IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-CA-00598-COA

DIANA LYNN CARTER LARSON APPELLANT

v.

MARK ALAN LARSON APPELLEE

DATE OF JUDGMENT: 01/20/2014 TRIAL JUDGE: HON. MITCHELL M. LUNDY JR. COURT FROM W HICH APPEALED: PANOLA COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: JAMES ROGER FRANKS JR. W I LLIAM RUFUS W HEELER JR. ATTORNEY FOR APPELLEE: THOMAS ALAN W OMBLE NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: DENIED APPELLANT REHABILITATIVE AND PERMANENT ALIMONY AND REDUCED APPELLANT’S EQUITY IN THE MARITAL HOME DISPOSITION: AFFIRMED – 05/31/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE IRVING, P.J., CARLTON AND JAMES, JJ. IRVING, P.J., FOR THE COURT: ¶1. Diana Ly

nn Carter Larson appeals the Chancery C ourt of Panola County ’s division
of p roperty and alim ony in h er divorce action. Diana raises two is s u e s : (1) the chancellor
erred in determ ining the equity in the m arital hom e ; and ( 2 ) t he chancellor e r red in not awarding her perm anent or rehabilitative alim ony

. ¶2. Finding no error, we af f irm

. FACTS ¶3. Mark A lan Larson a nd Diana m arried on February 14, 1992. M ark f iled f or divorceon Septem

ber 8, 2008, on the g round of irreconcilable d if f erences. On Septem

ber 11, 2008,
Mark am ended his com

plaint t o include the grounds of adultery , habitual cruel and inhum an

treatm ent, abandonm ent, and, in the alternative, i r r e c o n c i l a b le d if f erences. On D ecem

ber 17,
2010, the chancellor issued a ruling granting M ark a divorce on the ground of adultery

. The
chancellor distributed t he couple’s ass e t s a n d assessed the am ount of a lim ony pay able to
Diana. S he was awarded $80,000 worth of equity in the m a r ital h om e and lum p -sum alim ony
of $36,000, in addition to other property

. 1 D iana, a ggrieved b y the allocation of the m arital

assets and the alim ony award, f iled a request f

or r e c o n sideration, which was d enied. On January 7, 2 011, the chancery c ourt issued a judgm ent of divorce. On February 2, 20 1 1, Diana appealed the court’s decision. ¶4. On March 3, 2013, this Court a f f irm ed in part and reversed and rem a nded in part the
chancellor’s judgm ent. Larson v. Larso n , 1 2 2 So. 3d 1213, 1219 (¶18) ( Miss. Ct. App. 2013). This C o u r t ’ s instructions on rem and w ere f o r the chancellor to conduct an on-therecord analy sis of the Armstrong 2 f actors, which are f

actors considered w hen m aking an
alim ony determ ination, and to state the chancellor’s reasoning in awarding D iana her portion
of equity in the m a rital hom e. Id

. at (¶1 7 ). O n rem a n d, the chancel l o r awarded Diana

1 T h e e q u i t y i n t h e m arital h o m e an d alim o n y are th e o n ly item s d isp u ted in th is ap p eal, b u t th e ch an cello r a lso aw a rd ed D ian a: (1 ) h er IR A acco u n t; (2 ) $ 2 5 ,0 0 0 f o r h er o n eh alf in terest in a Q u izn o s restau ran t; (3 ) a v eh icle; (4 ) f u rs an d j ew elry ; (5 ) an an n u ity ; an d (6 ) a co n d o m i n i u m in D estin , F lo rid a, v alu ed at $ 1 , 0 0 0 ,0 0 0 w i t h a $ 5 7 4 ,0 0 0 o u tstan d i n g m o rtg ag e.

2 A rm stro n g

v. A rm stro n g , 6 1 8 S o . 2 d 1 2 7 8 , 1 2 8 0 (M i ss. 1 9 9 3 ).
2$80,000 in equity , b u t the record supported a f inding tha t t h e r e w as in f act only $28,500

worth o f e quity i n the hom e

. On Decem ber 2, 2013, the chancery court heard oral argum ents.
On Decem

ber 1 7 , 2013, the chancery c ourt entered its j udgm ent deny i ng Diana’s request f or periodic and rehabilitative alim ony

. In addition, the judgm ent provided a detailed analy sis
of the A rmstrong f

actors, awarding Diana $28,500 o f the equity in the m arital hom e and $87,500 in lum

p-sum alim ony

. D iana now appeals the chancellor’s judgm ent f ollowing

rem and f rom this Court.

DISCUSSION ¶5. “The overall standard f or reviewing the f

indings of a c hancellor is a f am iliar one and [ an appellate] [ c]ourt will not distur b t h o se f indings u nless m anif

estly wrong, clearly

erroneous, or an erroneous legal s tandard was a pplied.” Hill v. Se. Flooring Co. , 596 So. 2d 874, 877 (Miss. 1992).

I. Allocation of Equity in the Marital Hom e ¶6. Diana a r g u es that the chancellor erred in determ ining the equity distribution in the

m arital hom e. She alleges the valuation of the m arital h om e only accounted f or the value of
the hom e a nd did not account f or the personal content and f urnishing within the hom e. Diana
valued the item s at an additional $474,080, w hich had not been d i s t r ibuted between the parties. She also argues the s econd m ortgage on the m arital hom e s h ould not have been
allowed to af

f ect the valuation on rem and, because the chancellor had excluded t he second

m ortgage during the prior t r i al-court proceeding. She states that the original v aluation f or

3the m arital h o me was $285,000, but t here was also a $106,500 m ortgage on the property

.

This lef t $178,500 of equity to split between the p arties. O n rem and, t he chancellor allowed
the $150,000 m ortgage t o af f ect t he valuation, which r e d u c e d t he am ount of equity in the
hom e to $28,500, o f which Diana received the entire am ount. Diana argues she is entitled to

a v aluation and d istribution of the f urnishings in the hom e a n d a revaluation of t he property
without the second m ortgage as a f actor. ¶7. In response, Mark argues that Diana’s assertion that the chancellor im p roperly valued
the m arital home i s b arred. He states the rem a nded portion of this Court’s decision was
lim ited to the on-the-record analy sis o f the Armstrong f a ctors and clarif

ication of Diana’s equity award in the m arital hom e. Mark alleges the other a rgum ents raised by Diana have already been rejected and should be barred by c aselaw and res j udicata. He f urther alleges
that Diana has p reviously argu e d t h a t t h e m arital hom e w as insured f or $632,100 and the

v a l u e of t he property inside the hom e had a value of $474,080. This argum e n t h a s b e e n
heard and rejected by the chancery court as well as this Court. Larson , 122 S o. 3 d at 1218-19 (¶¶12-13). Mark argues this argum ent should be barred since i t has a l ready been f actored
into previous decisions. He also argues that this Court lim ited the scope of t he rem and to
address the allocation of the $ 8 0,000 worth o f equity and the analy sis of the alim o ny award.

In addition, he c ontends this Court gave no indication that there was a nee d t o a d j u s t the
award on the basis of the valuation of the f urnishings w ithin t he hom e or the am ou n t of
insurance on t h e hom e. He f urther contends this Court contem plated D iana’s a rgum ent in

4t h e prior appeal and rejected her argum ent that the a ward needed to be changed based o n

those grounds. ¶8. If a n “issue was raised on app e a l t hen it has been previously litigated and theref ore
is barred f rom consideration in the present proceedings.” Pruett v

. Thigpen , 444 So. 2d 819,

823 (Miss. 19 8 4 )

. This C ourt f inds that Diana’s argum ents r egarding the v aluation of the

m arital hom e are barred, as they have been previously contem pla t e d 3 b y t his Court in deciding Larson , 122 So. 3d 1213 (¶¶12-13). Mark is correct in his assertion that the law of
the case governs, and it is well established t hat “[ it is] the practice of courts g ener a l l y to
ref use to reopen what has previously been decided.” Cossitt v. Alfa I ns. , 726 So. 2d 132, 141 (¶47) (Miss. 1998). Diana has f ailed t o present an argum ent that ref lects the lim ited scope
of this Court’s instructions to the chancellor on rem and. ¶9. Nevertheless, the chancellor did not a b u s e h i s d iscretion in m aking his award to
Diana. This Court’s i nstructions to the chancery court on rem and, with respect to t he equity

in t he m arital h om e, w ere f or the chancel l o r t o state his r easoning f or awarding Diana her portion of equity i n the m arital hom e. It appears the c hancellor originally based his
calculatio n s o f t he positive equity in the m a rital hom e o n the assum ption that only one

m ortgage existed on the property

. Mark brought the second m ortgage of $ 150,000 to the

court’s a ttention during the trial. However, the chancellor e x cluded the second m ortgage on

3 A lth o u g h n o t d i rectly ad d ressed b y th is C o u r t in its p rev io u s o p in io n , th e arg u m en ts p resen ted , w ith resp ect to th is i ssu e, w ere co n tem p late d i n t h e trial co u rt’s o p in io n an d in th is C o u rt’s d en ial o f D ian a’s m o t io n f o r reh earin g in cau se n u m b er 2 0 1 1 -C A -0 3 0 5 -C O A

. 5the property , because it had not been included in the parties’ Rule 8 .05 4 f inancial s tatem ents. According to the record, there is n o dispute t hat a s econd m ortgage existed during the t im e
of these p roceedings. On rem and, the chancellor accept e d t h i s error as evidenced by his

statem ent in his opinion t hat “it appears the equity o f the m a rital residence is disturbing to
the Court [ of Appeals] and f rankly it is t o this chancellor.” T he chancellor corrected this

error b y p r o p e r l y adjusting the am ount of equity d istributed t o Diana. It is c lear f rom the
chancellor’s opinion that he weighed all f actors in h is decision and f ound t he award in line
with Ferguson v. Ferguson , 639 So. 2d 921, 9 29 (Miss. 1994), 5 as evidenced by his

statem ents that “[ t]his [ c]hancellor attem pted to m ake an equitable d ivisio n a n d b e f a ir to
both sides,” and that “the $80,000 a ppeared to be equitable and s uf f icient f or Diana’s needs.”

In addition, the chancellor’s original order valued the “hom e and f urnishings” w i th respect

to t he m arital h om e at $ 285,00 0

. A l t h o ugh Diana argues t he f u rnishings within the hom e

were worth signif

i cantly m ore, she provides no e v idence t o s upport her contention. In the
absence of

that inf orm ation, this argum ent is without m erit.

II. Perm anent and Rehabilitative Alim ony

4 U C C R 8 .0 5

.

5 “A ll p ro p erty d iv i sio n , lu mp s u m o r p erio d i c alim o n y p ay m en t, an d m

u t u al
o b lig atio n s f

o r ch ild su p p o rt sh o u ld b e co n sid e red to g eth er. A lim o n y an d eq u itab le d istrib u tio n a re d istin ct co n cep ts, b u t to g e th er th ey co m m an d th e en tire f

ield o f f in an cial settlem en t o f d i v o rce. T h eref o re, w h ere o n e ex p a n d s , t h e o th er m u st reced e. T h u s, th e ch an cello r m ay d iv id e m arital assets, r e a l a n d p erso n al, as w ell as aw ard p erio d ic an d /o r lu m p su m alim o n y , as e q u ity d em an d s.” F erg u so n , 6 3 9 S o

. 2 d at 9 2 9 (in tern al citatio n s an d q u o tatio n s o m itted ).
6¶10. Diana a r g u e s the chancellor erred in not awarding her perm anent or r ehabilitative

alim ony

. She asserts that the chancellor’s award was grossly inadequate i n light o f the parties’ respective f

inancial situations. She argues that Mark receives approxim ately $6,500

per m on t h i n i n com e com pared to the $230 d isability p ay m ent she receives each m onth as
well a s a $10,000 annuity pay m en t every f

i ve y ears. She contends that “ [ a ]lim ony , if
al l o w e d , s h o u l d b e r e a s o n a b l e i n a m ount, com m ensurate with the wif e’s accustom ed standard
of living, m inus her own resources, and considering t he ability of the husband t o pay .” Gray

v. G ray , 562 So. 2d 7 9, 83 (¶4) (Miss. 1990). She also contends that the distribution m ade by the chancellor f

a lls below her accustom ed standard of living, and theref ore should be adjusted. ¶11. In response, Mark argue s t h a t t he c hancellor did not abuse his discretion by not awarding Diana alim o ny

. “[ T]his court will not d isturb a c hancellor’s f indings regarding the
award or am ount of

alim ony unless there is m anif

est error.” Rodriguez v. Rodriguez , 2 So.
3d 720, 730 (¶26) (Miss. Ct. App. 2009) (citing Armstrong , 618 So. 2d at 1280). According

to Mark the chancellor conducted an analy sis of t he A rmstrong f actors as ordered, a n d h i s
f indings support the f

act that Diana was not entitled to rehabilitative or perm anent alim ony

. Mark a r g u e s that the c hancellor caref ully w e i ghed the f

actors and f

ound that ten of the
twelve f actors weighed in f

avor of Mark, the other t wo f avored neither party , a n d theref ore “not one single f

actor weighed in f

avor of granting . . . [ Diana] alim ony .” ¶12. This Court is o f the opinion that t h e c h a ncellor satisf ied his obligation on rem and.

7The on-the-record analy sis of the f acts of the case gave context as to how he arrived at his
decisions. The chancellor di d n o t a buse his discretion. The chancellor was instructed to
address the distribution of e quity i n the m arital hom e a nd a naly ze the A rmstrong f

actors with
respect to the alim ony

. The f ollowing f

actors a r e to be considered by the c h ancellor in arriving at f

indings and entering a judgm ent f o r alim ony : ( 1 ) [ t]he incom e and expenses of the parties; (2) [ t]he health and e a r n i n g capacities of the parties; ( 3) [ t]he needs of each party ; (4) [ t]he obligations and assets of e ach party ; (5) [ t ]he length of the m arriage; (6) [ t ] h e presence or absence of m inor children i n the hom e, which m ay require that one o r both of the parties either p a y , o r personally p rovide, child care; ( 7) [ t]he age o f t he parties; (8) [ t ]he standard of living of the p arties, both during the m arriage and at t he tim e o f the support determ ination; ( 9) [ t]he t a x c o n s e quences of the spousal support order; (10) [ f ]ault or m i sconduct; (11) [ w]astef ul dissipation of assets by either party ; or (12) [ a]ny other f a ctor deem ed by

the court to be “just and equitable” in connection with the setting of spousal support.

A r m s tro n g , 6 1 8 S o

. 2 d at 1 2 8 0

. As e v i d e n c e d f r om the c ourt’s judgm ent, the chancellor

went step by step through each f a ctor explaining his analy sis. The court’s judgm ent stated: (1) T h e parties[ ’] incom e and e xpenses. Mark[ ’s]

. . . incom e i s, without a doubt, greater than Diana’s. Ho w e v e r , out of t hat i ncom e com es great expenses[

. ] (i.e.[ , ] t h e house m ortgages as well as living expenses and educational expenses of the p arties[ ’] m inor child, Alan, without t he benef it of f inancial h e lp f

rom Diana). Diana lef

t the m arital residence t o m ove to Florida to becom e k

nowledgeable in the r e a l e state m arket in that a r ea and according to testim o ny , she had n um erous contacts in that arena. Her expenses f u r t her were n ot that great and [ she] was not “ saddled” with e x penses of th e m inor child, Alan. (2) The parties[ ’] health a nd ea r n i n g capacities. At the tim e of t he d ivorce both parties’ health was g ood a n d e v en though M ark’s earning capacity was greater, Diana w as capable of m aking a living i n the r eal estate m arket in Florida. (3) Each party ’s needs. The division of the m arital assets as well as $36,000.00 [ in] lum p- s u m a l i m o ny

. . . and the $ 80,000.00 appeare d to be equitable and suf f icient f or Diana’s needs. (4) Each party ’s obligations and a ssets. Diana’s obligations were not that g reat[ ,] especially in

8view of the f act that she had no f

inancial o bligations to support the m inor child and his educational or m edi c a l n eeds. Her equitable division of assets appeared substantial in view of her estim ate of t he value of the c ondom inium and the equ i ty thereon, which was given to her. (5) The length of m arriage. Although the m arriage was som e sixteen y e ars, they lived apart and separate f or som e y ears with Diana choosing t o r eside in [ F]lorida and learn the F lorida real estate b usiness. ( 6) T he p resence or absence of the m i nor children in the hom e, which m ay require that o ne or both of the p a r t i es either pay , or p e r s o nally provide[ ,] child care. Diana does not have the responsibilit y f inancially with regard t o t he health, education[ ,] and support of their m inor child, Alan. This is huge and “insulates” Diana f rom the f i nancial pitf

alls of raising a child to m ajority (and then som e). ( 7 ) The parties’ age. This Court doesn’t consider th i s t o b e a f actor. (8) The parties’ standard of living, both during t he m arriage and at the tim e of the s upport determ i nation. This f actor concerned the Court as b oth parties lived above t he i r r e s p e c tive m eans. (9) The parties[ ’ ] tax consequences of any spousal support order. The Court did take this i n t o consideration[ ,] h opef ully not burdening Diana with tax conse q u e nces of a s upport order. (10) Fault or m isconduct. The Court did take this, som ewhat, into consideration in i ts ruling. Diana’s m a rital inf idelity and deciding to rem ove herself f rom the m arital hom e and f rom the trials and tribulations of the m a rriage and raising an adolescent son d e f i n i t e l y was an i mp o rtant consideration. ( 11) W astef ul dissipation of a ssets by either party

. As noted bef

ore, Diana’s lavish lif

esty le was a continuous drain a nd wastef ul dissipation of assets. Living ou t s i d e t h e m arriage in W est P alm B each and excessive gam

bling was not helpf

u l to the m a r

riage, nor the accum

ulation of assets. (12) Any

other f actor deem ed by

the Court to be “just and equitable” in connection with the setting of s p o usal support. A h uge f actor in not awarding a ny alim ony , r e h a b i litative or period[ ic][ ,] was [ the] “just and equ i t a b l e ” f

actor

. . . . [ T]his Court placed the entire f inancial obligation of raising the parties’ child

. . . on Mark. This C o urt also f elt that the lum

p-sum alim ony in the am ount of $36,000 was another equitable f actor that n egated periodic or rehabilitative alim ony being awarded. ¶13. The chancellor dem onstrated his analy s is of t he Armstrong f actors. On rem and, this

Court gave the c hancellor the instruction to, “[ i]f n ecessary , . . . m a ke adjus t me n t s t o h is equitable-distribution award.” Accordingly , the chancellor’s award to Diana of $28,500 of equity in the m arital hom e and the award of $51,500 of additional alim o ny w ere not m anif est

9error, and this Court does not f ind that the chancellor abused his discretion. ¶14. Accordingly , we af f irm

. ¶15. THE JUDGMENT O F T HE CHANCERY COURT OF PANOLA COUNTY IS AFFIRMED. A LL COSTS O F THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C .J., GRIFFIS, PJ., BARNES, ISHEE, CARLTON, FAIR A ND WILSON, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT S E P A R A T E W R ITTEN OPINION. GREENLEE, J., NOT PARTICIPATING.

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