IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-01075-COA CINCINNATUS E. ALFORD, III APPELLANT

v. LINDA B. ALFORD APPELLEE
DATE OF JUDGMENT: 06/27/2017 TRIAL JUDGE: HON. VICKI R. BARNES COURT FROM W HICH APPEALED: SHARKEY COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: STEVEN TODD JEFFREYS ATTORNEYS FOR APPELLEE: J. MACK VARNER CLIFFORD C. W H ITNEY III NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART; REVERSED AND RENDERED IN PART - 07/23/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., GREENLEE AND McCARTY, JJ. J. WILSON, P.J., FOR THE COURT: ¶1. Af ter thirty -nine y ears of m arriage, Linda Alf ord f iled f or divorce f

rom h er husband, Cincin n a t u s (“Nat”) Alf

ord. The Alf

ords later c onsented t o an irreconcilable d if f erences divorce. The chancellor d i vided the m arital estate and ordered Nat t o p ay Linda $5,000 per

m onth i n p e riodic a lim ony , $ 5,000 f or attorney ’ s f

ees, and $6,000 f

o r expert witness f

ees. On appeal, Nat argues that t he c hancellor erred by ( 1) accepti n g L i n d a ’ s v aluation of his twenty

- f ive percent interest in a closely held corporation that operates a f a r m i n Sharkey County , ( 2) awarding Linda $5,000 per m onth in periodic alim ony , and (3) awarding Lindaattorney ’s f ees and expert witness f

ees. W e f

ind no error in t he chancellor’s valuation of Nat’s intere s t in t he corporation o r equitable division of t he m arital estate. However, we

reverse and rem a nd the alim o ny a ward f or f urther proceedings consistent with t his opinion, and we reverse and render the award of expert witness and attorney ’s f e es. FACTS AND PROCEDURAL HISTORY ¶2. Nat and Linda m arried in 1977. They had two c hildren w ho w ere i n their thirties by the tim e of trial. During the early y ears of their m arriage, the Alf o rds m oved f

requently f

or Nat’s work bef

o re settling down in Rolling Fork. Nat has worked in r o a d m a intenance equipm ent sales f

o r m any y e ars and was still em ploy ed at the tim e of trial as a regional sales

m anager f or Cim line. Linda worked as a bookkeeper at Sharkey -Issaquena A cadem y during the m arriage and was still em ploy ed there at the tim e of trial. ¶3. Nat and L i n d a s eparated in Novem b er 2014. Nat told Linda that he was n o longer happy and m oved out of the m arital hom e. Nat testif ied that this decision cam e shortly af ter he learned that Linda had incurred $55,000 in credit c ard debt without h is knowledge. Linda told Nat that she would t ake care of the debt herself

. However, N at did not want $55,000 of credit card d e b t o n h i s credit report, so he used $35,000 of m a rital f unds to pay down the debt, and h e and Linda o btained a bank loan at a lower interest rate to pay the rest. Nat stated that he and Linda had been growing apart f or y ears and that this incident caused him to lose

trust in her. Nat decided t hat he needed s om e s pace, and he lef t t he m a rital h om e t o stay with f riends bef ore m oving t o Cleveland. N at rented an apartm ent in Cleveland and later bought a condom inium

there. He used m arital f

unds f or the down pay

m e nt.

2¶4. In F ebruary 2016, Linda f iled f or d ivorce on the g round of desertion. In April 2016, the court entered an agreed tem porary order that required Nat t o pay L inda $ 4,000 per m onth in tem porary support and continue pay ing f or her m edica l insurance. Nat was g ranted use and possession of the condo in Cleveland, and Linda was granted u se and p ossession of the

m arital hom e in R olling Fork. In January 2017, Nat and Linda c onsented to an i rreconcilable di f f e r e n c e s divorce and stipulated that the chancellor would d ecide issues r elated to the equitable distribution of the m arital estate, ali mo n y , and attorney ’s f e e s. The case then proceeded to trial. Linda and Nat were both sixty -three y ears old at the tim e of trial. ¶5. John Paris testif

ied, without objection, as an expert witness regarding the v a l u e o f Nat’s twenty -f

ive percent interest in Cannonwall P lantation Inc., a c losely held corporation that operates a f

arm in Sharkey

County

. 1 C a nnonwall P lantation is owned by Nat and two other individuals. Paris testif ied that Cannonwall Plantation had assets and liabilities with

a n et f air value of $ 553,272. Paris f urther testif

ied that the n et f

a ir value of Nat’s t wenty -f ive percent interest was $138,318. Paris exp lained that the com pany ’s f a i r value was equal to the net value of its assets and liabilities on the d ay of the valuation and that the f air value of Nat’s inte r est was equal to twenty -f ive percent of the com

p any ’s value. In v aluing the

com pany ’s a ssets, Paris relied prim arily on appraised values provided by Nat in d iscovery

. ¶6. Consistent with her Rule 8 .05 f inancial statem e nt, 2 Linda testif ied that she had a net

1 P a r i s is a C P A an d a C ertif ied V a l u a tio n A n a l y st w h o h a s b een a p artn er an d sh areh o l d er at M ay & C o m p an y L L P , i n V ick sb u rg sin c e 1 9 8 9

. P aris also testif ied reg ard in g N at' s in co m e an d th e tax im p licatio n s o f

p o ten tial alim o n y

aw ard s.

2 S ee U C C R 8 .0 5

. 3m onthly incom e of $1,516.36 and m o nthly expenses of $6,376.43. She asked t he court to

award her perm anent periodic alim ony of $5,000 p er m onth. She also asked the c ourt f o r an award o f attorn e y ’ s f

e e s a nd expert witness f

e es. She testif

ied that s he had m ade partial
pay m ents to her attorney and expert in m onthly i nstallm ents, but she s a i d s he had “been struggling to” do so. ¶7. Nat’s Rule 8.05 statem ent showed gross m on t h l y i n c o me o f $10,000, net m onthly incom e of $8,070, and expenses (exclusive of tem porary alim ony ) o f $3,109.54. However, Paris testif

ied that Nat’s gross m onthly i ncom e was a pproxim a tely $15,391 and that his net

m onthly incom e was approxim ately $10,952. Paris relied on a 2 016 earnings statem ent f rom Cim line and Nat’s 2 015 tax r eturn, which showed incom e f rom C annonwall, dividends, and interest. N at t estif

ied that P aris’s ana l y s i s o verstated his incom e because he had recordsetting s ales in 2015, w hich resulted in higher-than-norm al com m i ssions. Nat also stated that Linda’s request f

o r $5,000 p e r m onth in p eriodic alim o ny was excessive given that t hey were both a pproaching retirem ent. Nat testif ied that he planned to retire around age sixty -seven. ¶8. The c hancellor subsequently entered an opinion and f i nal judgm ent. The j udgm ent classif ied and valued the Alf

ords’ property

. The p arties agreed t hat c ertain assets were separate, non-m arital property : L inda’s 2015 Honda CR-V, which was a gif t f rom her f ather, and inherited s tock and a portion of a Merrill Ly nch account owned by Nat, which h ad a total

com bined value of $124,824. All other assets, i n c l u d i ng Nat’s interest in Cannonwall Plantat i o n , were deem ed m a rital property

. The chancellor divided the m arital estate and awarded Linda assets and liabilities w ith a total net v a l u e of $ 713,123.49. L inda received

4the m arital hom e , which n o l onger had a m ortgage. The c hancellor adopted Paris’s valuation

of Nat’s interest in Cannonwall Plantation and awarded it to Nat. The chancellor awarded Nat m a rital assets and l iabilities with a total net value of $742,730.88. The chancellor also awarded Linda $5,000 i n perm anent periodic alim ony , $ 5,000 in a ttorney ’ s f ees, and $6,000 in expert witness f

ees. ¶9. Nat f

iled a m otion to alter o r am end t he judgm ent, which the chancellor d enied, and

a notice of appeal. On appeal, Nat challenges the chan c e l l or’s valuation of Cannonwall Plantation, the alim ony

award, and the award of

attorney ’s f

ees and expert witness f

ees. ANALYSIS ¶10. “W hen reviewing a d ecision of a chancello r , t h i s C o u r t a p p lies a lim ited abuse of discretion standard of

review.” Mabus v. Mabus , 890 So. 2d 806, 810 ( ¶14) (Miss. 2003). “This C ourt will not disturb t he chancellor’s opinion w hen supported b y substantial evidence unless the chancellor abused his d iscretion, was m anif e s tly wrong, clearly e rroneous, or an

e r r o n eous legal standard was applied.” Id. at 819 (¶53). However, o n i ssues o f law, our standard of review is de novo. Lowrey v. Lowrey , 25 So. 3d 274, 285 (¶26) (Miss. 2009). ¶11. “W hen t h i s C o u r t r e v i e w s a chancellor’s judgm ent o f property division we are to review the judgm ent t o ensure that the chancellor f ollowed the appropriate standards and did

not abuse his discretion.” McKnight v. McKnight , 951 So. 2d 594, 5 96 (¶6) (Miss. Ct. App. 2007) (quotation m a rks om itted). W e also review awards o f alim ony and attorney ’s f ees f or abuse of discretion. Creekmore v. Creekmore , 651 So. 2d 513, 5 20 (Miss. 1995); A rmstrong

v. Armstrong , 6 18 So. 2d 1278, 1 2 80 ( Miss. 1993). However, “[ i]f we f ind t he chancellor’s

5decision m anif estly wrong, or t hat the court applied an e rroneous legal standard, we will not hesitate to reverse.” Armstrong , 618 So. 2d at 1280. I. Cannonw a ll Plantation ¶12. A s s t a t e d a

bove, Paris testif

i ed that the net f

air value o f Cannonwall Planta t i o n ’ s
assets and liabilities was $553,272 and that the f air value of

Nat’s twenty

- f

ive percent was $138,318. P aris presented a “f air value balance s heet” f or t h e business, which showed its assets—including c ash, accounts receivable, loans to shareholders , a n d buildings and equipm ent—and liabilities—including m ortgages, loans, and a c c o u n ts pay able. Paris testi f i e d t hat he valued the buildings and equipm ent based on appraisals provided by Nat during discovery

. Paris testif ied t hat he did n ot e stim ate the “f air m arket value” of the f

a rm

as a going concern because such a va l u e n ecessarily would have included g oodwill as a

com ponent of the f

arm ’ s value. Paris testif

ied that under Mississippi l aw goodwill should

not be included in a business valuation prepared f or p u r p o s es of the equitable division of

ma r i t a l a s sets in a divorce c ase. Thus, Paris used an asset-based approach to valuation, which m easures o n ly the f air value of the com

pany ’s a ssets and liabilities excluding goodwill. P a r i s testif

ied that his valuation of Cannonwall Plantation was consistent with standard accounting and valuation principles. Nat did no t present a ny testim ony or other evidence to contradict Paris’s opinion. ¶13. Paris’s understanding of Miss i s s ippi l aw on the subject of g oodwill is correct. The Mississippi Suprem e Cou r t h a s held that “‘goodwill,’ whether ‘personal goodwill’ or ‘business enterprise goodwill’ shall not be included in the valuation of [ a business f o r

6purposes of equitable distrib u t i o n i n a divorce]. Goodwill is sim ply n ot property ; thus it

cannot be deem e d a d ivisible m arital asset in a divorce action.” Y elverton v. Y

elverton , 961 So. 2d 1 9 , 30 (¶21) ( Miss. 2007) (citation, f ootnote, quotation m arks, and brackets om itted); accord L acoste v. L acoste , 197 So. 3d 897, 908 (¶34) (Miss. Ct. App. 2 0 1 6 )

. Theref ore, Paris properly valued C annonwall Plantation without including any v alue attributable to goodwill. ¶14. Nonetheless, Nat f i n d s t w o f

laws in Paris’s valuation. First, he argues that Paris im p roperly estim ated the business’s “f air value” rather t han its “f a i r m arket value.” W e note that the distinction between these two concepts is not entirely clear f rom Paris’s testim ony ,

a n d N at p resented no expert testim ony of his own. Nonetheless, Paris’s valuation m etho d is e ssentially t h e sam e as the m ethod that we approved in Dunaway v. Dunaway , 749 So. 2d 1112, 1117-18 (¶13) ( Miss. Ct. App. 1999). In that case, the chancellor “valued the various
p h y s i c a l assets m aking up the f arm ing operation, assigning a m arket value to each

com ponent.” Id. Essentially , the chancellor valued the f arm based on “the break-up value of the various assets used in the operation.” Id. W e held that the chancellor did not err by using the liquidation value of the com pany as a f

loor f or its v alue rather than a t tem pting to value the f

arm as a going conc e r n . I d

. P a ris did essentially t he sam e thing in this case. Although he ref

e rred to the “f

air value” of

the assets, he prim arily

relied on appraisals that Nat p rovided to determ ine the values of the f arm ’s phy sical assets. Nat does not challenge the value that Paris a ssigned to any particular asset o r liability of Cannonwall Plantation. He only o bjects to Paris’s term i nology

. C onsistent with our decision in Dunaway , we f ind no

7error in the chancellor’s reliance on Paris’s testim ony .

¶15. N a t a lso argues that Paris and t he chancellor were require d t o a p p l y a l a c k

- o f

m arketability discount t o his twenty -f ive percent interest in t he f a rm because he is a m inority

owner. Paris agreed tha t a t h i r t y percent discount m ight have been appropriate if he had valued the business as a going c oncern with goodwill included. However, f or the reasons discussed above, Paris did not perf orm such a valuation, and he testif ied t hat i t would not be appropriate to apply a discount to the asset-based valuation that he did perf orm . Nat presented no testim ony

or evidence to contradict Paris’s expert testim ony on this issue. ¶16. On appeal, Nat c ites Cox v. Cox , 61 So. 3d 9 27 (Miss. Ct. A pp. 2011), in support of his argum ent that the c hancellor was bou n d t o a p p ly a discount. In Cox , the chancellor applied a lack-of

-m arketability d iscount to the value of a business at the tim e of the parties’ separation but did not apply a sim ilar discount to the value of the business at the tim e of the parties’ m arri a g e . S

ee id. a t 936 (¶29). As in t his case, the chancellor’s decision was consistent with expert t estim ony at trial. See id. at 934 (¶23). This C ourt stated that “the f air

m arket value of a business i s a question f o r t h e t rier of f

act,” and “we d ef

er to the chancellor’s f

i ndings of f

act when supported by the evidence and not m a n if estly wrong.” Id.

at 936 (¶29). W e af

f irm ed because the chancellor’s f indings were not clearly e rroneous. Id. That we f ound n o clear error on the f acts of Cox does not m ean that the c ha n c e l l o r i n this

case was requir e d to a

pply any particular discount. Indeed, as i n Cox , the chancellor’s f inding in this case is consistent with the expert testim ony at trial. ¶17. In s um m a ry , although Nat argues that Paris’s valuation of Cannonwall Plantation was

8too high, N at did n ot of f er any alternative valuation or present any evidence that a discount should have been applied. See Dunaway , 749 S o. 2d at 1118 (¶14) (“[ I]t is incum bent on the parties, and n ot t he chancellor, to prepare e vidence t ouching on m atters pertinent to the issues

to be tried.”). The cha n c e l l o r ’ s v aluation is supported by the record and is not clearly erroneous. Theref

ore, it m ust be af f irm ed. See id. at 1121 (¶28). II. Alim ony ¶18. “Af

ter the m a rital property is equitably d ivided, the chancellor m ust consider whether the division, in light of the par t i es’ nonm arital assets, will adequately provide f or both parties; if so, then ‘no m ore need be done.’” Rodrigue v. Rodrigue , 1 72 So. 3d 1176, 1187 (¶41) (Miss. Ct. App. 2 014) (quotin g J o h n s o n v
. Johnson , 650 So. 2d 1281, 1287 (Miss. 1994)). Alim ony s hould be considered o nly if the equitable division of m a rital estate, together with any separate property , “leaves a def i cit f or one party

. ” Id. at (¶42). By “def i c i t , ” w e m ean that “ the s pouse seeking alim ony i s lef t ‘with a def

icit with r espect to having suf

f icient resources and a ssets to m eet his or her n eeds and living e xpenses.’” Layton

v. Layton , 181 So. 3d 2 7 5, 282 (¶17) (Miss. Ct. App. 2015) (em phasis o mi t t e d ) (quoting Jackson v. Jackson , 114 So. 3d 768, 777 (¶22) (Miss. Ct. App. 2013)). ¶19. If one party is lef

t w ith a def

icit, the c hancellor m

ust consider the A rmstrong f actors in determ ining whether to award alim ony and the am ount and ty p e of the award. Lauro v. Lauro , 847 So. 2d 843, 848 (¶¶11-13) (Miss. 2003). The Armstrong f actors are: 1. The incom e and expenses of the parties; 2. The health and earning capacities of the parties;

93. The needs of each party ; 4. The obligations and assets of each party ; 5. The length of

the m arriage; 6. The presence or absence o f mi nor c h ildren in the h om e, which m ay require that one or both of the parties either pay , or personally provide, child care; 7. The age of

the parties; 8. The standard o f l iving of t he p arties, b oth during the m a rriage and at the tim e of

the support determ i nation; 9. The tax consequences of the spousal support order; 10. Fault or m isconduct; 11. W astef

ul dissipation of

assets by either party ; or 12. Any other f

actor deem ed by the c o u r t t o be “just a nd equitable” in connection with the setting of spousal support. Armstrong , 618 So. 2d at 1280. ¶20. In t he present case, Linda c laim ed that she had total m o nthly i ncom e f rom her job of $1,840.13 and n et m onthly incom e of $1,516

. 3 6

. S h e c laim e d total m onthly expenses of $6,376.43. She asked the court to a ward her $ 5,000 in periodic alim o n y t o m a ke up the dif f erence between her incom e and her claim ed expenses. The chancellor f o und that Linda’s actual expenses w ere $6,076.43 per m onth. 3 The c hancellor then awarded Linda $5,000 per

3 T h e ch a n cello r red u c ed L in d a’s claim ed e x p en ses b y th e $ 2 0 0 p e r m o n th sh e claim ed in au to rep air ex p en ses an d th e $ 1 0 0 p er m o n t h s h e claim e d in ch u rch d o n atio n s. T h e ch a n c e l lo r n o ted th at L i n d a ad m itted th at sh e “n o lo n g er h a[ d ] ex p en ses f o r au to rep airs” (b ecau se h er f

ath er h a d g iv en h er a n ew car) an d th at h er “ch u rch d o n atio n s [ w ere] p art o f h er [ sep arate lin e item

f o r] ch aritab le co n trib u tio n s.”

1 0m onth in periodic alim ony , exactly as Linda had requested. ¶21. O n a p p e a l , N a t a r g u e s t h at the alim ony award is excessive. He a r gues that th e chancellor did not adequately consider that the parties are nearing retirem ent age and t h at Linda will s oon be eligi b l e t o r e c eive Social S ecurity benef its. He also argues that the chancellor did not adequately consider the assets that Linda received as part of the equitable distribution of the m arital estate, as well as the anticipated f uture in com e and returns that those assets will produce. Finally , Nat argues that Linda’s claim e d expenses are overstated. W e consider these argum ents in turn.

A. Derivative Social Security Retirem ent Benefits ¶22. At trial, L inda expressly presented her claim f or periodic alim ony on the assum ption that w hen she began drawing derivative Social Security retirem ent benef

its based on Nat’s earnings, her alim ony autom atically w o u l d be reduced by the am ount of those benef its. Linda testif

ied on direct exam i nation that she understood that h er “alim ony award will be cut b y ” “ w h a t e v er am ount” of derivative benef its she receives. Next, J ohn Paris testif ied on direct e xam ination that, under Mississippi law, Linda’s receipt of derivative benef its “would reduce [ Nat’s] alim ony pay m ent d ollar f

or dollar” “as soon as” Linda b egan receiving those benef its. Paris testif

ied t hat Linda could expect to receive $1,304 per m onth in derivative benef its beginning around age s ixty -six. F i n a l l y , Linda’s lawy er asked Nat on crossexam ination if he understood t h a t c ourt-ordered alim ony would be reduced b y whatever derivative Social S ecurity benef its Linda rec e i v e d

. N a t conf i rm e d that he u nderstood that the law would allow him

to m ake such a reduction.

1 1¶23. Linda’s characterization of Mississippi law was correct when this case was tried and

when the chancery court entered its f inal judgm ent. In S

palding v. Spalding , 6 91 So. 2d 435 (Miss. 1997), the Suprem e Court held that a pay or spouse is entitled to an a utom atic, dollarf or-dollar credit a gainst his alim o ny obligation f or derivative Social Security retirem ent benef its received by

the pay ee spouse. Id. at 438-39. ¶24. However, six m onths af ter the chancery court entered its f inal j udgm ent in this case, the Suprem e C ourt overr uled Spalding

. In Harris v. Harris , 241 So. 3d 622 (Miss. 2018), the Court held that “ Social Security benef its derived f

rom t he other s pouse’s incom e do not constitute a special circum stance triggering an autom atic reduction in a lim ony .” Id. at 628 ( ¶ 1 9 ). The Court f

urther held that a c hancellor m ay not m odif y alim ony based o n t h e pay m ent of derivative Social Security benef i ts unless, inter al i a , s u c h p ay m ents constitute “an unforeseen m aterial change in c ircum stances.” Id. (em phasis a d ded); se e a l

s o id. at 629 (¶21 ) ( h o l d i n g that “the trial court’s f a ilure to consider

. . . the f oreseeability of Social Security pay m ents [ was] reversible error”). ¶25. T h e a l im ony award i n t his case s hould be reevaluated in light of H ar r i s . L i n d a requested perm anent alim ony of $5,000 per m onth on the assum ption that her alim ony would decr e a s e autom atically once she began drawing derivative Social Security retirem ent benef its. The chancell o r t h e n a w arded alim ony in the e xact am ount that Linda requested. However, in light o f Harris , Linda’s assum p tion is no longer correct. Moreover, H a rris specif ically holds that d e r i vative Social Security benef its will not justif

y a subsequent

m odif ication of alim ony if the be n e f i t s w e r e anticipated or f

o reseeable at t he tim e of the

1 2divorce. I

d. at 628-29 ( ¶¶19-21). In this case, the parties clearly f oresaw t hat L inda would receive derivative benef

its in t he near f

uture. Indeed, Paris testif i ed regarding the projected

am ount and t im i ng of Linda’s benef its. Under Harris , s u ch a clearly f oreseeable circum stance will not justif y a later m o dif

ication of alim ony . Id. Rather, it is a circum stance that the chancellor s hould consider in m aking the initial determ ination of a l im ony . In this

case, the c hancellor’s r

uling did n o t take this circum stance into a ccount. Accordingly , we conclude that it i s necessary to reverse and rem and t he case f or f urther consideration of the issue of alim ony in light of the Suprem e Court’s intervening decision in Harris

. In awarding alim ony , the chancellor s hould c onsider the clearly f oreseeable f

act that Linda will receive derivative Social Security retirem ent benef

its in the near f

uture. B. Linda’s Assets ¶26. The c hancellor awarded Linda m arital assets and liabilities with a total net value of $713,123.49. This included $134,115.06 in an ordinary Merrill L y nch stoc k a c c o u n t and

m ore than $375,000 in tax-def erred retirem ent accounts. Linda’s expert ( Paris) testif ied that Linda should invest conservatively given that she’s approaching retirem e nt; however, Paris testif i ed that Linda could still e xpect to earn f ive to six percent annually , which she could use f or her benef

it without reducing the balances of those accounts. Paris also p rojected that Nat would earn dividend incom e of $861 per m onth f

rom his Merrill Ly

nch account; however, the chancellor u ltim a tely awarded half of th a t a c c ount to L inda. Nat a r gues that the chancellor f

ailed to consider Linda’s anticipated investm ent earnings and d ividend incom e. Nat is correct that the chancellor d id not specif ically consider these assets o r related incom e

1 3in her Armstrong analy sis. Indeed, the chancellor r elied on Paris’s pr o j e c t i o n of Nat’s incom e without acknowledging that the f i gure still i ncluded projected dividend incom e f or the undivided the Merrill Ly nch account. ¶27. W e have already d eterm ined that the alim ony award m ust be reversed and rem anded f or f urther c onsideration i n l i g h t of Harris , supra . Theref ore, it is unnecessary f

or u s to determ ine d e f

i n i t ively whether the chancellor erred or abused her discretion by not considering Linda’s anticipated investm ent earnings and dividend incom e . W e sim ply hold that on rem and t h e c h a n cellor s hould consider the extent to which Linda’s assets and the anticipated incom e f

r om t hose assets w i l l i n crease her incom e and reduce her need f or alim ony . See, e.g. , W

illiams v. W

i lliams , 129 So. 3 d 233, 242 (¶37) ( Miss. Ct. App. 2013); Cosentino v. C

osentino , 986 So. 2d 1065, 1068 (¶9) (Miss. Ct. App. 2008) (citing Johnson v. Johnson , 650 So. 2d 1281, 1287 (Miss. 1994)).

C. Linda’s Ex penses ¶28. As noted above, Linda subm itted a Rule 8.05 f inancial statem ent claimi n g m onthly
expenses of $6,376.43, a nd the chancello r f o u n d t h at her actual m onthly expenses were $6,076.43. On appeal, Nat argues that c ertain of Linda’s claim ed expenses are inf lated and lack support in the evidence. I n addition to t he expenses that t he chancellor disregarded, see
supra n .3, Nat challenges the f ollowing alleged expenses: $400 per m o nth f or clothing, $200
per m onth f

or o u t-of -pocket m edicals, $350 per m onth f or gas and oil f

or h er car, and $275
per m onth f

or y ard m a intenance. N at a rgues that these expenses were not ref lected in the f

ew

m onths of bank s t atem e nts that he of f ered into evidence. However, Linda testif i ed that she

1 4had provided accurate estim ates of her expenses o n h er Ru l e 8

. 0 5 s tatem ents. She f urther testif i ed t h a t t h ose expenses f luctuated and would not alway s be ref l ected on her bank

statem ents. It is up to the chancellor, as the t rier of f act, to weigh such conf

l icting evidence and determ ine whether a witness is credible. See, e.g. , Mayton v. Oliver , 247 So. 3 d 312, 322 (¶¶33-34) (Miss. Ct. App. 2017). ¶29. Nat also argues t hat the chancellor should have disregarded in whole or i n part certain alleged e xpenses that “were likely to be reduced or com e to an end in m onths.” Specif ically , Nat points to $506 in “Pet E x penses,” a $500 per m onth credit card pay m ent, and a $409.28
per m onth loan pay

m e nt. Linda testif

ied that the “Pet E xpenses” relate prim arily to m edical
expenses f

or the couple’s twelve-y ear-old Labrador who s uf f ers f rom diabetes and cataracts. The $500 per m onth credit card pay m ent also relates to veterinarian bills f or the dog. The balance on t he credit c ard at the tim e of trial was $5,848.44. Finally , the loan had a balance of $3,683.52 at the tim e of

trial and was scheduled to be paid of f in nine m o nths. ¶30. For the reasons d i scussed above, we have already determ ined that i t i s n ecessary to

reverse and rem and the alim ony award f o r f urther consideration in light of Harris , s u p r a . On rem a nd, the chancellor s hould determ i ne alim ony based on the circum stances as they exist at the tim e of rem and. See Y elverton v. Y

elverton , 2 6 S o . 3 d 1 0 5 3 , 1057 (¶13). If certain expenses h ave been elim inated since the e nd of trial, then the chancellor should not consider them in determ ining Nat’s prospective alim ony obligation. III. Attorney ’ s fees ¶31. “An award of attorney ’s f ees is a p p r o p r i ate in a divorce case where the requesting

1 5party establishes an inability to pay .” Gray v. Gray , 7 45 So. 2d 234, 239 ( ¶26) (Miss. 1999).

“The party s e e k i ng attorney ’s f ees is charged with t he b urden o f proving inability to pay .” R i ley v
. Riley , 846 S o. 2 d 2 82, 287 (¶23) (Miss. Ct. App. 2003) (citing Jones v
. S tarr , 5 8 6 So. 2d 788, 792 (Miss. 1991)). “It is well settled in Mississippi t hat i f a party is f inancially able to p ay an attorney , an award of attorney ’s f ees i s not a

p propriate. Furtherm o re, if the record i s insuf

f icient to dem onstrate the wif e ’ s i n a b ility to p ay the attorney ’s f e es, then an award o f the f

ees is an abuse of discretion.” Gray , 74 5 S o . 2 d a t 2 3 9 (¶26) (citations

om itted). ¶32. At trial, Linda of

f ered a l ist of invoice am ounts prepared by her attorney that showed that he had billed her a total of $24,572.94, which included the trial. Linda also requested expert witness f

e es (f o r Paris) in the am ount of $6,000. Linda and her a t torney b oth testif ied that s he had been p ay ing $1,000 per m onth in attorney ’s f ees, although neither of them could
say how m

uch she had paid in total. L inda also testif ied that she h ad been p ay ing $500 per

m onth to Paris’s f

irm , although she did not state how m uch she had p aid or h ow m uch was lef t to pay . Linda testif

i ed that she had been a b l e to m ake her m onthly pay m ents to her attorney and expert, a lthough she said that she h ad “been struggling to” do so. Linda’s attorney testif

ied r egarding his tim e and f e e s a n d L i n da’s ability to pay . On crossexam ination, he was ask e d whether the equitable distribution of t he m arital assets would provide Linda with suf

f icient “ f inancial resources to p ay [ her f ees].” In response, he stated, “I w ould c ertainly h ope th a t t h e [ c]ourt awards [ Linda] what [ she] requested, which is 50 percent of the m arital assets. If that occurs, then she c ertainly would have the m oney to pay

1 6m e at that tim e. I would agree with that.”

¶33. Following the trial, the chancellor f ound that Linda had the ability to p ay som e but not all of h er attorney ’s f

ees. The chancellor then ordered Nat t o pay her $5,000 f or attorney ’s f ees and $6,000 f

o r expert witness f

ees. ¶34. W e conclude that the award of attorney ’s f ees and expert w itness f

ees was an abuse of discretion because “the record is insuf f icient to dem onstrate [ L inda’s] inability to pay .” Gray , 745 So. 2d at 239 (¶26). Linda testif ied that she had been a

b le to pay h er attorney ’s f ees and expert witness f

ees in m o nthly

installm ents of

$1,000 and $500, respectively , and she f ailed to show how m

uch she h ad already paid or w h at she still owed. In addition, Linda

was awarded bank a ccounts with a com b i n e d balance of approxim ately $17,000, a Merrill Ly nch account with a balance of $134,115.06, and retirem ent accounts with a com bine d balance in excess of $375,000. Linda received nearly h alf of the m a rital assets, which her attorney a greed would be s uf f icient to allow h er t o pay her a ttorney ’ s f ees. There is nothing in the record to show that Linda would have been required t o liquidate any signif icant part of her savings to pay her attorney or her expert. Indeed, as stated, t he record does not even show what L inda owed at the t im e of trial. O n these f acts, Linda f

a i led t o m eet her burden of establishing an inability to p a y her f ees. S ee, e.g. , Dauenhauer v. Dauenhauer , 271 So. 3d 589, 601 (¶51) (Miss. Ct. App. 2018) (holding t hat award of attorney ’s f ees was an abuse of discretion w h e r e t he s p ouse had already paid part of his f ees in installm ents and had suf f i cient assets to pay

the balance). Accordingly , the award of a ttorney ’ s f ees is reversed and rendered.

1 7CONCLUSION

¶35. W e af

f i rm the chan c e l l o r ’ s v a l uation of Cannonwall Plantation and division of the

m arital estate. However, we reverse and r em and the alim ony award f or f urther proceedings consistent with this opinion, including f urther consideration in light of the Suprem e Court’s intervening decision i n Harris , supra . W e also reverse and render the awar d of attorney ’s f ees because Linda f

ailed to dem onstrate an inability to pay

. 4 ¶36. A F F I R M E D I N P A R T ; R E V E R S E D A N D R E M A N D E D I N P A R T ; R E V E R S E D AND RENDERED IN PART. BARNES, C.J., CARLTON, P.J., WESTBROOKS, TINDELL, McDONALD , LAWRENCE, McCARTY AND C. W ILSON, JJ., CONCUR. GREENLEE, J., S P ECIALLY CONCURS WITH S EPARATE WRITTEN OPINION, JOINED B Y TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ. GREENLEE, J., SPECIALLY CONCURRING: ¶37. I concur with the m ajority

. However, b ecause I am concerned about the ef f ect Harris

v. Harris , 241 So. 3d 622 (Miss. 2018), m ay have i n t h i s c a s e a nd other cases, I specially

concur. ¶38. Our suprem e court’s decision in H arris has the potential to greatly im pact those in our population who are aging and under a court-ordered duty of support. For our citizens who

earn their wages through com pensation f

rom work f

or others, there com e s a tim e that m any should at least consider retirem ent, i f r e tirem ent is not required or decided f or them

. The litigants in this case, if not retired, are rapidly a p proaching retirem ent.

4 L i n d a f iled a m o tio n in th is C o u rt req u estin g an ad d itio n al aw a r d f o r atto rn ey ’s f

ees o n ap p eal. B ecau se w e rev erse an d ren d er th e ch an c ery co u r t’s a w ard o f atto rn ey ’s f

ees, w e also d e n y L in d a ’s m o t io n f o r ap p ellate atto rn e y ’ s f

ees. D a u en h a u e r , 2 7 1 S o . 3 d at 6 0 1 (¶¶5 2 -5 3 ). 1 8¶39. In such cases, the problem chancellors f ace i s in reliably p r e d i c t ing the i m pact of retirem ent upon the earnings of the parties. H a rris should not m ean that once retirem ent

occurs to one or both of the parties (although f o r e s e e a b l e a t the tim e of the initial support

o rder) t hat the parties are f oreclosed f

rom asking the court f

or a m o dif

i cation based on a

m aterial a n d substantial c hange i n circum stances. See Plummer v. Plummer , 235 So. 3d 195, 199 (¶14) (Miss. Ct. App. 2017) (m odif ication of alim ony requires proof of a m aterial and substantial c hange in circum stances since the d ate of the prior judgm ent). If the application of our law is to f

oreclose a litigant’s request f or a m odif

ication of periodic alim ony upon that party ’s retirem ent, such could m ean that in order to m eet the am ount required, that party m ust
not retire. If that is the case, has our law not im posed a servitude upon a citizen until death? Retirem ent is a substantial change to an individual’s circum stances, and Harris should not be allowed t o h inder such a c hange f rom being brought bef

ore the c hancellor f

or consideration. ¶40. I, theref

ore, specially

concur. TINDELL, McDON A L D , LAWRENCE AND McCARTY, J J., JOIN THIS OPINION.

1 9