IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-00142-COA GARY MOSHER APPELLANT

v. LORI MOSHER APPELLEE
DATE OF JUDGMENT: 10/08/2014 TRIAL JUDGE: HON. JENNIFER T. SCHLOEGEL COURT FROM W HICH APPEALED: HARRISON COUNTY CHANCERY COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: KELLY MICHAEL RAYBURN ATTORNEY FOR APPELLEE: LORI MOSHER (PRO SE) NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: GRANTED THE PARTIES A DIVORCE, DIVIDED THE MARITAL PROPERTY, AND AW ARDED THE APPELLEE ALIMONY AND CHILD SUPPORT DISPOSITION: AFFIRMED: 05/24/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. FAIR, J., FOR THE COURT: ¶1. The Harrison County Chancery Court granted Gary and Lori Mosher a divorce based

on irreconcilable d i f

f e rences. On appeal, Gary contends t he chancellor awarded Lori too

m uch child support, too m

uch of his m i litary retirem ent, too m u c h o f the m arital property , and too m uch alim ony . As we f

ind Gary ’s a r gum ents e ither procedurally b arred o r without

m erit, we af

f irm

. FACTS¶2. Gary and L ori m arried on Novem ber 7, 1987, a nd they s eparated in N ovem ber 2010. By the tim e of the divorce hearing in January 2014, t he parties had been m arried twenty -six
y ears. Gary was f

o rty -nine y ears old, retired f rom the N avy , and working a s a civilian

contractor at t h e Stenni s S p a c e Center. Lori was f o rty -seven a nd w orking as an assistant school teacher. T w o children were born to the m arriage. At the tim e of t he hearing, the older

son was em a ncipated, but the y o unger daughter, eighteen y ears of age, was not. ¶3. The parties subm itted several issues t o the court, including whether L ori was entitled

to alim ony . Lori represented herse l f a t t h e h earing, and, on appeal, she has n ot f iled an appellee’s brief

. STANDARD OF REVIEW ¶4. L o r i’s f

ailure to f ile a brief does not require autom atic reversal of the cha n c e l l o r ’ s judgm ent. In Rogillio v. Rogillio , 101 So. 3 d 1 50, 153 (¶12) (Miss. 2012), the Mississippi Suprem e Court explained: [ F]ailure of an appellee to f ile a brief is tantam o unt t o conf e s sion of error and will be accepted as such unless the reviewing court can say w ith conf idence, af ter considering the record and brief of [ the] appealing party , that there was no error. Autom atic reversal is not required where t he appellee f ails to f i le a brief

. However, the a

ppellant’s argum ent should at l east create enough doubt in the judiciousness of t h e t r i a l court’s judgm ent that this Court c annot say with conf idence that the case should be af f irm ed. (Internal citations and quotation m arks om itted). Furtherm ore: W h en m atters on appeal touch the w elf are of a m inor child, then regardless of whether a party f

iled a brief

, this C ourt will reach the m erits of the issues in this appeal, t hough we proceed u naided by a b rief f rom the appellee.

. . . If the record is large or com

p l icated and [ the appellant] thoroughly brief ed the
2issues, p r ovided applicable citations of authority , and present e d an apparent

case o f error, then we should consider [ the appellee’s] f ailure to f i le a brief as his conf e ssion of error and reverse t he c hancellor’s judgm ent. But if the r e c o r d c a n be conveniently exam ined, and t he record reveals a sound an d unmi s t akable basis or ground upon which the judgm e nt m ay be saf ely af f irm e d, then we should disregard the f act that [ the appellee] f

ailed to f ile a brief

. Roberts v. Roberts , 110 So. 3d 8 20, 825 (¶¶10-11) (Miss. Ct. App. 2013) (internal citations and quotation m arks om itted). ¶5. W e a l s o recognize that the chancellor’s f i ndings of f

act should be af

f irm ed when supported by substantial credible e v i d e n c e . I d

. at 824 ( ¶9). “This Court only disturbs a chancellor’s f

indings if t hey are m anif

estly wrong or clearly

erroneous o r if the chancellor applied an incorrect legal standard.” Pearson v. Pearson , 121 So. 3d 266, 268 (¶6) (Miss.
Ct. App. 2013) (citation om itted). Conclusions of law, h owever, are reviewed de novo. Id.
DISCUSSION 1. Military Retirem ent ¶6. The parties agreed that Lori would receive “ one-half of [ Gary ’s] m ilitary retirem ent,” but they did not specif

y a m onthly am ount. The chancellor f ound that Gary had two sources of m ilitary retirem ent incom e, his “disposable retired p ay ” and his “[ Departm ent of Veteran Af f airs] disability com

pensation,” about $401 per m onth, which Gary had e lected to receive in lieu of a dollar-f

or-dollar portion of his d i sposable retired p ay . Half of the total, af ter

3adjustm ents, was $1,178.95. 1 VA disability com pensation is not subject t o property division under f ederal law, so the chancellor awarded Lori a larger share of the disposable retired pay , resulting i n a n a ward o f one-half of the overall am ount Gary received every m onth f rom what the chancellor f

ound were his m ilitary

retirem ent sources. ¶7. On appeal, Gary c ontends that the chancellor “ lacked the au t h o r i t y t o d e cide this issue,” a s the p arties agreed Lori would receive only half of his m i litary r etirem ent, which Gary im plicitly equates to his disposable retired pay . He cites to Mississippi Code Annotated section 93-5-2(3) (Rev. 2013), which he notes requ i r e s t he parties to an i rreconcilable dif f erences divorce to consent t o subm it issues to t he chancery court f or a d j u d i c a t i o n , and
G o r d o n v. Gordon , 126 So. 3d 922, 925-26 (¶10) ( Miss. Ct. App. 2 013), where this C o u r t f ound no e rror w hen a c hancery court granted an irreconcilable dif f erences divorce without dividing m arital property , including a m ilitary retirem ent account. ¶8. This argum ent m i sses the m ark. Although it is true that th e p a r t i e s here agreed to divide t he “m ilitary retirem ent” equally , the property settlem ent agreem ent did not specif y what that was. Property settlem ent agreem ents a re contracts, and l ike a ll contracts, there are

som etim es disputes regarding the m eaning of t heir term s . Gaiennie v. McMillin , 138 So. 3d 131, 135 (¶8) (Miss. 2014). It is apparent that the chancery c o u r t interpreted the parties’
agreem ent rather than disregarding it as Gary contends. The chancellor dedicated nearly ten

1 T h e ch a n cello r d ed u cted th e co st o f a s u rv i v o r an n u ity , w h ich w a s p a i d f r o m th e retirem en t

in co m e. 4of

the f if ty -six pages of her written judgm ent to this question. ¶9. As to the interpretation of t h e a g r e e m ent, while i t is clear G ary does not agree with the chancellor’s decision, he has n ot brief ed th a t i s s u e . “[ T]here is a presum ption that the judgm ent of the trial court is correct and the b urden is on the Appellant to dem onstrate som e reversible error to [ the appellate court].” Birkhead v. State , 57 So. 3d 1 22 3 , 1231 (¶28) (Miss. 2011); s e e also M.R.A.P. 28(a)(6). G ary has f ailed to m eet h is burden of showing error on this issue. 2. Property Division ¶10. Gary next contends that the chancellor erred by a warding L o ri too great a share of the parties’ m arital estate, about $10,500 m ore than he received. ¶11. “To equitably divide property , the chancellor m u st: (1) classif

y the parties’ assets as

m arital or separate, (2) value those assets, and ( 3) e quitably divide t he m arital assets [ based
upon the Ferguson 2 f

actors].” Anderson v. Anderson , 1 74 So. 3 d 9 2 5 , 9 29 (¶8) (Miss. Ct. App. 2015) (citations om itted). ¶12. The chancellor f

o u nd that the parties had valued the total m arital estate, as designated in their Rule 8.05 f

inancial statem ents, at $ 4 9 , 5 6 6 a n d t he total m arital debt at $ 39,045. 3
Most of the assets a nd debts h a d a l r eady been divided, leaving only a f ew things f

or the chancellor to divide – the debt on a vehicle, Gary ’s m ilitary survivor annuity , and the parties’

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 S e e U C C R 8 .0 5

. T h e ch an cello r n o t ed th at th is d id n o t in clu d e v ario u s h o u seh o ld item s th e p arties h ad alread y d iv id ed

. 5respective lif e insurance policies. ¶13. T h e chancellor then r eviewed the Ferguson f a ctors t o equitably d ivide the couple’s

rem aining estate. Those f a ctors are: 1. Substantial contribution to the accum ulation of the property

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

a. Direct or i ndirect econom ic contribution to the acquisition of the property ; b. Contribution to t he stability and harm ony o f t he m arital and f am ily relationships as m e asured 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 r a i n i n g o r other accom plishm ent bearing on the ea r n i n g power o f the s pouse accum ulating the assets.
2. The degree t o which e ach spouse has expende d , w i thdrawn or o therwise disposed of m arital assets and a n y p rior distribution of such assets by agreem ent, decree or otherwise.
3. The m arket value and t h e em o tional value of the a ssets s ubject to distribution.
4. The value of assets not o rdinarily , absent equitable f actors to the contrary , subject to such d i stribution , s uch as property brought to the m arriage by the parties and property acquired by inheritance or inter vivos gif t by or t o an individual spouse;
5. Tax and other economi c consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to w hich property division m a y , with equity to both parties, be utilized to elim i nate p eriodic pay m ents and other p o t e n t i al sources of f uture f riction between the parties;
7. T h e n e e ds of the p arties f or f inancial security with due regard to the
6com bination of assets, incom e and earning capacity ; and, 8. Any other f actor which in equity should be considered. Ferguson , 639 So. 2d at 928. ¶14. T h e c h a n cellor f

i rst discussed each party ’s contributions to t he accum u l a t i o n o f

m arital asset s . B oth parties had worked through m ost of the m arriage, but Lori m ade less

m oney because o f f

requent m oves necessitated by Gary ’s career in the Navy

. Lori also m ade

m ore dom estic contributions to the m arriage than Gary

. The c h ancellor noted that Gary had

an af f air in 2010 and that the parties separated in 2011. A f t e r t he separation, the m arital hom e was lost to f

oreclosure, and Lori had ac c u mu l a t e d d e b t to cover her e xpenses. The chancellor concluded that t his f irst f actor f avored awarding Lori a greater share of the m arital

estate. ¶15. T h e c hancellor then discussed t he parties’ f inancial a nd phy sical nee d s a n d t h e i r

e mo t i o nal attachm e nts to assets. Gary had purchased Lori a L exus but had stopped contributing to the car pay m ents when he lef

t the m arital hom e. As a result, while no debt

rem ained on Gary ’s autom obile and m otorcy cle, $13,880 was still owed on Lori’s vehicle. The chancellor also f

o und that L ori possessed a greater em otional attachm ent to the m arital hom e, which was lost to a f oreclosure Gary was in a better p osition to prevent. Gary earned enough incom e to pay h is e xpenses while Lori, who possessed the greater need, lacked the incom e necessary to m eet h er expenses. These f a ctors f avored Lori i n the distribution of the

m arital estate.

7¶16. C o n sidering the parties’ separate estates, t he chancellor fo u n d t h a t t h e a s s e t s c o n t a i n e d in each were of alm o s t e qual value. However, the chancellor also r ecognized that Lori’s net worth was n early half of Gary ’s because she possessed m ore debt and a l o w e r m onthly incom e, while Gary ’s incom e would allow him to p ay o f f debt assigned to him

. Theref ore, the chancellor f

ound that this f

actor f avored Lori. ¶17. The chance l l o r a l s o d i s cussed the parties’ use and possession of the a ssets and the custody of t he m inor child. Lori received prim ary custody o f the couple’s daugh t e r . T h e chancellor f

ound that this contributed to the need f or Lori to own a vehicle without f ear of losing it due to an inability to m ake the pay m ents. T hus, the chancellor f ound t hat this f

actor also weighed in Lori’s f

avor. ¶18. The chancellor next considered the ef f ect of the m arital distribution on the need f or alim ony and the extent to which the property division m ight be able to elim inate the need f or periodic pay

m ents a nd other potential f uture sources of f

r i c t i o n between the parties. The chancellor concluded that a lim ony would still be required, regardless. Along with this, the chancellor f

ound t hat Lori possessed a greater n eed than Gary f o r f i nancial security “due to a disparity

of incom e, an overall f

inancial disparity , and Lori’s lower earning capacity .” ¶19. In considering the incom e d isparity between the parties, the chancellor determ ined the parties’ m onthly adjusted gross i ncom es and expenses. T he chancellor f ound that, including child support, L ori’s m onthly adjusted gross incom e af ter equitable distribution totaled $3,456 and that her m onthly expenses totaled $3,310, leaving a m onthly surplus of $146. By

8com

parison, the chancellor f o u n d G a ry ’s m onthly adjusted gross incom e af ter equitable distribution totaled $5,542 and that his m onthly expenses totaled $3,176, leaving a m onthly surplus of $2,366. ¶20. In a ddition to the disparity in the parties’ incom e s, the chancellor f ound t hat an overall
f inancial disparity existed between the parties. The chancellor noted that Lori had a greater share of the m arital d e bt, but she needed f inancial security m ore than Gary because sacrif ices she had m ade f

o r the m a r r i a g e l e f

t her with a lower earning capacity

. These f actors all weighed in Lori’s f

avor when distributing the m arital estate. ¶21. Af ter the equitable division, Lori possessed m a rital assets totaling $33,168 (or 67% of t he total) and $22,605 (58%) of m arital debt. Gary received $ 16,398 (33%) of assets and $16,440 (or 42%) of debt. The chancellor noted that this lef t Lori with an estate valued at $10,563 and Gary

with a def

icit of $42. 4 ¶22. In addressing G ary ’s assi g n m e n t o f e r r o r , t h i s C o u r t r e views the chancellor’s equitable division of the parties’ m a rital estate under the f am iliar m anif

est-error s tandard of review. See Anderson v. Anderson , 174 So. 3d 925, 929 (¶8) (Miss. Ct. App. 2015). ¶23. G a r y c o mp l a i n s t h a t t h e chancellor f ailed to a d equately explain a nd s uppo r t a n

u n e q u a l d istribution of the m arital estate, but, as we have seen, the c hancellor’s opinio n ref lects othe r w i s e . She addressed the relevant f actors set f

orth in Ferguson a nd discussed

4 T h e c h an c ello r in clu d ed th e p resen t v alu es o f th e lif e in s u ran ce p o licies. S h e d id n o t assig n a v alu e to th e su rv iv o r an n u ity , w h ich w as aw ard e d to L o ri, b u t th e p arties w ere essen tially

o rd ered to sh are its co st g o in g f o rw ard

. 9their a

pplication to t he present case, concluding t hat Lori was entitled to a greater share. “An equitable division of property d oes not alway s m ean an equal divi s i o n o f p r operty .” Burnham v. Burnham , 185 S o. 3d 3 5 8 , 361 ( ¶13) (Miss. 2015) ( citation om itted). Af ter reviewing the record, we f ind that substantial evidence supported the chancellor’s decision. This issue is without m erit.
3. Alim ony ¶24. Gary next contends that the chancello r e r r e d by awarding Lori perm anent alim ony . He a rgues that, f

ollowin g equitable distribution of the couple’s m a rital estate, no disparity existed to justif

y t h e award of alim ony . Furtherm ore, Gary asserts that the alim ony award deprives him

of a reasonable and decent standard of living. ¶25. W i th regard to perm a nent alim ony , this Court has previously stated: Alim ony awards are within the discretion of the chancellor, and his discretion will n ot be reversed on appeal unless the c hancellor was m anif e stly in error in his f inding of f

act and abused his discretion. Perm a nent alim ony should only be considered where one spouse is lef t with a def

i cit. If t he m arital assets, a f t e r e quitable division and in light of the parties’ nonm arital assets, will adequately provide f

or both parties, then no m ore need be done. Anderson , 174 So. 3d at 930 (¶18) (citations and internal quotation m arks om itted). ¶26. Af ter dividing t he m ari t a l e s t a t e , the chancellor f ound that a disparity s till existed between the parties. Am ong o t her f actors, t h e c h a n c e llor considered Lori’s low m onthly incom e and the f

act that Gary ’s child-support obligation would cease in April 2016 when the parties’ daughter reached the age of m ajority

. W hen the child-support p ay m ents ceased, Lori

wou l d l i k e l y f

ace an incom e def

icit due t o her m o nthly expenses exceeding her incom e.

1 0Because o f th i s o verall f inancial disparity , the chancellor concluded that an award of
perm anent alim o ny w as appropriate. She then analy zed the f am i liar Armstrong f

ac t o r s to determ ine the appropriate am ount of alim ony , “ co m p a ring t he relative positions of the parties

at the tim e of the reques t f o r mo d i f i c ation in relation to their positions at t he tim e of the divorce decree.” Steiner v. Steiner , 788 So. 2d 7 71, 776 ( ¶ 1 6 ) ( M iss. 2 001) (citing Armstrong v. Armstrong , 618 So. 2d 1278, 1280 (Miss. 1993)). ¶27. The chancellor f

irst considered the p ar t i e s ’ h e a l t h a n d e a r ning capacities. The chancellor f

oun d t h a t Gary , age f

orty -nine, and Lori, age f orty

- seven, were both in good health. The chancell o r a l so f ound that Gary ’s earning capacity exceeded Lori’s due to his education and em

ploy m ent experience. This f

actor f avored an award of

alim ony . ¶28. The chancellor next r eviewed the parties’ needs. The c h a n c e l l o r s t a t e d t h at Lori would soon lose the child support she received when the parties’ daughter reached the age of m ajority

. A t t hat point, L ori w ould m ost likely n ot have incom e suf f icient to pay her
expenses. By c ontrast, Gary could m eet his needs with a substantial surplus. B ecause Lori possessed a greater f

inancial need and a lower earning capacity , the c hancellor f ound that this
f actor also f

avored an award of

alim o ny . ¶29. Based on previous f i ndi n gs about the parties’ obligations and assets, the chancellor
f ound t hat this f

actor f u r t h e r f avored an award of alim ony . The parties’ a ges and their twenty

- six-y ear m arriage likewise f avored a n a w a r d o f alim ony , as did Lori’s phy sical custody of the couple’s daughter.

1 1¶30. In considering the parties’ s tandard of living during the m arriage, t he c h a n c e l l o r f ound that Lori was accustom ed to Gary ’s f inancial support. Af

ter the separation, Gary ’s ref usal

to cooperate with Lori contributed to the f oreclosure of the m arital hom e. W i thout Gary ’s support, Lori was u nable to m ake ends m e e t, and her s tandard of l iving suf f ered. These
f indings also f

avored an award of

alim ony . ¶31. T h e c h a n c e l l o r n e x t d i s c u s s e d t h e t ax c onsequences and the p arties’ f ault o r

m isconduct. She f

ound that the tax consequences s upported an award of alim ony , and that both parties contributed to the breakdown of the m a rriage, but Gary bore a greater share of the f ault since he had an af

f a ir and th e n s e v e red ties with his wif e and children. Gary had also signif

icantly contributed to dissipation of assets, i .e., the loss of the parties’ hom e. Af ter

c oncluding that these f

actors f avored an award of a l im ony , t he c hancellor consi d e r e d t h e f ollowing additional “just and equitable” f a c tors: [ T]he lack o f a tem

p orary order

. . . ; the lack of adequate f i nancial support f

or Lori over a signif

icant period of t im e[ , whic h c a u s e d the loss of the m arital] hom e i n f oreclosure and [ caused] her net worth to f all i nto the negative; Lori’s potential f

o r an incom e def

icit; Gary ’s increasing incom e surplus; the overall f inancial disparity between the parties in Gary ’s f avor; and the underpay

m ent of m o nthly [ m] ilitary [ r]etirem ent [ b]enef its f or approxim ately [ t hirty -three] m onths to Lori by G ary , w hich inured to G a r y ’ s b e nef it

. . . approxim ately $18,308.40. ¶32. Based on her f

indings, the chancellor concluded a n award of alim ony w a s appropriate. Ultim a tely , she awarded Lori $1,000 per m onth in perm anent alim ony . ¶33. Upon review, we f ind no abuse o f d i s c r e t i o n i n t h e a l im ony award. The record ref lects that the chancellor thoroughly addressed the Armstrong f actors and concluded that
1 2each f

a ctor supported an award o f alim ony . The disparity f ound by the c h ancellor could not be adequately addressed throu g h property division alone. Because we f ind s u bstantial credible e v idence supported the chancellor’s f indings o f f

act, this assignm ent o f error lacks

m erit. 4. Child Support ¶34. Finally , Gary argues that the child sup p o r t a w a r d exceeded the am ount specif ied in the property settlem ent agreem ent. This issue is procedurally barred because Gary f ailed to raise it bef

o r e the chancery court. W e also f ind that this Court cannot “reinstate” the
agreem ent, because it was never accepted in the f irst place. ¶35. The p roposed property settlem ent agreem ent included a provision that Gary would
pay Lori $727 per m o nth f or the su p p o r t o f their daughter. Af t er hearing e xtensive proof regarding the parties’ f

inances and living situations, the chancellor f o u n d t hat this am ount f ell short of adequately and suf f iciently providi n g f

or the child. The chancellor f ound the

m inim um to be $775.85, derived by apply ing t he statutory c hild support guidelines to Gary ’s adjusted gross incom e. T he c hancellor went ahead and granted the divorce, with the child support am ount set to the m i nim um that was p erm issible – an additional $48.85 per m onth. ¶36. Gary m ade no c o mp l a i n t a b o u t t h is to t he chancery court. He acquiesced to the divorce and then com

pletely abandoned the proposed support agreem ent by contending, in

1 3his m otion f or a new trial, that the child was em ancipated a nd not eligible f or any support. 5
Since Gary d id not raise t his issue bef o re the trial court, it is p rocedurally barred on appeal. See Fowler v. W

hite , 85 So. 3d 287, 293 (¶21) (Miss. 2012). ¶37. Even if we were to d isregard the procedural bar, this Court could n ot do a s G ary asks and m odif

y the child support a ward. T he irreconcilable dif f erences d ivorce statute, Mississippi Code Annotated section 93-5-2(3) (Rev. 2013), provides in relevant part, with

our em phasis added:
No divorce shall be granted pursuant to this subsect i o n u ntil a ll m atters involving custody and m a intenance of any child of that m arriage and property rights b etween the parties r aised b y the p leadings have been either adjudicated by the court or a g r e e d u p on by the parties and found to be a dequate a nd sufficient by the court

and included in the judgm ent of divorce. ¶38. The chancellor, af

ter h e aring extensive proof , f ound that the m inim

u m provision f

or the child that would b e a dequa t e a n d s u f f icient would be $48.85 per m onth m ore than the parties had agreed. That decision m ust b e reviewed f

or an abuse of discretion – and clearly there was no abuse of d iscretion, as t he chancellor f ound the required support eq u a l t o the

am ount that is presum

ptively correct under the child-support guidelines. W hile we generally af f irm agreem ents to pay more s upport than required, and we have, at least o nce, af f irm ed

an agreem ent to pay less t han the guidelines am o unt a f t er it was approved by the chancellor ( Arrington v. Arrington , 8 0 S o. 3 d 160, 168-70 (¶¶28-36) ( Miss. Ct. App. 2012)), w e cannot

5 In f act, d u r i n g th e h earin g o n th e m o tio n f o r a n ew t rial, G ary ’s atto rn e y recited th e $ 7 7 5 .8 5 in m o n th ly

su p p o rt o rd ered b y th e co u rt, w ith o u t raisin g a n y co m p lain t ab o u t th e am o u n t. 1 4f

ind an abuse of discretion here. It is axiom atic t hat child s uppor t i s f or the benef

it of the child and c annot be bargained away b y the custodial parent. See, e.g., Durr v. Durr , 912 So. 2d 1033, 1 0 3 8 ( ¶ 1 4 ) (Miss. C t. App. 2005). The chancellor rightly ref u sed to accept a proposed agreem ent that did not provide adequate and suf f icient support f

or the child. ¶39. Gary contends that the divorce judgm ent m ust be m odif

ied to the lower num

ber the parties had o riginally agreed. But, as we explained above, the chancellor did not abuse her discretion in rejecting the proposed agreem ent. If Gary contends that the chancery court did

not have his consent t o resolve the child-support issue, the only r em edy that this Court could award o n appeal is to set aside the divorce, as no divorce can be entered w i t h o u t a f inding of an adequate and s uf

f icient agreem ent or consent to subm it the issue t o the court. See Miss. Code Ann. § 93-5-2(3). G ary h as never asked that the divorce be set aside. Thus, even if this issue were not procedurally barred, Gary

is entitled to no relief

he has requested. ¶40. T H E J U D G M ENT OF THE H ARRISON COUNTY CHANCE R Y C O U R T , SECOND JUDICIAL DISTRICT, IS AFFIRMED. ALL C OSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., I R V I N G, P .J., B ARNES, I SHEE AND JAMES, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE W R I T T EN OPINION. CARLTON, J., CONCURS IN PART AND DISSENTS I N PART WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., AND GREENLEE, J. CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART: ¶41. Because I w ould f

ind that the chancellor erred by a w a r ding L ori a g reater am ount o f

c h i l d support than the am ount agreed to in t he parties’ “Consent to Adjudicate,” I would

1 5reverse and render w ith respect to that issue. I theref ore concur in part and di s s e n t i n p a rt f rom the m ajority ’ s opinion. ¶42. G a r y a r g u e s that the chancellor e rred by a w a r ding Lori $775.85 a m o nth in chi l d support until the couple’s daughter reached the a g e o f m ajority

. Gary contends that the parties never subm itted the issue of child support to t he chancellor f or a djudication since they had a l r e a d y agreed t o the m onthly am ount of $727 in their “Consent t o A djudicate.” On appeal, Gary asserts th a t t h e c hancellor’s a c tion of unilaterally i ncreasing the m onthly

am ount of child support exceeded her authority since t he parties never c onsented to subm it this issue t o the chancellor f or her determ ination as r equired by M ississippi Code Annotated section 93-5-2(3) (Rev. 2013). ¶43. I n S

a n f o r d v
. Sanford , 124 So. 3d 647, 648 (¶1) (Miss. 2013), the s upre me c o u r t recognized that M ississippi statutory law provides t wo distinct paths f or a couple seeking an irreconcilable-dif

f erences d ivorce. Under the f irst option, the couple c an “provide a written
agreem ent settling the custody and m aintenance of any children of the m a r riage and property rights; if the chancellor deem s the term s adequate and suf f icient, he o r she m ay incorporate the agreem ent in the judgm ent and grant a divorce.” Id. (citing Miss. C ode A nn. § 93-5-2(2) (Rev. 2013)). ¶44. Under the s econd option f or an irreconcilable-dif

f e r ences divorce, a couple consents
to allow the chancellor to d ecide certain disputed issues. Id. ( citing Miss. Code Ann. § 93-5- 2(3)). “The consent m

ust: (1) be in a writing signed by both parties; (2) state that the couple

1 6voluntarily agr e e s t o p e rm it the chancellor to decide the issues designated in their written

consent; and (3) state that the parties unders t a n d t hat the chancellor’s decision will be binding and lawf

ul.” Id. Following the parties’ consent p ursuant t o section 93-5-2(3), “[ a]ll

m atters i nvolving the custody a nd m a intenance of any children of the m arriage and property rights m ust then be either adjudicated b y t he chancellor or agreed upon b y th e parties and deem ed adequate and suf f i cient bef ore a divorce can be granted.” Id. ¶45. The second option f or an irreconcilable-dif

f erences divorce, as set f

orth in section 93- 5-2(3), applies to t he instant appeal. The r ecord ref lects that, i n accordance with s ection 93- 5-2(3), Gary and Lori agreed to subm it only certain issues to the chancellor to a djudicate, and they pr o v i d ed no consent to perm it the chancellor to adjudicate child support. 6 W hile the

c hancellor acknowledged the parties’ p rior a greem ent on the a m ount o f child sup p o r t , s h e still f ound that she r etained the authority to determ ine t he adequacy a n d s u f f i c iency of the agreed-upon am ount. As p r e v iously stated, the c hancellor m ade this f i nding despite the parties’ lack of a “Consent to Adjudicate” this issue as required by section 93-5-2(3). Upon f inding t hat the child-support a m o unt f ailed to satisf

y “ the statutorily required m inim um of 14% of Gary ’ s adjusted gross incom e,” t he c h ancellor increased Gary ’s m onthly childsupport pay

m ent f rom $727 to $775.85. ¶46. “Divorce in Mississippi is a creature of statute. Original jurisdiction to grant divorces

6 S ee M iss. C o d e A n n . § 9 3 -5 -2 ( 3 ) (estab lish in g th at p arties m ay co n sen t to an irreco n cilab le-d if

f eren ces d iv o rce an d m a y p erm it th e ch an cello r to d ecid e an y issu es u p o n w h ich th e y

can n o t ag ree). 1 7in this S tate was vested in t he legislature[ ,] and the s u bsequent jurisdiction of the chancery

court over divorce is derived f rom the assignm ent of that authority to the c hancery court by the legis l a t u r e .” Massingill v. Massingill , 5 94 So. 2d 1173, 1175 ( Miss. 1992). Upon review, I would reverse and render the chancellor’s judgm ent as to the issue o f c hild support since the parties never subm i tted the issue to h er f or a djudication as required by section 93-5- 2(3). 7 In the parties’ “Consent to Adjudicate,” they agreed Lori would receive $727 a m onth in child support, a nd a s stated, t h e y n e ver subm i tted the issue to the chancellor f or adjudication. See M i ss. Code Ann. § 93-5-2(3). 8 T h e r e f o re, t he chancellor erroneously adjudicated the issue b y changing the am ount o f s upport w i thout the parties’ consent to adjudicate. See Finch v. Finch , 137 So. 3d 227, 237 (¶33) (Miss. 2014) (f inding that child support was ordered pursuant to the p a r t ies’ agreem e nt in their consent t o a d judicate and could not be m odif

i ed absent a m aterial change in circum stances). ¶47. In addition to f

inding no “Consent to Adjudicate” child support i n the record, I also acknowledge that the record shows Gary f iled a posttrial m o tion to reconsider and f or a new trial. See M.R.C.P. 59. Accordingly , I would reverse t he c hancellor’s award of child support since the parties subm itted no “Consent to Adjudicate” that issue in t h is irreconcilable7 D iv o rce statu tes m

u st b e strictly co n stru e d

. S e e M a ssin g ill , 5 9 4 S o . 2 d at 1 1 7 8

. 8 S ee a lso C rid er v. C rid er , 9 0 4 S o . 2 d 1 4 2 , 1 4 5 -4 8 (¶¶7 -1 5 ) (M iss. 2 0 0 5 ) (d iscu ssin g th e irreco n cilab le-d if

f e ren ces d iv o rce statu t e).

1 8dif

f erences divorce action. 9 I w ould a lso render as to this issue and order that the am ount of child support r ef

lect $727, w h i c h constitutes the am ount agreed to by the parties in their
“Consent to Adjudicate.” I theref ore concur in part and dissent in part f rom the m ajority ’s opinion. GRIFFIS, P.J., AND GREENLEE, J., JOIN THIS OPINION.

9 S e e S h o rt v. S h o rt , 1 3 1 S o . 3 d 1 1 4 9 , 1 1 5 2 (¶1 0 ) (M i ss. 2 0 1 4 ); M i ss. C o d e A n n . § 9 3 -5 -2 ( 3 ). S

e e a l s o B o u g a r d v
. B o u g a rd , 9 9 1 S o . 2 d 6 4 6 , 6 4 9 -5 0 (¶1 9 ) (M iss. C t. A p p . 2 0 0 8 ) (f in d i n g th at th e ch an cello r an d th e p arties w ere b o u n d b y th e p arties’ ag r eem en t ). 1 9