IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-00499-COA DEIDI RODRIGUE APPELLANT

v. MITCHELL RODRIGUE APPELLEE DATE OF JUDGMENT: 01/04/2017 TRIAL JUDGE: HON. M. RONALD DOLEAC COURT FROM W HICH APPEALED: FORREST COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: MAURA DELANEY MCLAUGHLIN LEE PARTEE GORE ATTORNEYS FOR APPELLEE: JOHN D. SMALLW OOD THOMAS T. BUCHANAN NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART: 09/18/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ. TINDELL, J., FOR THE COURT: ¶1. On August 31, 2012, the F orrest County Chancery C o u r t g r a n t e d Mitch and Deidi Rodrigue a divorce. Following Deidi’s tim ely a p peal, this Court af

f irm e d i n part and reversed and rem anded in part the chancellor’s judgm ent. R odrigue v. Rodrigue , 172 So. 3d 1176, 1178 (¶1) (Miss. Ct. App. 2 0 1 4 ) ( R o d r i g u e I ). Af ter c o nducting a second trial on

rem and, t he chancellor entered an am ended opinion and f inal judgm ent on January 4, 2017. On appeal f

rom the chancellor’s am ended opinion and f inal judg me n t , D e i di argues the chancellor erred (1) in his equitable distribution of the m arital estate, (2) in h is determ ination of alim ony , (3) b y not awa r d i n g D e i d i attorney ’s f ees, and (4) by not awarding Deidi thecosts she incurred in pursuing the f irst appeal. ¶2. In R odrigue I

, we assessed all costs o f the app e a l t o M i t c h

. I d

. at 1190 ( ¶54). On

rem and, Deidi introduced into e vidence a bill showing s h e incurred $1,543.40 in pursuing the appeal. Because the c h a n c e l l or erroneously denied these costs, we reverse and render that part of the c hancellor’s judgm ent a nd o rder Mitch to pay the costs associated with the f irst appeal. A s to t he rem aining issues regarding the equitable distri b u t i o n o f the m arital h om e, the alim ony award, and the denial of Deidi’s attorney ’ s f ees, we f ind no e r r o r . We theref ore af f irm in part and reverse and render in part the chancellor’s judgm ent. FACTS ¶3. Deidi and M i tch separated on July 15, 2010, af ter t wenty

- one y ears of m arriage. On
N o v e mb e r 4, 2011, the chancellor entered a tem porary order o n t he i ssues o f custo d y , visitation, child support, and spousal support. Pursuant to the chancellor’s tem porary order, Mitch received r esponsibility f or p ay ing t he m arital debt associated w i th the m arital hom e, including the m ortgage, interest, and taxes. ¶4. On Au g u s t 3 1 , 2 0 1 2 , the chancellor entered a f inal judgm ent that g ranted Deidi a divorce on t he ground of uncondoned adultery a nd awarded her custody of t he parties’ two

m inor children. 1 The chancellor ordered Mitch to pay $1,112.66 in m o nthly

child support.
W i th regard to alim ony , the chancellor stated: [ T]he [ c]ourt f

inds the pay

m ent b y Mitch of Deidi’s car note o n the Honda Pilot ($329.95 per m o nth with a balance of $13,562.41 as presented at trial), of which s he w i l l h a v e exclusive use, ownership[ ,] and possession, to be an

1 D u rin g th eir m arriag e, th e p arties h ad th ree ch ild ren . B y th e tim e o f th e f irst d iv o rce h earin g , th e p arties’ eld est ch i ld h ad reach ed th e ag e o f m aj o rity

. 2appropriate am ount of lum p[ -]sum alim ony paid over tim e. Mitch is obligated to m ake a t least the m i nim um pay m ents due o n the loan until the l oan i s p aid in f ull. If he chooses to p ay the loan of f at an accelerated r ate, and t hus satisf y the obligation in a shorter am ount of tim e and by pay ing less interest, he will be deem ed to have also satisf ied his obligation to Deidi as to alim ony . ¶5. I n d i v i d ing the parties’ m a rital property , the chancellor ordered them to sell the m arital hom e and divide t he equity

. The c hancellor granted Deidi use and possession of the m arital hom e and ordered Mitch to pay t he m ortgage, including taxes and insurance, f or one y ear or until the sale, whichever occurred f i rst. 2 The chancellor f

urther ordered that M i t c h “be allowed to claim the interest paid on the h om e m ortgage as a deduction on his tax return until the hom e [ was] sold.” From the sale proceeds, the chancellor granted Mitch priority f or the reim bursem ent of the m ortgage pay m ents h e m ade between the entry of the Novem ber 4, 2011 tem porary order and the entry of the August 31, 2012 f

inal judgm ent. ¶6. Following the e ntry of the cha n c e llor’s j udgm ent, D eidi f iled an unsuccessf

ul posttrial

m otion. Aggrieved, she appealed. In Rodrigue I , t his C o u r t a f

f i rm ed in part and reversed and rem a nded in part the chancellor’s judgm ent. Id. at 1178 (¶1). In r em anding the case f or f urther proceedings on the issues o f equitable division and alim ony , we stated the chancellor could also revisit the issues related to child support, attorney ’s f ees, private-school tuition, college education, and lif e insurance. Id. at 1189 (¶¶47, 50). ¶7. In reversing and r em anding the chancellor’s judgm ent as to the m ar i t a l h o me , this Court stated: [ I ] t a p p ears t hat t he chancellor intended f or Mitch to receive the m ortgage2 T h e p arties so ld t h e m arital h o m e o n M ay 1 0 , 2 0 1 3 , w h ich o ccu r red p rio r t o th e o n ey ear d ead lin e estab lish ed in th e ch an cello r ’s A u g u st 3 1 , 2 0 1 2 f in al j u d g m en t. 3interest deduction on his t ax return. However, there is nothing in the j udgm ent

that w ould indicate t hat the c h a n c e l l o r v iewed this as alim ony or that the chancellor intended f

or Deidi to incur t axable incom e f or t h e p a y

ment as alim ony . The chancellor did not designate the m ortgage pay m ent as alim o ny . Nevertheless, we are com pelled to f

ind t h a t the chancellor f

ailed to “co nsider the estim ated am ount of incom e taxes the respective parties m ust pay on their incom es w hen det e rm i ning the provisions of a divorce agreem ent.” Ivison [ v. Ivison ] , 762 S o. 2 d [ 329,] 337 (¶29) [ (Miss. 2000)]. W e theref

ore r everse the chancellor’s judgm ent as to t he m arital hom e and rem and t his m atter f

or the chancellor to co n s i d e r the proper incom e-tax consequences that f

low f rom the pay m ent of the m ortgage. Id. at 1184-85 (¶¶27-28). ¶8. W e also reversed the chancellor’s alim ony a w a r d a f t e r f i n d i n g the decision constituted

an abuse of discretion. Id. at 1 189 (¶45). Th e c h a ncellor’s f indings had clearly shown Deidi’s entitlem ent to alim ony , but the chancellor only awarded Deidi $13,562.41 in lumpsum alim ony in the f orm of a m otor vehicle with 100,000 m iles on it. I d. Finding such an award t o be unjust a nd grossly inadequate b ased on the chancello r ’s f indings, w e reversed the alim ony award a nd rem anded f o r f u r t h er consideration of an appropriate lum p-sum or periodic alim ony

am o unt. Id. at (¶46). ¶9. On rem and, the chancellor held a trial o n August 25, 2016, and e ntered an am ended opinion and f

i n al judgm e nt on January 4, 2017. In f irst addressing equitable distribution of the m a rital property , the chancellor det e r mi n ed “the date of divorce used a t the f irst trial”

m arked t he proper cut o f

f f or the a ccum

ulation of m arital assets. See Collins v. C ollins , 112 So. 3d 428, 431-32 (¶9) (Miss. 2013) ( “ T h e l a w in Mississippi is that t he date on which

assets cease to be m arital a nd becom e separate assets—what we ref e r t o herein as the point of dem arcation—can be ‘either the date of separation ( at the earliest) or the d ate of divorce

4(at the l atest).’” (quoting Lowrey v. Lowrey , 25 S o. 3d 2 74, 285 (¶27) (Miss. 2009))). The

chancellor f

ound that Mitch a nd Deidi had sold t he m arital hom e on May 10, 2 013. Pursuant

to the August 31, 2012 judgm en t , D e i d i had reim bursed Mitch f

o r the m o rtgage pay

m ents he m ade between the entry of the tem p orary order and the sale, and then the parties divided the rem a ining equity

. The chancellor f ound this resulted in each party receiving $ 35,796.65 f rom the sale of the hom e. The chancellor reaf f irm ed t his divi sion o f the m arital hom e as equitable. In addition, the chancellor stated that “ the house pay m ents m ade b y Mitch pending t he sale of the hom e did not constitute an alim ony pay m e nt to Deidi a nd that Mitch

was e n titled to the m o rtgage interest[ -]tax deduction and the property [ -]tax deduct i on associated with the m arital hom e.” ¶10. The chancellor next noted that Mitch’s m onthly n et i ncom e at the tim e of t he f irst trial

am ounted to $5,546.30, w hich was roughly f our tim es Deidi’s m o nthly net incom e at that tim e o f $ 1,344.67 (not including the c hild-support p ay m ents she received). I n determ ining the p a rties’ m arital debt, t he chancellor excluded f r om consideration two loans Deidi had received f

rom h e r mo t h e r a nd sister f or attorney ’s f

ees. The chancellor assigned Mitch $39,097.18 of the parties’ m a rital debt, including their daughter’s private-school tuition. He assigned Deidi $31,767.07 of the parties’ m a rital debt. T he chancellor f urther stated that any debt Mitch or Deidi thereaf ter incurred on their assigned debts would be the responsibility of the incurring party

. ¶11. I n d i s c u s s ing the parties’ r etirem ent accounts, the chancellor f ound M itch’s r e t i r e m e n t f unds am ounted to $ 1 48,849.61. The chancellor awarded Deid i h a l f the v alue of Mitch’s

5r e t i r e ment f unds ( $74,424.81) m inus half the value of her retirem ent f unds ( $4,120.84 ) , which am ounted t o $70,303.97. Because the chancellor’s previous judgm ent had already awarded Deidi $ 60,852.60 of Mitch’s r etirem ent f unds, the chancellor ordered the rem aining $9,451.37 to be distributed to Deidi through a qualif ied dom estic-relations order. ¶12. Af ter distributing the m arital property , the c hancellor considered an alim ony award. The chancellor r eaf

f irm ed the f

indings f rom his prior judgm ent on b oth the Armstrong 3 and Cheatham 4 f

actors and again determi n e d D e i d i was e ntitled to alim o ny . The chancellor ordered Mitch to pay

Deidi $600 a m onth in periodic alim ony , with the award to term inate upon either party ’s death or Deidi’s rem a rriage. ¶13. The chancellor next considered Deidi’s requests f or attorney ’s f

ees related t o both the divorce proceeding and the contem pt a ction. Af

ter f inding that a t otal of f

our hours were attributable to Deidi’s c ontem pt action, the chancellor ordered Mitch to pay Deidi $800 f or the attorney ’s f

ees she incurred in pursuing the contem pt action. As to Deidi’s request f or attorney ’s f

ees related to the d ivorce action, however, t he c hancellor f o und Deidi f

ailed to

m eet her burden of proving the McKee 5 f actors and did not plead f or appeal costs and f

ees. As a result, the c hancellor denied Deidi’s r equest f or attorney ’s f

ees f or the divorce action. ¶14. F o l l o w i n g the entry of the chancellor’s judgm ent, the parties each f i l e d p o s t t r i a l

m otions. Relevant to this appeal, the chancellor am ended his f inal judgm ent with regard to

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 ).

4 C h ea th a m v. C

h ea th a m , 5 3 7 S o . 2 d 4 3 5 , 4 3 8 (M iss. 1 9 8 8 ).

5 M cK ee v. M cK ee , 4 1 8 S o . 2 d 7 6 4 , 7 6 7 (M iss. 1 9 8 2 ).

6Deidi’s request f or attorney ’s f

ees and costs on appeal. A f ter reviewing the pretrial order, the c hancellor acknowledged “that appeal costs and attorney [ ’s] f e es are listed as an issue at trial on r em and.” The chancellor f o u n d , h o w e v e r, t hat Deidi presented n o evidence at the

r e ma n d trial as to her a

ppeal c osts. The chancellor f urther f ound the only evidence Deidi presented of her attorney ’s f ees on appeal was t he inf

orm ation “generally i ncluded in [ her] item ized attorney [ ’s] f

e e billings.” Because t he chancellor f o und Deidi f

ailed to establish at trial either the reasonableness or necessity o f t hose charges, h e reaf f i rm ed h is denial of her request f or costs and attorney ’s f

ees on appeal. ¶15. Aggrieved, Deidi appeals. STANDARD OF REVIEW ¶16. This Court’s review o f dom estic-relations cases is lim ited. T urnage v. B rooks , 213 So. 3d 103, 105 (¶2) (Miss. Ct. App. 2016). W e do not disturb a chancellor’s f a c tual f indings unless the chancellor was m anif estly wrong or clearly erroneous or applied a n incorrect legal standard. Id. W here substantial evidence supports the chancellor’s f i n d ings, we lack authority to disturb them

. Id. However, we review questions of law de novo. I

d. DISCUSSION
I. Equitable Distribution ¶17. Arguing the c hancellor erred in his equitable distribution o f the m arital e state, Deidi asserts the f

ollowing:
T h e repay

m e nt of the house n otes paid by Mitch should not have been reim bursed t o Mitch i n toto because the h ouse pay m ents w ere in part support of the children[ ,] a n d D e i di owned a o ne-half interest in t he house. Deidi’s interest m ay have been, in part, n on-econom ic. She was penalized f or not

7m aking the h ouse pay m ents directly

. Further, Mit c h ’ s attorney ’s f ees were characterized as a m arital debt while Deidi’s were not. ¶18. This Court will a f

f irm the chancellor’s distribution of m arital a ssets when supported by substantial credible evidence. Proctor v
. Proctor , 143 S o. 3d 615, 618-19 (¶11) (Miss. Ct. A pp. 2014). In Rodrigue I , the only reason this Court reversed the chancellor’s j udgm ent

as to the m arital hom e was because “the chancellor f ailed to ‘consider t he e stim ated am ount of incom e t axes t he respective p arties m ust pay on their incom e s when determi n i ng the
p r o v i s i o n s o f a divorce agreem e nt.’” Id. a t 1185 (¶28) (quoting Ivison , 762 So. 2d at 3 3 7 (¶29)). W e theref

ore rem anded so the chancellor could consider the p roper inc o me -tax

c o nsequences that f

lowed f rom M itch’s pay

m e nt of t he m ortgage. Id. O n rem a n d , t h e

c hancellor considered the issue and determ ined that Mitch’s m o rtgage pay m ents di d n o t constitute alim ony and that he was entitled t o the tax deductions associated with the m arital hom e. Because substantial credible evidence supports the c hancellor’s equitable division of the m arital estate, we f

ind Deidi’s argum ent lacks m erit.
II. Alim ony ¶19. Deidi n ext challenges the adequacy o f t h e c h a n c e l lor’s alim ony d eterm ination on

rem and. “‘In the case of a claim ed inadequacy of a l im ony , the appellate court will interf ere only where the decision is seen as so oppres s i v e , u n j ust[ ,] or grossly inadequate as to evidence an abuse of discretion.’” Proctor , 143 So. 3d at 620 (¶18) (quoting Armstrong v. Armstrong , 618 So. 2d 1278, 1280 (Miss. 1993)). Here , t h e c h a ncellor originally ordered Mitch t o pay the note on Deidi’s vehicle, which a m oun t e d t o a lum p-sum am ount of $13,562.41, or $329.95 a m onth. On rem and, the c hancellor awarded Deidi $600 in m onthly

8periodic alim ony . However, because Deidi rem arried on Ma y 1 4 , 2 014, h er periodic-alim ony
pay m ents term inated as of that date. S ee Stroh v. Stroh , 221 So. 3d 399, 412-13 (¶44) (Miss. Ct. App. 2017) (“[ Periodic alim ony ] has no f ixed term ination date but au t o matically

term inates upon the rem arriage of the recipient or death of

the pay or.”). ¶20. On appeal, Deidi asserts the chancellor’s new alim ony determ ination resulted in her only receiving $12,300 in p eriodic alim o ny . Because this am ounted to less than the original lum p-sum award of $13,562.41, D eid i a r g u e s the chancellor clearly erred. Although we acknowledge the total am ount of periodic alim ony Deidi received m ay have been less than the original lum

p-sum award, w e f

ind this alone f

a ils to constitute an a

bus e o f d i s c r etion. On rem and, the chancellor properly considered the Armstrong f actors as required by caselaw and d eterm ined Deidi w as entitled to alim ony . See id. at 413 (¶44). Based on his f indings, the chancellor then awarded D eidi $600 in m onthly periodic alim ony . Because substantial credible e v idence supports the chancellor’s decision, w e f ind no m erit to Deidi’s a rgum ent. III. Attorney ’ s Fees ¶21. Deidi n e x t a s s e r t s t h e evidence clearly showed both her inability to pay her own attorney ’s f

ees and a disparity in the parties’ r elative f inancial positions. As a result, Deidi
argues t he chancellor erred b y not awarding h er the attorney ’s f ees she incurred f

o r both the original appeal and the current appeal. 6 In addition, Deidi contends the chancellor erred by excluding a witness who planned to testif y about t he reasonableness of her attorney ’s f ees. W e review both a chancellor’s denial of attorney ’s f ees and exclusion of evidence f or abuse

6 In p rev i o u sly r em an d in g th e case, w e stated th e c h a n cello r w as f ree to rev isit h is d ecisio n to n o t aw ard D eid i atto rn ey ’s f ees. R o d rig u e I , 1 7 2 S o . 3 d a t

1 1 8 9 (¶4 7 ). 9of discretion. See H eisinger v
. R iley , 243 So. 3d 248, 2 59 (¶¶45-46) (Miss. C t. App. 2018).

a. Ex c lusion of Witness Testim o ny ¶22. At trial, Deidi attem pted to call Michael Ratlif f , a local attorney , to testif y about the reasonableness o f her a ttorney ’s f ees in accordance with the McKee f actors. M itch objected that Deidi neither designated Ratlif f as an e xpert witness in discovery nor p rovided the expert opinions to which Ratlif

f planned to testif

y . Although t he pretrial order listed Ratlif f as one of Deidi’s witne s s e s , the c hancellor noted that neither party designated any experts. As a result, the chancellor sustained M itch’s o bjection and excluded R atlif f ’s testim o ny . Af

ter the chancellor exited the courtroom , Deidi m ade a prof f er of Ratlif f ’ s testim ony . ¶23. “Under the discovery rules, a party m ust disclose the nam e and content of any expert witness that it m ay call to testif y .” Estate o

f Baxter v. Shaw Assocs. Inc. , 797 So. 2d 396, 400 (¶15) (Miss. Ct. App. 2001) (citing M.R.C.P. 26(b)). In addition, Unif orm Chancery Court Rule 1.10(A) provides t h a t , “[ a]bsent special circum s tances[ ,] the court will not allow testim o ny at trial of a n expert witness w h o w a s n ot designated a s an expert witness to all attorney s o f record at least sixty day s bef ore trial.” Because Deidi f ailed to designate Ratlif

f

as a n expert witness a s required, w e f ind n o abuse of discretion in the c hancellor’s decision to exclude Ratlif

f ’ s testim o ny . b. Denial of Attorney ’s Fees ¶24. W i th regard to an award of attorney ’s f

ees, this Court recently

stated: Generally , attorney ’ s f

ees should only b e awarded where the m oving p arty h as dem onstrated an inabi lity to pay . A trial court abuses its discretion by awarding attorney ’s f

ees without f

irst f i nding that the party is u nable to pay the f ees. Chancellors a re i n structed to a p ply t he McKee f

actors in g ranting or

1 0deny ing attorney ’s f e es. The McKee f

actors include: (1) relative f

i nancial a b i l i t y of the parties; (2) the s k ill and standing of the attorney em ploy ed, (3) [ the] no v e l t y and d i f f iculty of [ the] issues in the case, (4) t he responsibil i t y required in m anaging the case, (5) [ the] tim e and labor r equired, (6) the usual and custom ary c h a r g e in t he com m unity , and (7) whethe r t h e a ttorney was precluded f rom undertaking other em ploy m ent by accepting the case. Bl a ck v. Black , 240 So. 3d 1226, 1235 (¶27) (Miss. Ct. App. 2017) (citations and internal quotation m arks om itted). ¶25. Wi t h o u t R a t l i f

f ’s testim o ny , the only e vidence Deidi p r e s e n t e d r e g a r d i n g h e r attorney ’s f

ees included three invoices f rom her attorney a n d h er own testim ony about her inability to pay the f

ees. In his ame n d e d o pinion a nd f inal judgm ent, the chancellor concluded this evidence f ailed to suf

f iciently prove both Deidi’s i nability to pay and all of the McKee f

actors. Because we cannot say the c hancellor’s decision resulted in an abuse of discretion, we decline to reverse. W e theref o re f ind this assignm ent of

error lacks m erit.
IV. Appeal Costs ¶26. Deidi next argues the chancellor erred by f ailing to a w ard her the costs she incurred f rom the previous appeal. “Mississippi Rule o f Appellate Procedure 36 governs appeal costs. Rule 36(a) provides f

or the t axation of costs o f appeal to the losing party unless o therwise agreed upon by t he parties or ordered by the appellate court.” Blake v
. Estate of C lein ex rel. Clein , 37 So. 3d 622, 627 (¶12) (Miss. 2010). I n Rodrigue I , t h i s Court assessed to Mitch

a l l costs related to the f

irst appeal. Id. at 1190 (¶54). O n rem and, D eidi introduced into evidence a bill showing she incurred $1,543.40 in pursuing the f i rst appeal. Upon review,

1 1we f

ind the chancellor erred by f ailing to award Deidi those appellate costs. W e theref ore reverse that portion of

the chancellor’s judgm ent and render a decision in Deidi’s f avor. CONCLUSION ¶27. Because we f

ind the chancellor e rred by f ailing t o award Deidi the appellate costs she incurred in R o d

r i gue I , we reverse that portion of the chancellor’s judgm ent and render a decision in Deidi’s f

avor. W ith regard to the rem aining i ssues on appeal, however, we f ind

no error. W e theref

ore af f irm the chancellor’s judgm ent as to the equitable division of the

m arital hom e, alim ony , and attorney ’s f ees. ¶28. AFFIRMED IN PART; REVERSED AND RENDERED IN PART. LEE, C .J., I RVING AND GRIFFIS, P. J J . , B ARNES, CARLTON, WILSON, G R E E N L E E A N D W E S T B R O O K S , J J . , C O N C U R . F A I R , J . , N O T PARTICIPATING.

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