IN THE SUPREME COURT OF MISSISSIPPI

NO. 94-CA-00287-SCT

MARTHA T. BENNETT

v.

JAMES BENNETT

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-A

DATE OF JUDGMENT: 01/05/94

TRIAL JUDGE: HON. EDWARD C. PRISOCK

COURT FROM WHICH APPEALED: NESHOBA COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: EDWARD A. WILLIAMSON

ATTORNEY FOR APPELLEE: HELEN J. MCDADE

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION: REVERSED - 12/15/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 1/5/98

BEFORE DAN LEE, C.J., BANKS AND ROBERTS, JJ.

BANKS, JUSTICE, FOR THE COURT:

Martha and James Bennett were divorced on December 10, 1993 on the ground of Mr. Bennett's

adultery. The chancery court divided some of the property that the Bennetts had acquired over the

course of their marriage, and declined to otherwise award alimony or attorneys' fees. Mrs. Bennett

appeals this decree. Because the chancery court did not make an adequate adjudication of the marital

estate along the guidelines that were enunciated in this Court's decisions in Ferguson v. Ferguson,

639 So. 2d 921 (Miss. 1994), and Hemsley v. Hemsley, 639 So. 2d 909 (Miss. 1994), we reverse

and remand the cause for further consideration.

I.

James and Martha Bennett were married in 1965 in Neshoba County, Mississippi, and they

subsequently had three children together. During their marriage, Mr. Bennett worked continuously

and Mrs. Bennett worked irregularly, and not at all prior to her children reaching school age. The

Bennetts entered their marriage virtually propertyless, but acquired several different parcels of
property over the years, including a home, a cabin at the Neshoba County Fairgrounds, large tracts of

land containing merchantable timber, and an array of farm equipment. Some of the property was

titled in his name, some was titled in her name, and some of it was titled jointly. Although the

testimony is conflicting about the debts, the Bennetts stipulated that all of the debts on the real

property (which were considerable) were joint liabilities. While Mr. Bennett was the primary income

provider through pipelining work and running their chicken enterprise outside of the home, Mrs.

Bennett contributed to the acquisition of their estate not only through taking care of the home and

the children, but through actual assistance in their various business enterprises in the bookkeeping

and actual operation.

In July, 1992, Mrs. Bennet filed for a divorce on the grounds of habitual cruel and inhuman

treatment, adultery, and irreconcilable differences. She requested the court to order a division of

marital property, alimony, child support and custody of the one remaining minor child, as well as a

number of other specific requests about Mr. Bennett's duties. Mr. Bennett filed a cross-claim for

divorce on the ground of habitual cruel and inhuman treatment and irreconcilable differences. He also

requested custody of the minor child, child support, and alimony. Both parties also moved for

temporary relief, which was granted.

The hearing on the complaints began on June 8, 1993. The chancery court bifurcated the proceeding,

adjudicating the division of property prior to addressing the merits of the divorce. In August,

following the hearing on the property issues, the court issued an Opinion in which it made several

findings of fact and divided various items of property. This resolution of the property issues was to

be incorporated into the final divorce decree, presuming that a divorce was to follow the remaining

portion of the proceeding.

In this Opinion, the court found that the Bennetts had acquired numerous parcels of property, and

debts well in excess of $200,000. The court also found that Mr. Bennett had secretly sold cattle to

stock yards after the commencement of the divorce proceedings.

The court awarded Mrs. Bennett several household items of personal property along with a Massey

Ferguson tractor. Citing Clark v. Clark, 293 So. 2d 447 (Miss. 1974), the court further held that

Mrs. Bennett was entitled to an equitable division of the marital assets, finding that: (1) she was

actively involved in the operation of the chicken business; (2) the marriage lasted for thirty years; (3)

she was in need of a means of support, and had no other means of making a living at her age with her

training and education; (4) she was jointly indebted to the lending institutions for the financing of the

chicken business, resulting in a very large liability.

Thus, the court awarded her the following marital assets: the three newest chicken houses that the

Bennetts had been operating as a business; exclusive use of the Bennetts' residence; and the entire

value of what had been their joint escrow account that held the proceeds from the chicken houses.

The chancellor granted Mrs. Bennett the entire interest in that escrow account in order to

compensate her for her interest in some cattle which Mr. Bennett had secretly sold after the

commencement of the divorce proceedings.

The court awarded Mr. Bennett several household items as well as a tractor, a tractor disc and blade,

a post hole digger, a spreader truck, an electrical generator and a flat bed truck. He was also awarded

the exclusive use of six older chicken houses. The court made no other distributions.
Eleven days after this Opinion was issued, but prior to the conclusion of the divorce portion of the

proceedings, Mrs. Bennett filed a Motion to Modify and Make Specific the Court's Opinion. In that

motion, Mrs. Bennett petitioned the court to address and clarify the division of various items of

property. First, she itemized 26 items of property comprising mainly farm equipment, automobiles, a

bushhog and a $6,000 mutual fund that had been the subject of testimony during the hearing but were

not disposed of in the court's opinion.

Second, Mrs. Bennett protested the Court's analysis of her interest in the cattle that Mr. Bennett had

secretly sold for his own profit. The court had expressly awarded her the entire value of a jointly held

escrow account to compensate for that loss, as opposed to limiting her award to a one-half equitable

interest. In her motion, Mrs. Bennett argued that this was not sufficient compensation for her interest

in the cattle that Mr. Bennett had secretly sold. She argued that her interest in the cows amounts to

$26,100, since she argued that Mr. Bennett testified that the cattle sales had earned him $52,200.(1)

Mrs. Bennett argued that the value of the escrow account does not adequately compensate her for

the cattle sales because the escrow account had a balance of $23,257, half of which was already hers

before any adjustments were made to redress her loss in the secret cattle sales. Furthermore, since

this account was set up to meet emergency financing needs of the chicken house enterprise, Mrs.

Bennett cannot freely use that money as she would have used her cash interest in the cattle sales.

Instead, Mrs. Bennett urged the court to award her an extra portion of the equity in the timber rights

on a parcel of land that the Bennetts had jointly owned.

Third, Mrs. Bennett requested the court to dispose of a 164.5 acre parcel of land in Winston County

that held timber that was worth about $70,000. This parcel had been the subject of testimony at the

trial. Mrs. Bennett urged the court to order all of the merchantable timber to be cut and to order the

resulting proceeds to be first applied to compensate her interest in the secret cattle sales, and the

remainder to be applied to the Bennetts' vast debt. She also requested that the court equitably

distribute the parcel of land, as it had declined to dispose of the property in its Opinion.

On September 7, 1993, Mrs. Bennett also filed a Motion to Re-Open Case in Regard to Property,

requesting the court to reopen the hearing and receive additional evidence about who would receive a

fair cabin that the Bennetts owned at the Neshoba County Fairgrounds. The court had already heard

some testimony about the cabin.

Although the court noted orally in response to these motions that the personal property was just a

"big confusing mess," and that it would not reopen the inquiry into the fair cabin, the court did not

expressly address them outside of its final judgment and order on the divorce. In the final judgment,

which issued on December 10, 1993, the court first granted Mrs. Bennett a divorce on the grounds of

adultery. With the exception of three items of property (a Ford tractor and two automobiles), the

court overruled Mrs. Bennett's Motion to Modify and Make Specific in its entirety. In doing so, the

court declined to adjudicate the remaining twenty-three items of property that Mrs. Bennett had

itemized, declined to alter its analysis of her interest in the secretly sold cattle, and further declined to

divide the 164.5 acre tract of land and its accompanying merchantable timber. The court denied Mrs.

Bennett's requests for alimony and attorneys' fees, and assessed court costs against James Bennett.

The court ordered both Bennetts to do all things necessary and proper to transfer title in accordance

with his order.
On January 5, 1994, the court issued an Amendment to Final Judgment, which amended an erroneous

property description. The map which was attached to the original Final Judgment had included a 49

to 54-acre parcel of land in the area that had been awarded to Mrs. Bennett and which the court had

not intended to adjudicate one way or the other. His amended judgment thus removed this portion

from Mrs. Bennett's award.

After some disputes among the attorneys, the court issued its Composite Final Judgment on February

4, 1994. In that judgment, the court amended its previous judgments to award another automobile to

Mrs. Bennett. The court also added a handwritten note on page three of the order that "no opinions

rendered by this court have ever indicated that title to any real property should be divested from

either party." In accordance with this note, he scratched out the section that had theretofore ordered

Mr. Bennett to do all things necessary and proper to transfer title of the properties that had been

awarded to Mrs. Bennett. Inexplicably, the court left intact the similar language that ordered Mrs.

Bennett to do all things necessary and proper to transfer title of the properties that had been awarded

to Mr. Bennett.

In the introductory paragraph of this Composite Final Judgment, the court stated that the first

judgment entered "failed to order and adjudge that the monies owed on both the six original and

three new chicken houses are joint liabilities of both parties." He then proceeded to nevertheless

scratch out (with his initials) the sentence that had been inserted on page five of the order asserting

that the debts were to be joint liabilities of the parties.

Following the issuance of the Composite Final Judgment, Mrs. Bennett moved under Miss. R. Civ. P.

52 and 59 for Findings of Fact, Amendment of Judgment and New Trial on February 7, 1994. She

petitioned the chancery court to make findings of fact and awards of ownership about the various

items of property first noted in its Motion to Modify and Make Specific, including the 164.5-acre

tract of property in Winston County, the merchantable timber, and the portion of property deleted

from Mrs. Bennett's award in the Amendment to Judgment Correcting Error. Mrs. Bennett also

requested the court to clarify the confusion in the Composite Final Judgment about the joint liabilities

of the parties, and to make findings of fact about the comparative value of the various properties that

were adjudicated. Mrs. Bennett also moved for a new trial in which to establish the ownership of the

fair cabin and the multitude of unadjudicated properties.

She further asserted that the failure of the court to award her fee simple ownership so as to enable

her to refinance her obligations placed her in desperate financial circumstances, in part because Mr.

Bennett had retained actual possession of and legal title to the substantial personal property which the

court had not adjudicated. She further noted that the state of the title left each party a survivorship

interests in all of the property.

Additionally, Mrs. Bennett noted that the funds in the escrow account which she had been awarded

had been applied against the mortgage on the chicken houses, leaving her with only about $7,000 as

of the date of the motion. Thus, she urged the court to reconsider its denial of her request for

alimony.

Mrs. Bennett also filed a contemporaneous Motion to Recuse, arguing that the various amendments

to the court's three successive judgments demonstrated bias and prejudice in favor of Mr. Bennett.
Thus, she urged the court to recuse itself after making findings of fact and ordering a new trial.

In response to these motions, the Court held a hearing on March 11, 1994 at which it declined to

recuse itself on the record. Without hearing any argument, it issued a final Order and Opinion

denying the motion for new trial.(2) The court made several important rulings, including:

(1) findings on the comparative values of all of the personal property would be impossible,

given the lack of evidence of value of some of the items. It also ruled that such findings would

be irrelevant to the courts ultimate decision;

(2) the request to make findings about Mrs. Bennett's contributions and equity in all of the

property was"in the nature of a discovery deposition," and had been adequately addressed in the

prior decisions in the case;

(3) the court's failure to make any award of the 164.5 acre tract in Winston County or the 49

acres of land that had been removed from Mrs. Bennett's original award had been adequately

addressed in the previous judgments and in a special conference on the record, in which the

court notes that it never intended to adjudicate this parcel at all, and had erroneously awarded it

to Mrs. Bennett in its original Final Judgment;

(4) it had considered the issue of whether the merchantable timber should be harvested and its

profits awarded to the parties, and would not review its decision not to itemize the timber as an

item of marital property;

(5) the reference to the joint liabilities of the parties that was made in the Composite Final

Judgment was only meant to reflect the fact the court had considered the joint nature of the

liabilities as one of the criteria that was used as a basis for the division of all of the property, not

as a basis for any assessment of liability for payment;

(6) finally, it would not order any further partition of property in order to enable the parties to

separate their holdings and obligations because doing so could force the lending institutions (or

the chicken buyers) to take actions that would lead to a result not foreseen by and out of the

control of the court.

In response to this final order of the chancery court, Mrs. Bennett petitioned this Court on March 24,

1994 for a Writ of Mandamus, requesting that this Court order the chancery court to partition and

make awards of all items of personal and real property not theretofore decided, order all things

necessary to separate the debt on the chicken houses, order the sale of the merchantable timber, and

order the chancellor to consider recusing himself from further service, since the chancellor had told

Mrs. Bennett's attorney that a supervisor had attempted to speak with him on behalf of Mr. Bennett.

The petition was denied on April 7, 1994.

Mrs. Bennett presently appeals this final order of the chancery court, raising several issues.

II.

I. THE CHANCELLOR FAILED TO DETERMINE THE EXTENT, AND CORRESPONDING

VALUE OF, THE MARITAL PROPERTY
Mrs. Bennett first argues that the chancery court erred in failing to adjudicate the value and extent of

the marital estate. Noting that the court conceded its confusion at the vast array of personal and real

property, Mrs. Bennett cites Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994), and Hemsley v.

Hemsley, 639 So. 2d 909 (Miss. 1994), for the proposition that the chancery court should have

allowed sufficient testimony to alleviate his confusion and aid a determination of the fair market value

of the multitude of assets that the Bennetts had acquired over the course of their marriage.

This Court will not disturb the findings of a chancellor unless manifestly wrong. Newsom v. Newsom,

557 So. 2d 511, 514 (Miss. 1990). In Hemsley, this Court held that "[a]ssets acquired or

accumulated during the course of a marriage are subject to equitable division unless it can be shown

by proof that such assets are attributable to one of the parties' separate estates prior to the marriage

or outside the marriage." This Court further held that "[w]e assume for divorce purposes that the

contributions and efforts of the marital partners, whether economic, domestic or otherwise are of

equal value." Hemsley, 639 So. 2d at 914-15.

Mr. Bennett counter-argues in this appeal that the chancellor did not consider the multitude of

unadjudicated properties as part of the marital estate because he must have found that Mrs. Bennett

had only made a substantial contribution to the chicken business, and no other aspect of the estate.

Mr. Bennett's argument, however, does not properly reflect the law. While the nature of a spouse's

contribution to the marital estate may be relevant to the division of the estate, it is irrelevant to the

substance of the marital estate, which Hemsley defines as all assets acquired during the course of the

marriage. Moreover, Mrs. Bennett's conceded contributions to the chicken enterprise (not to mention

her contributions to the rearing of the children and the care of the home) can only logically be

understood to have contributed to the acquisition of the other properties that was undertaken with

the profits from the chicken enterprise.

Thus, we find that the chancery court erred in declining to consider the multitude of properties that,

according to the stipulations and the live testimony, comprise the Bennetts' marital estate, and which

have been repeatedly enumerated in Mrs. Bennett's various motions for adjudication of the items and

parcels. Thus, we are compelled to remand this cause for further adjudication in this regard.

II. THE CHANCELLOR ERRONEOUSLY FAILED TO EQUITABLY DIVIDE THE MARITAL

PROPERTY

Mrs. Bennett next argues that the chancery court's division of property was erroneously inequitable.

In particular, she notes the court's failure to adjudicate a substantial amount of marital property and

its failure to clear up the confusion about whether both parties were required to transfer title with

respect to the properties that were adjudicated, which would have enabled the Bennetts to make

respective arrangements about their joint debt.

In Ferguson, this Court outlined the factors which should guide a chancellor's analysis when

performing an equitable division, including:

1. Substantial contribution to the accumulation of the property. . . . [;]
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 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. This Court further held that findings of fact and legal conclusions must

be made in order to enable appellate review about these factors. Id. at 929.

Not having the benefit of Ferguson's elucidation, the lower court failed to conduct an analysis that

reflected any consideration of several of the Ferguson factors, particularly the fifth and seventh

factors (consideration of economic consequences of the division and the need for financial security).

Therefore, we also remand the chancery court's equitable distribution for further determination in

light of the several Ferguson factors. These factors should provide some guidance in analyzing on

remand the import of the Bennetts' joint debts in determining an equitable division, and the utility of

ordering transfer of title.

III. THE CHANCELLOR ERRONEOUSLY DENIED THE APPELLANT'S REQUEST FOR

LUMP SUM AND PERIODIC ALIMONY

Mrs. Bennett next argues that the chancery court erred in denying her request for alimony. The

decision to award alimony is largely within the discretion of the chancellor, and a decision in this

regard will not be disturbed on appeal unless it is found to be against the overwhelming weight of the

evidence or manifestly in error. McNally v. McNally, 516 So. 2d 499, 501 (Miss. 1987).

In its Opinion following the divorce portion of the proceeding, but preceding the actual decree, the

chancery court stated that "[t]he Court is of the opinion that since the division of the property was

done in such a manner to ensure the Plaintiff of a livelihood by operating the chicken houses, further

relief in the form of periodic or lump sum alimony is not warranted." It made no further findings of

fact on the matter, nor suggested that it had otherwise considered the numerous factors that this

Court has held should be considered in Cheatham v. Cheatham, 537 So. 2d 435 (Miss. 1988) (lumpsum alimony), or Hammonds v. Hammonds, 597 So. 2d 653 (Miss. 1992) (periodic alimony).

This Court has held that the determination of whether alimony is warranted should be considered
together with the determination of property division and child support provisions. We therefore direct

the chancery court to review its denial of alimony as it conducts its equitable distribution of all of the

property on remand. Ferguson, 639 So. 2d at 929.

IV. THE CHANCELLOR ERRED IN FAILING TO ORDER THE SALE OF MERCHANTABLE

TIMBER SO AS TO REDUCE MARITAL DEBT

Mrs. Bennett next argues that the chancery court erred in denying her repeated requests that he order

their merchantable timber harvested and the proceeds applied against the Bennetts' joint debt. As with

the rest of the marital property that the chancery court failed to address, we remand this cause in

order that the chancery court apply the Ferguson analysis to the timber, and, thereafter, equitably

distribute it.

V. THE CHANCELLOR ERRONEOUSLY FAILED TO AWARD ATTORNEYS' FEES TO

MARTHA BENNETT

Finally, Mrs. Bennett argues that the chancery court erred in declining to award her attorneys' fees.

Mrs. Bennett states that she is unable to pay her attorneys' fees because of Mr. Bennett's secret sale

of cattle, which deprived her of money with which to pay her attorney.

The question of attorneys' fees in a divorce action is a matter largely entrusted to the sound discretion

of the trial court. Where a party has not shown an inability to pay, attorneys' fees are generally not

appropriate. Jones v. Starr, 586 So. 2d 788, 792 (Miss. 1991).

Nevertheless, an award of attorneys' fees, or the failure to make such an award, is an economic ruling

which arises out of a chancery court's assessment of the financial position of the parties. Thus, in light

of the fact that the entire matter of the economic and property distribution needs to be remanded for

redetermination, the query of whether Mrs. Bennett can afford to pay her attorneys' fees needs to be

reconsidered on remand as well. See, e.g. Brooks v. Brooks, 652 So.2d 1113, 1120 (Miss. 1995)

(ability to pay attorneys' fees may be evaluated after the chancellor awards alimony and property to

the parties upon remand); Brabham v. Brabham, 226 Miss. 165, 177, 84 So.2d 147 (1955) (where

alimony and child support have been remanded, chancery court should make adjustments for

attorneys' fees).

III.

For the foregoing reasons, we vacate the chancery court's final order, and remand this cause for

reevaluation in light of the guidance of this Court's decisions in Hemsley and Ferguson. On remand,

the chancery court should specifically determine the extent, value, and equitable distribution of the

marital property that was the subject of testimony at the court's initial hearing on the matter, and was

the subject of Mrs. Bennett's repeated requests for clarification.

REVERSED.

PRATHER AND SULLIVAN, P.JJ., PITTMAN, McRAE, ROBERTS AND SMITH, JJ.,

CONCUR. LEE, C.J., CONCURS IN RESULT ONLY. MILLS, J., NOT PARTICIPATING.
1. These figures that Mrs. Bennett asserts in this motion are not apparent from the testimony in the

record. Mr. Bennett testified that he had sold thirty or forty cows for around $45,000. He further

testified that he traded an additional twenty cows for a tractor, later indicated to be the Massey

Ferguson tractor. He valued those cows at an average of $325 a piece, which would total $6,500,

bringing the aggregate of the cattle sale proceeds to $51,500 (not discounting for any worth of the

tractor that Mr. Bennett claimed he received for the last twenty cows; in any event, he subsequently

gave the tractor to Mr. Aubrey Warren, who had done some work on it). Mr. Bennett also testified,

however, that this batch of cows was probably worth between $8000 and $9,000. In any case,

assuming that the cows' value was $325 per head, Mrs. Bennett figure of $52,200 is $700 above our

simple calculations, and her source for her figure remains unclear. Although the record is difficult to

comprehend, it seems that her equitable interest in the cattle sales amounts to only $25,750; in any

event we leave this calculation to the trial court to determine on remand.

2. Although this Opinion is the chancery court's final order from which Mrs. Bennett appeals, it is not

included in the Record Excerpts. It can be found in the Clerk's Papers at 135.