IN THE SUPREME COURT OF MISSISSIPPI

NO. 2000-CA-00252-SCT

JAMES KENNETH HENSARLING

v.

BRENDA ROXANNE GRAY HENSARLING

DATE OF JUDGMENT: 11/5/1999

TRIAL JUDGE: HON. WILLIAM HALE SINGLETARY

COURT FROM WHICH

APPEALED:

HINDS COUNTY CHANCERY COURT

ATTORNEYS FOR

APPELLANT:

JANICE T. JACKSON

JOHN R. McNEAL, JR

ATTORNEYS FOR APPELLEE: WILLIAM D. KETNER

W. DAVID ROSS

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART

- 06/20/2002

MOTION FOR REHEARING

FILED:

7/8/2002; denied and Opinion modified at Paragraph 25 9/5/2002

MANDATE ISSUED: 9/12/2002

CONSOLIDATED WITH

NO. 2000-CA-00333-SCT
DATE OF JUDGMENT: 2/24/2000

TRIAL JUDGE: HON. WILLIAM HALE SINGLETARY

COURT FROM WHICH

APPEALED:

HINDS COUNTY CHANCERY COURT

ATTORNEYS FOR

APPELLANT:

JANICE T. JACKSON

JOHN R. McNEAL, JR.

ATTORNEYS FOR APPELLEE: WILLIAM D. KETNER

W. DAVID ROSS

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART

- 06/20/2002

MOTION FOR REHEARING

FILED:

MANDATE ISSUED:

EN BANC.

GRAVES, JUSTICE, FOR THE COURT:

¶1. On December 7, 1995, James Kenneth Hensarling ("Ken") initiated divorce proceedings against his

wife, Brenda Roxanne Gray Hensarling ("Brenda"), by filing a Complaint for Divorce in the Chancery Court

of Hinds County. In the Final Judgment of Divorce dated November 5, 1999, the chancellor awarded Ken

a divorce on the grounds of adultery. Among other things, Brenda was given custody of the parties' three

children, $2,500.00 per month in child support, rehabilitative alimony in the amount of $1,500.00 per

month for six years, 35% of the marital estate and attorney fees. On appeal, both Ken and Brenda allege

error. Ken maintains that the chancellor erred by giving custody of the children to their mother; awarding

child support without specific findings of fact; conveying 35% of the marital estate to Brenda; granting

attorney fees to Brenda; allowing Brenda relief pursuant to the court's motion sua sponte; and failing to grant

a new trial, amend the Final Judgment or set it aside. Brenda, in her cross-appeal, contends that Ken should

not have been granted a divorce on the grounds of adultery; rather, she should have been awarded a

divorce on the basis of habitual cruel and inhuman treatment. She also alleges that the chancery court

undervalued the marital estate and that the chancellor erred in limiting her share to 35%.

¶2. We find that the chancellor erred with regard to the valuation of the marital estate and the interest

awarded and that the record does not justify the amount of the award of attorney's fees to Brenda. We

therefore affirm in part and reverse and remand in part.

FACTS AND PROCEEDINGS BELOW

¶3. Ken and Brenda were married on July 20, 1974. When they met, Brenda was working at the V.A.

Medical Center in Jackson and taking night classes at Hinds Community College, while Ken was a fourth
year medical student.(1) Brenda thinks she worked full-time for five of the first seven years of their marriage.

She quit work prior to the conception of Lauren and went back to the V.A. on a part-time basis for two

years, at most, after Lauren was born. Following medical school, Ken completed a residency during which

he moonlighted for extra money. The couple pooled their incomes while they were both working and when

Brenda stopped working, Ken supported the family.

¶4. They were married for twenty-one years, during which time three children were born: Lauren (d/o/b

Aug. 26, 1982), Gray (d/o/b Oct. 14, 1989) and Kate (d/o/b Nov. 9, 1990). Brenda claims that after

some early difficulties prior to the birth of the children, there was no major marital discord until the summer

of 1995. In July of that year, Ken announced that he wanted a divorce.

¶5. Ken filed for divorce on December 7, 1995. The grounds for divorce were changed from irreconcilable

differences to adultery, habitual cruelty and constructive desertion in the amended complaint. An agreed

temporary order regulating temporary custody, visitation, alimony, child support, insurance, mortgage

payments, etc. was entered in May of 1996. Brenda counterclaimed for divorce based on habitual cruel and

inhuman treatment on April 17, 1997.

¶6. Beginning in 1997, litigation of this case took nineteen (19) days over a period of about two and a half

years. The chancellor, in his first opinion, declined to grant the parties a divorce. At this point, Brenda

amended her counterclaim for divorce to include constructive desertion as grounds for divorce. On October

5, 1999, the chancellor amended his original opinion and awarded Ken a divorce on the grounds of

adultery. The next day, in a third opinion entitled "Order on Motion Sua Sponte To Reconsider The Court's

Ruling And Opinion Dated October 5, 1999, And Amending Said Opinion," the chancellor made some

changes in the valuation of the marital estate and ordered that Brenda was to receive 35% of these

additional assets plus any interest thereon from the date of the order. After his Motion For A New Trial Or

Amendment Of Judgment was denied, a notice of appeal was timely filed by Ken on February 25, 2000.

Brenda filed her cross-appeal the same day. Thereafter, Ken filed an amended notice of appeal on March

16, 2000.

STANDARD OF REVIEW

¶7. In domestic relations cases the scope of review is limited by the substantial evidence/manifest error rule.

Magee v. Magee, 661 So.2d 1117, 1122 (Miss.1995). This Court may reverse a chancellor's finding of

fact only when there is no "substantial credible evidence in the record" to justify his finding. Henderson v.

Henderson, 757 So.2d 285, 289 (Miss. 2000). "Our scope of review in domestic relations matters is

limited under the familiar rule that this Court will not disturb a chancellor's findings unless manifestly wrong,

clearly erroneous, or if the chancellor applied an erroneous legal standard." Johnson v. Johnson, 650

So.2d 1281, 1285 (Miss.1994) (citing McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994)).

DISCUSSION

I. Whether the chancellor misapplied the law and committed manifest error in (1) finding

against the substantial weight of the evidence in awarding custody to Defendant; (2) finding

the court-appointed guardian ad litem did not have the skills necessary to draw conclusions

about custody; and (3) striking the testimony given by the court-appointed therapist from

May 13, 1998 and forward.
¶8. We may not always agree with a chancellor's decision as to whether the best interests of a child have

been met, especially when we must review that decision by reading volumes of documents rather than

through personal interaction with the parties before us. However, in custody cases, we are bound by the

limits of our standard of review and may reverse only when the decision of the trial court was manifestly

wrong or clearly erroneous, or an erroneous legal standard was employed. Wright v. Stanley, 700 So.2d

274, 280 (Miss. 1997); Williams v. Williams, 656 So. 2d 325, 330 (Miss. 1995). Our standard of

review in child custody cases is very narrow. Like the chancellor, our polestar consideration must be the

best interest of the child. However, it is not our role to substitute our judgment for his.

¶9. In his opinions of November 18, 1998, and October 5, 1999, the chancellor, using the factors listed in

Albright v. Albright, 437 So.2d 1003 (Miss. 1994), made an on-the-record finding as to which parent

should have custody of the parties' two minor children.(2) (R. 399-402; 560-62). Although the chancellor

did not separately discuss each Albright factor, he gave his rationale along with his holding as to the five

factors which were found to favor Brenda.(3) Of the remaining six factors, five are neutral or evenly divided

between Brenda and Ken(4); the sixth, preference of the children, is not applicable due to the ages of the

children involved in this case. We find that the chancellor properly applied the Albright factors and find no

manifest error in his decision as to custody of the parties' children.

¶10. Ken also maintains that the chancellor erred in determining that the court-appointed guardian ad litem

("GAL"), Melissa Gardner, did not have the skills necessary to draw conclusions about custody. The GAL

was specifically appointed by the court to determine what would be in the best interest of the children. She

recommended that Ken be given custody of the two minor children, and the chancellor rejected her

suggestion. The chancellor was in no way bound to follow the recommendation made by the GAL. See

S.N.C. v. J.R.D., 755 So.2d 1077 (Miss.2000) (we held that the "view of the guardian [ad litem] and the

reasoning behind that view are nothing more than additional information to aid the chancellor in making the

decision on the merits of the matter in dispute, which ultimately lies with the chancellor . . ."). Instead, it is his

role, as fact-finder, to consider the evidence presented by the GAL as well as all other relevant evidence

and to give it such weight as he determines it deserves. Id. The chancellor did not say that he found the

GAL's findings irrelevant, just that he placed "greater weight" upon the conclusions of the other experts. We

find no error in the decision of the trial court as to the testimony of the GAL.

¶11. Ken argues that the chancellor erred when he struck the testimony of the court- appointed therapist

from the record. Paul Davey ("Davey") was designated, pursuant to M.R.E. Rule 706, as a court-appointed

therapist on May 8, 1997, and continued to have contact with the Hensarling children until June 2, 1999.

During this time, he evaluated the home environments of the parties' and the mental/emotional health of the

parties and their children. At the end of his investigation, Davey made a report to the chancellor

recommending that Ken be granted custody of the children.

¶12. Brenda avers that Davey completed his court-appointed assignment on May 13, 1998, after which

time he became a privately retained therapist, paid by Ken. If this is true, then any disclosures made to

Davey after May 13, 1998, are protected by the doctor-patient privilege set out in M.R.E. 503. Brenda

made a motion to strike any information of which Davey learned after May 13, 1998, and the court granted

this motion. Based on M.R.E. 503, we find that such information was properly omitted from the record.

II. Whether the chancellor erred in the amount of child support awarded without specific

findings of fact.
¶13. Ken alleges that the chancellor failed to apply the statutory guideline set out in Miss. Code Ann. § 43-

19-101 (2000) when he determined the amount of child support owed. The award of $2,500 per month;

plus insurance including all non-covered medical and dental expenses; private school tuition and all fees

associated therewith; and college tuition, room and board is greater than 22% of Ken's estimated salary.(5)

However, Miss. Code Ann. § 43-19-101(2) states that the guidelines

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 as determined under the criteria specified in Section 43-19-103.

¶14. In his orders dated November 18, 1998, and October 5, 1999, the chancellor found that special

circumstances so exist which would "necessitate a variance from the statutory guidelines in setting Ken's

obligation of child support." He noted that as a doctor, Ken has the ability to earn a substantial income,

whereas at this time, Brenda has no source of income other than the rehabilitative alimony she will receive

for a few years. Also, the children have special needs which he deemed to include private school tuition, as

the children's friends and "daily routines and activities" stem from them attending private school. We find

that these reasons meet the criteria set out in Miss. Code Ann. § 43-19-103(f) & (h). See Vaughn v.

Vaughn, 798 So.2d 431 (Miss. 2001) (where findings were sufficient when the chancellor explained the

source of the husband's income, noted that the income was expected to continue, and found that the

resulting child support award was necessary and reasonable to maintain a reasonable standard of living for

the child).

¶15. We also note that Ken has substantial savings and other income producing assets. Additionally, Ken's

income is likely to increase as his career gets back on track. In light of this, we point to our holding in

Thurman v. Thurman, 559 So.2d 1014 (Miss. 1990), in which we held that the statutory guidelines

regarding child support are not absolute, and the actual circumstances in each case are to be taken into

consideration by the chancellor when making his award. Johnston v. Johnston, 722 So.2d 453 (Miss.

1998), is also relevant. There we found that where the husband can claim the child as a dependent on his

income taxes, then an amount of child support in excess of the statutory guideline is justified. Id. at 462.

Ken is allowed to claim all three children as dependents for tax purposes. Lastly, over the years Ken and

Brenda established college funds for the children. The accounts totaled upwards of $168,000 as of

October 1995. We find that this should have been taken into consideration since, depending on where the

children go to college, Ken's out-of-pocket expenses could be minimal. For these reasons, we find no error

with the chancellor's decision regarding child support.

III. Whether the chancellor erred in his determination of the value of the marital estate and

in finding that Brenda was entitled to 35% of the marital estate, including interest from the

date of separation to the date of the Final Judgment.

VIII. Whether the chancellor undervalued the marital estate and/or erred in limiting

Brenda's share to 35%.

¶16. Ken says that mathematical impossibility and manifest error keep the chancellor's determination of the

value of the marital estate from being proper. Ken also alleges that the trial court failed to apply the

guidelines set out in Hemsley (determination of marital assets) and Ferguson v. Ferguson, 639 So.2d

921 (Miss. 1994) (equitable distribution of marital assets). Under the circumstances, we find that the

chancellor ruled correctly despite Ken's attempts to hide substantial portions of his assets and despite the
amount of assets disposed of by both parties while this case was being litigated. In his amended opinion, the

chancellor found that the marital estate consisted of $826,944.00 held in several brokerage accounts and

IRA's. In his Order on Motion Sua Sponte, the chancellor amended his prior decision to include two (2)

retirement accounts, an IRA and a profit-sharing account. The chancellor said that these portions of the

marital estate had been inadvertently omitted from the marital estate in his previous opinion.

¶17. Ken contends that five checks totaling $40,565.89, which he acquired almost a year before he filed

for divorce, should not be considered part of the marital estate as the chancellor did not make any findings

as to these specific funds. The court noted, however, that both Ken and Brenda stipulated in their testimony

that they had no assets when they were first married. Following this logic, through Ken's own admission, all

that they acquired during the marriage is a marital asset. We hereby uphold the chancellor's finding that

these five checks are part of the marital estate.

¶18. Brenda, too, alleges error in the chancellor's valuation of the marital estate. Namely, she contends that

since Ken's medical practice was found to have been undervalued by $55,326.50 and, since a remittitur of

said amount was tendered,(6) the total value of the marital assets should have been increased to reflect the

error in the valuation of the medical practice. Brenda also claims the $110,000.00 in cash and the 25 gold

Krugerands Ken hid in a closet in his parent's home should be included in the marital estate as Ken

liquidated accounts containing funds acquired during the marriage to obtain the cash and the gold.

¶19. We agree with Brenda. The chancellor properly found the medical practice was a marital asset,(7) and

the mistake in its valuation was brought to his attention. As for the money and the Krugerands, Ken never

argues that these specific items should not be considered as part of the marital estate. In his brief, Ken

places a lot of weight on the fact that Brenda was not much of a cook, that Brenda made false accusations

about him, and that Brenda had an adulterous relationship with Art Sharpe. However, none of these things

are relevant in determining marital assets. All evidence points to the fact that the items at issue were

acquired with marital funds, and as such are to be included as assets for the purpose of equitable

distribution.

¶20. Equitable distribution does not always mean an equal division of property. Mississippi is not a

community property state. Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss. 1994); Dillon v.

Dillon, 498 So.2d 328, 330 (Miss.1986); Rives v. Rives, 416 So.2d 653, 657 (Miss.1982). The

community property system and Mississippi's system of equitable division are very dissimilar. In a community

property state, the court may not look at the background of the marriage and/or the behavior of the married

couple to decide what would constitute a just distribution of property. Instead the law in a community

property state mandates an even division of all marital property, regardless of each parties' respective

contributions.

¶21. Under the system of equitable distribution, the courts in Mississippi are not so inhibited. "The matter

rather is committed to the discretion and conscience of the Court, having in mind all of the equities and other

relevant facts and circumstances." Chamblee, 637 So.2d at 864 (citing Brown v. Brown, 574 So.2d 688,

691 (Miss.1990)). This Court's holdings in the aforementioned cases show that the chancellor's discretion in

the area of equitable distribution is exceedingly broad and he "has the flexibility to do what equity and

justice requires." Chamblee, 637 So.2d at 864. The chancery court is authorized to call for an equitable

division of jointly accumulated property and in doing so to look behind the formal state of title. See, e.g.,

Jones v. Jones, 532 So.2d 574, 579-81 (Miss.1988); Regan v. Regan, 507 So.2d 54, 56 (Miss.1987);
Watts v. Watts, 466 So.2d 889, 890-91 (Miss.1985). Ferguson v. Ferguson, 639 So.2d 921, set forth

the factors to be weighed in determining an equitable division of marital property.(8)

¶22. A main consideration in a proper division of property is the economic contributions made by each

party to the marriage, both in terms of actual money earned and in terms of service without compensation,

i.e., domestic duties. Regan, 507 So.2d at 56; Pickle v. Pickle, 476 So.2d 32, 34 (Miss.1985). The

case at bar features a couple who have each, over their twenty plus years of marriage, contributed money

and/or non-compensated time to the marriage. Admittedly, Ken contributed the most monetarily, but it is

also apparent, though disputed, that both parties contributed various amounts of non-paid services such as

child care and domestic work to the marriage.

¶23. In his opinion, the chancellor properly considered the Ferguson factors in making an equitable

distribution of the parties' assets. He found that based on the information before him, Ken was due a

majority of the parties' assets. A 50/50 split of the parties' assets is not necessarily warranted, but equitable

distribution does require "fundamental fairness" in the division of marital assets. See Savelle v. Savelle, 650

So.2d 476, 479 (Miss. 1995). Factors in Brenda's favor include her contributions to the family during the

twenty-one year marriage and her willingness to give up college and work outside of the home in order to

care for the couple's children, which resulted in her being financially dependent upon Ken and having a

minimal earning capacity compared to his. However, the chancellor did not include as marital assets the

marital home and its contents or the Mercedes, all of which were awarded to Brenda. Additionally Brenda

was awarded $108,000 in alimony. We have held that property division, alimony and child support should

be considered together when determining equitable distribution. Ferguson, 639 So.2d at 929. "Therefore,

where one expands, the other must recede." Id. (citing LaRue v. LaRue, 304 S.E.2d 312, 334 (W.Va.

1983)). Giving due consideration to all of the awards to Brenda and also her extramarital affair, the

chancellor's equitable distribution of the marital assets was proper.

¶24. We now turn to the issue of the award of interest accrued from the date of separation to the date of

the Final Judgment. In Godwin v. Godwin, 758 So.2d 384 (Miss. 1999), we held that assets acquired

after an order for separate maintenance should be considered the separate property of the parties, and can

not be divided absent a showing of either (1) contribution to the acquisition of the asset by the other spouse,

Magee v. Magee, 661 So.2d 1117, 1123 (Miss.1995), Ferguson, 639 So.2d at 928-29 or, (2)

acquisition of the asset through the use of marital property.

¶25. Ken admits that the A.G. Edwards accounts in question were started with funds from accounts existing

prior to the time of separation, thus making them marital assets. Therefore, Brenda is entitled to part of the

money in these accounts. The chancellor, in his previous orders, used the date of separation as the date of

valuation, and we have held that "[w]hen equitably dividing marital property upon divorce, the date of

valuation is necessarily within the discretion of the chancellor." MacDonald v. MacDonald, 698 So.2d

1079, 1086 (Miss. 1997). It follows that any portion of the A.G. Edwards accounts which were or should

have been included as marital assets at the date of separation are properly found to be marital property. We

find that the interest accrued from the date of separation to the date of the Final Judgment should be

awarded only as to that portion of the funds which were originally marital assets. If Ken has added any

money to either of these accounts since the date of separation, this amount will be considered separate

property and any interest accrued on it will be the sole property of Ken unless the money added to the

accounts has already been classified as marital property. We hold that this issue should be remanded in

order to determine the exact total of the marital funds used to set up the account and the amount of
additional funds, if any, contributed after the date of separation.

IV. Whether the chancellor erred in his award of attorney fees to Brenda.

¶26. "Though the general rule in Mississippi is that if a party is financially able to pay his attorney's fees he

should do so, this is a matter which is entrusted to the chancellor's sound discretion." Pittman v. Pittman,

652 So.2d 1105, 1112 (Miss. 1995). See also Hankins v. Hankins, 729 So.2d 1283 (Miss. 1999) (we

held that it is an abuse of discretion for a trial court to award costs and attorney's fees without a showing

that the payee is unable to pay the fees at issue). In Pittman, the husband, James, tried to convey the

marital home to his sister and niece in an effort to hide an asset that would properly have been considered

marital property and, as such, subject to equitable distribution. Id. The wife, Claudine, was forced to bring

a separate suit in order to stop the proceedings regarding the transfer of the house. Id. The chancellor

awarded Claudine $1,500.00 in legal fees after concluding that James's conduct in trying to convey the

house to his sister and niece warranted the imposition of said fees. Id. Claudine was not rewarded by the

chancellor's decision, but only reimbursed the extra legal costs incurred as a result of James' actions. Id.

Even though Claudine did not prove her inability to pay her attorney's fees, we held that the chancellor was

not manifestly wrong and that his decision to award attorney fees did not constitute error. Id.

¶27. In the instant case, Brenda did not prove that she could not pay her attorney fees, nor did she have to

bring a separate suit with regard to the marital assets. However, Ken's purposeful acts of hiding money and

assets prolonged the litigation. Much time and effort was spent in attempting to locate the assets that Ken

had hidden. The chancellor even had to halt litigation so the parties could travel out-of-town to secure

assets which Ken admitted in his testimony that he had hidden. This should not have occurred, as Ken's

responses to discovery and interrogatories should have disclosed all of the assets. We held in Vicksburg

Ref., Inc. v. Energy Resources Ltd., 512 So.2d 901 (Miss. 1987), that "[w]hen counsel's carelessness

causes his opponent to expend time and money needlessly, it is not an abuse of discretion for the court to

require offending counsel to pay for his mistake, especially where . . . out-of-town travel was involved." Id.

at 902.

¶28. Ken states that he does not mind paying expenses associated with the trip to Petal, Mississippi, on

November 12, 1997, to inventory the assets located there. He also says that he has no objection to paying

attorney fees stemming from the same day as long as they relate to "discovering, preparing for and

responding to [his] attempts to secret [sic] marital assets." However, Ken maintains that the itemization

provided by Brenda's attorneys is not detailed enough for anyone to be able to discern whether the

activities listed relate to the hidden marital assets. The itemization of fees earned in relation to Ken's attempt

to hide assets from Brenda including the affidavit of Jerry L. Mills is listed as Appeal Exhibit 112 and though

lengthy, it does not appear to be accurate or complete. For example, the very first entry in Exhibit "A" reads

as follows, "Receive and Review Hensarlings [sic] Motion to Modify Amount of Maintenance." It is not

logical that Ken should have to pay for this. Even if he had disclosed all of his assets to begin with, he could

still have filed a Motion to Modify Amount of Maintenance; there is no way to prove that his actions would

have been any different had all the assets been known from the start. Item 22, dated June 3, 1997, simply

says "Subpoena issued." Who was subpoenaed? Why were they subpoenaed? A listing of time spent

"determin[ing] whether assets accumulated during the marriage are still available and investigat[ion] [of]

possible diversion of assets through the purchase and holding of cashiers [sic] checks," has no heading or

signature. It is seemingly a copy of a bill to Brenda, but it is unclear who rendered these services. The

exhibits accompanying Mills's affidavit are replete with similar errors.
¶29. We find the chancellor's award of $20,000 is arbitrary. A total of all of the expenses listed in Exhibit

"A" comes to $30,909.07. The chancellor said only that the award was to reimburse Brenda for attorney

fees related to Ken's missing 1997 W-2 and to partially reimburse her for the legal expense incurred

through "discovery attempts and trial preparation following actual delivery of the requested information," and

for the hearings on the motions for contempt filed against Ken. He did not specify how the award correlated

to the expenses incurred by Brenda. As the original figure was arbitrary in nature, we cannot determine by

how much the award should be reduced.

¶30. The chancellor stated in his amended opinion that the $20,000 he awarded Brenda was also to

partially compensate her "for the expense of her attorney in prosecuting the various contempt motions[ .]"

Ken argues that as an order was never issued holding him in contempt that it constitutes error for the judge

to give Brenda expenses for motions which were never decided in her favor. As for the portion of the $20,

000 which the chancellor awarded as a result of the motions for contempt brought by Brenda, we agree

with Ken. Per our holding in Varner v. Varner, 666 So.2d 493 (Miss. 1995), the trial court must make a

factual finding of contempt before attorney fees may be considered. Id. at 498. No order was ever entered

on any of the motions for contempt, therefore, it was erroneous for the chancellor to award attorney fees

based on the motions for contempt.

¶31. We hereby reverse and remand this issue to the trial court so that it can make an on the record finding

as to the allocation of the award and a reduction of said award consistent with this opinion.

V. Whether the chancellor erred in awarding the relief given in its motion sua sponte.

¶32. The chancellor in his Order On Motion Sua Sponte To Reconsider The Court's Ruling And Opinion

Dated October 5, 1999, And Amending Said Opinion never once mentioned that said order was in

response to a Motion for Contempt filed by Brenda. None of Brenda's motions for contempt mention the

A.G. Edwards accounts. We find no link between the chancellor's motion sua sponte and Brenda's

motion(s) for contempt other than unsubstantiated references in the parties' briefs. Therefore Ken's

argument that the chancellor did not have jurisdiction is moot.

¶33. We have already held that these accounts were at least partially composed of funds acquired by the

parties during the marriage, thereby making them marital assets. The chancellor entered this order for the

purpose of rectifying "the inadvertent failure of the [c]ourt to include a certain asset in the marital estate."

We find that the chancery court did not commit procedural error in this instance.

VI. Whether the chancellor erred in failing to grant a new trial or, alternatively, to amend its

judgment of November 5, 1999, or to set it aside.

¶34. Ken filed a Motion For New Trial Or In The Alternative To Reopen Or Set Aside Judgment on

November 5, 1999. The chancellor heard and subsequently denied the motion on January 25, 2000. Ken

argues that the weight of the evidence shows that the relief requested therein should have been granted. As

we have previously held, the credible evidence must be construed in a manner most favorable to the nonmoving party. Clark v. Columbus & Greenville Ry., 473 So.2d 947, 950 (Miss.1985). We have stated:

In the final analysis, it is only when the experienced [] judge, after examining all of the facts unique to

each case 'is left with a firm and definite conviction that the verdict if allowed to stand would work a

miscarriage of justice,' that the granting of a new trial on the weight of the evidence is justified.
Samuels v. Mladineo, 608 So.2d 1170, 1180 (Miss. 1992) (quoting Anchor Coatings v. Marine

Indus. Res. Insul., 490 So.2d 1210, 1215 (Miss.1986)).

¶35. As mentioned above, we find error in the portion of the $20,000 award to Brenda for attorney

fees/sanctions and have directed that further findings be made as to the allotment of this award. We find no

error in the ruling of the trial court which constitutes abuse of discretion such as would necessitate a new

trial.

VII. Whether the chancellor erred in granting Ken a divorce on the grounds of adultery

instead of granting Brenda a divorce on the grounds of habitual cruel and inhuman

treatment.

¶36. This issue lies within the discretion of the chancellor as the trier of fact and must be decided based on

the weight and sufficiency of the evidence. The standard of proof in cases involving allegations of adultery as

grounds for divorce was clearly and succinctly stated by this Court in Holden v. Frasher-Holden, 680

So.2d 795 (Miss. 1996). In that case we stated as follows:

"A charge of adultery may be grounds for divorce upon a showing of either an infatuation for a

particular person of the opposite sex or a generally adulterous nature on the part of the defendant."

[McAdory v. McAdory, 608 So.2d 695, 700 (Miss. 1992).] There must be evidence of one or the

other before a divorce may be granted on these grounds. Id. In [Brooks v. Brooks, 652 So.2d

1113, 1118 (Miss.1995)], this Court recited the proper evidentiary standard to be applied to the

proof set forth by the complaining party, as articulated in [Dillon v. Dillon, 498 So.2d 328, 330

(Miss.1986)]:

In Mississippi one seeking a divorce on the grounds of adulterous activity must show by clear and

convincing evidence both an adulterous inclination and a reasonable opportunity to satisfy that

inclination. Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982); Magee v. Magee, 320 So.2d 779,

783 (Miss.1975); Rodgers v. Rodgers, 274 So.2d 671, 673 (Miss.1973). Where the plaintiff

relies on circumstantial evidence as proof for his allegations, he or she retains the burden of

presenting satisfactory evidence sufficient to lead the trier of fact to a conclusion of guilt.

Rodgers, 274 So.2d at 673. However, such evidence need not prove the alleged acts beyond a

reasonable doubt and the plaintiff is not required to present direct testimony as to the events

complained of due to their secretive nature. Bunkley & Morse's Amis, Divorce & Separation

in Mississippi, §§ 3.09(5)(1957). Nevertheless, the burden of proof is a heavy one in such cases

because the evidence must be logical, tend to prove the facts charged, and be inconsistent with a

reasonable theory of innocence. Owen, 422 So.2d at 287, citing and quoting Banks v. Banks, 118

Miss. 783, 79 So. 841 (Miss. 1918). Brooks, 652 So.2d at 1116 (quoting Dillon, 498 So.2d at

330) (emphasis added).

Holden, 680 So.2d at 798.

¶37. We also held in McAdory "that the elements of infatuation or proclivity toward adulterous behavior

must be supported by evidence of a reasonable opportunity to satisfy the infatuation or proclivity."

McAdory, 608 So.2d at 700. Brenda testified that she did not know Art Sharpe until after Ken had left

home and filed for divorce and that she was never sexually involved with him. However, in this case there is

substantial evidence in the record to support the chancellor's conclusion that proclivity and opportunity were
present in the relationship between Brenda and Art Sharpe. The burden of proof was met with regard to

this issue. As such, the chancellor's finding of adultery is not clearly erroneous.

¶38. Finding that the trial court did not err in granting the parties' divorce on the grounds of adultery, there is

no need to discuss the issue of habitual cruel and inhuman treatment.

CONCLUSION

¶39. We find that the chancellor erred with regard to the valuation of the marital estate and accordingly as

to the interest earned thereon. Also, the record does not justify the amount of the award of attorney's fees

to Brenda. We therefore reverse the chancellor's valuation of the marital estate and remand this issue for the

chancellor to recompute the value of the marital estate by increasing it to include the corrected valuation of

Ken's medical practice, the $110,000.00 in cash, and the 25 gold Krugerands. We also reverse the

chancellor's award of interest on the marital estate and remand for a new award based on a recalculation of

that award to include interest accrued from the date of separation to the date of final judgment on only those

funds in the A.G. Edwards accounts as of the date of separation. Finally, we reverse the award of

attorney's fees to Brenda and remand to the chancellor for a new award of attorney's fees consistent with

this opinion. In all other respects, we affirm the judgment below.

¶40. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

McRAE, P.J., DIAZ AND CARLSON, JJ., CONCUR.. COBB, J., CONCURS IN PART

AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY

SMITH, P.J., EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT

SEPARATE WRITTEN OPINION. PITTMAN, C.J., AND WALLER, J., NOT

PARTICIPATING.

COBB, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶41. Although I agree with most of the majority opinion, this separate opinion is written to address what I

believe is manifest error on the part of the chancellor in his 65/35 division of the marital assets in favor of

Ken Hensarling.

¶42. This was a 25 year marriage which began in 1974 when Brenda was only 19 years of age and Ken

was a medical student. Three children were born of the union, the first during the seventh year of the

marriage. Although both Ken and Brenda worked while he was in medical school, during most of the

marriage Brenda was a homemaker, wife, and mother, and did not work outside the home.

¶43. The parties agreed, and the chancellor found, that everything they own is a part of the marital estate.

From that point of beginning, the chancellor began his analysis which resulted in awarding Ken 65% and

Brenda only 35% of the marital assets.

¶44. The Ferguson factors which govern equitable distribution have been set forth by this Court as

follows:

(1) substantial contributions to the accumulation of the property, including economic and domestic

contributions by each party to the marriage, (2) expenditures and disposal of the marital assets by

each party, (3) the market value and emotional value of the marital assets, (4) the value of the
nonmarital property, (5) tax, economic, contractual, and legal consequences of the distribution, (6)

elimination of alimony and other future frictional contact between the parties, (7) the income and

earning capacity of each party, and (8) any other relevant factor that should be considered in making

an equitable distribution.

Selman v. Selman, 722 So. 2d 547, 552 (Miss. 1998). (emphasis added.)

¶45. The chancellor found that "Ken by far earned the family's income following medical school, when

Brenda worked as a homemaker" and he "credit[ed] Brenda with a greater contribution to the

stability and nurturing of the family than Ken" who spent most of his time at work. (Emphasis added.)

The chancellor further found that bothKen and Brenda had behaved improperly in withdrawing and

spending marital assets, but "Ken's conduct in hiding, manipulating, selling, giving away and outright wasting

the marital estate over the past four years has by far been the most egregious" and that Brenda "clearly

showed" that her liquidation of various assets "was necessary in order to keep a roof over the children's

heads, food on the table and utilities in service." (Emphasis added.) In addition, the chancellor noted

evidence that Ken himself had discouraged Brenda from working, and that her long absence from the

workplace had handicapped her earning potential.

¶46. In summing up the analysis by which he arrived at what he determined to be an equitable distribution

of the marital assets, the chancellor wrote that

Brenda is not without her considerable shortcomings, having demonstrated a lack of sufficient interest

in some of her family obligations, and following the separation having taken refuge in the arms of a

man not her husband during the emotional turmoil of this proceeding. However, the Court

specifically finds that Brenda's contribution to the family through the twenty-five years of

this marriage prior to the parties' separation, Ken's discouragement of interest she

expressed in preparing herself to be productive outside the home and her resulting need for

financial security, and her income earning capacity by comparison with his, entitles Brenda

to a somewhat larger award in the division of marital assets than that to which she might

otherwise be considered entitled based on her contributions to the actual accumulation of

that estate.

(emphasis added).

¶47. It is troubling that the "somewhat larger award . . . than that to which she might otherwise be entitled"

inexplicably turned out to be only one third of the marital estate. The chancellor's statement, and his

resulting 35/65 distribution, clearly implies that he is considering only (or primarily ) economic contributions

as "contributions to the actual accumulation of that estate". This contradicts not only the letter, but also the

spirit of equitable distribution in Mississippi.

¶48. Contributions to the accumulation of property are measured by economic and domestic contributions

by each party to the marriage, according to Ferguson. 639 So. 2d at 928. "We assume for divorce

purposes that the contributions and efforts of the marital partners, whether economic, domestic, or

otherwise, are of equal value." Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994) (emphases

added). The chancellor acknowledged that Brenda "worked as a homemaker" while Ken worked as a

doctor, and this arrangement apparently met with Ken's approval. Thus, the chancellor's findings do not

support so lopsided a distribution when domestic contributions are taken into account. Nor does it appear
that Ken's "egregious" behavior in the dissipation and concealing of marital assets carried much weight at all

in the chancellor's award.

¶49. The majority appears to rationalize this clearly inequitable distribution by noting that "the chancellor did

not include the marital home and its contents or the Mercedes, both of which were awarded to Brenda, as

marital assets." However, the home carried only $34,000 in equity, and the Mercedes was only one of two

luxury cars owned by the couple, the other of which went to Ken, who also received clear title to the

estate's condominium. Brenda was also charged $20,000 against her share for the home's contents, so they

cannot be said to increase her share so substantially as to make up for the two-to-one split.

¶50. Brenda's post-separation affair also is weighed by the majority as justifying the 65/35 split. This Court

has held that, with regard to equitable distribution, "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) (emphasis

added). A punitive approach, by contrast, is explicitly disfavored. Chamblee v. Chamblee, 637 So. 2d

850, 863 (Miss. 1994). The chancellor noted that Brenda's adulterous conduct occurred after Ken left the

marital home and filed for divorce, so the marital and family relationship was obviously already unstable and

inharmonious when Brenda strayed. Moreover, Ken's behavior in mistreating their eldest child and in

becoming seriously addicted to narcotics undoubtedly put a great deal of strain on the marriage, as much as

or perhaps more than did Brenda's post-separation infidelity. To single out the adultery as more infamous

than Ken's conduct, in the absence of specific findings clearly supporting such a claim, displays

unacceptable bias.

¶51. Certainly, Mississippi is not a community property state, and there is no rule entitling a spouse to an

automatic 50% of the marital estate. Chamblee, 637 So. 2d at 864. This Court has stated that the flaw of

the community property rule is that it does not permit "a fair division of property." Id. (emphasis added).

By contrast, our system of equitable distribution allows the chancellor to divide the estate "having in mind all

of the equities and other relevant facts and circumstances." Id. (quoting Brown v. Brown, 574 So. 2d 688,

691 (Miss. 1990)). Therefore, while it is true that an equitable distribution need not be equal, it also

appears true that deviations from equality are to be made with "all of the equities and other relevant facts

and circumstances" in mind. Our system is not intended to allow chancellors to simply cite "equity" in

general. In the present case, it has been shown that the chancellor apparently reached his two-to-one

decision in favor of Ken primarily on Ken's greater economic contribution and on Brenda's post-separation

affair. The former should not affect the distribution in view of Brenda's superior contributions to the home.

And for the latter to justify such a disproportionate award is clearly punitive and unacceptable.

¶52. The majority concludes that the $108,000 in alimony awarded to Brenda serves to render the

chancellor's distribution of the marital property equitable, based on the oft-cited language of Ferguson:

"Where one expands, the other must recede." 639 So. 2d at 929. I respectfully disagree with this analysis.

Our precedent is clear that equitable distribution precedes the determination of alimony, which is to be

awarded only where necessary:

Division of marital assets is now governed under the law as stated in Hemsley and Ferguson. First,

the character of the parties' assets, i.e., marital or nonmarital, must be determined pursuant to

Hemsley. The marital property is then equitably divided, employing the Ferguson factors as

guidelines, in light of each parties' nonmarital property. If there are sufficient marital assets which,
when equitably divided and considered with each spouse's nonmarital assets, will adequately provide

for both parties, no more need be done. 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.

Johnson v. Johnson, 650 So. 2d 1281, 1287 (Miss. 1994) (emphases added). The language of this

Court could not be clearer: first classify the assets, then divide the marital ones equitably, and then--if

necessary--award alimony. It is this which the chancellor in the present case has failed to do. This

sequence was first established in Ferguson, and has been respectfully quoted many times thereafter by this

Court in "advance-and-recede" situations.

¶53. Alimony is meant to preserve the equities where an equitable distribution alone will not suffice, not to

restore the equities to an inequitable distribution. An important result of the equitable distribution system

should be the elimination or reduction of alimony.

¶54. That said, even taking into account the $108,000 rehabilitative alimony (payable to Brenda in 72

monthly payments of $1,500 each, which is approximately the amount of the monthly house payment on the

marital home which Brenda now must pay), the distribution remains inequitable. As discussed above, there

appears to be no valid and equitable reason for Brenda to receive substantially less than Ken. For every

fault and deficiency alleged in Brenda, the chancellor noted something equally negative in Ken's behavior.

Nevertheless, Ken was awarded $826,944 while Brenda was left with only $445,278. Adding $108,000

to Brenda's award, still leaves a ratio of 7:5. Such a ratio certainly might be justifiable in equitable

distribution, but it has not been justified by the chancellor's opinion as it now stands, given that Brenda's

domestic contribution to the marriage was not evidently inferior to Ken's economic contributions, and that

neither party's moral behavior clearly fell beneath the other's.

¶55. I therefore respectfully dissent from the majority opinion and would reverse and remand this case to

the chancellor with directions to make new findings and to equitably divide the estate (with alimony

awarded if necessary) in accordance with the precedents set by this Court.

SMITH, P.J., JOINS THIS OPINION.

1. Brenda eventually acquired enough college credits to be classified as a junior.

2. Ken did not seek custody of Lauren.

3. The chancellor found the following factors to be in Brenda's favor: continuity of care; best parenting

skills; employment & demands thereof; emotional ties between parent & child; and home, school,

community record of child.

4. The chancellor found the following factors to be equal as to whether they benefit Brenda or Ken: age,

health, sex of child; willingness & capacity of parent to provide care; physical/mental health & age of

parents; moral fitness of each parent; and the stability of each parent's home.

5. Expert testimony by Kenneth Lefoldt, Jr., showed that Ken's income for 1998 would be at least $161,

588. Ken's 1997 W-2 listed an income of $451,817.50.

6. See In re Dissolution of Jackson Arthritis Clinic & Osteoporosis Ctr., P.A., 755 So.2d 418, 422
(Miss. 2000).

7. Id.

8. The Ferguson guidelines are set forth as follows: (1) Substantial contribution to the accumulation of the

property which includes: (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 th e duration of the marriage; (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 distribution, such as property bought 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 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 934.