FREDERICK A. PETTERSEN APPELLANT
AUDREY S. PETTERSEN APPELLEE
OF JUDGMENT: 10/05/2016
JACKSON COUNTY CHANCERY COURT HON. MICHAEL L. FONDREN JUDGE
ATTORNEY FOR APPELLANT: G. CHARLES BORDIS IV
ATTORNEY FOR APPELLEE: ROSS JONATHAN FRANCO
GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
The Jackson County Chancery Court granted Frederick and
Audrey Pettersen an irreconcilable-differences divorce on
March 10, 2016, and the parties agreed to let the court
resolve any remaining issues concerning child custody and the
equitable distribution of marital assets. After trial, the
court entered its final judgment dividing the marital assets
on October 5, 2016. Frederick appeals the court's
finding, claiming the court erred in (1) failing to award him
child support; (2) determining the date of demarcation; (3)
its determination of the equitable division of the
couples' retirement accounts; and (4) its classification
of certain real property and other miscellaneous assets.
Finding no abuse of discretion in the chancery court's
findings, we affirm.
AND PROCEDURAL HISTORY
Frederick and Audrey were married in Richmond, California, on
January 23, 1990. At the time of the marriage, Frederick was
fifty-two years old; Audrey was thirty-four. Both were
chemical engineers employed by Chevron. Frederick retired in
1992, and the couple embarked on a seven-year sailing trip
around the world. Three children were born of the marriage:
(1) Sara was born in June 1990; (2) Luke was born April 1993;
and (3) Ryan was born November 1995. In 2000, the couple
bought a marital residence in Gautier, Mississippi. Frederick
already owned several rental properties in Mobile, Alabama
prior to the marriage.
In March 2009, Audrey left the marital residence, moving out
of state with another man. But in December 2010, she returned
to Gautier and moved into a rental home she and Frederick
owned located at 5101 Deerfield Avenue. Although Audrey never
moved back to the marital residence, the parties made
attempts at reconciliation throughout their separation, with
the last attempt being in July 2014. Also during this period,
Audrey returned to college to obtain a degree in education,
and Frederick supported her, putting funds into a joint
credit-card account for her use.
Frederick filed for divorce on September 3, 2014, seeking a
divorce on the grounds of habitual cruel and inhuman
treatment and desertion. Audrey filed a counterclaim for
divorce. On December 12, 2014, a temporary hearing was held,
and a Family Master entered a fill-in-the-blank style
temporary order, which simply denied Audrey's request for
attorney's fees. It did not address any other issues. On
February 13, 2015, the chancery court entered a temporary
order stating that the parties were to have joint legal and
physical custody of their minor child, Ryan, and visitation
was to be equally divided between the parties. Frederick was
ordered to pay Audrey a one-time payment of $2, 000, and then
$2, 500 per month until further order by the
After a day of trial testimony, the parties entered into a
written consent to divorce based on irreconcilable
differences on March 10, 2016. They agreed that the issue to
be decided by the chancery court was the equitable division
of marital assets and liabilities. However, an amended
consent to divorce on irreconcilable differences was later
filed, adding the issues of alimony, attorney's fees,
child support, and college expenses, as well as child
On October 5, 2016, the chancery court entered its opinion
and final judgment. Because Ryan was almost twenty-one years
old, the court did not order child support. Employing the
applicable factors from Ferguson v. Ferguson, 639
So.2d 928 (Miss. 1994), the court analyzed and awarded
marital assets as follows:
(1) Frederick was awarded the marital residence at 2025 Glen
Cove (valued at $162, 400) and ordered to pay Audrey $53, 500
in equity. Audrey was awarded the property at 5101 Deerfield
(valued at $55, 400).
(2) Rental properties:
i. 675 Merritt Drive - Deemed a separate asset and
awarded to Frederick.
ii. 670 Merritt Drive and 3757 San Juan Drive -
Finding that Audrey contributed to the upkeep of these
properties and performed bookkeeping services from before
1990 to 2011, the court concluded twenty-percent of the
properties' value was marital; so Audrey received ten
percent of the value-$6, 860 and $5, 770 respectively.
iii. Patio Apartments: Although Frederick had
purchased the Patio Apartments and almost paid off the note
on the property prior to the marriage, the chancery court
determined it was a marital asset as both parties had
"contributed substantially" to the property, and
its value ($513, 758.50) was to be split evenly between the
parties. Frederick was awarded ownership of the property
(including rental proceeds) and ordered to pay Audrey $256,
iv. 3940 Bienville Boulevard - As the parties
purchased the property during the marriage, it was deemed a
marital asset and both parties awarded one-half of its value
of $357, 070. Fred was awarded ownership and ordered to pay
Audrey her one-half interest of $178, 535.
(3) Retirement Accounts: The chancery court determined that
the appreciation of the couple's retirement accounts
during the marriage (Audrey - $112, 427.75/Frederick - $810,
020.48) constituted marital property and was subject to
property division; therefore $922, 448.23 was to be split
equally between the parties. Audrey was to receive her entire
retirement account to offset this amount, and Frederick was
ordered to convey $348, 796.36 to Audrey via a Qualified
Domestic Relations Order.
(4) Liabilities and Debts: The court found no marital
liabilities or debts.
(5) All requests for attorney's fees were denied, as both
parties had "ample assets to pay for their respective
filed a motion for reconsideration or to alter the judgment
on October 17, requesting the chancery court to reconsider
the division of property - specifically the retirement
accounts, commercial property, and Patio Apartments. The
chancery court denied the motion on December 16, and
Frederick appeals the court's decision.
A chancellor's decision is reviewed by this Court for
abuse of discretion. Jenkins v. Jenkins, 60
So.3d 198, 200 (¶6) (Miss. Ct. App. 2011) (citing
Mabus v. Mabus, 890 So.2d 806, 810 (¶14) (Miss.
2003)). "We will not disturb the chancellor's
factual findings unless the chancellor was manifestly wrong,
clearly erroneous, or the chancellor applied an improper
legal standard." Id. at 200-01 (¶6).
Questions of law, however, are reviewed de novo. Id.
at 201 (¶6).
Whether the chancellor erred by not considering child
At the time of the March 2016 hearing, the couple's son,
Ryan, was twenty years old and, for the most part, lived
several hours away at college. The chancellor commented at
the hearing: "It's going to be hard to tell a
[twenty]-year-old where to put his head at night." In
the October 5, 2016 final judgment, the chancellor found:
At the time of the trial, Ryan was a college student living
away from home. He will be an adult in November of 2016.
Because he is turning twenty-one in about one month and he is
off at college, this [c]ourt will not order child support.
Further, the child custody, visitation, and support issues
were not presented to this [c]ourt to be
decided. After Ryan obtains the age of majority
this [c]ourt does not have the power to obligate either party
to provide support for Ryan.
Frederick argues that the chancellor should have ordered
Audrey to pay child support for Ryan during the duration of
the divorce proceedings. He also claims Audrey should have
been ordered to pay child support, including college
expenses, for the year preceding the filing of his complaint.
Mississippi Code Annotated section 93-11-65 (1)(d) (Rev.
2013) provides: "The noncustodial parent's
liabilities for past education and necessary support and
maintenance and other expenses are limited to a
period of one (1) year next preceding the commencement of an
action." (Emphasis added). This language is not
mandatory, however. The chancery court still maintains
discretion on whether to award the child support. Therefore,
we find no merit to this claim.
As to his assertion that "[t]he lower [c]ourt's
refusal to consider the issue of child support was
detrimental to the best interest of the minor child," we
note that although both parties presented these issues in
their initial complaint/counterclaim, Frederick made no
argument below regarding the chancery court's failure to
address this issue in the temporary order. At trial, when
asked if he wanted custody of Ryan, Frederick replied,
"I'm willing to go joint custody. I don't have a
problem with that." Frederick's attorney also
remarked at trial that Ryan was "going to be an adult in
November," and there was no real concern conveyed by the
parties on this issue during the trial. It was actually the
chancery court's decision to put the issue of child
custody and support in the amended consent to divorce
"just to ...