (¶45) (citations, internal quotation marks, and brackets omitted).

¶39. In this case, the chancery court awarded lump-sum alimony in connection with the

equitable distribution of marital assets and the “equalization payment” awarded to Mary.

Thus, the chancery court appropriately considered the Ferguson4 factors, as well as the

Cheatham5 factors. The chancery court found “that only an equalization payment of marital

property [would be] inequitable and unreasonable” on the facts of this case. The court

explained that, even after the equalization payment, the value of the marital assets distributed

to Jason would greatly exceed the value of the assets distributed to Mary. In addition, the

court emphasized that Jason had separate assets valued at $6,828,268.36, including his

interest in PPH, bank accounts with combined balances of approximately $725,000, a boat,

4
Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994).
5
Cheatham v. Cheatham, 537 So. 2d 435, 438 (Miss. 1988).

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a tractor, and other personal property. In contrast, Mary owned no material separate assets.

The court found that the disparity in the parties’ financial positions was “substantial” and that

an award of lump-sum alimony would decrease, but not totally negate, the need for periodic

alimony. The court further found that the equalization payment and an award of $1,600,000

in lump-sum alimony would “provide[] Mary with the opportunity to purchase the house of

her choice for the price of her choice,” “eliminate any monthly house mortgage (note)

payment,” and “provide Mary with monthly income even if she decide[d] to remain at home”

with the Castles’ three minor children.

¶40. We find no manifest error or abuse of discretion in the chancery court’s award of

lump-sum alimony. Our Supreme Court has stated that when a chancery court considers a

request for lump-sum alimony, “the single most important factor undoubtedly is the disparity

of the separate estates.” Cheatham, 537 So. 2d at 438; accord, e.g., McKissack v.

McKissack, 163 So. 3d 975, 982 (¶26) (Miss. Ct. App. 2015). The chancellor obviously

considered this factor in his analysis. Under Ferguson/Cheatham, the chancellor also

considered, among other factors, the length of the parties’ marriage, Mary’s lack of work

experience outside the home, her lack of any present income, and her need for financial

security. See Cheatham, 537 So. 2d at 438. The chancellor also properly found that an

award of lump-sum alimony would reduce the need for periodic alimony. Based on the

factors that the chancellor properly considered, the award of lump-sum alimony was not

manifestly erroneous or an abuse of discretion.

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¶41. Jason also argues that the award should be reversed because he will have to “sell

everything” in order to make the equalization payment and lump-sum alimony payments

ordered by the chancery court. We disagree, as there is substantial evidence that Jason can

make these payments. To begin with, as noted above, Jason had over $725,000 in cash in

separate bank accounts. In addition, in the four years prior to the divorce, Jason received a

total of $4,500,000 in distributions from PPH. Jason argues that Mike Sr. determines

whether to make distributions, and distributions could decrease or even stop due to market

forces beyond his control. However, Jason received a distribution of at least $1,000,000 in

each of three of the four years prior to the divorce, and PPH earned steady and significant

profits from 2011 forward. Thus, it was reasonable for the chancery court to anticipate Jason

would continue to receive distributions from PPH. Moreover, Jason now owns two

unencumbered houses valued at $1,500,000 and $277,884, respectively, which he can borrow

against. See Inge, 227 So. 3d at 1189-90 (¶¶14-15) (“[W]hen the marital home is

unencumbered by a mortgage, the equity in the home may provide a means for one party [to

make cash payments to the other].”). Jason also owns two boats, a motorcycle, three four-

wheelers, two ATVs, a tractor and disc, and two retirement accounts. Given Jason’s

considerable assets and sources of income, there is substantial evidence that the payment

schedule ordered by the chancery court is reasonable and within Jason’s means.

III. Periodic Alimony

¶42. “In matters of equitable distribution and alimony, [an appellate court] enjoys only

17
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.” Gutierrez v. Gutierrez,

233 So. 3d 797, 806 (¶19) (Miss. 2017) (quoting Henderson, 757 So. 2d at 289-90 (¶19)).

¶43. “Alimony is considered only after the marital property has been equitably divided and

the chancellor determines one spouse has suffered a deficit.” Lauro v. Lauro, 847 So. 2d

843, 848 (¶13) (Miss. 2003). “When reviewing the reasonableness of an alimony award, an

appellate court will ‘consider the totality of the chancellor’s awards upon the divorced

parties, including the benefit to the payee spouse and the concomitant burden placed upon

the payor spouse.’” Arrington v. Arrington, 80 So. 3d 160, 167 (¶23) (Miss. Ct. App. 2012)

(quoting Brooks v. Brooks, 652 So. 2d 1113, 1121 (Miss. 1995)). It is well established that:

The purpose of permanent alimony is to be a substitute for the marital-support
obligation. The award of permanent periodic alimony arises from the duty of
the husband to support his wife. We also have said that the husband is
required to support his wife in the manner to which she has become
accustomed, to the extent of his ability to pay. To update our language:
Consistent with Armstrong, a financially independent spouse may be required
to support the financially dependent spouse in a manner in which the
dependent spouse was supported during the marriage, subject to a material
change in circumstances.

Rogillio v. Rogillio, 57 So. 3d 1246, 1250 (¶11) (Miss. 2011) (emphasis added).

¶44. After awarding Mary an equalization payment and lump-sum alimony (totaling

$2,184,608.41), the chancellor addressed Mary’s request for periodic alimony. He analyzed

post-divorce income and its sources available to both Jason and Mary, as well as the style of

18
living to which both he and Mary had become accustomed during their fifteen years together.

In considering evidence relevant to the Armstrong factors, the chancellor found the

following:

Mary has represented her needs pursuant to the Exhibit 1 Expense Statement.
She did not work outside the home after she and Jason married. Mary and
Jason established a comfortable standard of living including the accumulation
of marital property and an anticipated $1,500,000[] house. This standard of
living for Mary was interrupted by Jason’s inappropriate actions. The
evidence does not develop any tax consequence, except that pursuant to
income tax returns, alimony is an adjustment (deduction) for [Jason], and
income for [Mary].

In Exhibit 1, Mary estimated that her post-divorce basic expenses would increase to nearly

$11,000 a month. The chancellor found that the equalization payment and lump-sum

alimony payment would “provide[] Mary with the opportunity to purchase the house of her

choice for the price [o]f her choice and eliminate any monthly house mortgage (note)

payment[,]” while also providing Mary with a monthly income, should she choose to stay at

home. The chancellor also found, however, that Mary needed monthly periodic alimony to

maintain her accustomed standard of living, particularly if $600,000 for purchase of an

unencumbered house were removed from income-producing funds.

¶45. Mary’s annual personal expenses, as reflected in her Rule 8.05 disclosure, total in

excess of $128,000—including estimated down payments and monthly interest, tax, and other

expenses for purchase of a home and maintenance of a reserve for emergencies rather than

for a lump-sum purchase of a house. Toward those expenses and others consistent to the

style of life to which she and the children have become accustomed, Mary will annually be

19
able expend alimony of $78,000 (less taxes), and the income (also less taxes), generated by

her $2,184,608.41 cash-marital-property award. Marital personalty awarded to her is not

productive of income and, most likely, will require her payment of insurance, maintenance,

storage, and like costs. Safe investment of the cash award in certificates of deposit at two

percent would produce, at most, $44,000. Further, as noted by the chancellor, under the tax

law in effect when the final judgment was entered, Mary will be required to report and pay

state and federal income taxes on the periodic alimony of $78,000 she receives while Jason

may deduct the same $78,000 from his taxable income. The $78,000 he deducts should save

him $34,788 in federal and state income taxes and should result in a net cost to him of

$43,212, more or less, for years prior to 2018 and only 2.6 percent more in subsequent years.

¶46. In comparing the financial circumstances in which the parties find themselves, and

in considering the style of living to which they have become accustomed in context of

whether or not a deficit exists, we note that Jason will be living in a $1,500,000 house while

Mary will live, with their three children, in a house worth $600,000. Mary will be receiving

payments that she is required to report to the Internal Revenue Service as income of $6,500

a month (but costing Jason $3,601 a month, more or less, after taxes). Jason’s taxable

income obligations, however, for the five years preceding their divorce were based on the

average of a nearly four million dollars a year in taxable income,6 with the majority of his

6
The record contains Jason’s 1040 tax forms for the years 2010 – 2014. His adjusted
gross income for each year reflected earnings of $511,192 in 2010; $1,295,305 in 2011;
$7,560,748 in 2012; $3,812,484 in 2013; $2,741,889 in 2014. The record does not contain

20
income taxes paid by PPH.

¶47. It is not difficult to understand how the chancellor recognized a deficit between Jason

and Mary in their projected future ability to continue living in the style to which they became

accustomed. For the foregoing reasons, we find the chancellor’s alimony award was

supported by substantial evidence in the record and well within his discretion.

¶48. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES AND WESTBROOKS, JJ., CONCUR.
TINDELL, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.
GREENLEE, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT
SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY
IRVING, P.J., CARLTON, GREENLEE AND TINDELL, JJ.

WILSON, J., CONCURRING IN PART AND DISSENTING IN PART:

¶49. I concur in Parts I and II of the lead opinion, which affirm the chancery court’s

finding that the 209B house is marital property and the chancery court’s award of $1,600,000

in lump-sum alimony. I respectfully dissent as to Part III, which affirms an additional award

of $6,500 per month in periodic alimony.

¶50. “Alimony is considered only after the marital property has been equitably divided and

the chancellor determines one spouse has suffered a deficit.” Lauro v. Lauro, 847 So. 2d

843, 848 (¶13) (Miss. 2003). When we refer to a “deficit,” we do not mean that one party

is left with fewer assets or less income than the other. Layton v. Layton, 181 So. 3d 275, 282

Jason’s 1040 form 2015, but his 2015 W-2 form reflected a gross pay of $200,062.94, and
his 2015 Schedule K-1 form reflected a business income of $7,343,995.

21
(¶17) (Miss. Ct. App. 2015). “Rather, the question is whether the spouse seeking alimony

is left ‘with a deficit with respect to having sufficient resources and assets to meet his or her

needs and living expenses.’” Id. (quoting Jackson v. Jackson, 114 So. 3d 768, 777 (¶22)

(Miss. Ct. App. 2013)). “If after the equitable distribution of the marital property, both

parties have been adequately provided for, then an award of alimony is not appropriate.”

Cosentino v. Cosentino, 912 So. 2d 1130, 1132 (¶10) (Miss. Ct. App. 2005) (“Cosentino I”).

¶51. Before considering Mary’s request for periodic alimony, the chancery court awarded

her a total of $2,184,608.41 in lump-sum payments, consisting of an “equalization payment”

of $584,608.41 and lump-sum alimony of $1,600,000.7 The court found that the equalization

payment and lump-sum alimony would (1) allow Mary to purchase a $600,000 home without

a mortgage and thereby “eliminate” any monthly mortgage payment; (2) enable Mary to pay

off all of her credit card debt and thereby “eliminate” her monthly payments on that debt; and

still (3) “provide Mary with monthly income even if she decides to remain at home.” The

court also found that “Mary was indefinite about the basis of some of [her remaining]

estimated expenses.” However, the court still found that Mary should be granted $6,500 per

month in periodic alimony.

7
The award of lump-sum alimony in this case should be viewed as part of the
equitable distribution since it was based on the Ferguson factors, rather than the Armstrong
factors, and preceded the court’s consideration of periodic alimony. See Davenport v.
Davenport, 156 So. 3d 231, 241 (¶34) (Miss. 2014).

22
¶52. Mary estimated post-divorce living expenses for herself alone8 of $10,736 per month.

However, Mary’s estimate included both a monthly mortgage payment of $3,432 and credit

card payments of $707 per month. As noted above, the chancery court specifically found that

the equalization payment and lump-sum alimony would enable Mary to “eliminate” both of

those expenses. Once those two expenses are eliminated, Mary’s alleged expenses drop to

$6,597 per month. To be clear, these are the total expenses that Mary claims—accepted at

face value with no further reductions. In other words, this is the amount that Mary herself

claimed was necessary to maintain the life “to which she has become accustomed.” Rogillio

v. Rogillio, 57 So. 3d 1246, 1250 (¶11) (Miss. 2011).

¶53. In summary, the stated intent and practical effect of the chancery court’s judgment

was to allow Mary to buy a $600,000 home with no mortgage, pay off all of her other debt,

and still have over $1,500,000 remaining and available to her. Nonetheless, the chancery

court then made an additional award of periodic alimony ($6,500 per month) that—by

itself—is essentially equal to Mary’s remaining claimed living expenses ($6,597 per month).

¶54. The award of periodic alimony should be reversed and the case remanded for the same

basic reasons that this Court reversed the award in Cosentino, supra. In Cosentino, the

chancery court awarded the wife marital assets valued $2,615,815 and $7,000 per month in

periodic alimony. Cosentino I, 912 So. 2d at 1131 (¶¶1-6). On appeal, this Court reversed

8
Mary estimated additional expenses for the parties’ children, but the chancery court
ordered Jason to pay $3,200 per month in child support and maintain health and dental
insurance for the children.

23
the award of periodic alimony because the chancery court did not adequately explain the

reasons or need for alimony in light of the substantial assets awarded to the wife. Id. at 1132-

33 (¶¶9-12). In remanding the case for further proceedings, we emphasized that “[i]f after

the equitable distribution of the marital property, both parties have been adequately provided

for, then an award of alimony is not appropriate.” Id. at 1132 (¶9).

¶55. On remand in Cosentino, the chancery court again awarded $7,000 per month in

periodic alimony. Cosentino v. Cosentino, 986 So. 2d 1065 (Miss. Ct. App. 2008)

(Cosentino II). The husband appealed, and on appeal this Court again reversed, stating:

“The chancellor did not address whether [the wife’s] property settlement of more than two

million dollars eliminated her need for alimony. The chancellor did not articulate any reason

why [the wife] needed more than the $2,615,815 that she was awarded.” Id. at 1068 (¶9).

We emphasized that “alimony should be awarded only when the division of the marital estate

leaves one party in a deficit,” and we held that the chancery court’s findings were insufficient

to show that there was any deficit or need for an award of alimony. Id. We also stated that

“the chancellor’s finding that [the wife] ‘could easily outlive’ her share of the marital estate

[was] speculative at best.” Id. at 1069 (¶10). We stated that “[t]he proper question before

the chancellor was whether [the wife] needed alimony at the time of the property division,

not whether she [might] need it at some time in the future.” Id. Therefore, we reversed and

rendered the award of periodic alimony. Id.

¶56. Similar to Cosentino, the chancery court in this case “did not articulate any reason

24
why [Mary] needed more than the [$2,184,608.41] that she was awarded.” Cosentino II, 986

So. 2d 1068 (¶9). The chancery court did not explain how the division of the marital estate,

the equalization payment, and lump-sum alimony left Mary “in a deficit”—much less a

“deficit” essentially equal to her claimed living expenses. Id. Stated differently, the

chancery court did not consider that it had already awarded Mary “sufficient resources and

assets to meet” a significant part, if not all, of her future “needs and living expenses.”

Jackson, 114 So. 3d at 777 (¶22). Here, Mary’s “resources and assets” obviously include

lump-sum alimony and the earnings on those funds,9 but the chancery court’s award of

periodic alimony failed to account for those available resources. As in Cosentino I, we

should reverse the award of periodic alimony and remand the case for further consideration

of this issue, taking into account Mary’s available resources and assets.

¶57. The above discussion analyzes the chancery court’s decision on its own terms. The

chancery court appropriately recognized that the equalization payment and lump-sum

alimony would allow Mary to buy a $600,000 home with no mortgage and “eliminate” her

9
Mary’s available resources also include her own earning capacity. Mary did not
work outside of the home during the marriage, she has limited work experience and no
college degree or specialized training, and she is now a single mother to three children (ages
fifteen, fourteen, and twelve at the time of the divorce). However, Mary was only forty years
old at the time of the judgment, and the chancery court found that she is in good health. A
vocational expert testified that, without additional training, Mary was qualified for positions
that paid $8.85 to $12.68 per hour. He testified that, with additional training, she could earn
more. The chancery court stated that the equalization payment and lump-sum alimony would
“provide Mary with monthly income even if she decide[d] to remain at home.” However,
the chancery court did not make any findings as to the extent to which Mary could or should
be expected to obtain employment at some point in the future.

25
high-interest credit card debt. This would reduce Mary’s claimed expenses to $6,597 per

month—and still leave her with at least $1,500,000 before the issue of periodic alimony is

even considered.

¶58. In contrast, the lead opinion distorts the analysis of this issue by starting with the

unwarranted assumption that Mary’s annual expenses will “total in excess of $128,000.”

Ante at ¶45. The lead opinion arrives at this inflated figure by including both a $3,432

monthly mortgage payment and $707 in minimum monthly payments on credit card debts.

But, as discussed above, the chancery court specifically found that Mary could “eliminate”

both of those expenses when it awarded her an equalization payment and lump-sum alimony

totaling $2,184,608.41. Nonetheless, and without giving any reason, the lead opinion

assumes exactly the opposite—that Mary will have a $3,432 monthly mortgage payment.

And the lead opinion further assumes that, even after receiving more than two million dollars

in lump-sum payments, Mary will continue, month after month, to make only minimum

payments on high-interest credit card debts.

¶59. In addition to inflating Mary’s expenses, the lead opinion misapplies the concept of

a “deficit” for purposes of alimony. The lead opinion finds “a deficit between Jason and

Mary” by “comparing” their respective “financial circumstances.” Ante at ¶¶46-47. The lead

opinion states that “Jason will be living in a $1,500,000 house while Mary lives, with their

three children, in a house worth $600,000.” Ante at ¶46. But, as discussed above, Mary does

not have a “deficit” just because Jason has a bigger house or a greater earning capacity. “If

26
the equitable division of property leaves neither spouse with a deficit with respect to having

sufficient resources and assets to meet his or her needs and living expenses, then no alimony

award is appropriate.” Jackson, 114 So. 3d at 777 (¶22) (emphasis added). Any award of

alimony must be based on the needs and living expenses of the spouse requesting it. If that

spouse is “adequately provided for, then an award of alimony is not appropriate.” Cosentino

I, 912 So. 2d at 1132 (¶10). A court cannot award alimony solely because the payor is

wealthy enough to pay it.

¶60. The judgment of the chancery court may not strike anyone as unjust. The parties

consented to an irreconcilable differences divorce, but Jason’s adultery appears to have been

the cause. Moreover, Jason has been brought into a successful family business. If the

business’s past performance is any indication, Jason should be able to pay alimony of $6,500

per month without much difficulty. For these reasons, the result in this case may not stir

feelings of outrage or great sympathy for Jason. However, under prevailing Supreme Court

precedent, adultery and earning capacity are not a basis for awarding $6,500 per month in

permanent alimony if the recipient spouse is already “adequately provided for.” Therefore,

I respectfully concur in part and dissent in part.

IRVING, P.J., CARLTON, GREENLEE AND TINDELL, JJ., JOIN THIS
OPINION.

27