IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CA-00091-SCT

JOSEPH RHODES JOHNSTON

v.

JUANITA PAHNKA JOHNSTON

DATE OF JUDGMENT: 01/09/97

TRIAL JUDGE: HON. WILLIAM L. GRIFFIN, JR.

COURT FROM WHICH APPEALED: WARREN COUNTY CHANCERY COURT

ATTORNEYS FOR APPELLANT: E. MICHAEL MARKS

S. DENNIS JOINER

ATTORNEY FOR APPELLEE: WILLIAM M. BOST, JR.

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION: AFFIRMED IN PART; REVERSED AND

REMANDED IN PART- 9/24/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 10/15/98

BEFORE PRATHER, C.J., BANKS AND SMITH, JJ.

SMITH, JUSTICE, FOR THE COURT:

¶1. This case comes to this Court on appeal of Joseph Rhodes Johnston from the Chancery Court of

Warren County. Joseph and Juanita consented to divorce based on irreconcilable differences and

submitted all unsettled issues to the chancellor. On November 25, 1996, the chancellor granted a

divorce based on the grounds of irreconcilable differences, ordered joint legal custody of the children

with physical custody to Juanita, and ordered a temporary award of child support and alimony until a

final order approximating equitable distribution of the marital estate could be entered. On December

9, 1996, the chancellor entered a final decree, and on January 10, 1997, the chancellor entered an

amended final decree ordering joint legal custody and physical custody of the children to Juanita,

ordering Joseph to pay $750 child support per month and to maintain health and dental insurance on

the children, ordering Joseph to pay Juanita $30,000 lump sum alimony to be paid at $250 per month

for 120 months, and dividing equally the marital estate. Joseph, aggrieved by the chancellor's

decision, appeals to this Court and raises the following issues:

I. WHETHER THE CHANCELLOR COMMITTED ERROR IN IMPLEMENTING A

FINAL JUDGMENT OF DIVORCE BASED ON IRRECONCILABLE DIFFERENCE
WHEREIN THE PARTIES HAD NOT AGREED ON ALL ISSUES INVOLVING

CUSTODY AND MAINTENANCE OF CHILDREN AND PROPERTY RIGHTS

BETWEEN THE PARTIES.

II. WHETHER THE CHANCELLOR ERRED BY AWARDING ALIMONY TO

JUANITA WHEN THE MATTER OF ALIMONY WAS NOT AN ISSUE AGREED

UPON BY THE PARTIES TO BE DECIDED BY THE COURT.

III. WHETHER THE CHANCELLOR ABUSED ITS DISCRETION IN AWARDING

ALIMONY BASED UPON INSUFFICIENT EVIDENCE ESTABLISHING THE

ASSETS AND LIABILITY OF THE PARTIES.

IV. WHETHER THE CHANCELLOR COMMITTED ERROR IN NOT ALLOWING

EVIDENCE OF FAULT TO BE CONSIDERED AT A SUBSEQUENT HEARING

WHEREIN THE CHANCELLOR DETERMINED AN EQUITABLE DISTRIBUTION

OF THE PROPERTY.

V. WHETHER THE CHANCELLOR ERRED IN DETERMINING THE NET

MONTHLY INCOME OF JOSEPH.

VI. WHETHER THE CHANCELLOR'S AWARD OF CHILD SUPPORT AND

MAINTENANCE WAS AN ABUSE OF DISCRETION.

VII. WHETHER THE CHANCELLOR ERRED BY REQUIRING JOSEPH TO PAY

JUANITA $32,898.50 BY MARCH 1997.

VIII. WHETHER THE CHANCELLOR ERRED BY GIVING ONE OF THE

CHILDREN AS A TAX DEDUCTION TO JUANITA WHEN SUCH ISSUE WAS NOT

SUBMITTED TO BE DECIDED BY THE COURT.

IX. WHETHER THE CHANCELLOR ERRED BY CONSIDERING GIFTS FROM

JUANITA TO JOSEPH AS MARITAL PROPERTY.

FACTS

¶2. Joseph Rhodes Johnston and Juanita Pahnka Johnston were married June 16, 1979 and separated

June 14, 1996. There were two children born to the marriage: a son, Andrew Joseph Johnston, born

April 3, 1984 and a daughter, Abigail Christine Johnston, born June 28, 1988. On July 12, 1996,

Joseph filed a complaint for divorce alleging habitual cruel and inhuman treatment, uncondoned

adultery and irreconcilable differences. On July 30, 1996, Juanita filed her answer and counterclaim

for divorce based on the grounds of habitual cruel and inhuman treatment and irreconcilable

differences. On October 23, 1996, Joseph and Juanita filed a Consent to Divorce on Irreconcilable

Differences and Submission of Other Issues to the Court. Joseph and Juanita submitted the following

issues to Chancellor William L. Griffin, Jr. for determination: (1) the amount of child support to be

awarded to the wife; (2) an equitable division of the marital assets; (3) the equity position of each

party; and (4) the payment of insurance premiums for the children.

¶3. After a hearing on November 21, 1996, the chancellor entered a final decree on November 26,
1996 adjudicating a divorce absolute on the grounds of irreconcilable differences and ordered the

joint legal custody of the minor children with the wife being granted primary physical custody. The

chancellor ordered Joseph to pay temporary child support in the amount of $500 per month and

additionally ordered Joseph to pay $500 per month as alimony until a final order approximating an

equitable distribution of the marital estate could be entered.

¶4. On December 9, 1996, the chancellor entered a ruling making specific findings and entered a final

decree resolving the issues submitted before the court. In the final decree, the chancellor ordered

Joseph to pay $750 per month as child support with half payable on the first of each month and half

payable on the 15th of each month. Joseph was allowed to claim the older child as an exemption for

state and federal tax purposes, and Juanita was allowed to claim the younger child. Joseph was

additionally required to maintain the children as beneficiaries on his health and dental insurance

policies and to maintain a life insurance policy on each child in the amount of not less than $50,000

per child. The chancellor further equally divided the marital estate with each receiving an award

valued at $150,521. In addition, the chancellor awarded lump sum alimony in the amount of $30,000

to the wife payable at the rate of $250 per month for a period of 120 months.

¶5. On December 17, 1996, Joseph filed a Motion to Reconsider Final Decree, and the chancellor

overruled the motion on January 7, 1997. However, due to certain typographical and mathematical

errors, the chancellor entered an amended final decree on January 10, 1997. Aggrieved by the

chancellor's decision, Joseph filed a notice of appeal on January 3, 1997 and an amended notice of

appeal on January 17, 1997.

DISCUSSION OF THE LAW

I. WHETHER THE CHANCELLOR COMMITTED ERROR IN IMPLEMENTING A

FINAL JUDGMENT OF DIVORCE BASED ON IRRECONCILABLE DIFFERENCE

WHEREIN THE PARTIES HAD NOT AGREED ON ALL ISSUES INVOLVING

CUSTODY AND MAINTENANCE OF CHILDREN AND PROPERTY RIGHTS

BETWEEN THE PARTIES.

¶6. On November 21, 1996, after the trial, the chancellor ordered the grant of a divorce absolute

based on the grounds of irreconcilable differences, the award of joint legal custody of the children

with physical custody to the wife, the temporary award of child support of $500 per month, and the

temporary award of alimony to the wife in the amount of $500 per month, and the chancellor took all

other issues including the equitable division of the property under advisement. On November 26,

1996, a final decree was filed in the Warren County Chancery Court in accordance with the

chancellor's ruling after trial. Then on December 3, 1996, the chancellor issued his final ruling

resolving all issues of child support and property rights between the parties. A final decree was

entered on December 9, 1996 in accordance with the chancellor's ruling. On December 17, 1996,

Joseph filed a Motion to Reconsider Final Decree assigning numerous errors. On January 7, 1997,

the chancellor entered an order overruling the motion to reconsider, and also entered an amended

ruling due to certain typographical and mathematical errors. Additionally, on January 10, 1997, an

Amended Final Decree was entered.

¶7. Joseph contends that the chancellor erred by granting a divorce absolute on November 26, 1996
without adjudicating all matters involving custody and maintenance of any child of that marriage and

property rights between the parties. Juanita asserts that it would be inequitable to overturn the entire

divorce decree especially in light of the fact that this was an uncontested divorce.

¶8. Miss. Code Ann. § 93-5-2(3) provides a procedure whereby the parties may divorce based on

irreconcilable differences and submit to the chancellor all issues not agreed on. Miss. Code Ann. §

93-5-2(3) provides in pertinent part:

If the parties are unable to agree upon adequate and sufficient provisions for the custody and

maintenance of any children of that marriage or any property rights between them, they may

consent to a divorce on the ground of irreconcilable differences and permit the court to decide

the issues upon which they cannot agree. . . . No divorce shall be granted pursuant to this

subsection until all matters involving custody and maintenance of any child of that marriage

and property rights between the parties raised by the pleadings have been either adjudicated

by the court or agreed upon by the parties and found to be adequate and sufficient by the

court and included in the judgment of divorce.

Miss. Code Ann. § 93-5-2(3) (1994) (emphasis added). Thus, it is clear that this procedural aspect of

Miss. Code Ann. § 93-5-2(3) provides that before a divorce can be granted by the chancellor all

matters involving custody and maintenance of any child of that marriage and property rights between

the parties must either be adjudicated by the court or agreed to by the parties and found to be

adequate and sufficient by the court.

¶9. In Massingill v. Massingill, this Court stated:

Divorce is a creature of statute; it is not a gift to be bestowed by the chancellor based upon a

perception that declining to grant the divorce will not restore the couple to a harmonious

relationship. It is a statutory act and the statutes must be strictly followed as they are in

derogation of the common law.

Massingill v. Massingill, 594 So. 2d 1173, 1178 (Miss. 1992) (quoting Kergosien v. Kergosien, 471

So. 2d 1206, 1210 (Miss. 1985)). In the case sub judice, the chancellor granted a divorce absolute

awarding joint legal custody of the children and physical custody to Juanita, a temporary award of

child support, and a temporary award of alimony while taking under advisement the issues of

permanent child support, permanent alimony, and determination of the property rights between the

parties. Thus, strictly following the procedure outlined in Miss. Code Ann. § 93-5-2(3), the

chancellor erred by granting a divorce absolute before adjudicating all matters involving custody and

maintenance of the children and property rights between the parties raised by the pleadings.

¶10. However, this error is only procedural and was harmless under the facts in this case. In this case,

Joseph and Juanita voluntarily entered into a Consent to Divorce on Irreconcilable Differences and

Submission of Other Issues to the Court. Joseph and Juanita agreed to joint legal custody of the two

children with physical custody to Juanita. Thus, the only issues submitted to the chancellor were as

follows: (1) amount of child support to wife; (2) division of the marital assets; (3) equity position of

each party; and (4) payment of insurance premiums for children. After trial on the issues submitted to

the chancellor on November 21, 1996, the chancellor, from the bench, ordered that the parties would

be granted a divorce absolute on the grounds of irreconcilable differences, awarded joint legal
custody of the children with physical custody to Juanita, a temporary award of child support, and a

temporary award of alimony. The chancellor took under advisement issues regarding permanent child

support and the equitable distribution of the marital assets. On November 26, 1996, a final decree

was entered in accordance with this bench ruling. However, we find that Joseph can not show any

prejudice by the chancellor taking under advisement the issues regarding permanent child support and

the equitable distribution of the marital assets. The chancellor's temporary ruling adequately provided

for the support and maintenance of the children and Juanita. As a result, although it was procedurally

improper for the chancellor to grant a divorce absolute before adjudicating all issues with regard to

the support and maintenance of the children and the property rights of the parties, we find that under

the facts of this case, since Joseph has shown no prejudice, equity would not warrant reversal for

such error.

II. WHETHER THE CHANCELLOR ERRED BY AWARDING ALIMONY TO

JUANITA WHEN THE MATTER OF ALIMONY WAS NOT AN ISSUE AGREED

UPON BY THE PARTIES TO BE DECIDED BY THE COURT.

III. WHETHER THE CHANCELLOR ABUSED ITS DISCRETION IN AWARDING

ALIMONY BASED UPON INSUFFICIENT EVIDENCE ESTABLISHING THE

ASSETS AND LIABILITY OF THE PARTIES.

¶11. Joseph asserts that the chancellor erred in awarding lump sum alimony to Juanita because it was

not an issue agreed upon by the parties to be decided by the chancellor. Juanita, however, asserts that

submitting the issues regarding "equity" position of each party and the division of marital assets to

the chancellor was sufficient for the chancellor to consider the award of alimony.

¶12. When reviewing a chancellor's award of lump sum alimony, this Court, in Creekmore v.

Creekmore, stated:

It is hornbook law that whether to award alimony and the amount to be awarded are largely

within the discretion of the chancellor. Cherry v. Cherry, 593 So. 2d 13, 19 (Miss. 1991). We

will not disturb the chancellor's decision on alimony onappeal unless it is found to be against the

overwhelming weight of the evidence or manifestly in error. McNally v. McNally, 516 So. 2d

499, 501 (Miss. 1987).

In Cheatham v. Cheatham, 537 So. 2d 435, 438 (Miss. 1988), the following factors were

considered in awarding lump sum alimony: 1) substantial contribution to accumulation of

wealth by quitting job to become housewife or assisting in husband's business; 2) long marriage;

3) separate income or separate estate meager in comparison to that of payor spouse; and 4)

financial security without lump sum alimony. Most important is a comparison of the estates.

Subsequent to the decision in Cheatham, this Court has consistently employed these four

factors when reviewing lump sum alimony. Tilley v. Tilley, 610 So. 2d 348, 352 (Miss. 1992);

Smith v. Smith, 607 So. 2d 122, 126 (Miss. 1992); Cleveland v. Cleveland, 600 So. 2d 193,

197 (Miss. 1992). Disparity of the separate estates has continued to be the most compelling

factor. Tilley, 610 So. 2d at 352.

Creekmore v. Creekmore, 651 So. 2d 513, 517 (Miss. 1995). This Court has further stated that "the

chancellor may divide marital assets, real and personal, as well as award periodic and/or lump sum
alimony, as equity demands." Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994). This Court

has additionally held that when a chancellor is charged with the division of the marital assets that "'if

the situation is such that an equitable division of marital property, considered with each party's

nonmarital assets, leaves a deficit for one party, then alimony based on the value of nonmarital assets

should be considered.'" Henderson v. Henderson, 703 So. 2d 262, 265 (Miss. 1997) (quoting

Johnson v. Johnson, 650 So. 2d 1281, 1287 (Miss. 1994)). Thus, based on the wide latitude of

discretion vested in the chancellor in awarding alimony, we find that by submitting the issues of the

division of the marital assets and the equity position of each party, the chancellor did not err in

determining that an award of lump sum alimony was appropriate.

¶13. Joseph additionally contends that the chancellor abused his discretion in awarding alimony based

upon insufficient evidence establishing the assets and liabilities of the parties. Joseph specifically

asserts that it was error for the chancellor to arbitrarily and capriciously assign a value of between

$250,000 and $400,000 to his interest in the Johnston Estate in awarding lump sum alimony to

Juanita. Juanita asserts that the chancellor did not abuse his discretion by considering the disparity

between the separate estates in awarding her lump sum alimony of $30,000 payable at the rate of

$250 per month for 120 months.

¶14. In the case sub judice, the chancellor, after a division of the household personal property,

instructed an equitable distribution of the marital assets between the parties resulting in an equal

division between each party. The chancellor awarded to Juanita the following: the automobile in her

possession, valued at $19,363; her IRA, valued at $32,684; her retirement account, valued at $38,

947; the stock portfolio, valued at $27,000; and $32,777 for her equity interest in the residence. This

award amounted to a total award to Juanita of $150,771. The chancellor awarded to Joseph the

following: his separate personal property, valued at $50,500; his two vehicles, valued at $16,625; his

IRA, valued at $33,108; his retirement account, valued at $16,058; the emus and ostriches, valued at

$5,000; title to the twenty acres and the equity in said real property, valued at $25,766; and title to

the residence and the equity in said residence, valued at $36,491. This award, less the payment to

Juanita for her equity in the residence, amounted to a total award of $150,771.

¶15. After ordering the equitable distribution of the marital property, the chancellor addressed the

issue of whether alimony should be awarded to Juanita. The chancellor found that after an equitable

distribution of the marital property there existed a disparity between the separate estates of each

party. The chancellor found that Juanita did not have any separate estate while Joseph had the benefit

of his 5% interest in the Johnston Estate in which he received approximately $18,000 in rental income

per year. The Court reasoned that since the estate returned $18,000 in income the value of the

interest had to be somewhere between $250,000 and $400,000. The chancellor stated,

With this in mind, and finding that the Wife is entitled to a reasonable standard of living as

consistent as possible with the standard of living she enjoyed when the parties were together,

the Court finds that the totality of the circumstances dictates that the Wife receive alimony. In

coming to this conclusion, the Court notes that the Wife will have the primary physical

responsibility for the children born of the marriage and that any increase in her standard of

living automatically inures to the benefit of the children. Equity will not allow the Wife to suffer

a reduced standard of living after receiving child support and 50% of the marital assets while

the Husband enjoys not only his 50% share of those assets, but also the benefits of a $250,000-
$400,000 non marital asset!

The chancellor then awarded Juanita lump sum alimony in the amount of $30,000 payable at $250

per month for 120 months.

¶16. This Court has held that "'[i]f the situation is such that an equitable division of marital property,

considered with each party's nonmarital assets, leaves a deficit for one party, then alimony based on

the value of nonmarital assets should be considered.'" Henderson, 703 So. 2d at 265 (quoting

Johnson, 650 So. 2d at 1287). Based solely on this estimated figure, Judge Griffin stated in his

ruling, "The Court finds that in order for 5% of this Estate to generate income (net to Husband) in

the amount of $18,000 per year, the value of the Husband's interest in the Estate would have to be

between $250,000 and $400,000." The judge then went on to award Juanita $30,000 in lump sum

alimony based upon his estimation of the value of Joseph's interest in the Johnston Estate. This

unexplained valuation of Joseph's interest in his grandmother's estate was an insufficient basis for the

award of alimony here. We reverse and remand this case for a determination of the fair market value

of Joseph's interest in the Johnston Estate for a re-evaluation of an appropriate award of alimony.

IV. WHETHER THE CHANCELLOR COMMITTED ERROR IN NOT ALLOWING

EVIDENCE OF FAULT TO BE CONSIDERED AT A SUBSEQUENT HEARING

WHEREIN THE CHANCELLOR DETERMINED AN EQUITABLE DISTRIBUTION

OF THE PROPERTY.

¶17. Joseph contends that although he consented to divorce based on irreconcilable differences that

fault should have been allowed as a determination when considering an equitable distribution of the

marital assets. Juanita asserts that since Joseph did not request the allowance of any evidence

showing fault at trial that he is barred from raising this issue on appeal.

¶18. This Court in Carrow v. Carrow, 642 So. 2d 901 (Miss. 1994), addressed the chancellor's

consideration of fault when dividing the marital estate as follows:

It is difficult to adjust conventional values of morality when weighing marital misconduct for

purposes of a just division of marital property. However, marital misconduct is a viable factor

entitled to be given weight by the chancellor when the misconduct places a burden on the

stability and harmony of the marital and family relationship.

Carrow v. Carrow, 642 So. 2d 901, 904-05 (Miss. 1994) (citing Ferguson, 639 So. 2d at 927).

¶19. Returning to the case at bar, the chancellor stated that "the Court is aware that fault is an

element to be considered in making an equitable distribution decision. The parties here elected to

proceed on a "no fault" basis, so there are no fault grounds before the Court to take into

consideration as it makes its Ruling." Although Joseph and Juanita consented to a divorce on

irreconcilable differences, the issue of fault was not submitted by Joseph to the chancellor as a

consideration for the chancellor when dividing the marital property. Joseph did not present any

evidence or request to present any evidence of fault for the chancellor's determination, and therefore,

the chancellor did not abuse his discretion by failing to consider fault when dividing the marital

property. He is thus barred on appeal from raising this issue. Therefore, we decline to address the

issue of whether fault in the form of marital misconduct affecting the marriage to the extent that it
"places a burden on the stability and harmony of the marital and family relationship" may never be a

consideration for a chancellor in making an equitable distribution decision even where the parties

have consented to a divorce on irreconcilable differences. That issue is only properly before this

Court where the facts have been preserved within the record or properly proffered and the case at bar

is severely lacking such proof. This issue is barred. See, e.g., Shaw v. Shaw, 603 So. 2d 287, 292

(Miss. 1992); Estate of Johnson v. Adkins, 513 So. 2d 922, 925 (Miss. 1987); Estate of Myers v.

Myers, 498 So. 2d 376, 378 (Miss. 1986).

V. WHETHER THE CHANCELLOR ERRED IN DETERMINING THE NET

MONTHLY INCOME OF JOSEPH.

¶20. Joseph contends that the chancellor erred by enhancing his average net monthly income to

include a one time part-time training course that he taught for Hinds Community College as recurring

income. Juanita asserts that the chancellor's finding was clearly within his discretion.

¶21. In his ruling, the chancellor found that Joseph's net income from his regular job and the rental

income from the Johnston Estate was $3,380.29. The chancellor additionally found that Joseph had

additional employment in which he received income for 1996 in the amount of $7200 or $600 per

month. Despite Joseph's testimony that his additional employment was scheduled to end, the

chancellor determined that if Joseph was capable of earning this much additional income in 1996,

then it was reasonable to anticipate and expect that he can and will make a like amount in future

years. Thus, the chancellor found Joseph's total monthly net income to be $3,980.29.

¶22. When reviewing domestic relations matters, this Court in Sarver v. Sarver stated:

This Court's scope of review in domestic relations matters is limited. Crow v. Crow, 622 So. 2d

1226 (Miss. 1993). "Findings of a Chancellor will not be disturbed or set aside by this Court on

appeal unless we are of the opinion the decision made by the trial court was manifestly wrong

and not supported by substantial, credible evidence, . . . or unless an erroneous legal standard

was applied." Pittman v. Pittman, 652 So. 2d 1105 (Miss. 1995); Jernigan v. Jernigan, 625

So. 2d 782, 784 (Miss. 1993); Snow Lake Shores Property Owners Corp. v. Smith, 610 So.

2d 357, 360 (Miss. 1992).

Sarver v. Sarver, 687 So. 2d 749, 753 (Miss. 1997). We find that the chancellor's inclusion into

Joseph's net income an amount of additional income earned during 1996 from a one time part-time

training course that he taught at Hinds Community College was an abuse of his discretion. Thus, the

chancellor's conclusion that Joseph's net income equaled $3,980.29 was manifestly wrong and

unsupported by any substantial, credible evidence. When questioned about this additional

employment, Joseph responded as follows:

Q. One question Mr. Bost asked you was your response to his question on the money of

Laterno. What is that?

A. I am teaching an adult class. I'm primarily a high school teacher. I'm teaching a special adult

class training potential employees for Laterno, but I am paid by Hinds Community College to

do this.
Q. And it's reflected in your. . . .

A. No, sir, it's not because this is something that has just recently -- since our last tax statement,

this is something that just happened.

Q. You are a welder teacher by trade?

A. Yes, sir, I am. A welding teacher.

Q. Judge needs to know then what type of money do they pay you for teaching this class?

A. Teaching this welding class?

Q. Yes.

A. They are paying me $25.00 an hour.

Q. And how many hours a month are you teaching?

BY THE COURT: Or a week. It might be easier. How often does this class meet?

Q. How often does it meet?

A. It's eight hours a week.

BY THE COURT: That's $200 a week.

Q. And how many months does it last?

A. Well, as of the week after Thanksgiving, it will be terminated.

Q. That will be the end of it?

A. That will be the end of it, yes, sir.

Q. And then what -- Judge needs to know the total length of time you did that in '96? Do you

know?

A. I'm not sure exactly. It's been going on now for, probably since last May. Off and on. There

has been some breaks in between, but this is the last one. I have no contract for any more.

* * *

Q. And this teaching at Laterno that you testified that you got $25.00 an hour for, was this the

first year that this was done.?

A. Yes, sir. This was supposed to be a short term thing. We -- I talked it over with my wife.

This was before the separation. We agreed that I would do it. Most of the income went towards

payment on the loans for the birds. As a matter of fact, the first two or three payments did. It

was suppose to terminate -- as a matter of fact, the last class I taught was when Mr. Bost's own

son was in it. That was supposed to have been my last one.
Q. So it's not an annual thing?

A. Oh, no sir, this was a one time -- this was just kind of -- as a matter of fact, it was in three or

four different locations and they were supposed to have all been terminated way back during the

summer, but they asked the Vicksburg Branch because of our success there.

Thus, it is clear from the record in this case that Joseph's additional employment from which he

earned extra income during 1996 was a one time event and that he had no contract or expectation for

this additional employment to continue. Therefore, we hold that the chancellor's conclusion that

because Joseph was capable of earning this additional amount of income during 1996 that he should

be required to continue to earn this additional amount of income was unreasonable and clearly

erroneous. As a result, because we find that the chancellor abused his discretion, we reverse and

remand this case for proceedings consistent with this opinion.

VI. WHETHER THE CHANCELLOR'S AWARD OF CHILD SUPPORT AND

MAINTENANCE WAS AN ABUSE OF DISCRETION.

¶23. Joseph contends that the chancellor abused his discretion by awarding child support in excess of

the guidelines set forth in Miss. Code Ann. § 43-19-101(2) without making a written or specific

finding on the record that the application of the guidelines would be unjust or inappropriate. Juanita,

however, argues that the chancellor did not abuse his discretion by awarding child support slightly in

excess of the guidelines and that the chancellor rebutted the presumption that an award pursuant to

the guidelines was appropriate.

¶24. Miss. Code Ann. § 43-19-101 sets forth a set of statutory guidelines to aid in the awarding of

child support. See Miss. Code Ann. § 43-19-101 (1993). Miss. Code Ann. § 43-19-101(1) provides

that the guidelines "shall be a rebuttable presumption in all judicial or administrative proceedings

regarding the awarding or modifying of child support awards in this state." Miss. Code Ann. § 43-19-

101(1) (1993). For an award supporting two children, this section uses as the guideline 20% of the

payor's adjusted gross income. Miss. Code Ann. § 43-19-101(1) (1993). Furthermore, Miss. Code

Ann. § 43-19-101(2) provides that the guidelines shall "apply unless the judicial or administrative

body awarding or modifying the child support award makes a written finding or specific finding on

the record that the application of the guidelines would be unjust or inappropriate in a particular case."

Miss. Code Ann. § 43-19-101(2) (1993).

¶25. This Court has held that "[a]n award of child support is within the chancellor's discretion and

will not be disturbed by this Court unless the chancellor was manifestly in error in his finding of fact

and manifestly abused his discretion." McEachern v. McEachern, 605 So. 2d 809, 814 (Miss. 1992)

(citing Smith v. Smith, 585 So. 2d 750, 753 (Miss. 1991); Powers v. Powers, 568 So. 2d 255, 257-

58 (Miss. 1990)). The McEachern Court further observed that "[a]lthough we have child support

guidelines in our Code . . . they are mere guidelines and do not control the chancellor's award of child

support." McEachern, 605 So. 2d at 814 (citing Thurman v. Thurman, 559 So. 2d 1014, 1017-18

(Miss. 1990)). "The rebuttable presumption of the appropriateness of an award pursuant to these

guidelines may be overcome by an award or modification of child support that does not comply with

the guidelines or by making a written finding on the record that the application of the guidelines

would be unjust or inappropriate in a particular case." McEachern, 605 So. 2d at 814 (citing
Thurman, 559 So. 2d at 1017).

¶26. In the case sub judice, the chancellor awarded $750 per month in child support and additionally

ordered Joseph to maintain health and dental insurance on the two children. Thus, the total child

support contribution by Joseph would be $964.47 per month. In awarding this amount of child

support, the chancellor made the following findings:

The Court is aware that [the] child support is 24.23% of the Husband's net income, an amount

which slightly exceeds the statutory guidelines. Considering that the 4.23% variance is only

$168, which is less than the cost of the health insurance, and the fact that the Husband is being

allowed to claim one of the children as a tax deduction, the Court feels that this variance is

justified in light of the total circumstances of the parties. The Court particularly notes the fact

that the Husband, after he fulfills his monthly support obligation, will still have the same or

more money per month to satisfy his reasonable monthly expenses and obligations than the Wife

will have to fulfill the monthly obligations of herself and two children.

Thus, we find that the chancellor made written findings on the record sufficient to rebut the

presumption that the guidelines are appropriate and to justify the slight variance from the guidelines.

Therefore, finding no abuse in the chancellor's discretion, we hold that the chancellor did not err, and

this issue is without merit.

VII. WHETHER THE CHANCELLOR ERRED BY REQUIRING JOSEPH TO PAY

JUANITA $32,898.50 BY MARCH 1997.

¶27. Joseph asserts that the chancellor assessing him with all the marital debt, child support in excess

of the guidelines and alimony made the requirement that he pay $32,898,50(1) by March of 1997 to

Juanita inequitable. Juanita contends that this was within the chancellor's discretion.

¶28. "It is well-established by this Court that the chancery court has the authority to order an

equitable division of property that was accumulated through the joint efforts and contributions of the

parties." Draper v. Draper, 627 So. 2d 302, 305 (Miss. 1993) (citing Brown v. Brown, 574 So. 2d

688, 690 (Miss. 1990)). A chancellor's equitable division of marital property is also subject to the

traditional scope of review in which this Court will not disturb the chancellor's findings "'. . .unless

manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.'" Draper, 627 So.

2d at 304 (quoting Faries v. Faries, 607 So. 2d 1204, 1208 (Miss. 1992)). As part of the

chancellor's equitable division of the marital property, the chancellor ordered Joseph to pay Juanita

$32,777 for her share of the equity in the real estate not later than March 15, 1997 at which time

Juanita shall execute a quitclaim deed in favor of Joseph conveying all of her interest in the real

estate. Applying the proper standard of review, we find that the chancellor did not commit manifest

error by ordering Joseph to pay $32,777 to Juanita for her equity interest in the real estate in light of

the parties' respective estates and contributions to the marriage. See Turpin v. Turpin, 699 So. 2d

560, 565 (Miss. 1997) (holding that chancellor did not commit manifest error by ordering husband to

pay $55,000 as part of property settlement). As a result, this issue is without merit.

VIII. WHETHER THE CHANCELLOR ERRED BY GIVING ONE OF THE

CHILDREN AS A TAX DEDUCTION TO JUANITA WHEN SUCH ISSUE WAS NOT

SUBMITTED TO BE DECIDED BY THE COURT.
¶29. Joseph asserts that it was not proper for the chancellor to decide the issue of tax deductions

since it was not one of the items consented to by the parties to be submitted to the chancellor.

Juanita, however, asserts that the chancellor did not abuse his discretion, for this specific issue was

encompassed within the issues concerning the award of child support to the wife and the equity

position of each party.

¶30. We hold that the issue of which party should receive the right to claim the children as a tax

deduction was submitted to the chancellor by inclusion in the issue of child support to the mother.

The chancellor awarded a tax deduction for Andrew, the older child, to Joseph and awarded a tax

deduction for Abigail, the younger child, to Juanita. Therefore, the chancellor did not abuse his

discretion, and thus, this issue is without merit.

IX. WHETHER THE CHANCELLOR ERRED BY CONSIDERING GIFTS FROM

JUANITA TO JOSEPH AS MARITAL PROPERTY.

¶31. Joseph asserts that the chancellor erred by awarding certain property to Juanita which was an

interspousal gift to him from Juanita and requests that the gifts be adjusted back to him. Juanita

asserts that the chancellor did not err by awarding her certain property.

¶32. Although Joseph does not contend specifically which piece of property was a gift to him by

Juanita and should be adjusted back to him, it appears that Joseph contests the award of one of the

leather recliners to Juanita. Juanita states in her brief that she testified that she gave a leather recliner

to Joseph as a gift but that she and Joseph owned three recliners, two of which were leather recliners.

The chancellor awarded only one of the leather recliners to Juanita, and Joseph was allowed to

choose which one of the leather recliners Juanita could have. Therefore, we find that the chancellor

did not abuse his discretion in dividing the recliners in this manner, and thus, this issue is without

merit.

CONCLUSION

¶33. In sum, we make the following findings: (1) the chancellor's grant of a divorce absolute before

final adjudication of the support and maintenance of the children of the marriage and the property

rights of the parties was mere harmless error and not reversible error; (2) the chancellor abused his

discretion in awarding lump sum alimony and assigning values to the assets of Joseph's 5% interest in

the Johnston estate; (3) fault was not submitted by the parties as an appropriate factor for the

chancellor to consider when dividing the marital assets; (4) the chancellor abused his discretion in

determining Joseph's net income; (5) the chancellor did not abuse his discretion in awarding child

support slightly in excess of the statutory guidelines; (6) the chancellor did not err in ordering Joseph

to pay Juanita $32,777 by March 15, 1997 as part of the property settlement between the parties; (7)

the chancellor did not abuse his discretion by awarding each spouse one of the children as a tax

deduction; and (8) the chancellor did not abuse his discretion in awarding certain items of personal

property. As a result of our finding that the chancellor abused his discretion in determining Joseph's

net monthly income, we reverse and remand this cause to the chancellor for further proceedings

consistent with this opinion.

¶34. AFFIRMED IN PART, REVERSED AND REMANDED IN PART FOR

PROCEEDINGS CONSISTENT WITH THIS OPINION.
PRATHER, C.J., PITTMAN, P.J., BANKS, ROBERTS, MILLS AND WALLER, JJ.,

CONCUR. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN

PART BY SULLIVAN, P.J.

McRAE, JUSTICE, DISSENTING:

¶35. Today's decision calls into question the continued viability both of Miss. Code Ann. § 93-5-2(3),

which limits the parameters of matters to be decided by the chancellor when granting a divorce on the

ground of irreconcilable differences, and Massingill v. Massingill, 594 So. 2d 1173 (Miss. 1992),

which reiterates the axiom that divorce is a creature of statute and that "the statutes must be strictly

followed as they are in derogation of the common law." Massingill, 594 So. 2d at 1178. In awarding

Juanita Johnson alimony, the chancellor erroneously ruled on a matter not raised by the parties in

their pleadings, contrary to § 93-5-2(3). Accordingly, I disagree with the majority's decision to affirm

the award of lump sum alimony.

¶36. Miss. Code Ann. § 93-5-2 outlines the procedure for obtaining a divorce on the statutory

ground of irreconcilable differences. Subsection 93-5-2(3) expressly limits the chancellor's

involvement to deciding for the parties "the issues upon which they cannot agree." The parties must

consent in writing, each personally signing a statement that "the parties voluntarily consent to permit

the court to decide such issues, which shall be specifically set forth in such consent . . . ." § 93-5-

2(3)(emphasis added). In this case, Joseph and Juanita Johnston expressly submitted only four issues

for the chancellor's consideration: the amount of child support for the two minor children; the

division of marital assets; the equity position of each party and payment of insurance premiums for

the children. The issue of alimony was not set forth by the parties for the chancellor's consideration.

Granted, the chancellor may consider alimony when making an equitable division of marital assets.

Ferguson v. Ferguson, 639 So. 2d 921, 930 (Miss. 1994). However, given the strict construction of

the irreconcilable differences statute mandated by Massingill, the chancellor abused his discretion in

awarding alimony where it was not specifically set forth by the parties in their consent and further,

that the majority has gone too far in implying that alimony is necessarily a part of the equitable

distribution scheme regardless of whether the parties expressly have consented to the chancellor's

consideration of the issue. To go beyond the parameters set out by the parties, as the majority has

allowed in this case, robs them of that final chance "to agree to disagree" that is the cornerstone of

the irreconcilable differences ground for divorce. Moreover, if we are to allow the chancellor to

address the subject of alimony by virtue of the parties' agreement to have the court resolve matters

upon which they cannot agree, such as the division of marital assets or the "equity position" of the

parties, then fault must be factored into the equation to provide the same opportunity for equity

available to those seeking a divorce on other grounds.

¶37. The majority finds that Joseph Johnston showed no prejudice as a result of the chancellor's grant

of a divorce before making a final adjudication of the property and custody issues despite the

procedural violation of § 93-5-2. Coupled with the majority's finding that alimony fell within the

parameters of the relief sought, contrary to the strict construction required by Massingill, Johnson

clearly was prejudiced. In signing his consent to have matters determined by the chancellor, by virtue
of the statute, he indicated his "understand[ing] that the decision of the court shall be a binding and

lawful judgment." § 93-5-2(2). Given that he is now bound by a judgment wherein the chancellor

acted beyond the rights of the parties raised in the pleadings, the prejudice to him is obvious.

¶38. For these, reasons, therefore, I am compelled to dissent.

SULLIVAN, P.J., JOINS IN PART.

1. Joseph contends that he was ordered to pay $32,898.50 to Juanita by March 15, 1997, but the

record, however, reveals that Joseph was ordered by the chancery court in its Amended Final Decree,

dated January 10, 1997, to pay $32,777.00 to Juanita for her interest in the equity of the real estate

owned by the parties.