Ewing v. Ewing, 2015-CA-01105-COA

• Decision Date: 01 November 2016
• Docket Number: NO. 2015-CA-01105-COA,2015-CA-01105-COA
• Citation: 203 So.3d 707
• Parties: Morgan David Ewing, Sr., Appellant v. Melanie Shae Ewing, Appellee
• Court: Mississippi Court of Appeals

203 So.3d 707

Morgan David Ewing, Sr., Appellant

v.Melanie Shae Ewing, Appellee

NO. 2015-CA-01105-COA

Court of Appeals of Mississippi.

November 1, 2016

JERRY WESLEY HISAW, ATTORNEY FOR APPELLANT

DAVID MARK SLOCUM JR., ATTORNEY FOR APPELLEE

BEFORE GRIFFIS, P.J., JAMES AND WILSON, JJ.

GRIFFIS, P.J., FOR THE COURT:

¶ . Morgan David Ewing Sr. and Melanie Shae Ewing were granted a divorce based on irreconcilable differences. Morgan appeals the DeSoto County Chancery Court's division of the marital estate, the alimony award, and the award of attorney's fees. This Court finds error and affirms in part and reverses and remands in part.

FACTS AND PROCEDURAL HISTORY

¶ 2. Morgan and Melanie were married on July 1, 2000. Four children were born of the marriage. Melanie mostly stayed home with the children while Morgan worked. They separated on January 2, 2012. On January 17, 2012, Melanie filed a petition for divorce based on habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences.

¶ 3. On February 22, 2012, the chancellor issued a temporary order granting Melanie custody of the children, $950 per month in child support, and sole use of the marital home. The order also granted Morgan weekend and phone visitation, and required him to maintain health insurance on the family. Further, the order required the parties to file a joint tax return and prohibited dissipation of marital assets.

¶ 4. After the temporary order but before the final divorce decree, Morgan lost his job and failed to make several child-support payments, which caused him to go into arrears. During this time, Morgan took out a loan against his 401(k), then eventually cashed out his 401(k), valued at around $48,000. As a result of his unsteady employment and financial situation, Morgan filed for bankruptcy in 2014.

¶ 5. The divorce proceedings extended over several years. Eventually, Melanie and Morgan agreed to divorce on the ground of irreconcilable differences. The parties agreed that Melanie would retain sole custody of the children, and they stipulated to a visitation schedule. They requested that the chancellor settle the matters of property distribution, child support, and alimony.

¶ 6. On February 18, 2015, the chancellor conducted a bench trial on the remaining issues. On March 16, 2015, the chancellor entered his judgment granting the divorce and resolving the disputed issues. The chancellor ordered Morgan to pay $950 per month in child support, $500 per month in permanent alimony, $38,000 in lump-sum alimony to be paid at monthly $1,000 increments until satisfied, $10,000 in Melanie's attorney's fees to be paid monthly in $500 increments until satisfied, and two-thirds of all unpaid medical expenses for the children. The judgment was finalized on April 13, 2015.

¶ 7. Subsequently, on April 20, 2015, Morgan filed a motion for reconsideration or, in the alternative, a new trial. Morgan primarily sought a reduction in the awards of child support, alimony, and attorney's fees. The chancellor granted Morgan's motion in part by reducing the child support to $708.36 per month and giving credit for $3,050 in paid child support. All other requests were denied.

¶ 8. Morgan timely appealed the denial of his posttrial motion. On appeal, he argues that the chancellor erred in (1) dividing the marital estate, (2) granting Melanie periodic alimony, and (3) awarding attorney's fees to Melanie.

STANDARD OF REVIEW

¶ 9. In domestic-relations cases, "[t]his Court will not disturb a chancellor's judgment when [it is] supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or [applied] an erroneous legal standard." Rolison v. Rolison , 105 So.3d 1136, 1137 (¶ 4) (Miss. Ct. App. 2012) (citation omitted). "If the chancellor's findings are supported by substantial evidence, then we will affirm." Id. (citation omitted). Questions of law, however, are reviewed de novo. Price v. Price , 22 So.3d 331, 332 (¶ 8) (Miss. Ct. App. 2009) (citation omitted).

ANALYSIS

I. Whether the chancellor erred in dividing the marital estate.

¶ 10. Morgan initially disputes the chancellor's division of the marital estate when he awarded $38,000 in lump-sum alimony to Melanie. Morgan contends that the chancellor failed to conduct a full analysis under the Ferguson¹ factors in dividing the marital property. Morgan also states that the chancellor neither established a line of demarcation determining when the parties stopped accumulating marital assets nor classified the property as marital or nonmarital. By extension, Morgan argues the chancellor erred in awarding lump-sum alimony or, in the alternative, erroneously calculated the amount Melanie should receive.

¶ 11. "[W]hen dividing marital property, ‘chancellors are directed to (1) classify the parties' assets as marital or separate; (2) determine the value of those assets; (3) divide the marital estate equitably based upon the factors set forth in Ferguson ; and (4) consider the appropriateness of alimony if either party is left with a deficiency.’ " Roberts v. Roberts , 135 So.3d 935, 940 (¶ 13) (Miss. Ct. App. 2014) (quoting Dickerson v. Dickerson , 34 So.3d 637, 643–44 (¶ 23) (Miss. Ct. App. 2010) ).

A. The Classification and Valuation of Assets

¶ 12. "In dividing the property of the divorcing couple, the chancellor must first classify their assets and liabilities as belonging to the marriage, to the husband, or to the wife." Smith v. Smith , 856 So.2d 717, 719 (¶ 8) (Miss. Ct. App. 2003) (citing Hemsley v. Hemsley , 639 So.2d 909, 914 (Miss. 1994) ). Morgan argues the chancellor erred when he did not classify the parties' property as marital and nonmarital property. Further, the chancellor, according to Morgan, did not determine a line of demarcation determining when the parties stopped accumulating marital assets.

¶ 13. "[W]hen equitably dividing marital property upon divorce, the date of valuation is necessarily within the discretion of the chancellor." Hensarling v. Hensarling , 824 So.2d 583, 591 (¶ 25) (Miss. 2002) (quoting MacDonald v. MacDonald , 698 So.2d 1079, 1086 (¶ 35) (Miss. 1997) ). Melanie obtained a temporary order on February 22, 2012, which awarded her sole temporary custody, use of the marital home, and use of her vehicle. The temporary order also required Morgan to pay $950 in monthly child support, but did not award Melanie separate maintenance.

¶ 14. Morgan argues the time of the demarcation should have been at the point of the temporary order. "A temporary order may be considered by the chancellor to be a line of demarcation between marital and separate property[.]" Collins v. Collins , 112 So.3d 428, 432 (¶ 11) (Miss. 2013) (citing Cuccia v. Cuccia , 90 So.3d 1228, 1233 (¶ 8) (Miss 2012) ). Therefore, the chancellor could have designated either the date of the temporary order or the date of the divorce as the time for demarcation. Though the chancellor implicitly held the date of demarcation as the date of the divorce, the chancellor erred when he failed to explicitly declare either date as the line of demarcation.

¶ 15. The Collins court held that chancellors should declare a line of demarcation in their findings. Id. at 432–33 (¶ 13). In Collins , the Mississippi Supreme Court found that the chancellor did not make a finding as to the line of demarcation, but because the opinion alluded to the date and the parties did not challenge the date, the supreme court did not remand the case on this issue. Id. at 432 (¶ 13). Further, the Collins court cautioned that had the date been disputed or unclear in the judgment, the case would have been remanded. Id. Here, Morgan and Melanie dispute the date for demarcation. Thus, this issue is remanded for a finding on the date of demarcation.

¶ 16. Morgan also argues that the chancellor erroneously failed to classify the assets of the parties as either marital or nonmarital. Morgan asserts that his 401(k) appreciated in value over the time of separation, and the appreciation should have been considered separate property. Unlike with demarcation, the chancellor stated that there was no testimony presented as to any separate property. Further, the chancellor specifically determined what he considered as marital property, and assigned values to each of the assets. Therefore, on remand, the chancellor should determine the line of demarcation and whether the parties accumulated any separate property.

B. The Ferguson Factors

¶ 17. Morgan further contends that the chancellor failed to adequately analyze the Ferguson factors when he determined the distribution of marital property. After classification and valuation, a chancellor must equitably divide the marital property in accordance with the factors dictated in Ferguson . The factors are:

(1) Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows: (a) [d]irect or indirect economic contribution to the acquisition of the property; (b) [c]ontribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and (c) [c]ontribution to the education, training [,] or other accomplishment bearing on the earning power of the spouse accumulating the assets[;]

(2) The degree to which each spouse has expended, withdrawn[,] or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree[,] or otherwise[;]

(3) The market value and the emotional value of the assets subject to distribution[;]

(4) The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;

(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed

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