IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CA-00330-COA ELEANOR E. ELLISON APPELLANT

v. STEPHEN D. WILLIAMS APPELLEE DATE OF JUDGMENT: 12/28/2017 TRIAL JUDGE: HON. C. MICHAEL MALSKI COURT FROM W HICH APPEALED: UNION COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: JOE M. DAVIS ATTORNEY FOR APPELLEE: RICHARD SHANE McLAUGHLIN NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 06/18/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., WESTBROOKS AND McDONALD, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. Eleanor E llison appeals th e U n i o n C o u n t y C h a n c e ry Court’s division of her and Stephen W illiam s ’s ma r i t a l estate. Ellison a n d W illiam s s eparated in August 2 016 when
W i lliam s m oved o ut of the m arital hom e. Ellison and W illiam s resided in two hom es during their m arriage and o wned b oth at the tim e of their separation. T h e U nion County C hancery
Court f ound that both hom es were m arital property and divided their rem aining assets. The chancellor awarded Ellison six t y p e r c e n t of the m arital estate and awarded W illiam s the

rem aining f

orty percent. Ellison tim ely

appeals.
FACTS ¶2. Ellison and W illiam s m arried on April 23, 2007, and resided i n a h o me deeded toEllison b y her parents (Ingom ar P roperty ). Her parents had f ully paid f or the h om e, and they deeded it to Ellison in her nam e o n ly

. The couple resided in the hom e f o r a lm ost eight y ears bef ore they d ecided to purchase another hom e in a dif f erent s chool district so t hat Ellison’s grandson could attend school there (Highway 348 Property ). ¶3. Togethe r E l l i s o n a nd W i lliam s took o ut an equity l oan on the Ingom a r Property to purchase t he Highway 348 P roperty a n d a n additional loan to c over t he am ount that the equity l oan did not. They resided at the Highway 348 Property a nd rented the Ingom ar Property f rom January 2 0 15 until their separation in Septem ber 2016. W h ile residing in the hom e, W illiam s t ook on m any re p a i r p r o j e cts, such as painting room s, p utting down hardwood f

l oors, installing a hot tub, and lay ing a brick paver around the hom e. ¶4. Af ter W illiam s l ef

t t he m arital hom e , Ellison was solely r esponsible f or the f inances of both the Ingom ar Property a nd the Highway 348 Pro p e r t y w i t h the exception of two

m onths. She continued to rent out the Ingom ar Property , which covered i ts m ortgage, and began receiving $500 a week f rom her son to help with the Highway 348 Property m ortgage and her living expenses because she was n ot working. Ellison testif ied t h a t s i n c e the separation, her son had loaned her approxim ately $35,000. ¶5. Shortly af

ter W i lliam s ’s departure, h e began an extram arital relationship. I n January 2017, E llison f

iled a com

p l aint f or divorce and cited W illiam s’s adultery

. Af ter a hearing in
Novem ber 2017, the chancellor granted the divorce and awarded Ellison sixty percent of the

m arital estate and W i lliam s f orty percent. The chancellor also f ound that t he $35,000 loan f rom Ellison’s s on was not m arital debt, and the chancellor did not award either party

2attorney ’s f e es. In 2018, Ellison f

iled a m otion to reconsider, which w a s denied by the chancery court. Aggrieved, Ellison appealed. Af ter review of t h e r e c o r d, we af f irm the chancellor’s judgm ent in part and reverse and rem a nd in part f or f urther proceedings.
STANDARD OF REVIEW ¶6. “It is well settled that this Court applies a lim ited standard of review on appeals f rom chancery court.” Rodgers v. Moore , 101 So. 3d 189, 1 93 (¶8) (Miss. Ct. App. 2012) (internal quotation m ark om itted). “The c hancery court’s f actual f indings will not be disturbed if they

are supported by substantial evid e n c e unless we can say with reasonable certainty that the chancellor abused his discretion, was m anif estly wrong or clearly

erroneous, or applied an erroneous legal standard.” Id. “Questions of law receive a de novo review.” Id.
DISCUSSION ¶7. Ellison raises three issues on appeal. Ellison a s s e r t s t h e c h a n c e l l or e r red (1) by

m isapply ing the Ferguson f a ctors, (2) by not f

inding the loan f

rom h er son was m arital debt, and (3) by

deny ing her request f

or attorney ’s f

ees. I. Ferguson Factors ¶8. Ellison f

irst asserts that t he chancellor m isapplied t he Ferguson f actors and that she should have been awarded a larger part of the m arital estate. In Ferguson v. Ferguson , 639 So. 2d 921, 928 (Miss. 1994), the Mississippi Suprem e Court set out the f o llowing f

actors to be considered by the chancellor when dividing m arital estates:
1. Substantial contribution to the a c cum ulation o f the property

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

a. Direct or indirect econom i c contribution to the acquisition of the

3property ; b. C o n t r i b ution to the stability and harm ony of the m arital an d f am ily relationships as m easured by quality , quantity of tim e spent on f a m ily duties and duration of the m arriage; and

c. Contribution to the education, t raining or o ther accom plishm ent bearing on the earning power o f t h e spouse accum ulating the assets. 2. The degree t o which each spouse has e xpended, withdrawn or otherwise d isposed of m arital assets and any p rior d istribution of such assets by agreem ent, decree or otherwise.
3. The m a rket value and the em otional value o f t h e assets subject to distribution.
4. The value of assets not ordinarily , absent equitable f actors t o t he contrary , subject to such distribution, such as property b rought to the m a rriage b y the parties and property acquired by inherita n c e o r inter vivos gif t by or to an individual spouse;
5. Tax and other econom ic consequen c e s , and c ontractual o r legal consequences to third parties, of the proposed distribution;
6. The extent to which property division m ay , with equity to both parties, be utilized to elim inate periodic pay m e nts and other potential sources of f uture f riction between the parties;
7. The needs of t he p a rties f or f i nancial s ecuri t y w i th d

ue regard to the com bination of assets, incom e and earning capacity ; and,
8. Any

other f actor which in equity

should be considered.
“A c hancellor i s required to m ake f indings of f

act regarding a ll applicable Ferguson f actors.” Lowrey v. Lowrey , 2 5 So. 3d 274, 2 85 (¶26) (Miss. 2009). “The distribution of m arital assets in a divorce will b e af

f irm ed i f i t is supported b y substantial credible evidence.” Id. The Ferguson f

actors evaluate the needs, contributions, and conduct of the parties.

4¶9. Here, Ellison states that the chancellor did not properly account f or the f a ct that she bore t he largest burden in ac q uiring b oth properties or f or W illiam s’s m

ultiple departures f rom the hom e during their m arriage and h is extram arital relationship. She f urther s tates that
W i lliam s did not contribute f inancially during his absences except f or pay ing $200 toward the m ortgage i n Septem

ber and October of 2016, leaving h er to p ay a l l marital expenses. Ellison testif

ied that b ef

ore their f inal separation in Septem ber 2016, W illiam s w as absent f rom the m arital hom e several day s in A pril 2 008, February 2008, Septem ber 2010, July and August of 2011, October through Decem ber of 2012, and f

or a y ear lasting f

rom March 2013

to M arch 2014. W i lliam s testif ied to leaving the m arital h om e about f our t im es during their

m arriage. He f

urther adm i tted he did n o t contribute t o household expenses during his absence. ¶10. In the f

inal judgm ent, the chancellor reduced W illiam s’s distribution to account f or one-half of the air conditioner that Ellison had t o replace and o ne-half of the pay m ents m ade

on the indebtedness during their separation. A ccordingly , we f ind that t h e chancellor properly accounted f

o r W illiam s ’s absences in dividing the m arital estate and f ind this issue without m erit. ¶11. Ellis o n a l s o a s s e r

t s t h a t t h e c h a n cellor should have considered W i lliam s’s extram arital af f air. W e a gree. The Mississippi Suprem e Court has reversed and rem anded cases when the chancellor did not consider how an extram arital relationship “im pacted and burdened the stability and harm ony of the m arriage.” W atson v. W

atson , 882 So. 2d 9 5, 108 (¶68) (Miss. 2004) (quoting Singley v. S ingley , 846 S o. 2d 1004, 1009 (¶13) ( Miss. 2002)). “Mississippi

5is in a m inority o f states in w hich m arital m isconduct is a f actor f or consideration in property division.” Deborah H. Bell, Bell on Mississippi Family Law § 6 .08[ 2][ e], 176 (2d ed. 2011). ¶12. Here, Ellison d id receive a slightly larger portion of the m arital estate than W illiam s , but the chancellor did not cite t hat as his reasoning. The c hancellor stated that h e was aware it was Ellison’s f

am i ly h om e that they f

irst resided in and then leveraged to purchase another hom e; he theref

o re a warded Ellison sixty percent. The chancellor awarded Ellison a faultbased divorce but t hen did not directly c onsider how W i l liam s’s absences and inf idelity af f ected the stability a nd harm ony of the hom e when dividing t he e state. Because we believe the chancellor’s lack of consid e r a t i o n was error, we reverse and rem and f or f urther proceedings on t his issue to a llow the chancellor to consider the e xtram arital relationship in equitably dividing t heir estate. Additionally , we reverse and rem and to allow the chancellor

to m ake a f

ull Ferguson a naly sis on the record.
II. Marital Indebtedness ¶13. Ellison also asserts that the chancellor erred in ruling that the $35,000 loan f rom her

son was not m a rital debt. Ellison m aintains that had it not been f or W illiam s’s behavior she would not have had to b orrow m oney f rom her son to cover expenses. Ellison testif ied that the $35,000 included alm ost $5,000 worth o f a ttorney ’ s f e es and $2,300 f

or the n ew HVAC
sy stem

. El l i son also testif ied that she and her son signed a prom issory note dated in 2017 that she would begin pay ing him back January 2018. ¶14. W i lliam s counters that E llison was working f or her son af

ter her daughter-in-law had

a s t roke and that the $ 500 a w eek her son gave her were w ages f or Ellison helping them out

6a r o u n d t h eir h om e and not a loan intended to be repaid. On d irect exam i nation, Ellis o n

testif i ed that she did a ssist her son and his f am i ly but did not a m ount to $500 a week’s worth of assistance and that he never g av e h e r a c h e c k or a W -2. On cross-exam ination, Ellison adm itted that at one point she did work f or her son and that he w ould pay her $150 or $250

a week, but once he started depositing $500 a w eek into her account i t turned f rom pay m ent into a loan. Additionally , W illiams p o i n t e d o ut that Ellison listed the $2,000 a m onth she

was receiving f

rom her s o n as incom e and not as a loan on her Rule 8.05 f i nancial statem ent. 1 ¶15. Because Ellison f

ailed to af f irm atively prove t hat the loan w as not wages earned, we do not f ind t hat the chancellor was m anif estly wrong or abused his discretion in f inding that the loan was not m arital debt. Theref ore, we f ind this issue without m erit.
III. Attorney ’ s Fees ¶16. Lastly , E llison argues that s he should h ave b een awarded attorney ’s f ees because she dem onstrated that she was unable to pay

. The Mississippi Suprem e Court has held that: The award of attorney f

ees in divorce cases is lef t to t he discretion o f the chancellor, assum ing he f ollows the appropriate standards. Attorney f e es are not generally awarded u nless the party requesting such f ees has established the inability to pay . The f

ee should be determ ined that the legal work charged f or w a s r e a s o n a

bly required and necessary . W hen considering an award of attorney f ees, a sum suf

f icient to s ecure a com

petent attorney

is the criterion by which we are directed. The f ee depends o n relative f

inancial ability of the parties, the skill and s tanding of the attorney em ploy ed, the nature of the c ase and novelty and dif

f i cult y of the questions at issue, as well as the degree of responsibilit y i n v olved in the m anagem ent o f t he cause, the tim e and labor required, the usual and custom ary charge in the com m unity , and the preclusion of other em

p l oy m ent by the attorney d u e t o the acceptance of the case. Attorney f

ees have been ref

used where little or no evidence h as been presented to substantiate the am ount requested. Unless the chancellor a b u s e d his

1 U C C R R u le 8 .0 5

. 7discretion o r is m anif estly wrong, his decision regarding attorney f ees will not be disturbed on appeal. Creekmore v. Creekmore , 651 So. 2d 513, 5 20 (Mi s s . 1 9 9 5 ) (internal quotation m arks

om itted). ¶17. Here, Ellison testif i ed that she paid her attorney ’s f e e s o ut of the loan f

rom her son, but she provided no proof of the am ounts paid or her inability to pay . Accordingly , without proof , we f ind that the chancellor did not abuse h is discretion or was m anif e stly wrong and af f irm his decision to deny

the request.

CONCLUSION ¶18. Af ter review of the record, we af f irm the chancellor’s decision to c lassif y the loans

m ade t o Ellison as non-m arital debt and t he d enial of attorney ’s f e e s. W e reverse and rem and f or f u r ther proceedings to allow the chancellor t o reconsider W illiam s’s extrama r ital relationship as a f

actor in dividing the estate. ¶19. AFFIRMED IN PART; REVERSED AND REMANDED IN PART. BARNES, C .J., J . WILSON, P .J., McDONALD, L A W RENCE A ND C. WILSON , J J., CONCUR. T INDELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, J O I N E D BY CARLTON, P.J., GREENLEE AND McCARTY, JJ. TINDELL, J., CONCURRING IN PART AND DISSENTING IN PART: ¶20. Because the chancellor heard e vidence of W illiam s’s extram arit a l r e l a t ionship and thereaf ter awarded Ellison with a greater percentage o f t he m arital estate, I would af f irm the chancellor’s j udgm ent in its entirety

. W he r e s u b s t antial e vidence supports a chancellor’s f indings, the C ourt i s without authority to distu r b t h e c h a ncellor’s c o nclusions even if it

8would have f ound o therwise in the original ma t t e r . Joel v. Joel , 4 3 S o. 3d 424, 4 29 (¶14) (Miss. 2010). W e h ave previously held that “f a i l u r e to m a ke an explicit f a c tor-by -f actor analy sis does not necessarily requi r e r e v e r s a l where we are satisf ied t hat the chancellor considered the relevant f

acts.” Palmer v. Palmer , 841 So. 2d 1 85, 190 (¶18) (Miss. Ct. App. 2003). Unless the chancellor’s judgm ent was m anif estly wrong, clearly erroneous, or applies

an erroneous l e gal standard, the judgm ent should stand. Carambat v
. Carambat , 7 2 So. 3d 505, 510-11 (¶24) (Miss. 2011). ¶21. The f

inal judgm ent does address W i lliam s’s adultery in the chancellor’s f indings of f act. Further, af

ter c onducting a f

ull F erguson analy sis, the chancellor awarded Ellison sixty percent of

the m arital assets and f

orty percent to W illiam s. Substantial evidence supported the c hancellor awarding a g reater po r t ion of the m arital estate to Ellison, and he did so accordingly

. For these reasons, I f ind no m anif

e s t error in his conclusions and respectf ully dissent in part f

rom the m ajority ’s opinion. CARLTON, P.J., GREENLEE AND McCARTY, JJ., JOIN THIS OPINION.

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