Before Prather, C.j., Banks And Waller, JJ.
The opinion of the court was delivered by: Waller, Justice,
DATE OF JUDGMENT: 03/27/97
TRIAL JUDGE: HON. KENNETH BARKLEY ROBERTSON
COURT FROM WHICH APPEALED: NESHOBA COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 1/14/99
¶1. Appellant, Laura Gipson Kilpatrick ("Laura"), filed a Complaint for Divorce against her husband Appellee, Johnnie Max Kilpatrick ("Max"), in the Chancery Court of Neshoba County Mississippi, on October 5, 1993. Laura filed an Amended Complaint for Divorce on September 30, 1994. On February 13, 1997, Special Chancellor Kenneth B. Robertson rendered a decision granting Max and Laura a divorce on the ground of irreconcilable differences.
¶2. Aggrieved by the Special Chancellor's decision, Laura appealed assigning two errors:
I. WHETHER CHANCELLOR WAS MANIFESTLY IN ERROR IN DENYING LAURA KILPATRICK AN AWARD OF PERIODIC ALIMONY, SO THAT HIS DECISION SHOULD BE REVERSED.
II. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR AND APPLIED AN ERRONEOUS LEGAL STANDARD IN THE DIVISION OF MARITAL PROPERTY AND AWARD OF LUMP SUM ALIMONY SO THAT HIS DECISION SHOULD BE REVERSED.
¶3. Because Max is a practicing attorney in the district, both sitting chancellors in the Sixth Chancery Court District recused themselves by an Order dated December 20, 1994. This Court appointed Kenneth B. Robertson of Pascagoula as a Special Chancellor on March 2, 1995. On October 2, 1995, Max and Laura entered into a Consent to Divorce on the Ground of Irreconcilable Differences listing eighteen contested issues summarized below.
1. Who should have use, ownership and possession of the former marital residence and adjoining lot and who should pay expenses associated with the home;
2. The form, amount, duration and manner of alimony, if any;
3. Who should have use, ownership, and possession of a 1991 Lincoln Town car, who should pay the debt and operating expenses on the car and whether Max should furnish Laura with a replacement vehicle of comparable value;
4. Who should have use, ownership and possession of Cabin #178, titled in Max's name, at the Neshoba County Fairgrounds;
5. Whether Max should pay the joint debts of Max and Laura;
6. Equitable division of the real property and financial assets of Max and Laura and whether the equitable distribution theory of law adopted by the Mississippi Supreme Court is unconstitutional under the Constitutions of the United States and the State of Mississippi;
7. Whether Max should pay Laura a reasonable attorney's fee and all costs of court;
8. Whether Max should have a credit against any equitable division for (1) the college expenses paid for Max's and Laura's children and (2) additional tax liability for Laura's refusal to file a joint tax return;
9. Whether any proceeds derived from fees earned by Max in the case of Jackson v. General Motors should be subject to equitable division and whether any expenses or after-raised claims of that case or claims from the Estate of Cliff Finch should be charged to any share awarded to Laura;
¶4. Laura and Max appeared for trial on November 20, 1995 and December 19 and 20, 1995.
¶5. After taking the matter under advisement *fn1 , on February 13, 1997, Special Chancellor Robertson rendered a decision granting Max and Laura a divorce on the ground of irreconcilable differences and approving Max's and Laura's agreement in which Max assumed responsibility for their son's college education expenses. Special Chancellor Robertson, addressing the contested issues, then issued findings summarized below.
1. Equitable distribution is not unconstitutional.
2. Laura was granted title and ownership of the marital home and adjoining residential lot and all contents of the home. Max was to pay all mortgage payments due on the home. Max was also to pay all ad valorem taxes and insurance on the home through 2000. ...