JEFFREY H. DESCHER APPELLANT
APRIL PUCHEU DESCHER APPELLEE
OF JUDGMENT: 08/22/2018
HARRISON COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT, HON.
JAMES B. PERSONS JUDGE.
ATTORNEYS FOR APPELLANT: DAVID ALAN PUMFORD RICHARD ANTHONY
FILCE ERIK M. LOWREY.
ATTORNEYS FOR APPELLEE: JOE SAM OWEN ASHLEY W. GUNN.
On May 11, 2015, after seventeen years of marriage, April
Descher filed a complaint for divorce against her husband,
Jeffrey (Jeff) Descher. Two children were born of the
marriage. Before a trial began in March 2017, April and Jeff
consented to a divorce based on irreconcilable differences.
The parties agreed to allow the chancellor to decide the
distribution of the marital property, child custody and
custodial child support, and the appropriateness of alimony,
among other disputes submitted to the chancellor for
Jeff either owned by himself or co-owned with his brother
thirteen McDonald's restaurants across the Mississippi
Gulf Coast and southern Alabama, along with an apartment
complex, a car wash, and a commercial building. This resulted
in a profitable and sizable marital estate that was
accumulated during the course of the marriage. The chancellor
valued the marital estate and found that alimony was
appropriate. As a result, the chancellor awarded April lump
sum alimony in the amount of $856, 794.98 and permanent
periodic alimony in the amount of $7, 500 per month. The
chancellor further ordered Jeff to pay $7, 500 per month in
child support and to pay the children's college expenses.
In addition, the chancellor ordered Jeff to purchase a one
million dollar life insurance policy with the two children
listed as the sole beneficiaries. Jeff now appeals the award
of child support, college expenses, and the life insurance
requirement, along with the chancellor's decision to
award April permanent periodic alimony. We find that the
chancellor equitably distributed the vast marital estate and
did not commit manifest error in awarding lump-sum alimony,
requiring the payment of child support and college expenses,
requiring life insurance for the children's benefit, and
awarding permanent periodic alimony. For the reasons set
forth below, we affirm the decision of the chancellor.
April Descher filed a complaint for divorce in 2015. The
parties consented to an irreconcilable-differences divorce on
February 15, 2017. The consent decree asked the chancellor to
determine the issues raised in April's original
complaint, absent the grounds for divorce. The issues
determined by the chancellor that are relevant to this appeal
were child support and any related expenses, college tuition,
life insurance, and permanent periodic alimony.
Throughout their marriage, the Deschers built a sizeable
marital estate. The marital estate came from Jeff's
ownership interest in numerous businesses including thirteen
McDonald's restaurants, an apartment complex, a car wash,
and a commercial building. April was not listed as an owner
on any of the businesses acquired during the
marriage. The record shows that at the time of trial
Jeff's ownership interests, along with the estimated
valuation of those interests by the court appointed expert,
were as follows:
1. The business BGJ, LLC owns an office complex building.
Jeff owned a 33.33% interest along with his brothers Gregg
Descher and Dr. Bill Descher. Jeff's interest was valued
at $208, 000 at trial.
2. The business C2J, LLC owns a car wash. Jeff owned a 50%
interest with Joshua Rimes. At the time of trial, the value
of Jeff's interest was $0.
3. Big D owns 100% of nine subsidiary companies and the
apartment complex (Green Tree Apartments). Jeff and his
brother Gregg each owned a 50% interest. Each of the nine
subsidiary companies owned and operated eleven businesses:
(1) Fourteen D owns two McDonald's stores; (2) Fifteen D
owns one McDonald's store; (3) Sixteen D owns one
McDonald's store; (4) Seventeen D owns one McDonald's
store; (5) Eighteen D owns two McDonald's
stores; (6) Nineteen D owns one McDonald's
store; (7) Twenty D owns one McDonald's store; (8)
Twenty-One D owns one McDonald's store. The total of
Jeff's interests in all of these businesses was valued at
$68, 300 at trial.
4. Four D is not a subsidiary of Big D and owns one
McDonald's store. Jeff owns a 50% interest in Four D. At
trial, Jeff's valued interest was $251, 000.
5. Five D is not a subsidiary of Big D and owns one
McDonald's store. Jeff owns a 50% interest in Five D.
Jeff's valued interest at trial was $710, 000.
6. Six D is not a subsidiary of Big D and owns one
McDonald's store. Jeff owns a 50% interest in Six D. His
valued interest at trial was $152, 000.
7. Twelve D is not a subsidiary of Big D. Jeff is the sole
owner of Twelve D, which owns and operates one McDonald's
store. His valued interest at the time of trial was $912,
total sum of Jeff's interests in all of the businesses he
acquired during the marriage was valued at $2, 301, 300.
April worked for the Descher business conglomerate. She was
responsible for monogramming the uniforms of the
corporation's employees, handling gift certificates, and
addressing customer complaints at any of the thirteen
restaurants. April testified that she worked as an
assistant at Benefield Eye Care before her marriage and as a
sales clerk during high school. Otherwise, April has only
worked for the Descher family. The chancellor found that
April's yearly income was $36, 288, with an adjusted
gross income of $2, 491.25 per month. Her Rule 8.05 financial
statement listed $12, 784.82 in her personal monthly expenses
and $3, 402.33 in expenses for the two children, for a total
of $16, 168.33 in monthly expenses. Because April would receive
the home and her vehicle free and clear of any debt, this
left her personal monthly expenses at $7, 199.50 per month.
Jeff's Rule 8.05 statement listed his monthly income
before taxes as $65, 931.33. Further, his Rule 8.05 listed
his after-tax monthly income at $40, 986.34. However, during
his questioning by April's attorney, it was proved that
these figures were not accurate. Jeff and his accountant
reduced his actual before-tax income by claiming section 179
pass-through expenses,  which are tax deductions for business
expenses in the type of corporations that Jeff had set up.
While those expenses may be tax deductible, they are still
income for the purpose of evaluating child support and
alimony. For example, Jeff claimed $500, 000, which was
actually income for Big D, in pass-through deductions as
expenses for opening a new McDonald's restaurant after
his separation from April. That $500, 000 deduction was used
to reduce Big D's net-profit income by $500, 000. In
other words, Big D's 2016 net-profit was $941, 198, but
Jeff deducted $500, 000 from that $941, 198 as a business
deduction for the new McDonald's. That $500, 000 was
still income for Jeff and his brother and was used to open a
new business. Just because it was classified as a deduction
on his tax returns does not mean that it was not income for
the purposes of child support and alimony. There were
numerous other deductions as well. The chancellor added all
of the deductions Jeff used to reduce his before-tax income
on his Rule 8.05 statement and instead of arriving at the
number suggested by Jeff ($65, 931.33), the chancellor found
that the actual before-tax monthly income for Jeff was $96,
316.66. The chancellor then reduced that figure by the taxes
owed and concluded that Jeff's after-tax monthly income
was not $40, 986.34 (as stated in his Rule 8.05 statement),
but, in fact, was $71, 377.67. This is the monthly income the
chancellor used in evaluating child support and alimony.
The chancellor found that it was in the best interest of the
minor children for April to retain physical custody. Jeff was
ordered to pay $7, 500 in child support each month until the
oldest child reached age twenty-one, married, or was
otherwise emancipated. In addition, the chancellor determined
that Jeff was responsible for the cost of the children's
private or public college education and related expenses,
along with any health and medical expenses. Jeff was also
ordered to obtain a one million dollar life insurance policy
that named the children as beneficiaries to ensure that the
support would continue if Jeff prematurely died.
The chancellor then valued the entire marital estate in an
effort to determine an equitable distribution. The judgment
indicates that the chancellor was thorough in his
distribution of the marital estate. As a result of the
distribution, April received the marital home, valued at
$625, 000, and a 2016 GMC Denali, both of which would be free
and clear of any indebtedness once Jeff paid the loans in
total, as ordered. Further, April received $45, 500 (from the
sale of a Yellowfin boat) and her personal property. Jeff
received his full interests in all the above-listed business
entities, $45, 500 from the sale of the Yellowfin boat, a
1984 Toyota Land Cruiser, and his personal property. The
chancellor found that the total marital estate was valued at
$3, 584, 766.75. The initial distribution of the marital
estate, which included the marital home valued at $620, 000,
left April with a total value of $732, 113.47 and Jeff with a
total value of $2, 445, 703.42. The chancellor found that
after the distribution, April had a deficit of $856, 794.98
when compared with Jeff's portion of the estate. The
chancellor therefore awarded lump-sum alimony in that amount.
Finally, the chancellor ordered Jeff to pay April $7, 500 a
month in permanent-periodic alimony. The chancellor
concluded, "April's equitable distribution share of
the marital estate is non-income producing[, ]" and
April was entitled to live at the standard to which she had
become accustomed. Jeff now claims the chancellor erred in
the award of monthly child support in the amount of $7, 500
and college expenses. Finally, Jeff asserts that the one
million dollar life insurance obligation was excessive and
that April should not receive monthly permanent-periodic
alimony in the amount of $7, 500 because her expenses do not
exceed that income.
This Court's review of matters of divorce, child support,
and alimony are limited. Ferguson v. Ferguson, 639
So.2d 921, 930 (Miss. 1994). In fact, we may only overturn
the findings of a chancellor if "the chancellor was
manifestly wrong, clearly erroneous[, ] or an erroneous legal
standard was applied." Id. (quoting Bell v.
Parker, 563 So.2d 594, 596-97 (Miss. 1990)). Any legal
conclusions of the chancellor are reviewed de novo. See
Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.
Based on April's Rule 8.05 financial statement, the
children have estimated monthly expenses of $3, 402.33. That
sum includes $1, 208.33 in health and dental insurance and
other out-of-pocket medical expense, which the chancellor
ordered Jeff to pay. Following the chancellor's order,
the children's total estimated monthly expense would be
$2, 194 per month. The chancellor awarded a total of $7, 500
in monthly child support. Jeff claims that the award is
excessive because the children's stated expenses are less
than half of what the chancellor ordered. Additionally, Jeff
claims that the chancellor erred because he did not make a
"specific finding" to support the award as required
by Mississippi Code Annotated section 43-19-101(4) (Rev.
The statute indicates that for two children the chancellor
could award twenty percent of the parent's adjusted gross
income (AGI) for support. Id. § 43-19-101(1).
Where the parent makes more than $100, 000 annually, however,
the chancellor may deviate from the statutory guidelines by
making a "written finding in the record as to whether or
not the application of the guidelines . . . is
reasonable." Id. § 43-19-101(4). An upward
deviation by the chancellor of a child-support obligation may
be valid if the increase provides for the children in a
manner in which they have become accustomed. Crittenden
v. Crittenden, 129 So.3d 947, 959 (¶42) (Miss. Ct.
The chancellor found that Jeff's adjusted net income was
$71, 377.67 per month or $856, 532.04 per year. That amount
would have produced a monthly child-support obligation of
$14, 274.33 if the chancellor had applied the statutory
guidelines in subsection 43-19-101(1). The chancellor made a
downward deviation of under twenty percent in Jeff's
favor. Jeff, however, still complains to this Court that the
amount is too much.
This Court has previously rejected "the argument that
equates reasonable support with subsistence" and adopted
the view that "the 'reasonable needs' of the
child ought to be viewed at least as broadly as the
reasonable needs of a wife seeking alimony." Ali v.
Ali, 232 So.3d 770, 777 (¶21) (Miss. Ct App 2017)
The monthly expenses provided for in a party's Rule 805
financial statement do not set a cap on an award of child
support Even if a child's basic needs are met, "[i]t
is not an abuse of discretion for the chancellor to consider
the standard of living to which the child is accustomed in
deciding what amount of support is reasonable" Ali, 232
So.3d at 777 (¶21) (citing Moulds v Bradley, 791 So.2d
220, 228-29 (¶24) (Miss 2001) (Diaz, J, concurring))
Even though April claimed less than $4, 000 in monthly
expenses for the children, her Rule 805 declaration did not
cap out the maximum amount of child support the chancellor
could grant Jeff's monthly income and his earning
potential far surpass April's As Justice Diaz said in his
concurring opinion in Moulds, "[t]he trial court should
not limit the amount in child support to the child's
'shown needs,' because a child is not expected to
live at a minimal level of comfort while the non-custodial
parent is living a life of luxury" Moulds, 791 So.2d at
229 (¶26) (Diaz, J, concurring) (citing People ex
rel. Graham v. Adams, 608 N.E.2d 614, 616 (Ill.App.Ct.
1993)). The Rule 8.05 financial statement is not a
locked-in-time child support determination. The children were
accustomed to a standard of living where their father made
$71, 377.67 per month. They are now living on $7, 500 per
This Court is not a finder of fact, nor do we apply our own
discretion in place of the chancellor's. The chancellor
issued a thirty-two page judgment that clearly articulated
his findings of fact from the evidence presented and the
correct legal standards. This Court only reverses the
decision of a chancellor if his decision is not supported by
the record, results in manifest error, or is an abuse of
discretion. Here, the ...