IN THE SUPREME COURT OF MISSISSIPPI

NO. 1999-CT-02078-SCT

BOB HANEY

v.

PAT HANEY

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 12/15/1999

TRIAL JUDGE: HON. JOHN C. ROSS, JR.

COURT FROM WHICH APPEALED: UNION COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: TIMOTHY E. ERVIN

ATTORNEYS FOR APPELLEE: ROBERT M. CARTER

THAD J. MUELLER

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION: AFFIRMED IN PART AND REVERSED AND

RENDERED IN PART - 07/21/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

CONSOLIDATED WITH

NO. 2002-CT-00244-SCT

BOB HANEY

v.

PAT (ROBERTSON) HANEY

DATE OF JUDGMENT: 12/05/2001

TRIAL JUDGE: HON. JOHN C. ROSS, JR.

COURT FROM WHICH APPEALED: UNION COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: TIMOTHY E. ERVIN

ATTORNEYS FOR APPELLEE: ROBERT M. CARTER

THAD J. MUELLER

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS1 Pat originally filed for divorce on the grounds of habitual cru el and inhuman treatment and

irreconcilable differences. At the beginning of the trial, Bob and Pat announced to the trial court that they

had agreed to a divorce on the ground of irreconcilable differences “upon the authority of Section 93-5-2

of the Mississippi Code,” which permits the chancellor to grant the divorce and decide the issues upon

which the parties cannot agree.

2 DISPOSITION: AFFIRMED IN PART AND REVERSED AND

RENDERED IN PART - 07/21/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

DICKINSON, JUSTICE FOR THE COURT.

¶1. Bob Haney and his wife, Pat, decided to extricate themselves from a marriage which

ended in separation after all of seventeen months. 1 During their brief flirtation with

mat rimony, they spent time in each other’s separate homes, but never actually lived together,

and no children were born of the marriage. Even though the complaint for divorce was filed

eight years ago, and their divorce was granted five and a half years ago, Bob and Pat have been

unable to leave the hospitality of our judiciary.

¶2. The chancellor’s division of mari tal assets was reversed and remanded by the Court of

Appeals. H

aney v. Haney, 788 So. 2d 862 (Miss. Ct. App. 20 01) ( Haney I ).On remand, the

chancellor entered another judgment and was again reversed and ren dered in part and remanded

in part by the Court of Appeals. H aney v. Haney, 881 So. 2d 8 6 2 (Miss. Ct. App. 2003)

( Haney II ). We granted certiorari and hope now to put an end to these proceedings which have

been pending over five times longer than the marital relationship prior to their separation.

FACTUAL AND PROCEDURAL BACKGROUND3

¶3. When Bob and Pat decided to get marrie d, they had substantial separate estates. As a

result of her divorce from a prior marriage, Pat received a se ttlement of $150,000, which she

had inves ted in stocks and a printing business called Barber Printing. She had a home in New

Albany, and she was employed at Forms and Supplies in Memphis. Bob had an investment

account with approximately $400,000, a home in Madison, and a job with Ameron.

¶4. Bob and Pat married on February 11, 1996. Despite their marriage, they continued to

live in their separate homes in separate counties, and they kept their finances separate.

¶5. Three months after the wedding, Pat developed an ear infection and quit her job. The

infection was related to Rocky Mountain Spotted Fever she had contra cted several years prior

to the marriage. Pat developed other ailments, including digestive tract problems,

fibromyalgia, and migraine headaches. Pat was covered under Bob’s medical insurance. She

also had COBRA coverage under her former employer’s policy.

¶6. Seventeen months after the wedding, Bob and Pat separated and filed for divorce. They

both provided Fi

nancial Declarations to the court as required by Rule 8.05 of the Uniform

Chancery Court Rules, fo r the purpose of assisting the chancellor in making a temporary award

of financial assistance to Pat. Although Pat listed her health insurance premium of $130.00

per month as an expe nse for Bob to pay, she did not request the chancellor to require Bob to

keep her on his health insurance policy.

¶7. The temporary hearing which convened on November 10, 1997, was concluded on

December 15, 1997. The chancellor issued an opinion and temporary judgment on January 8,

1998, finding that both parties had substantial estates which they possessed prior to the

marriage. He ordered Bob to pay Pat’s car payment in the amount of $873.67 per month4

through April, 1998. He also ordered Bob to pay temporary support of $850 per month, which

included the basic expenses listed by Pat on her Financial D eclaration. One of those expenses

was the $130.00 per month Pat requested for health insurance premiums. During the following

two-year period leading up to the final hearing, Pat never requested a modification of the

temporary order to r equire Bob to provide health insurance. At some point, Pat’s COBRA

coverage expired, leaving her withou t insurance, resulting in substantial medical expenses to

her.

¶8. At the final hearing on the complaint for divorce on September 29, 1999, the chancellor

found Bob’s separa te investments had grown from $396,964 at the time of the temporary

hearing to $618,214 at the time of the final hearing. Although the chancellor recognized the

investment account as Bob’s separate, non-marital property, he nevertheless opined that the

account’s growth during the period of the marriage was marital property. Assets classified by

the chancellor a s marital assets, subject to equitable distribution, totaled $250,246.45. These

assets w ere: (1) a 1996 Volvo valued at $14,250; (2) $5,898.45 in a checking account held

in Pat’s name; (3) $8,84 8 in a checking account held in Bob’s name only; and (4) the $221,250

growth in Bob’s separate investments. Bob and Pat were each awarded one half of the marital

assets. After deducting from Pat’s share credits for the Volvo and money she kept, the

chancellor ordered Bob to pay Pat $104,974.77, which he called “lump sum alimony,” plus

attorney ’s fees in the amount of $5,696.39. In making the award, the chancellor applied the

Ferguson factors, which are to be considered by a chancellor when dividing marital property.

The chancellor set the net value of Pat’s non-marital assets at $115,930, and Bob’s at

$482,464, which included the non-growth portion of the investment account.5

Haney I

¶9. O n appeal, Bob challenged the award of $104,974.77. In reversing the chancellor, the

Court of Appeals stated:

Bo b argues that the trial court erred in classifying the growth in his non-marital

investme nts as a marital asset. Pat concedes this point but argues that it is

inconsequential because the chanc ellor did not make an equitable distribution

of the property. Rather, Pat asserts, the chancellor made an award of lump sum

alimony. We agree.

Haney I , 788 So. 2d at 865.

¶10. After its determination that the chancellor had not made an equita ble distribution of

marital property, the Court of Appeals remanded the case for findi ngs of fact and conclusions

of law, pursuant to the factors discussed i n C heatham v. Cheatham

, 537 So. 2d 435 (Miss.

1988), conc erning the “lump sum alimony” award. The chancellor was also instructed to

determine Pat’s interest in Barber Printing and its effect on her ability to pay attorney’s fees.

Haney I , 788 So. 2d 862.

¶11. On remand, the chancellor sent a letter to counsel asking for t heir positions on the

remand issues. Bob’s counsel requested an opportunity to present testimony and argument,

which was denied. Subsequently, the chancellor issued a Revised Opinion and Judgment of the

Court which awarded Pat $104,974.77, the same amount as previously awarded. In making the

award, the chancellor made certain factu al findings as to the C

heatham factors, but no analysis

was provided. For instance, C heatham factor nu

mber two is “length of the marriage.” The

chancello r ’s entire analysis of this factor consisted of the following: “The parties were married

for approximately 17 months.” We are left to wonder whether the chancellor weighed this

fac tor for, or against, the award. After setting forth the four factors and associating certain6

factual findings with each, the chancellor concluded by saying, “Therefore, based on the

Cheatam (sic) factors set out above, the Court finds that Bob Haney has sufficient income and

ability to pay unto Pat

(Robertson) Haney, as lump sum alimony, the sum of $104,974.77.”

We are provided no analysis, justification or basis for the award of lump sum alimony, other

than the chancellor’s conclusion that Bob “has sufficient income and ability to pay.”

¶12. Additionally, the chancellor found Pat had no interest in Ba rber Printing, and he again

awarded her attorney’s fees in the amount of $5,696.39.

Haney II

¶13. On

appeal, the Court of Appeals held that the chancellor erred in refusing Bob’s request

to present additio nal testimony and that the chancellor erred when he “failed to illustrate,

analyze or explain how each Cheatham factor affected his consideration and support ed the

award of lump sum alimony.” H aney II

, 881 So. 2d at 866. The Court of Appeals further

stated: “Encountered with the same problem as before, we must ag ain reverse and remand for

an appropriate decision with the necessary analysis.” Id

. Additionally, the court reversed and

rendered the award of attorney fees, stating, “It is readily apparent from her non-marital assets

and the award of lump sum alimony that Pat Haney had sufficient financial ability to pay her

attorney’s fees.” Id . at 867. On certiorari, we now review this case for the first time.

ANALYSIS

¶14. In Haney I

, the Court of Appeals concluded that the chancellor did not actuall y intend

the award to Pat to be an equitable division of marital assets. We have trouble reconciling this

conclusion with the record. When announcing the award in his Opinion and Judgment of the

Court, the chancellor stated:7 In cases of this type where the Court is called upon to make a n equitable

distribution of marital assets, the court must first determine the character of the

parties’ assets, that is, marital (acquired during the marr iage) or non-marital

(acquired by one party before the marriage or by inheritance.

¶15. Following this pronouncement, the chancellor evaluate d the marital versus non-marital

assets. He then used the following phrase in beginning a sentence: “In attempting to resolve

an equitable distribution of the marital assets under the guidelines of the Ferguson v.

Ferguson

, 639 So. 2d 921 (Miss. 1994),

. . .” Thereafter, in applying the F erguson factors,

the chancellor stated, “Considering all of the above, and the factors set forth in the F ergu son

case, sup ra, the court finds a reasonable distribution of the marital assets would be . . . .” Then,

the chancellor split the m arital assets down the middle, resulting in an award to Pat of

$104,974.77, and only then did he make any reference to lump sum alimony. We find the

chancellor clearly intended the award to Pat to be an equitable distribution of marital assets.

Additionally, we find t

hat, subsequent to this Court’s decision in F erguson

, lump sum alimony

is nothing more than a tool to assist a chancellor in equitable distribution.

Lump sum alimony

¶16. In 1994, this Court handed down Ferguson v. Ferguson

, 639 So. 2d 921 (Miss. 1994),

officially adopting the change which had gradually come about over the previous two decades.

Writing for the Court in Ferguson , Presiding Justice Prather stated:

This Co urt has been in a transitory state regarding the division of marital assets.

Our prior law adhered to a system of returning property to the s pouse in whom

title was held (separate property method); however, recent o pinions have eroded

adherence to that method of division. This Court has “long recognized that,

incident to a divorce, the chancer y court has authority, where the equities so

suggest, to order

a fair division of property accumulated through the joint

contribut ions and efforts of the parties.” (citations omitted). With this opinion,8

this Court ad opts guidelines for application of the equitable distribution method

of division of marital assets.

Id. at 925. The Ferguson Court further stated:

Also, this Co urt has allowed lump sum alimony as an adjustment to property

division to prevent unfair division. R eeves v. Reeves

, 410 So.2d 1300, 1 303

(Miss.1982); Clark v. Clark

, 293 So.2d 447, 449 (Miss.1974); J enkins v.

Jenkins

, 27 8 So.2d 446, 449 (Miss.1973). The lump sum award has been

described as a method of dividing proper ty under the guise of alimony. (citation

omit ted). S ee also, H. Clark, Domestic Relations, §§ 14.8 at 450 (1976). In

Bowe v. Bowe

, 557 So.2d 793, 794 (Mi ss.1990), this Court acknowledged that

a chancellor had the authority and disc retion to divide the marital assets by

awarding periodic or lump sum alimony, or both, or by dividing the pers o nal

property, or awarding the exclusive u se and possession of the homestead.

Armstrong v. Armstrong , 618 So.2d 1278, 1280 (Miss.1993).

Ferguson , 639 So. 2d at 926.

¶17. A review of the cases cited in F erguson

, and other cases, leads to the firm con clusion

that lump sum alimony is a tool to assist a chancellor in transferring assets to a spouse who has

no legal title, but who contributed to the accumulation of property in the marriage. Prior to

Ferguson

, lump sum alimony was often used, as it was essentially the only method availa b le

to a chancellor for the transfer of what is now termed “marital property.”

¶18. For instance, in Jenkins v. Jenkins

, 278 So. 2d 446 (Miss. 19 73), the parties were

married for twenty-four years. The Court stated:

At the beginning of the marriage [the parties] had no assets and the hu sband made

a salary of $85 per week. At the time of the divorce the [husband] admitted

assets of $800,000. The [wife’s] worth was meager by comparison. It seems

to us in a case such as this where the wi fe has contributed to the accumulation

of the property of her husband, doing her part as a housewife, it would n ot be

improper that she be allowed a reas onable amount as lump sum alimony on

retrial.

Id . at 449.9

¶19. In Clark v. Clark

, 293 So. 2d 447 (Mis s. 1974), Mrs. Clark “substantially contributed

to the accumulation of marital assets.” This, according to this Court, justified consideration

of lump sum al

imony. As authority, the C lark Court stated: In J enkins

, we held that a lump

sum award in conjunction with an award of monthly alimony was pro per in a case where “the

wife has contributed to the accumulation of the property of her husband. . . .” (278 So. 2d at

449).

¶20. In Abshire v. Abshire

, 459 So. 2d 802 , 804 (Miss. 1984), this Court noted that when

the parties were married, they had very few asset s, and when they divorced, Mr. Abshire’s

assets were in the range of $2 million. This Court cited the following language from J enkins :

“It seems to us in a case such as this where the wife has contributed to the accumulation of the

property of her husband, doing her part as a housewife, it would not be improper that she be

allowed a reasonable amount as lump sum alimony.” I

d

. at 804-05. In A bshire

, this Court

affirmed an awarded of lump sum alimony to Mrs. Abshire in the amount of $200,000.

¶21. In S chilling v. Schilling

, 452 So. 2d 834 (Miss. 1984), the Schillings wer e married

when they were both nineteen years old. Mrs. Schilling “aided [Mr. Schilling] in his campaign

for chancery clerk and in 19 67 quit her job in order to work with him as Deputy Chancery

Court Clerk, a position she held for thirteen years.

. . . Virtually all of the prop erty acquired

by the couple during the twenty-one years of marriage was titled in Mr. Schilling’s name.”. I d

.

at 835. The Court noted that the chancellor’s award of lump sum alimony was based on the fact

that “Carolyn Schilling had made a very substantial contribution to the financial position of

[Mr. Schilling].” Accordingly, this Court affirmed an award of lump sum alimony.10

¶22. In Tutor v. Tutor

, 494 So. 2d 362, 364 (Miss. 19 86), the Tutors married when the

husband was a high school student and the wife was a school te acher. Throughout the marriage,

the wife worked a nd provided income for the family and contributed to the financial success

of her husband. This Court cited with approval the holding in J enkins v. Jenkins

, 278 So. 2d

446, 449 (Miss. 1973 )

, that lump sum alimony, in addition to monthly alimony, is proper

“where the wife had contributed to the accumulation of the property of her husband.”

¶23. Since F erguson , chancellors have exercised their authority to divide the property itself,

rather than award lump sum alimony to make up for the value contributed by the spouse not

holding legal titl

e. Thus, the necessity for lump sum alimony has greatly diminished.

However, it has not disappeared.

¶24. In Ferguson this Court recognized that, in that case, an award of lump sum alimony

might be appropriate. Mr. Ferguson was accused of taking thirty thousand dollars from a

savings account a nd putting it “where nobody could get to it or find it.” Thus, even though Mrs.

Ferguson had contributed to the accumulation of the savings account, it could not be divided

because it was gone. This Court stated:

Just as in Tutor v. Tutor

, 494 So.2d 362 (Miss.1986), [M r s. Ferguson] worked

and contributed to Billy's financial status, but had no assets of her own; her

separate estate pales in comparison to Billy's. This award of lump sum alimony

may have been made by the chancellor to give Linda finan cial security. S ee also

Cheatham v. Cheatham, 537 So.2d 435, 437-38 (Miss.1988). An explanation

of the basis of this award will help this Court determine wheth er the distribution

represents an abuse of discretion or a division s u pported by the record.

Therefore, a remand is warranted on this issue.

Ferguson , 639 So. 2d at 936.

The Cheatham Factors11

¶25. In Haney I

, the Court of Appeals rejected the chan cellor’s evaluation using the

Ferguson factors and remanded for an evaluation using the Cheatham facto rs. However, the

Cheatham fact

ors are really nothing more than an earlier version of the F erguson factors, and

both are used for the same purpose. A side-by-side comparison is helpful.

No. Ferguson Factors No. Cheatham Factors

1 Substantial contribution to the accumulation

of the property. 1 Substantial contribution to the accumulation of

total wealth of the [paying spouse] either by

quitting a job to become a housewife, or by

assisting in the paying spouse’s business.

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 [non-marital

assets].

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. 3

4 Where recipient spouse has no separate income

or the separate estate is meager by comparison.

Without the lump sum award the receiving

spouse would lack any financial security.

8 Any other factor which in equity should be

considered. 2 A long marriage

¶26. Clearly, the Cheatham factors were simply an earlier attempt by t his Court to provide

a chancellor with guidelines for awarding what today is called an equitable distribution of12

marital assets, under appropri ate circumstances. Indeed, we see no F erguson factor which

would be inappropriate in evaluating lump sum alimony. Although we continue to refer to

certain payments as “lump sum alimony,” these payments are really no more than equitable

distribution in the form of lump sum cash, ra ther than an equitable portion of certain property

which cannot be divided equitably.

¶27. In determining a spouse’s contribution which justifies equitable d istribution, we look

not only at cash contributions and assistance in the spouse’s workplace or bus iness, but also

to domestic work in the home s uch as caring for children, cooking meals, cleaning house, and

wa s hing and ironing clothes. “The persistent attempts made to put a monetary value on a

homemaker’s contributions are likely to un dervalue the magnitude of such contributions.”

Ferguson

, 639 So. 2d at 926 n.2. The spouse who is accumulating the monetary assets will

have more time to accumulate more assets if someone is taking care of all of the domestic

responsibilities.

¶28. We find no case, however, whic h authorizes the award of lump sum alimony or an

equitable distribution of non-marital assets based upon nothing more than one spouse’s need

and the other’s ability to pay. More justification is needed. That is why the C heatham factors

and the Ferguson factors were provided.

¶29. As previously stated, the chancellor f ound marital assets subject to equitable

distribution (and/or lump sum alimony) to be: (1) a 1996 Volvo valued at $14,250; (2)

$5,898.45 in a checking account held in Pat’s name; (3) $8,848 in a checking account held in

Bob’s name only; and (4) the $221,250 growth in Bob’s separate investments. As far as we can

tell from the record, the parties do not contest an equal division of the first three items and,13

in that respect, we

affirm the chancellor. The fourth item, however, is vigorously contested.

We shall now apply the Ferguson factors (which will necessarily include all the Cheatham

factors) , to the facts established in the record, to determine whether remand is necessary for

a determination of equitable distribution. Lump sum alimony is unnecessary, since the

property at issue is money, which is easily divided.

Substantial contribution to the accumulation of property

¶30. Other than vague evidence of c lerical assistance to Bob for three or four months, no

other evidence was offered of any contribution by Pat to Bob’s income or accumulation of

assets. Bob had the investment account prior to the marriage, and the growth of that account

was unrelated to any effort or contribution from Pat. Thus, this factor weighs against equitable

distribution.

The degree to which each spouse ha s expended, withdrawn or otherwise disposed

of marital assets and any prior distribution of such a ssets by agreement, decree or

otherwise.

¶31. There is no indication tha t Bob disposed of any marital assets. Although the chancellor

emphasized that Bob termin ated Pat’s insurance coverage, resulting in extensive medical bills

to Pat, the record indicates that Pat requested an award of temporary supp ort which included

$130.00 per month for health in surance premiums. The chancellor granted Pat’s request, and

Bob made the payments as ordered. Pat made no request for an order requiring Bob to keep

her insured on his group policy. Thus, we are unable to find in the record any basis for holding

these medical bills against Bob.

¶32. The record indicates that Pat’s reduction in her investments occ urred in large measure

due to several factors attributed solely to her own actions. Her investment in a printing2 For instance, if Pat had worked in the home for many years while Bob’s investment account grew,

some equitable distribution of the growth might be necessary.

14 company was lost. She expended money for hospital expenses and “trouble” related to her son

by her previous marriage. She paid for her daughter from a previous marriage to finish school

in Oregon. Subsequent to the temporary hearing, she purchased a lot for $10,000, and

constructed a new home. She purchased new furniture for her new home. Based on the record,

this factor weighs against equitable distribution.

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

¶33. As stated supra , the assets subject to equitable distribution will be divided equally.

This factor is of no assistance.

The value of asset s not ordinarily, absent equitable factors to the contrary, subject

to such distribution, such as [non-marital assets].

¶34. The chancellor found Bob’s net non- marital assets to be $482.464. However, the

chanc ellor erroneously concluded that the $221,250 growth in Bob’s investment account was

automatica

l ly deemed a marital asset. The entire value of Bob’s assets not ordinarily subject

to equitable distribution was $703,714. The chancellor found the value of Pat’s assets not

ordinarily subject to equitable distribution was $115,930. These assets are not normally

subject to equitable distribution. In the event the other factors indicate some equitable

distribution of these assets is required, 2 this fact or would assist the chancellor in determining

the amount.

Tax and other economic consequences, and contractu al and legal consequences to

third parties, of the proposed distribution.

¶35. The record does not indicate this factor has relevance in this case.15

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

to eliminate periodic payments and other pote ntial sources of future friction

between the parties.

¶36. The record does not indicate that this factor has relevance in this case.

The needs of the parties for financial security with due regard to the combination

of assets income and earning capacity.

¶37. The chancellor found that Pat had monthly income of $1,801, with expenses of $3,350.

According the chancellor’s findings, Bob had monthly income of $7,539, b ut the chancellor

failed to lis t Bob’s monthly expenses. Although Pat had a substantial separate estate, her

deficit each month of approximately $1,500 would deplete h er assets in eight to ten years.

Bob faces no similar threat. This factor weighs in favor of equitable distribution.

Any other factor which in equity should be considered.

¶38. This factor

can best be discussed by quoting from Judge Griffis’s excellent analysis for

the Court of Appeals in Haney II :

The evidence in this case

. . . clearly established t hat throughout their

marriage Pat and Bob maintained separate residences and separate businesses.

Pat did little to contribute to the accumulation of Bob’s total wealth. Pat’s

business decisions caused the drastic reduction in her own wealth and in her

income. Bob and Pat maintained separate checking accounts and had separate

investments. Their marriage lasted only seventeen months. . . . [T]he only

conclusion that the record supports is that Pat and Bob, although married, lived

lives that were financially separate and independent of each other or their

marriage.

Haney II, 881 So. 2d at 867.

¶39. State d another way, there is little evidence in the record that Pat and Bob considered

their marriage more than a legal formalit y. This factor weighs against equitable distribution.3 In his appeal of Haney I , Bob did not list the award of attorney’s fees in his Statement of Issues.

However, he stated on the last page of his brief, without citation of authority, “The award of attorney’s fees

by the Chancellor was manifest error.” Pat accepted and briefed the issue of the award of attorney’s fees

as though it had been appropriately raised. Bob also failed to list the attorney’s fee award as an issue in

his appeal of Haney II , but again raised the question in a single sentence at the end of his brief, this time

citing (with no analysis) Geiger v. Geiger , 530 So. 2d 185, 187 (Miss. 1988). We find Bob narrowly

escaped waiver of the issue.

16 ¶40. Thus, no further analysis by the chancellor is necessary. The uncontested marital assets

have already been divided. No equitable distribution of other assets can be justified from the

record before us. We therefore find further analysis by the chancellor is unnecessary.

Attorney’s fees 3

¶41. An award of attorney’s f ees is nothing more than equitable distribution of a different

flavor. Such awards are justified where the equities suggest one party should assist the other,

and the other party is unable to pay. B rooks v. Brooks

, 652 So. 2d 1113, 1120 ( Miss. 1995);

Martin v. Martin

, 566 So. 2d 704, 707 (Miss. 1990); Powers v. Powers

, 568 So. 2d 255

(Miss. 1990). We agree with the finding of the Court of Appeals: “The chancellor’s award of

attorney ’s fees was an abuse of discretion and was clearly erroneous. Accordingly, we reverse

and render the chancellor’s award of attorney’s fees.” Haney II , 881 So. 2d at 867.

CONCLUSION

¶42. We aff

irm in part and reverse and render in part the judgment of the Court of Appeals.

¶43. The chancellor ’s equal distribution to the parties of marital assets, totaling $28,996.45,

which included (1) a 1996 Volvo valued at $14, 250; (2) $5,898.45 in a checking account held

in Pat’s name; and (3) $8,848 in a checking account held in Bob’s name only, is affirmed. This

results in a distribution to each party of $14,498.22.17

¶44. The chancellor’s award of lump sum alimony and attor ney’s fees is reversed and

rendered.

¶45. AFFIRMED IN PART AND REVERSED AND RENDERED IN PART.

EASLEY AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT

ONLY. CORTRIGHT, S.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ AND CARLSON , JJ., NOT

PARTICIPATING.