IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-01735-COA JAN DYKES APPELLANT

v. EVERETT G. DYKES APPELLEE DATE OF JUDGMENT: 04/07/2014 TRIAL JUDGE: HON. W ILLIAM R. BARNETT COURT FROM W HICH APPEALED: COVINGTON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: CHRISTOPHER RANDALL PURDUM ATTORNEY FOR APPELLEE: MICHAEL DUANE MITCHELL NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: APPELLEE ORDERED TO PAY $7,042. APPELLEE GRANTED JUDGMENT OF DIVORCE ON GROUND OF ADULTERY. APPELLEE ORDERED TO PAY $800 PER MONTH FOR TW O YEARS AS REHABILITATIVE ALIMONY, TO BE APPLIED TOW ARD THE $7,042. AS PART OF DIVISION OF ASSETS, APPELLEE ORDERED TO TRANSFER TO APPELLANT THE MARITAL HOME W ITH ALL ADJOINING LAND. APPELLEE FOUND RESPONSIBLE FOR INDEBTEDNESS ENCUMBERING SAID PROPERTY. DISPOSITION: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART - 05/10/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND ISHEE, JJ. LEE, C.J., FOR THE COURT:

FACTS AND PROCEDURAL HISTORY ¶1. J a n a n d E v e r e t t D y k e s were m arried on July 3, 1987, in C o v i n g t o n C o u n t y ,Mississippi, and lived together until January 1, 2006, when they

f inally separated. ¶2. O n M a r c h 1 4 , 2006, Jan f iled f or divorce on the f

ault ground o f habitual cruel and inhum an treatm ent or, in the alternative, irreconcilable dif f erences. Jan also petitioned f or separate m aintenance i n the event the d ivorce w a s not granted. 1 O n August 20, 2009, Jan

am ended her c om

plaint to include the additional f ault ground o f u ncondoned adultery

. In his
counter-com

plaint f or divorce, E verett asserted the f ault gr o u n d o f adultery or, in the alternative, irreconcilable dif f e rences. On M ay 1 1, 20 1 0 , the chancery c ourt dism issed Everett’s counter-com

p l aint and granted Jan’s m o tion to withdraw f ault g r o u nds. The chancery court then awarded Jan separate m a i ntenance. ¶3. In N ovem

ber 2010, Everett was l aid-of f f rom h i s j o b d u e to lack of work. Everett accepted another j ob, which r esulted in a decrease in his incom e. Consequently , Everett f ell behind on his pay

m ents under the separate-m aintenance order. ¶4. In February 2011, Jan f iled a petition f

or c itation of contem

pt against Everett, and the chancery court continued the case and ordered Everett to m ake pay m ents each m onth until the date set f

or trial. In June 2012, Jan f iled another petition f

or citation of contem

p t against Everett. This tim e, the chancery court entered a judgm ent of contem p t. ¶5. On May

14, 2013, the chancery

court dism issed the divorce m atter. ¶6. On May 31, 2013, Everett f iled a m otion t o m o d i f

y t h e f i n a l d ecree o f

separate

m aintenance. Everett sim ultaneously f

i l e d a c o m

plaint f or divorce on the f

ault ground of adultery . The two actions were consolidated.

1 A tem p o rary d ecree o f sep arate m ain ten an ce w as issu e d , a n d sev eral co n t in u an ces w e re g ran ted th ro u g h o u t th is case. 2¶7. W h en t r ial began in March 2014, Everett w as—again—in arrears under the separatem aintenance order. J an asserted that Everett’s unclean hands barred him f rom proceeding with his m odif

ication and d ivo r c e a c t i ons. However, the chancellor proceeded without

m aking a ruling. ¶8. Jan t estif

ied that she h ad sexu a l r e l a t i o n s h i p s w ith three m en during the parties’

m arriage. Sim ilarly , Everett testif ied t hat h e had a sexual relationship with another wom an during the parties’ m a rriage. However, Everett s tated t hat Jan’s a f f airs were “the reason [ he wanted] a divorce.” ¶9. Jan m ade a m otion t o dism iss based on the def ense o f recrim ination. Af ter argum ent f rom both sides, the chancellor denied Jan’s m otion and ultim ately awarded Everett a divorce on the ground of

adultery

. ¶10. In the second p art of the trial—division of property and alim ony —the chancery

court f ound that Everett was $7,042 i n arrears and ordered Ev e r e t t t o p ay rehabilitative alim ony of $800 per m onth f

or two y ears, to be applied toward t he arrearage o f $7,042. The chancery
court also ordered Everett to transf er the p arties’ m a rital hom e with all adjoining land as lum p-sum alim o ny to Jan. Furtherm ore, Everett was responsible f o r all debts encum

bering said land. Everett’s counsel requested an a n a l y s i s of the Ferguson 2 f actors, but the chancellor declined to do so f rom the bench. Subsequently , the chancellor entered a written opinion “ t o expand [ h i s ] bench opinion [ and] to include the Ferguson and A rmstrong 3

2 F erg u so n v. F

erg u so n , 6 3 9 S o . 2 d 9 2 1 , 9 2 8 (M iss. 1 9 9 4 ).

3 A rm stro n g

v. A rm stro n g , 6 1 8 S o . 2 d 1 2 7 8 , 1 2 8 0 (M i ss. 1 9 9 3 ). 3f

actors[

. ]” ¶11. Jan f

i led a m otion f

or a new trial and a m otion to alter or am end the j udgm e nt, which the chancery co u r t g r a n ted in part and denied in part. The c hancery court s t ated that the

m arital h o me should have been classif ied i n the d ivision o f assets and not as lum p-sum alim ony . ¶12. Ja n appeals, a sserting that the chancellor erred i n: (1) a llowing Everett to proceed with unclean hands; (2) f

ailing to m ake f

indings o f f

act; ( 3) f a iling to deny the divorce based on recrim ination; (4) f

ailing to classif

y the m a rital property ; (5) m isa p p l y i n g the Ferguson f actors; and (6) m isapply ing the Armstrong f actors. STANDARD OF REVIEW ¶13. “In dom e stic-relations cases, we ‘will not disturb the f indings of a chancellor when supported by substantial e v i d e nce unless the chancellor abused his discretion, was m anif estly
wrong or clearly erroneous, or applied an erroneous legal standard.’” Artz v. Norris , 163 So. 3d 983, 9 87 (¶10) (Miss. C t. App. 2015) (quoting In r e Dissolution of Marriage of W

ood , 35 So. 3d 507, 512 (¶8) (Miss. 2010)). “W e review questions of law de novo.” Id. DISCUSSION I. Clean-Hands Doctrine ¶14. In her f

i rst issue, J an c laim s the chancellor e rred in granting E verett r elief due to his

u nclean hands. Jan argues that because E verett was in arrears under the separatem aintenance order, his h ands w e r e u n c lean, thus prohibiting him f rom com ing into the chancery court to seek relief

.

4¶15. “The doctrine of clean[ ] h a n d s p r o v ides that ‘he who com es into equity m ust com e with c lean hands.’” Andres v
. A n d r es , 22 So. 3d 314, 320 (¶25) (Miss. Ct. App. 2009) (quoting C

ook v. W hid d o n , 866 So. 2 d 4 94, 498 (¶13) (Miss. Ct. App. 2004)). A

com plaining party

m ay not obtain equitable relief “when he is guilty of willf u l m isconduct in the transaction at issue.” Id. at ( ¶16). Everett cam e into the court with unclean hands. See id

. at 321 (¶29). However, he d id not leave with unclean hands. S ee id. The chancellor entered a judgm ent a gainst Everett f or $7,042, which c leansed Everett’s hands. See id. This issue is without m erit. II. Findings of Fact ¶16. In her second issue, Jan claim s the chancellor erred in f a iling t o m a k e f

indings of f act when he granted a divorce on the ground of adultery

. ¶17. “A party m

ust est a b l i s h h i s o r h e r c l a i m o f a d u ltery b y clear and convincing evidence.” M

cClelland v
. McClelland , 879 So. 2d 1096, 1 098 (¶12) (Miss. Ct. App. 2004) (citing Mitchell v. Mitchell , 7 67 So. 2d 1 037, 1 040 ( ¶5) (Miss. Ct. App. 2000)). “There m ust be clear and convincing evidence both of an adulterous i nclination and a re a s o n able opportunity to s atisf

y t hat inclination.” Id. (q u o t i ng Mitchell , 767 So. 2d at 1040 (¶5)). “Adultery m ay be proven by adm issions or other evidence.” Id. (citing Holden v. FrasherHolden , 680 S o. 2 d 7 95, 799 (Miss. 1 996)). “W here allegations of adultery are raised as grounds f or divorce, t he chancellor is required to m ake f i ndings of f

act.” Holden , 680 So. 2d at 798 (citing McAdory v. McAdory , 608 So. 2d 695, 699 (Miss. 1992)). ¶18. From the bench, the chancello r s t a t ed: “Based on the testim ony of the parties, the

5[ c ] ourt d oes f i nd that Everett Dy

kes is entitled to [ a] [ d]ivorce f rom J an Dy

kes on t h e grounds of uncondoned adultery .” Later, in the written f i nal judgm ent, the chancellor stated: “Jan Dy kes, by her own admission and through other evidence presented, has been guilty of uncondoned adultery

. Everett G. Dy kes is h ereby granted a divorce

. . . f rom Jan D y

kes on the grounds of

uncondoned adultery .” (Em phasis added). ¶19. The chancellor m ade a speci f i c f i n d i n g o f f

a c t w h e n he stated t hat the basis f or granting the divorce was—in part—“[ Jan’s] own adm ission.” T h i s i ssue is w ithout m erit. III. Recrim ination ¶20. In her third issue, Jan claim s the c hancellor erred by f a iling to deny t he divorce based

on the def ense of recrim ination. “The doctrine of recrim i nation is f o unded on the basis that the equal guilt of a com

plainant bars his/her right to divorce, a nd the principal consideration is that the com

plainant m

ust c om e into court w ith clean hands.” W are v. W a re , 7 So. 3d 271, 273 (¶7) (Miss. Ct. A pp. 2008) ( quoting Cherry v. Cherry , 593 S o. 2d 13, 18 (Miss. 1991)). ¶21. Mississippi Code Annotated section 93-5-3 (Rev. 2013) provides: “If a com plainant

or c ross-com

plainant in a d ivorce action shall prove grounds entit l i n g h i m t o a divorce, it shall not b e mandatory on any chancellor to deny such party a divorce, e v e n though the evidence m ight establish recrim ination on the part of such com plainant or crosscom plainant.” (Em

phasis added). ¶22. Jan appears to concede that it was within the chancellor’s discretion not to deny the divorce based on r ecrim ination. However, Jan launches into a discussion about lack of proof that she c a

used t h e s e p a r a tion since the adultery was com m itted af ter her separation f

rom

6Everett. Jan r elies on B outwell v. Boutwell , 829 So. 2d 1 216 (Miss. 2002), in support of her

argum ent. In Boutwell , the suprem e court cited to G arriga v. Garriga , 770 So. 2d 978 (Miss. Ct. App. 2000), where this Court held that when both parties are s e eking a divorce, “the chancellor m

ust determ ine which of the p arties will be granted the divorce by determ ining which p a r ty ’s conduct was t he cause o f the deterioration of the m arital relationship.” Boutwell , 829 So. 2d a t 1224 ( ¶41). Here, only Everett is s eeking a d ivorce. Theref ore, the above rule does not apply

. F urtherm ore, t his Court has held that “[ t]here is no requirem ent that the a dultery precede the s pouses’ separation.” Lister v. Lister , 9 81 So. 2 d 340, 344 (¶29) (Miss. C t. App. 2 0 08) (citing Curtis v. Curtis , 7 96 So. 2d 1044, 1051 (¶31) (Miss. Ct. App. 2001)). ¶23. Even though Everett adm itted to having an af f air, the c hancellor w a s not required to deny him a divorce when he had proven that Jan had also com m itted adultery

. See W are , 7 So. 3d at 273 (¶9). This issue is without m erit. IV. Equitable Distribution ¶24. W e consolidate Jan’s rem aining issues as whether the chancellor erred in dividing the

m arital property . It is well established: First, the character of

the parties’ assets, i.e., m arital or n on-m arital, m ust be det e r mi n e d pursuant to Hemsley

. T he m arital property is then equitably divided, em

p loy ing the Ferguson f

actors a s guidelines, in li g h t o f each p a r t [ y ’s] non-m arital property

. If t here are suf f icient m arital assets w hi c h , when equitably d ivided and considered with each spouse’s non-m a r ital assets, will adequately p rovide f

or both parties, no m ore need be done. If the situation is su c h that an equitable division of m arital property , considered with each party ’s non-m arital assets, leaves a def i c i t f o r one party , then alim ony based on the v alue of non-m arital assets should be considered [ p u r s u a n t to Armstrong ].

7Lauro v. Lauro , 847 So. 2d 843, 848 (¶13) (Miss. 2003) (internal citation om itted).

¶25. Jan claim s that the c hancellor erred in f ailing to establish a line o f dem arcation. Jan also claim s that the chancellor erred in f ailing to classif

y the parties’ property

as m arital or

nonm a rital. ¶26. “Assets acquired af ter an order f

or separate m aintenance sh o u l d be considered the separate property of the parties, absent a s howing of either (1) contribution to the acquisition of t he asset b y the other spouse . . . or, (2) acquisition o f the asset through the use of m arital property .” Goodwin v. Goodwin , 758 So. 2d 384, 3 86 (¶7) (Miss. 1999). Furtherm ore, “a f ailure to c lassif

y p r operty does not autom atically result in reversible error i f the d ivision of property is f

air.” Branch v. B ranch , 174 So. 3d 932, 944 (¶45) (Miss. Ct. App. 2015) (citing Kimbrough v. Kimbrough , 76 So. 3d 715, 721 (¶27) (Miss. Ct. App. 2011)). Although the chancellor did not specif i cally state that the s e parate-m aintenance order w as the line of dem ar c a t i o n in this case, a review of the record indicates that t his is the exact line that the chancellor used. Pr o p e rty acquired af ter t he separate-m aintenance order was considered separate—or nonm arital. ¶27. Jan lists the parties’ assets as f ollows: 1. The m arital hom e; 2. The adjoining lot next to the m arital hom e; 3. Ford F-150 truck; 4. Trailer park in Jones County ; 5. Lincoln Town Car autom obile;

86. Nissan autom obile;

7. Jaguar autom obile; 8. Everett’s retirem ent account; 9. Everett’s f

am ily land. ¶28. Jan c o n c e d e s t hat the chancellor addressed the m arital hom e, the adjoining lot next
to the m a rital hom e, and the Ford F-150, but claim s t hat the ch a n c e l l o r erred in not classif y ing the o ther assets. E v erett acquired the trailer park, Nissan autom o bile, a nd Jaguar
autom obile, and inherited his f a m i ly ’s land af

ter the separate m aintenance order was entered. Everett testif

ied that he bought the Lincoln Town Car bef ore the separate-m aintenance order; however, the title f

or the Lincoln Town Car was s till in his f ather’s n am e. B ecause Everett contributed to his retirem ent account during the p arties’ m arriage, this asset could be either

m arital o r nonm arital property

. Theref o re, we reverse and rem and f or a classif

ication of this
asset. ¶29. Jan lists the parties’ debts as f ollows: 1. The m arital-hom e m ortgage; 2. Priority -One bank credit line; 3. Internal Revenue Service; 4. Ford F-150 truck note; 5. Com m

unity Bank loan; 6. Com m

unity Bank loan; 7. Bank of

W est loan;

98. Shef f ield lawnm ower loan; 9. Sam

Sm ith prom issory

note. ¶30. Again, Jan conceded that the chancellor addressed the m arital hom e and t he Ford F150, but c laim s that the chancellor erred in not classif y ing the o ther debts. Everett incurred the IRS debt as a r e sult of his trailer park, which was acquired af ter t he separate-m a intenance

or d e r . Everett also secured one of the Com m unity Bank loans to p ay f or his t railer park. And Everett secured the other Com m unity B a n k loan to pay Jan under t he separatem aintenance order. Everett secured the B ank of W est loan f or h is trailer, which w as acquired af ter t he separate-m aintenance order. And Everett s ecured the S am Sm ith prom issory note, which he also used to pay Jan under the separate-m aintenance order. Everett indicated that the Shef f ield-lawnm ower loan was his o w n debt. H owever, the Priority -One Bank credit line, which was actually two credit cards t hat Everett told J a n to m ax o u t f o r t h e ir child’s college tuition, could b e either m arital or nonm arital property

. Theref ore, we reverse and

rem and f or a classif

ication of this debt. 4 ¶31. W e reverse a nd rem and f or a classif

ication of E ve r e t t ’ s r etirem ent account and the Priority -One debt. The chancellor should t h e n d ivide the m arital property equitably ,

em ploy i ng t he Ferguson f

actors as guidelines. If the situa tion i s such that an equitable division of m arital property , considered with e ach party ’s n onm arital assets, leaves a def icit f or one p arty , t h e n a l i mo n y based on the value of nonm arital assets should be considered pursuant to A rmstrong

. See Daniels v. Daniels , 9 50 So. 2d 1044, 1046 (¶10) (Miss. Ct. App.

4 Jan d id n o t list t w o cred it card s— C iti an d B an k o f A m erica. H o w ev e r , Jan testif ied th at th ese cred it card s w ere h er d eb ts. 1 02007) (because this Court rem anded f or a n analy sis of the applicable Ferguson f actors, we also rem anded the issue of alim ony ); see also Stevens v. Stevens , 924 So. 2d 645, 648 (¶7) (Miss. Ct

. A p p . 2 0 0 6 ) ( “Alim o ny is considered only a f t er the m a rital property has been equitably divided and the chancellor determ ines one spouse has suf f e red a def icit.”). 5 ¶32. THE JUD G M E N T O F T H E C O V INGTON COUNTY CHANCERY COURT IS AFFIRMED IN PART, A ND REVERSED AND R EMA N D ED I N PART FOR FUR T H E R P R O C E E D I N G S C O N S I S T E N T W I T H T H I S O P I N I O N . A L L C O S T S O F T H I S APPEAL ARE ASSESSED ONE-HALF TO T H E APPELLANT AND ONE
HALF TO THE APPELLEE. IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

5 T h e ch an cello r aw ard ed reh ab i litativ e a lim o n y to Ja n . We n o te t h at “‘[ r] eh a b ilitativ e p e rio d ic alim o n y ’ is n o t i n ten d ed as an eq u alizer b etw een th e p arties.” L a u ro , 8 4 7 S o . 2 d at 8 4 9 (¶1 5 ) (q u o tin g H u b b a rd v. H

u b b a rd , 6 5 6 S o . 2 d 1 2 4 , 1 3 0 (M iss. 1 9 9 5 )). 1 1