IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-00689-COA HERMAN SCOTT APPELLANT

v. LILLIE SCOTT APPELLEE
DATE OF JUDGMENT: 03/02/2015 TRIAL JUDGE: HON. W ILLIAM H. SINGLETARY COURT FROM W HICH APPEALED: HINDS COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: JOHN R. REEVES JOHN JUSTIN KING ATTORNEYS FOR APPELLEE: JOHN ROBERT W HITE JR. PAMELA GUREN BACH NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: ENTERED JUDGMENT OF DIVORCE, DIVIDED MARITAL PROPERTY, AND AW ARDED ALIMONY TO APPELLANT DISPOSITION: AFFIRMED - 12/13/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ. GREENLEE, J., FOR THE COURT: ¶1. Herm an and Lillie Scott obtained a d ivorce in 2015. F rom t hat judgm ent of divorce,
Herm a n appeals the chancellor’s equitable distribution of the m arital property , and in particular the chancellor’s award of the f am i ly hom e to Lillie. Herm an also argues that the chancellor erred in f

ailing to award him periodic alim ony or, in the alternative, that the chancellor erred in f

a iling to award him a greater am ount of lum p-sum alim ony . Finding no error, we af

f irm

.FACTS AND PROCEEDINGS BELOW

¶2. Lillie and Herm an m arried in 1999 and d i v o r c e d i n 2015 af ter separating in 2012. They have an em ancipated c hild, who was twenty -six y ears old at the tim e o f t he divorce hearing. The couple a greed to an irreconcilable-dif f erences divorce and subm i tted the issues of distribution of the m arital assets and alim o ny to the chancellor. ¶3. Herm an has a tenth-grade education and, as of the divorce proceedings, had worked

as a f acilities m anager at Hinds Com m unity C ollege f

or m any y ears, m aking approxim ately $ 3 2 ,400 a y ear. L i llie, a nurse, was w orking as director of the cardiothoracic-surge r y departm ent at Central Mississippi Medical Center, m aking approxim ately $111,000 a y ear. Both p arties had Public Em ploy ees’ Retirem ent Sy stem (PERS) retirem ent accounts. Herm a n’s PERS account w a s untouched and v alued at $ 58,161. Lillie had previously liquidated her $ 41,000 P ERS account and spent the f unds o n hom e im

provem e n ts and dental work. 1 ¶4. During the m arriage, the c ouple built a m arital h o me o n a l o t d e eded to them by
Herm a n’s f

ather f or $1,500. At the tim e of the divorce p roceedings, the property was valued

at $ 210,000, and the couple had an outstanding m ortgage on the h om e of approxim ately $155,000. Herm an m oved out of the m arital hom e in 2011. ¶5. The couple had signif i cant debt, prim arily incurred by Lillie, who f iled f or bankruptcy in 2012. At the t im e of the divorce proceedings, L illie was m a king m o nthly pay m ents toward discharging approxim ately $73,661.50 of bankruptcy debt. H er $17,995 Sallie Mae loan was

1 L illi e l i q u id ated h er P E R S acco u n t at a tim e s h e w as n o t in P E R S -related em p lo y m en t. 2placed in abe y ance pending the com pletion of the bankruptcy pay m ent plan. A c co rd in g to th e h earin g testim o n y , L i llie’s in sisten ce o n liv in g o u tsid e o f t h e f am ily ’s m ean s, in clu d i n g h er in terest in g am

b lin g , w as a so u r ce o f th e d eb t an d a so u r ce o f co n t en tio n b etw een th e

co u p le. Herm an accused Lillie of adultery , and Lillie accused Herm a n of dom estic abuse. 2 ¶6. The chancellor perf orm ed a detailed Ferguson and Armstrong analy s i s. Both parties

wo r k ed throughout the m arriage. The chancellor f ound that both parties contributed to the

accum ulation of the m arital estate, and that Herm an m ade noneconom ic contributions to the household. He f

ound that Herm an would be in s om ewhat reduced circum s tan c e s af ter the divorce. He f

ound that Lillie had squandered a portion o f the m arital estate, and that this was
account e d f

o r in the division of property

. He f ound that both parties were a t f a ult in the breakup of

the m arriage. ¶7. Lillie was o rdered to pay approxim ately $ 70,000 of the parties’ debt. The only debt
Herm a n w as r e quired to pay was an outstanding IRS debt of $3,357.39. Lillie was awarded

one hundred percent of the m arital hom e, which included approxim ately $55,000 in equity , with approxim ately $155,000 rem aining on the m ortgage. H erm an w as awarded the m ajority of the u nencum

b ered m arital property , including all of his $58,000 PERS r etirem ent account, his checking and s avings accounts, his truck , a n d various guns, tools, e quipm ent, and jewelry

. ¶8. The c hancellor’s d i v i s i on of m arital property operated in part as an award of lump2 Wh ile th e d iv o rce w as u ltim ately g r an ted o n th e b asis o f irreco n cilab le d if f eren ces, th e ch a n c e llo r

n o ted th at th e ev id en ce p resen ted ten d ed to su p p o rt H e rm an ’s alleg atio n o f L i llie’s ad u ltery , an d th at L illie w as g ran ted a restrain in g o rd er ag a in st H erm an f o llo w i n g an arrest f

o r d o m estic assau lt. 3sum

alim ony to Herm an. The chancellor stated: All of th e Armstrong f actors m e n tioned above which suggest the appropriateness of an award of alim ony to H e r man have b een considered by t h e Court to entitle him to a m odest award of lum p sum alim ony . T he Cou r t considers that the division of the m arital estate outlined below incorporates an equitable division of the estate and an award of such lum p sum alim ony . Herm a n appeals. DISCUSSION ¶9. Our review of

dom estic-relations m atters is lim ited. Ferguson v. Ferguson , 639 So. 2d 921, 9 30 (Miss. 1994). W hen reviewing a chancellor’s equitable distribution of property , this C ourt only “reviews the judgm ent to ensure that the chancellor f ollowed the appropriate standards and did n ot abuse his discretion.” Phillips v. P hillips , 904 So. 2 d 9 99, 1001 (¶8) (Miss. 2 004). “In the case of a claim ed inadequacy o r outright denial of alim ony , we will interf ere only where the d ecision is seen as so oppressive, u njust o r g rossly inadequate as to evidence an abuse of discretion.” Armstrong v. A rmstrong , 618 S o. 2d 1278, 1 2 80 (Miss. 1993).
I. The chancellor did not err i n failing to a w ard the m arital hom e to

Herm an. ¶10. Herm an argues that the chancellor e r red in f ailing to award him the ma r i t a l h o me because the land the couple built the m arital hom e on had been p urchased f rom his f ather and because h e has relatives living on adjacent land. E m otional attachm e nt to property and that property ’s proxim ity to relatives is a signif i cant c i r c u m stance to consider in equitable distribution. Sandlin v. Sandlin , 906 So. 2d 39, 42 (¶12) ( Miss. Ct. App. 2004). In Sandlin , the wif e was awarded the m arital hom e where she m aintained the m arital hom e, the property

4had once been her grandparents’, and relatives lived nearby

. Id

. I n af f i rm ing, this Court noted that the gra n t o f s u ch a signif icant asset to the wif

e was equitably counterbalanced by the award o f other m a rital assets to the husband, including his retireme n t benef its, and his not being required to m ake alim ony pay m ents. Id

. at 43 (¶14). ¶11. H e r e , t h e chancellor acknowledged t he potential em otional value o f t h e l a n d t o Herm a n, then provided detailed re a s o n i n g f or awarding the house to L illie rather than
Herm a n, noting that Herm an would likely not be able to af f ord the m ortgage on the house,

t h a t t he m ortgage was part of Lillie’s bankruptcy plans, and that granting Lillie the house
Herm a n c o uld not af

f ord f r eed the unencum

b ered m arital property to be equitably awarded
to Herm an. ¶12. The chancellor stated:
None of Lillie’s and Herm an’s assets h as such em o tional valu e a s t o require special consideration at this point, w ith th e possible exception o f the m arital domicile and one a cre of land, which were either gif t ed to the p arties or purchased by them f

rom Herm an’s f

ather. Because other of Herm an’s f am i ly live nearby , this asset m i ght be considered to have m o re e m otional value to Herm an; however, the m ortgage on the house is i ncluded in Lillie’s c h apter 13 bankruptcy , a n d i t d o e s not appear that i t would be v ery likely that Herm an could a f f ord the house any

way . There is n ot an ef

f e ctive wa y t o equitably divide the m arital estate, including as m u ch debt as there is, without awarding the house to Lillie, which the Court accom plishes herein below.
W e cannot f

ind that the chancellor abused his discretion in determ ining that “ there is not an

e f f e ctive way to equitably divide the m arital estate, including as m uch debt as there i s , without awarding the house to Lillie.” The c h ancellor appropriately determ ined t hat, in these parti c u l a r c i rcum stances, any em otional value in Herm a n’s f avor was overcom e by other equitable econom ic considerations.

5II. The cha n c e l l o r d id not err i n the ty pe or am ount of alim ony aw a rded to Herm an. ¶13. Herm an argues that the c hancellor e rred in f ailing t o award him a greater am ount of lum p-sum alim o ny and i n f

ailing to award h im p eriodic alim ony . “ A lim ony a n d equitable distribution a r e distinct concepts, but together they com m and the entire f ield of f inancial settlem ent of divorce. Theref ore, where o ne expands, the other m ust recede.” Ferguson , 639 So. 2d a t 929. In the f

inal analy sis, alim ony and equitable distribution should b e considered together s o as t o prevent inequity

. W atson v. W

atson , 882 S o. 2d 9 5, 98 (¶15) (Miss. 2004). Disparity of the parties’ s eparate e states i s the single m ost im portant f actor in determ ining whether lum

p-sum alim ony is a

ppro p r iate. Cheatham v. Cheatham , 537 So. 2d 435, 438 (Miss. 1988). L um

p-sum alim ony is particularly approp r i a t e w h e n t h e d ef icit leaves one party unable to m e et reasonable expenses. See Ferguson , 639 So. 2d at 926. ¶14. The chancel l o r d e t a i l e d h i s r e a s o n s f o r a warding H erm an “ m odest” lum p-sum alim ony , ref

lected in the equitable distribution of the m arital p r o p erty

. He considered
Herm a n’s needs, c urrent obligations, and standard of living. Given our determ ination that the

c h a ncellor did n ot err in awarding Lillie t he m arital hom e ( placing t he burden of t h e

m ortgage on her), tha t H erm an was awarded the m ajority o f the unencum bered m arital property and alm ost none of the debt, and Lillie’s m onthly bankruptcy obligations, we f ind that t he chancellor did not err in declining to award Herm an a greater am ount of lum p-sum alim ony or periodic alim ony . CONCLUSION ¶15. The chancellor did n o t e rr in determ ining that equitable econom ic distribution of the

6property required awarding the m arital h om e to Lillie. The chancellor also did n ot err in his

award of lum p-sum alim ony to Herm an. W e theref

ore af f i rm the chancellor’s judgm ent. ¶16. T H E J U D G M E N T O F T H E H I N D S C O U N T Y C H A N C E R Y C O U R T , S E C O N D JUDICIAL DISTRICT, IS AFFIR M E D . ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. IRVING A N D G R IFFIS, P.JJ., BARNES, ISHEE AND CARLTON, JJ., C O N C U R . FAIR AND WILSON, JJ., CONCUR IN PART AND IN THE RESUL T WITHOUT SEPARATE W RIT T E N O P INION. JAMES, J., CONCURS I N PART WITHOUT SEPARATE WRITTEN OPINION. LEE, C .J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION, J OINED BY FAIR AND WILSON, JJ. LEE, C.J., CONCURRING IN RESULT ONLY: ¶17. I concur in r esult with the m ajority ’s decision to a f f irm ; however, I f

i n d t h a t the chancellor’s decision to categorize a portion of the equitable division of the m arital assets as lum p-sum alim ony was incorrect. ¶18. F i r s t , t h e c h ancellor did not provide f or a specif

ic am o unt o f lum

p-sum alim ony . W h ether l u m

p - sum a lim ony i s “used either as a lim ony or as part of property division,” it

m ust be a “f ixed and irrevocable sum .” Beezley v. B e ezley , 917 So. 2d 803, 806 (¶10) (Miss. Ct. App. 2005) (citing W

r ay v. W r ay , 394 So. 2d 1 341, 1345 (Miss. 1981)). The chancellor did not designate a specif ic am ount of lum

p- s u m alim ony ; rather, he divided t he m arital assets, giving Herm an the m ajority of the unencum bered assets. The chancellor s im ply stated that “ the division o f the m arital estate

. . . incorporates an equitable division of the estate and an award of

such lum p sum alim ony .” ¶19. Second, th e n a t u r e of the award i s, in reality , equitable distribution. This Court in
East v. East , 775 So. 2d 741, 7 45 (¶9) (Miss. Ct. App. 2000), d eterm ined that the chancellor

7incorrectly l abeled an equity transf er f rom the husband to t he w if e as l u mp - sum alim ony , when, “in ef

f e ct, it i s a portion of the

. . . equitable distribution of the estate.” W e af f irm ed the transf er but corrected the labeling error. Id

. He r e , I w o u ld af f irm the equitabledistribution award but decline t o accept the chancellor’s decision to label a ny am ount thereof as lum p-sum alim ony . FAIR AND WILSON, JJ., JOIN THIS OPINION.

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