IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-00210-COA
JOHN DAVID FOREMAN APPELLANT
v.
KRISTY LYNN FOREMAN APPELLEE
DATE OF JUDGMENT: 11/3/2015
TRIAL JUDGE: HON. PATRICIA D. WISE
COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT,
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: STEVEN ALFRED KOHNKE
TIMOTHY KEVIN BYRNE
ATTORNEY FOR APPELLEE: SHARON PATTERSON THIBODEAUX
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: GRANTED DIVORCE AND AWARDED
APPELLEE FULL CUSTODY OF THE
MINOR CHILD; $700 IN MONTHLY CHILD
SUPPORT; $3,300 IN MONTHLY PERIODIC
ALIMONY; $40,000 OF APPELLANT’S
RETIREMENT; EXCLUSIVE USE AND
POSSESSION OF THE MARITAL HOME,
HOUSEHOLD GOODS, AND 2007 FORD
EXPEDITION; AND $3,500 IN
ATTORNEY’S FEES
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART: 07/18/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
GRIFFIS, P.J., FOR THE COURT:
¶1. Kristy Lynn Foreman was granted a divorce from John David Foreman based on
uncondoned adultery. John appeals the chancellor’s distribution of the marital estate, the
alimony award, and the child-support determination.
FACTS AND PROCEDURAL HISTORY
¶2. John and Kristy were married on July 19, 1996. They had one child. After the child’s
birth, Kristy primarily stayed home while John worked. John’s job required him to spend
lengthy periods of time in China. While in China, John had an extramarital affair and
fathered a child.
¶3. John and Kristy separated around October 2012, and John later filed for divorce based
on irreconcilable differences. Kristy counterclaimed for divorce on the grounds of habitual
cruel and inhuman treatment, uncondoned adultery, and desertion. In February 2013, Kristy
filed for separate maintenance. The chancellor issued a separate-maintenance order1 granting
Kristy sole legal and physical custody of the minor child and $3,500 per month to maintain
the mortgage and pay other household bills.
¶4. On January 25, 2016, the chancellor entered a final judgment of divorce based on
uncondoned adultery. The chancellor awarded physical custody of the child to Kristy and
divided the marital property. The property division included the marital home, a timeshare
property, vehicles, and John’s retirement account. The chancellor ordered John to pay $700
per month in child support, $3,300 per month in periodic alimony, and $3,500 of Kristy’s
attorney’s fees. The chancellor also ordered that John provide twenty-four consecutive
months of health insurance for Kristy and assume all responsibility for the child’s dance and
1
The appellate record does not contain a copy of the separate-maintenance order.
This information came from the transcript where both parties, their attorneys, and the
chancellor repeatedly referenced the details of the order.
2
choir expenses. It is from this judgment that John now appeals.
STANDARD OF REVIEW
¶5. “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 [or] clearly erroneous, or [applied] an erroneous legal standard.”
Ewing v. Ewing, 203 So. 3d 707, 711 (¶9) (Miss. Ct. App. 2016) (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.” Id. (citation
omitted).
ANALYSIS
I. Whether the chancellor erred in the division of the marital estate.
¶6. First, John appeals the chancellor’s division of the marital property. He claims that
the chancellor did not classify the property as marital or nonmarital property prior to
distribution. He further contends that the chancellor failed to conduct an analysis under the
Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994), factors when dividing the marital
property. John also argues that the chancellor’s calculation of alimony was erroneous.
¶7. “When 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.” Ewing, 203 So. 3d at 711
(¶11) (citation omitted).
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A. Classification of Assets
¶8. John contends that the chancellor operated under the presumption that all of the
property at issue was marital property. He argues that the chancellor erred when she failed
to classify the property as marital before making a distribution. Kristy contends that the
chancellor was correct in her determination because all of the assets were in fact marital. She
asserts that, during the trial, neither party disputed whether the assets were marital or
nonmarital.
¶9. “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
So. 2d 909, 914 (Miss. 1994)). “Once this is done, the chancellor must [then] look to the
factors set out by the supreme court in Ferguson. . . .” Id. “The Ferguson factors are used
to determine how to divide the marital assets between the divorcing couple.” Id.
¶10. From the bench, the chancellor did not clearly classify the property as marital or
nonmarital. “However, a failure to classify property does not automatically result in
reversible error if the division of property is fair.” Branch v. Branch, 174 So. 3d 932, 944
(¶45) (Miss. Ct. App. 2015) (citation omitted). Here, the chancellor heard testimony, in
which both John and Kristy stated that they jointly owned the home, timeshare, and vehicles.
It appears the chancellor relied on this testimony; however, this is not completely clear from
the record. We do not have the benefit of the chancellor’s analysis as to how John’s
retirement account was a marital asset. As a result, we must reverse the judgment and
4
remand for a clear classification of the marital property.
B. Ferguson Factors
¶11. John argues that the chancellor failed to adequately analyze the Ferguson factors when
distributing the marital property. He further contends that the chancellor made no findings
of fact or conclusions of law to accompany the property distribution. He mainly asserts error
in the chancellor’s division of the marital residence, timeshare, and his retirement account.
¶12. After classifying property as marital, a chancellor must equitably divide the property
in accordance with the factors prescribed 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
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
5
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.
¶13. “In Ferguson, [the supreme court] established guidelines [that] chancellors must
follow when dividing marital property.” Lee v. Lee, 78 So. 3d 326, 329 (¶10) (Miss. 2012).
Additionally, in applying the factors, “chancellors must support their decisions with findings
of fact and conclusions of law.” Dickerson v. Dickerson, 34 So. 3d 637, 644 (¶24) (Miss.
Ct. App. 2010) (citation omitted). “While chancellors need not make findings as to each and
every factor set forth in Ferguson,” more is required than vague references to factors with
no indication of how each was applied. Lee, 78 So. 3d at 329 ¶10. “The failure to make
findings of fact and conclusions of law is manifest error requiring reversal and remand.” Id.
¶14. Kristy concedes that the Ferguson factors must be used when making a division of the
marital property. However, she asserts an application of the factors was not necessary
because neither party disputed any asset as nonmarital property. Further, she argues that the
chancellor did not actually divide the marital home or the timeshare. Instead, Kristy asserts
there was no property division; while she received exclusive use and possession of the
marital home, the property remains a jointly owned asset. Kristy cannot sell the home
without John’s consent, nor can John sell the timeshare without ensuring that Kristy receives
fifty percent of the net proceeds. Kristy also contends that she was entitled to fifty percent,
rather than forty-six percent, of John’s retirement account because the account was
6
accumulated entirely during the marriage.
¶15. Here, the chancellor did not clearly specify each party’s contribution to the marital
property. From the bench, the chancellor made a vague reference to the difference in John’s
and Kristy’s income statuses. This reference suggests that the chancellor sought to establish
that John was the financial provider, and Kristy, as the domestic provider, was entitled to
maintain the lifestyle she had become accustomed to living. However, the chancellor made
no specific findings of fact or conclusions of law to support this inference.
¶16. Further, the chancellor made no reference to the Ferguson factors from the bench or
in the final judgment of divorce. John argues that the property division was inequitable
because the chancellor failed to support the division of the marital property with legal
authority. We agree, and reverse and remand for an application of the Ferguson factors.
II. Whether the chancellor’s grant of periodic alimony was proper.
¶17. John next argues that the chancellor erroneously awarded Kristy $3,300 per month in
periodic alimony. He asserts the chancellor failed to identify the precise type and duration
of the support. Further, John contends that the chancellor did not consider his actual income
or expenses at the time of trial. He claims that the chancellor’s miscalculation of alimony
placed numerous financial burdens on him.
¶18. Pursuant to the separate-maintenance order John paid $3,300 per month to Kristy
for the mortgage, utilities, and other related bills. At the trial, the chancellor ordered that
John continue to pay $3,300 for the same expenses. The chancellor declined to characterize
the monthly support as alimony and instead explained her decision as follows:
7
The reason the Court specifically is ordering – it’s not necessarily in the form
of spouse’s support, but that’s what it equates to because of the difference of
income status of the parties and the fact that that’s the position, according to
the testimony, that they maintained prior to the separation. Of the [$]3,300
would be the utility expenses and all the expenses associated with everything
else. Okay?
¶19. The chancellor appeared reluctant to declare the $3,300-per-month payment to Kristy
as alimony.2 However, the chancellor pointed out that the award was made because of the
difference in the income status of the parties. Thus, we characterize the grant as periodic
alimony.
¶20. “The chancellor has broad discretion in alimony cases.” Mamiaro v. Mamiaro, 179
So. 3d 51, 54 (¶13) (Miss. Ct. App. 2015) (citation omitted). “Appellate courts need only to
determine if the chancellor’s decision was supported by credible evidence.” Id. “[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.” Ewing, 203 So. 3d at 715 (¶26) (citation omitted).
¶21. The chancellor must consider 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;
2
At trial, the chancellor also stated that when the parties’ child reached the age of
twenty-one, the $3,300 payment would be reduced by the amount of the mortgage.
However, the final judgment did not provide for such a reduction.
8
(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).
¶22. While the chancellor made no specific findings as to the Armstrong factors, it is
apparent that she relied loosely on several of the factors. The chancellor made brief
references to the income disparity between the parties and to Kristy’s standard of living.
However, the chancellor failed to make any specific findings as to either party’s income. The
chancellor also made no mention of either party’s financial statements or obligations. Thus,
it is difficult to ascertain the factors taken into consideration when granting the alimony.
¶23. John contends that the chancellor either based the alimony payment on his previous
salary or that she failed to consider his financial burdens. He claims that just prior to the trial
he was demoted at work, which drastically reduced his income. Prior to the demotion, John
9
received a base salary of $99,199.92 and a $300-per-day per diem when he worked in China.3
After the loss of management status, John provided a financial statement and pay stubs,
which reflected the loss of his bonus pay. He argues that the chancellor did not consider his
financial burdens as provided in his financial statement. John also contends that the
chancellor failed to apply the Armstrong factors when she ordered him to pay $3,300 in
alimony and $700 in child support; provide two years of health insurance for Kristy; and take
sole responsibility for the child’s dance and choir expenses, which were capped at $4,500 per
year.
¶24. While the chancellor did not specifically determine that the monthly payment was
periodic alimony, the record indicates the grant of $3,300 amounts to the equivalent of such.
Again, this is evinced by the chancellor’s notation of the income disparity between the parties
and reference to Kristy’s standard of living. The chancellor also ordered that John continue
to pay the mortgage until the child reaches the age of twenty-one. This indicates that the
alimony award would eventually be reduced by the cost of the monthly mortgage. These
factors indicate that the chancellor made a grant of alimony without fully applying
Armstrong.
¶25. “In determining the amount of support payable to the wife, a chancellor must consider
‘not only reasonable needs of wife but also [the] right of husband to lead as normal a life as
reasonably possible with a decent standard of living.’” Layton v. Layton, 181 So. 3d 275,
3
John testified that prior to being demoted at work his gross income for 2012 was
approximately $150,000. In both 2012 and 2013, respectively, John’s gross income was
approximately $170,000 each year.
10
293 (¶63) (Miss. Ct. App. 2015) (quoting Massey v. Massey, 475 So. 2d 802, 803 (Miss.
1985)). Here, it appears the chancellor did not take John’s standard of living into account.
While John’s earnings far exceeded Kristy’s income, the $3,300 monthly payments were not
reasonable. There is no evidence in the record that the chancellor assessed the award in
relation to John’s payments for child support, Kristy’s health insurance and attorney’s fees,4
and the child’s dance and choir expenses. Thus, on remand, an award of alimony should be
considered in light of John’s other payments.
¶26. “Because of the uncertainty regarding the husband’s income, [this Court has
previously] vacated and remanded the alimony award for the chancellor to make more
detailed findings of fact regarding the Armstrong factors.” Seghini v. Seghini, 42 So. 3d 635,
641 (¶17) (Miss. Ct. App. 2010) Here, the chancellor made insufficient findings in the
record and failed to adequately discuss the Armstrong factors. Most importantly, while the
chancellor made clear there were differences in John’s and Kristy’s incomes, she entered no
findings of fact or conclusions of law regarding the income considerations. Further, the
chancellor failed to discuss the reasonable needs of both John and Kristy when determining
the amount of the award. Therefore, this issue is reversed as to the indirect finding of
alimony in the amount of $3,300. The chancellor, on remand, should specify the type of
alimony, apply the Armstrong factors, and consider John’s other financial obligations along
with his ability to maintain a decent standard of living.
III. Whether the chancellor’s child-support award complies with
4
The chancellor ordered that John maintain Kristy’s medical insurance for twenty-
four months and also pay $3,500 of her legal fees.
11
Mississippi Code Annotated section 43-19-101 (Rev. 2015).
¶27. John argues that the chancellor did not properly calculate the child-support payment,
which resulted in an excessive award. He further contends that the chancellor made no
findings of fact to support deviating from the guidelines set forth in Mississippi Code
Annotated section 43-19-101. He argues that the $700-per-month child-support payment and
the $4,500 in annual support for the child’s dance and choir expenses have a cumulative
effect. He contends there was insufficient consideration of his income and financial capacity
to meet these child-support obligations.
¶28. Kristy argues that the “child support guidelines are mere guidelines and do not control
the chancellor’s award of child support.” McEachern v. McEachern, 605 So. 2d 809, 814
(Miss. 1992). Kristy applies the statutory calculations to the adjusted gross income (AGI)
of John’s base salary, and she asserts that the child-support award of $700 was actually below
the statutory-requirement amount of $1,137.37.5 This finding suggests that the chancellor
considered other factors, such as the child’s health-insurance needs and the dance and choir
expenses.
¶29. This Court has held “that without an express finding of fact as to the payor’s income,
‘it cannot be said that the [child-support] guidelines were either followed or not followed.’”
5
Kristy applied the child-support guidelines as set forth in section 43-19-101. She
calculated John’s year-to-date income, which included monies received prior to John’s
demotion. She relied on gross earnings totaling $139,080.46. From this amount she
subtracted the “nondiscretionary taxes” and came up with an AGI of $96,974.86. She then
reduced the AGI by fourteen percent, which is the applicable percentage when calculating
child support for one child. Kristy came up with an annual child-support payment for
$13,576.48, or $1,131.37 per month.
12
Seghini, 42 So. 3d at 641 (¶17) (quoting Gray v. Gray 745 So. 2d. 234, 237 (¶14) (Miss.
1999). John asserts that the chancellor likely relied upon his income as provided in the
separate-maintenance order instead of his actual base salary at the time of trial. John testified
that he had recently been demoted at work, which resulted in a substantial decrease to his
income. As proof of this change in income, John submitted into evidence his last two pay
stubs. The record does not indicate which documentation the chancellor relied upon when
calculating the child-support award. Therefore, we conclude that the chancellor failed to
make an express finding of fact as to John’s income.
¶30. This issue is affirmed as to the finding that child support is warranted. But the
chancellor, on remand, should make an express finding with regard to John’s current income.
The chancellor should also consider every aspect of the child support, including the
maintenance of health insurance for the child, dance and choir expenses, and John’s other
financial obligations.
¶31. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
ISHEE, WILSON AND GREENLEE, JJ., CONCUR. FAIR, J., CONCURS IN
PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. LEE,
C.J., BARNES AND CARLTON, JJ., CONCUR IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. IRVING, P.J., AND WESTBROOKS, J.,
DISSENT WITHOUT SEPARATE WRITTEN OPINION.
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John David Foreman v. Kristy Lynn Foreman
Combined Opinion