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Bullock v. Bullock

Court of Appeals of Mississippi

February 28, 2017


          DATE OF JUDGMENT: 04/21/2015





          GREENLEE, J.

         ¶1. Stephen and Alaina Bullock married in 1999, separated in 2007, and divorced on April 21, 2015. Stephen appeals from the final judgment of divorce, arguing that the trial court erred in the classification and division of certain assets, in refusing to admit certain proffered discovery, in the award of expert fees and attorney fees to Alaina, and in failing to perform a Ferguson analysis[1] on the record.[2] We find no error in the chancellor's classification of marital assets or in the award of expert and attorney fees to Alaina. However, we find that the chancellor erred in failing to conduct a Ferguson analysis on the record. We therefore affirm in part, and reverse and remand in part for further proceedings.


         ¶2. Stephen and Alaina's divorce trial began in June 2010. Earlier, in 2008, a temporary order had been drafted but was never entered on the court's docket. Alaina's attorney wrote to Stephen's attorney and indicated Alaina's intent, absent objection, to use the June 2010 start date of trial as the end of accumulation of assets of the marital estate. At the start of trial, Alaina's attorney noted that they had yet to receive responses to their request for combined discovery from Stephen. However, Alaina wished to waive receiving that discovery and move forward with trial to keep the expense of the divorce from increasing indefinitely.

         ¶3. Stephen's attorney conceded that his client had been dilatory in responding to discovery and requested a continuance, which was denied. After one day of testimony, a matter came up that the chancellor determined required his recusal.[3] The trial was put on hold and a different chancellor assumed the case. On July 18, 2011, the new chancellor entered an order compelling Stephen's response to discovery. On August 17, 2011, the chancellor entered an order appointing a forensic accountant to produce a report evaluating the assets of the marital estate as of the date of the report. The report was issued on January 31, 2012. Alaina's forensic accountant, Jerry Levens, also produced a report on the parties' assets and reviewed the findings of the court-appointed accountant. Levens used the June 2010 start date of trial as the cut-off date of accumulation of marital assets. Levens's report was significantly broader in scope and detail than that of the court-appointed accountant. The court-appointed accountant identified and listed the assets of the parties, but did not arrive at values for the marital homes, opine as to the net worth of the parties, or arrive at a final number. It also did not identify Stephen's investment in Landing Gear, returns on that investment, or the loan to Coast Cycle World.[4]

         ¶4. When trial resumed in 2014, the court denied another request from Stephen for a continuance in order to conduct discovery.[5] Both forensic accountants testified at trial. The chancellor announced on the record that the contributions of both experts were credible, helpful, and operated to supplement each other.

         ¶5. Stephen entered the marriage with an interest in several real-estate properties. He received $22, 917 for one property sold in 2000 and $67, 000 for the other sold in 2003. Stephen also claimed at trial to have entered the marriage with approximately $75, 000.

         ¶6. Alaina entered the marriage owning a piece of real property know as the Eagle Point property. During the marriage, this property was used as collateral for a loan to purchase a marital home. At some point during the marriage, Stephen hired a contractor to build a boat ramp on the Eagle Point property, but failed to pay for the work. Alaina eventually paid the contractor's lien from the proceeds of the sale of the property in 2003.

         ¶7. Later in the marriage but prior to the separation, Stephen made a $120, 000 loan to his parents' business, Coast World Cycling, and a $100, 000 investment into a business called Landing Gear. The investment had produced returns and was still producing returns at the time of trial. Stephen testified, without providing any supporting financial documentation, that he made the investment and the loan with nonmarital monies. In addition to the investment and loan, Stephen claimed to have expended nonmarital funds for other purposes, including over $47, 000 for treatment for alcohol addiction. Alaina testified that Stephen also made an approximately $30, 000 unsuccessful investment in a third business. Stephen acknowledged making an investment but denied that it was as much as $30, 000.

         ¶8. Leading up to trial, Stephen had provided no written response to Alaina's discovery request for Stephen to "produce copies of all items of physical or documentary evidence which you intend to introduce at trial on the merits in this cause." Yet at trial, Stephen proffered as evidence checks purportedly demonstrating that, during the marriage, Alaina used marital funds to reimburse Stephen for expenses that were supposed to have been made with separate funds. The court refused to admit the evidence due to the absence of written responses to the request for discovery and also because Alaina's attorney claimed that the discovery itself had never been delivered to him. Later, the parties confirmed that a disorganized, unlabeled box of miscellaneous discovery had in fact been dropped off at Alaina's attorney's office.[6] Stephen moved to reopen the case to admit the evidence. At the hearing on Stephen's motion to reopen the case, Stephen's attorney offered for Stephen to bear the expense of any fees incurred by Alaina's expert for evaluating the belatedly produced discovery. The court informed the parties that, if he reopened the case, Stephen would be liable for Alaina's attorney fees related to reopening the case.

         ¶9. The court granted the motion to reopen the case and ordered Stephen's attorney to properly answer discovery immediately, to attach the discovery documents to the answers, and to give Alaina's attorney a list of questions he intended to ask so that Alaina's attorney could determine if those documents were in the box delivered and that Stephen's questions were limited to such documents. Stephen never complied with this directive. After two continuances requested by Stephen, Stephen refused to attend the evidentiary hearing, instead conferring with his attorney in the court parking lot and leaving. His attorney explained to the court that Stephen was attending a mud-derby event, and provided the mud-derby brochure to the court and asserted that, in his opinion, his client's actions were due to an apparent emotional breakdown. The court denied Stephen's third motion for a continuance and closed the case.

         ¶10. After the close of trial, the parties agreed to the classification and division of two marital homes, Alaina's car, a timeshare, and several smaller items. By agreement of both parties, the only issues remaining for the court to decide were the classification and division of the Eagle Point property, the classification and division of the funds loaned and ...

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