                    IN THE SUPREME COURT OF MISSISSIPPI
                             NO. 1998-CA-01795-SCT
LEALVE FISHER
v.
EARNEST J. FISHER

DATE OF JUDGMENT:                   12/07/1998
TRIAL JUDGE:                        HON. PAT WISE
COURT FROM WHICH APPEALED:          HINDS COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:             JESSIE L. EVANS
ATTORNEY FOR APPELLEE:              SHARON PATTERSON THIBODEAUX
NATURE OF THE CASE:                 CIVIL - DOMESTIC RELATIONS
DISPOSITION:                        REMANDED - 11/16/2000
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                     12/7/2000




                           CONSOLIDATED WITH

                            NO. 97-CA-00837-SCT
LEALVE FISHER
v.
EARNEST J. FISHER

DATE OF JUDGMENT:                   03/31/1997
TRIAL JUDGE:                        HON. PAT WISE
COURT FROM WHICH APPEALED:          HINDS COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:             JESSIE L. EVANS
ATTORNEY FOR APPELLEE:              SHARON PATTERSON THIBODEAUX
NATURE OF THE CASE:                 CIVIL - DOMESTIC RELATIONS
DISPOSITION:                        REMANDED - 11/16/2000
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



   EN BANC.

   COBB, JUSTICE, FOR THE COURT:
                                     STATEMENT OF THE CASE

¶1. Earnest J. Fisher filed for a divorce, temporary restraining order and other temporary relief from her
husband of 29 years, Lealve Fisher. Mrs. Fisher alleged as her grounds for divorce habitual cruel and
inhuman treatment, adultery, and irreconcilable differences. Temporary relief was granted to Mrs. Fisher,
and Mr. Fisher counterclaimed for divorce. The chancellor granted Mrs. Fisher a divorce on the ground of
habitual cruel and inhuman treatment due to the physical abuse by Mr. Fisher and his extramarital affairs
throughout the course of the marriage. Mr. Fisher filed a motion to clarify the judgment of divorce, which
Mrs. Fisher answered counterclaiming for contempt for his failure to pay sums then due under the judgment.
A postponement of a hearing on the motion was allowed in order to give the parties an opportunity to
obtain certain information for the chancellor. Mr. Fisher filed a notice of appeal, and Mrs. Fisher filed a
motion to dismiss because the trial court had not ruled on all of the issues. This Court granted the motion
and dismissed the appeal without prejudice. Following a hearing on Mr. Fisher's motion to clarify, the trial
court denied that motion. A notice of appeal to this Court from the final judgment was timely filed, assigning
as error the following three issues:

      I. THE CHANCELLOR ERRED IN GRANTING A DIVORCE TO APPELLEE ON THE
      GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT.

      II. THE CHANCELLOR COMMITTED MANIFEST ERROR IN AWARDING ONE
      HALF OF APPELLANT'S RAILROAD RETIREMENT TO APPELLEE, IN REQUIRING
      APPELLANT TO PAY THE SUM OF TWO HUNDRED DOLLARS PER MONTH AS A
      UTILITY ALLOWANCE, AND IN THE GENERAL DISTRIBUTION OF THE ASSETS
      ACCUMULATED DURING THE MARRIAGE OF THE PARTIES.

      III. THE CHANCELLOR COMMITTED REVERSIBLE ERROR IN AWARDING USE
      AND POSSESSION OF THE PARTIES' MARITAL DOMICILE TO APPELLEE
      UNCONDITIONALLY AND BY FURTHER REQUIRING APPELLANT TO PAY THE
      MONTHLY HOUSE NOTE ON SAID DOMICILE WITHOUT GIVING APPELLANT
      ANY INCREASE IN HIS EQUITY IN SAID DOMICILE.

¶2. We remand to the trial court for the limited purpose of having the chancellor make the required record
of the findings of fact and conclusions of law regarding the distribution of the marital estate.

                                     STATEMENT OF THE FACTS

¶3. Earnest and Lealve Fisher were married on July 5, 1968, and had three children, two of whom were
still living, grown and married at the time of the divorce. Mr. Fisher had worked for Illinois Central Railroad
for 16 years during the marriage, and he had been laid off about 6 years from that job. He worked a short
period of time for J.B. Hunt and 5 years for Southern Drayage as a truck driver, and in 1996, he began
driving a truck for Jitney Jungle.

¶4. Mrs. Fisher had been employed as a crossing guard with the Jackson Police Department for 15 years
and also at Jackson Academy for 1 ½ years. She had worked at various other jobs providing services such
as baby sitting, personal care needs of a family member, cleaning, flower arranging and assisting with
weddings at her church.
¶5. The parties bought a home in 1971 and resided in this domicile together until their final separation in
August 1996. Five years before their final separation the parties had been sleeping in separate bedrooms.
Mrs. Fisher alleged that her husband would stay out late at night, and when she tried to refuse him entry into
the home he would shove her out of the way. Mr. Fisher began sleeping on the couch and moved to a spare
bedroom when one of the daughters moved out. Both parties had locks on their bedrooms, and Mr. Fisher
had even put a refrigerator in his room. One night after he came in late, and Mrs. Fisher was questioning
him about where he had been, she picked up a screwdriver and demanded that he tell her who he had been
with. She testified that he grabbed her, hit her "up side" the head and that after she fell to the floor he kicked
her. Mr. Fisher alleged that he hit his wife in self-defense. Mrs. Fisher also testified that she had seen the
defendant with other women on several occasions, but Mr. Fisher denied the allegations of adultery.

¶6. After hearing the testimony of all parties, and having weighed the credibility of the witnesses before the
court, the chancellor found that Mr. Fisher had committed adultery, and had been habitually cruel and
inhuman in his treatment of his wife. Accordingly, the chancellor awarded the divorce on the ground of:

      habitual cruel and inhuman treatment, finding that the habitual treatment shall also include the manner
      and the relationships which Mr. Fisher had with the three other witnesses, . . . that - - again, the Court
      finds that there is sufficient grounds for uncondoned adultery, but can only award a divorce on one
      particular ground, and the ground is habitual cruel and inhuman treatment, with the Court having
      considered the treatment of the extramarital affairs and the adulterous relationship that Mr. Fisher has
      convinced this Court that he has had throughout the course of the marriage and specifically since the
      filing of the second divorce. And for those reasons, the Court will grant Mrs. Earnest Fisher a divorce
      on the grounds of habitual cruel and inhuman treatment.

¶7. The chancellor, without making the requisite findings of fact and conclusions of law, awarded Mrs.
Fisher the use and possession of the marital domicile as well as one-half of Mr. Fisher's pension from Illinois
Central Railroad. Mrs. Fisher was also awarded the use and possession of the household furnishings
excluding the bedroom set and Mr. Fisher's personal items. Further, Mr. Fisher was ordered to pay the
mortgage on the home, a $200.00 per month allowance for all utilities associated with the home, and $1,
500.00 in partial attorney fees. He was not required to provide health insurance coverage, and he was not
divested of title to his undivided one-half interest in the marital domicile.

                                        STANDARD OF REVIEW

¶8. This Court will not reverse a chancellor's decree of divorce unless it is manifestly wrong as to law or
fact. The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of
witnesses and the weight of their testimony. This Court views the facts of a divorce decree in a light most
favorable to the appellee and may not disturb the chancery decision unless this Court finds it manifestly
wrong or unsupported by substantial evidence. Richard v. Richard, 711 So.2d 884, 888 (Miss. 1998)
(citing Rawson v. Buta, 609 So.2d 426, 429 (Miss. 1992)).

                                                DISCUSSION

      I. THE CHANCELLOR ERRED IN GRANTING A DIVORCE TO APPELLEE ON THE
      GROUNDS OF HABITUAL CRUEL AND INHUMAN TREATMENT.

¶9. "The ground of habitual cruel and inhuman treatment may be established by a preponderance of the
evidence, rather than clear and convincing evidence, and the charge 'means something more than
unkindness or rudeness or mere incompatibility or want of affection.'" Id. at 888 (citing Daigle v. Daigle,
626 So.2d 140, 144 (Miss. 1993)). "Evidence sufficient to establish habitual, cruel and inhuman treatment
should prove conduct that: either endanger[s] life, limb or health, or create[s] a reasonable apprehension of
such danger, rendering the relationship unsafe for the party seeking relief or, in the alternative, be so
unnatural and infamous as to make the marriage revolting to the offending[ed] spouse and render it
impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its
continuance." Id.

¶10. Justice requires that the chancellor's primary inquiry must be into the ground for divorce with a dual
focus upon 1) the conduct of the offending spouse and 2) the impact of that conduct upon the plaintiff. Id.
at 890. The requirement of physical violence or threats of such for a claim of cruel and inhuman treatment to
lie apply only when those are the acts alleged in the complaint. Id. at 889. This Court no longer requires
that a specific act must be the proximate cause of a separation before a divorce may be granted on grounds
of habitual cruel and inhuman treatment. It is, instead, habitual or continuous behavior over a period of time,
close in proximity to the separation, or continuing after a separation occurs, that may satisfy the grounds for
divorce. Id. at 890.

¶11. Mr. Fisher contends that his wife did not present sufficient testimony and evidence to show that she
was entitled to a divorce on the ground of habitual cruel and inhuman treatment, relying on Potts v. Potts,
700 So.2d 321, 322 (Miss. 1997). However, Potts is distinguishable on its facts, with the only similarity
being that Mr. Potts did sleep in a separate bedroom and would return when he wanted to have sexual
relations with his wife. There was no evidence that Mr. Potts was seeing other women, which appears to be
the primary basis for the chancellor's decision in the case sub judice, nor that Mr. Potts ever hit Mrs. Potts.
In the present case, testimony revealed that Mr. Fisher had indeed hit his wife, and shoved her on numerous
occasions even though he alleged that he hit her in self-defense, and that he had been seeing other women
on a regular basis for quite some time.

¶12. This Court finds that Mrs. Fisher's allegations that she can no longer live with her spouse on account of
his conduct are justified. Testimony revealed that Mr. Fisher often came home late and when Mrs. Fisher
would stand in the doorway to block his entry into the home, he would push her out of the way. Their
daughters testified that they had witnessed their father strike their mother and push and shove her out of the
way on numerous occasions. On cross-examination as to whether her father ever pushed her mother down
on the floor, in response to counsel's question "He never pushed her down on the floor or anything, did he?
He just pushed her aside; isn't that correct?", one of the daughters stated: "No, they have fought; they have
fought."

¶13. The chancellor also found credible evidence convincing her that uncondoned adultery had occurred
and stated for the record that the divorce was being awarded on the ground of habitual cruel and inhuman
treatment which would also include the manner and the relationships which the defendant had throughout the
course of the marriage. Mr. Fisher's conduct was habitual and/or continuous behavior over a period of time,
sufficient to satisfy the requirements for divorce on the ground of habitual cruel and inhuman treatment.
Thus, the chancellor was not in error. This issue is without merit.

      II. THE CHANCELLOR COMMITTED MANIFEST ERROR IN AWARDING ONE
      HALF OF APPELLANT'S RAILROAD RETIREMENT TO APPELLEE, IN REQUIRING
      APPELLANT TO PAY THE SUM OF TWO HUNDRED DOLLARS PER MONTH AS A
      UTILITY ALLOWANCE, AND IN THE GENERAL DISTRIBUTION OF THE ASSETS
      ACCUMULATED DURING THE MARRIAGE OF THE PARTIES.

¶14. "Mississippi applies the doctrine of equitable distribution when deciding issues of marital assets."
Traxler v. Traxler, 730 So.2d 1098, 1101-03 (Miss. 1998). "Marital property is defined as, 'any and all
property acquired or accumulated during the marriage'." Id. Assets so acquired or accumulated during the
course of the marriage are marital assets and are subject to equitable distribution by the chancellor
governed by the guidelines delineated in Johnson v. Johnson, 650 So.2d 1281 (Miss. 1994), Ferguson
v. Ferguson, 639 So.2d 921 (Miss. 1994), and Hemsley v. Hemsley, 639 So.2d 909 (Miss. 1994). In
Knutson v. Knutson, 704 So.2d 1331, 1332 (Miss. 1997), this Court stated:

      The first step is to identify the character of the parties' assets, both marital and nonmarital, pursuant to
      Hemsley. Johnson, 650 So.2d at 1287. The chancellor should then, in light of each party's
      nonmarital property, employ the Ferguson factors as guidelines and equitably divide the property. Id.
      The Court instructed the chancellor to do no more "[i]f there are sufficient marital assets which, when
      equitably divided and considered with each spouse's nonmarital assets, will adequately provide for
      both parties...." Id. However, "[i]f the situation is such that an equitable division of marital property,
      considered with each party's nonmarital assets, leaves a deficit for one party, then alimony based on
      the value of nonmarital assets should be considered." Id.

¶15. In the present case, the chancellor stated: "In regard to the division of the marital assets, the court has
reviewed and considered the issues in Ferguson v. Ferguson and will not outline those issues item by
item, but will find as a specific finding of fact that it has considered that in rendering its decision in the
division of the marital assets." She then proceeded to distribute the assets.

¶16. Although the chancellor was correct in applying the Ferguson factors to effect the equitable division
of the Fishers' marital property, she did not make specific findings of fact and conclusions of law in support
of her division of the assets, as this Court has required in Ferguson, 639 So. 2d at 929, Sandlin v.
Sandlin, 699 So. 2d 1198, 1203-04 (Miss. 1997), Kilpatrick v. Kilpatrick, 732 So. 2d 876, 880 &
882 (Miss. 1999), and Heigle v. Heigle, No.1999-CA-00007-SCT, 2000 WL 1642426, at *5-6 (Miss.
Nov. 2, 2000). As a result, this Court has no choice but to remand this action so that the trial court may
complete its task and make the requisite findings of fact and conclusions of law. In so doing, the chancellor
should, inter alia, identify the "utility allowance" in the context of alimony, consistent with prior cases of this
Court.

                                                Attorney's Fees

¶17. In his summary of his argument, Mr. Fisher stated that the chancellor erred in requiring him to pay $1,
500 of his wife's attorney's fees, yet this point was not addressed in his statement of the issues.
Nevertheless, we choose to address it.

¶18. "The decision as to whether to award attorney's fees in a divorce case is within the sound discretion of
the chancellor." Grogan v. Grogan, 641 So.2d 734, 744 (Miss. 1994). "This Court will not overturn a
chancellor's decision regarding attorney's fees unless the chancellor was manifestly in error." Id. "Ordinarily
an award of attorney's fees should not be made unless the party requesting such fees can establish the
inability to pay the fees." Id.
¶19. Mrs. Fisher testified that she owed $3,086.50 in attorney's fees, having paid $1,000 on the initial
retainer and some court costs. She further testified that she paid this by obtaining a loan, shown on her
financial disclosure statement, and had no means to pay the unpaid balance. The chancellor was presented
ample evidence of Mrs. Fisher's inability to pay the fees, and this award of attorney's fees was an not abuse
of the chancellor's discretion. She also accommodated Mr. Fisher's request and ordered that the $1,500 be
paid in monthly installments of $100. We find no abuse of discretion with regard to the award of attorney's
fees.

                                              CONCLUSION

¶20. We remand this case to the Hinds County Chancery Court, First Judicial District, so that the
chancellor may make the requisite specific findings of fact and conclusions of law regarding the distribution
of the marital assets.

¶21. REMANDED.

     PRATHER, C.J., PITTMAN AND BANKS, P.JJ., SMITH, MILLS, WALLER AND DIAZ,
     JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.
