IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-01731-COA MARTHA G. BRADSHAW APPELLANT

v. LOYD E. BRADSHAW APPELLEE DATE OF JUDGMENT: 11/17/2017 TRIAL JUDGE: HON. D. NEIL HARRIS SR. COURT FROM W HICH APPEALED: JACKSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: MARK V. KNIGHTEN ATTORNEY FOR APPELLEE: GARY L. ROBERTS NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: AFFIRMED - 08/13/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ. GREENLEE, J., FOR THE COURT: ¶1. I n 2 0 1 7 , L o y d B radshaw was granted a divorce f rom Martha Bradshaw. Ma r t h a appeals the judgm ent of

the Jackson County

Chancery C ourt claim i ng the chancellor erred by (1) granting Loy d a divorce on the ground of adultery ; (2) deny ing her a divorce on the ground of habitual cruel and inhum an treatm ent; (3) f ailing to recuse; (4) awarding phy sical custody of the m inor child to Loy d; (5) dividing the property ; and (6) deny ing her request f or attorney ’s f

e e s . Loy d f

iled a c onditional cross-appeal. However, b ecause we af f irm the chancellor’s judgm ent, Loy d’s cross-appeal is m oot.

FACTS AND PROCEDURAL HISTORY ¶2. Loy d and Martha Bradshaw were m arried in Septem ber 1989. On February 19, 2016,L o y d f

iled a com

p l aint f or divorce, alleging uncondoned adultery and habitual cruel a n d inhum an treatm ent o r , in the a lternative, i rreconcilable dif f erences. S ubsequently , Martha f iled an answer and a counter-com plaint. In her answer, she denied the allegations against her but asserted s everal a f f i rm ative def

enses. I n her c o unter-com p laint, she requested a divorce, alleging h abitual cruel and inhum an treatm e nt or, in the alternative, i rreconcilable dif f erences. Martha a lso request e d c u s t ody of t heir m inor child, J

. B., 1 alim ony , and attorney ’s f

ees. ¶3. Af ter a hearing, on April 6, 2016, the f am ily m aster e n tered a tem porary order. Loy d and Martha were awarded t em porary legal custody o f J.B., a nd af ter a “relatively eq u a l Albright analy sis,” 2 the f

a m ily m a ster awarded tem p orary phy sical custody to Loy d. Martha

was a warded visitation with J.B. And she was awarded tem porary use and possession of the

m arital hom e. Howe v e r, s he w as ordered to pay the property taxes and m ortgage and insurance pay

m ents on the house. ¶4. Subsequently , Martha f iled a m otion to set aside the t em porary ord e r . S he asserted that the f am ily m aster p laced too m uch weight on J.B.’s pref erence when d e t e r m ining custody

. She also asserted that the order lef t h er w ith insuf

f icient f inancial resources. Af

ter a hearing, the chancellor denied Martha’s m o tion. ¶5. Trial began on March 24, 2017, and L o y d’s f irst witness was J.B. 3 Thirteen-y ear-old

1 L o y d an d M arth a h a d tw o ch ild ren : Jo rd an an d J.B . We u s e in i tials to p ro tect th e id en t ity o f th e m in o r ch ild w h o w as b o rn in 2 0 0 3

. 2 A lb rig h t v. A lb rig h t , 4 3 7 S o . 2 d 1 0 0 3 (M iss. 1 9 8 3 )

. 3 B y ag reem en t, n eith er L o y d n o r M arth a w ere p resen t d u rin g J.B .’s testim o n y . 2J.B. testif

ied t hat he had a c lose relationship with both of h is parents, but he expressed a desire to c ontinue living wit h L o y d

. A c cording to J.B., prior t o his parents’ separation, Martha w ould leave on m ost w eekends and n ot r eturn until 3:00 a.m . or 4:00 a .m ., if at all.
W h ereas Loy d had “been there all the tim e.” ¶6. Then Martha testif ied as an adverse witness. Loy d’s attorney asked M artha whether she had e ngaged in an extram arital af f air, and Martha’s attorney asserted her (Martha’s) Fif th
A m endm ent right against self -incrim ination. At that point, the chancellor grant e d L o y d a divorce on the ground of

adultery

. ¶7. Then Loy d testif

ied. According to Loy d, Martha lef t alm ost every Friday night and would not return until som etim e between 4:00 a.m . and 6:00 a.m . on Saturday , “or m ay be not

even then.” Loy d testif

ied that he never suspected that Martha was having an af f air. But on

o r about D ecem

ber 23, 2015, he received a t ext m essage that suggested otherwi s e . L o y d testif i e d that when he conf

ronted Martha in January 2016, she adm itted to being with

som eone else at least f

our or f ive tim es. According to Loy d, he was heartbroken. ¶8. Loy d m oved out o f the m arital hom e o n February 14, 2016. He t estif ied t hat he had previously inherited a double-wide trailer and approxim ately one acre o f l and (“the Big Bend property ”) f

rom his m other. According to Loy d, prior to the separation, Martha rented the property to a third party f

or a pproxim ately one y ear. Loy d testif ied that the r ent m oney was deposited into his and Martha’s joint checking account, and m oney f rom the sam e account

was used to pay the property taxes and insurance p ay m ents. Both Loy d and Martha agreed that the i ncom e f

rom renting the property was enough to cover the expenses. Loy d e xplained

3that he and J.B. did not m ove i nto the Big Bend property af ter the s e paration because it was uninhabitable. I nstead, they m oved into a rental house, and Martha rem ained in the m arital hom e. ¶9. According to L oy d, J.B. had a good relationship with both of his parents. H owever, Loy d believed that J.B.’s relationship with him w as better a n d t hat phy sical custody with h im was in J.B.’s best interest. ¶10. Af ter Loy d rested his case-in-chief , the chancellor and attorney s discussed the ef f ect of the judgm ent of divor c e o n Martha’s coverage under Loy d ’s health-insurance plan.
Because the divorce would have ef f ectively term inated M artha’s coverage, t he chancellor set the divorce a side and reserved ruling on the ground f or divorce until t he second day of trial. ¶11. The t rial resum ed s ever a l mo n t h s l a t e r o n Septem ber 15, 2017. In support of her request f or a divorce on the ground of habitual cruel and inhum an t reatm ent, Martha testif ied that Loy d was inattentive to her throughout the m a rriage. According to Martha, when Jordan

was a baby , Loy d lef

t them f or three m onths. Although Loy d returned, Martha t estif ied that the m arriage wa s n e v e r t h e sam e. Martha also t estif ied that when J.B. was a baby , Loy d would l eave them on the weekends. And according to Martha, there were s everal o ccasions when s he was h o spitalized, and Loy d visited f or brief periods of tim e. Martha testif ied that Loy d gave her the silent treatm ent f or two t o t h r e e w e eks at a tim e. And s h e testif ied that Loy d began sleeping on t he couch in Septem ber 2 015, ignoring her unless h e wanted to have

sex. ¶12. Af ter Martha rested her cas e - i n - c h i e f , L o y d m oved to dism iss Martha’s counter4com

plaint f or divorce. At that point, Martha m oved to reopen her case-in-chief s o that her sister, Lisa English, could testif y . Loy d objected t o the reopening o f Martha’s case as well

as to English’s testim o ny . According to Loy d, English was not identif ied a s a possible witness prior to t rial. However, the chancellor held Loy d’s objection s i n a b e y ance and allowed English to testif

y . ¶13. According to Martha’s sister, Loy d t reated Martha like s he owed him som e thing. She

t e s t i f i ed that Loy d a llowed M artha to take care o f every thing. And he would n ot s p e a k t o Martha f or weeks. Accor d ing t o English, Loy d’s inattentiveness caused Martha to be

em otional and withdrawn. ¶14. The chancery court e ntered its f inal judgm ent, granting L oy d a d ivorce on the ground of adultery

. Both parties retained joint legal custody of J.B. However, the c h a n c e llor determ ined that it was in J.B.’s best interest to rem ain in Loy d ’s phy sical custody . Martha

was awa r d e d v i s i t a t ion with J.B., and she was ordered to pay $430 p er m onth in child support. ¶15. T h e chancellor awarded the m arital hom e t o Martha. She was ordered t o c o n t i n u e pay ing the property taxes and m ortgage and insurance pay m ents o n t he house. The m arital hom e was appraised at $80,000, with the secured indebtedness o n the h ouse totaling $67,830.87. The equity in t he m arital hom e was theref ore $ 12,169.13. M artha was awarded half of Loy d’s 401k account valued at $188,589.88, e qualing $94,294.94. The chanc ellor then r educed that award b y the equity in the m arital hom e, or $12,169.13, o rd e r i n g that Martha receive $82,125.81 f rom the 401k. She was a lso awarded half of Loy d ’s retirem ent

5security p l an. The r etirem ent security plan was valued at $170,186.54. Theref ore, Martha

was awarded $ 85,093.27. Martha was also a w arded the C hry sler Sebring valued at $4,000 and the Chevrolet Trailblazer valued at $5,000. ¶16. The c hancellor cl a s s i f i e d t h e B i g B e n d p r operty (valued at $25,000) as separate property and awarded it to Loy d. Loy d was awarded half o f his 401k ($94,294.94) plus the equity i n the m arital h om e ($12,169.13) f or a total of $ 106,464.07. Loy d was also awarded half of his retirem ent security plan ($85,093.27). And he was awarded a cam per valued at $8,000, an F-250 valued at $4,500, and an F-150 with $5,220.59 in equity

. 4 ¶17. W i th respect to the d ebts, Loy d was o rdered t o pay the “ Handy line debt,” and Martha was ordered to pay

the “Keesler debt.” 5 Otherwise, both parties were responsible f or their

own d ebts. Loy d was ordered to provide healt h

- i n s u r a n ce coverage to Martha f or six

m onths. And the chancellor denied Martha’s requests f or alim o ny

and attorney ’s f

ees. ¶18. Subsequently , Martha f ile d a m o t i o n fo r r e c o n s i d eration, alleging that the chancellor’s ruling was contrary to the overwhelm ing w eight of t he evidence. The court denied Martha’s

m otion, a n d she f

iled her notice of appeal. Shortly thereaf t er, L o y d f

i l e d his notice of a cross-appeal. STANDARD OF REVIEW ¶19. “This Court’s standard of review i n dom e stic-relations m atters i s extrem ely lim ited.” Stuckey v. W

aid , 195 So. 3d 872, 875 (¶13) (M i s s . Ct. App. 2016) ( quoting Phillips v.

4 T h e F -1 5 0 w as v alu ed at $ 3 3 ,8 9 0 ; h o w e v er, th ere w as a $ 2 8 ,6 6 9 .4 1 lien o n it.

5 T h e p arties’ u p d ated R u le 8 .0 5 d isclo s u res i n d icate th at t h e a m o u n t of t he H an d y l in e d eb t w as $ 1 ,9 3 3 .2 6 , an d th e am o u n t o f th e K eesler d eb t w as ap p ro x i m a tely $ 3 6 , 0 0 0

. 6Phillips , 45 So. 3d 684, 692 (¶23) (Miss Ct

. A p p . 2010)). “W e ‘will not disturb the

chancellor’s opinion when supported by substantial evidence unless the chancellor abused [ his] d iscretio n , w a s ma n if estly wrong or c learly erroneous, or applied an erroneous legal [ standa r d ]

. ’ ” I

d

. (quoting Samples v. Davis , 9 04 So. 2d 1061, 1064 (¶9) (Miss. 2004). However, questions of law are reviewed de novo. Id

. DISCUSSION
I. Whether t he chancellor erred by granting Loy d a divorce on t he ground of adultery . ¶20. “Adultery m a y be proven by either direct evidence or, b ec a u s e o f its ‘secretive nature,’ circum stan t i a l evidence.” I d

. at 875 (¶14) ( citing Dillon v. D illon , 498 So. 2d 328, 330 ( M iss. 1986)). “To prove adultery by circum stantial evidence, the plaintif f m ust provid e clear and convincing evidence s upporting a f i nding of : (1) an a dulterous inclination, and (2)

a reasonable opportunity to satisf y that inclination.” I

d

. (citing Atkinson v. Atkinson , 11 So. 3d 172, 177 (¶20) (Miss. Ct. App. 2009)). W hen a chancellor m isperceives the correct legal standard, the e rror becom es one of law and is reviewed de novo. Brooks v. Brooks , 652 So. 2d 1113, 1117 (Miss. 1995). ¶21. Here, the chancellor m a de the f ollowing f

indings of

f act and conclusions of

law: At the trial, L oy d testif ied that he believed that M a r tha was having an extram arital af

f a ir during th e m a rriage. W hen questioned about this af f air, Martha p led the Fif

th Am endm ent and ref

u s e d t o a nswer. Loy d also propounded interrogatories to Martha in which he a s ke d her to nam e the individuals w ith which she had sexual r elations during the m arriage. (Exhibit No. 1). Martha also invoked he r Fif t h A m endm ent rights in her response to this interrogatory

. The Mississippi Suprem e C ourt has h eld t hat s om eone ref using to answer questions about a n a l l e g e d af f air is clear and convincing evidence suf

f icient to satisf

y the evidentiary requirem ent to prove adultery

.
7Brooks v. Brooks , 652 So. 2d 1113, 1118 (Miss. 1995).

¶22. W e f

ind the chancellor m isperceived the c o r r e c t l e g a l standard. In Brooks , Jane testif i ed t hat h er h usband, Robert, had g iven num erous gif ts t o another wom an—Beverly

. Id . Jane also believed she had e nough evidence to prove that Robert had b een involved in

an adulterous relationship w ith y et another wom an—Phy llis. Id

. “ At trial, when R obert was asked about the alleged relationship with Phy llis

. . . , he pled t he Fif th Am e ndm ent and ref used t o answer.” Id

. Our suprem e court held that “the u ncontradicted evidence prof f ered by Jane was suf

f icient to satisf

y the evidentiary c riterion

. . . tha t requires clear and convincing proof of R obert’s adulterous inclinations.” Id

. The Mississippi Suprem e Court did not hold that Robert’s refusal to answer questions was clear a n d convincing evidence that he com m itted adultery or had adulterous i nclinations. Rather, the court held that the uncontradicted evidence proffered by Jane w as suf f icient evidence. Concerning a witness’s “taking the Fi f

t h ” i n c i vil cases, the trier of f act m ay d

raw an adverse inf

erence f rom a def endant’s ref

usal to testif

y . Gibson v. W

right , 870 So. 2d 1250, 1260 ( ¶42) (Miss. Ct. App. 2004). However, we have f ailed to f ind a case t h a t a l l o w s a d ivorce to be granted based solely on that inf

e rence. ¶23. Although the chan c e l l o r i n t h i s c a s e initially g ranted Loy d a divorce based on Martha’s ref

usal to answer questions, that judgm e nt of divorce was set aside. And although the chancellor’s f

inal judgm ent indicated that t he divorce was granted f or the sam e reason, af ter reviewing the record d e n o v o , we f ind that s ubstantial evidence exists to sustain a divorce granted on the ground of adultery by clear and convincing evidence.

8¶24. A t t r i a l , J

. B. testif ied that his m other would leave at night and not ret u r n u n t i l 3 : 0 0 a .m . or 4:00 a.m ., i f at all. Sim ilarly , Loy d testif i ed that Martha would leave a l mo s t
every Friday night and not r eturn until som etim e between 4:00 a.m . and 6:00 a.m . on Saturday

. Loy d also tes t i f i e d t h a t in January 2016, h e questioned Martha about having an af f air, and she adm itted to being w ith som e one e l se at least f our or f ive tim es. W e f

ind that the adverse inf

erence f rom Martha’s ref

usal to testif

y com bi ned with the uncontradicted evidence p rof

f ered by Loy d as corroborated by J.B. was suf f icient to p rove M artha’s adultery by clear and convincing evidence. ¶25. Martha a lso asserts that becaus e the c hancellor granted a divorce im m ediately af ter

s h e p led the Fif

th Am endm ent, she was prevented f rom raising af

f i rm ative def

enses . However, as discussed, the c hancellor’s initial judgm ent of d ivorce was set aside on March 30, 2017. During the second day of trial, on Septem ber 15, 2017, Martha t estif ied as to why she believed s he w as entitled to a divorce on the ground o f habitual cruel a n d i n h u m an
tre a t m e nt. For Martha to now assert that s he was unable t o raise af f irm ative def

enses to adultery is disingenuous. This issue is without m e r it.
II. Whether the c hancellor erred by failing to grant Martha a divorce on the ground of habitual cruel and inhum an treatm e nt. ¶26. This Court has held that [ h ] a b i t u a l cruel and i nhum an treatm e nt m ay be established by a showing of conduct that either (1) endangers l if e, lim b or health, or creates a r easonable apprehension of such d anger, r e n d e r ing the relationship unsaf e f or the p arty seeking r elief

, or (2) is s o unnatural and i nf am ous a s to m ake the m arriage revolting to the non-of

f ending spouse a nd r ender i t im possible f or that s pouse t o d i s c h a rge the duties of m arriage, thus destroy ing the b asis f or its continuance.

9Tedford v
. Tedford , 856 S o. 2d 753, 756 (¶11) (Miss. Ct. App. 2003). The of f ended spouse

m ust prove habitual cruel and inhum an treatm e nt by a preponderance of

the evidence. I

d

. ¶27. This case d oes not require an analy sis of the “danger” part of

the habitual cruel and inhum an treatm ent test. Martha did not testif y that Loy d’s conduct rendered the relationship unsaf e. Theref ore, this Court m

ust determ i ne w hether the e v idence supports the g ranting of a divorce under the “unnatural and inf am ous” part of

the test. ¶28. On appeal, Martha argues that Loy d’s i n a t t entiveness throughout the m a rriage was enough to establish habitual cruel and inhum a n treatm ent. At trial a n d on appeal, Martha asserted t hat when Jordan w as a b aby , Loy d lef t f o r approxim ately three m onths. Although the m arital relationship resum e d, she stated t hat it was “never really the sam e.” Martha also asserted that when J.B. was a baby , Loy d would leave them o n the w eekends. According to Martha, there w ere several occasions when she was hospitalized, and Loy d visited f or brief

am ounts o f t i me . Martha testif i ed that Loy d gave her t he silent treatm e nt f or t wo to three weeks a t a tim e throughout t he entire m a r r iage. And s he testif i ed t hat in Septem

ber 2015, Loy d began sleeping on the couch, ignoring her unless he wanted to have sex. ¶29. “[ I]t is well settled that ‘m ore than m e re unkindness or rudeness, or incom patibility

or w ant of af

f ection is r equired to support a f inding of cruel and inhum a n treatm ent.’” Id

. at 756 (¶13) (quoting Shor t e r v
. Shorter , 740 So. 2d 3 52, 357 ( ¶24) (Miss. Ct. App. 1999)). Loy d’s conduct does not rise t o the level of “ u n n a t u r al and inf am o us” behavior, which supports a granting of divorce. I d. at (¶11). Accordingly , we f ind t hat the chancellor did not abuse his discretion by deny ing Martha a d i v o r c e on the ground of habitual cruel and

1 0inhum an treatm ent.

¶30. Martha also asserts t hat where both parties are at f ault the chancellor m

ust determ ine which party ’s conduct was the proxim ate cause of the deterioration o f the m a rital relationship and the d ivorce itself

. However, the chancellor determ ined that only one party was at f ault in this case—Martha. Theref ore, this issue is without m erit.
III. Whether the chancellor should have recused. ¶31. Martha claim s the chancellor was not im partial and should have recused sua sponte af ter g ranting Loy d a divorce on the ground o f a d ultery on March 24, 2017. She a sserts that

s he w as punished f

or p l eading the Fif

th Am endm e n t. And she contends that add i t i o n a l evidence of the chancellor’s partiality “surf aced when

. . . [ he] challenged [ her] concerning her hearing disability

. ” 6 ¶32. It is well established that “[ a] judge is required to disqualif y him self if a reasonable
person, k nowing a ll the circum stances, would harbor d oubts about his im partiality .” Tubwell

v. G rant , 760 So. 2d 687, 689 ( ¶7) (Miss. 2000) (quoting Jenkins v. Forrest Cty. G en. Hosp ., 542 So. 2 d 1180, 1 181 (Miss. 1988)). This Court “presum es t hat a trial judge is qualif ied and unbiased, and t his presump t i o n ma y only be overcom e by evidence which produces a reasonable doubt about the validity of the presum ption.” Id

. (citing Bredemeier v. Jackson , 689 So. 2d 770, 774 (Miss. 1997)). “The decision to r ecuse or not to recuse is one lef t to the

6 D u rin g M arth a’s testim o n y , t h e co u rt rep o rter ask ed h er to sp eak u p . M arth a stated t h a t s h e s p o k e q u ietly b ecau se s h e h ad a h earin g im p airm en t an d w o re h earin g aid s. T h e ch an cello r to ld h er, “I w ear h e arin g aid s to o . A n d y o u can sp eak u p . . . . T h a t’s n o t a g o o d reaso n .” A f

ter s o m e ad d itio n al d iscu ssio n , th e ch an cello r s t ated , “I ’ m so r ry , b u t I’m d isco u n tin g y o u r reaso n . In o th er w o rd s, I d o n ’t b eliev e it. S p eak u p .” 1 1s o u n d d i scretion of the trial judge, so long as he applies the correct l egal standards and is

consistent in the a

pplication

. ” I

d

. ( q u oting Collins v. Joshi , 611 So. 2 d 898, 902 (Miss. 1992)). ¶33. Here, Martha d id not f ile a m otion asking f

o r the c hancellor to recuse. This argum ent

was not raised until her appeal. Our suprem e court h as stated t hat “it will not allow a party
to take [ h er] chances with a judge about whom [ she] knows of grounds f or recusal and then, af ter [ s he] loses, f

ile [ her] m otion.” Id . at (¶8). “W h ere the party knew of the grounds f or the m otion or with t he exercise of reasonable diligence m ay h ave discovered those grounds, and w here that party does not [ f ile a t im ely m otion], the point will b e deem ed waived.” Id

. Nothing prevented Martha f rom f iling a tim e ly m otion to recuse. Theref o re, we f ind that Martha waived this issue.
IV. Whether the chancellor erred by aw arding phy sical c ustody of J.B. to Loy d. ¶34. The M ississippi Suprem e Court has established tha t “ [ t ] he best interest of the child is p aram ount i n any child-c u s t o d y case.” R oberts v
. Eads , 235 So. 3d 1 425, 1428 (¶12) (Miss. Ct. App. 2017) (quoting Smith v. S mith , 97 So. 3 d 4 3 , 46 ( ¶8) ( Miss. 2012)). In determ ining a child’s best interest, the chancellor considers the f ollowing f

actors: (1) the child’s age, health, and sex; (2) the parent with t he c ontinuity of care prior to the s eparation; ( 3 ) t h e parent with the best parenting s kills a nd the willingness and capacity to provi de prim ary c hild c are; (4) the parents’ em ploy m ent and th e responsibilities o f that em ploy m ent; (5) the parents’ phy sical and m ental health an d age; (6) the em otional ties of the parent and child; (7) the parents’ m oral f itness; (8) the c hild’s ho me , s c hool, and com m unity record; (9) the child’s pref erence at the age suf

f icient to express a p ref erence by law; (10) the stability of the parents’ hom e environm ents and e mp loy m ent; a nd (11) other f

actors relevant to the parent-child relations h i p .
1 2Id . (citing Albright , 437 So. 2d at 1005).

¶35. This Court has noted that “[ a]n Albright analy s is is not a m a them atical equation.” Id

. at (¶13) (quoting H

all v. H all , 134 So. 3d 822, 827 (¶19) (Miss. Ct. App. 2014)). W e “cannot reweigh t he evidence and m ust def er to the chancellor’s f

actual f indings so l ong as they are

su p p o r t e d by substantial evidence.” Id

. Although “the Albright f actors are im

portant,

. . . the chancellor has the ultim ate discretion to weigh the evidence the way he sees f it.” Id

. ¶36. Martha c laim s the c hancellor m isapplied s e veral Albright f actors. Specif

ically , she contends that the chancellor e rroneously f ound that the e m

ploy m ent of t h e p a rents as well

a s t he hom e, school, and com m unity record of the child were neutral f actors. She a l s o contends that the chancellor erred by f i nding that the c ontinuity -of

- care and parenting-skills f actors f avored L oy d. And she beli eves the chancellor placed too m uch weight on J.B.’s pref erence to live with Loy d.

a. Em ploy m ent of the Parents ¶37. In the f

inal j u d g me n t , t h e c h ancellor m ade the f ollowing f

indings w ith respect to Loy d’s and Martha’s em

ploy m ent: M a rtha works f

o r C harter [ F]inancial as a f inancial a d vis[ o]r. She g o e s t o work

. . . around 9:15 a .m . . . . and co me s h o m e a t 4 : 3 0 p .m . It is not a fulltim e job. Loy d works as a s ervicem an and underground technician f or S inging River Electric Power Association. He w o rks f rom 8:00 a.m . to 5 :00 p .m . f ive day s a w eek. Neither Loy d nor Martha’s em ploy m ent prevent[ s] them f

rom caring f or the m inor child. This f actor f a vors neither party

. ¶38. Martha asserts that the chancellor did not consider her f lexib l e w o r k s c hedule. At trial, Martha t estif

ied that she c ould set her own h ours. However, Loy d testif ied that his job

was f lexible a s well. Af

ter reviewing t h e r e c o rd, we conclude that substantial evidence

1 3supports the chancellor’s f inding that this f

actor f avors neither party

. b. Hom e, School, and Com m unity Record of the Child ¶39. W i th respect to J.B.’s hom e, school, and com m unity record, the chancellor m ade the f ollowing f

indings: [ J.B.] m a kes As and Bs a nd som etim es Cs in s c h o o l

. He is a m em b er of his school’s golf team

. Both p arties have extended f am i ly in the area that [ J.B.] m ay visit with at his leisure. This f actor f avors neither party

. ¶40. Martha asserts that she was the o nly parent to t ake J.B. to church b ef ore a nd af ter the separation. However, Loy d testif i ed that he w ould take J .B. to church on W ednesday s and Sunday s when J .B. was not with Martha. Af t er reviewing the record, w e c o n c l u d e that substantial evidence supports the chancellor’s f inding that t his f

actor f a vors neither party

.

c. Continuity of Care ¶41. W i th respect to which parent had the c o n t i n u i t y o f c a r e , t he chancellor m ade the f ollowing f

indings: Loy d has had p r im ary p hy sical custody of [ J .B.] since the Tem porar y Order entered on A pril 6, 2016. Both parties testif ied that they share d t h e c h i l d[

- ]rearing responsi b i l ities equally during the m a rriage. This f actor slightly f avors Loy d. ¶42. Martha asserts that she w as J.B.’s prim ary caretaker. A t trial, Martha testif ied that she raised J.B. and “did every t hing f or [ him ].” H o wever, she adm itted that Loy d helped som e. W h en Loy d was asked w h o t he prim ary caretaker was prior to the separation, he said, “I think w e both done our equal share.” Loy d testif ied t hat h e “was alway s there” and did “whatever [ he] needed to do.” But he explained that when he of f e red t o help with J.B., Martha indicated that she would handle it. This was consistent with J.B.’s testim ony . For

1 4exam

ple, J.B. testif

ied that prior to the s eparation, his m o t h e r would take him to doctor appointm e nts, but som etim es h is f ather would com e too. Loy d w as J.B.’s prim ary caretaker af ter the separation. Af

ter reviewing the record, we c o n c l u d e t hat substantial evidence supports the chancellor’s f inding that this f

actor slightly

f avors Loy d.
d. Parenting Skills ¶43. The chan c e l l o r ma d e the f ollowing f

indings with respect t o Loy d’s and Martha’s parenting skills: [ J.B.] and Loy d testif

ied that Martha would som etim es leave hom e on the weekends a nd not return until 4 a .m ., if she returned at all. [ J.B.] also testif ied that his m other would check him out of school of te n because he was sick. Martha f urther testif

ied that she had issues getting [ J .B.] to respect her, while Loy d stated he did not have these p roblem s with the m inor c hild. This f actor slightly f avors Loy d. ¶44. Martha asserts that J.B. becam e di s r e s p e c tf u l af ter the separation. But at trial, she adm itted that his behavior had im proved. L oy d testif

ied that he told J.B. that he needed to respect his m other and encouraged their relationship. ¶45. Martha also asserts that Lo y d a l lowed J.B. t o p lay b aseball against m e dical advice. However, at trial she test i f i e d t h a t s he was not sure what e xactly t he doctor advised. According t o Loy d, the doc t o r i n d i c a ted that J.B. needed to stay of f the baseball f

ield. So Loy d g ave the d octor’s excuse to J.B.’s coach a n d l et the coach and J.B. decide when he could play again. Loy d testif ied that M a r t h a w a s p r e sent when this occurred. And J.B. testif i ed that he did not play

baseball until he f

elt better. ¶46. Finally , Martha asserts t hat Loy d took J.B. to a golf ing event i n s t e a d o f a dental appointm e nt. However, Loy d testif ied that the appointm e n t was an orth o d o ntist’s

1 5appointm e nt, and he rescheduled the appointm ent.

¶47. This Court has held that the c h a n c e l l or is in the b est position to judge the parties’ credibility

. LeBlanc v
. Andrews , 9 3 1 S o . 2 d 6 8 3 , 688 (¶17) (Miss. Ct. App. 2006). Af ter reviewing the record, w e c o n c l u d e that substantial evidence supports the c h ancellor’s f inding that this f actor slightly

f avors Loy d.

e. Preference of the Child ¶48. W i th respect t o t he pref erence o f t h e c h i l d , t h e c h a n c e l l o r m ade the f ollowing f indings: [ Mississippi Code Annotated section] 93-11-65(1)(a) [ (Rev. 2 013)] states, “[ t]he chancellor m a y

consider the pref

e r ence of a child of t welve (12) y ears of age o r older as to the pare n t w i t h whom the child w ould pref er to live in determ ining what would be in the best interest a nd welf are of the child.” [ J.B.] has expressed a desire to live with Loy d. This f actor f avors Loy d

. ¶49. Martha ass e r t s t h a t t h e c h a ncellor placed too m uch weight on J.B.’s pref erence. However, the record does not support Martha’s claim

. The c h a n c e llor considered the relevant A lbright f

actors, and there is no indication that the chancellor placed undue weight on this f actor. Theref

ore, this issue is without m erit.
V. Whether the chancellor erred in his division of the property . ¶50. Martha m ak e s a n u m b e r o f c l a i ms regarding the chancellor’s classif ication and division of

the property

. For clarity , we address these claim s together. ¶51. “W hen dividing m arital property , chancellors are directed to (1) classif y the parties’
assets as m arital or separate; (2) determ ine the value of t hose assets; (3) divide the m arital
estate equitably b a s ed u

pon the f a ctors set f

orth i n Ferguson [ v. Ferguson, 639 So. 2d 921

1 6( Miss. 1994)]; and (4) consider the appropriateness of alim o ny i f e ither party is lef t with a def iciency .” Baker v. Baker , 250 So. 3d 502, 5 05 (¶7) ( Miss. Ct. App. 2018) (quoting Ewing v. Ewing , 203 So. 3d 707, 711-12 (¶11) (Miss. Ct. App. 2016)). ¶52. First, Martha claim s the chancellor e r red by c l a s s i f

y i n g t h e B ig B end property as separate property

. I n the alternative, she argues that the Big B end property w as converted f rom separate property

to m arital property . Separate property , such as an inheritance, m ay lose its s tatus as s u c h if the party com m ingles the asset with m arital property o r uses i t f or f am ilial benef

i t. McKissack v. M

cKissack , 45 So. 3d 716, 720 (¶18) (Miss. C t. App. 2010). ¶53. However, in Marter v. Marter , 95 So. 3d 733 (Miss. Ct. App. 2012), the a p p e l l a nt argued that the chancellor erred by classif y i ng his wif

e’s sixty acres of inherited property as her s eparate property

. Id

. at (¶11). In support of his argum ent, h e pointed to “his

m aintenance of

the property , the f

act that the property [ was] titled jointly , and the f act that he paid the property taxes f rom the couple’s joint checking account.” Id

. at 737 (¶14). This Court noted that the m aintenance e f f orts, which included occasional bush hogging, were de mi n i mis. Id

. at 738 (¶14). This Court also was not persuaded that the s eparate p r o p e r t y converted to m arital by virtue of j oint t itling. I d . at (¶15). A nd this Court noted that it had previously h eld that “property -tax pay m ents are traceable and do not transm u te separate property into m arital.” Id

. at (¶16) (citing Brock v. Brock , 906 So. 2d 8 79, 888 (¶50) (Miss. Ct. App. 2005)). ¶54. In this case, Loy d inherited the Big Bend property f rom his m o ther. The deed ref l ects that the property was convey ed to L o y d a n d h i s m other as j oint tenants with f ull rights of

1 7survivorship. According to L o y d, his m other died in 2011 or 2012. P rior to Loy d and

Martha’s s eparation, Martha rented the property to a third party f or a p proxim a tely one y ear and deposited the rent m oney i nto their joint checking account. Martha used m oney f rom the

sam e a ccount to pay the i nsurance pay m ents a n d property taxes on the house. B oth Martha and Loy d agreed that the i ncom e g enerated f rom renting the property was suf f icient to cover th e e x p enses. In addition to renting the property , Martha testif ied that she cleaned the property

. Because Martha’s cleaning was m i nim a l, and her contributions b y pay i ng property
taxes and insurance are readily traceable, we f ind that t he chancellor properly classif ied the Big Bend property

as separate property

. ¶55. Next, M artha asserts that the chancell o r e r r ed by deducting the am ount of equity in the m arital hom e ($12,169.13) f rom h e r f if ty -percent share of Loy d’s 401k. However, in dividing the property , the chancel l o r c o n s i d e r e d a l l o f t he relevant Ferguson f

actors including the parties’ contributions t o t he stability and harm ony of the m arital and f am i ly r elationship. Af ter reviewing the record, we cannot say that the chancellor’s ruling wa s a n abuse of discretion. ¶56. N e x t , M a r t h a claim s the chancellor gave her a disproportionate am o unt of d e b t

. However, the parties s ubm itted original and revised f i nancial disclosures. And according to the revised d isclosures, the only joint debts were t he Keesler Federal Credit Union debt and the Handy line debt. The rem aining d ebts were separate. The chancellor ordered M artha to
pay the K e e s l e r debt as it was tied to the s econd m ortgage on the m arital hom e . And the chancellor ordered L o y d to pay the Handy l ine debt. O therwise, the chancellor ordered that

1 8b o t h Loy d and Martha were responsible f or their own debts. The chancellor’s r uling w a s consistent with this Court’s h olding that “[ s]eparate property is not subject t o equitable distribut i o n . ” Brown v. Brown , 797 S o. 2d 2 53, 256 (¶6) ( Miss. C t. App. 2 001) (citing Ferguson , 639 So. 2d at 929). ¶57. Fi n a l l y , M a r t h a c l a i ms t h a t t h e chancellor should have awarded her alim ony . However, “[ i]t is l ong[ -]standing law in Mississippi that f ailure to c ite relevant a

u thority in support of

an issue obviates the appellate court’s obligation to review the issue.” Evans v.
Evans , 912 So. 2d 184, 188 (¶12) (Miss. Ct. App. 2005) (citing Mann v. Mann , 904 So. 2d 1183, 1 185 (¶12) (Miss. Ct. App. 2004)). Because Martha did not cite any relevant authority in support of

her claim , we decline to review this claim on appeal.
VI. Whether the chancellor erred by deny ing Martha’s request for attorney ’s fees. ¶58. Martha cla i ms t h a t the chancellor should h ave awarded her attorney ’s f ees. “The award of attorney s’ f

e es in divorce cases is generally lef t to the discretion of the chancellor

. . . .” Daigle v. Daigle , 626 So. 2d 140, 147 ( Miss. 1993). “It i s well-established that ‘when a party is able to pay

attorney ’ s f

ees, award of

attorney ’s f

e es is inappropriate.’” Lenoir v.
Lenoir , 6 11 So. 2d 200, 2014 (Miss. 1992). “ T he party requesting a t torney ’s f ees has the burden of [ proving his or her inability t o p a y ].” Deen v. D een , 856 S o. 2d 736, 7 49 (¶16) (Miss. Ct. App. 2003). ¶59. At trial, Martha testif ied that she did not have the m oney to pay her a ttorney ’s f

ees, and t he bill f

rom h er attorney was adm itted into e vidence. However, according to her own calculations, Martha has over $250,000 in assets. Because there is insuf f icient evidence in

1 9the record that Martha was unable to pay her attorney ’s f ees, we f ind that the chancellor did
not abuse his discretion in deny i ng her request f or a ttorney ’ s f

ees. See Ilsley v. Ilsley , 160 So. 3d 1177, 1184 (¶20) (Miss. Ct. App. 2014). This issue is without m erit.
VII. Whether the chancellor erred by allow ing Martha to reopen her case and adm itting Lisa English’s testim ony . ¶60. In his cross-appeal, Loy d claim s that t he chancellor e r r e d b y a l l o w i n g M a rtha to
reopen her case. He also claim s that t h e chancellor erred by allowing English to testif y b e c a u s e s he had not been identif i ed as a possible witness prior to trial. However, L o y d ’ s cross-appeal is conditional i n that he asks this Court to c o n s ider his claim s only if we f ind

m erit to any

of Martha’s claim s. Because we af f irm , this issue is m oot. ¶61. AFFIRMED. CARLTON AND J. W ILSON, P . J J . , W E S T B R O O K S , T I N D E L L , McDONALD AND C . WILSON, JJ., CONCUR. McCARTY, J., SPECIALLY C ONCURS WITH SEPARATE W RITTEN OPINION. BARNES, C.J., CONCURS IN PART AND IN THE RESU L T W ITHOUT SEPARATE W RITTEN O P I NION. LAWRENCE, J., NOT PARTICIPATING. McCARTY, J., SPECIALLY CONCURRING: ¶62. Alm ost im m ediately u pon the start of this trial, it went awry . Af ter a series of

routine questions about what the wif e did all day at h er job, the husband’s lawy e r asked, “ Have y ou had an extram arital relationship, since y our m arriage to m y client? ” ¶63. This is a divorce case, a nd the husba n d f i l e d t h e a c t ion o ver a y ear prior to that question based u

pon an a llegation of adultery , so t here is nothing surprising about that line of inquiry

. ¶64. But the wif

e’s counsel o bjected a nd stated t hat he w ould be “ i nstructing m y client not

2 0to a nswer it a n d to assert her privilege under the Fif t h Am endm ent.” The objection was because i n his view t hat “[ a] n extram arital af f air would be considered adultery w hich is a crim inal of

f ense under Mississippi Law[

. ]” ¶65. The trial court had a f e w dif f erent options at this point. ¶66. The court could h a ve sustained the objection and allowed the witness to rem ain silent (since the objection is wrong, as there is no crim e against adultery i n general). 7 ¶67. Or the court could have overruled the objection and p roceeded to require the witness to testif y (since it was unlikely

that the wif

e was going to be prosecuted f or adultery ). 8 ¶68. The court could have also just told the parties to m ove along, since adultery or the lack of it was a param o unt issue in the trial. 9

7 It is u n law f

u l co h ab itatio n co n

j o in ed w ith m o re th an a sin g le a ct o f ad u ltery th at is a crim e— a m i s d e me a n o r. M iss. C o d e A n n . § 9 7 -2 9 -1 (R ev . 2 0 1 4 ); see M iss. D ep ’t o

f Wild life, F

ish eries & P a rks v
. B ra d

sh a w , 1 9 6 S o . 3 d 1 0 7 5 , 1 0 8 5 (¶2 6 ) (M iss. C t. A p p . 2 0 1 6 ) (h o ld in g t h at th ere is n o g en eral crim e o f ad u ltery , b u t th at th e C o d e p ro h ib its co h ab itatio n w h en th ere is a “h ab itu al . . . lay in g to g eth e r”).

8 T h ere h av e b een p ro s ec u t i o n s f o r ad u ltery , b u t w e d o n o t s e e rep o rted cases o n it lately

. S ee R a t cliff v. S ta t e , 2 3 4 M iss. 7 2 4 , 7 2 8 , 1 0 7 S o . 2 d 7 2 8 , 7 2 9 (1 9 5 8 ) (ex am in in g th e law an d th e co ro llary p ro h ib i tio n o n m a rriag e b etw e en b lack s an d w h ites, w h ich u n lik e th e co h ab itatio n crim e, w as a f elo n y p u n ish ab le w ith 1 0 y ears); H o u sley v. S ta te , 1 9 8 M iss. 8 3 7 , 8 3 9 , 2 3 S o . 2 d 7 4 9 , 7 4 9 (1 9 4 5 ) (af f irm in g d u al co n v ictio n s f o r u n law f u l co h ab itatio n ).
A l th o u g h it is easy to see t h e o b j ectio n as g am esm an sh ip , w e h av e r em in d ed th e B ar n o t to o lo n g ag o “th at co h ab itatio n b etw een p erso n s n o t m arried to e ach o t h er is a g ain st th e law i n M i ssissip p i,” an d w h ile “th is law is f req u en t ly b ro k e n h a s b een reco g n i zed b y th e su p rem e c o u rt,” it rem ain s o n th e b o o k s as a crim e. S u ll i v a n v
. S t r i n g er , 7 3 6 S o . 2 d 5 1 4 , 5 1 6 -1 7 (M iss. C t. A p p . 1 9 9 9 ). We ru led th ere th at “[ c] o m m issio n o f crim es b y a cu sto d ial p aren t, ev en if th ey are o n ly ab o u t sex , i s p ro p erly t h e co n cern o f a ch an cello r,” alth o u g h it sh o u ld b e ad d ed th at th e w eig h t acco rd ed to it is lef t to th e trial co u rt. Id

. 9 T h e sam e in co rrect o b

j ectio n w as lo d g ed in M

cD o n a ld v. M

cD o n a ld , 6 9 S o . 3 d 6 1 , 6 6 ( M iss. C t

. A p p . 2 0 1 1 ). We n o t ed in p assin g th at w e w o u ld “ d eclin e to ad d ress th e 2 1¶69. Instead, the trial court determ ined as f ollows:
THE COURT: W ell, I’m going t o f i nd against her on it. That’s f ine. She can do that [ r em ain silent]. I s y our c li e n t s u ing f or a divorce o n the grounds of adultery ? MR. ROBERTS: My

client is, y es, sir.
THE COURT: W ell, then, I will grant a divorce on the grounds of adultery

. Alex, go ahead and ty

pe up a judgm ent, and I will go ahead and enter that. ¶70. The wif

e was t he very f

irst witness at trial—no o ther proof had been h eard, no other witnesses had testif

ied, and as the m ajority points out, the burden of proof had not y et been

m et

. Y e t at this p oint, in the ey es of the p arties, and f rom the p ronouncem e nt of the trial court, the trial on f

ault had concluded. There was nothing l e f t to do to prove that issue because the trial was bif

urcated as to other issues. ¶71. As per the trial court, that very sam e day a “ Final Judgm ent of Divorce” was granted
to t he husband, u

p on the f i nding that the wif

e com m i tted adulter y . Although t he m ajority correctly notes that this judgm ent of divorce was set aside, this was only done so t hat the wif e would not lose her insurance during the ga p b e t w e en this ruling and the l ater d ivision of
assets. 10 ¶72. By these actions, no one could be reasonably assured that justice was done that day

q u estio n o f w h e th e r [ t h e h u sb an d ] co u l d h av e su ccessf u lly b een p ro secu ted f

o r ad u ltery . . . . ” Id

. at 6 6 n .2

.

10 T h e trial started o n M arch 2 4 , 2 0 1 7

. T h e l ater h earin g f o r d iv isio n o f m o n ey o ccu rred o n S ep tem

b er 1 5 , 2 0 1 7 . T h e ru lin g o f th e co u rt retu r n ed o n O cto b er 3 , 2 0 1 7 . It is so m ew h at co n cern in g h o w th e ch an cello r can allo w su ch a len g th y reco rd o f t im e b etw een th e start o f a trial a n d th e c o m p letio n o f a trial w i th o u t cau sin g h av o c in citizen s’ l iv es an d u n n ecessary

d elay in receiv in g th e leg al relief th is state’s law s af

f o rd

. 2 2or t hat t he chancellor could s till be f air and i m p artial f o r t he rem ainder of the trial. W ithout all of the f

acts, the chancel l o r m ade a split-second decision and m em orialized that splitsecond decision in a written order. He had not y et h eard all of the proof

. It is disheartening to litigants (and to the law) and exerts undue concern on the im p artiality of courts to act in such an i ll-conceived decision-m aking p r o c e s s . L i tigants s hould alway s believe they are being heard, a ll legal proceedings are f air, and the proceedings are in accordance with the law. Parties, lawy ers, and witnesses should f e el t hat their trial is the m o st im portant event in the world. In his b ook, Justice G rif f ith wrote that f

or “ [ e]very litigant, whatever his station in lif e, should be m a de to f

eel that the chancellor will see to it that respectf ul consideration will be extended to him personally , as well as t o h i s c a u s e ; and the chancellor should be watchf ul t hat no w itness i s b r ow bea ten, hum iliated or abused by any party or solicitor.” V.A. Grif f ith, Mississippi Chancery Practice § 93 (2d ed. 1950). ¶73. That f

orm e r trial j udge had m

uch guidance to of

f er o n the subject of the im portance of trials, and how they should be conducted in a prof essional a n d d ignif

i ed m anner. W e m

ust

rem em b er that the chancellor very nearly alway s sits alone as th e f a c t f inder, and so “[ t]he duty of courtesy o n the part of the chancellor is particularly required in behalf of t he parties and witnesses.” Id

. at § 92. W hile a dif f icult role to undertake, it m ust be p erf

o rm ed with patience. “The d

uty of the chancellor to hear and to hear f ully [ ]—without the d istraction of disorder around him [ ]—involves a lso the duty that in so doing he s hall h ear t he parties, their witnesses and s olicitors with a becom ing j udicial p atience and with a sincere and alert interest, and m oreover that he shall hear them courteously .” Id

.

2 3¶74. The m ajority perf orm s a detailed and m

uscular review of this record in order to assure that we a rrive a t the correct conclusion, and I agree w ith that conclusion. There was am ple proof the w i f

e c o mmitted adultery

. I t should not h ave been necessary f o r the Court to salvage a decision, but with the record bef ore us, that was required. ¶75. I likewise d o not believe t he chancery court should have sua sponte recused. If a party
wants a recusal, the litigant needs to lace up a nd throw that punch on its own—not just hope the judge gets knocked out just b e cause of wishf ul thinking. Given the proper request, the trial court’s com m ent about t he wif e’s hearing, conjoined with the im m e diate d ecision on the divorce, could have been m ore deeply considered on appeal. ¶76. Decades ago Justice Grif f ith described that m erely reaching the correct r esult was not enough—that the prof

ession a nd the pop u l a c e o f M ississippi were o wed m ore than just a resolution of a legal d ispute. F or “howsoever com pe t e n t the c hancellor m ay be, and howsoever honest and i m partial, he will still be unable to render righteous judgm ents unless he hear every m atter f

ully and with an anxious interest that every that is l e g i t i ma t e l y t o be said, both as to the m a terial f acts and as to every p ertinent f e ature of the law, h as been placed bef ore him f or his consideration.” Id

. at § 89. ¶77. For the f

oregoing reasons, I specially concur.

2 4