Wooten v. Simmons Wooten, 2020-CA-00353-COA

CourtCourt of Appeals of Mississippi
Writing for the CourtGREENLEE, J.
Docket Number2020-CA-00353-COA
Decision Date18 January 2022



No. 2020-CA-00353-COA

Court of Appeals of Mississippi

January 18, 2022

DATE OF JUDGMENT: 02/04/2020






¶1. The Clay County Chancery Court granted Thomas and Ashley Wooten a divorce based on the ground of irreconcilable differences. The chancellor also distributed the marital property, granted sole physical custody of the minor children to Ashley, and granted joint legal custody of the children to both parties.

¶2. Thomas now appeals from the chancellor's judgment, arguing that the chancellor erred by (1) disregarding Ashley's retirement savings in the equitable-distribution analysis; (2) granting physical custody of the children to Ashley; and (3) refusing to deviate from the statutory child-support guidelines. Finding error with only the portion of the chancellor's


judgment regarding Ashley's retirement savings account, we reverse and remand the case for further proceedings consistent with this opinion. As to the matter of child custody and child support, we affirm.


¶3. Thomas and Ashley Wooten were married on June 18, 2011. They had two children, B.W. and C.W., before they separated in October 2015.[1] On March 19, 2018, Thomas filed for divorce from Ashley on the statutory ground of desertion and/or habitual cruel and inhuman treatment or, alternatively, on the ground of irreconcilable differences. On September 14, 2018, Ashley filed her answer and counter-complaint for divorce. She alleged that she was entitled to a divorce on the ground of uncondoned adultery and/or habitual cruel and inhuman treatment. Alternatively, Ashley requested a divorce on the ground of irreconcilable differences.

¶4. In October 2019, the parties agreed and entered a consent to divorce on the ground of irreconcilable differences. Before the commencement of trial, the parties agreed that they would leave the issues of child custody, child support, and property division to the court's determination.[2] The two-day trial began on October 29, 2019, and concluded on January 15, 2020. Both Thomas and Ashley introduced evidence and presented several witnesses.

¶5. The chancellor issued an order on January 31, 2020, and a supplemental opinion and final judgment on February 4, 2020. The chancellor awarded Ashley sole physical custody


of the children and joint legal custody to both parties. The chancellor ordered that Thomas' monthly child-support payments be increased from $239 for one child to $780 for two children. The chancellor also awarded Ashley a retroactive increase in the child support payments and declined Thomas' request to reduce the statutory support.[3]

¶6. As to the property division, the chancellor determined that the parties' marital property included (1) two vehicles- a 2000 Ford F250 and a 2015 Dodge Ram; (2) any of Ashley's retirement funds accumulated with BancorpSouth Bank from July 2011 to October 14, 2015; (3) BancorpSouth Bank credit-card debt in the amount of $880; and (4) Discover credit-card debt in the amount of $ 1, 93 8.15. According to the chancellor's findings, the parties' separate property consisted of (1) Thomas' checking and retirement accounts with Kinder Morgan Gas Company; (2) Ashley's BancorpSouth Loan; (3) Ashley's PERS and Cadence Bank retirement account; and (4) Ashley's student loan.

¶7. Thereafter, the chancellor awarded Ashley the 2015 Dodge Ram, the BancorpSouth Bank credit-card debt, and the Discover credit-card debt. Thomas was awarded the 2000 Ford F250. Subsequently, the chancellor denied Ashley's request for reimbursement of the children's medical expenses and denied her request for attorney's fees after determining that Ashley failed to show a financial inability to pay.

¶8. Thomas now appeals from the chancellor's judgment, arguing that the chancellor erred by (1) disregarding Ashley's retirement savings in the equitable-distribution analysis;


(2) granting physical custody of the children to Ashley; and (3) refusing to deviate from the statutory child-support guidelines.


¶9. "This Court has a limited standard of review in examining and considering the decisions of a chancellor." Ravenstein v. Ravenstein, 167 So.3d 210, 215 (¶8) (Miss. 2014). If supported by substantial evidence, a chancellor's factual findings will not be disturbed unless "the chancellor abused [her] discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard." Varnell v. Rogers, 198 So.3d 1278, 1280 (¶7) (Miss. Ct. App. 2016). On appeal, this Court "is required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong." Newsom v. Newsom, 557 So.2d 511, 514 (Miss. 1990). "This is particularly true in the areas of divorce and child support." Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss. 1994) (citing Nichols v. Tedder, 547 So.2d 766, 781 (Miss. 1989)).


I. Equitable Distribution

¶10. Our supreme court has "long recognized that, incident to a divorce, the [c]hancery [c]ourt has authority, where the equities so suggest, to order a fair division of property accumulated through the joint contributions and efforts of the parties." Ferguson, 639 So.2d at 924 (quoting Brown v. Brown, 574 So.2d 688, 690 (Miss. 1990)). Therefore, the court adopted guidelines in Ferguson for the equitable-distribution method for dividing marital assets. Id. at 928. "There is no automatic right to an equal division of jointly-accumulated


property, but rather, the division is left to the discretion of the court." Brown, 574 So.2d at 691.

¶11. Thomas argues that the chancellor erred by failing to classify Ashley's retirement account as marital property. We reexamine the chancellor's application of the Ferguson factors, but in doing so, we do not conduct a new Ferguson analysis. Phillips v. Phillips, 904 So.2d 999, 1001 (¶8) (Miss. 2004). Instead, we "review[] the judgment to ensure that the chancellor followed the appropriate standards and did not abuse [her] discretion." Id. In the present case, we must decide whether the chancellor's denial of a portion of Ashley's retirement benefits to Thomas, which was acquired during their marriage, complies with the Ferguson standards. We find that it does not.

¶12. "Marital assets include any and all property acquired or accumulated during the marriage." Carrow v. Carrow, 741 So.2d 200, 202 (¶10) (Miss. 1999) (citing Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss. 1994)). "Retirement plans are considered marital assets." Phillips, 904 So.2d at 1002 (¶9) (citing Coggin v. Coggin, 837 So.2d 772, 775 (¶5) (Miss. Ct. App. 2003)); see also Owens v. Owens, 798 So.2d 394, 400 (¶16) (Miss. 2001).

¶13. At the hearing, Ashley admitted that her BancorpSouth retirement savings, in the amount of $15, 018.19, was accrued during the course of the marriage:[4]

Q: So whatever retirement you generated at BancorpSouth Bank, that was during the marriage and before you separated, right?
A: Yes.

Although Ashley admitted that the BancorpSouth retirement account was accrued during the marriage, the chancellor made the following determination regarding the account:

The Court values the 2000 Ford F250 at $500.00 and the 2015 Dodge Ram at $6, 102.00; and $0.00 value for [Ashley's] BancorpSouth Bank retirement account. Each party has requested their respective vehicle. [Ashley] has requested that she retain her BancorpSouth retirement account. [Thomas] made no specific claim to this account.

¶14. On appeal, Ashley fails to address this issue and does not rebut Thomas' contention that the chancellor failed to properly value or account for Ashley's retirement account in the equitable-distribution analysis. As a result of the chancellor's findings, we reverse and remand for the chancellor to revise the distribution of Ashley's retirement account in the division of marital assets.

II. Child Custody

¶15. "[T]he polestar consideration in child custody cases is the best interest and welfare of the child." Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). To meet these goals, courts evaluate the following factors introduced in Albright:

1. The age, sex, and health of the child;
2. The continuity of care prior to the separation;
3. The parenting skills of each parent; 4.The willingness and capacity to prove primary child care;
5. The employment of the parents and the responsibilities of that employment;
6. The physical and mental health and age of the parents;
7. The emotional ties of the parent and

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