IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-01797-COA BETTY REBECCA RANDOLPH APPELLANT

v. DANIEL LEE RANDOLPH APPELLEE DATE OF JUDGMENT: 06/09/2014 TRIAL JUDGE: HON. JOSEPH KILGORE COURT FROM W HICH APPEALED: KEMPER COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: MARVIN E. W IGGINS JR. ATTORNEY FOR APPELLEE: LESLIE C. GATES NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: GRANTED DIVORCE; DIVIDED PROPERTY DISPOSITION: AFFIRMED: 09/06/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ. FAIR, J., FOR THE COURT: ¶1. T h e Kem

per County Chancery Court granted D anny Randolph an d R e b e c c a R a n d o l p h

a divorce on the ground of irrecon c ilable d if f erences. The chancellor also perf o rm ed an equitable division of a ll assets and debts. On appeal, Rebecca argues that the c hancellor (1) erred in f i nding Danny a nd Rebecca’s date of separation as t he date of dem arcation; (2) erred in dividing the m arital assets ; a n d ( 3 ) e r r e d in ref u sing to award h er alim ony . F inding the judge acted within his sound discretion, we af f irm

. FACTS ¶2. Danny and Rebecca m arried on Decem ber 1 0, 1995. They had one child together—Em ely , born in 2004. Af t er sixteen y ears of m arriage, Danny and R ebecca separated. On
Decem ber 12, 2011, Danny

f iled f or divorce against Rebecca on the ground of adultery or, in the alternative, i rreconcilable dif f erences. Rebecca counterclaim ed, requesting a divorce

on t he ground of habitual cruel and inhum an treatm ent; c onstructive d esertion; or, in the alternative, irreconcilable dif f erences. ¶3. On July 16, 2 0 13, and Septem ber 17, 2013, t he c ourt ent e r e d t e mp o r a r y o rders on stipulated custody , sup p o r t , a n d visitation (except s um m e r). 1 The court awarded Rebecca legal a nd phy sical custody of Em ely

. Danny was on disability due to cancer. The court ruled that t he Social Security check pay able to Em ely based on h is disability benef its constituted child support. The court set the rem aining contested issues f or trial. ¶4. Bef

ore t rial, Danny and Rebec c a c o n s e n t e d t o a d i v o r c e o n t h e g r o u n d of irreconcilable dif

f erences. The court held trial on March 10 and March 11, 2014, to rule on
t he equitable division of t he m arital property and sum m er v isitation. Af t e r D a n n y a n d Rebecca separated, Danny stay ed in the m arital hom e a nd continued to pay the $780 house

note. T he chancellor ruled that part of the m arital p roperty included a 4.7 acre tract and a 34

acre tract ( with the m arital hom estead b eing one acre). A f ter c onducting his analy sis under the F erguson 2 f

actors, the c hancellor awarded Rebecca sixty percent of the m arital property and D anny t h e r e ma i ning f orty percent. Rebecca was awarded 28 acres, and D anny was

1 O n M a r ch 1 1 , 2 0 1 4 , th e c o u rt ru led th e a g reed o rd er w o u ld rem ain in af f ect u n til f u rth er o r d er f

ro m th e co u rt.

2 F erg u so n v. F

erg u so n , 6 3 9 S o . 2 d 9 2 1 (M i ss. 1 9 9 4 )

.

2awarded 6 acres (including the m arital hom e) and the 4.7 acre tract.

¶5. Rebecca f

iled a Mississippi Rule of Civil P rocedure 59 m otion and r equested that she be awarded the m arital hom e. S he f urther claim ed that the chancellor erred in f inding the date of s eparation as the line of dem arcation and in ref using to award her alim ony . Finally , she sought clarif

i cation as to what 28 acres were awarded to her. ¶6. The c hancellor denied a ll of Rebecca’s claim s e x cept the clarif i cation. He a ddressed the f act t hat the ma r i t al hom e’s driveway passed through both Danny ’ s and R ebecca’s properties. The chancellor r ecognized that b oth parties would need to use t he driveway to

access their respective p r operties. S o t h e c hancellor o rdered an easem ent be granted specif ically f or use of the driveway . Rebecca appealed. STANDARD OF REVIEW ¶7. “This Court em

ploy s a lim ited standard of review of property d ivision a n d distribution in d ivorce cases.” Bowen v
. Bowen , 982 So. 2d 385, 393 (¶32) ( Miss. 2008) (quoting Owen

v. Owen , 928 So. 2 d 1 5 6 , 1 6 0 (¶10) ( M iss. 2 006)). The chancellor’s distribution of the

m arital assets will be af

f irm ed as l ong as “it i s supported b y substantial credible evidence.” Id . at 394 (¶32). I n addition, “ [ a]lim ony awards are within the chancellor’s discretion and will not be reversed by the Court on appeal absent m anif e st error or an a

buse of discretion.” Cosentino v. C

osentino , 912 So. 2d 1130, 1132 (¶8) (Miss. Ct. App. 2005) (citing Baker v. Baker , 861 So. 2d 351, 353 (¶10) (Miss. Ct. App. 2003)). DISCUSSION

3¶8. M i s s issippi statutory law specif ically l ay s out the procedure f or a divor c e o n t h e ground of irreconcilable dif

f erences. Parties m ay consent to the divorce and subm it to the trial court any unresolved issues: If the parties are unable to agree upon adequate and suf f i cient provisions f

or the custody and m aintenance of a ny children of that m arriage or any property rights b etween t h em , they m ay consent t o a divorce on the ground of irreconcilable dif

f erences and perm it the court to decide the issues upon which they cannot agree. Such consent m ust be in writing, s igned by both part i es personall y , mu s t state that the parties voluntarily c onsent to perm it the court to decide such issues, which shall be specif ically set f

orth in such c onsent, and that t he parties understand that the decision of the court shall be a binding and lawf ul judgm ent. Miss. Code A nn. § 93-5-2(3) ( Rev. 2013). H ere, Danny a n d Rebecca subm itted t o the court the issues of

sum m er visitation and equitable division of all assets and debts. 1. Line of Dem arcation ¶9. “The law in Mississippi is that the da t e o n w h i c h a ssets cease to be m arital and becom e separate assets — w hat we ref er to

. . . as the point of dem a r cation

— can b e ‘either the date of separation ( a t t he earliest) or the date o f divorce (at the latest).’” Collins v. Collins , 1 12 So. 3d 428, 431-32 (¶9) (Miss. 2 0 1 3 ) (quoting Lowrey v
. Lowrey , 25 So. 3d 274, 285 (¶27) (Miss. 2 009)). A chancellor m ay c onsider a tem porary o rder as the line of dem arcation between m arital and separate property

. Id

. (citation om itted) ( citing Cuccia v. Cuccia , 90 So. 3d 1228, 1233 (¶8) (Miss. 2012)). Ultim ately , however, the chancellor has the discretion to draw the line of dem arcation. Id . at (¶10) (overruling Pittman v. Pittman , 791 So. 2d 857 (Miss. C t. A pp. 2001), on its i mp lication that tem porary orders alway s

4provide the m ark f or dem arcation). ¶10. The beginning date in calculating the accum u lation of m arital assets is Decem ber 10, 1995—the date of Danny a nd Rebecc a ’ s m a rriage. The c hancellor f ound the point of dem arcation was N ovem

ber 28, 2011—the approxim ate day Danny and R ebecca separated. During the divorce proceedings, no tem porary order w as entered. I n A r on v. A ron , t his Court stated that the c hancellor “has d i s c r e tion in determ ining whether acquisitions m ade in a

m arriage’s dy ing stages qualif y as m arital or separate property .” Aron v. Aron , 832 So. 2d 1257, 1259 (¶8) ( M i s s . C t

. App. 2002). Here, the chancellor reasoned that neither party provided any m onetary s upport to the other post-separation, except the disability benef its paid on b e h a l f o f E me ly

. W e f i nd the chancellor was well within his d iscretion to use the couple’s separation as the point of dem arcation. 2. Equitable Distribution ¶11. To equitably d ivide property , the c hancellor m ust: (1) classif

y the parti e s’ assets as

ma r i t al or s eparate, (2) value those assets, and (3) equitably divide the m arital assets. Hemsley v. Hemsley , 639 So. 2d 909, 914 (Miss. 1994); F erguson v. Ferguson , 639 So. 2d 921, 9 28 (Miss. 1 994). Marital prope r t y i s “ s u b j ect to an equitable distribution by the chancellor.” Hemsley , 6 3 9 So. 2d at 915. F urther, such m arital “ [ a ] s s e t s a c quired or

accum ulated during the course o f a m arriage are subject t o equitable d ivision unless it can be shown by proof that such a ssets are attributable to one o f the parties’ separate estates prior

to the m arriage or outside o f the m arriage.” Id

. at 914. The f ailure to segregate nonm arital

5assets m eans that they “m ay b e converted into m arital assets i f they ar e c o mmi n g l e d with

m arital assets o r used f

or f a m i lial purposes, absent and agreem e n t to the contrary .” Flechas v. Flechas , 791 So. 2d 295, 303 (¶27) (Miss. Ct. App. 2001). ¶12. The chancellor listed and v alued the m arital property , as well a s the parties’ separate
estates. H e f

ound that, in addition to o ther m iscellaneous household item s, a 4 .7 acre tract, the parties’ hom e, and the surrounding 33 acres were m arital property

. T he parties s tipulated that the value of the hom e w as $65,000. At the tim e o f s eparation, the s t ipulated pay of f was $56,000. Danny

had been living in the hom e since the separation and continued t o pay the $780 ho u s e n o t e . D a nny t estif ied that he had put close to $20,000 into the m arital hom e since the separation and that R ebecca contributed nothing. The chancellor f ound that Danny and Rebecca’s m arital assets am ounted to $121,498.75 and their d ebts am ounted to $56,000, with a net of

$65,498.75. ¶13. The chancellor t hen proceeded to an analy sis of the Ferguson f actors. Those f

actors

are: 1. Substantial contribution to the accum ulation of the property

. Factors to be considered in determ ining contribution are as f ollows:

a. D irect or indirect econom ic contribution to the acquisition of the property ; b. Contribution to t he stability and harm ony o f t he m arital and f am ily relationships as m e asured by quality , quantity of tim e spent on f a m ily duties and duration of the m arriage; and

c . Contribution to the e ducation, training or o t h e r a c c o m plishm ent bearing on the e arning power of the spou s e

6accum ulating the assets. 2. The degree t o which e ach spouse has expende d , w i thdrawn or o therwise d i s p o sed of m arital assets and any prior distribution of such assets b y agreem ent, decree or otherwise. 3

. T h e ma r ket value a nd the em otional value of the a ssets subject to distribution. 4. The value of assets not ordinarily , a b sent equitable f

actors t o the contrary , subject to such d i stribution, such a s property brought to the m arriage by the parties and property acquired by inheritance or inter vivos gif t by or t o an individual spouse;
5. Tax and other econom ic consequences, a n d c o ntractual o r legal consequences to third parties, of the proposed distribution; 6. The extent to which property division m ay , with equity to both parties, be utilized to elim i nate p eriodic pay m ents and other potenti a l s o u rces of f uture f riction between the parties;
7

. The needs o f the p a rties f or f i nancial security with d

ue regard t o t h e com bination of assets, incom e and earning capacity ; and, 8. Any other f actor which in equity should be considered. Ferguson , 639 So. 2d at 928. ¶14. In 2014, Danny w as unem ploy ed a nd on disability due to his cancer. His net m onthly incom e w as $1,576.00 per m onth and his expenses were $1,314.00 per m onth, i ncluding the house note. He testif

i ed that he m ade m ore mo n e y than Rebecca during their m arriage, working jobs ranging f

rom carpenter to m aintenance m anager. ¶15. W h ile m arried to D anny , Rebecca received training in the f ield of occupational saf

ety and health adm inistration. S he testif ied that she expected to graduat e in 2014. Danny did

7not personally contribute to Rebecca’s education. She relied on grants and loans and owed

$26,000 at the tim e of trial. A f ter g raduation, s he h oped to f ind a job at an oil ref

inery

. Until then, she w as working various part-tim e jobs. Rebecca and Em ely were living rent f

ree in Rebecca’s m other’s single-wide m obile hom e at the tim e of trial. Rebecca testif i ed that she could only af

f o r d a r o und $400 a m onth in rent if she m oved elsewhere. She listed her net

m onthly incom e as $1,757.86 (which included the $788.00 she received in Em ely ’s Social Security ). Rebecca listed her expenses at $1,641.67 w i t h o u t the house note. The court

em phasized that Rebecca had recently purchased a vehicle f or $28,573.08, which she clearly could not af

f ord. Her older vehicle had a lien of $7,683.24, but she o nly got $7,000 f or the trade-in. S o she had to pay the s eller the dif f erence. The purchase cost f or the new vehicle was $37,499.25 af

ter interest, with m onthly pay m ents of $499.99. ¶16. The court a lso addressed how D anny ’s m istreatm ent of Rebecca disrupted the f am ily stability

. Around the tim e they separat e d , D a n n y p inned Rebecca against the wall and choked h er, pointed a gun at her, and dragged h er through the house. He a lso put kerosene

on her and threatened t o set her o n f ire. Danny was arrested an d later convicted of sim ple assault. ¶17. The chancellor ultim ately awarded Rebecca sixty perce n t o f t he m arital assets and none of the m arital debt, stating: Af ter considering that Rebec c a w ill h ave phy s ical c u stody of Em ely , Rebecca’s signif

icant separate debt and her dire f inancial situation, as well as the harsh treatm e nt toward her by Danny , while also s t ill giving consideration to Danny ’s signif

icant contribution to the accum ulation of m arital assets and
8his hea l t h issues, t he court f inds that the equitable distribution should be accom plished by Rebecca having 60% and Danny having 40% of the m arital assets. Specif ically , the c hancellor a w a r d e d R e b e cca 28 acres of the 34 a cre tract ( valued at $35,000). Danny w as awarded the 4.7 acre tract (valued at $5,875), the m arital hom e, as well as the rem aining 5 acres of the 34 acre tract (valued at $6,500). ¶18. Reversal is warranted “only where the f ailure t o m ake s uf

f icient f indings o f f

act and conclusions of law cons t i t ute[ s] m anif

est error.” Selman v. Selman , 722 So. 2 d 547, 554 (¶29) ( Miss. 1998). I n t his case, the c hancellor set out his considerations in classif y ing the contested item s as m arital property under Hemsley and conducted a detailed a naly sis of all the Ferguson f

actors in d istributing the m arital property

. W e c annot say that the chancellor abused his discretion in doing so. Accordingly , we af f irm the judgm ent of

the chancellor. 3. Alim ony ¶19. Rebecca also argues that the court erred b y f ailing to a ward h er a l im ony . “Alim ony and e quitable distribution a re distinct concepts, but together they c o m m and the entire f ield

o f f inancial settlem ent of d i vorce. Theref ore, w here one expands, the other m u st re c e d e . ” Ferguson , 639 S o. 2d at 929. “If the equitable division of p roperty leaves neither spouse with a def icit with respect to having suf f icient resources and assets to m eet his or her needs and living expenses, t hen no alim ony award i s appropriate.” Jackson v. Jackson , 114 So. 3d 768, 777 (¶22) (Miss. Ct. App. 2013) (citations o m itted). Rebecca was awarded 28 acres of the 34 ac r e t r a ct (valued at $35,000), as well as a m ajority of the m a rital assets. The

9chancellor’s equitable division did not leave Rebecca with a def icit. W e a gree with the chancellor that alim ony

was inappropriate.

CONCLUSION ¶20. W e f

ind that the chancellor a cted within his d i s c r e t i o n i n d r a w i n g t h e line of dem arcation, i n dividing t he m arital assets, and in ref using to award Rebecca alim ony . Thus, we af f irm the chancellor’s judgm e nt. ¶21. THE JUDGMENT O F THE CHANCERY COURT O F KEMPER COUNTY IS AFF I R MED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., IRVING AND GR I F F I S , P.JJ., BARNES, I SHEE, CARLTON, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

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