IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01513-COA JANICE LODEN SULLIVAN APPELLANT

v. JAMES WAYNE SULLIVAN APPELLEE DATE OF JUDGMENT: 08/31/2015 TRIAL JUDGE: HON. JACQUELINE ESTES MASK COURT FROM W HICH APPEALED: LEE COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: MICHAEL LEE DULANEY ATTORNEYS FOR APPELLEE: JASON D. HERRING MICHAEL SPENCER CHAPMAN NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: REVERSED AND REMANDED - 03/21/2017 MOTION FOR REHEARING FILED: 04/03/2017: DENIED; REVERSED AND REMANDED: 11/07/2017 MANDATE ISSUED: EN BANC. LEE, C.J., FOR THE COURT: MODIFIED OPINION ON MOTION FOR REHEARING ¶1. The appellee’s m o tion f or rehearing is denied. The p revious o pinion of this Court is withdrawn, and this opinion is substituted in its place. ¶2. In this appeal, the prim ary issue is whether the chancellor f a i led to m a ke s p e c i f

i c f indings of f

acts and conclusions of law as required by Ferguson

. 1 Because the chancellor f ailed to do so, we reverse and rem and. PROCEDURAL HISTORY

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 ).¶3. Janice L o den Sullivan f i l e d a c o m

p l a i n t f or divorce on March 8, 2014, in the Lee County Chancery Court against her husband, Jam es W ay ne Sullivan (W ay

ne). Ultim ately , the parties con sented t o an irreconcilable-dif f erences divorce a nd subm i tted t he issues of equitable distribution, alim o ny , and attorney ’s f ees to the chancellor

. The chancellor executed a judgm e nt of divorce on August 31, 2015, which was f iled w ith the chancery clerk

on S e p t e m

ber 3, 2 015. The chancellor granted the divorce and divided the m arital assets. The chancellor also awarded Janice $1,360 per m onth f rom W a y ne’s retirem ent account “f or up to twelve y ears ef

f ective Septem

b er 1, 2015.” ¶4. Janice now appeals, raising several issues, which we have condensed as f ollows: (1) the chancellor did not m ake specif ic f indings pursuant to Ferguson , a nd (2) the chancellor f ailed to m ake specif

ic f i ndings regarding the alim ony a w ard.

FACTS ¶5. Janice and W ay

ne were m arried in 1998 and separated i n 2 0 14. At the tim e of the parties’ m arriage, W a y ne was a dean at It a w am b a Com m

unity College, earning approxim a tely $80,000 per y ear. By the t im e he retired in 2010, his salary was approxim ately $150,000 per y ear. W ay

ne drew $8,208.22 per m onth in state retirem ent. Af t er retirem ent, W a y ne continued to do contract w ork, earning approxim ately $6,900 per m onth. During trial, which was held i n July 2015, W ay ne test i f ied that h e anticipated retiring f rom his
contract position in June 2016 and that t he retirem ent account associated w i th this position totaled $67,767. ¶6. Janice was a registered nurse but qui t w o r k i n g in 2012 d ue to health issues. Janice

2received $1,333 per m onth f r o m a trust established by her deceased m other. There was testim o ny that J anice’s f

a the r had regularly been g iving Janice as m uch as $29,000 a y ear,

som etim es in m onthly

installm ents. ¶7. The c ouple bought their current m arital hom e, located in Tupelo, Mississippi, in 2010, f or $166,000. They purchased the hom e outright u sing $130,000 f r om Janice’s f

ather and the rem ainder f

rom W a y ne. The ho me w a s a p p raised at $220,000. T he couple a lso had a savings account containing approxim ately $341,329. STANDARD OF REVIEW ¶8. We af

f o rd chancellors m

uch discretion in our review of dom estic-relat i o n s c a s e s . Stein e r v
. Steiner , 788 So. 2 d 771, 777 (¶18) (Miss. 2001). This Court will not disturb a chancellor’s f

indings u n less t hey are m anif e stly wrong o r clearly erroneous, or t he chancellor applied an erroneous legal standard. Mizell v. Mizell , 708 So. 2d 55, 59 (¶13) (Miss. 1998). DISCUSSION I. Application of Ferguson ¶9. Janice’s and W ay

n e’s brief s both state t he chancellor m ade an o ral ruling in this case, but a transcript was not included in the designated record. The chancellor’s written j udgm ent does not ref

erence the oral ruling, nor does it even ref er to the F

erguson f actors. And it is unclear as to whether p ortions of the chancellor’s judgm ent were m a d e as e q u i t a ble distribution or alim ony . The chancellor’s written judgm e n t sim ply awarded the m arital hom e
to Janice, divided the savings account, divided the m arital assets, and awarded Janice $1,360
per m onth f

rom W a y ne’s state retirem ent “f

or up to t w e l v e y e a r s ef

f ective Septem

ber 1,

32015.” W ay ne a ttached to his m o tion f or rehearing what a p p e a r s t o b e a transcript of the chancellor’s oral ruling. W a y ne f aults Janice f

o r f ailing to include this docum ent in the designated r ecord; however, W a y n e did not m ove to supplem e nt t he record. W hile m otions
to supplem ent t he record a re no t f r e e l y g i v en, this C ourt h as granted them when it is
necessary f

or a f ull, and f a i r , h e a r i ng on an issue, and appellees as w ell as appellants m ay

m ake s uch m otions. S

ee, e.g., McClendon v. State , 748 So. 2d 814, 818 (¶18) (Miss. Ct. App. 1999). However, even if the apparent transcript had been m ade part of the r ecord, it would not have altered our disposition of this appeal. ¶10. I n L e e v
. L e e , 7 8 S o . 3d 326, 329 (¶11) (Miss. 2012), the chancellor m entio n e d Ferguson in his ruling f

rom the bench, b ut he did not apply the f a ctors or m a k e f

actual f indings and conclusions of law. Also, in the f

inal d ivorce d ecree, t he c hancellor f ailed to

m ention Ferguson or apply its guidelines. Id

. The M ississippi S uprem e C o u r t f o u n d this

was reversible error and rem anded f or the chancellor to m ake sp e c i f i c f i n dings regarding Ferguson

. Id. at 329-30 (¶14). Even if the transcript of the oral r uling had been m ade part of the record, the posture of this c ase would have been identical to that f ound in Lee

. Id

. Thus, the record requires the judgm ent be reversed and rem anded. Perhaps interestingly , in the t r a nscript the chancellor stated she “reserves m aking specif ic f indings of f

act and conclusions of law i f the case is appealed.” W e do not im p ly in a ny way that the chancellor d i d n o t thoughtf

ully consider the m e rits in this case. Rather, it appears that even if t h e transcript had been m ade part of the record, the r ecord m ay still have been insuf f icient to ref lect b oth what occurred in the chancery court, and why the chancellor m ade the r ulings as

4she did.

¶11. The “ f

ailure to m ake a n explicit f actor-by -f actor analy sis d oes not necessarily require reversal where w e a r e s a t isf ied the chancellor considered t he relevant f acts.” S eghini v. Seghini , 42 So. 3d 635, 6 4 1 (¶21) (Miss. Ct. App. 2010) ( citation o m itted). H owever, the record h ere s i mply does n o t show that the chancellor adequately considered or applied the f actors. Thus, we m

ust reverse and rem and f

or a proper application of the Ferguson f actors. II. Alim ony ¶12. Janice also a rgues that t he judgm ent is u nclear as to whether the award of $ 1,360 per

m onth f rom W a y ne’s state ret i r e me n t is alim ony . W ay ne contends the am ount is not alim o n y , b u t a n equitable division of the m a r ital assets. The chancellor’s af orem entioned oral ruling appears to show the a w a rd to J a nice of part of W ay ne’s state retirem ent was intended to be part of equitable distribution. However, absent specif ic f indings of f

act, we

are unable to give even d iscretionary review a s to whether the chancellor f ully considered the division of assets and whether the award of s tate retirem ent was s uf f icient to allow Janice
to support herself

, especially considering Janice was not em ploy ed at the t im e of the divorce, and apparently her nursing license had expired. And i t m ay b e that the f am ily t ragedy about which Janice testif

ied, as well as J anice’s phy sical health, w ould prevent her f rom being able
to return to the workf

orce. Although J anice had a trust f u nd that was not subject to equitable distribution, and apparently her f ather had given Janice addi t i o n a l m oney in the past, testim o ny was conf licting on precisely

how m uch incom e Janice derived f rom her parents. A Ferguson -f

actor analy sis would allow appellate review.

5¶13. Furtherm ore, i f the a ward w as in f act alim ony , the chancellor f ailed to m ake specif

ic f i ndings as r equired under A rmstrong v
. Armstrong , 6 18 So. 2d 1278, 1280 (Miss. 1 9 9 3 )

. “Failure t o m ake an on-the-record Armstrong a naly sis is m a nif est error.” Lowrey v
. Lowrey , 25 So. 3d 274, 280 (¶7) (Miss. 2013). ¶14. Upon rem and, the chancellor m ay consider the record, and other docum entation that

was not designated, to m a ke the s p e c i f i c f i ndings of f

act and conclusions of law that she ref erenced i n her oral ruling. Or the chancellor m ay deem it necessary to require f urther proceedings. The judgm e nt of the chancery court i s reversed, and this cause is rem a nded f or f urther proceedings consistent with this opinion. ¶15. REVERSED AND REMANDED

. I R V I N G A N D G R I F FIS, P.J J . , C A R L T O N , F A I R , W I L S O N , G R E E N L E E A N D WESTBROOKS, JJ., CONCUR. B A RNES, J., CONCURS IN PART AND IN THE RES U LT WITHOUT SEPARATE WRITTEN OPINION. T INDELL, J., NOT PARTICIPATING.

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