IN THE SUPREME COURT OF MISSISSIPPI NO. 2016-CA-00615-SCT CANDICE RAE SHURDEN BALLARD

v. JOE MARSHALL BALLARD AND TERESA ANN BALLARD

DATE OF JUDGMENT: 02/01/2016 TRIAL JUDGE: HON. PERCY L. LYNCHARD, JR. TRIAL COURT ATTORNEYS: H. R. GARNER SARAH JEAN LIDDY GINGER M. MILLER JERRY W ESLEY HISAW NANCY M. MADDOX A. E. (RUSTY) HARLOW , JR. COURT FROM W HICH APPEALED: DESOTO COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: JERRY W ESLEY HISAW H. R. GARNER ATTORNEYS FOR APPELLEES: A. E. (RUSTY) HARLOW , JR. KATHI CRESTMAN W ILSON NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED IN PART; REVERSED IN PART AND REMANDED - 05/25/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE DICKINSON, P.J., COLEMAN AND BEAM, JJ. COLEMAN, JUSTICE, FOR THE COURT: ¶1. Appellant Candice Ballard and Appellee Joe M arshall Ballard w ere m arried in 2006. The parties’ m arriage was turbulent at best, and they ultim ately agreed to an irreconcilable dif f erences divorce with the chancery court to decide issues, am ong o thers, of c h ild custodyand visitation, equitable division of property , and a ttorney s ’ f ees. The c hancery court entered a f inal order in the m atter in 2016. ¶2. The bulk of Candice’s appeal revolves around the chancery court’s order deny ing her custody of the parties’ three m inor children based upon the chancery court’s determ ination that b o t h Candice and Marshall were “unf it” and that neither should be awarded custody
pursuan t t o M i s s i s s i p p i C o d e S e c t i o n 9 3

- 5

- 24-(9)(a)(ii) (the “ f am ily -violence presum

ption”). The chancery court awarded custody to the Mississippi Departm ent of H um an Services but
p l a ced the c hildren with Marshall’s parents. Candice challenges the custody decision , arg u ing the chancellor relied s trictly on hearsay to establish her “unf itness” and history of
f am ily violence. Candice also claim s error in t he division of the m a r ital estate because the chancellor f

ailed to apply the Ferguson 1 f actors. Further, Candice argues she should have received attorney ’ s f

ees because her parents paid her f ees, and s he m

u st pay t hem back. Finally , Candice alleges t he chancery court f ailed to decree possession of t he lot upon which the m arital hom e had been situated bef o re i ts destruction by f

i re. As to the issues of custody and d ivision of the m arital estate, we reverse and rem and; with respect to attorney ’s f ees, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶3. On June 10, 2006, Candice and Marshall m arried in A s h l a n d , Mississippi. Three children w ere born d

uring the m arriage: (1) Jane (born in 2007); (2) John (born in 2009); and

1 Ferguson v. Ferguson , 6 3 9 S o . 2 d 9 2 1 (M iss. 1 9 9 4 ). 2(3) Jill ( born in 2011). 2 Neither party d isputes t he f act that Marshall i s not t h e biological
f ather of Jill, who was born as a result of a m a rital-separation af

f air. 3 ¶4. On January 5, 2015, Marshall f iled a Com

plaint f or Divo r c e , a n d C a n dice f iled an

answer and countercom

plaint on January 27, 2015. T he chancery court appointed a guardian ad litem , directing the guardian ad litem to investigate allegations of neglect s urrounding the children and prepare a report concerning her investigation. The order also provided that, the GAL w ill b e designated a s a n e x p ert witness under Rule 706 of the Mississippi Rules o f E v idence

. . . [ t]heref ore, the opinions and recom m e ndat i o n s o f

f e red by the GAL, and t he f actual b asis derived in the course o f t he investigation, shall be governe d b y R u l e 702, Rule 703, Rule 803(6), (8), (24) & (25); and Rule 804 of the Mississippi Rules of Evidence, and any other a

pplicable rules governing t he presentation of expert opinions. Based on the court’s order, the guard i a n a d litem com piled three reports detailing her interviews with twenty -one people. ¶5. Relevant to our discussion, the gua r d i a n a d litem ’s i nterviews uncovered m ultiple anecdotes that d etailed dom estic violence within t he h o me. Specif ically , the guardian ad litem noted s he f

elt “that t he f

ighting was a result of the actions and attitudes of both parties, although it does appear that Marshall was of ten the party t hat escalated to phy sical violence.” The guardian ad l item specif ied there was no evidence that either parent ever p h y s i c a lly abused the children. E v e n t h ough som e of t he interviews detailed f ighting between the couple, as to the f

am ily -violence presum

ption, the guardian ad litem stated s he “does not f eel

2 T h e n a me s o f all ch i ld ren d iscu ssed h erein h av e b e en ch a n g ed t o p ro tect th eir id en t ities.

3 L aw ren c e B lain H o l d e n , th e p u rp o rted b io lo g ical f ath er o f Jill, w as ad d ed as a th ird

p arty d ef en d an t to case, b u t h e n e v er ap p eared o r f iled a resp o n se. 3that the p resum ption would apply to the f acts of this case.” Moreover, the g uardian ad litem

recom m ended the parties share joint legal custody of the children. ¶6. The case w ent bef

ore the chancery c o urt on February 16, 2016. The guardian ad litem testif i ed at trial extensively as to the f indings in her three reports, which consisted entirely of i n t e r v i ews. Candice l odged num erous objections, a rguing t he guardian ad litem ’s testim o ny on what she was t old in i n t e r v iews constituted hearsay

. The chancery court overruled the objections and allowed the guardian ad li t e m t o p resent evidence f rom her reports, including interviews with the children outlining dom estic abuse witnessed and the

o f t en p oor conditions of the h om e and lack of f ood on m any o ccasions. The guardian a d litem additionally testif

ied about her i n t e r v i ews w ith school of f icials regarding their interactions with Marshall and Candice, with the school of f icials f avoring Marshall as the

m or e c o n c e r ned and involved parent – a f inding that C andice vehem ently d enied in her testim o ny . ¶7. The parties p u t o n e v i d e n c e regarding the division o f m arital property

. Finally , Candice t estif

ied a bout her request f

or attorney ’s f

ees. The f

ollowing exchange t ook place between Marshall’s counsel and Candice: Q. Mr. Garner is a very good attorney , and he’s been paid by y our parents, right, y our m other?
A. Uh-huh. Yes. Q. Okay . And --
A. Alone.

4Q. W hat are y ou supposed to do about that? Are y ou g o i n g t o b e pay ing y our m other back?
A. I sure am

. Q. How are y ou going to do that?
A. I work. Q. I know y ou work.
A. And I’ll m ake pay m ents if I have to. ¶8. Af ter receiving both parties’ proposed f indings of f

act and co n c l u s i o ns of law, the chancery court issued its opinion on March 4, 2016, and entered its o rder on March 14, 2016. The opinion f

irst determ ined that the parental rights of Lawrence B lain Holden should not be term inated with regard to Jill. However, the chancery court did f ind that Marshall stood in l oco parentis as it r elates t o Jill and “consider[ ed] him as a proper party f or t he placem ent of legal and phy sical c ustody of [ Jill.]” Next, t he chancery court acknowledged that Marshall could not be considered f or custody

of Jill if there was a natural parent available. Rely ing

on the guardian a d litem ’s r eport and testim ony and C andice’s “evasive” answers at trial, the chancery court concluded that C andice’s “natural parent presum ption [ was] rebutted by clear and convincing evidence of her unf itness.” ¶9. The c hancery

court went on to address custody of the children. T he chancery court noted: “Due to the f

a cts and circum stances surrounding this particular case, bef ore the Court analy zes the Albright 4 f actors, the Court considers f irst t h e f i t n e s s of the parents to have custody of these children as well as the presum ption against granting custody to a parent with

4 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 ). 5a history of f am i ly violence.” T he chancery court acknowledged, but declined to f ollow, the guardian ad l i t e m ’ s r e c o m m e n dation that C a ndice and Marshall have joint legal custody , with Marshall h aving prim ary phy s ical custody and C andice having visitation. In addition to reiterating that C andice was u nf it, the chancery court determ ined t hat Marshall also was unf it based on his drug a nd alcohol abuse, dom estic violence issues, and his other l e g al issues. Next, the chancery court applie d the f am ily -violence presum

ption codif

i ed i n Mississippi Code Section 9 3-5-24(9)(a)(i) 5 and f ound that b oth parties had com m itted dom estic violence, “[ t]heref ore, it is n ot in the best i nterest of the children to g ive either perpetrator of dom estic violence custody

over the other.” ¶10. W i thout e v e r a c t u a l l y r e a c h i n g a n Albright analy sis in its o pinion or order, the chancellor vested custody of the three m inor children with t he M ississippi Depa r t m ent of
Hum an Services (DHS), and p laced the children i n t he c are of the Marshall’s parents until they becam e unable or u nwilling to care f or t he c hildren, o r whatever placem ent DHS determ ines i s in the best interest of the children. T he chancery court additionally addressed

5 The statute reads:
In every p roceeding where the c ustody of a child i s in d ispute, there shall be a rebuttable presum

ption that it is detrim ental to the child and not i n the best interest of the child t o be placed i n s o l e custody , joint legal custody or joint phy sical custody of a parent who has a h istory o f perpetrating f am ily violence. The c ourt m ay f

ind a history of perpetrating f am ily v iolence if the court f inds, by a preponderance of t h e evidence, one (1) i ncident of f am i ly v iolence t hat has resulted in serious bodily injury to, or a p attern of f am ily v iolence against, the party m aking the a llegation or a f am ily h ousehold m em

ber of either party

. T h e c o urt shall m ake w ritten f indings to docum ent h ow and why t h e presum ption was or was not triggered. Miss. Code Ann. § 93-5-24(9)(a)(i) (Rev. 2013). 6child support, a lim ony , and g uardian ad litem f ees, none of which are at issue in the present appeal. ¶11. As to the equitable division o f the m arital property , t he chancellor f o und “that both parties have contributed equally to the acquisition of the [ m arital] p roperty

. Accordingly , the
Court f i nds that each is entitled to one-half of the v alue of all of the [ m arital] property .” The chancery court f

urther explained that the parties m ight receive additional insurance proceeds
f rom the m arital house that was destroy ed in a f ire. By prior order, the chancery court had placed an equitable lien on a ny such proceeds, and, in the order of d i v o r ce, the chancery

court ordered the f

unds to b e used t o pay the g u a r d i a n a d litem and attorney ’s f ees and expenses f

irst, then $3,000 to Marshall, and if any rem ains, that am ount to b e split equally between the parties. ¶12. Lastly , the c hancery court addressed the award of a t t o r n e y ’ s f e e s . Since the court
f ound both parties w ere em ploy ed and were likely to receive m ore proceeds f rom insurance
pay outs and neither party had presented proof that he/she had an inability to pay ; it declined to award attorney ’ s f

ees. ¶13. On March 1 1 , 2016, C andice f iled a Motion f

or Reconsideration and/or M otion f or New T rial, which the c hancery court denied. Based on the above, C a ndice raises the
f ollowing issues on appeal:
I. W hether the chancery court erred in d eny ing Candice custody o f her m i nor c h i l d r e n by rely ing on guardian ad litem hearsay testim ony in order to f ind Candice unf

it and apply the presum

ption against custody to a parent with a history

of f am ily violence under § 93-5-24(9)(a)(i).

7II. W hether the chancery court erred in dividing the m arital estate due to the c hancellor’s f

a ilure t o m ake f

actor f indings under Ferguson on the record.
III. W hether the chancery court erred i n f ailing to award attorney ’s f ees to Candice because her parents paid her f ees, and she m

ust repay them

. IV. W hether the chancellor erred in f ailing to decree possession of the lot upon which the m arital hom e f orm e rly had been s i t u a t ed bef ore it burned.
STANDARD OF REVIEW ¶14. Per well-established custom s involving d om estic disputes, a chancellor’s conclusions of law receive d

e novo review. C

hesney v . Chesney , 910 So. 2 d 1057, 1060 (¶ 5) (Miss. 2005) (citing Southerland v. S out h e r l a n d , 8 75 So. 2d 204, 206 (¶ 5) ( Miss. 2004)). However, “[ a] chancellor’s f indings of f

act will not be disturbed unless m anif estly wrong or clear l y e r r o neous.” Sanderson v. Sanderson , 8 24 So. 2d 623, 625 (¶ 8) (Miss. 2002) (quoting Consol. Pipe & Supply Co. v. C olter , 735 So. 2 d 958, 961 (¶ 13) ( Miss. 1999)). In other words, “ w e c a n n o t reweigh the evidence and m ust def er to the chancellor’s f

indings of the f a cts, so long as they are supported by substantial evidence.” Gately v. Gately , 158 So.
3 d 2 96, 301 (¶ 26) (Miss. 2015) (citing White v. White , 26 So. 2 d 342, 352 (¶ 31) (Mi s s . 2010)). “However, the Court will not hesitate t o reverse if it f i nds the chancellor’s decision is m anif estly wrong, or that the court applied an erroneous l egal standard.” Owen v. Owen , 928 So. 2d 156, 160 (¶ 11) (Miss. 2006).
ANALYSIS
I. Guardian Ad Litem Hearsay and Custody

8¶15. Candice takes issue w ith the c h a n c e l l o r ’ s d i s p o s i t i o n o f c u s t o d y d u e to the

chancellor’s reliance upon hearsay . Specif ically , Candice argues the chancery court relied
upon the guardian ad litem ’s reports–which consisted m ostly of hearsay –and the guardian ad litem ’s testim ony

–which was bas e d in hearsay –as substantive evidence to establish her unf itness and t r i g ger the f

am ily -violence p resum

ption. To the extent that the chancellor relied on the hearsay contained in the guardian ad litem ’s report, we agree. ¶16. First, the Court notes the c hancery court’s f a i lure to provide an A l

b r i g h t a n a l y s i s . Parents enjoy

– against third p arties

– a n a t u ral-parent presum ption f avoring an award of custody

. In re W

aites , 152 So. 3d 306, 311 (¶ 14) (Miss. 2 0 1 4 )

. O n l y a c l e ar showing of abandonm ent, desertion, im m o ral conduct detrim ental to the child, and/or unfitness can rebut the presum

ption. Id. at 311-12 (¶ 15). Howe v e r , t h e i nquiry does not e nd once the
presum ption is rebutted. In re Dissolution of Marriage of Leverock & Ham by , 23 So. 3d 424, 431 ( ¶ 2 4) (Miss. 2009). “If the court f inds one of [ the] f

actors [ that rebuts the naturalparent presum

ption] has been proven, then the presum ption vanishes, and the court must go further to determine custody based on the best interests o f the child t

hrough an on-the-record

a n a lysis of the Albright f actors

. Id. (em

phasis added). I n other words, a f inding t h a t t h e natural-parent presum

ption has been rebutted does not end the inquiry into c ustody without

an Albright analy sis. If , on rem and, the c hancery c ourt f inds th at the natural-parent
presum ption has been rebutted, then the chancery court m ust g o on to consider the Albright f actors to determ ine c ustody in the best interest of the children. W e note that, even if , upon

rem and, the chancellor f inds enough comp e t e n t evidence t o engage the f am ily -violence

9presum

ption, the presum

ption is a rebuttable one. Miss. Code Ann. § 93-5-24(9)(a)(I) (Rev. 2013). ¶17. In any event, the chancery court erred in f inding Candice to be unf

it and apply ing the
f am ily -violence presum

ption. Candice a rgues the only “proof ” presented at trial t o establish he r u n fi t n ess was inadm issible hearsay f rom t he guardian ad litem

. Sim ilarly , Candice argues the chancery court relied on inadm issible hearsay to a pply the f am ily -violence presum

ption against her. ¶18. Candice is correc t t h a t t h e c hancery court relied heavily on hearsay t estim ony in determ ining that she was unf it and that the f

am ily -violence presum

p tion should be triggered. The chancery court’s a naly sis determ ining Candice’s unf itness f ocused prim arily o n the guardian ad litem ’s report and testim ony and on Candice’s evasive answers to questions at trial that indicated a “wariness to convey the truth.” T he chancery court concluded: “Based

on the evidence as stated above, i[ .]e., [ Candice] f ailing to take responsibility f or her actions

or lack thereof

, and continuing to blam e others f or her m istakes, t he [ chancery c]ourt f inds by clear and convincing evidence that her natural parent presum p tion has been r ebutted due

to her unf i tness.” 6 Additionally , in our review of the record, we could discern only one piece of nonhearsay

testim ony

that indicated Candice had com m itted any act of f am ily violence: when Marshall testif

ied that C andice had beaten him with a lam p. Other evidence s u ggesting Candice had inf

licted violence on Marshall cam e a l m ost entirely f rom t he guardian ad litem ’s

6 “In sh o rt, to o v erco me th e n atu ral p aren t p resu m p tio n , t h ere m

u st b e clear an d co n v in c in g ev id en ce o f co n d u c t o r u n f it n e ss ‘p resen tin g a g e n u in e s erio u s d an g er to th e ch ild .’” N eely v. W elch , 1 9 4 S o . 3 d 1 4 9 , 1 5 8 (¶ 2 5 ) (M iss. C t. A p p . 2 0 1 5 ) (citin g D eb o r ah H

. B ell, M

ississip p i F a m ily L a w § 5 .0 6 [ 2 ] [ a] , at 1 2 1 (2 0 0 5 )).

1 0reports and the guardian ad litem ’ s testim ony at trial, all of which consisted of the guardian

ad litem ’s third-party interviews. None of the persons interviewed by the guardian ad litem testif i ed at trial except the parties and one of Ca n d i c e ’ s d aughters f rom a previous relatio nship. D espite a recom m endation f rom the guardian ad l item in h er supplem ental report that the chancery court should not apply the f am ily

- v i o lence presum

ption, the chancellor relied on the hearsay contained within her report t o disagree w ith her

recom m endation and apply it. ¶19. I n M

c D o n ald v. McDonald , 39 So. 3d 868, 882 (¶ 47) (Miss. 201 0 ) , t h e C o u r t addressed “whether the guardian ad litem acte d b e y o n d h er authority by of f ering hearsay

t e s t i m ony without being qualif ied as an expert.” The appellant in McDonald argue d t h e chancery court erred in allowing a guardian ad litem to testif y a s to statem ents relay ed to the guardian ad litem by t eachers at a school. Id. at 8 84 ( ¶ 53). The M cDonald Court set f

orth the “proper role” of

a guardian ad litem

as f ollows: [ A] g uardian ad litem a

ppointed to investigate and report to the c ou r t i s obligated to invest i gate the allegations bef ore the court, process the inf o r ma t i on f

ound, report all m aterial inf orm ation to the court, and (if requested) m ake a recom m endation. H owever, the guardian ad litem should m ake recom m endations o nly af ter providing the court with all m a terial inf orm ation which weighs on t he issue to be decided by t he court, including inf orm ation which does not support the recom m endation. The court m ust be provided all m aterial inf

o r m ation the guardian ad l item reviewed in order to m ake the recom m endati o n . Recom m endations of a guardian a d litem m ust never substitute f

or the duty

of a chancellor.
Id. at 883 (¶ 48) (citing S.G. v. D.C. , 1 3 So. 3d 269, 282 (Miss. 2009)). During trial of the

case, the c hance l l o r h a d overruled the objection t o hearsay , claim i ng courts in Mississippi have a “historical p r a c t i c e ” of a llowing guardians ad litem to of f e r h earsay testim ony . Id.

1 1The m ajority opinion in McDonald disagreed with the chancellor’s view, holding, “W e f ind that i t was error f

or the chancellor to f

ind that the rules of evidence d i d not apply in this adversarial proceeding.” Id. Co n s i d e r ing the above-quoted language def ining the im p ortance and r ole of the guardian ad litem along with t he adm onition issued by the
McDonald C ourt regarding relianc e o n h e a rsay , we conclude the f ollowing: The guardian ad litem p lay s an im

portant r ole, a nd – as set f orth above

– chancellors m ust consider all of the inf orm ation available to the guardian ad litem when considering whether t o f o llow the

recom m endation m ade. However, especially when a chance l l o r d e parts f rom the

recom m endation of t he guardian ad litem , as happened here, the r esult reach e d by the chancellor m

ust be supported by

adm issible, com

petent evidence rather than hearsay

. ¶20. Presiding Jus t i c e D i c k i n s o n i s s u ed a specially c o ncurring o pinion in McDonald tailored to the i ssue of guardian ad litem testim ony and hearsay

. I d. at 887 (¶ 6 5) (Dickinson, P.J., s p e c i a lly concurring). His concurrence was joined by f our other j ustices, giving the opinion precedential value. See S weatt v. Murphy , 733 So. 2d 207, 209-210 (¶ 7) (Miss. 1999) (noti n g t h a t w h en at l east f our justices vote in f

avor of another j ustice’s concurring opinion, the concurrence has “precedential value”). A ddressing guardian ad litem hearsay , Presiding Justice Dickinson w rote, “Rule 1 of the Mississippi Rules of Evidence plainly say s those rules apply in chancery c ourt—and they include n o exception f or guardians a d litem .”
Id. T he concurren c e c ontinued: “ Certainly I agree that guardians ad litem –properly appointed under Rule 706 and qualif ied as experts under Rule 7 03–m a y rely on hearsay in reaching their opinions. But hearsay used t o support a n e x p e r t ’s o pinion is quite dif f erent

1 2f

rom hearsay adm itted as substantive evidence.” Id. (¶ 68). In other words, “pure, rank, uncross-exam ined hearsay ” by a guardian ad litem c annot b e used a s substantive evidence. Id. (¶ 68). ¶21. A d earth of Mississippi jurisprudence squarely a d d r e s ses the i ssue of guardian ad litem hearsay being used as substantive evidence. However, as Presiding Justice D ickinson proclaim ed in McDonald , our rules of evidence apply in c hancery c o u r t ; a nd the rules prohibit, subject to listed exceptions, the use of hearsay as substantive e vidence. In view of the rule, the chancery court erred in rely ing on inadm issible hearsay to f ind Candice unf

it and

to invoke the f

am ily -violence presump t i o n a gainst Candice. T heref ore, we reverse the chancery court’s disposition on custody of the three m inor children and rem a n d f or f urther proceedings.
II. Division of the Marital Estate and Ferguson Factors ¶22. Candice argues the chancery court erred in its division of the m arital estate because it f ailed to m ake f

a c t or f indings p ursuant to Ferguson v. Ferguson , 639 So. 2 d 921, 928 (Miss. 1994). W e a gree with Candice. Ferguson provides eight f actors a chancery court

m ust consider “when a ttem pting to ef

f ect an equitable division of m a r i t a l property .” Id.

“ Ferguson requires consideration of the [ eight] f actors, or a f

inding of inapplicability .” Lowrey v. L o w r e

y , 2 5 So. 3d 274, 2 86 ( ¶ 28) (Miss. 2009). The Court has held in no uncertain term s, “The f

ailure to consider all a

p plicable Ferg u son f

a ctors is error and

m andates reversal.” Id. a t 2 86 (¶ 29). M oreover, “[ f ]actor t ests, s uch as p r o v i d e d in Ferguson f

or property division

. . . , must b e considered on the record in every case.” Id. at

1 3280 (¶ 7) (em p hasis added). However, the chancery court need only to consider the f actors it f inds are “applicable.” Sproles v. Sproles , 782 So. 2d 7 42, 7 48 (¶ 23) ( Miss

. 2 0 0 1) (citation om itted) (“[ T ]he chancellor is not required to address each a n d e v ery f actor; indeed, the chancellor m ay consider only the f actors h e f

inds applicable to t h e ma r i t al property at issue.”). ¶23. I n i t s opinion, the chancery court divided the m a r ital estate using the f o l l o w i n g language: “Exam i ning the f actors f or e quitable distribution a s set f orth in Ferg u s o n , and
f urther c onsidering Hem sley v . H em sley , 639 So. 2d 9 21 (Miss. 1994), the Court f inds that both parties have contributed equally to the acquisition of the af oresaid property .” 7 Candice

asserts the chancery court’s opinion is just a “blanket statem ent,” which f ails to satisf

y the Lowrey requirem ent o f an “on the record” analy sis of t he F erguson f a c tors. Marshall claim s the chancery court was not presented evidence with regard t o the other Ferguson f a ctors, and theref ore, the chancery court m u st have f

ound them irrelevant f

or discu s s i o n . A t issue,

t h o u g h , is that the c hancery court did not say what f actors were “irrelevant” o r “inapplicable.” Lowrey r equires a chancery court t o analy

ze all eight Ferguson f

actors or provide a “

f inding o f i napplicability .” Lowrey , 25 So. 3d a t 286 (¶ 28) (em phasis added). The chancery court’s order does n o t satisf y Lowrey ’ s directive t o m ake on-the-record
f indings, and, theref

ore, we rem and f

or a m ore thorough analy sis of the F erguson f actors.
III. Failure to Aw ard Attorney ’s Fees

7 T h e p arties’ d irect o r in d i rect eco n o m ic co n trib u t io n t o th e acq u isitio n o f th e m arital p ro p erty is o n e o f

th e F erg u so n f acto rs. F erg u so n , 6 3 9 S o . 2 d at 9 2 8

. 1 4¶24. Candice argues t he chancery court erred in f ailing to award her a ttorney ’ s f e es. In its opinion, the c h ancery court correctly articulated, “In the present case, the m ost plausible

reason or argum ent f

or an award of attorney f

ees would undoubtedly be the inability to pay .”
T h e c h a n c e r y court f

ound Candice’s “inability to pay has not b een shown

. . . .” Marshall argues the chancery

court’s ruling should be af f irm ed, and we hold in f

avor of Marshall. ¶25. Candice’s parents paid her attorney ’ s f e es, but she testif

ied that she will repay them

. W h en asked how, she said, “I work.” Now C andice argues she should receive an attorney ’s f ee award because unrebutted testim ony that a party has to repay

her parents f

or attorney ’s f ees is a p roper basis f

or an a ward of the sam e . Candice cites Layton v . Layton 181 So. 3d
275 (Miss. Ct. App. 2015), to support he r p r o p o s ition. Candice’s reliance on L ayton is

m isplaced. F irst, the chancery court in Layton had approved a n award of attorney ’s f ees, not disallowed one as with Ca n d i c e . I d . at 288 (¶ 44). Second, while the appellee in Layton sim ilarly had to repay her parents, the appellee adm itted she would be unable to repay them

. Id. at 288-289 (¶ 45). In contrast, Candice testif ied she could pay

back her parents. ¶26. Next, Candice relies on Arm strong v. A r m s t r o n g , 618 So. 2 d 1278 (Miss. 1993), arguing the C ourt will require an attorney ’s f ee award when u nrebutted testim ony establishes

a party m ust repay h er parents. W e disagree with Candice’s c haracterization o f A rm strong

. The a ppellant in Arm strong was denied attorney ’s f ees at trial, and t he Court did reverse the chancery court’s decision b ecause “[ s]he h ad no separate f unds or e state available to pay her attorney and was f

orced to borrow f

unds f rom her parents f

or this purpose.” However, the
Court’s decision in A rm strong is m ore narrow than the broad application Candice suggests.

1 5Specif

ically , the Court held, “ Under these c i r c u m s tances , f ailure to award [ t he A ppellant] the reasonable attorney ’s f ees incurred was an abuse of discretion.” Id. at 1282 (em phasis

a d ded). T he language, “under these c ircum s tances,” indicates the Court’s i ntent to li mi t a broad application o f its holding. Moreover, th e Court reem p hasized the high standard of review as to an award of

attorney ’s f

ees: “W e have said tim e and tim e again t hat an award of a ttorney ’s f

e es in divorce cases is largely a m atter entrusted to the s ound discretion of the trial court.” Id. ¶27. Based on the a b o v e , w e a r e l e f t unconvinced the Court’s precedent establishes a broad, per se rule that, if a party to a divorce provides unrebutted testim o ny her p arents paid
f or her attorney ’ s f

ees, then the C ourt should f ind abuse o f discretion e v ery tim e a chancery

court f a ils to award t he f

ees. Rather, the issue i s mo r e f actually sensitive in nature. For

exam ple, C andice s aid at trial that she will pay her parents back. Can d i c e a l s o p o tentially could expect, as the chancery court noted in his opinion, m ore proceeds f rom t he insurance

com pany , which the chancery court ordered to be used to pay f or a ttorney ’ s f

ees. Because of the f a cts discussed above, the chancery c ourt did n ot abuse h i s d i s c r e t i on in f ailing to award Candice attorney ’ s f ees. Theref

ore, w e a f

f i r m the chancery court’s decision on attorney ’s f

ees. IV. The Lot upon w hich the Marital Hom e Form erly had been Situated ¶28. Candi c e a r g u e s t h e c hancery court f ailed to address, classif

y , divide, o r m ake any
f indings with regard to what was to be done with the lot upon which the m arital hom e, which had b urned down, f

o r m erly had been situated. In its opinion, the chancery court f ound the

1 6m arital property included “the m arital hom e located at 2117 Hwy . 301 So., Hernando, MS
38632 w hich w as destroy ed by f ire in Novem

ber of 2015.” A s a result of the f ire destroy ing the hom e, the p a r t i e s d i d r eceive (and c ould potentially receive m ore) insurance p roceeds. The chancery court provided f or the distribution o f the p r oceeds within its opinion. However, Candice is correct. Neither the opinion nor the order addressed the disposition of the lot. The chancery court m ust account f

or the lot in i ts d ivision of the m arital estate; as a result, we rem and f

or f urther proceedings.
V. Discovery of Possible Misconduct by Appellee ¶29. W h ile reviewing the record, we discovered Marshall had included docum ents sealed by court order within his record excerpts. Specif ically , Docket # 17, the “Initial Report of the Guardian Ad Litem By G inger M. Miller,” was placed under s eal by the c hancery court. According t o the court order, the docum ent was sealed “due to the highly sensitive subject

m atte r a n d c o n f

i d ential inf

o rm ation contained in the initial r eport

. . . .” W e discovered nothing in the record that indicated the report h ad been “unsealed.” In f act, upon receipt of the record, the report was separately wr a p p ed in a envelope with “Vault” and “Sealed” written across the f

ront, along w ith the order sealing the report af f ixed to the back. However, Marshall included the report i n h i s r e cord excerpts, w hich were m ade publicly available.
Because Marshall potentially violated the c h ancery court’s order i n publishing sealed docum ents, we r aise t he issue f or the chancery court to consider, in his discretion, what, if
any , action is necessary

on rem and.
CONCLUSION

1 7¶30. W e hold a chancery court cannot r ely on guardian ad litem h earsay t hat is not within

one of the enum erated exceptions as substantiv e e v i d ence. The chancery court also f ailed

to perf orm an on-the-record a naly sis of the Ferguson f actors in its distribution of the m arital estate, which is required by Lowrey

. However, t he c hancery court d id n o t e r r in f ailing to award Candice a ttorney ’ s f ees because she said she could pay back her parents. As to the
f ourth i ssue, the c hancery court m u s t a d d r ess the parties’ lot and p roperly provide f or its distribution. Finally , t he chancery court on r em and should consider Marshall’s p o t e ntial violation of the order sealing the guardian ad litem report. Based o n the f oregoing, we af

f irm in part, reverse in part and rem and f or proceedings consistent with our opinion. ¶31. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, MAX WELL AND BEAM, JJ., C ONCUR. RANDOLPH, P .J., AND CHAMBERLIN, J., CONCUR IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

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