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Foreman v. Foreman

Court of Appeals of Mississippi

July 18, 2017

JOHN DAVID FOREMAN APPELLANT
v.
KRISTY LYNN FOREMAN APPELLEE

          DATE OF JUDGMENT: 11/3/2015

         HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT HON. PATRICIA D. WISE JUDGE

          ATTORNEYS FOR APPELLANT: STEVEN ALFRED KOHNKE TIMOTHY KEVIN BYRNE

          ATTORNEY FOR APPELLEE: SHARON PATTERSON THIBODEAUX

          BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.

          GRIFFIS, P.J.

         ¶1. 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

         ¶2. 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.

         ¶3. 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[1] granting Kristy sole legal and physical custody of the minor child and $3, 500 per month to maintain the mortgage and pay other household bills.

         ¶4. 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

         ¶5. "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).

ANALYSIS

I. Whether the chancellor erred in the division of the marital estate.

         6. 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.

         ¶7. "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) (citation omitted).

A. Classification of Assets

         ¶8. 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.

         ¶9. "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.

         ¶10. 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.

         B. Ferguson Factors

         ¶11. 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 ...


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