        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CA-01642-COA

MELISSA CHRISTINE BLACK WEAVER                                           APPELLANT

v.

RICHARD FRANKLIN WEAVER                                                    APPELLEE

DATE OF JUDGMENT:                        10/04/2016
TRIAL JUDGE:                             HON. HAYDN JUDD ROBERTS
COURT FROM WHICH APPEALED:               RANKIN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                  CHRISTOPHER A. TABB
ATTORNEYS FOR APPELLEE:                  J. PEYTON RANDOLPH II
                                         RICK D. PATT
NATURE OF THE CASE:                      CIVIL - DOMESTIC RELATIONS
DISPOSITION:                             AFFIRMED - 05/29/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.

      IRVING, P.J., FOR THE COURT:

¶1.   Melissa Weaver appeals the judgment of the Rankin County Chancery Court, which

granted her and her husband Richard Franklin Weaver a divorce on the ground of

irreconcilable differences and equitably divided the marital estate. She argues that the

chancery court failed to properly consider the relative tax consequences when distributing

the marital assets between her and Richard.

¶2.   Finding no error, we affirm.

                                         FACTS

¶3.   On August 14, 2015, Melissa filed a complaint for divorce from Richard on the

grounds of habitual cruel and inhumane treatment, and in the alternative, irreconcilable
differences. On March 2, 2016, the court entered an agreed temporary order. On May 5,

2016, the parties filed a consent to divorce on the ground of irreconcilable differences, and

the issues of equitable division of the marital estate, alimony, and attorneys’ fees were

submitted to the court to decide. After a lengthy discovery period and a continuance, the trial

was conducted on August 8, 2016, and August 31, 2016.

¶4.    The court issued its judgment of divorce on October 4, 2016, finding that the marital

estate had a value of $555,279.90, not including other property previously divided. The court

awarded Richard fifty-five percent of the valued marital estate, and Melissa the remaining

forty-five percent. The chancellor made a handwritten addition to his order, stating that:

“[Melissa’s attorney] did not approve this order as to form as he thought the order should

mention ‘tax consequences’ but the [c]ourt entered this order without such language as that

can be brought by the appropriate motion at a later date and time.”

¶5.    A hearing on Melissa’s motion to reconsider—addressing the tax consequences of the

distribution of marital assets—was held on October 20, 2016. During said hearing, she

offered into evidence the expert testimony of John Dongieux, an attorney and certified public

accountant. Ultimately, the court denied the motion, and this appeal followed.

                                       DISCUSSION

¶6.    The standard of review is succinctly addressed in Rhodes v. Rhodes, 52 So. 3d 430,

435 (¶15) (Miss. Ct. App. 2011) (citations and internal quotation marks omitted), as this

Court found:



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       Chancellors are afforded wide latitude in fashioning equitable remedies in
       domestic relations matters, and their decisions will not be reversed if the
       findings of fact are supported by substantial credible evidence in the record.
       We will not disturb a chancellor’s factual findings unless the chancellor’s
       decision was manifestly wrong or clearly erroneous, or the chancellor applied
       an improper legal standard. We do not substitute our judgment for that of the
       chancellor, even if we disagree with the findings of fact and would arrive at
       a different conclusion. But when reviewing a chancellor’s interpretation and
       application of the law, our standard of review is de novo.

¶7.    “In ordering an equitable distribution, chancellors are directed to (1) classify the

parties’ assets as marital or separate, (2) determine the value of those assets, and (3) divide

the marital estate equitably based upon the factors set forth in Ferguson.” Rhodes, 52 So.

3d at 436 (¶18). The first step in the court’s analysis of assets in a divorce action is to

determine which assets are separate property and which assets are marital property and thus

subject to distribution between the parties. Pursuant to Hemsley v. Hemsley, 639 So. 2d 909,

914 (Miss. 1994), “[a]ssets acquired or accumulated during the course of a marriage are

subject to equitable division unless it can be shown by proof that such assets are attributable

to one of the parties’ separate estates prior to the marriage or outside the marriage.” After

valuing the marital property, the court distributes it using the factors laid out in Ferguson v.

Ferguson, 639 So. 2d 921, 928 (Miss. 1994). “In doing so, chancellors need not make

findings on each and every Ferguson factor.” Chipley v. Chipley, 210 So. 3d 1030, 1032 (¶6)

(Miss. Ct. App. 2015). Among the factors to be considered by the court are the “[t]ax and

other economic consequences . . . of the proposed distribution.” Ferguson, 639 So. 2d at

928.



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¶8.    Melissa’s sole argument on appeal is that the trial court incorrectly found that there

were no tax consequences attributable to the distribution of the marital property. She asserts

that most of the marital estate that was distributed to her consisted of retirement and pension

funds, which were subject to taxes in order to liquidate those assets. She notes that Richard

received the real property. She cites Louk v. Louk, 761 So. 2d 878, 883 (¶¶12-13) (Miss.

2000), arguing that the Mississippi Supreme Court reversed the trial court’s decision in that

case since it did not do an analysis of the Ferguson factors and did not consider the tax

consequences of the distribution of assets. She also cites Davis v. Davis, 832 So. 2d 492,

500-02 (¶¶30-38) (Miss. 2002), arguing that she will have a more likely need to liquidate

assets in order to provide for herself and the children and that she should not bear the burden

of paying taxes to convert the assets to cash.

¶9.    The court pointed out that there would be no tax consequences to Melissa if she rolled

the money into her own retirement/pension account. However, she argues that the court

failed to consider that because she received mostly retirement/pension funds as her part of

the distribution of assets, she is more likely to have to withdraw some, if not all, of the funds

to purchase a home and provide herself with necessities. She contends that the chancellor

did not take the ten-percent-early-withdrawal penalty and the additional tax burdens into

consideration.

¶10.   Richard responds that the chancellor was correct in his distribution of the couples’

marital assets. He notes that, in the court’s initial ruling, it specifically addressed the tax-



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consequences issue, as the chancellor specifically stated that,

       Ms. Weaver has a vehicle from which she could have any money from a
       retirement transferred to her without incurring any tax penalty. Now, she
       would be – – she would certainly be penalized if she made a draw on any
       money, but that would be her choosing, but just the conveyance of money
       would not be penalizing to her.

Melissa also testified to that effect and had the following exchange with the chancellor:

       [COURT]:      All right. Do you know whether or not Mr. Weaver’s retirement
                     plan can be – – whatever, if a dollar or if a hundred thousand or
                     all of it – – could be rolled over into your account? Do you
                     know?

       [MELISSA]: Yes, sir.

       [COURT]:      Without any penalty of taxing to you?

       [MELISSA]: Correct. It can.

       [COURT]:      Without any penalty of taxation to Mr. Weaver?

       [MELISSA]: Yes.

       [COURT]:      Okay.

       [MELISSA]: It’s only taxed when you remove. It can be rolled over.

       [COURT]:      So you have a vehicle which to receive any retirement without
                     the penalty of taxation?

       [MELISSA]: Right.

Additionally, the court pointed out that Richard’s main concern, with respect to the

distribution, was the real property, and Melissa’s main concern was money. The court also

awarded Melissa periodic monthly alimony payments of $1,250. Richard asserts that



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although Melissa contends that the division of the retirement account would cause her an

insurmountable tax penalty, that should not be an issue because she can avoid those tax

penalties through the entry of a qualified domestic relations order. See Jones v. Jones, 904

So. 2d 1143, 1148 (¶18) (Miss. Ct. App. 2004).

¶11.   We find that the chancellor’s decision was supported by substantial, credible evidence.

The chancellor performed a thorough analysis of the Ferguson factors and specifically

addressed the tax consequences associated with the distribution. He correctly noted that the

issue of tax consequences is only one of several factors that the court considers in the

equitable distribution of marital assets. The chancellor’s finding—that there were no tax

consequences—was based on the fact that a transfer of the assets would incur no tax

consequences, and that either party would incur such if he or she decided to withdraw the

retirement funds early.     We find that the chancellor adequately considered the tax

consequences attributable to the parties. As such, we find no issue with the chancellor’s

findings of fact and his ultimate distribution of the marital estate.

¶12.   AFFIRMED.

    LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.




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