Dykes v. Dykes, 2014–CA–01735–COA.

• Decision Date: 10 May 2016
• Docket Number: No. 2014–CA–01735–COA.,2014–CA–01735–COA.
• Citation: 191 So.3d 1287
• Parties: Jan DYKES, Appellant v. Everett G. DYKES, Appellee.
• Court: Mississippi Court of Appeals

191 So.3d 1287

Jan DYKES, Appellant

v.Everett G. DYKES, Appellee.

No. 2014–CA–01735–COA.

Court of Appeals of Mississippi.

May 10, 2016.

Christopher Randall Purdum, attorney for appellant.

Michael Duane Mitchell, Laurel, attorney for appellee.

Before LEE, C.J., BARNES and ISHEE, JJ.

FACTS AND PROCEDURAL HISTORY

LEE, C.J., for the Court:

¶ 1. Jan and Everett Dykes were married on July 3, 1987, in Covington County, Mississippi, and lived together until January 1, 2006, when they finally separated.

¶ 2. On March 14, 2006, Jan filed for divorce on the fault ground of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Jan also petitioned for separate maintenance in the event the divorce was not granted.¹ On August 20, 2009, Jan amended her complaint to include the additional fault ground of uncondoned adultery. In his counter-complaint for divorce, Everett asserted the fault ground of adultery or, in the alternative, irreconcilable differences. On May 11, 2010, the chancery court dismissed Everett's counter-complaint and granted Jan's motion to withdraw fault grounds. The chancery court then awarded Jan separate maintenance.

¶ 3. In November 2010, Everett was laid-off from his job due to lack of work. Everett accepted another job, which resulted in a decrease in his income. Consequently, Everett fell behind on his payments under the separate-maintenance order.

¶ 4. In February 2011, Jan filed a petition for citation of contempt against Everett, and the chancery court continued the case and ordered Everett to make payments each month until the date set for trial. In June 2012, Jan filed another petition for citation of contempt against Everett. This time, the chancery court entered a judgment of contempt.

¶ 5. On May 14, 2013, the chancery court dismissed the divorce matter.

¶ 6. On May 31, 2013, Everett filed a motion to modify the final decree of separate maintenance. Everett simultaneously filed a complaint for divorce on the fault ground of adultery. The two actions were consolidated.

¶ 7. When trial began in March 2014, Everett was—again—in arrears under the separate-maintenance order. Jan asserted that Everett's unclean hands barred him from proceeding with his modification and divorce actions. However, the chancellor proceeded without making a ruling.

¶ 8. Jan testified that she had sexual relationships with three men during the parties' marriage. Similarly, Everett testified that he had a sexual relationship with another woman during the parties' marriage. However, Everett stated that Jan's affairs were “the reason [he wanted] a divorce.”

¶ 9. Jan made a motion to dismiss based on the defense of recrimination. After argument from both sides, the chancellor denied Jan's motion and ultimately awarded Everett a divorce on the ground of adultery.

¶ 10. In the second part of the trial—division of property and alimony—the chancery court found that Everett was $7,042 in arrears and ordered Everett to pay rehabilitative alimony of $800 per month for two years, to be applied toward the arrearage of $7,042. The chancery court also ordered Everett to transfer the parties' marital home with all adjoining land as lump-sum alimony to Jan. Furthermore, Everett was responsible for all debts encumbering said land. Everett's counsel requested an analysis of the Ferguson² factors, but the chancellor declined to do so from the bench. Subsequently, the chancellor entered a written opinion “to expand [his] bench opinion [and] to include the Ferguson and Armstrong³ factors[.]”

¶ 11. Jan filed a motion for a new trial and a motion to alter or amend the judgment, which the chancery court granted in part and denied in part. The chancery court stated that the marital home should have been classified in the division of assets and not as lump-sum alimony.

¶ 12. Jan appeals, asserting that the chancellor erred in: (1) allowing Everett to proceed with unclean hands; (2) failing to make findings of fact; (3) failing to deny the divorce based on recrimination; (4) failing to classify the marital property; (5) misapplying the Ferguson factors; and (6) misapplying the Armstrong factors.

STANDARD OF REVIEW

¶ 13. “In domestic-relations cases, we ‘will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard.’ ” Artz v. Norris, 163 So.3d 983, 987 (¶ 10) (Miss.Ct.App.2015) (quoting In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss.2010) ). “We review questions of law de novo.” Id.

DISCUSSION

I. Clean–Hands Doctrine

¶ 14. In her first issue, Jan claims the chancellor erred in granting Everett relief due to his unclean hands. Jan argues that because Everett was in arrears under the separate-maintenance order, his hands were unclean, thus prohibiting him from coming into the chancery court to seek relief.

¶ 15. “The doctrine of clean[ ]hands provides that ‘he who comes into equity must come with clean hands.’ ” Andres v. Andres, 22 So.3d 314, 320 (¶ 25) (Miss.Ct.App.2009) (quoting Cook v. Whiddon, 866 So.2d 494, 498 (¶ 13) (Miss.Ct.App.2004) ). A complaining party may not obtain equitable relief “when he is guilty of willful misconduct in the transaction at issue.” Id. at (¶ 16). Everett came into the court with unclean hands. See id. at 321 (¶ 29). However, he did not leave with unclean hands. See id. The chancellor entered a judgment against Everett for $7,042, which cleansed Everett's hands. See id. This issue is without merit.

II. Findings of Fact

¶ 16. In her second issue, Jan claims the chancellor erred in failing to make findings of fact when he granted a divorce on the ground of adultery.

¶ 17. “A party must establish his or her claim of adultery by clear and convincing evidence.” McClelland v. McClelland, 879 So.2d 1096, 1098 (¶ 12) (Miss.Ct.App.2004) (citing Mitchell v. Mitchell, 767 So.2d 1037, 1040 (¶ 5) (Miss.Ct.App.2000) ). “There must be clear and convincing evidence both of an adulterous inclination and a reasonable opportunity to satisfy that inclination.” Id. (quoting Mitchell, 767 So.2d at 1040 (¶ 5) ). “Adultery may be proven by admissions or other evidence.” Id. (citing Holden v. Frasher–Holden, 680 So.2d 795, 799 (Miss.1996) ). “Where allegations of adultery are raised as grounds for divorce, the chancellor is required to make findings of fact.” Holden, 680 So.2d at 798 (citing McAdory v. McAdory, 608 So.2d 695, 699 (Miss.1992) ).

¶ 18. From the bench, the chancellor stated: “Based on the testimony of the parties, the [c]ourt does find that Everett Dykes is entitled to [a][d]ivorce from Jan Dykes on the grounds of uncondoned adultery.” Later, in the written final judgment, the chancellor stated: “Jan Dykes, by her own admission and through other evidence presented, has been guilty of uncondoned adultery. Everett G. Dykes is hereby granted a divorce ... from Jan Dykes on the grounds of uncondoned adultery.” (Emphasis added).

¶ 19. The chancellor made a specific finding of fact when he stated that the basis for granting the divorce was—in part—“[Jan's] own admission.” This issue is without merit.

III. Recrimination

¶ 20. In her third issue, Jan claims the chancellor erred by failing to deny the divorce based on the defense of recrimination. “The doctrine of recrimination is founded on the basis that the equal guilt of a complainant bars his/her right to divorce, and the principal consideration is that the complainant must come into court with clean hands.” Ware v. Ware, 7 So.3d 271, 273 (¶ 7) (Miss.Ct.App.2008) (quoting Cherry v. Cherry, 593 So.2d 13, 18 (Miss.1991) ).

¶ 21. Mississippi Code Annotated section 93–5–3 (Rev.2013) provides: “If a complainant or cross-complainant in a divorce action shall prove grounds entitling him to a divorce, it shall not be mandatory on any chancellor to deny such party a divorce, even though the evidence might establish recrimination on the part of such complainant or cross-complainant.” (Emphasis added).

¶ 22. Jan appears to concede that it was within the chancellor's discretion not to deny the divorce based on recrimination. However, Jan launches into a discussion about lack of proof that she caused the separation since the adultery was committed after her separation from Everett. Jan relies on Boutwell v. Boutwell, 829 So.2d 1216 (Miss.2002), in support of her argument. In Boutwell, the supreme court cited to Garriga v. Garriga, 770 So.2d 978 (Miss.Ct.App.2000), where this Court held that when both parties are seeking a divorce, “the chancellor must determine which of the parties will be granted the divorce by determining which party's conduct was the cause of the deterioration of the marital relationship.” Boutwell, 829 So.2d at 1224 (¶ 41). Here, only Everett is seeking a divorce. Therefore, the above rule does not apply. Furthermore, this Court has held that “[t]here is no requirement that the adultery precede the spouses' separation.” Lister v. Lister, 981 So.2d 340, 344 (¶ 29) (Miss.Ct.App.2008) (citing Curtis v. Curtis, 796 So.2d 1044, 1051 (¶ 31) (Miss.Ct.App.2001) ).

¶ 23. Even though Everett admitted to having an affair, the chancellor was not required to deny him a divorce when he had proven that Jan had also committed adultery. See Ware, 7 So.3d at 273 (¶ 9). This issue is without merit.

IV. Equitable Distribution

¶ 24. We consolidate Jan's remaining issues as whether the chancellor erred in dividing the marital property. It is well established:

First, the character of the parties' assets, i.e., marital or non-marital, must be determined pursuant to Hemsley. The marital property is then equitably divided, employing the Ferguson factors as guidelines, in light of each part [y's] non-marital property. If there are sufficient marital assets which, when equitably divided and considered with each spouse's non-marital assets, will adequately provide for both parties, no more need be done. If the situation

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