IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01105-COA MORGAN DAVID EWING, SR. APPELLANT

v. MELANIE SHAE EWING APPELLEE DATE OF JUDGMENT: 03/13/2015 TRIAL JUDGE: HON. MITCHELL M. LUNDY JR. COURT FROM W HICH APPEALED: DESOTO COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: JERRY W ESLEY HISAW ATTORNEY FOR APPELLEE: DAVID MARK SLOCUM JR. NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: GRANTED DIVORCE AND AW ARDED W I FE FULL CUSTODY OF THE MINOR CHILDREN, PROCEEDS FROM THE SALE OF THE MARITAL HOME, $38,000 IN LUMP-SUM ALIMONY, $500 IN MONTHLY PERIODIC ALIMONY, AND $10,000 IN ATTORNEY’S FEES DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART: 11/01/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., JAMES AND WILSON, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Morgan David Ewing Sr. and Melanie Shae Ewing were granted a divorce based on irreconcilable dif

f erences. Morgan appeals the D eSoto County C hancery Court’s division of the m arital e state, t he a lim ony a ward, and the award of attorney ’s f ees. This Court f

inds error and af

f irm s in part and reverses and rem a nds in part.

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

ma r r i a g e . M elanie m o stly stay ed hom e with the c h ildren while Morgan w orked. They separated on January 2, 2012. On January 17, 2012, Mel a n i e f i led a p etition f

or divorce based on habitual cruel and inhum an t reatm e n t or, in th e a l ternative, i rreconcilable dif f erences. ¶3. On February 22, 2012, the chancellor issued a tem porar y order granting Melanie custody of the children, $950 p er m onth in child support, and sole use of the m arital hom e. The order also granted Morgan w eekend and phone visitation, and required h im to m aintain health insurance on the f

a m ily

. F urther, the order required t he p arties to f ile a joint tax return and prohibited dissipation of m arital assets. ¶4. Af ter the tem

porary order but bef

ore the f inal divorce decree, Morgan lost h is job and
f ailed to m ake several child-support pay m ents, which caused him to go i nto arrears. During this tim e, Morgan took out a loan against his 401(k), then eventually c ashed out his 401(k), valued at around $48,000. As a result of his unsteady em

ploy m ent and f

inancial situation, Morgan f iled f or bankruptcy

in 2014. ¶5. The divorce proceedings extended o ver s everal y ears. Eventually , Melani e a nd Morgan agreed to divorce on the ground of irreconcilable di f f erences. The parties agreed that M e l anie w ould retain sole custody of t he children, and t hey stipulated to a visitation schedule. They requested t hat the chancellor settle the m atters of property distribution, child support, and alim ony . ¶6. On February 18, 2015, t he c hancellor conducted a bench trial on the rem aining issues.

2On March 16, 2015, the chancellor entered his judgm e n t granting the divorce and resolving

the disputed issues. The c hancellor ordered Morgan t o pay $950 per m onth in child support, $500 per m onth in p erm anent alim ony , $38,000 in lum p-sum alim ony t o be paid at m onthly $ 1 , 0 0 0 i n crem ents until satisf i ed, $10,000 in Melanie’s attorney ’s f ees to be p aid m onthly in $500 incre me nts until s atisf ied, and two-thirds of all unpaid m edical expenses f or the children. The judgm ent was f inalized on April 13, 2015. ¶7. Subsequently , on April 20, 2015, Morgan f iled a m otion f

or reconsideration or, in the alternative, a new trial. Morgan prim arily sought a r eduction in t he awards of child support, alim ony , and attorney ’s f

ees. The chancellor granted Morgan’s m otion in part by reducing the chi l d s u pport t o $708.36 per m onth and g iving credit f or $3,050 in paid child support. All other requests were denied. ¶8. Morgan tim ely appealed the denial o f his posttrial m otion. On appeal, he argues that the chancellor erred in ( 1) d ividing the m arital estate, (2) granting M elanie periodic alim ony , and (3) awarding attorney ’s f ees to Melanie.
S TANDARD OF REVIEW ¶9. In dom e stic-relati o n s c ases, “[ t]his Court will not disturb a c hancellor’s j udgm ent when [ it is] supported by subs t a n t ial evidence unless the chancellor abused h is discretion,

was m anif

estly wrong, clearly erroneous, or [ applied] an erroneous legal standard.” Rolison

v. Rolison , 105 So. 3d 1136, 1 1 37 (¶4 ) ( M i s s. Ct. App. 2012) (citation om itted). “If the chancellor’s f

indings a re supported by substantial evidence, then we will a f f i r m. ” I d

. (citation om itted). Questions of law, however, are reviewed de n ovo. Price v. Price , 22 So.

33d 331, 332 (¶8) (Miss. Ct. App. 2009) (citation om itted).
ANALYSIS
I. W hether the chancellor erred in dividing the marital estate. ¶10. Morgan i nitially dis p utes the chancellor’s division of the m arital estate when he awarded $38,000 in l um

p-sum alim ony t o Melanie. Morgan con t e n d s that the chancellor
f ailed to c onduct a f

ull analy s is under the Ferguson 1 f a ctors in dividing the m arital property

. Morgan also states that the chancellor neither e s tablished a line of dem arcation determ ining when the parties stopped accum ulating m arital assets nor classif ied the property as m arital

or nonm arital. B y extension, Morgan a r g u es the chancellor erred in a w a r ding lum p-sum alim ony or, in the alternative, erroneously calculated the am ount Melanie should receive. ¶11. “ [W ] hen d i viding m arital property , ‘ c h ancellors are directed to (1) c lassif y the p a r t i e s ’

assets as m arital or separate; (2) determ ine the value of those assets; (3) d i vide the m arital

estate equitably based upon t he f actors set f

orth in Fergus o n ; a n d ( 4 ) consider the appropriateness of a lim ony if either party is l ef t with a def

iciency .’” Roberts v. Roberts , 135
So. 3d 935, 940 ( ¶13) (Miss. Ct. App. 2014) (quoting Dickerson v. Dickerson , 34 So. 3d 637, 643-44 (¶23) (Miss. Ct. App. 2010)).

A. The Classification and Valuation of Assets ¶12. “In dividing the property of the divorcing couple, the chancello r m ust f i rst classif

y their a ssets and liabilities as belonging to the m arriage, t o t he husband, or to the wif e .” Smith

v. Smit h , 8 5 6 S o . 2d 717, 7 19 (¶8) (Miss. Ct. App. 2 003) (citing Hemsley v. Hemsley , 639

1 F erg u so n v. F

erg u so n , 6 3 9 S o . 2 d 9 2 1 , 9 2 8 (M iss. 1 9 9 4 ).

4So. 2d 909, 914 (Miss. 1 994)). Morgan argues the chancellor e rred when he did not classif y the parties’ property as m arital a nd nonm arital property

. Further, the chancellor, according

to M organ, did not determ ine a line o f dem arcation determ ining when the p ar t i e s stopped

accum ulating m arital assets. ¶13. “[ W] h e n e q u itably dividing m arital property upon divorce, the date of valuation is necessarily

within the discretion of

the chancellor.” Hensarling v. Hensarling , 824 So. 2d 583, 591 (¶25) ( Miss. 2002) (quoting MacDonald v. M a c D o n a l d , 698 So. 2d 1079, 1086 (¶35) (Miss. 1 997)). M e lanie obtained a tem porary order on February 22 , 2 0 1 2 , w hich awarded her sole tem

porary custody , u se of the m arital h om e , and u se of her vehicle. The

t em porary order also required M organ to pay $950 in m onthly child support, but di d n o t award Melanie separate m aintenance. ¶14. Morgan argues the tim e of the dem arcation should h ave been at the p oint of the

tem porary order. “A tem

p orary order m ay b e c onsidered by the c h a n c ellor to be a line of dem arcation between m arital and separate property [ .]” Collins v. Collins , 112 So. 3d 428,
432 (¶11) (Miss. 2 013) ( citing Cuccia v. Cuccia , 90 So. 3d 1 228, 1233 (¶8) (Miss 2012)). Theref ore, the chancellor could have designated either the date of the tem porary order or the date of the divorce as t he time f or dem arcation. Though the chancellor im plicitly held the date o f dem arcation as the date of the divorce, t he chancellor er r e d w hen h e f ailed to explicitly declare either date as the line of dem arcation. ¶15. The Collins court held that chancellors should declare a line of dem arcation in their
f indings. Id. a t 4 3 2 -33 ( ¶13). In Collins , the Mississippi Suprem e C ourt f ound that the

5chancellor d id not m ake a f inding as to the line of dem arcation, but be c a u s e t h e opinion alluded to the date and the parties did not ch a l l e n g e t he d ate, the suprem e c ourt did not

rem and the case on this issue. Id. at 432 (¶13). Further, the Collins court cautioned that had the date been disputed or unclear i n the judgm e n t, the case w ould have been rem anded. Id. Here, Morgan and Melanie dispute the date f or dem arcation. T hus, this issue is rem anded
f or a f inding on the date of

dem arcation. ¶16. Morgan a lso argues that the chancellor erroneously f ailed to classif

y t he a ssets of the parties as either m arital or nonm arital. Morgan asserts that his 401(k) appreciated in value

over the tim e of separation, and the appreciation should have b een considered separ a t e property

. Unlike with dem arcation, t h e chancellor stated that there was no testim ony presented as to any s e parate property

. Further, the chancellor specif ically determ i ned what he considered as m a rital property , and assigned values to each o f the assets. Theref ore, on

rem and, the chancellor sh o u l d d e t e r m ine the line of dem arcation and whether the parties

accum ulated any

separate property

. B. The Ferguson Factors ¶17. Morgan f

urther c ontends that the chancellor f ailed to adequately a n a l y

z e t h e F e rguson f a c tors w hen he determ ined the d istribution of m arital property

. Af ter c lassif ication an d valuation, a chancellor m u st equitably divide t h e ma rital property in accordance with the
f actors dictated in F

erguson . The f

actors are: (1) Substantial c ontribution to the accum ulation of the property

. Factors t o be considered in determ ining contribution are as f ollows: (a) [ d]irect or indirect econom ic contribution to t he acquisition o f the property ; (b) [ c]ontribution to the stability and harm ony of the m arital a nd f am ily relationships as m easured

6by quality , q uantity of tim e spent on f ami ly duties a n d d

uration of the m arriage; and (c) [ c]ontrib u t i o n to the education, training[ ,] or other accom plishm ent bearing on the earning power of the spouse accum ulating the assets[ ;] (2) The degree to w hich each spouse h as e xpended, withdrawn[ ,] or o therwise disposed of m arital assets a n d a n y prior distribution of such assets by agreem ent, decree[ ,] or otherwise[ ;] (3) The m arket value and the em otional v a l u e o f t he assets s ubject to distribution[ ;] (4) The v alue of assets not ordinarily , absent equitable f actors t o the contrary , subject to such d i stribution, suc h a s property brought to the m arriage by the parties and property acquired by inheritance or int e r vivos gif t by or t o an individual spouse; (5) Tax and other econom ic consequ e n c es, and contractual or legal consequences to third parties, of the proposed distribution; (6) The extent to w hich property division m ay , with equity to b oth parties, be utilized to elim i nate p eriodic pay m ents and other potent i a l s o u rces of f uture f riction between the parties; (7) The n e e d s of the p arties f or f inancial security with due regard to the com bination of assets, incom e[ ,] and earning capacity ; and (8) Any other f actor which in equity

should be considered. Ferguson , 639 So. 2d at 928. ¶18. The chancellor s tated that he looked to the Ferguson f actors when d eterm ining the distribution. The chancellor, however, only m a de a specif ic f inding in t he record regarding the f irst f actor when h e f

o und that Morgan, as the f inancial provider, and Melanie, as the dom estic provider, c o n t r i b u t e d equally to t he accum ulation o f the m arital assets. The chancellor determ ined that because the two parties contributed equally t o the accum ulation of assets, they should be divided equally

. Morgan arg u es this f inding is insuf

f icient to

7support the division of m arital property . This Court agrees.

¶19. “W hile chancellors n eed not m ake f indings as to each and every f actor set f

orth in Ferguson , they cannot sim ply m ention the guidelines and state they are f ollowing them and apply ing them to t he f

acts of the case.” Lee v. Lee , 78 So. 3d 326, 329 (¶10) (Miss. 2012) (citing W eathersby v. W

eathersby , 693 So. 2d 1348, 1354 (Miss. 1997)); Ferguson , 639 So. 2d at 928) (quotation m arks om itted). “The f ailure to m ake f

indings of f

act and conclusions of law is ‘m anif

est error requiring reversal and r em and.’” Id. ( quoting Sandlin v. Sandlin , 699 So. 2d 1198, 1204 (Miss. 1997)). ¶20. As previously stated, the cha n cellor d eterm i ned each party ’s contribution to the

m arital property , b u t d i d not specif ically apply the rem aining f a c tors. Melanie a rgues that

t he chancellor f

ound that several of the o ther Ferguson f a c tors a pplied, such as th e dissipation of assets a nd the tax-consequences f actor. Arguably , the chancellor d id address the dissipation of a ssets w hen he stated t h a t M organ wrongf ully c ashed out his 401(k)

account. W h ile a chancellor is not required to f ully analy ze every Ferguson f

actor, this is not a suf f i cient f inding to support the distribution of the m arital property

. ¶21. Further, the c hancellor assessed all of the m arital debt to Morgan. “Debts acquired during the course of the m arriage are also subject to equitable distribution.” Carter v
. Carter , 98 So. 3d 1109, 1114 ( ¶15) (Miss. Ct. App. 2012) (citation om itted). The chancellor likewise
f ailed t o m ake a f

i nding regarding the distribution of the m a r ital debt. This f ailure c onstitutes reversible error, and this Court rem ands this issue f or a proper analy sis under Ferguson

. C. Lump-Sum-Alimony Award

8¶22. Morgan next a rgues t hat the chancellor erred when he awarded Melanie $38,000 in

lum p-sum alim o ny . U nder t he p r o p e r t y distribution, Morgan would receive $53,500, and Melanie would r eceive $15,600.80. To equalize the distribution, the chance l l or awarded Melanie $38,000 i n l um

p-sum alim ony to bring her total distribution to $53,600.80. As such, Morgan contends the c hancellor f ailed to do an a

p propriate analy sis in m aking the award and, even if an award was proper, the am ount was m anif estly wrong. ¶23. An award of lum p-sum alim ony m

u st be c o n s i d ered u nder the Ferguson or A r m s t r o n g 2 f

a ctors depending on the purpose of the a ward. D a venport v. Davenport , 1 5 6
S o . 3 d 2 3 1 , 240 (¶30) (Miss. 2014). “If lum p-sum alim ony is awarded as a m echanism t o equitab l y d i v i de the m arital assets, then chancellors m a y conduct their analy sis under the Ferguson f

actors.” Id. a t 241 ( ¶34) (citing Haney v. Haney , 907 So. 2d 948, 955 (¶26) (Miss. 2005)). “ [ I]f the alim on y , l um p -sum or otherwise, is awarded subsequent t o t he equitable distribution of the m a rital assets, then chancellors m u st conduct their analy sis under the Armstrong

f actors.” Id. (citing Lauro v. Lauro , 847 So. 2d 843, 848 (¶13) (Miss. 2003)). ¶24. The chancellor a warded lum p-sum alim ony to equalize the property distribution. In his judgm ent, t he c h a n c e l l o r stated t hat t he lum p-sum -alim o ny award was “to even the division of m arital property .” Theref ore, an analy sis of t he Ferguson f actors was required.
As previously discussed, the chancellor d id not com plete a suf

f icient Ferguson analy sis, and the f ailure to do so is reversible error. ¶25. The chance l l o r c o m m itted error when he f ailed to properly distribute the m arital

2 A rm stro n g

v. A rm stro n g , 6 1 8 S o . 2 d 1 2 7 8 , 1 2 8 0 (M i ss. 1 9 9 3 ). 9property and award lum p-sum alim ony . Theref

ore, this Court reverses this portion of the chancellor’s judgm e nt and rem ands the case f or a f inding in accordance with t he Ferguson f actors to determ i ne t he distribution o f all m arital assets and debts, as well as to determ ine the need and proper am ount of any lum p-sum - alim ony

award, if necessary . 3
II. W hether the chancellor properly awarded periodic alimony. ¶26. Morgan n e x t c ontends that the chancellor erroneously awarded Melanie $500 per

m onth i n periodic alim ony . “[ P]eriodic alim ony should only b e considered if the chancellor determ ines that a spouse has suf f ered a disparity of incom e and standard of living f ollowing the equitable division of the m arital assets.” George v. G e o r g e , 2 2 So. 3d 424, 428 (¶6) (Miss. Ct. App. 2009) (citation om itted). A chancellor m ust determ ine an award of alim ony based on the f

ollowing f

actors provided in Armstrong : 1. The incom e 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 m arriage;
6. The presence or absence of m inor children in t he hom e, which m ay require

3 We also n o te th at alth o u g h th e ch an cello r o rd ered M o rg an to p a y “$ 3 8 , 0 0 0

. 0 0 as lu m p s u m alim o n y to e v en th e d i v i sio n o f m arital p ro p erty ,” t h a t w as n o t th e ef f e ct o f th e o rd er. T h e ch an cello r’s o rd er aw ard ed M o rg an m arital p ro p erty w o rth $ 5 3 ,5 0 0 an d M elan ie m arital p ro p erty w o rth $ 1 5 ,6 0 0 .8 0

. T h eref o re, th e a w ard o f lu m

p -su m alim o n y essen tially rev ersed th e p arties’ p o sitio n s, leav in g M o rg a n w ith $ 1 5 ,5 0 0 an d M elan ie w ith $ 5 3 ,6 0 0

. 8 0

. T h is m ath em a tical erro r w o u ld also req u ire rev ersal. S ee H ea rn v. H ea rn , 1 9 1 S o . 3 d 1 2 9 , 1 3 2 -3 3 (¶¶1 1 -1 5 ) (M iss. C t. A p p . 2 0 1 6 ) (citin g Ja ckso n v. Ja ckso n , 1 7 2 S o . 3 d 1 7 9 , 1 8 0 -8 2 (¶¶5

- 8 ) (M iss. 2 0 1 5 )). 1 0that one or both of the parties either pay , or personally provide, child care; 7. The age of

the parties;
8. T he standard of living of the parties, bo th during the m a rriage and at the tim e of the support determ ination; 9. The tax consequences of the spousal support order; 10. Fault or m isconduct;
11. W astef

ul dissipation of

assets by either party ; or 12. A ny other f

actor deem ed by t he court to be “just a n d equitable” in connection with the setting of spousal support. Armstrong , 618 So. 2d at 1280. ¶27. The chancellor m ade specif ic f indings a s t o s e v e ral of the Armstrong f actors. The

c hancellor f

o und t hat Morgan m a de $43,200 per y ear, c om pared to Melanie’s $ 1,05 0 a m o n t h bef ore child support. As to the second f a ctor, the parties were in good health, and Morgan enjoy ed a higher earning capacity

. Further, the chancellor f ound Melanie had a greater need

as t he s ole cu s t o d i a n of the children, Morgan h ad reduced h is obligations through bankruptcy , and the m arriage h a d lasted tw e l v e y ears. The chancellor also f o und that Morgan had dissipated his 401(k). Lastly , the chancellor addressed the tax consequences of alim ony . Though the chancellor did not address the age o f the parties or their standards of living, these om issions do not invalidate the chancellor’s f indings under Armstrong

. ¶28. The i ncom e disparity between Morgan and Melanie is an im portant f a ctor in awarding periodic alim ony . See Davis v. Davis , 8 32 S o. 2d 4 92, 499 (¶23) (Miss. 2002) (“A signif icant disparity i n earning capacity is a m ajor f

a c tor in the d eterm i nation of a periodic

1 1alim ony award.”). This f inding, c oupled with t he other Armstrong f actors, w eighs in f

avor of the chancellor’s award of periodic alim ony . ¶29. But a chancellor m ust not only determ ine the appropriateness of a periodic-alim ony award, but also decide on the am ount of the award. “In d eterm i ning the am o unt of support
pay able to the wif

e, a chancellor m

ust consider ‘not only reasonable n eeds of [ t he] wif e but also [ the] right of [ the] husband to lead a s norm al a lif e as reasonably possible with a decent standard of l iving.’” Davis , 832 So. 2d at 497 ( ¶19) (quoting Massey v
. M assey , 4 75 So. 2d 802, 803 (Miss. 1985)). Here, the chancellor did n ot t ake Morgan’s standard of living into

account. W hile t he $500 m o nthl y p ay m ents alone m ight b e considered reasonable, the chancellor did not assess t he award in relation to Morgan’s pay m ents f or child support, lum

psum alim ony , and attorney ’s f ees. Thus, the am ount of the a ward of periodic alim ony should be considered in light of the am ounts of the other pay

m ents on rem and. ¶30. The chancellor m ade a s uf f icient f inding in the record under t he Armstrong f actors to support a n award of periodic alim ony . H o w e v e r , t he c hancellor f ailed to consider the

reasona b l e n e e d s of Morgan and Melanie w hen determ ining the am ount of the award. Theref ore, t h i s i s s u e i s af

f irm ed as to the f

inding of a need f

or periodic alim ony , but

rem anded f

o r consideration of the am ount of the award. The chancellor, on rem and, should consider Morgan’s other f inancial obligations and his ability to m aintain a decent standard of living.
III. W hether the chancellor erred in awarding attorney’s fees. ¶31. As a f

inal p oint of contention, Morgan argues that the chancellor erred in awarding

1 2Melanie $10,000 in attorney ’s f ees. Morgan m aintains that the chancellor f ailed t o consider his ability to pay Melanie’s attorney ’s f

ees and Melanie’s ability

to pay her own attorney ’s f ees. ¶32. “An award of attorney ’s f ees in dom estic cases is larg e l y a matter entrusted to the sound discretion of the trial court.” Lauro v. Laur o , 9 2 4 So. 2d 584, 591 (¶29) (Miss. Ct. Ap p . 2 0 0 6) (citations om itted). “Unless t he chancellor is m anif estly wrong, h is decision regarding attorney [ ’s] f

e e s w i l l not be disturbed o n a ppeal.” Id. ( citing Bredemeier v. Jackson , 689 So. 2d 770, 778 (Miss. 1997)). ¶33. “Generally , u nless t he p arty requesting attorney [ ’s] f ees can e stablish the inability to
pay , such f

ees should not be awarded.” Bredemeier , 689 So. 2d at 778 (citing D unn v. Dunn , 609 So. 2d 1277, 1287 (Miss. 1992)). In order to determ ine the am ount of attorney ’s f

ees, a chancellor m

ust look to the f

actors enum erated in McKee v. McKee , 418 So. 2d 764, 767 (Miss. 1982). ¶34. The court in McKee s tated: “[ T ]he allowance of attorney [ ’]s f ees s h ould be only in such am ount as will com pens a t e f o r the services rendered. It m ust b e f air and just to all concerned af

ter it h as been determ ined that the l e g a l work b eing com pensated was reasonably required and necessary .” Id. The specif ic f actors include the relative f

inancial a bility of the parties, the skill a n d standing of the attorney em ploy ed, the nature of t he case and n ovelty and dif f iculty of the questions at issue, as well as the degree of responsibility involved in the m anagem ent of the cause, the tim e and labor required, the usual a nd custom ary c h a r g e i n t he com m unity , and the preclusion of other em p loy m e nt by the attorney due to the acceptance of

the case. Id.

1 3¶35. The chancellor stated that “[ a]ttorney ’ s f ees, according to t he M

cKee f actors[ ,] are
necessary in this case, and $10,000.00 is [ a] reasonable [ am ount of ] a ttorney ’ s f

ees to be paid

at the rate of $500.00 per m o nth until paid.” The chancellor m ade no speci f i c f i n dings regarding the individual McKee f actors. H owever, the lack of a f actor-by -f actor analy sis under McKee d o es n ot necessarily require reversal. See A & L Inc. v. Grantham , 747 So. 2d 832, 845 (¶61) (Miss. 1999) (“Reversal is warranted o nly where the f ailure to m ake suf

f icient
f indings of

f act and conclusions of

law constitutes m anif

est error.”). ¶36. Regardless of a n y s p e cif ic f indings under McKee , the chancellor m u st determ ine whether Melanie was unable to pay her attorney ’s f

ees. [ W ]here the record shows an inability to pay and a d i sparity i n the relative f inancial positions of the parties, there is no e rror in awarding attorney ’s f ees. The s uprem e c ourt has also held that consideration of the relative worth of the parties, standing a lone, is insuf f icient. The record m

ust ref lect the requesting spouse’s inability

to pay his or her own attorney ’s f ees. Owen v. O wen , 22 So. 3d 386, 393 (¶25) (Miss. C t. App. 2009) (quoting Bates v. Bates , 755 So. 2d 478, 482 (¶11) (Miss. Ct. App. 1999)). The chancellor, nonetheless, f ailed to m ake such a f inding in the record. ¶37. Melanie testif

ied that s he incurred nearly $11,808.57 in attorney ’s f ees due to Morgan’s contem

p t 4 a nd extended litigation over t hree y e ars. Melanie also t estif ied that she could n ot pay her attorney ’s f ees, but she provided no f

urther details. The record additionally

4 Wh ile th e ch an cello r f

o u n d M o rg a n in co n tem

p t , h e d id n o t a p p e a r to assess th e atto rn ey ’s f

ee aw ard b ased o n th e co n tem p t

. R ath e r , th e ch an cello r e x p licitly stated h e aw ard ed atto rn e y ’ s f

ees u sin g th e M

cK ee f a c t o rs, w h ich a re n o t req u i red w h en atto rn ey ’s f ees are aw ard ed b a sed o n a p arty ’s co n tem p t. S ee H u seth v. H

u seth , 1 3 5 S o . 2 d 8 4 6 , 8 6 0 (¶4 5 ) (M iss. 2 0 1 4 ). 1 4indicates t h a t M e l anie’s m onthly incom e bef ore child support and alim ony was approxim a tely

$1,050, but there was no indication of her expenses that would result in her inability to pay . W ithout a specif ic f inding as to Melanie’s f

inancial situation or her inability to pay h e r attorney ’ s f

ees, the chancellor’s award was im proper. ¶38. Further, any

property and alim ony

that Melanie receives af

t er this case is rem anded should be considered i n l ight of her ability or i nability to p a y h e r a t t o r n e y ’s f ees. See
Hammers v. Hammers , 890 So. 2d 944, 958 (¶55) (Miss. Ct. App. 2004) (f inding ability

to
pay a f ter considering the equitable distribution of property and alim ony award). Theref ore, the chancellor m

ust m ake specif

ic f indings as to Melanie’s f

inancial s ituation, and her ability

to pay her attorney ’s f

ees af ter the equitable distributio n of m arital property and alim ony awards are decided. See Ladner v. Ladner , 49 So. 3d 6 69, 673 (¶17) (Miss. Ct. App. 2010) (“On rem and, the chancery court m ust exam ine [ the wif

e’s] f inancial situation a n d make specif ic f indings as to [ the wif

e ’s] ability t o pay her attorney ’s f ees.”) T his issue is reversed and rem anded. ¶39. Becaus e t he chancellor did not m ake the appropriate f i ndings under the Ferguson f actors f or t h e d i s t r i bution of m arital property a nd the award of lum p-sum alim ony as part of that distribution, this Court reverses and rem ands this case f or f indings consistent with this opinion. This C ourt also reverses and rem ands this case f or a f i n ding under the McKee f actors of an attorney ’s f

ee award am ount, if appropriate. L a s t l y , this Court af f irm s the chancellor’s assessm ent of periodic alim ony , b ut rem ands the award f or a determ ination of the proper am ount, taking into account Morgan’s other f inancial obligations and his ability

1 5to m aintain a decent standard of living. ¶40. T H E J UDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS AFFIRMED IN P A RT A N D REVERSED AND REMANDED IN PART FOR F U R T H E R P R O C E E D I N G S C O N S I S T E N T W I T H T H I S O P I N I O N . ALL C O S T S O F THIS APPEAL A RE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE. LEE, C.J., B ARNES, ISHEE, FAIR, WILSON AND G R E ENLEE, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE W RITTEN OPINION. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE W RITTE N O P I N ION. JAMES, J., CONCURS I N PART WITHOUT SEPARATE WRITTEN OPINION.

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