IN THE SUPREME COURT OF MISSISSIPPI NO. 2019-CP-01152-SCT C ONSOLIDATED WITH NO. 2017-CP-00828-SCT

MICHAEL T. GERTY

v. JOESIE R. GERTY DATE OF JUDGMENT: 05/03/2019 TRIAL JUDGE: HON. JENNIFER T. SCHLOEGEL TRIAL COURT ATTORNEYS: THOMAS W RIGHT TEEL JIM HOOD JUSTIN L. MATHENY ANNA W ARD SUKMANN M. CHANNING POW ELL COURT FROM W HICH APPEALED: HARRISON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: MICHAEL T. GERTY (PRO SE) ATTORNEY FOR APPELLEE: M. CHANNING POW ELL NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED IN PART AND REMANDED IN PART - 06/04/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ. RANDOLPH, CHIEF JUSTICE, FOR THE COURT: ¶1. This m atter is bef

o r e the Court, af

ter having been r em anded f or the reasons set f

orth
in the Court’s prior decision in Gerty v . Gerty , 265 So. 3d 121 (Miss. 2018) ( Gerty I ). On

rem and, the chancellor granted Michael Gerty a divorce f rom Joesie Gerty on the ground of adultery

. The chancellor revisited her prior holdings regarding visitation, division of m artiala s s e t s , a nd alim ony . Finding error only r egarding the num ber of m onths the p arties we r e

m arried, 1 we a f

f irm as to all other issues and r em and f or entry of a f

i nal j udgm ent consistent with this opinion.
PROCEDURAL HISTORY ¶2. Upon rem and of Gerty I , the c h a n c e l l o r u t i l i z e d the e xisting record, consisting of

num erous pleadings, m otions, responses, exh i b i t s , a nd f ive day s of trial testim ony , and issued

an am e nded f

inal judgm ent of div o r c e at issue today

. The c hancellor granted Michael a divorce on the grounds of adultery

. The chancellor a warded j oint legal custody of the m inor

c hild to b oth parties but w ith phy sical custody granted to Joesie. Michael was aw a r d e d visitation every

f irst and third weekend, holiday visitation, and one m onth in the sum m er. ¶3. The cha n c e l l o r f

o u n d that the court was not lim ited by the parties’ 2013 property

settlem ent agreem e nt ( P S A )

. T he chancellor f ound that the m arital assets consisted of the Gulf port hom e, 2 the Pass Ch r i s t ian hom e, the m arital p ortion of Michael’s m ilitary retirem ent, and Joesie’s r etirem ent. Each party was granted one-half of the m ar i t a l a ssets. Based on the f

actors enum erated in Ferguson v . Ferguson , 639 So. 2d 921 (Miss. 1994), the

1 T h e p arties w e re m arried o n M ay 7 , 2 0 0 5

. P e r th e r eco r d b ef o re th e c h a n cello r, th e ch an cello r selected th e d a te o f th e f irst d ay o f trial, D ecem

b er 7 , 2 0 1 5 , as th e en d d ate o f th e m arriag e, resu ltin g i n 1 2 7 m o n th s o f m arriag e, n o t 2 0 4 as r ef lected in th e am en d ed j u d g m en t b ef o r e u s. Wh eth er th is w a s a scriv en er’s e rro r o r a m iscalcu latio n , w e k n o w n o t. We rem an d w ith in s tru ctio n s f o r th e so le p u r

p o se o f th e ch an cello r to co rrect th e n u m erical erro r reg ard in g th e m o n th s m arried to 1 2 7

. C o n s isten t w ith h er f in d in g s, th e ch an c e llo r is in stru cted to am en d the length of m arriage in the M ay 3, 2019 f i nal judgm ent to 1 2 7 m o n th s.

2 T h e ch an cello r to o k

j u d icial n o tice o f

th e f o reclo su re o f

th is p ro p erty

. 2parties’ m onthly incom es, a nd the division of m arital assets, the chancellor relieved Michael

of pay ing alim ony . ¶4. F i n d i n g t h a t t he chancellor properly awarded Michael a d ivorce on the ground o f adultery and that the chancellor revisited her prior awards of visitation, division of m arital assets, and alim ony , we af f irm the chancellor’s decision, save f or the erroneous l ength of the

m arriage which shall be corrected on rem and.
ISSUES
I. Whether the chancery court w as m anifestly w rong, em ploy ed t he w rong legal standard, or abused its pow er w hen i t declared that it w ould no longer abide by the parties’ property settlem e nt agreem ent.
II. Whether th e c hancery court w as m anifestly w rong, applied t he w rong legal standard, or erred by aw arding J oesie a percentage of Michael’s m ilitary retirem ent pay . III. Whether the c h a n cery court w as m anifestly w rong for significantly lim iting Michael’s sum m er visitation.
IV. Whether the chancery court w a s m anifestly w r o n g o r abused its pow er by allow ing a clear and unm istakable bias to determ ine its child-custody decision.
ANALYSIS ¶5. The standard of review in dom estic-relations cases is well-settled. Abs e n t m anif est
error, this Court will uphold a chancellor’s decision. Sproles v. S proles , 782 So. 2d 742, 746 (Miss. 2001).
I. Whether t he chancery court w as m anifestly w rong, em ploy ed the w rong legal standard, or abused its pow er w hen i t declared that it w ould no longer abide by the parties’ property settle m e nt agreem ent.

3¶6. Because Michael f ails to cite a ny case law, s t a t u t o r y authority , or any authority to show how the chancellor erred in this f i nding, we f

ind that Michael is p rocedurally barred
f rom raising this issue on appeal. See Touchstone v. Touchstone , 682 So. 2d 374, 380 (Miss. 1996); E llis v. Ellis , 651 So. 2d 1068, 1073 (Miss. 1995) (issue proce d urally barred on appeal because appellant f ailed to cite authority ). ¶7. N o t w i thstanding the procedural bar, this issue is witho u t m e r i t

. I n G e r t y I , w e specif ically f ound that the parties’ PSA included the f ollowing language:
It is agreed and u n d e r s tood that this Agreem ent is not contingent upon a divorce [ sic] being granted. However, if the parties a re g r a n t e d a divorce on any grounds, the p arties agree that this Agreem ent shall b e m ade a part o f the Judgm ent and that such Judgm ent sha l l n o t conf lict w ith the term s of the Agreem ent [ sic] except t o the e xtent disapproved by the C o u r t [ s i c] the [ sic] parties a g r e e t h at e ach m u tually subm its to the personal jurisdiction of the Chancery Court o f Harrison County , Sta t e of Mississippi, so that said Court has the power to decide any and all m atters a n d questions concerning the dissolution of the p a rties’ marriage

. . . a nd the division of t he pa r t i e s’ property and debts.
G e r t y I , 2 6 5 So. 3d at 125 (em

phasis added). Michael argues that the chancery court ’ s opinion regarding the applicability , v el n o n , of the P SA was n ot s u pported by the record, applied a wrong legal standard, a nd was an abuse of powe r . B ut the language of the PSA, agreed to by the parties, clearly granted the court t h e a u thority to decide any m atters dif f erently than provided by

the PSA. Thus, we af

f irm as to this issue.
II. Whether the chancery cour t w as m anifestly w rong, applied t he w rong legal standard, or erred b y aw arding Joesie a percentage of Michael’s m ilitary retirem ent pay .

4¶8. The chancellor c om pleted a Ferguson ana l y s i s and m ade a f inding that Joesie was entitled to a portion of Michael’s m ilitary r etirem ent. The chancellor f ound that the m arital portion of the Michael’s r etirem ent began on May 7 , 2005, a nd ended on Decem ber 7, 2015. ¶9. Michael argues that Joesie is not entitled to his m ilitary retirem ent because the parties

were not m arried ten y ears. See Unif orm S e r v i c e s F o r m e r Spouses Protection Act ( USFSPA),
10 U

. S.C. § 1408 (2012). The c hancellor f ound that the parties’ were m arried on May 7, 2005, and utilized the f

irst date o f trial, Decem

ber 7, 2015, as the e nd date of the m arriage. The o nly error com m itted by the c hancellor was the m iscalculation of the num ber of m onths the parties were m arried. Utilizing her f indings of the start a nd end dates of the m arriage, the parties were m arried ten y ears and seven m onths, a total of 1 27 m onths. On r em and , the chancellor is instructed to am e nd her May 3, 2019 f inal judgm ent to ref

l ect that the parties

were m a rried f

or 127 m onths. ¶10. Michael also c ontends that the chancellor’s decision wa s n o t c o n s i s t e n t with the Ferguson f

actors. T h e chancellor f

ound that the parties ’ m arital assets consisted of two houses, o ne of w h i c h w a s in f oreclosure, and each party ’s retirem ent. The chancellor analy zed each Ferguson f

actor a nd equitably divided the m artial a ssets between Michael and Joesie. The chancellor m ade the f ollowing f

inding as to Michael’s m ilitary retirem ent, albeit with an erroneous calculation as to the length of m arriage:
Mili t a r y retirem ent is not a traditional asset to be divided am ong the parties; rather it acts as a s trea m o f incom e d ivided as a percentage. This percentage is d erived by div i d i n g the num ber o f m arried m ilitary service m onths by the total num

b er of c reditable service m onths. In keeping w ith its p r e vious calculation f

rom the divorce, Michael thus f ar has served a t otal o f 228 m onths (19 y ears). The Gerty s w ere m a rried f or 204 [ sic] m onths[ ] of Michael’s active

5m ilitary service, leaving a portion of his m ilita r y r e t i r em ent as separate

property

. Because Michael has not y et retired, D FAS[ 3 ] will arrive at the f i nal percentage to be distributed with 204 [ sic] m onths as the n um e rator over Michael’s total m o n ths of creditable service as the denom inator a t the tim e of Michael’s f

uture retirem ent.

. . . . The C ourt recognizes that this [ ] still results in a def i cit f or b o t h p a r t ies; however, the additi o n of Michael’s m ilitary retirem ent should alleviate this def icit to a large degree f

or Joesie. Michael’s def

icit is potentially lower than ref lected here due to the f

oreclosure sale. M ichael nonetheless has the greater def icit. Unfortunately, t

h e p a r t i e s ’ f i n a n cial situation leaves the Court with few options whe r e b

y they a re both solvent and c an therefore only p lan for some degree of stabilization upon Michael’s retirement

. The C ourt also recognizes that the parties’ f inanci a l p o sitions have likely changed since the entry of its original divorce decree a nd that new evidence m ay be presented and considered upon proper post-judgm ent m otion 4 absent a valid objection. (Em phasis added.) ¶11. Although Michael claim s that the ch a n c e l l o r ’ s F e r g uson analy sis and subsequent judgm ent contained m any errors and om issions, we f ind no e rror by t h e c h a n cellor in her division o f the m arital assets o r her analy sis of the Ferguson f actors. W e d o f

ind that the chancellor erred by i nserting i n h e r f i n a l judgm ent that the parties were m arried f or 204

m onths ( or a t otal of seventeen y ears). On rem and, the chancellor is instructed to correct the Final Judgm ent to ref

lect that the parties were m arried 127 m onths. Her judgm ent as to the division of

m arital assets and her analy sis of the Ferguson f

actors is af

f irm ed.

3 Def ense Finance and Accounting Services (DFAS) provides pay m ent services to the Departm ent of

Def ense.

4 T h e d o c k et d o es n o t in d icate th at an y p o st-j u d g m en t m o tio n s w ere f iled b y eith er p arty

. 6III. Wheth e r the c hancery court w as m anifestly w rong for significantly lim iting Michael’s sum m er visitation. ¶12. Initially , the PSA allowed Michael two m o nths visitation in the s um m er. Under this
Court’s rem and instructions, the chancell o r r e c o n s i d e r e d v i sitation and f ound that the parties’ initial v isitation a greem ent “was not suf f icient to address visitation of a child of such a y oung age . . . .” ¶13. Michael argues that a “child’s natural parents ‘are inf initely m ore capable of devising

a w orkable custody p l an than are the judges of this state.’” (quoting Cheek v. Ricker , 431 So. 2d 1139, 1142 ( Miss. 1983)). Michael contends that no t h i n g in the chancellor’s Albright 5 analy sis supports l im i ting the m inor child’s tim e with his f ather. Although n either Joesie nor M i c h ael requested a m odif ication of the visitation arrangem ent in the PSA, the chanc e l l o r was instructed to revisit visitation, and she has wide discretion in her decision.

Visitation and restrictions placed upon it are within the d iscretion of the chancery court. N

ewsom v. Newsom , 557 S o. 2 d 511, 517 (Miss. 1990); Clark v. Myrick , 523 So. 2d 79, 83 (Miss. 1988); C heek v. Ricker , 431 So. 2d 1139, 1146 (Miss. 1983). W here a chancellor h as m ade f actual f i ndings on the m atter of visitation, this C ourt w ill not disturb those f i ndings unless [ the chancellor’s] f indings are not supported b y s u bstantial credible evidence, [ the c hancellor] has com m i tted m a nif

est error, or [ the chancellor] has applied t h e erroneous legal standard. Bredem eier v. Jackson , 68 9 So. 2d 7 70, 7 75 (Miss. 1997). However, while being a t t e n t ive to the rights of a n on-custodial parent, [ the chancellor] m

ust keep the best interest of the c hild as [ the] param ount concern
. Harrington v. Harrington , 648 So. 2d 543, 545 (Miss. 1994).
Christian v. Wheat , 876 So. 2d 341, 3 45 (Miss. 2004). In reviewing a chancellor’s f actual determ inati o n s , w e m ay not “arbitrarily s ubstitute our judgm ent f or that of the chancellor who is in the best position to e valuate all f actors relat i n g t o t h e best interest of the child.”

5 A lb rig h t v. A lb rig h t , 4 3 7 S o . 2 d 1 0 0 3 (M iss. 1 9 8 3 ). 7Tucker v. Tuc k e r , 453 So. 2d 1 294, 1296 (Miss. 1984) (internal quotation m ark om itted)

(quoting Y

ates v. Y ates , 284 So. 2d 46, 47 (Miss. 1973)). ¶14. The c hanc e l l o r f

ound that it was not in the best interest of a child the m i nor child’s
age to b e apart f

rom the custodial parent f

or two m onths. H er f

inding including the f

ollowing language: Following the parties divorce trial, the Court conducted a second, m ore com prehensive Albright analy sis. A s a result of that analy s is, w ith the im plicit understanding that roug h l y t h r ee y e ars h ad passed since the parties’ initial agreem ent, that the child w as then newly e n rolled in elem entary school, and that the parties’ agreem ent was no longer workable or i n the best interest of the child, the Court entered a visitation schedule which dif f ered som e w h at f

rom the tem p o rary order. The Court’s Albright analy s is was and is the basis f or its f indings and rulings on the m atter of visitation. T o clarif y i ts position, the Court f inds it is n o t i n t h e best interest of a y o ung child to spend two consecutive months away f rom his prim a ry c u stodial parent. For that reason, the Court did not grant Michael a two-m onth sum m er visitation period . . . . Michael was granted visitation every f irst and third weekend, visitation during the holiday s, and one m onth during the sum m er. The chancellor f urther f ound The C ourt h ereby slightly alters its sum m er visitation award by a dding [ that] Michael m ay be awarded the entire m onths of June and July f or s um m er visitation upon the child’s attainm ent of age twelve (12) y ears; provided that the child is in a greem ent. If the child’s desires are contrary to the f ather’s, the visitation schedule shall rem ain as previously awarded, i.e., lim ited t o e i t h er the m onth of June or the m o nth of July

. Additionally , the parties m ay m utually agree to alter the visitation schedule at any tim e they wish to do so. ¶15. The chancellor’s f indings were sup p o r t e d b y s u b s t a n t i a l e v i dence and were not

m anif estly in error. Thus, we af

f irm the chancellor as to this issue.
IV. Whether t h e c h ancery court w as m anifestly w rong o r abused its pow er by allow ing a clear and unm istakable bias to determ ine its child-custody decision.

8¶16. Throughout his b rief , Michael m akes ref

erences t o chancellor’s b ias against him

. His
f ourth assignm ent of error is duplicative of his prior argum ents that the chancellor “ignored evidence, ignored testim ony , ignored the law, invented new legal standards, and changed the law in order to reach a conclusion desired by the chancery c ourt.” But M ichael added to his
argum ent that he “challenge[ s] this court to review a nd com m ent o n the Chancery Court’s Albright analy sis.” ¶17. This C o u r t r e v i ewed the chancellor’s Albright analy sis as to custody of the m inor child. W e af

f irm ed the chancellor’s judgm ent as to custody and child support. Gerty I , 265
S o . 3 d a t 1 24. Because this i ssue was correctly decided in G erty I , this Court gave n o instruction to the chancellor to review this issue f urther on rem and.
CONCLUSION ¶18. Af ter a caref

ul review and analy sis during the trial and on rem and of an unusual set of circum stances, the chancellor considered the best interests o f the c h ild, and h er f indings

were neither m a nif

estly wrong n or clearly erroneous. The c hancellor did not apply an

erroneous legal standard, which would perm it this Court to reverse. See Heiter v. Heiter , 192
So. 3d 992, 994 (Miss. 2016). B ut this m atter is r em anded with instruction to the chancellor

to c o r r e c t t h e May 3, 2019 f inal judgm e nt to ref

lect that the parties were m arried 127

m onths. W e af

f irm a ll other a spects of the chancellor’s f inal judgm ent of d ivorce on rem and. ¶19. AFFIRMED IN PART AND REMANDED IN PART.
KITCHENS AND KING, P.JJ., COLE M A N , MAX WELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

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