Hammond v. Hammond, 2020-CA-00324-COA

CourtCourt of Appeals of Mississippi
Writing for the CourtWILSON, P.J.
Decision Date14 September 2021
Docket Number2020-CA-00324-COA



No. 2020-CA-00324-COA

Court of Appeals of Mississippi

September 14, 2021

DATE OF JUDGMENT: 03/05/2020






¶1. Mary Virginia "Jenny" Hammond filed a complaint for divorce from Perry Hammond after twenty-five years of marriage. The chancellor granted Jenny a divorce on the ground of uncondoned adultery, granted her physical custody of the parties' minor child, divided the marital estate, and ordered Perry to pay rehabilitative alimony of $500 per month for two years. On appeal, Jenny argues that the chancellor erred by (1) failing to consider Perry's adultery when dividing the marital estate; (2) awarding grossly inadequate alimony; (3) requiring Perry to provide her with health insurance coverage for only a limited time; and (4) denying her request for attorney's fees. We hold that the chancellor erred by not considering Perry's adultery when dividing the marital estate and by awarding inadequate alimony. On those grounds, we reverse and remand for further proceedings consistent with this opinion.


¶2. Jenny and Perry were high school sweethearts and married in 1991. Perry worked in the oilfield industry, and Jenny worked as a cosmetologist. In 1996, they had a son, and Jenny became a stay-at-home mom. Perry's job required him to work fourteen days "on" and fourteen days "off." During the fourteen days Perry was gone, Jenny was the sole caregiver for their child. In 2003, the parties had a daughter. Around this time, Perry began working a thirty-on-thirty-off schedule, meaning that he was gone for thirty days at a time, leaving Jenny as the sole caregiver for two children.

¶3. Jenny testified that she started to notice a lack of intimacy in the marriage and that Perry would sleep in the recliner in the living room instead of the bedroom when he was home. Jenny eventually discovered that Perry was having an affair while he was traveling for work. Jenny became depressed after she learned of Perry's adultery, and she testified that Perry's relationship with the children had suffered. Jenny testified that she had lost her hair as a result of her depression and that she started taking antidepressants. She testified that she still loved Perry but could not remain married to him. She filed for divorce in 2016.

¶4. Jenny said that Perry was the "best dad ever" prior to the breakdown of the marriage. Perry admitted that his relationships with his children had suffered, but he testified that they were on the mend. Perry testified that he had not felt appreciated in his marriage and that he felt like he was only good for a paycheck.

¶5. Jenny was forty-seven years old at the time of trial. She testified that although she stopped working as a cosmetologist to stay home with her children, she had also developed a bulging disc in the mid-1990s. She testified that she had been seeing a doctor for her back since that time and that she would no longer be able to work as a cosmetologist. At the time of trial, she worked as a preschool assistant at Columbia Academy. She had started working at Columbia Academy in 2017 in an effort to provide for herself following her separation from Perry. Her job did not provide health insurance or retirement benefits. Jenny believed that it would cost her about $500 per month to obtain private health insurance. She testified that she could earn more if she were certified to teach, but she could not afford to return to college to pursue the necessary degree.

¶6. Jenny's Uniform Chancery Court Rule 8.05 financial statement reported gross monthly income of $710 and net monthly income of $646 from her job. Perry was also paying her $2, 000 per month in temporary alimony. She reported monthly living expenses of $5, 500, including the mortgage, taxes, and insurance on the marital home. Jenny also introduced a copy of her attorney's bill, and she testified that she could not afford to pay it. Perry did not object to or question Jenny about the bill.

¶7. Perry's Rule 8.05 statement reported gross monthly income of $19, 539, net monthly income of $12, 150, and monthly living expenses of $2, 387. Perry's reported income did not include his annual performance bonus. Prior to trial in 2018, Perry had received an annual bonus of $67, 938. Perry testified that the amount of his bonus was "not guaranteed" and depended on his performance, but he acknowledged that he had received a bonus each year for at least five years. Perry had been living in South Carolina with his father since the separation. He had bank accounts with a combined balance of approximately $16, 000 and retirement and investment accounts with a combined balance of more than $700, 000.

¶8. The marital home and surrounding property had a mortgage of $52, 000. The Hammonds also owned approximately twenty acres near the marital home and several pieces of farm equipment and older trucks that they used to maintain their property.

¶9. Perry proposed giving Jenny the marital home and surrounding five acres because it had belonged to her family. Perry also said Jenny should have the parties' sailboat, trucks, and farm equipment. Perry wanted to keep the separate twenty-acre tract near the marital home. He also wanted to keep as much of his retirement savings and investments as possible but was willing to use those accounts to address any disparity in the equitable division of the marital estate. Perry objected to paying any alimony. He argued that he had already paid temporary alimony for two years and that he had not "seen any effort" by Jenny "to improve herself to be sufficient -- self efficient (sic)."

¶10. The chancellor found that the date of demarcation for purposes of dividing the marital estate was the date of the temporary order (December 20, 2016). The chancellor then awarded Jenny 55% of the marital estate, including the marital home and five acres, all farm trucks and equipment, and all household items and personal property in her possession. She awarded Jenny her Toyota Highlander and ordered Perry to pay off the note on the vehicle. She awarded Jenny approximately $7, 900 from Perry's bank accounts and approximately $202, 500 from Perry's 401(k) account.

¶11. The chancellor awarded Perry 45% of the marital estate, including the remainder of his 401(k) account[1] and bank accounts and his other investments. The chancellor also awarded Perry his truck, all personal property in his possession, and the twenty-acre tract of land he requested. The chancellor ordered Perry to pay the mortgage, taxes, and insurance on the marital home until the mortgage, which had a balance of approximately $52, 000, was paid off. The chancellor also ordered Perry to pay the note, insurance, and taxes on Jenny's Toyota Highlander until the note was paid off. Finally, the chancellor ordered Perry to pay the remaining debt on Jenny's sailboat, which the chancellor found was Jenny's separate property because it had been a gift from Perry to Jenny.

¶12. The chancellor ordered Perry to pay $1, 166.67 per month in child support plus the daughter's private school tuition, health and dental insurance, and uncovered health and dental expenses. The chancellor ordered Perry to pay Jenny rehabilitative alimony of $500 per month for twenty-four months and to maintain health insurance for Jenny for the same period of time. The chancellor denied Jenny's request for attorney's fees.

¶13. On appeal, Jenny raises four issues. First, she argues that the chancellor erred by failing to consider Perry's uncondoned adultery when determining an equitable division of the marital estate. Second, she argues that the chancellor's award of rehabilitative alimony was inadequate given the length of the parties' marriage and the disparity in their respective earning capacities. Third, she argues that the chancellor should have ordered Perry to pay for her health insurance for more than twenty-four months. Fourth, she argues that the chancellor should have ordered Perry to pay her attorney's fees because she established that she was unable to pay them. For the reasons explained below, we conclude that the chancellor committed reversible error with respect to the first two issues, and we remand the case for further proceedings consistent with this opinion.


¶14. "When reviewing a decision of a chancellor, this Court applies a limited abuse of discretion standard of review." Mabus v. Mabus, 890 So.2d 806, 810 (¶14) (Miss. 2003). We will not disturb a chancellor's findings unless those findings are "manifestly wrong" or "clearly erroneous" or the chancellor "applied the wrong legal standard." Id. (quoting McNeil v. Hester, 753 So.2d 1057, 1063 (¶21) (Miss. 2000)). This standard of review applies to the equitable division of the marital estate and the award of alimony and attorney's fees. Layton v. Layton, 181 So.3d 275, 279-80 (¶10) (Miss. Ct. App. 2015). "Pure questions of law are reviewed de novo." Id. at 279 (¶10).

I. Equitable Division

¶15. In Ferguson v. Ferguson, 639 So.2d 921 (Miss. 1994), our Supreme Court stated,

[T]his Court directs the chancery courts to evaluate the division of marital assets by the following guidelines and to support their decisions with findings of fact and conclusions of law for purposes of appellate review. Although this listing is not exclusive, this Court suggests the chancery courts consider the following guidelines, where applicable when attempting to effect an equitable division of marital property
1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows

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