IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-00847-COA CHRISTOPHER PAUL VANDENBROOK APPELLANT

v. CHARLOTTE EMMA (MCKINNEY) VANDENBROOK APPELLEE

DATE OF JUDGMENT: 01/03/2017 TRIAL JUDGE: HON. VICKI B. DANIELS COURT FROM W HICH APPEALED: DESOTO COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: D. PACE BRANAN T. SW AYZE ALFORD KAYLA FOW LER W ARE ATTORNEYS FOR APPELLEE: CHARLES E. W INFIELD MALENDA HARRIS MEACHAM ASHLYN BROW

N MATTHEW S NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED IN PART, REVERSED AND REMANDED IN PART, AND REVERSED AND RENDERED IN PART - 03/26/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. CARLTON, P.J., FOR THE COURT: ¶1. C h r i s t o p h e r V a n d e n b r o o k ( C h ris) appeals the judgm ent of the DeSoto County Chancery Court that, am ong other things, (1) a w arded custody of the parties’ m inor children

to his wif e, Charlotte Em m a V andenbrook 1 (Em m a), (2) ordered Chris to pa y Em m a child support, but denied him the right to claim any of the childre n o n h is tax return, and (3) adjudicated Chris in contem pt and awarded attorney ’ s f ees to Em m a.

1 E m m a n o w g o e s b y t h e l ast n am e “M c K in n ey ,” w h ich w e assu m e is h e r m aid en n am e b ecau se sh e is still leg ally m arried to C h ris.¶2. A f

t e r o u r r e v i e w , w e f

i n d a s f ollows: w e af

f irm t he chancello r ’ s c u s t o d y d e t e r m ination; we reverse a nd rem and the c h ancellor’s award of child s upport and retroa c t i v e child support; we af

f irm t he chancellor’s a w a r d of t he tax exem ption to Em m a and denial of
C h r is’s m otion f

o r reconsideration with r espect to Chris’s r equest to of f er a d d i t i o n a l e v i d e n c e regarding his W -2; we af f i rm the chance l l o r ’ s d e cision to exclude the p hotographs of the

m arital hom e f

rom evidence; a nd we reverse and render the chancellor’s judgm e nt f inding Chris in contem

pt as well as the c hancellor’s award of attorney ’s f ees to Em m a in the

contem pt action.
FACTS ¶3. Em m a and Chris were m arried on Ja n u a r y 1 4 , 2 0 0 0, in Paducah, Kentucky . Three

m ale children w ere born to the parties. During the m a r riage, the parties l ived in K entucky , North Carolina, Missouri, and Mississippi. Chris worked during the m a rriage and was the prim ary breadwinner, while Em m a was prim arily a stay -at-hom e parent. ¶4. On April 23, 2014, Em m a f iled a com

plaint f or divorce and tem

porary relief on the grounds of habitual cruel a n d inhum an treatm ent, constructive desertion, or i rreconcilable dif f erences. Em m a requested custody of the parties’ three m inor children, child support,
per manent a lim ony , and a n equitable division of the m arital assets. She also requested separate m aintenance. Chris f iled an answer a nd a counterclaim but later withdrew it. The chancellor entered a tem porary order on April 5 , 2 016, ordering Chris to pay E m m a temp o rary child s upport in the am ount of $1,400 per m o nth and to pay f or Em m a’s

2autom obile note and insurance. The tem porary o rder also allowed Em m a to m ove back into the m arital h o me with Chris if she chose to do so, and b oth parties were enjoined f rom

rem oving any

property f

rom the m arital hom e. ¶5. Af ter several continuances, the m atter was set f or trial, and Em m a f

i led a petition f

or
contem pt against Chris, alleging that h e had violated the tem porary order by exercising stock options. Em m a’s petition was set f or hearing on the date of the trial. ¶6. A trial w as held on Decem ber 13, 2016. Em m a presented her case a nd eviden c e to support her grounds f

or divorce, and at the conclusion of E m m a’s case, Chris m oved f or an involuntary dism i ssal of Em m a’s com plaint pursuant to Rule 41 of the Mississippi Rules of Civil Procedure. ¶7. On Decem

ber 15, 2016, t he chancellor m ade a bench ruling granting Chris’s Rule 41

m otion and dism issing Em m a’s com plaint f or divorce on the grounds of h abitual cruel and inhum an treatm ent. T he chancellor also f ound Chris in contem

p t of the tem

porary order f

or selling stock options without obtaining approval or perm ission of the court. ¶8. Regarding child custody , the chancellor conducted a n Albright 2 analy sis and f

ound it

was in the children’s best interest to grant Chris and Em m a joint legal custody , with Em m a havin g phy sical custody and Chris having certain periods of visitation. The chancellor ordered Chris to pay Em m a $ 3,690 per m onth in c hild support; m aintain h ealth, vision, and dental insurance on t he m inor children, and be responsible f o r seventy -f

i ve percent of all

2 A lb rig h t v. A lb rig h t , 4 3 7 S o . 2 d 1 0 0 3 , 1 0 0 5 (M iss. 1 9 8 3 ). 3m edical expenses not covered by insurance. The chancellor also o rdered Chris t o pay Em m a

$49,730 i n retroactive child s upport. Additionally , the chancellor ord e r e d Chris to pay Em m a attorney ’s f

ees in the a m o unt of $29,346.06 f or the d ivorce and $2,500 in attorney ’s f ees f or the contem

pt action. On January 3 , 2017, the chancellor entered a n o rder m em orializing her bench ruling. ¶9. Both Em m a a nd Chris f i led m otions f

or reconsideration, seeking t o alter or am end the judgm ent pursuant to Rule 59 of the Mississippi Rules of Civil Procedure. Em m a also f iled

a m otion f

or additional attorney ’s f

ees, and Chris f

iled a separate m otion f

or relief f rom the judgm ent pursuant t o Mississippi Rule of Civil Procedure 6 0(b). Following a hearing on the

m otions, the chancellor took them under a dvisem ent, and on June 1, 2017, the chancellor entered her o rder deny ing Chris’s m o tions and granting in part and deny ing in part Em m a’s

mo tion, stating that the denial o f a divorce was proper. The order also deni e d E mma ’ s
requ e s t f o r a dditional attorney ’s f

ees. Chris appeals f

rom the f inal o rder and the denial of his posttrial m otions.
DISCUSSION ¶10. “A chancellor’s f indings will not b e dist u r b e d o n a p p e a l ‘ w h e n s u p p o r t e d by substantial evidence u nless the chancellor a bused [ her] d i s c retion, was m anif estly wrong, clearly erroneous[ ,] or an e rroneous legal s tandard was applied.’” Powell v. P owell , 976 So. 2d 358, 3 61 (¶10) (Miss. Ct. App. 2008) (quoting Sanderson v. Sanderson , 8 24 S o. 2d 623,
625-26 (¶8) (Miss. 2002 )). “However, where t he chancellor im properly considers and

4a p p l i e s t h e Albright f actors, an appellate c ourt is obliged to f ind the chancellor in error.” Collins v. Collins , 98 So. 3d 506, 507 (¶7) (Miss. Ct. A pp. 2012). “ I t is f or the chancellor

to determ ine t he credibility and weight of t he evidence.” Divers v. Divers , 856 So. 2d 370, 373 (¶9) (Miss. Ct. App. 2003).
I. Custody ¶11. In custody m atters, the Mississippi S uprem e Court has e s t a b l i s h e d t h e f ollowing guidelines to assist c hancellors in m a king considerations regarding t he best interest of children:
W e reaf f irm the rule that the polestar c onsideration in child[

- ]custody c ases is the best i nterest and welf

a re of the child. T he age of t he child is subordinated to that rule and is b ut one f a ctor to be considered. Age should c arry no greater weigh t than other f

actors to be considered, s uch as: health[ ] and sex o f the child; a d eterm ination of the parent that has had the continuity of c a re prior to the s eparat i o n ; w h i c h has the best parenting skills a nd which has the willingness and c apacity to provide prim a ry child care; the em p loy m e nt of the parent and responsibilities of t hat em p loy m ent; phy s i cal a nd m ental health and a ge of the parents; e m o tional ties of p arent and child; m o ral f itness o f [ t h e ] parents; the hom e, school[ ,] and com m unity record of t he c h ild; the pref erence of the child at the a ge suf f ici e n t to express a pref

e rence b y law; stability of hom e environm ent and em p loy m ent o f each p a

r e n t [; ] a n d o t h e r factors relevant to the parent-child relationship. Albright , 437 So. 2d at 1005. 3 ¶12. W i th these guidelines in m ind, Chris concedes that the c hancellor u s e d t h e c o r r e c t legal standard set f

orth in Albright to determ ine c hild c ustody , b ut he contends that she f ailed

3 “A co u r t w h ich d ism isses th e co m p lain t f o r d iv o rce m ay s t ill p ro v id e f o r t h e cu sto d y o f th e ch ild ren if [ th e co u rt] d eem s it n ecessary . ” Wa ller v. Wa ller , 7 5 4 S o . 2 d 1 1 8 1 , 1 1 8 3 (¶1 2 ) (M iss. 2 0 0 0 ). 5to consider all of the evidence i ntroduced at trial on those f actors. He f

urther c o ntends that

t h e chancellor f

ailed to give the appropriate w eight to several f actors. As a result, C h r i s
argues that the chancellor e rr e d w h e n s h e awarded phy sical custody of the children to
Em m a. 4 Em m a, however, asserts that the chancellor em ploy ed her subjective judgm ent of the witnesses’ credibility , assessed the wide-ranging evidence bef ore her, and acted within her discretion in awarding custody of the m inor children. ¶13. The c hancellor f

ound that f

ive of the Albright f

act o r s f a v o r e d Em m a (continuity of

care; parenting skills; em

ploy m ent and responsibilities of em ploy m ent; e m otional ties with children; a nd pref

erence of two oldest children) and t hat only one of the f a c tors f avored Chris (sex of the childre n). 5 The chancellor f ound that t he rem aining six f a ctors f a vored neither parent o ver the other (health of t he children; w illingness and capacity to be the prim ary care giver; age, phy sical health, and m ental health o f each parent; m oral f itness; hom e, school, and

com m unity records of

children; and stability

of hom e environm ent and em p loy m ent).
A. Age, Health, and Sex of the Children ¶14. Chris contends that t his f actor clearly f

avored him b ecause all of the children are m ale.
He relies on Flowers v. Flowers , 90 So. 3d 672, 680 (¶32) (Miss. Ct. A p p . 2 0 1 2 ) , w h ich

state s t hat “when t he health aspect is neutral, the c hild’s gender in relation t o that of the

4 A s stated , th e ch an cello r ru led th at th e p arties w o u ld sh are j o in t leg al cu s to d y o f th e m in o r ch ild ren w ith E m m a h av in g p h y sical cu s t o d y . 5 A lth o u g h th e c h a n c ello r stated th at th e sex o f t h e ch ild ren slig h tly f av o red C h ris, sh e u ltim ately

ru led th at th is issu e w as n e u tral. 6parent is clearly relevant. Furtherm ore, t his Court has upheld a chancellor’s determ ination

on this f actor based solely on gender.” ¶15. T h e c hancellor in t he present case reasoned that a l l the children appear e d t o b e i n good health, because she d i d n o t h e ar any evidence to t he contrary

. She adduced that the health o f the children did not f

avor either party . Since the children are all m ale, she f ound that t his “f

actor m ight slightly f

a vor [ Chris].” She f

ound that the health of the children did not f avor either party . W e f

ind no abuse of

discretion as to this f

actor.
B. Continuity of Care ¶16. The chancellor stated the f ollowing: “[ This] f

actor strongly f

avors t he m other. T he

m other [ has been] a stay -at-hom e m om f or the m ajority of the lif

e of these children. And so she continued to have the children, even during periods of separation s he has still seem ed to exercise the continuity of care of the children.” Chris asserts that t h i s f a c t o r should not def ault t o a stay -at-hom e m om . He f urther asserts that although Em m a was a stay -at-hom e

m om , “she spent m

uch tim e during the m arriage t raveling back and f o r th to K entucky , party ing with f

riends, pursuing extram arital relationships, a nd on her p hone texting or calling individuals.” ¶17. Em m a responds that the chancellor’s f inding on this f

actor i s supported by substantial evidence and theref

o re should be af

f irm ed. Despite Chris’s argum ents, it is the chancellor’s job to determ ine the c redibility and weight of the evidence. Based our review of t he record, her decision was supported by substantial evidence and will not be disturbed.

7C. Parenting Skills

¶18. According to the chancellor, based on t he l im ited testim ony with respect to this f actor, this f actor f a vored Em m a because she was t he p rim ary care giver f or the children. S he f

ound the parties had equal ability and capacity to provide childcare. The chancellor spoke brief ly

on the r ecord about som e of the issues that she had heard during the testim ony , s uch as the ch i l d r e n o b t aining driver’s licenses and school issues. I n arriving at her decision, the chancellor stated:
Mom is the one that, y ou know, did the parenting i ssues. S o I think that f actor slightly f avors the m om . As I said, I didn’t hear any thing except m ay

be som e relationship i ssues between dad and t he b oy s that would lead m e to b elieve and that m ay be h e y e lled a lot, y ou know, that his parenting skills were def icient except m ay

be they a re just dif

f erent f rom m om [ ’]s. But, a s I s a id, I think this f actor slightly f

avors the m om . Chris c o n t e n d s that Em m a dem onstrated p oor parenting skills and m ade poor decisions

a f f e c t i n g the children during the m arriage. He argues that she did not know how ma n y classes their oldest son had lef t bef ore he c o u ld get his h igh school diplom a, and that she ref used to give him the birth certif i cates and social security num bers f or their oldest two boy s

so they could obtain t heir driver’s licenses. Chris asserts that he is in a “m uch m ore capable

a nd positive position to m odel the values the boy s need in order to transition into a productive adulthood.” ¶19. Af ter our review, we f

ind that the record contains substantial evidence t o support the chancellor’s decision; theref ore, the decision will not be disturbed.
D. Employment Responsibilities
8¶20. The cha n c e l lor f ound that, considering the t estim o ny regarding the am ount of tim e that Chris would spend out of the hom e working, this f actor s lightly f

avored Em m a. She stated that “the testim ony was that dad would ha v e t o l e a v e at six or six-thirty -- the child said one thing and dad said another thing -- in t he m orning and get hom e any where between six-thirty and nine-thirty at night.” There was also testim ony that Em m a worked less hours and would b e hom e m ore of t en than Chris. W e f

ind substantial e v i d e n c e i n the record supports the chancellor’s decision; theref ore, it will not be disturbed.
E. Physical and Mental Health and Age of the Parents ¶21. The chancellor f

o und that this f

a ctor f avored neither parent. She did m ake note of

m edical r ecords that were introduced by C hris challenging Em m a’s m ental state; however, she stated that she m ade a d eterm ination that, af ter reviewing t he records, E m m a was never diagnosed with a m ental d ef ect. W e f

ind substantial e vidence in the re c ord supports the chancellor’s decision; theref ore, it will not be disturbed.
F. Emotional Ties of Parent and Child ¶22. The chancellor f

ound that this f

actor strongly f

avored E m m a based on the pref erence of the two oldest c hildren, expressed i n t h e i r a f f idavits, as to live w ith her. W e f ind substantial evidence in t he record supports the chancellor’s decision; theref ore, it w ill not be disturbed.
G. Moral Fitness of the Parents ¶23. The chancellor brief ly d iscussed the parties’ sexual proclivities, which they testif ied

9about extensively , and ultima t ely determ ined that t heir m oral f i tness was not outcom e determ inative as to this f

actor. She f

urther stated, “I d on’t think

- - I t hink with regard to their

m oral f itness they probably are rather equal. Quite h onestly , I b elieve both of them this court had a n issue with truthf

ulness. I don’t think either one o f them sat up here and told m e the truth a b out every

thing.” W e f

ind substantial evidence in the record s u pports the chancellor’s decision; theref

ore, it will not be disturbed.
H. Home, School, and Community Record of the Child ¶24. The chancellor f

ound that there was not a lot of the testim ony presented regarding this
f actor—only that o ne of the c hildren had been kicked out o f school—and lim ited testim ony about t heir hom e lif

e. T heref ore, she f ound that this f

actor f avored neither parent. W e f ind substantial evidence in t he record supports the chancellor’s decision; theref ore, it w ill not be disturbed.
I. Preference of Child ¶25. According to the chancellor, both of the older children signed a pref erence that was
f iled with the c ourt, stating that they wanted to live with Em m a. W e f i n d s u bstantial evidence i n the r ecord supports the chancellor’s decision; theref ore, it will not be disturbed.
J. Stability of Home Environment ¶26. The c hancellor noted that Chris has been out in the workf orce longer, so this f

actor slightly f avored him ; however, she also stated that Em m a just reentered the workf orce and

seem ed to have a stable hom e. B ased on that f inding, she f

ound this f

actor f avored neither

1 0parent. The record ref lects substantial evidence to s upport t his f i nding, and theref

ore it will not be disturbed. ¶27. Our review of the rec o r d r e f l e c t s t h a t the custody award b y the c hancellor was supported by substantial e v i d e n c e . Given our def erential standard o f r eview, w e f ind the chancellor did not abuse her discretion. Theref ore, we af f i rm t he chancellor’s judgm ent on this issue.
II. Child Support ¶28. “[ T]he process o f w eighing evidence and arriving at a n a w a r d o f c h i l d support is essentially an e xercise in f act-f inding, wh i c h custom arily signif icantly restrains [ the appellate] [ c]ourt’s review.” C lausel v
. C

lausel , 714 So. 2d 265, 266-67 (¶6) (Miss. 1998).
At the tim e of trial, the Vandenbrooks had three m inor c hildren. The chancellor calculated Chris’s m onthly

adjusted gross incom e (AGI) at $16,785.50 per m onth and ordered him to
pay $3,690 per m onth i n child support. Mississippi’s statuto r y c hild-support g uidelines

create a rebuttable presum ption that the non-custodial parent should pay twenty -two percent of his AGI f

or the support of three m i nor children. Miss. Code Ann. § 43-19-101(1) (Rev. 2015). I t is uncontested that Chris’s i ncom e e xceeds $100,000 per y ear. Section
43- 1 9

- 1 0 1 ( 4 ) p r o vides that “[ i]n cases in which t he [ A GI].

. . is m ore than One Hundred Thousand Dollars ($100,000) . . . the court shall m ake a written f i nding in the record as to whether o r not t he ap p l i c a t ion of the guidelines established in this section is r easonable.” (Em phasis added). Chris argues t hat the c hancellor’s award was unreasonable, and she did

1 1not provide f indings as to why the award w as reasonable in accordance with section 43-19-
101. 6 ¶29. Chris asser t s t h at the pay m ents should have been established at twenty -two percent of his b a se m o n thly incom e , wit h a n a dditional twenty -two percent to b e paid f rom any

am ount r eceived as a b o nus o r f r om the exercise of a stock o ption. However, the chancellor

ave r a g e d C hris’s AGI f

o r the f our y ears preceding the y e a r o f the divorce by including

am ounts he received as bonuses and f rom the exercise of stock options. Chris contends that the chancellor erred i n this regard. He asserts that he h ad a net incom e of $7,558.18 per

m onth and expenses of $5,872.79 which lef t h im with a m o nthly s urplus of only $1,685.39.
H e f u r ther contends that once he pay s the $3,690 m onthly child-support award, the healt h insurance prem ium s, plus seventy -f ive percent of all out-of

-pocket m edical expenses f or the children, h e will be a t a huge def icit each m onth. As such, he r equests that this Court reverse the child-supp o r t a w a r d and rem a nd the case f or a proper application of the guidelines to arrive at the am ount of

child support that is due. ¶30. Em m a responds t

h a t the chancellor was within her discretion in not m aking reductions

to Chris’s child support obligations. “W hen a chancellor m akes a ruli n g without specif ic

6 T h e reco rd ref

lects th at in h is p o sttrial m o tio n f o r reco n sid eratio n , seek in g to alter o r a m e n d th e j u d g m en t, an d f o r relief f ro m j u d g m en t, C h ris req u ested th at t h e ch an cello r am en d h er o rd er in acco rd an ce w ith M ississip p i C o d e A n n o tated S e ctio n 4 3 -1 9 -1 0 1 (4 ) an d m ak e a w ritten f

in d in g i n th e reco rd an d d i scu s s th e reaso n ab len ess o f t h e ch ild su p p o rt aw ard

. In th e ch an cello r’s o rd er d en y in g C h r is’s m o tio n , th e ch an cello r f ailed t o sp ecif

ically ad d ress C h ris’s req u est f

o r w ritten f

in d in g s. I n stead , s h e h eld th at “[ t] h e [ c] o u r t’s ru lin g o n ch ild su p p o rt, ch ild cu sto d y , an d atto rn ey ’s f e es w as p ro p e r .” 1 2f

indings of f

act, this [ c]ourt assum es that the chancellor resolved any f actual disputes in f

avor

o f t he appellee.” Bredemeier v. Jackson , 689 So. 2d 770, 7 77-78 (Miss. 1997). S e c t i o n 43-19-101(3)(a) instructs that gross incom e is calculated “f rom all potential sources that m ay reasonably be expected to be a vailable to the a bsent parent.” In Roberts v. Roberts , 924 So. 2d 550, 553 (¶5) (Miss. Ct. A pp. 2005), t his Court held that “[ b] e c a u s e M r. Roberts’[ s] incom e f luctuated, the chancery c ourt used a three-y ear i nco me a v erage to determ ine the applicable am o unt o f child support. W h ere incom e tends to f luctuate, a chancellor m ay use incom e averagin g t o c alculate applicable child s upport.” Em m a a s serts i n her brief that Chris’s total average AGI over 2013, 2014, 2015, and 2016 was $201,425.97. W hen divided

over twelve m onths, his m onthly AGI e quals $16,785.50. Twenty -two percent of t ha t

m onthly AGI equals $3,692.81. The chancellor slightly reduced t he award to $3,690.00 f or the sake of

having an even num

ber, which resulted in her award am ount. ¶31. The chancellor f

ound that Chris reasonably expected to r e c e i v e bonuses a nd stock options, because Chris a cknowledged t hat he received them every y ear. The chancellor stated in her f

i ndings that if Chris no longer receives b onuses o r o t h e r i ncentives, he m ay petition t he court to adjust his child-support obligation based upon a m a terial change in circum stances. If Chris desired to claim f inancial inability to pay the child support that the chancellor awarded, it w as his burden to establish that claim

. Masino v. Masino , 829 So. 2d 1267, 1273 (¶28) (Miss. Ct. App. 2002). ¶32. Since Chris’s inc o me e x c e e d e d $ 1 0 0 , 0 00, the chancellor was required to m ake

1 3written f

indings as to whether the application of the guidelines was reasonable—in

com pliance with section 4 3-19-101(4). The chancellor f ailed to do so. Theref

ore, we reverse that aspect of the chancellor’s judgm ent a nd rem and thi s i s s u e f or a determ ination as to whether the statutory

guidelines should apply a long with a determ i nation o f the am ount of support to be paid.
III. Tax Ex em ptions ¶33. Chris argues that Em m a had no signif icant incom e f

r om which she would have any advantage in claim ing the dependent child exem ption, so t h e c h ancellor e rred in not awarding him the deductions. The chancellor’s original order was silent as to the t ax exem ptions. A decision that does not address the exem ption leaves t he deduction with the custodial parent. See Deborah H. Bell, Mississippi Family Law §13.08[ 1] at 451 (2d ed. 2011). ¶34. Em m a responds that the c hancellor wa s n o t r e q u i r e d t o give him the exem ption; theref ore, she did not err in f

ailing to do so. In response to Chris’s argum e n t that she “had

no signif icant incom e, which would m ake it advantageous to her to be a b l e t o c laim the

exem ption,” Em m a asserts that i ncom e is not t he deciding f actor w hen i t com es to deciding who should be given the exem ption. Also relevant is the “ non-econom ic but nevertheless valuable contributions contributed by the custodial parent.” Louk v
. Louk , 761 So. 2d 878,
884 (¶17) (Miss. 2000). Notwithstanding that E m m a did not earn as m uch m oney as Chris, she was still bringing i n incom e th r o u g h h e r work as a f ull-tim e licensed practical nurse (LPN). This Court i n Neelly v. N eelly , 213 So. 3d 539, 542 (¶9) (Miss. Ct. A p p . 2 0 1 6 ) ,

1 4discussed sim ilar circum stan c es—although not directly on point—and listed exam ples of
f actors that chancellors could consider in awarding incom e-tax exem ptions: [ I]ncom e-tax exem

ptions are ty

pically m ost valuable t o the party in the higher tax bracket and can be worthless t o a party with little or n o incom e. Chancellors can construct an order f o r c h ild support that equitably takes into consideration which party received the benef i t of t he tax a d v a ntage, while m axim izing the overall incom e availab l e t o benef it the child. [ N

i chols v. Tedder, 547 So. 2d 766, 776 (Miss. 1989)]; see also Louk , 7 61 S o. 2d at 884 (¶17) (enum erating various f actors chancellors can consider when allocating tax exem ptions, including noneconom i c contributions by the c u stodial parent, the value of the exception at the m arginal tax rate of each parent, the incom e of each parent, t he age of the child and how long the exem ption will be available, t he perce n t a ge of the cost of supporting the child borne by each parent, and the f

i nancial burden assum ed by e a c h p a r e n t under the property settlem ent in the case).
As the higher-incom e earner, the exem ption would have been m ore b enef icial to Chris. Even

s o , w e c a nnot s ay that the chancellor a bused her d iscretion i n awarding Em m a the ta x

exem ptions f or the children.
IV. Retroactive Child Support ¶35. The chancellor ordered Chris to pay r etroactive child s u pport f or the m o nths of

May
2015 through Decem

ber 2016 (with the exception of July and August in 2016 when Em m a was living in the hom e). In ordering the retroactive child support, the chancellor stated:
So I am going to award retroactive child support f or the [ seventeen] m onths that s he has been

- - t hey have been separated. That t w o o f t h o s e m onths, I m ean, they basically been separated f or 1 9 m onths through Decem ber. July , and August she was living back in the hom e , s o I’m not u sing those m o nths. So the retroactive child support is $49,730[ ,] and I’m g iving Em m a a j udgm ent against Chris in that am ount[ ,] and the judgm ent is to be pay a ble within [ ten] day s o f t he date o f this order. Chris has got quite a b it of m oney f rom the stock option that he exercised in an a ccount, so he’s g ot the a bility to pay t hat
1 5im m e diately

.

A tem porary order entered by the court on April 5, 2016, stated that any issues concerning retroactive support would be considered at trial. The c h a n c e llor, i n accordance with her
express intent to do so, considered and a warded retroactive child s upport f ollowing the trial

on the m erits. E m m a asserts that the chancellor’s award was n ot a n a b u s e o f d iscretion because she applied the sam e child-support calculation t hat was set based upon a r easonable
average of Chris’s AGI, and she applied credits f or s upport Chris h ad already paid under the prior order in place. She f urther asserts that Chris is not entitled to receive credit f or am ounts she received that were n ot f or t he support of t heir children. She also contends that Chris did

n o t m ake an on-the-record objection challenging t he award and should be p revented f r o m addressing this issue on appeal. S e e Strong v. Strong , 981 S o. 2d 1052, 1 054 (¶¶13-15) (Miss. Ct. App. 2008). ¶36. Chris argues t hat the calculat i o n w a s i n c o r r e c t b e c a use the chancellor used the incorrect AGI and she did not give him proper credit f or other m oney that he paid Em m a during that tim e period. Chris also alleges that Em m a received a partial distribution of the stock sold in 2 016 in the am ount of $29,000 and tax ref unds during the d ivorce action in the

am ount of $ 7,000. Additionally , he argues t h a t E mm a never specif ically requested any retroactive child support in any pleadings; theref ore, the chancellor should not h ave included it. Since we are reversing the child

- s u p port a ward b ecause the chancellor f ailed to m ake written f indings as t o whether the application of the guidelines was reasonable, the issue as

1 6to the am o unt of retroactive child support shall be subject to the sam e review and reversed as well.
V. W-2 Deductions ¶37. C h r i s a r g u e s that t he chancellor erred in not allowing h im to p resent a d d i t i o n a l testim o ny regarding the explanation of the num bers on his W -2. During the hearing on his

m otion f or reconsideration, he requested that the chancellor allow him to introduce his 2016
y ear-end pay s tub into e vidence and allow an additional witness to testif y a nd explain what the dif f erent num bers on this pay stub m eant. During trial testim ony , the parties disagreed regarding the m eaning of som e of t h e num bers on Chris’s W

- 2. H e contends that if the chancellor would have allowed him to introduce his y ear-end pay stub and the t estim ony of the additional witness, t he c hancellor could have arrived a t the correct child-support am ount. ¶38. Em m a argues that no m atter how the a mo u n t s a r e c l a ssif ied—whether as def

erred

com pensation or allocations toward health insurance cover a g e

— t h e total am ount still qualif ies as incom e f

or purposes of calculating Chris’s child-support obligation. She f urther
argues that s ubsection t hree o f Rule 59 is the only f easible place t hat Chris’s claim could be substantiated, but there was no error of law and there is no m anif est injustice that justif

ied granting his m otion. ¶39. A chancellor’s denial of a m otion f or reconsideration under Rule 59 is reviewed f or

an abuse of discretion. Ferguson v. Miss. Farm Bureau C as. Ins. Co. , 147 So. 3 d 374, 377 (¶11) ( M i s s . C t

. A pp. 2014). W e do not f ind t hat the chancellor abused her considerable

1 7discretion when she ref u s e d t o reopen the case and allow additional testim ony or docum entary evidence. Chris has of f e red no reason as to w hy he could not have of f ered the additional witness and docum entary evidence during the initial trial proceedings. W e theref ore agree that the chancellor did not abuse her discretion in d eny ing his m otion with respect to this issue. “The [ c]ourt has the discretion to order a rehearing or to alter or am end the judgm ent if convinced that a m istake of l aw or f act h as been m ade, or that injustice would attend a llowing the judgm e nt to stand.” Roebuck v. Mass e y , 7 4 1 So. 2d 375, 387-88 (¶38) (Miss. 1999) (quoting Mayoza v. Mayoza , 526 So. 2d 547, 549 (Miss. 1988)).
VI. Photograph Evidence ¶40. N e x t , Chris c ontends that the chancellor erred in not adm itting p hotographs of t h e condition of the m arital hom e into evidence. The chan c e l l o r r e f u sed t o allow the photographs into evidence unless Chris c ould state t he p recise date the photographs had been taken. Chris had previously testif i ed that he began taking the photographs at the tim e Em m a f iled f or divorce, but he did not have his cell phone with the photographs pres e n t , a n d the chancellor did allow him m ore tim e to re t r i e ve it. He contends that he satisf ied the requirem ents o f M ississippi Rules of Evid e n c e 1 0 01(d) and 901(b)(l) and theref ore the chancellor should have allowed the photographs into evidence. ¶41. A c hancellor’s d e cision not to adm it evidenc e w i l l n o t b e o verturned unless the chancellor abused her discretion to such an extent that a party has been p rejudiced. In re Estate of Laughter , 23 S o. 3d 1 055, 1064 (¶42) ( Miss. 2009). By asking Chris to authenticate

1 8the p hotographs by verif y ing t he dates they were taken, the chancellor was m erely requiring that C hris produce suf

f icient evidence to support a f inding that the photographs were what he claim ed they

were. ¶42. W e f

ind error, albeit h arm less error, in t he chancellor not adm itting the photographs into evidence. Mississippi Rule of Evidence 901(a) states: “To satisf y the requirem ent of

aut h e nticating o r identif

y i ng a n item of evidence, the proponent m ust produce evidence suf f i cient to support a f

inding t hat the item is what the proponent claim s it i s.” Chris testif ied that h e started t a k i n g the p hotographs f r om the tim e that Em m a f iled f or divorce, and he testif i ed that he took all t he pictures him self

. He f u rther testif

ied that t h e y depict the condition of the m arital hom e d uring a tim e tha t E m ma w a s living there. W e f i nd that his testim o ny was suf f i cient to satisf

y Rule 901(a) and that the court should have adm itted the photographs. Even so, “[ i]n order f or a case to be r eversed o n the adm ission or exclusion of evidenc e , i t m

ust result in prejudice and h arm or adversely af f ect a substantial r ight of a party .” Bower v. Bower , 758 So. 2d 405, 415 (¶46) (Miss. 2 000). Although we f ind error,

we deem it to be harm less. “The chancellor has t h e s o l e r esponsibility to d eterm ine the credibility of w itnesses a nd e vidence, and the weight t o be given each.” L ee v. Lee , 798 So. 2d 1 2 8 4 , 1 2 8 8 (¶14) (Miss. 2001). W ith this precedent in m ind, w e do not f ind that the exclusion of

the photographs would have af f ected the chancellor’s custody determ ination.
VII. Contem pt ¶43. “The standard of r eview f or civil c ontem

pt on appeal is m anif

est error, m eaning the

1 9f

actual f indings of the chancellor are af f irm ed unless m anif

est e rror is present and apparent.” Stallings v. Allen , 201 So. 3d 500, 504 (¶14) (Miss. Ct. App. 2016) (internal quotation m arks

om itted). The Mississippi Suprem e Court has held that contem pt m ust be willf

ul. Mizell v. Mizell , 708 So. 2d 55, 64 (¶52) (Miss. 1998). “A contem p t citation is proper only when the

contem nor has willf

ully and d eliberately ignored the order of the court.” Id

. (quoting Cooper

v. Keyes , 510 So. 2d 5 18, 519 (Miss. 1987)). “It is a def ense to a contem

pt proceeding that the person was not g uilty of willf ul or deliberate violations of a prior judgm ent or decree.” Id

. ( citing Dunaway v. Busbin , 498 So. 2d 1218, 1222 ( Miss. 1986)). Em m a f iled a m otion

to hold C hris in contem pt f o r his se l l i n g o f 19,000 shares of stock f or approxim ately $250,000 in violation of

the protective order. ¶44. Chris contends t hat, b ased on t he language of t h e orders, he did not believe he was violating the previous court orders when he exercised the s tock o ptions. He reasons that the chancellor should have denied Em m a’s request that he be f o und in contem

pt. The language in both orders state s t h a t “ both parties are restrained and e njoined f rom transf

erring, assigning, borrowing against, concealing or in a ny way d issipating or d i sposing of any

m arital p roperty .” The chancellor stated that C hris “could h ave com e i n a n d j u s t f iled a petition [ and] asked the [ c]our t t o d o it just as they had o r discussed it. The lawy ers discussed it and s igned an a greed order a l lowing h i m to do it.” Since he did not get the court’s perm ission, she f

ound him in contem

pt f or violating the tem

porary order. ¶45. W e f

ind that t he chancellor erred in f inding Chris in contem

pt. As stated, one m

ust

2 0willf

ully violate an unam

biguous order to be held i n contem p t. Also, the order o f which the def endant is accused of willf ully d isobey i ng m

ust be clear a nd unam

biguous. The record is clear that the ultim ate purpose of the orders was to prevent a ny d issipation o f assets, and that did not happen. It is true, as the chancellor f ound, t hat C hris violated t he express language of the o rder prohibiting the transf er of assets, but the transf er language m

u s t b e r e ad in conjunction with the other language: “or in any way dissipating or disposing of any m arital property .” Given the f

act that the c hancellor f

ound that Chris’s a ction in exercising the stock option did not constitute a dissipation of the assets, we f ind the chancellor erred in f inding Chris in contem

pt. In f inding Chris in contem

pt, this is what the chancellor said regarding dissipation: And [ Chris] did—in f

act, he did not dissipate these a ssets. I do want to g ive [ Chris] credit f

or t hat. And [ Chris’s atto r n e y ] a rgued very strongly on [ Chris’s] part that he did not dissipate these a ssets. And, in f act, no harm was done. In f

act, [ Chris] testif

ied that the price of t he stock h as gone down, t hat he actually preserved—his argum ent is that he actually preserved an asset of the estate by exercising the stock option and selling the stock at the tim e that he did.
As noted, the chancellor said that if Chris had f il e d a p e t i t i o n t o sell the stock, s he would have allowed it. According to Chris, he saved approxim ately $40,000 by

taking the action that he did, and this a ssertio n i s n o t d i s p u t e d in the record. Based on the wording of the orders, it i s clear t o us t hat Chris or any reasonable person could conclude t hat the purpose of the orders w as to preserve t he assets and to not dissipate a n y m arital assets. A plain reading of the text of the orders could b e inte r p r e t e d as prohibiting transf ers that would

2 1dissipate m artial property

. B ecause Chris’s action actually preserved the assets of the m arital

estate—which was the purpose of the orders—we f ind that it was e r r o r t o h o l d him in

contem pt. T heref

ore, we reverse and render that portion of the judgm ent f i n d i ng him in

contem pt.
VIII. Attorney ’ s Fees 7 ¶46. “ T h e a w a r d of attorney ’s f ees in divorce cases is lef t t o t h e d i s c r e t i o n o f t h e chancellor, a ssum i ng [ s ]he f ollows the appropriate standards.” Speights v. S peights , 126 So. 3d 7 6 , 8 1 (¶15) (Miss. Ct. App. 2013) (quoting Creekmore v. Creekmore , 651 So. 2d 513,
520 ( Miss. 1995)). A chancellor’s award o r d enial of f ees should be s u

pported by f

indings of f a ct regarding the M

cKee 8 f actors. Grice v. G rice , 726 So. 2d 1 242, 1255 (¶51) (Miss. Ct. App. 1999); W

e eks v. W e eks , 29 So. 3 d 80, 9 2-93 (¶¶57-59) (Miss. Ct. App. 2009) (denial of f e e s r em anded f

or f ailure to consider the M

cKee f actors). Chris argues t hat the chancellor sim ply stated that according to the McKee f actors, Em m a was not able to pay her attorney , and the chancellor did not discuss the f a ctors in detail on the record. He f urther argues that
Em m a n ever proved that she could not pay her attorney ’s f ees. “The party seeking attorney ’s f ees is c h arged with the burden of proving i nability to pay ; usually where the party is able to
pay his o r h e r o w n a t t orney ’s f ees, an award of such f

ees is inappropriate.” Duncan v.

7 In a m o tio n to su p p lem en t th e reco rd o n ap p eal, C h ris arg u es th at w h i le th is ap p eal w a s p en d i n g , E m m a f

iled f o r b an k ru p tcy an d o b tain e d a d isch arg e o f th e atto rn ey ’s f ees at issu e. T h e ch an cery co u rt sh o u ld ad d ress th is issu e o n rem a n d

.

8 M cK ee v. M cK ee , 4 1 8 S o . 2 d 7 6 4 , 7 6 7 (M iss. 1 9 8 2 ) ( o u tli n in g g u i d e lin es to b e co n sid ered b y

th e co u rt w h e n d eterm in in g th e reaso n a b l en ess o f

atto rn ey ’s f

ees). 2 2Duncan , 915 So. 2d 1124, 1128 (¶16) (Miss. Ct. App. 2005) (citing Riley v. Riley , 846 So.

2d 282, 287-88 (¶23) (Miss. Ct. App. 2003)). ¶47. Although the chancellor m entioned the McKee f a c t o r s , s h e p r o vided n o specif ic explanation f

or her f ind i ng t hat Em m a could not pay her attorney , especially coupled with her f inding t hat Em m a was stable and working. In McKee , 418 So. 2d at 767, t he suprem e
court held that the f

o llowing f

actors provide the guidelines to d eterm ine the reasonableness of attorney ’s f

ees in dom estic cases: The f ee depends on consideration o f , in a ddition to the relative f i nancial ability of the parties, the skill and standing of the attorney em ploy ed, the nature of the case and n o velty and d i f

f iculty of the q

uestions at issue, as well as t he degree of responsibility involved i n the m anagem ent of the cause, the tim e and labor required, the usual and custom ary charge in the com m unity , and the preclusion of other em ploy m ent by the attorney

due to the acceptance of

the case. ¶48. In discussing the issue, the chancellor stated:
W i th regar d t o a t t o r n ey ’s f ees, I k now C hris has asked f

or an award of attorney [ ’]s f

e es that I am deny i ng. Chris def initely has the ability to pay his own attorney ’s f

ees. I am awarding Em m a . . . a ttorney ’ s f ees of , according to the attorney ’ s af

f i davit of $29,346.06. They have already paid som e $12,000 or s om ething. I can’t rem em ber the exact am ount. It’s s tated o n the af f idavit. And this am ount has already given Chris credit f or that. B ut according to the McKee f actors, y ou know, Em m a has an inability to pay . Em m a does not have the earning capacity that Chris has. And I k n o w M r. [ Sway ze] Alf ord m ade the argum e nt or a statem ent—I don’t k now if it was argum ent—y esterday t hat Em m a should n ot be awarded an attorney ’s f ee f o r the divorce because she did not prevail on the divorce. She was not awarded a divorce. The Court d id not f ind that the divorce should be granted b ecause I d id not f ind a d equate grounds. H owev e r , t h i s d i vorce has been going on f o r t wo y ears. All f

o ur attorney s, I think that b ecause Ms. [ D. Pace] Branan, Mr. Alf ord and Kay la [ W are] have been working f or [ Chris]. Although Ms. Branan has been going a lot l o n g e r [ , ] a n d she h a s been there f or the long haul. And Ms. [ Malenda] Meacham h a s been working f or [ Em m a] f

or two y ears now and there’s been
2 3a l ot of water u nder the bridge. At o ne tim e, a nd f or the m ajority of this tim e, Em m a w as also def

ending a c om

plaint f or divorce beca u s e [ Chris] h ad f i led a cross-com

plaint. She’s also been f

ighting f or her kids and f

ighting f or child custody and f or child support. And so just the f act that she was not awarded a d ivorce does not negate the f act that this was a very com plicated case. The exhibits alone indicate that. I m ean, I’ve got one huge box of exhibits and t hen a stack of exhibits t hat’s t wo-f eet tall. So certainly the tim e and e f f o rt h as been put i nto this by Ms. M eacham

. This was a very com p licated, unique case. A n d E mm a, prior to just recently , has been a stay -at-hom e m om a nd has no t had her own m oney , her own earnings. And s o I f eel like this is an appropriate case to award the attorney ’s f ees. A l s o , I’m giving her a j udg[ ] m ent in t hat am ount and that is to be pay able within 10 day s. ¶49. Based on our perusal of the record, the c h a n c e l lor m a d e no explicit f indings addressing all of t h e M

c K e e f actors, either in her order, or on the record, but it can be

s u r mi s ed f

r om the chancellor’s statem e n t t hat she had c onsidered them

. 9 T he mo r e perplexing q

uestion i s not the reason a b l e n e s s o f the am ount awarded, but the basis f or f inding that Em m a was not a ble t o p a y it. As noted, the chancellor stated: “But according

to the McKee f

actors, y ou k

now, Em m a has an inability to pay .” On the q uestion of whether
Em ma h a d the a

bility to pay her o wn attorney ’s f ees, the c h ancellor of

f ered no analy sis of
Em m a’s f inancial condition that would support the conclusion that Em m a was unable to pay them

. During the chancellor’s d i s c u s s i on o f t he custody i ssue, she stated the f ollowing: “[ Em m a] h as just e ntered the work f orce again, but it sounds like she’s got a stable job at this

9 T h is C o u r

t in E va n s v. E v a n s , 7 5 S o . 3 d 1 0 8 3 , 1 0 9 0 ( ¶2 5 ) ( M iss. C t

. A p p . 2 0 1 1 ), stated th e f

o llo w in g : “Wh ile t h is [ C ] o u rt h as h e ld th at a ch a n c ello r ’s f ailu re to ap p ly th e M cK ee f acto rs is n o t n ecessarily itself rev ersib le erro r, see M iley v. D a n iel , 3 7 S o . 3 d 8 4 , 8 7 (¶7 ) (M is s . C t

. A p p . 2 0 0 9 ) , th e p r o o f m u st at least su p p o rt an accu rate assessm en t o f f ees u n d er th e M

cK ee criteria.” 2 4point. A nd it sounds l ike she h as a stable hom e at t his point.” W e note that Em m a testif ied that she could n o t pay h er attorney ’s f ees. As stated, the burden was on Em m a to prove that

s h e c ould not pay her attorney ’s f ees. A lthough t he decision to award attorney ’s f ees i n a divorce proceeding is lef

t to the sound discretion o f the chancellor, there m

ust be evidence undergirding t h e chancellor’s decision that a p arty is unable to pay her attorney ’ s f ees bef ore

an award can be m ade. H ere, we f i n d t h e r e c ord lacks such evidence. Theref ore, we f ind that the chancellor erred in awarding attorney ’s f ees to Em m a f

or the d ivorce proceeding, which ultim ately r esulted in Em m a’s com plaint f or the divorce being dism issed. Accordingly , we reverse and rem and the chancellor’s award of attorney ’s f ee s f or the chancellor to d eterm ine whether Em m a has the inability to pay and to apply the M c K ee f actors with supporting f

indings. ¶50. The chancellor also awarded E m m a $2,500 in attorney ’s f ees f or the contem

pt action that s he f i led against C hris. Since we have f ound that the chancellor erred i n f inding Chris in contem pt, we also reverse and render this award. ¶51. A F F I R M E D I N P A R T , R E V E R S E D A N D R EMANDED IN PART, AND REVERSED AND RENDERED IN PART. BARNES, C.J., J. WILSO N , P.J., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.

2 5