OF JUDGMENT: 11/3/2015
COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT HON. PATRICIA
D. WISE JUDGE
ATTORNEYS FOR APPELLANT: STEVEN ALFRED KOHNKE TIMOTHY KEVIN
ATTORNEY FOR APPELLEE: SHARON PATTERSON THIBODEAUX
GRIFFIS, P.J., FAIR AND WILSON, JJ.
Kristy Lynn Foreman was granted a divorce from John David
Foreman based on uncondoned adultery. John appeals the
chancellor's distribution of the marital estate, the
alimony award, and the child-support determination.
FACTS AND PROCEDURAL HISTORY
John and Kristy were married on July 19, 1996. They had one
child. After the child's birth, Kristy primarily stayed
home while John worked. John's job required him to spend
lengthy periods of time in China. While in China, John had an
extramarital affair and fathered a child.
John and Kristy separated around October 2012, and John later
filed for divorce based on irreconcilable differences. Kristy
counterclaimed for divorce on the grounds of habitual cruel
and inhuman treatment, uncondoned adultery, and desertion. In
February 2013, Kristy filed for separate maintenance. The
chancellor issued a separate-maintenance order granting Kristy
sole legal and physical custody of the minor child and $3,
500 per month to maintain the mortgage and pay other
On January 25, 2016, the chancellor entered a final judgment
of divorce based on uncondoned adultery. The chancellor
awarded physical custody of the child to Kristy and divided
the marital property. The property division included the
marital home, a timeshare property, vehicles, and John's
retirement account. The chancellor ordered John to pay $700
per month in child support, $3, 300 per month in periodic
alimony, and $3, 500 of Kristy's attorney's fees. The
chancellor also ordered that John provide twenty-four
consecutive months of health insurance for Kristy and assume
all responsibility for the child's dance and choir
expenses. It is from this judgment that John now appeals.
STANDARD OF REVIEW
"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 [or] clearly erroneous, or
[applied] an erroneous legal standard." Ewing v.
Ewing, 203 So.3d 707, 711 (¶9) (Miss. Ct. App.
2016) (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."
Id. (citation omitted).
I. Whether the chancellor erred in the division
of the marital estate.
First, John appeals the chancellor's division of the
marital property. He claims that the chancellor did not
classify the property as marital or nonmarital property prior
to distribution. He further contends that the chancellor
failed to conduct an analysis under the Ferguson v.
Ferguson, 639 So.2d 921, 928 (Miss. 1994), factors when
dividing the marital property. John also argues that the
chancellor's calculation of alimony was erroneous.
"When 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." Ewing, 203 So.3d at 711 (¶11)
A. Classification of Assets
John contends that the chancellor operated under the
presumption that all of the property at issue was marital
property. He argues that the chancellor erred when she failed
to classify the property as marital before making a
distribution. Kristy contends that the chancellor was correct
in her determination because all of the assets were in fact
marital. She asserts that, during the trial, neither party
disputed whether the assets were marital or nonmarital.
"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)). "Once
this is done, the chancellor must [then] look to the factors
set out by the supreme court in Ferguson. . .
." Id. "The Ferguson factors are
used to determine how to divide the marital assets between
the divorcing couple." Id.
From the bench, the chancellor did not clearly classify the
property as marital or nonmarital. "However, a failure
to classify property does not automatically result in
reversible error if the division of property is fair."
Branch v. Branch, 174 So.3d 932, 944 (¶45)
(Miss. Ct. App. 2015) (citation omitted). Here, the
chancellor heard testimony, in which both John and Kristy
stated that they jointly owned the home, timeshare, and
vehicles. It appears the chancellor relied on this testimony;
however, this is not completely clear from the record. We do
not have the benefit of the chancellor's analysis as to
how John's retirement account was a marital asset. As a
result, we must reverse the judgment and remand for a clear
classification of the marital property.
John argues that the chancellor failed to adequately analyze
the Ferguson factors when distributing the marital
property. He further contends that the chancellor made no
findings of fact or conclusions of law to accompany the
property distribution. He mainly asserts error in the