IN THE SUPREME COURT OF MISSISSIPPI

NO. 1999-CA-00007-SCT

ROGER HEIGLE

v.

JO ANN HEIGLE (SIMMONS)

DATE OF JUDGMENT: 12/29/1998

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

COURT FROM WHICH APPEALED: ISSAQUENA COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: ROBERT S. MURPHREE

ATTORNEY FOR APPELLEE: JOHN H. DANIELS, III

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION: REVERSED AND REMANDED - 11/2/2000

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 11/27/2000

EN BANC.

PITTMAN, PRESIDING JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE AND MATERIAL FACTS

¶1. Roger Heigle ("Roger") and Jo Ann Heigle ("Jo Ann") were granted a divorce on December 1, 1992.

Roger appealed the chancellor's order to this Court on December 28, 1992. This Court vacated the

judgment on both the appeal and cross-appeal and remanded with instructions to the lower court that all

issues, other than the issue of the granting of the divorce, should be stayed until the conclusion of the

bankruptcy proceedings. Heigle v. Heigle, 654 So.2d 895, 898 (Miss. 1995)("Heigle I").

¶2. Jo Ann moved for summary judgment on October 6, 1997. The trial court partially granted Jo Ann's

motion, ruling that as a matter of law and fact, Jo Ann was entitled to equitable distribution of the marital

assets.

¶3. In January, 1998, Jo Ann filed a motion with the trial court, asking that an expert be appointed to

appraise the marital estate as of 1992. Roger opposed the motion and stated that his counsel could not be

present for the hearing on the matter. Regardless, the court heard the motion without the presence of

Roger's counsel. At the hearing, the court appointed an expert, a local accountant, to value the marital

estate.

¶4. The expert failed to have the required report ready for court until December of 1998. Roger's counsel

repeatedly tried to contact the expert to obtain a copy of his report, only to be told by the expert that he

would have to talk to the chancellor before giving Roger's counsel any information.
¶5. Trial on this matter was held on December 17, 1998. At this time, the bankruptcy regarding Heigle

Farms had been settled. The chancellor issued a bench ruling where he valued Heigle Farms at $900,000,

of which $225,000 constituted Roger's interest. The chancellor then placed a $14,000 value on a life

insurance policy owned by Roger and valued the marital residence at $48,150. Jo Ann was awarded 40%

of the marital estate or $114,860. The chancellor went through a series of credits and debits to arrive at a

final figure of $115,060. Roger was ordered to pay $10,000 of Jo Ann's attorney's fees as well as $3,000

in expert fees.

¶6. The chancellor set a supersedeas appeal bond for three times the judgment amount, in direct

contravention to M.R.A.P. 8, which calls for a supersedeas appeal bond of 125% of the judgment. Roger

filed a motion with this Court to reverse the chancellor's order requiring the exorbitant bond. Such order

was granted by this Court. On remand, the chancellor then set the bond at 125%. Roger then appealed the

final judgment to this Court.

STATEMENT OF ISSUES

I. WHETHER THE LOWER COURT ERRED IN GRANTING JOANN'S MOTION FOR

SUMMARY JUDGMENT REGARDING EQUITABLE DISTRIBUTION AND RULING

JOANN WAS ENTITLED TO EQUITABLE DISTRIBUTION PRIOR TO THE TRIAL

OF THE MATTER.

II. WHETHER THE RULING ISSUED BY THE LOWER COURT HAS SUFFICIENT

FACTUAL SUPPORT AND DEVELOPMENT TO ALLOW THIS COURT TO

CONDUCT A MEANINGFUL APPELLATE REVIEW OF THE BASIS FOR THE

LOWER COURT'S RULING IN LIGHT OF THE LOWER COURT'S FAILURE TO

DISCUSS THE FERGUSON FACTORS.

III. WHETHER THE LOWER COURT ERRED IN APPOINTING A COURT

APPOINTED EXPERT TO PREPARE VALUATIONS IN THIS MATTER.

IV. WHETHER THE COURT ERRED IN VALUING THE MARITAL ESTATE AS OF

1998 INSTEAD OF THE TIME OF THE DIVORCE IN 1992.

V. WHETHER THE LOWER COURT ERRED IN EXCLUDING PARTNERSHIP

LIABILITIES ON NOTES SIGNED BOTH BY THE PARTNERSHIP AND ROGER IN

DETERMINING THE VALUE OF THE PARTNERSHIP AND ROGER'S LIABILITIES.

VI. WHETHER THE LOWER COURT ERRED IN THE WAY IT HANDLED ALL THE

ISSUES INVOLVING THE HOUSE THE PARTIES LIVED IN DURING THEIR

MARRIAGE.

VII. WHETHER THE LOWER COURT ERRED IN MAKING ROGER PAY PART OF

JOANN'S ATTORNEYS FEES AS WELL AS THE EXPERT FEES.

VIII. WHETHER THE LOWER COURT ERRED IN REQUIRING THE ATTORNEY

FOR ROGER TO TESTIFY AS A WITNESS FOR JOANN.

IX. WHETHER THE LOWER COURT ERRED IN RELYING UPON ITS OWN
PERSONAL EXPERIENCE AND MATTERS NOT IN THE RECORD IN ITS RULING.

X. WHETHER THE LOWER COURT'S TREATMENT OF ROGER EVIDENCES BIAS

AND PREJUDICE.

XI. WHETHER THE AWARD MADE BY THE LOWER COURT IS EQUITABLE AND

JUST GIVEN THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING

ROGER'S FINANCIAL CONDITION.

XII. WHETHER THE LOWER COURT ERRED IN NOT TAKING INTO ACCOUNT

ROGER'S INABILITY TO PAY IN MAKING THE RULING OF DECEMBER 17, 1998,

THAT FORMED THE BASIS FOR THE JUDGMENT APPEALED FROM AND

WHETHER THE EVIDENTIARY BASIS FOR THE EQUITABLE DISTRIBUTION

ORDERED WAS PROVED BY THE PLAINTIFF.

XIII. WHETHER THE LOWER COURT WAS CONSISTENT IN THE APPLICATION

OF ITS CREDITS AND DEBITS TO THE MARITAL ESTATE IN COMING UP WITH

THE FINAL FIGURE AWARDED TO JOANN.

STANDARD OF REVIEW

¶7. The standard of review in domestic relations cases is well-settled:

Our scope of review in domestic relations matters is limited by our familiar substantial

evidence/manifest error rule. Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990). "This Court will

not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous

or an erroneous legal standard was applied." Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990).

See also Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994); Faries v. Faries, 607 So.2d 1204,

1208 (Miss.1992). In other words, "[o]n appeal [we are] required to respect the findings of fact

made by a chancellor supported by credible evidence and not manifestly wrong." Newsom v.

Newsom, )557 So.2d 511, 514 (Miss.1990). See also Dillon v. Dillon, 498 So.2d 328, 329

(Miss.1986). This is particularly true in the areas of divorce, alimony and child support. Tilley v. Tilley,

610 So.2d 348, 351 (Miss.1992); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989). The word

"manifest," as defined in this context, means "unmistakable, clear, plain, or indisputable." Black's Law

Dictionary 963 (6th ed.1990). Turpin v. Turpin, 699 So.2d 560, 564 (Miss.1997) (quoting Magee v.

Magee, 661 So.2d 1117, 1122 (Miss.1995)).

Clark v. Clark, 754 So.2d 450, 458 (Miss. 1999).

DISCUSSION

I. WHETHER THE LOWER COURT ERRED IN GRANTING JOANN'S MOTION FOR

SUMMARY JUDGMENT REGARDING EQUITABLE DISTRIBUTION AND RULING

JOANN WAS ENTITLED TO EQUITABLE DISTRIBUTION PRIOR TO THE TRIAL

OF THE MATTER.

¶8. This Court's standard of review of a trial court's grant of summary judgment is well established:
Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as

that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs

a de novo standard of review of a lower court's grant or denial of summary judgment and examines all

the evidentiary matters before it-- admissions in pleadings, answers to interrogatories, depositions,

affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the

motion has been made. If, in this view, there is no genuine issue of material fact and, the moving party

is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor.

Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for

summary judgment obviously are present where one party swears to one version of the matter in issue

and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact

exists is on the moving party. That is, the non-movant should be given the benefit of the doubt.

McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996) (quoting Mantachie Natural Gas Dist. v.

Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992); Clark v. Moore Mem'l United

Methodist Church, 538 So.2d 760, 762 (Miss.1989)).

Mississippi Dep't of Wildlife, Fisheries & Parks v. Mississippi Wildlife Enforcement Officers'

Ass'n, Inc.,740 So.2d 925, 929-30 (Miss. 1999).

¶9. In October, 1997, approximately two and one-half years after this Court's earlier ruling in Heigle I, Jo

Ann moved for summary judgment asking the chancery court to rule that she was "entitled to an equitable

division of the assets accumulated during the time of the marriage between the parties." Jo Ann filed no

additional documents in support of her motion. The chancery court granted Jo Ann's motion, stating that "Jo

Ann Heigle is entitled to an equitable division of the assets accumulated during the time of the marriage

between the parties."

¶10. Roger strenuously objected to Jo Ann's motion, noting that "the earlier ruling of this Court granting an

equitable division of the parties' property has been reversed by the Supreme Court, and the plaintiff now

asks the Court to make the same determination prematurely that has already been reversed once."

¶11. In Heigle I, this Court held the chancellor in error when he found Jo Ann was entitled to an equitable

distribution of the marital estate when the chancellor was unable to value the estate due to bankruptcy.

Heigle I, 654 So.2d at 898. This Court stated:

In the case of property settlement and lump sum alimony, the court's decision must hinge on the value

of the marital estate, or the spouses' separate estates. Ferguson v. Ferguson, 639 So.2d 921, 928-

29 (Miss. 1994); Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss. 1988). In Ferguson, the

Court stated: "Property division should be based upon a determination of the fair market value of the

assets, and these valuations should be the initial step before determining division." 639 So.2d at 929.

In the instant case, that information was not before the court when it made its determination due to the

bankruptcy proceedings involving Heigle Farms. The value of Roger's partnership interest could be

several thousand dollars, or it might be totally worthless. That being the case, the court's decision to

grant JoAnn a property settlement and/or lump sum alimony was premature, and we reverse on this

issue.

654 So.2d at 898.
¶12. The facts that were before the chancellor in Heigle I were the same facts before the chancellor on

remand. Neither JoAnn nor Roger had filed any further evidence with the court that would serve to support

or negate JoAnn's motion for summary judgment. A review of the transcript of the hearing regarding the

motion for summary judgment gives no indication that any new information had been provided the court to

help determine the value of the marital estate. The marital estate had not been assigned a value at the time

summary judgment was granted as was required by this Court in Heigle I. There was no assigned value at

the time of the summary judgment in favor of Jo Ann in 1997.

¶13. The 1997 granting of a summary judgment announcing or awarding equitable distribution is no more

than announcing that the chancellor intended to follow the precedent established by this Court in Ferguson.

Ferguson v. Ferguson, 693 So.2d 921 (Miss. 1994). The trial court's granting of a summary judgment in

its November 1997 order without assigning any value to the marital estate and without any division of such

an estate was a redundant statement of what the law is and did not in any way change the status of the

parties and did no harm to the parties; indeed both parties are entitled to an equitable distribution of the

marital assets.

¶14. The law is clear on this point. As this Court stated in Ferguson, "[p]roperty division should be based

upon a determination of fair market value of the assets, and these valuations should be the initial step before

determining division." Id. at 929. According to Ferguson, the estate must have a value placed upon it

before the chancellor can determine what is an equitable distribution. The chancellor did not place a value

on the marital estate when he awarded Jo Ann 40% of the marital estate. In 1997 the chancellor did not

evaluate the estate, he merely announced that Jo Ann was entitled to an equitable distribution without

deciding what that distribution was.

¶15. Therefore, no harm, no foul, no division of estate, and no reversal on this issue.

II. WHETHER THE RULING ISSUED BY THE LOWER COURT HAS SUFFICIENT

FACTUAL SUPPORT AND DEVELOPMENT TO ALLOW THIS COURT TO

CONDUCT A MEANINGFUL APPELLATE REVIEW OF THE BASIS FOR THE

LOWER COURT'S RULING IN LIGHT OF THE LOWER COURT'S FAILURE TO

DISCUSS THE FERGUSON FACTORS.

¶16. Roger argues that the chancellor committed manifest error in failing to make a record of the findings of

fact and conclusions of law regarding the equitable distribution of the marital estate. Jo Ann, however,

argues that because the chancellor mentioned that he considered the Ferguson factors in his bench ruling,

that is sufficient for this Court to perform a review. After careful inspection of the record before us, this

Court concludes that the chancellor committed manifest error in failing to make the required record of the

findings of fact and conclusions of law regarding the Ferguson factors.

¶17. This Court has made it quite clear that chancellors should make findings of fact and conclusions of law

regarding equitable distribution of the marital estate part of the record to aid this Court in its review. In

Ferguson, the seminal case regarding equitable distribution, this Court stated:

Given the development of domestic relations law, this Court recognizes the need for guidelines to aid

chancellors in their adjudication of marital property division. Therefore, this Court directs the

chancery courts to evaluate the division of marital assets by the following guidelines and to

support their decisions with findings of fact and conclusions of law for purposes of appellate
review.

Ferguson, 639 So.2d at 928 (emphasis added). The Court went on to state in Ferguson that "[t]o aid in

appellate review, findings of fact by the chancellor, together with the legal conclusions drawn

from those findings, are required." Id. at 929 (emphasis added). The Ferguson factors include, but are

not limited to:

1. Substantial contribution to the accumulation of the property. Factors to be considered in

determining contribution are as follows:

a. Direct or indirect economic contribution to the acquisition of the property;

b. Contribution to the stability and harmony of the marital and family relationships as measured by

quality, quantity of time spent on family duties and duration of the marriage; and

c. Contribution to the education, training or other accomplishment bearing on the earning power of the

spouse accumulating the assets.

2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital

assets and any prior distribution of such assets by agreement, decree or otherwise.

3. The market value and the emotional value of the assets subject to distribution.

4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such

distribution, such as property brought to the marriage by the parties and property acquired by

inheritance or inter vivos gift by or to an individual spouse;

5. Tax and other economic consequences, and contractual or legal consequences to third parties, of

the proposed distribution;

6. The extent to which property division may, with equity to both parties, be utilized to eliminate

periodic payments and other potential sources of future friction between the parties;

7. The needs of the parties for financial security with due regard to the combination of assets, income

and earning capacity; and,

8. Any other factor which in equity should be considered.

Id. at 928.

¶18. The chancellor, in his bench ruling, stated that "[i]n making my decisions about the equitable

distribution, I have considered all of the factors set forth in Ferguson." He went on to state that "the

'equitable division' of a marital estate is left to the sound discretion of the [c]hancellor, keeping in mind, as I

said earlier, the Ferguson factors." The chancellor made no mention of the Ferguson factors in his Final

Judgment entered December 30, 1998.

¶19. The chancellor then ruled that Jo Ann was entitled to a 40% interest in the marital estate. The

chancellor made no findings of fact or conclusions of law to support this award of 40% of the marital estate

or $114,860. He merely recited the mechanics of how he arrived at that number. Such being the case, this
Court has no basis on which to review the chancellor's 40% award to Jo Ann.

¶20. This Court has not hesitated to reverse chancellors w ho fail to apply the Ferguson factors and make

the requisite findings of fact and conclusions of law as required by this Court. In Sandlin v. Sandlin, 699

So.2d 1198 (Miss. 1997), the chancellor, in making the marital property distribution, mentioned the

Ferguson guidelines and represented that he was applying them to the facts of that case. Id. at 1204.

However, the chancellor failed to make the requisite findings of fact and conclusions of law as required by

Ferguson. This Court held that it "could not evaluate the basis that he [the chancellor] used to determine

the division of property." Id. Finally this Court ruled that "the failure to make findings of fact and conclusions

of law was manifest error requiring reversal and remand." Id.

¶21. In Kilpatrick v. Kilpatrick, 732 So.2d 876 (Miss. 1999), this Court reversed a chancellor for failing

to make the required findings of fact and conclusions of law regarding the distribution of the marital estate.

Id. at 881. While the chancellor did enumerate the actual property division, the chancellor made no

conclusions of law to support the division of the marital estate. Id. at 878-88. This Court reversed and

remanded for specific findings of fact stating that "[w]ithout findings from the Chancellor concerning this

income or use of income, we cannot determine if the distribution of property outlined above meets the

standards of equitable distribution required by Ferguson." Id. at 881.

¶22. In the case sub judice, the chancellor, as did the chancellor in Kilpatrick, enumerated the actual

property division. In this case, as in Kilpatrick, the chancellor failed to make any conclusions of law as to

the Ferguson factors to support the division of the marital estate. As a result of the chancellor's failure to

apply the Ferguson factors properly, this Court has no choice but to reverse and remand this action to the

trial court.

III. WHETHER THE LOWER COURT ERRED IN APPOINTING A COURT

APPOINTED EXPERT TO PREPARE VALUATIONS IN THIS MATTER.

¶23. Roger next cites the chancellor's appointment of an expert witness as error. Jo Ann filed a motion

requesting that the chancellor appoint an expert witness to value the marital estate as of December 31,

1992. Roger opposed the motion, arguing that it would only assist Jo Ann "in proving her case." Roger

further opposed the hearing on the motion because counsel for Roger could not be present on the day of the

hearing. On the day of the hearing Roger's counsel telephoned the court administrator who informed

counsel that the motion was still set to be heard. Roger's counsel asked to participate by phone. The court

administrator told counsel that she would call back if the hearing took place. Counsel was not contacted by

the court administrator. The chancellor held the hearing on the motion, granted the motion and appointed

Donald Tackett and Associates to prepare a valuation of the marital estate.

¶24. In Bryant v. Horton, 124 Miss. 1, 86 So. 642 (1921), this Court reversed the trial court for hearing

and granting a motion to dismiss without notice to opposing counsel or without giving opposing counsel the

opportunity to be heard. This Court stated "[w]e think the proper practice in such a case is to give notice to

opposing counsel when action is to be taken by the court, so that he may appear and be heard, or remedy

the trouble urged against his case." Id. at 643.

¶25. In the case sub judice, Roger's counsel was noticed that the motion was to be heard on February 5,

1998. Counsel immediately notified the court that he could not attend the hearing and asked that it be

rescheduled. Counsel received no reply from Jo Ann's counsel or the chancellor. When counsel attempted
to participate in the hearing telephonically, the court administrator never called counsel to advise him of the

hearing time as she had promised. In effect, counsel was not noticed because the court administrator failed

to notify counsel when the hearing began.

¶26. Furthermore, it is the chancellor's duty and responsibility to make sure that every person who has a

legal interest in a proceeding or his counsel is given "full right to be heard according to law...." Code of

Judicial Conduct, Canon 3(A)(4). Neither Roger nor his counsel was given any right at all to be heard at

this proceeding.

¶27. While we cannot say that the chancellor would not have appointed the expert witness if Roger had

attended the hearing, we can say that Roger was possibly harmed by this appointment. The chancellor

instructed the expert to value the marital estate as of December 31, 1992. The expert testified that he used

a January, 1998, balance sheet to begin his evaluation. Indeed his report stated that he was to determine the

marital estate's "current value."

¶28. Because this is a domestic relations case, we will review the decision of the chancellor to appoint an

expert under the manifest error, abuse of discretion standard applied in domestic relations cases. Clark,

754 So.2d at 458.

¶29. M.R.E. 706 states in pertinent part:

(a) Appointment. The court may on its own motion or on the motion of any party enter an order to

show cause why expert witnesses should not be appointed, and may request the parties to submit

nominations. The court may appoint any expert witnesses agreed upon by the parties, and may

appoint expert witnesses of its own selection. . . .

M.R.E. 706 clearly authorizes the appointment of an expert upon the motion of a party. As the Court of

Appeals correctly noted, "[t]he appointment of an expert by the court under Mississippi Rule of Evidence

706 is done sparingly, and then only in exceptional cases involving complex issues where the expert's

testimony would be helpful to the trier of facts. M.R.E. 706." Trilogy Communications, Inc. v. Thomas

Truck Lease, Inc., 733 So.2d 313, 317 (Miss. Ct. App. 1998).

¶30. The chancellor did not abuse his discretion in appointing an expert. The mechanics of this case are

extremely complicated. Involved in this case is the valuation of a partnership that was in bankruptcy at the

time of the divorce in 1992. As of 1998, the partnership had ended the bankruptcy and had begun

rebuilding the farming operations. The parties had lived in a home allegedly paid for and owned by the

partnership. Living expenses for the parties had been paid by the partnership. Because of the complexity of

the financial matters in this case, it cannot be said that the chancellor abused his discretion in appointing an

expert.

¶31. As stated earlier, though, Roger was possibly harmed by the appointment of the expert witness.

Specifically, Roger should have been allowed input on matters such as the date to be used in the valuation

and the method of selecting the expert. Upon remand, Roger should be given an opportunity to be heard

with regard to the expert witness.

IV. WHETHER THE COURT ERRED IN VALUING THE MARITAL ESTATE AS OF

1998 INSTEAD OF THE TIME OF THE DIVORCE IN 1992.
¶32. Roger asserts that the chancellor erred in valuing the marital estate as of 1998 instead of 1992, the

date of divorce. Jo Ann asserts that the chancellor did value the marital estate as of 1992.

¶33. While Roger cites no authority for this issue, it is necessary for this Court to speak to the issue to give

guidance to the Court below and to avoid confusion on remand.

¶34. In the order appointing the expert, the chancellor stated that the valuation was to be made "as of

12/31/92." Upon examination of the report submitted by the expert, it is clear that the estate was valued in

1998 terms.

¶35. The report is dated December 10, 1998. In the first paragraph the expert states that he was

"appointed to determine the current value of the marital estate." The report goes on to say that a financial

statement dated January 18, 1998, was used in the valuation. The report valued the partners' equity at

$901,945.21 with Roger's 25% interest coming to $225,486.30. The marital residence was valued at $48,

150, with no supporting documentation. Net cash value of a life insurance policy on Roger's life with Jo Ann

as beneficiary was valued at $14,000.

¶36. The chancellor adopted the valuation of the expert. In his bench ruling, the chancellor valued Roger's

interest in Heigle Farms at $225,000, the life insurance at $14,000, and the marital estate at $48,150, for a

total valuation of $287,150.

¶37. The actions of the chancellor in assigning a value to the marital estate constitute manifest error requiring

reversal by this Court. Marital property is defined as "any and all property acquired or accumulated during

the marriage." Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss. 1994). "Assets so acquired or

accumulated during the course of the marriage are marital assets and are subject to an equitable distribution

by the chancellor." Id. Further, "non-marital property is not subject to equitable distribution." Devore v.

Devore, 725 So.2d 193, 196 (Miss. 1998).

¶38. The chancellor committed manifest error in valuing the property as of 1998. In Heigle I, the

chancellor could not place a value upon the partnership as of 1992 because the partnership was in

bankruptcy. Upon remand, it will be incumbent upon the chancellor to value the partnership at the time the

bankruptcy was concluded. This Court is unable to ascertain that date as such information was not

provided to this Court.

¶39. Once the marital estate is assigned a post-bankruptcy value, this Court directs that Jo Ann be

awarded interest on her equitable share of the marital estate with such interest commencing on the date of

the conclusion of the bankruptcy.

VII. WHETHER THE LOWER COURT ERRED IN MAKING ROGER PAY PART OF

JO ANN'S ATTORNEYS FEES AS WELL AS THE EXPERT FEES.

¶40. The chancellor ordered Roger to pay $10,000 of the $15,000 Jo Ann owed in attorney's fees. The

chancellor also ordered that Roger pay $3,000 in expert fees. The chancellor then went on to order that the

court costs be divided "50/50 between the parties."

¶41. It is an abuse of discretion for a trial court to award costs and attorney fees without a showing that one

party is unable to pay the fees in question. Hankins v. Hankins, 729 So.2d 1283, 1286 (Miss. 1999).

Here, the chancellor did not make any findings that Jo Ann was unable to pay her attorney fees or the
expert fees. Because the chancellor made no findings as required by this Court, we reverse the chancellor's

order requiring Roger to pay $10,000 in attorney fees incurred by Jo Ann as well as the $3,000 expert

fees. We reverse and remand this issue for consideration by the court upon remand.

V. WHETHER THE LOWER COURT ERRED IN EXCLUDING PARTNERSHIP

LIABILITIES ON NOTES SIGNED BOTH BY THE PARTNERSHIP AND ROGER IN

DETERMINING THE VALUE OF THE PARTNERSHIP AND ROGER'S LIABILITIES.

VI. WHETHER THE LOWER COURT ERRED IN THE WAY IT HANDLED ALL THE

ISSUES INVOLVING THE HOUSE THE PARTIES LIVED IN DURING THEIR

MARRIAGE.

VIII. WHETHER THE LOWER COURT ERRED IN REQUIRING THE ATTORNEY

FOR ROGER TO TESTIFY AS A WITNESS FOR JOANN.

IX. WHETHER THE LOWER COURT ERRED IN RELYING UPON ITS OWN

PERSONAL EXPERIENCE AND MATTERS NOT IN THE RECORD IN ITS RULING.

X. WHETHER THE LOWER COURT'S TREATMENT OF ROGER EVIDENCES BIAS

AND PREJUDICE.

XI. WHETHER THE AWARD MADE BY THE LOWER COURT IS EQUITABLE AND

JUST GIVEN THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING

ROGER'S FINANCIAL CONDITION.

XII. WHETHER THE LOWER COURT ERRED IN NOT TAKING INTO ACCOUNT

ROGER'S INABILITY TO PAY IN MAKING THE RULING OF DECEMBER 17, 1998,

THAT FORMED THE BASIS FOR THE JUDGMENT APPEALED FROM AND

WHETHER THE EVIDENTIARY BASIS FOR THE EQUITABLE DISTRIBUTION

ORDERED WAS PROVED BY THE PLAINTIFF.

XIII. WHETHER THE LOWER COURT WAS CONSISTENT IN THE APPLICATION

OF ITS CREDITS AND DEBITS TO THE MARITAL ESTATE IN COMING UP WITH

THE FINAL FIGURE AWARDED TO JOANN.

¶42. Because we reverse and remand to the trial court on Issues I, II, III, IV, and VII, we will not address

the remaining issues.

CONCLUSION

¶43. This Court holds that the court below erred in failing to make a record as to the findings of fact and

conclusions of law regarding his application of the Ferguson factors in awarding Jo Ann 40% of the marital

estate.

¶44. While the chancellor did not err in appointing an expert; the expert, in contravention to the order of the

chancellor, valued the marital estate as of 1998 instead of 1992, or at the end of the bankruptcy. This

valuation constitutes manifest error.

¶45. The chancellor was also in error when he ordered Roger to pay part of Jo Ann's attorney fees as well
as the expert fees. The chancellor made no finding that Jo Ann was unable to pay those fees, in direct

contravention to established law.

¶46. The judgment of the Chancery Court of Issaquena County is reversed, and this case is remanded to

that court for further proceedings consistent with this opinion.

¶47. REVERSED AND REMANDED.

PRATHER, C.J., WALLER, COBB AND DIAZ, JJ., CONCUR. SMITH, J., DISSENTS

WITHOUT SEPARATE WRITTEN OPINION. BANKS, P.J., CONCURS IN PART AND

DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, J.

PRATHER, C.J., JOINS IN PART. MILLS, J., NOT PARTICIPATING.

BANKS, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶48. I agree that the chancery court's judgment must be reversed and this case remanded for further

proceedings to more precisely articulate a consideration of the Ferguson factors. I also believe, however,

that the chancellor's acceptance of the court-appointed expert's valuation without adequate support for that

expert's disregard of certain partnership debts requires reversal. Finally, I disagree with the majority's

command that the trial court consider only the value of the marital estate as of the time that the bankruptcy

ended for purposes of determining equitable distribution. In my view, the task is a bit more complicated

than that.

I.

¶49. Generally, the valuation of a marital estate is as of a date coinciding with the dissolution of the

marriage. This may be deemed the date of filing for divorce, the date of the hearing at which a divorce is

granted or the date of the hearing at which property issues are determined depending upon the jurisdiction.

See, e.g., Catalfumo v. Catalfumo, 704 So.2d 1095, 1098 (Fla. Dist. Ct. App. 1998)(holding trial court

did not abuse its discretion in finding the date of filing the petition for dissolution as the valuation date for

equitable distribution); Morgan v. Ackerman, 964 S.W.2d 865, 869 (Mo. Ct. App. 1998) (holding that

valuation should occur on the date of the trial at which property issues are determined); Holbrook v.

Holbrook, 309 N.W.2d 343, 346 (Wis. Ct. App. 1981)(holding courts should utilize the date at which the

divorce is granted); our case law suggests that, for valuation purposes, we have generally used a date that

coincides with the end of the marriage. Godwin v. Godwin, 758 So.2d 384, 386 (Miss. 1999)

(determination that order for separate maintenance indicated end of marriage). Courts have also recognized,

however, that if the presumptive date is inequitable for all or some assets, the court, in the application of

principles of equity may choose some other more appropriate date. Goldman v. Goldman, 589 A.2d

1358, 1360 (N.J. Super. Ct. Chan. Div. 1991), aff'd and remanded in part, 646 A.2d 504 (N.J. Super.

Ct. App. Div. 1994).

¶50. Bankruptcy of a business enterprise is among the complications which may cause a delay in valuation.

Whatever the cause, however, it should be recognized that valuation as of a date significantly removed from

the dissolution of the marriage creates additional concerns in determining the percentage of value to be

assigned to the marital estate. See generally, Lynn Weddle Judkins, The Road to Splitsville: How the

Timing of Valuation During Marital Dissolution Leads to Costly Detours, 15 J. Am. Acad. Matrim.

Law. 465 (1998). In the case of a going concern, whether in or out of bankruptcy, a distinction must be
made between value gained by the continuing non-marital efforts of the spouse in possession and that

gained by passive appreciation of business assets. Bednar v. Bednar, 474 A.2d 17, 18 (N.J. Super. Ct.

App. Div. 1984) (When evaluating equitable distribution in light of accretion or enhancement in value, value

must be analyzed in terms of whether the value was attributable to the personal industry of the party

controlling the asset, apart from the non-possessory partner, or simply to fortuitous increase in value 'due

merely to inflation or other economic factors.') (quoting Mol v. Mol, 370 A.2d 509 (N.J. Super. Ct. App.

Div. 1977)).

¶51. In the instant case, the chancellor ordered that the estate be valued as of 1992, but he seems to have

accepted a value based upon an adjustment to 1998 values, which did not necessarily reflect 1992 values.

The majority suggests that the chancellor should have considered only a valuation as of the time that the

bankruptcy ended. There was no testimony as to when the bankruptcy "ended." There was testimony that

the reorganization plan had been confirmed by December 1997, at the time that a loan had been made, but

the date of confirmation of the plan and closing of the Chapter 11 estate was not established. In my view,

the chancellor must determine both the value at the time of dissolution of the marriage and the value at the

time that the distribution is made. Assuming that the latter value is greater, the chancellor must then

determine the percentage of the increase which is attributable to passive growth of marital assets as

opposed to Mr. Heigle's post-marital efforts.

¶52. The chancellor made an effort to consider these factors. He observed that it would be inequitable to

award Mrs. Simmons appreciation in value generated by the post-marital efforts of Mr. Heigle. On the

other hand, he also expressly considered the ways in which the spouse in possession may benefit from the

use of the marital assets. He then arrived at a figure of 40%, a downward departure from what he viewed

as the presumptive 50% established in Hemsley v. Hemsley, 639 So.2d 909 (Miss. 1994) and its progeny,

e.g., Arthur v. Arthur, 691 So.2d 997 (Miss. 1997); Johnson v. Johnson, 650 So.2d 1281 (Miss.

1995). He did so summarily, however, and as a policy matter, this Court requires a more detailed

explanation. Louk v. Louk, 761 So.2d 878, 883 (Miss. 2000).

II.

¶53. Finally, I also find error in the failure of the chancellor to explain adequately the decision to accept the

expert's explanation for disregarding debts owed by the partnership but collateralized by assets outside the

partnership. The suggestion that one's debt may be disregarded because it is secured by the property of

another is simply wrong. There may be a valid reason for disregarding this debt but it does not appear in the

chancellor's opinion. Thus, the judgment should be reversed and this case remanded for this reason as well.

McRAE, J., JOINS THIS OPINION. PRATHER, C.J., JOINS IN PART.