        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CA-01724-COA

PAUL V. LACOSTE                                                            APPELLANT

v.

LAURA R. LACOSTE                                                             APPELLEE

DATE OF JUDGMENT:                         03/20/2014
TRIAL JUDGE:                              HON. CYNTHIA L. BREWER
COURT FROM WHICH APPEALED:                MADISON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                  J. PEYTON RANDOLPH II
                                          RICK D. PATT
ATTORNEYS FOR APPELLEE:                   WILLIAM R. WRIGHT
                                          E. FOLEY RANSON
                                          SARAH ANN ELLIS
NATURE OF THE CASE:                       CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:                  GRANTED APPELLEE DIVORCE,
                                          AWARDED CHILD CUSTODY AND
                                          SUPPORT, DIVIDED MARITAL
                                          PROPERTY, AND AWARDED
                                          REHABILITATIVE ALIMONY AND
                                          ATTORNEY’S FEES
DISPOSITION:                              AFFIRMED IN PART; REVERSED AND
                                          REMANDED IN PART - 07/19/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., BARNES AND ISHEE, JJ.

       BARNES, J., FOR THE COURT:

¶1.    Laura Lacoste was granted a divorce from Paul Lacoste based on habitual cruel and

inhuman treatment. Laura was granted sole custody of the couple’s two children, and Paul

was ordered to pay rehabilitative alimony and child support. Paul appeals, arguing the

chancellor erred in awarding Laura sole physical and legal custody of the children, erred in
reducing his visitation schedule, erred in determining child support and alimony, and erred

in refusing to consider newly discovered evidence posttrial. We find no error and affirm as

to these issues.   Paul also argues the chancellor erred in valuing his business and,

consequently, erred in dividing the marital property. We agree the chancellor’s ruling on

Paul’s business valuation was in error. Therefore, we reverse and remand for further

proceedings as to the valuation of Paul’s business. Because we remand on this issue, we

likewise remand for the chancellor to revisit the equitable distribution of property, since it

hinged on the business’s valuation.

                                          FACTS

¶2.    Paul and Laura were married in April 2006 and separated in December 2012. Two

children were born of the marriage, Cannon and Cole, who were six and three at the time of

trial. On January 2, 2013, Paul filed for a divorce in the Madison County Chancery Court

on the grounds of habitual cruel and inhuman treatment and, alternatively, irreconcilable

difference. Laura counterclaimed for a divorce based on habitual cruel and inhuman

treatment, constructive desertion, and, alternatively, irreconcilable differences. Laura later

amended her counterclaim to add adultery as a ground for divorce.

¶3.    On March 20, 2014, Laura was granted a divorce from Paul on the ground of habitual

cruel and inhuman treatment. The chancellor ordered Paul to pay $1,000 monthly in

rehabilitative alimony for twenty-four months. Laura was awarded sole custody of the

couple’s children, and Paul was granted visitation. Paul was ordered to pay $4,280 in child

support monthly, as well as the remainder of the older child’s private-school tuition for the



                                              2
2013-2014 school year. School and childcare expenses were ordered to be divided equally

after that. Paul was ordered to provide health and hospitalization insurance for the children,

and both Paul and Laura were ordered to maintain life-insurance policies with the children

as beneficiaries. For tax purposes, Paul was allowed to claim the children as dependents

from 2014-2016 and every even-numbered year thereafter. Laura was awarded ownership

of the marital home, her vehicle, two bank accounts, the children’s college trust accounts,

and various personal property. Paul received all interest in his business, Next Level Sports

LLC (NLS), also known as Paul Lacoste Sports—a fitness training company owned and

operated by Paul—his vehicle, two bank accounts, and various personal property. After the

division of property, Paul was ordered to pay Laura $73,000 within ten years for her interest

in the marital estate. Paul was also ordered to pay $5,000 toward Laura’s attorney’s fees.

¶4.    On March 28, 2014, Paul filed a motion for a new trial and to clarify and amend the

chancellor’s opinion and final judgment. Laura filed a motion for reconsideration. A hearing

was held on November 14, 2014, following which the chancellor denied both motions.

However, the chancellor entered an order clarifying certain aspects of the final judgment

related to the children’s school expenses—specifically, that Paul was not required to pay all

private-school tuition beyond the 2013-2014 school year; rather, Paul would pay half of the

children’s education in either public or private school, and college tuition would be capped

at the cost of an in-state public four-year Mississippi university.

¶5.    Paul now appeals, raising five issues: (1) the trial court erred in awarding Laura sole

physical and legal custody of the couple’s children and erred in limiting his visitation; (2) the



                                               3
trial court erred in calculating child support; (3) the trial court erroneously valued NLS and

used the erroneous valuation to calculate alimony and divide the marital property; (4) the trial

court failed to consider Laura’s posttrial actions that affected child custody and support, and

the posttrial tax consequences of Laura’s liquidation of her retirement account; and (5)

cumulative error warrants reversal.

                                STANDARD OF REVIEW

¶6.    We review a chancellor’s factual findings for abuse of discretion. McNeil v. Hester,

753 So. 2d 1057, 1063 (¶21) (Miss. 2000). “The findings of a chancellor will not be

disturbed on review unless the chancellor was manifestly wrong [or] clearly erroneous, or

applied the wrong legal standard.” Id. Questions of law are reviewed de novo. Id.

                                       DISCUSSION

       I.     Child Custody and Visitation

              A.      Award of Sole Physical and Legal Custody to Laura

¶7.    Paul argues that the chancellor abused her discretion in awarding Laura sole physical

and legal custody of the couple’s two children.

¶8.    When determining child custody, the chancellor must consider the factors set out in

Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). The Albright factors are: (1) the

children’s age, health, and sex; (2) continuity of care prior to the separation; (3) parenting

skills and willingness and capacity to provide primary child care; (4) the employment of the

parents and responsibilities of that employment; (5) the physical and mental health and age

of the parents; (6) the emotional ties of the parents and children; (7) the moral fitness of the



                                               4
parents; (8) the children’s home, school, and community record; (9) the preference of the

children at the age sufficient to express a preference by law; (10) the stability of the home

environment and employment of each parent; and (11) other factors relevant to the

parent-child relationship. Id.

¶9.    The polestar consideration in child-custody cases is the best interest of the child. Id.

“[T]he chancellor has the ultimate discretion to weigh the evidence the way [she] sees fit.”

Johnson v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003). “So long as there is

substantial evidence in the record that, if found credible by the chancellor, would provide

support for the chancellor’s decision, [we] may not intercede simply to substitute our

collective opinion for that of the chancellor.” Bower v. Bower, 758 So. 2d 405, 412 (¶33)

(Miss. 2000).

¶10.   The chancellor analyzed the Albright factors and found the following factors neutral:

the children’s age, health, and sex; physical and mental health and age of the parents;

emotional ties of parents and children; and the stability of the home environment and

employment of each parent. The children’s preferences were not applicable due to their

young ages. The chancellor found the remaining factors favored Laura. No “other factors”

were considered. Paul takes issue with the chancellor’s findings on two Albright factors:

continuity of care; and the home, school, and community record of the children.

¶11.   First, Paul argues that the chancellor’s finding that the continuity-of-care factor

strongly favored Laura was manifestly wrong and clearly erroneous. He points to the

chancellor’s own language in the final judgment, which details Paul’s involvement with the



                                              5
children: “Paul planned outings for the children and actively participated in sports events,

school events, teacher conferences, birthday parties, and medical care of the children through

the parties’ marriage and year-long separation.” While it is undisputed that Paul was an

involved parent, the evidence nonetheless overwhelmingly supports the chancellor’s finding

that this factor favored Laura. The testimony showed that Laura was the children’s primary

caregiver during the marriage and after the separation. Laura did not work outside the home.

She cared for the children while Paul worked approximately fourteen hours a day. Laura

testified that prior to and after the separation, she picked the children up from school,

prepared their meals, bathed them, put them to bed, got up with them at night, provided

discipline, and spent more time with them. She testified she scheduled and took the children

to all doctor’s appointments. She also stated she was actively involved in Cannon’s school

and extracurricular activities, and she coached Cannon’s soccer team.

¶12.   Paul argued that he was more concerned and attentive regarding Cole’s medical needs,

and that Laura relied on babysitters and had called him home from work several times to help

with the children. Laura testified that this was untrue; rather, Paul used this as an excuse in

order to stay home to work on their marriage.

¶13.   While both parties presented corroborating witnesses, the chancellor gave greater

weight to “Laura’s credibility, her role as primary caregiver prior to and after their

separation, and her corroborating witnesses.” Weighing “[t]he evidence and credibility of

a witness is the sole responsibility of the chancellor[.]” Mabus v. Mabus, 890 So. 2d 806,

816 (¶38) (Miss. 2003). “[T]he chancellor, by [her] presence in the courtroom, is best



                                              6
equipped to listen to witnesses, observe their demeanor, and determine [their] credibility .

. . and what weight ought to be ascribed to the evidence given by those witnesses.” Id. at 819

(¶56). We find the chancellor did not abuse her discretion in finding this factor strongly

favored Laura.

¶14.   Next, Paul argues that the chancellor erred in finding the children’s home, school, and

community record favored Laura. Both parties lived in Madison County. Paul argues there

was ample testimony that both parents were involved in the children’s school and

extracurricular activities and had extended family and support systems nearby, and the

children had a good quality of life, strong family bonds, and access to quality schools. Based

on this, Paul argues the chancellor should have found this factor neutral. The chancellor

considered both parents’ involvement and nearby extended family. But the chancellor also

considered that Laura’s sister lives with her and helps care for the children. Given Laura’s

home environment, the chancellor found this factor favored Laura. The chancellor’s decision

is supported by the substantial evidence. Therefore, we find no abuse of discretion in the

chancellor’s finding that this factor favored Laura.

              B.     Laura’s Alleged Move

¶15.   Paul argues that after the chancellor’s decision was entered, Laura moved to the Gulf

Coast. He argues that because Laura has moved, the chancellor’s findings on certain

Albright factors are no longer applicable, as they hinged on Laura’s living in Madison

County.

¶16.   Paul attempted to introduce evidence of Laura’s alleged move during the hearing on



                                              7
his motion for a new trial. However, the chancellor excluded the evidence, finding it more

appropriate for a modification action. As will be discussed in more detail in issue four, we

cannot find the chancellor erred in doing so. The chancellor correctly based her decision on

child custody on the facts available at the time of trial, and we find no error in her findings.

              C.      Lack of Findings on Joint Custody

¶17.   Paul argues that the chancellor’s award of sole legal and physical custody of the

children to Laura cannot be upheld since the chancellor failed to articulate why joint custody

was not considered.

¶18.   In support of his argument, Paul cites the holding in Crider v. Crider, 904 So. 2d 142,

147 (¶13) (Miss. 2005), which states that “unless the parents are capable of sharing joint

custody cooperatively, it is incumbent upon a chancellor not to award joint custody.”

However, we find nothing in Crider requiring the opposite—that is, Crider does not require

an award of joint custody if the parties are capable of sharing custody cooperatively.

Likewise, we find nothing requiring the chancellor to make written findings on joint custody

when another option is chosen.

¶19.   Paul and Laura each alleged fault-based grounds for divorce, and Laura was ultimately

granted a divorce based on habitual cruel and inhuman treatment. While Paul argues nothing

in the chancellor’s findings precluded an award of joint custody, it was clear from the record

that the parties could not get along during the marriage and had difficulty communicating

during their separation. The chancellor found it in the children’s best interest to grant sole

legal and physical custody to Laura. The chancellor provided a factual basis for her decision,



                                               8
and her decision was supported by the substantial evidence. This issue is without merit.

              D.     Reduced Visitation Schedule

¶20.   Paul next argues that the chancellor abused her discretion in reducing his visitation

schedule from that set in the temporary order, since Laura agreed that the prior visitation

schedule “work[ed] fine.” The temporary visitation schedule gave Paul visitation every other

weekend from Thursday at 4:30 p.m. through Sunday at 5 p.m., and midweek visitation from

4:30 p.m. through 8 p.m. on Thursday during the weeks prior to his regular weekend

visitation, absent another agreement by the parties as to the day and time of the midweek

visitation. The visitation schedule set out in the chancellor’s final opinion granted Paul

visitation every other weekend from Friday at 4:30 p.m. through Sunday at 6 p.m. No

midweek visitation was granted. The final opinion also established a holiday and summer

visitation schedule, which had not been set out in the temporary order.

¶21.   Regarding Paul’s argument that the chancellor erroneously took away his Thursday

and midweek visitation, we note that Laura testified that Paul did not exercise the Thursday

visitation as set out in the temporary order, even though she had encouraged him to do so.

A chancellor has broad discretion in establishing an appropriate visitation schedule. Rushing

v. Rushing, 724 So. 2d 911, 917 (¶27) (Miss. 1998). “In determining visitation, the

chancellor must continue to ‘keep the best interest of the child as his paramount concern

while always being attentive to the rights of the non[]custodial parent, recognizing the need

to maintain a healthy, loving relationship between the non[]custodial parent and his child.’”

Id. (quoting Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994)). The chancellor



                                             9
did not limit Paul’s visitation to only those times set out in the schedule, but stated that the

visitation schedule was “[i]n addition to any periods of visitation which are agreed upon by

the parties[.]” We cannot find the chancellor abused her discretion in setting the visitation

schedule, especially as there was evidence that Paul did not exercise his Thursday visitation

rights.

          II.   Child Support

¶22.      The chancellor awarded child support by applying the statutory guideline of twenty

percent to Paul’s adjusted gross income as reported in his Uniform Chancery Court Rule 8.05

financial statement. This resulted in a child-support award of $4,280 a month. Paul argues

the chancellor’s application of the statutory twenty-percent guideline was error for three

reasons. First, he asserts the chancellor failed to make written findings on whether the

statutory guidelines were applicable, since his income exceeded $100,000. Second, he argues

the chancellor failed to consider fluctuations in his income. Third, he argues the chancellor

failed to take into consideration that he was ordered to pay additional expenses for the

children that should have reduced the monthly child-support award.

                A.     Written Findings on Application of Statutory
                       Guidelines

¶23.      The child-support guidelines set out in Mississippi Code Annotated section

43-19-101(1) (Rev. 2015) create a rebuttable presumption regarding the percentage of

adjusted gross income that should be awarded for child support. The guideline for two

children is twenty percent. Id. However, Mississippi Code Annotated section 43-19-101(4)

(Rev. 2015) states that when a paying party’s adjusted gross income is more than $100,000


                                              10
or less than $10,000, “the court shall make a written finding in the record as to whether or

not the application of the guidelines established in this section is reasonable.”

¶24.   The chancellor recognized that she was not confined by the guidelines since Paul’s

income exceeded $100,000. After review, though, she found “that the application of the

guidelines in this case is reasonable in light of the facts and circumstances.” Paul argues this

statement alone, without additional explanation, was insufficient to satisfy the statute’s

“written finding” requirement.

¶25.   Paul’s argument is similar to the appellant’s argument in Peters v. Peters, 906 So. 2d

64, 72 (¶35) (Miss. Ct. App. 2004). Like Paul, the appellant in Peters argued that the

chancellor’s findings failed to comply with the statute’s written-finding requirement. Id.

The chancellor’s entire written findings stated: “The [c]ourt recognizes that the gross annual

income stated herein exceeds the [statutory maximum]. At this point in time, however, the

[c]ourt sees no reason to deviate from the statutory child support guideline of twenty percent

of the adjusted gross income.” Id. at (¶36). We found that while “rather succinct,” the

chancellor’s statement was “nonetheless a written finding of reasonableness,” and, when

viewed in context of the chancellor’s findings as a whole, was sufficient to comply with the

requirements of section 43-19-101(4). Peters, 906 So. 2d at 72 (¶36).

¶26.   We find the same to be true here. The chancellor detailed her findings on the parties’

finances in great detail in her thirty-four-page opinion. Laura listed her expected monthly

living expenses for herself and the children as $15,291.76. Paul listed his and the children’s

monthly living expenses as $20,634.85. The chancellor considered that Paul’s monthly



                                              11
expenses would decrease after the divorce by least $3,585.42, since he would no longer be

responsible for the mortgage or utilities on the marital home or Laura’s car payment. The

chancellor also considered that Paul’s earning potential was much greater than Laura’s.

Viewed as a whole, we find the chancellor’s findings sufficient to support the adherence to

the statutory guidelines. This issue is without merit.

                 B.     Fluctuations in Income and Other Obligations

¶27.      Mississippi Code Annotated section 43-19-103(d) and (h) (Rev. 2015) states that the

rebuttable presumption of the statutory guidelines may be overcome if “the application of the

guidelines would be unjust or inappropriate” due to “[s]easonal variations in one or both

parents’ incomes or expenses” or the “[t]otal available assets of the obligee, obligor and the

child.”

¶28.      Paul argues that in applying the statutory guideline of twenty percent for child support,

the chancellor failed to consider income fluctuations in his business. For example, Paul

points out that in 2013, he had a training camp on the Gulf Coast, which was sponsored in

large part by Biloxi Regional Medical Center, and the sponsorship would not be continued

due to the death of a participant. He states that it was “uncontradicted . . . that his income

would likely be lower the next year due to the discontinuation of the Coast operations.” We

are not persuaded by Paul’s argument regarding decreases in his business. While it is true

that Paul’s business fluctuates, he has been able to reinvent his company to continue its

profitability. For example, in 2010, NLS’s net profit was $190,718. In 2011, the net profit

was $462,573. In 2012, the net profit was $223,355. Paul testified the 2011 increase was



                                                 12
based on a substantial sponsorship from Blue Cross Blue Shield, which would not be

repeated. However, in 2013, Paul again had a large sponsorship—this time from Biloxi

Regional. This shows that while Paul may lose one sponsorship, another may be gained.

Thus, the business will continue to fluctuate. The chancellor recognized Paul’s income

fluctuations and still found it appropriate to apply the statutory guidelines for child support.

We find no abuse of discretion in her decision.

              C.      Additional Expenses

¶29.   Paul argues that the chancellor failed to consider that he was ordered to pay Cannon’s

outstanding school expenses for 2013-2014, and to split all education, childcare, and

extracurricular expenses with Laura after that. He was also ordered to pay for health,

hospitalization, and dental insurance for the children and to pay equally amounts not covered

by insurance. Paul was also ordered to maintain a minimum $2 million life-insurance policy.

He argues these expenses are in essence child support and should have reduced the monthly

award. He further argues that the chancellor failed to consider that he was ordered to pay

Laura $73,000 over ten years as part of the equitable division of marital property. Paul

asserts that these expenses will reduce his monthly available funds, and, therefore, should

have reduced the monthly child-support award.

¶30.   While a chancellor may reduce child support in light of other financial obligations,

the chancellor is not required to do so. Rather, it is well settled that additional obligations

may be awarded above the basic child-support award. “Parents may be ordered to pay

additional amounts over and above child support for additional expenses such as ‘health



                                              13
insurance, out-of-pocket medical and other health-related expenses, life insurance, and

expenses of a college education.’” Deborah H. Bell, Mississippi Family Law § 10.07 (1st ed.

2005) (quoting Nichols v. Tedder, 547 So. 2d 766, 769 (Miss. 1989)). Therefore, we cannot

find the chancellor erred in awarding these additional obligations on top of basic support.

       III.   Equitable Division and Alimony

              A.      Business Valuation

¶31.   Paul argues that the chancellor inaccurately valued NLS and that this led to an

inequitable distribution of the marital property. Paul does not dispute the chancellor’s

classification of NLS as a marital asset.

¶32.   “When the parties request that the chancellor resolve the issue of property division,

the chancellor must do three things: (1) classify the parties’ assets as marital or separate, (2)

value those assets, and (3) divide the marital assets equitably.” Burnham v. Burnham, 185

So. 3d 358, 361 (¶12) (Miss. 2015). Equitable division of property is governed by the factors

set out in Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994):

       1.     Substantial contribution to the accumulation of the property. Factors
              to be considered in determining contribution are as follows:

              a.      Direct or indirect economic contribution to the
                      acquisition of the property;

              b.      Contribution to the stability and harmony of the marital
                      and family relationships as measured by quality, quantity
                      of time spent on family duties and duration of the
                      marriage; and

              c.      Contribution to the education, training or other
                      accomplishment bearing on the earning power of the
                      spouse accumulating the assets.


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       2.     The degree to which each spouse has expended, withdrawn or
              otherwise disposed of marital assets and any prior distribution of such
              assets by agreement, decree or otherwise.

       3.     The market value and the emotional value of the assets subject to
              distribution.

       4.     The value of assets not ordinarily, absent equitable factors to the
              contrary, subject to such distribution, such as property brought to the
              marriage by the parties and property acquired by inheritance or inter
              vivos gift by or to an individual spouse;

       5.     Tax and other economic consequences, and contractual or legal
              consequences to third parties, of the proposed distribution;

       6.     The extent to which property division may, with equity to both parties,
              be utilized to eliminate periodic payments and other potential sources
              of future friction between the parties;

       7.     The needs of the parties for financial security with due regard to the
              combination of assets, income and earning capacity; and,

       8.     Any other factor which in equity should be considered.

¶33.   Paul began NLS in 2005, the year before he and Laura were married. Laura’s

background is as a personal trainer. She worked with Paul to start and build NLS. The

testimony showed that during the first few years of the marriage, Laura helped manage the

company. She sent emails and developed the website. For a short period of time, she wrote

checks, helped with bookkeeping, attended meetings, and gave physical-therapy advice to

Paul’s clients. She opened a booth at Interior Spaces, but in 2012 it generated no income.

Other than these activities, Laura did not work outside the home and was the children’s

primary caretaker. The chancellor considered that although Paul’s work at NLS substantially

contributed to the accumulation of marital assets, Paul’s behavior and misconduct negatively

                                            15
impacted the marriage. The chancellor also considered Paul’s wasteful dissipation of

$3,170.07 of marital assets, which he spent on his new girlfriend. The chancellor determined

that Paul should be awarded one hundred percent of NLS, and Laura should be compensated

through equitable distribution of the remaining marital property.

¶34.   Because NLS was the couple’s main asset and source of income, an accurate business

valuation is vital for an equitable distribution of the couple’s property. Ferguson factor three

requires the chancellor to determine the market value of assets subject to distribution. Id.

Three approaches may be used in determining the market value of a business for

equitable-distribution purposes: (1) an asset-based approach, in which assets and liabilities

are evaluated, (2) a market-based approach, in which the market is surveyed for similar sales,

or (3) an income-based approach, in which a value is placed on earning potential. Singley

v. Singley, 846 So. 2d 1004, 1011 (¶18) (Miss. 2002).

       [R]egardless of what method an expert might choose to arrive at the value of
       a business, the bottom line is one must arrive at the “fair market value” or that
       price at which property would change hands between a willing buyer and a
       willing seller when the former is not under any compulsion to buy and the
       latter is not under any compulsion to sell, both parties having reasonable
       knowledge of the relevant facts.

Id. Goodwill is excluded when “valuing a business for distribution as marital property in a

domestic case.” Id. “[G]oodwill is simply not property; thus it cannot be deemed a divisible

marital asset in a divorce action.” Id.

¶35.   While “expert testimony may be essential to establish valuation sufficient to equitably

divide property, particularly when the assets are diverse, . . . findings on valuation do not

require expert testimony and may be accomplished by adopting the values cited in the parties’

                                              16
8.05 financial disclosures, in the testimony, or in other evidence.” Jenkins v. Jenkins, 67 So.

3d 5, 13 (¶19) (Miss. Ct. App. 2011). “[I]t is not the chancellor’s duty to obtain appraisals

of the marital property.”     Id.   At the same time, however, “[i]t is the chancellor’s

responsibility in a divorce proceeding to make an adequate investigation into the value of the

marital property that is subject to division[.]” Id.

¶36.   The chancellor considered the three valuation approaches. She found the asset-based

approach inapplicable, as NLS had few assets. NLS is a single-member LLC. It owns little

equipment and has no employees or training facility. Rather, Paul travels to various facilities

to conduct group or individual training programs. NLS’s only assets are the vehicle that Paul

drives and a limited amount of training equipment that can be transported in the vehicle. The

market-based approached was also ruled out, as no comparable business sales were

introduced. Further, the chancellor found this approach inappropriate, as NLS’s success is

largely due to Paul’s reputation and his marketing of the company; thus, an accurate

comparison would be difficult.

¶37.   While the chancellor found the best approach to be the income-based approach, the

chancellor found the parties failed to present sufficient evidence to apply this approach. The

chancellor recognized that “[t]o properly value the company under an income-based

approach, the [c]ourt would need a valuation expert to review the historic earnings, and after

adjusting the income to reflect normalized earnings, multiply the normalized earnings by a

capitalization factor.” No such valuation expert was presented by the parties. Angela Miller,

the CPA who prepares NLS’s tax documents, testified as to NLS’s net profit for 2010-2013.



                                              17
But she was not qualified as an expert in valuation. The chancellor thus stated that because

of the lack of evidence provided, she simply “considered the income and assets of the

company balanced with the debts and liabilities of the company.”

¶38.   To determine NLS’s value, the chancellor looked solely at the profit/loss statement

from the previous year, 2013. The statement showed NLS had a net profit in 2013 of

$358,383.20. The chancellor used this as a starting figure. Then she added $26,380, the

value of a Cadillac Escalade that Paul used to transport equipment for the business. Paul

owed $31,261.14 on the Cadillac, so this debt was subtracted. Also, Paul owed $6,084.74

to an accounting firm for tax preparation. This debt was also subtracted, leaving a

$347,417.32 balance, which the chancellor used as the business’s valuation.

¶39.   In addition to one hundred percent of NLS, the chancellor awarded Paul three bank

accounts worth a total of $7,251.95, his Cadillac, and the furnishings and personal property

in his home worth $34,677.05. Paul was ordered to assume the debt on the Cadillac of

$31,261.14, the tax-preparation debt of $6,084.74, the 2013 state taxes of $3,000, and the

2013 federal taxes of $32,592.52. Laura was awarded the marital home worth $390,000, her

2008 Cadillac Escalade worth $13,500, the furnishings and personal property in her home

worth $40,000, two bank accounts worth $23,983.17, and the children’s college trusts

accounts valued at approximately $30,444.43. Laura was ordered responsible for the debt

on her Cadillac of $12,323.14, and the $345,562.07 mortgage on the marital home.

¶40.   The chancellor noted:

       Due to the disparity in incomes, Laura may need a greater portion of the
       marital estate to eliminate a need for alimony. However, there are little assets

                                             18
       in the marriage that can be awarded to Laura that would balance the value of
       Paul’s business. Even if the Court could equally divide the assets, the division
       of marital property may not be sufficient to meet Laura’s needs.

Because the division of property left Laura with a deficit, the chancellor ordered Paul to pay

Laura $73,000 in nonalimony equitable distribution over a ten-year period.

¶41.   Paul argues that the chancellor’s valuation of NLS was incorrect. Paul argues that

instead of using NLS’s income from the previous year as the basis of the valuation, the

chancellor should have considered what cash “will be” available to Paul if he were to sell the

business. Paul also argues the chancellor’s valuation erroneously included goodwill. As

evidence of this, he cites the chancellor’s statement in the business-valuation section of her

opinion, which states: “NLS [is] a company built by Paul and reliant upon Paul’s reputation,

work ethic and positive results for his clients.” Paul asserts that this statement “makes it

clear” that the chancellor “used the goodwill generated by Paul as a consideration in its

value.”

¶42.   Despite Paul’s arguments on appeal regarding how the chancellor should have valued

NLS, we note that Paul failed to suggest a valuation or present any testimony or other

evidence on valuation. We find the chancellor did the best she could with the evidence

presented. Nonetheless, as we cannot find support for the chancellor’s valuation, we must

reverse for further proceedings.

¶43.   In Mace v. Mace, 818 So. 2d 1130, 1133 (¶13) (Miss. 2002), the chancellor valued the

husband’s medical practice at $144,000 based on the husband’s testimony alone. However,

his valuation did not appear to be based on any reliable method, and it was unclear what, if



                                             19
any, physical assets were included in the valuation. Id. at 1134 (¶15). Rather, the husband

stated he arrived at the valuation based on a formula he saw in a medical journal, which

multiplied net income times six; he admitted he could not give an accurate opinion as to the

true value of his practice. Id. at (¶14). The supreme court remanded the matter to the

chancellor for further proof of business valuation. Id. at (¶15). It emphasized the importance

of a correct business valuation, stating:

       Property division should be based upon a determination of fair market value
       of the assets, and these valuations should be the initial step before determining
       division. Therefore, expert testimony may be essential to establish valuation
       sufficient to equitably divide property, particularly when the assets are as
       diverse as those at issue in the instant case.

Id. (quoting Ferguson, 639 So. 2d at 929). The supreme court held that “[o]n remand the

parties themselves may establish valuation of [the husband]’s practice, if reliable, or they

may prove valuation utilizing expert testimony.” Id. The supreme court further held that the

chancellor “may appoint an independent expert if absolutely necessary and if the parties are

unable to show good cause as to why such expert should not be appointed.” Id. (citing

M.R.E. 706).

¶44.   Here, the chancellor recognized the importance of an accurate business valuation,

stating, “the foundational step to make an equitable distribution of marital assets is to

determine the value of those assets based on competent proof.” (Quoting Dunaway v.

Dunaway, 749 So. 2d 1112, 1118 (¶14) (Miss. Ct. App. 1999)). The chancellor also stated

that valuing NLS was complex. However, the chancellor did not require expert testimony

or further evidence, stating that “it is the parties’ obligation, and not the chancellor[’s], to



                                              20
present evidence touching upon the matters to be tried.” See Dunaway, 749 So. 2d at 1118

(¶14) (“[I]t is incumbent upon the parties, and not the chancellor, to prepare evidence

touching on matters pertinent to the issues to be tried.”).

¶45.   While the chancellor is correct that the parties are responsible for presenting evidence

of valuation, and the chancellor did the best she could with the information available, we find

that the business valuation here was such an important aspect of the chancellor’s ruling that

further testimony was essential to establish a proper valuation to divide the marital property

fairly and correctly. We can find no support for the chancellor’s valuation of NLS based on

one year’s financial statement. As previously noted, Paul’s business income fluctuates

drastically from year to year. While the chancellor’s method of valuation may be proper in

some instances, we cannot find this approach was appropriate under the circumstances of this

case. This is especially true given that the business income may be intertwined with

goodwill, as the business hinges on Paul’s reputation and personal efforts. We cannot

confidently say that the chancellor’s approach gave a correct business valuation or excluded

goodwill.

¶46.   Therefore, we find it necessary to remand this matter to the chancellor for an adequate

valuation of NLS. The parties themselves may establish valuation, if they are able to prove

a reliable method for doing so, or they may prove valuation through expert testimony. See

Mace, 818 So. 2d at 1134 (¶15). If they fail to do so, the chancellor may appoint an

independent expert in accordance with Mace. Such valuation must exclude goodwill. See

id. Once NLS’s correct value is determined, the chancellor must reevaluate the division of



                                              21
marital property and the amount of nonalimony, if any, that should be awarded.

¶47.   The chancellor’s business valuation of NLS and equitable distribution of marital

property are reversed and remanded for further proceedings.

              B.     Alimony

¶48.   Alimony should be considered if one party is left with a deficit after equitable

division. Ferguson, 639 So. 2d at 926. “Alimony and equitable distribution are distinct

concepts, but together they command the entire field of financial settlement of divorce.

Therefore, where one expands, the other must recede.” Watson v. Watson, 882 So. 2d 95,

98 (¶15) (Miss. 2004) (quoting Ferguson, 639 So. 2d at 929). “In the final analysis, all

awards should be considered together to determine that they are equitable and fair.” Id.

¶49.   Paul argues the chancellor’s erroneous business valuation of NLS led to an incorrect

alimony award. He also argues that because the chancellor used the 2013 profit/loss figure

to calculate NLS’s value, and she used the same figure as his income in setting alimony and

child support, he was “hit twice.” He argues this is kin to the inequity the supreme court

warned against in Watson, 882 So. 2d at 101 (¶26). In Watson, Mike Watson was the sole

owner of a veterinary clinic. Id. at (¶29). His wife was awarded permanent alimony based

on the clinic’s projected future income. Id. The clinic’s projected income was also used to

value the business and divide the marital property. Id. Goodwill was not excluded in the

valuation. Id. at (¶26). The supreme court held: “Unless the valuation of the professional

practice carefully avoids any element attributable to the presence and work of the

professional, the result will be a double award to the spouse. The professional’s income will



                                             22
be used, first to calculate alimony, and then again to calculate the value of the ‘business.’”

Id.

¶50.     As we are remanding for the chancellor to reconsider the business valuation and

equitable distribution of property, we need not address whether the chancellor included

goodwill in valuing NLS. Further, the alimony award in Watson is distinguishable from the

case at hand. The wife in Watson was awarded permanent alimony, whereas, here, Laura

was awarded rehabilitative alimony. Because rehabilitative alimony serves a unique purpose,

it is not tied to equitable division and need not be revisited by the chancellor on remand. See

Hearn v. Hearn, 2014-CA-00975-COA, 2016 WL 2638159, at *3 (Miss. Ct. App. May 10,

2016).

¶51.     “Ordinarily, the reversal of a chancellor’s division of marital property requires

reversal of an alimony award.” Id. (citing Mace, 818 So. 2d at 1134 (¶16)). “However, the

decision to award rehabilitative alimony ‘is not considered during equitable distribution.’”

Id. (quoting Lauro v. Lauro, 847 So. 2d 843, 849 (¶15) (Miss. 2003)). “Rehabilitative

alimony provides for a party who is trying to become self-supporting and prevents that party

from becoming destitute while searching for a means of income. . . . [T]he primary purpose

of rehabilitative alimony is to give the former spouse the opportunity to enter the work

force.” Id. (quoting McCarrell v. McCarrell, 19 So. 3d 168, 170 (¶8) (Miss. Ct. App. 2009)).

¶52.     The chancellor considered the factors set out in Armstrong v. Armstrong, 618 So. 2d

1278, 1280 (Miss. 1993), in awarding Laura $1,000 monthly rehabilitative alimony for

twenty-four months. The chancellor considered the parties’ income and expenses, as is



                                              23
required under Armstrong. The chancellor determined that while Laura was capable of

earning a good salary as a physical therapist, she needed support while reentering the

workplace. The chancellor also considered Paul’s greater earning potential and Laura’s

responsibility for the mortgage on the marital home and the debt on her vehicle. The

chancellor found that Laura would likely become insolvent without support.

¶53.   The chancellor’s decision to award rehabilitative alimony was supported by

substantial evidence and was not clearly erroneous. Paul’s argument that the chancellor’s

erroneous valuation of NLS requires reversal of the rehabilitative-alimony award is without

merit. However, as we are remanding for reevaluation of NLS’s fair market value and

equitable distribution of the marital property, we note that the chancellor may find an award

of periodic or lump-sum alimony to be proper upon reevaluation. These types of alimony are

tied to equitable distribution, and “all awards should be considered together to determine that

they are equitable and fair.” Watson, 882 So. 2d at 98 (¶15). Nothing in this opinion

prohibits the chancellor from revisiting periodic or lump-sum alimony on remand.

       IV.    Newly Discovered Evidence

¶54.   After the chancellor’s judgment was entered, Paul moved for a new trial. He sought

to present “newly discovered evidence” that Laura had moved from Madison to the Gulf

Coast; Laura had cashed out a retirement account, leaving him with an additional $13,690.48

tax burden; the accounting bill for the 2013 taxes had increased; and his income had

decreased. At the hearing on the new-trial motion, the chancellor excluded Paul’s alleged

newly discovered evidence, stating his arguments were better suited for a modification



                                              24
action. Paul argues it was error for the chancellor not to consider the evidence, as it went to

Laura’s credibility and was relevant for reconsideration of child custody and the equitable

division of assets.

¶55.   A motion for a new trial under Mississippi Rule of Civil Procedure 59 based on newly

discovered evidence “is an extraordinary motion, and the requirements of the rule must be

strictly met.” McNeese v. McNeese, 119 So. 3d 264, 272 (¶20) (Miss. 2013). Newly

discovered evidence is evidence that existed at the time of trial, but was discovered after trial;

it does not include “evidence that did not exist at the time of trial.” In re V.M.S., 938 So. 2d

829, 834 (¶10) (Miss. 2006) (citing Gray v. Gray, 562 So. 2d 79, 82 (Miss. 1990) (stating

that authorities interpreting Federal Rule of Civil Procedure 60(b)(3) “seem unanimous in

holding that” newly discovered evidence “must have been in existence at the time of trial or

at the time of the judgment which is allegedly in need of correcting”)).

¶56.   None of Paul’s claims are newly discovered evidence. Laura’s alleged move occurred

posttrial. Thus, Laura’s alleged move cannot qualify as newly discovered evidence. The

additional tax burden resulting from Laura cashing out a retirement account is likewise not

newly discovered evidence. Paul testified at trial that he was aware that Laura cashed out

the account in 2013. He testified that he did not know if Laura had withheld taxes when she

cashed out the account, but that he realized if she did not, it would “greatly” impact the

parties’ tax liability if they filed jointly. Laura admitted at trial to withdrawing the money

from her retirement account, and she testified there would be penalties and additional taxes

as a result of her doing so. Paul had a CPA whom he typically contacted on a monthly basis



                                               25
who could have investigated the tax consequences of the retirement account’s liquidation.

The fact that he failed to request the CPA to do so until after trial does not make this

evidence newly discovered. Finally, Paul’s argument that his income had decreased in the

first three months of 2014 is not newly discovered evidence, as this did not occur until after

trial.

¶57.     As to Paul’s arguments regarding Laura’s alleged move, the chancellor recognized his

concern regarding this in her opinion, stating, “Paul was concerned about Laura moving from

the Madison area to be near her family and friends in the Atlanta or Ocean Springs area.”

So the chancellor was aware Laura’s moving was a possibility and was able to consider it

when rendering her opinion. Regardless, none of Paul’s assertions are newly discovered

evidence, and the chancellor correctly excluded them from consideration posttrial. This issue

is without merit.

         V.     Cumulative Error

¶58.     The cumulative-error doctrine states that multiple errors, which alone may not require

reversal, may constitute reversible error if the cumulative effect of the errors resulted in an

unfair trial. Blake v. Clein, 903 So. 2d 710, 732 (¶68) (Miss. 2005). As we find reversal is

warranted on the issues of business valuation and equitable distribution, we need not address

Paul’s cumulative-error argument.

         VI.    Laura’s Request for Attorney’s Fees on Appeal

¶59.     In the conclusion of her brief, Laura seeks an award of attorney’s fees on appeal.

“Generally, this Court has awarded attorneys’ fees on appeal ‘in the amount of one-half of



                                               26
what was awarded in the lower court.’” Holloway v. Holloway, 31 So. 3d 57, 64 (¶24) (Miss.

Ct. App. 2009) (quoting Lauro, 924 So. 2d at 592 (¶33)). Remanding on certain issues, such

as visitation or “calculation of child support does not, in and of itself, preclude the possibility

that we award attorneys’ fees on appeal.” Id.; see also Santos v. Santos, 225 Miss. 425, 429,

83 So. 2d 636, 637 (1955) (finding wife entitled to one-half attorney’s fees on appeal, despite

reversal of divorce decree in favor of husband).

¶60.   Laura was awarded $5,000 in attorney’s fees in the chancellor’s final judgment. She

has submitted an itemized bill for $8,355.93 for her attorney’s fees on appeal. We find Laura

is entitled to $2,500 in attorney’s fees on appeal.

                                        CONCLUSION

¶61.   As we find a lack of support in the record for the chancellor’s business valuation of

NLS, we reverse and remand for an adequate valuation either through additional testimony

of the parties or an expert, who may be appointed by the chancellor if necessary. Once an

accurate business valuation is obtained, the chancellor shall revisit the equitable division of

property and nonalimony award. The chancellor may also revisit whether an award of

periodic or lump-sum alimony may be necessary. All other issues are affirmed.

¶62. THE JUDGMENT OF THE MADISON COUNTY CHANCERY COURT IS
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF
THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT AND
THE APPELLEE.

    LEE, C.J., IRVING, P.J., ISHEE, FAIR, WILSON AND GREENLEE, JJ.,
CONCUR. GRIFFIS, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN PART AND


                                                27
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

       CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART:

¶63.   I would affirm the chancellor’s judgment in this case. In applying our controlling

standard of review, I submit that the record supports the income-based-approach valuation

utilized by the chancellor in determining the market value of Paul’s company, NLS. The

record also supports the chancellor’s finding that the parties failed in their obligation to

present evidence below to support use of the income-based approach.

¶64.   In utilizing the income-based approach, the chancellor explained that she “would need

a valuation expert to review the historic earnings, and after adjusting the income to reflect

normalized earnings, multiply the normalized earnings by a capitalization factor.” The

record reflects that neither Paul nor Laura presented a valuation expert. As a result of the

lack of evidence provided by the parties to support the income-based approach, the record

shows that the chancellor “considered the income and assets of [NLS] balanced with the

debts and liabilities of the company.” The evidence in the record supports the chancellor’s

valuation using this asset approach.

¶65.   We will not disturb the findings of a chancellor unless she was manifestly wrong or

clearly erroneous, or applied an erroneous legal standard. Tatum v. Tatum, 54 So. 3d 855,

859 (¶9) (Miss. Ct. App. 2010). We will affirm a chancellor’s decision where it is supported

by substantial credible evidence. Id. “[W]hen reviewing a chancellor’s equitable distribution

of property, this Court . . . reviews the judgment to ensure that the chancellor followed the

appropriate standards and did not abuse [her] discretion.” Layton v. Layton, 181 So. 3d 275,



                                             28
279 (¶10) (Miss. Ct. App. 2015) (citing Phillips v. Phillips, 904 So. 2d 999, 1001 (¶8) (Miss.

2004)).

¶66.   Paul cannot complain on appeal that the chancellor abused her discretion by utilizing

the income-based asset/liability approach herein since Paul failed to present sufficient

evidence to allow the chancellor to utilize the income-based approach. We have previously

held that “this Court refuses to blame the chancellor for a party’s failure to present sufficient

evidence of property valuation.” Jenkins v. Jenkins, 67 So. 3d 5, 13 (¶20) (Miss. Ct. App.

2011). As a result, I respectfully concur in part and dissent in part from the majority’s

opinion. In so doing, I would affirm the judgment of the chancery court.




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