                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 1998-CA-01644-SCT
PATRICIA A. LOUK
v.
JOHN MARK LOUK



DATE OF JUDGMENT:       10/16/1998
TRIAL JUDGE:            HON. JAMES H. C. THOMAS, JR.
COURT FROM WHICH        FORREST COUNTY CHANCERY COURT
APPEALED:
ATTORNEY FOR            MAURA D. McLAUGHLIN
APPELLANT:
ATTORNEYS FOR APPELLEE: JOHN W. LEE, JR.
                        PAUL RICHARD LAMBERT
NATURE OF THE CASE:     CIVIL - DOMESTIC RELATIONS
DISPOSITION:            AFFIRMED IN PART AND REVERSED AND REMANDED IN
                        PART - 06/22/2000
MOTION FOR REHEARING
FILED:
MANDATE ISSUED:         7/13/2000



     BEFORE BANKS, P.J., WALLER AND DIAZ, JJ.

     WALLER, JUSTICE, FOR THE COURT:

¶1. This case involves a divisive and emotionally charged suit for divorce. Patricia A. (Patty) Louk and John
Mark (John) Louk were married in September of 1980. They had three children: Jessica Donnell, born in
1981, Amanda Lea, born in 1984, and Jonica Renea, born in 1988. Patty had a child, Jeremy, born in
1976, from a previous marriage, and John adopted Jeremy following his marriage to Patty.

¶2. John and his father, R. L. Louk, began a business enterprise in 1989 manufacturing Ol' Man Tree
Stands, a portable tree stand used by hunters. The business was incorporated as L & L Enterprises, Inc.
Patty was employed by the corporation and performed a wide range of jobs from bookkeeping to cleaning.
Patty had been a homemaker prior to her employment with her husband's company.

¶3. In February of 1997, Patty sued John for divorce on the grounds of habitual cruel and inhuman
treatment. John counterclaimed for divorce on grounds of adultery. During the 20-month period following
the filing of the initial complaint and the Chancellor's entry of final judgment for divorce, the parties were
continuously filing motions and appearing for hearings in the Chancery Court. They sought temporary orders
concerning child custody and support, visitation for John, maintenance for Patty, and several contempt
citations because neither party complied with the temporary orders.

¶4. Eventually, the parties consented to a divorce on the ground of irreconcilable differences, reserving the
following issues for the Chancellor's consideration and judgment: (1) whether Patty had any interest or
entitlement in L & L Enterprises; (2) John's visitation with the children; (3) the amount of child support to be
paid by John; (4) the division of household furnishings and appliances; and (5) who should claim the minor
children for purposes of state and federal income taxation. The parties included the following language in
their consent agreement:

      The parties do further agree to submit the above referenced issues to the Court for determination
      based on the matters contained in the pleadings, the documents and other items of evidence stipulated
      into evidence by the parties and sworn affidavits of the parties as to all issues and upon sworn
      affidavits of the expert witnesses listed by both parties with regard to the issue of visitation by Mr.
      Louk with the minor children of the parties. . . .

¶5. The following facts are revealed by the pleadings and filed affidavits:

      A. Patty claimed that John had been physically and verbally abusive towards both the children and
      her. She further claimed that John had killed cats and beaten dogs in the presence of the children, and
      the children feared their father and feared for the well-being of the family pets.

      B. Throughout the pendency of the divorce, the Chancellor ordered that all visitation between John
      and his children be supervised. Often the children chose not to attend scheduled visitation; neither
      parent forced the children to visit with John.

      C. Dr. Beverly Smallwood, the psychologist who treated John and the children, opined by affidavit
      that John was well on his way to establishing a productive relationship with his children and that
      supervised visitation was unnecessary, although continued counseling was necessary.

      D. Patty lived in the home with the children after the separation and received $750 a month in child
      support from John.

      E. Patty was unemployed from the date her employment with L & L Enterprises was terminated until
      the time of the divorce.

      F. John claimed a net monthly income of $3,950. His affidavit alleges that he owns 7,000 shares of
      stock in L & L Enterprises. The stock was valued at $98.29 per share by May & Company, experts
      retained by John. John's stock, therefore, was worth $688,030.

      G. Patty claimed an interest in L & L Enterprises, which she requested be paid to her in the form of
      lump sum alimony. Patty disputes the value of L & L Enterprises, pointing out the CPA firm of
      Nicholson & Co. showed that L & L Enterprises had a total assets value of $2,646,245 for the
      company, of which 70% or $1,852,371, belonged to John.

      H. Since Patty had no income other than temporary child support during 1997, John claimed the
      minor children as dependents for purposes of federal and state income taxation.

      I. Patty and John agreed to the following: they should have joint legal custody of all three children,
      with Patty enjoying primary, physical custody; John should provide medical insurance for the children,
      and life insurance on himself with the children as beneficiaries; John should pay all of the children's
      medical bills and joint debts of the marriage; Patty would convey her interest in the real property in
      return for $32,500, or one-half of its equity; Patty would keep the 1993 family van, and John would
      make the last payments; Patty would receive ownership of the 1992 Mazda driven by Jessica; John
      and Patty would be responsible for their own legal fees; Patty waived all rights to periodic or
      rehabilitative alimony, but not a lump sum payment in exchange for her interest in L & L Enterprises;
      and John was not the father of Patty's child born during the pendency of the divorce, and should bear
      no financial responsibility for same.

¶6. The Chancellor's judgment incorporated the above agreed-upon provisions and a memorandum
opinion. His findings as to the disputed issues were as follows: John received unsupervised visitation as set
out in the schedule, namely every other weekend and some holidays. John and the children were ordered to
continue their counseling sessions with Dr. Smallwood. Custody and visitation rights would be revisited by
the court 180 days after the judgment was entered. John would pay to Patty $500 a month for each child
for support, totaling $1,500 a month. John would claim the three children as dependents for purposes of
income taxation. Patty received $398,080.20 in lump sum alimony, representing 40% of John's interest in L
& L Enterprises based on the stockholder's equity; $100,000 of the award was to be paid within 30 days
of the final judgment, the remainder to be paid annually in four equal installments. The parties should equally
divide the furnishings and appliances of the marital home.

¶7. Dissatisfied with the judgment, Patty has appealed to this Court raising five issues:

      I. The court erred by awarding unsupervised visitation to John without addressing the
      emotional and physical abuse of the minor children.

      II. The court erred by failing to consider, and make findings on, the tax consequences of the
      equitable distribution and the needs of the parties for financial security.

      III. The court erred by granting the dependency exemptions for the minor children to John.

      IV. The court erred in finding that John owned 70% of L & L Enterprises, Inc.

      V. The court erred in accepting the parties' stipulation that the contested issues would be
      determined on the pleadings, the documents, other items stipulated into evidence and the
      affidavits, when there was no hearing or trial before the Chancellor on any issue.

                                        STANDARD OF REVIEW

¶8. "Our scope of review in domestic relations matters is limited by our familiar substantial
evidence/manifest error rule." Magee v. Magee, 661 So. 2d 1117, 1122 (Miss. 1995). An appellate court
may reverse a chancellor's finding of fact only when there is not "substantial, credible evidence" justifying his
finding. Williams v. Rembert, 654 So. 2d 26, 28 (Miss. 1995) (quoting Snow Lake Shores Property
Owners Corp. v. Smith, 610 So. 2d 357, 360 (Miss. 1992)). "Our scope of review in domestic relations
matters is limited under the familiar rule that this Court will not disturb a chancellor's findings unless
manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard." Johnson v.
Johnson, 650 So. 2d 1281, 1285 (Miss. 1994) (citing McEwen v. McEwen, 631 So. 2d 821, 823
(Miss. 1994)).
                                                DISCUSSION

      I. The court erred by awarding unsupervised visitation to John without addressing the
      emotional and physical abuse of the minor children.

¶9. Patty argues that the Chancellor did not make sufficient findings or a reasoned explanation for his
decision to grant unsupervised, as opposed to supervised, visitation to John, given the allegations of John's
abuse towards his family. Patty believes that the Chancellor should have entered specific findings of fact on
the issue. Mississippi Rule of Civil Procedure 52(a) provides: "In all actions tried upon the facts without a
jury the court may, and shall upon the request of either party to the suit or when required by these rules, find
the facts specifically and state separately its conclusions of law thereon and judgment shall be entered
accordingly." The Chancellor, therefore, has discretion to make specific findings absent a request by the
parties. In this case, Patty did not make a request for findings of fact and conclusions of law.

¶10. Patty cites Tricon Metals & Servs., Inc. v. Topp, 516 So. 2d 236 (Miss. 1987), where this Court
held that trial courts should enter specific findings of fact and conclusions of law in matters of great
complexity, even absent a request from the parties involved. In Tricon Metals, the Court stated, "Where,
however, a case is hotly contested and the facts greatly in dispute and where there is any complexity
involved therein, failure to make findings of ultimate fact and conclusions of law will generally be regarded
as an abuse of discretion." Id. at 239. While it is arguable that any matter regarding child custody is a matter
of great complexity, in this case the facts do not seem to be in great dispute. Dr. Smallwood testified
through affidavit that supervised visitation was unnecessary. Patty offered no evidence, other than her own
allegations of events that occurred before John and the childrens' counseling with Dr. Smallwood. No
contrary expert opined that John posed a physical danger to his children and that supervised visitation was
needed.

¶11. The Chancellor did, however, attach to the final judgment a memorandum opinion, wherein he stated:
"After a full and comprehensive review and consideration of the affidavits presented by the parties and
exhibits submitted the Court makes the following findings and adjudication . . . ." The Chancellor did offer
some explanation for his rulings. As to the subject visitation, the Chancellor opined:

      While the materials presented indicate a pattern of conduct on the part of Defendant [John] which
      creates concern about his temperament he should have an opportunity to develop a proper
      relationship as a father with his children. The Court is concerned about his reported conduct and
      ability to have a relationship with his children without constant emotional strain on the children as well
      as constant upheavals from the parties, especially Plaintiff [Patty]. The Court is also concerned about
      the obvious role model and example deficiencies set by Plaintiff in having a relationship resulting in a
      child being born out of wedlock and especially during the separation of the parties by a father other
      than Defendant. Each of these concerns creates confusion for proper development of the minor
      children as a direct result of the dysfunctional environment created by the parties in this matter and is
      detrimental to the emotional development and well being of the children. In that light, custody and
      visitation is to be reviewed in this matter in 180 days, and it is directed that the parties, both Plaintiff
      and Defendant, and their minor children, within 30 days of a final judgment in this cause, are to
      schedule and keep appointments for counseling with Dr. Beverly Smallwood, Ph.D., toward the end
      of maintaining a continued and positive relationship by Defendant and Plaintiff with their children.
The Chancellor clearly considered the evidence presented by the parties, and maintaining continuing
jurisdiction over this matter, decided the issue of visitation. In fact, given the affidavit of Dr. Smallwood, the
Chancellor had adequate evidence to award unsupervised visitation in this case. His decision is not an abuse
of discretion, and the Chancellor's decision is affirmed on this issue.

      II. The court erred by failing to consider, and make findings on, the tax consequences of the
      equitable distribution and the needs of the parties for financial security.

¶12. In this assignment of error, Patty alleges that the Chancellor should have looked to the factors set out
in Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1987), in determining her interest in L & L
Enterprises. Patty asserts that the Chancellor's findings and judgment do not indicate that the Chancellor
considered her financial security or the tax consequences of his award. Patty is correct that the
memorandum opinion does not specifically cite or refer to the Ferguson factors in any meaningful analysis.

¶13. Although the Chancellor in this case made an award of lump sum alimony as specifically requested by
Patty, it appears that the award was actually in the nature of an equitable distribution of property. Indeed,
John's brief specifically acknowledges that the award was a division of marital assets not taxable to Patty as
income, nor deductible by John. Because this award involves distribution of marital property, we reverse the
Chancellor's alimony award and remand the case for the Chancellor to make specific findings of fact
regarding the factors set forth by this Court in Ferguson, including the tax consequences to each party, and
to allow for an equitable division of the parties' interests in L & L Enterprises based on those findings.

      III. The court erred by granting the dependency exemptions for the minor children to John.

¶14. Again Patty asserts that the Chancellor should have taken into consideration that the award of lump
sum alimony would be taxable to her when the Chancellor determined who would receive the tax
exemptions for the minor children. As discussed above, this Court is uncertain that the award in question
would amount to a tax liability on Patty's part. However, since that award is reversed, Patty's reasoning in
this assignment of error is moot.

¶15. As to the award of the tax exemptions to John, we find that the Chancellor's decision was not
manifestly erroneous or an abuse of discretion given the facts of this case. Since Patty is not gainfully
employed and John is paying $1,500 per month to support the children, which is well above the statutory
guidelines for support, John is, at least at the present time, better able to use the tax exemptions.

¶16. In Nichols v. Tedder, 547 So. 2d 766 (Miss. 1989), this Court held that a Chancellor could order
the custodial parent to waive tax exemptions for dependent children in favor of the non-custodial spouse.
The Court engaged in a thorough analysis of the differing tax consequences, but did not set forth specific
factors that a Chancellor should consider in determining which spouse should be entitled to the tax
exemptions.

¶17. Income of the spouses is not the only factor that should be considered in determining who should be
awarded the tax exemptions, especially considering the non-economic but nevertheless valuable
contributions contributed by the custodial parent. Other states have set forth specific guidelines for such a
determination; for example, in Indiana, the judge should consider, at a minimum: (1) the value of the
exemption at the marginal tax rate of each parent; (2) the income of each parent; (3) the age of the
child(ren) and how long the exemption will be available; (4) the percentage of the cost of supporting the
child(ren) borne by each parent; and (5) the financial burden assumed by each parent under the property
settlement in the case. Glover v. Torrence, 723 N.E.2d 924, 938 (Ind. Ct. App. 2000).

¶18. Although many cases do not involve incomes or estates significant enough to justify this type of
analysis, a Chancellor would be well-served to consider these factors where appropriate.

¶19. In this case, however, the Chancellor's decision does not appear to be an abuse of discretion. Patty
had no significant independent income from which she would enjoy any advantage in having the dependent
child exemptions. There is nothing, however, which prohibits Patty from petitioning for modification of this
award should she become gainfully employed and have her household situated so that an evaluation can be
made by the Chancellor to allocate the exemptions. The judgment is affirmed as to this issue.

      IV. The court erred in finding that John owned 70% of L & L Enterprises, Inc.

¶20. Patty states that John actually owns 74.5 percent of L & L Enterprises, and John concedes that this is
true. This is not a contested issue, but appears to be a simple mathematical error on the part of the
Chancellor. The Chancellor ruled that Patty should receive 40% of John's interest in the corporation, which
the Chancellor found to be 70% or 7,000 shares of 10,000 outstanding shares. In actuality, the corporation
had repurchased 600 shares of stock, so that he owns 7,000 of 9,400 shares, or approximately 74.5%.
There is, then, a discrepancy between the Chancellor's stated intent of awarding Patty 40% of John's
interest and the actual value of the award that was made. Out of an abundance of caution, the Chancellor's
judgment is reversed and remanded on this issue to reconsider what appears to be a mathematical error.

      V. The court erred in accepting the parties' stipulation that the contested issues would be
      determined on the pleadings, the documents, other items stipulated into evidence and the
      affidavits, when there was no hearing or trial before the Chancellor on any issue.

¶21. Patty alleges in this assignment of error that, despite the agreement of the parties that there would be
no hearing on this matter, the Chancellor should have nonetheless held a hearing. This Court addressed this
issue in Sandlin v. Sandlin, 699 So. 2d 1198 (Miss. 1997), where the parties agreed to submit their
testimony in the form of affidavit, with each party offering counter-affidavits to those submitted by the
opponent. The Court acknowledged that the parties had waived their right of confrontation and cross-
examination. In addition, the Court stated that trial by affidavit should be avoided except for in the summary
judgment context under Rule 56. Id. at 1205. However, since "both parties made a 'knowing and intelligent'
waiver of their respective rights to cross examination, allowing the chancellor to rely upon their affidavits in
reaching his decision, we find that this issue is without merit." Id. Similarly in this case, the parties both
knowingly and voluntarily consented to a decision by the Chancellor without a trial or hearing. An open
hearing may be a more desirable avenue for addressing contested issues as it gives the Chancellor an
opportunity to observe first hand the character and demeanor of the parties and judge their credibility.
Nevertheless, in this case, the Chancellor was presented with more than adequate factual evidence to make
his decision. In addition, the Chancellor had the opportunity to observe the parties and consider many
underlying issues in this case during the contempt hearings in this matter prior to rendering his final judgment.
There was no abuse of discretion or manifest error on the part of the Chancellor for respecting the agreed
consent in this case.

                                               CONCLUSION
¶22. For these reasons, the judgment of the Chancery Court of Forrest County is reversed in part as to the
division of marital property, and this case is remanded to the Chancery Court of Forrest County to make
specific findings of fact and conclusions of law regarding the division of marital property, namely the
interests of the parties in L & L Enterprises, Inc., and to make a division based on those findings of fact and
conclusions of law. In all other respects, the judgment below is affirmed.

¶23. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      PRATHER, C.J., PITTMAN AND BANKS, P.JJ., SMITH, MILLS, COBB AND DIAZ,
      JJ., CONCUR. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

      McRAE, JUSTICE, DISSENTING:

¶24. This is a case where there was a property settlement agreement prior to an irreconcilable differences
divorce in which Patty, the wife, agreed to divide the marital property and further agreed that any interest in
her husband's business, L & L Enterprises, be awarded to her as lump sum alimony, which the chancellor
did. We have always required that males adhere to these property settlement "contracts" that they enter into
prior to an irreconcilable differences divorce, so should we also require that females be bound by the terms
as well. What is sauce for the gander is sauce for the goose. Accordingly, I dissent.

¶25. The property settlement between the parties to divide the marital property and give Patty "lump sum
alimony" should be upheld. In the contract,(1) Patty specifically requested that the chancellor
determine what interest, if any, she had in L & L Enterprises and that such interest be awarded
as lump sum alimony and therefore waived her rights to any modification of the settlement in the
future. This Court has "historically recognized that parties may upon dissolution of their marriage have a
property settlement incorporated [into] the divorce decree, and such property settlement is not subject to
modification." East v. East, 493 So. 2d 927, 931 (Miss. 1986); see also McDonald v. McDonald, 683
So. 2d 929, 931 (Miss. 1996); Taylor v. Taylor, 392 So. 2d 1145, 1147 (Miss. 1981); McKee v.
McKee, 382 So. 2d 287, 289 (Miss. 1980). This Court has also held, "alimony awarded in a lump sum, or
in gross constitutes a fixed liability of [a party] and [their] estate and cannot be modified." East, 493 So. 2d
at 931; Wray v. Wray, 394 So. 2d 1341 (Miss. 1981); Butler v. Hinson, 386 So. 2d 716 (Miss.1980);
Schaffer v. Schaffer, 209 Miss. 220, 46 So. 2d 443 (1950); Robinson v. Robinson, 112 Miss. 224,
72 So. 923 (1916); Guess v. Smith, 100 Miss. 457, 56 So. 166 (1911). Since this divorce is based on
irreconcilable differences, this matter is also governed by statute. Miss. Code Ann. § 93-5-2(3)(1994)
specifically states that:

      If the parties are unable to agree upon adequate and sufficient provisions for the custody and
      maintenance of any children of that marriage or any property rights between them, they may consent
      to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon
      which they cannot agree. Such consent must be in writing, signed by both parties personally, must
      state that the parties voluntarily consent to permit the court to decide such issues, which shall be
      specifically set forth in such consent, and that the parties understand that the decision of the
      court shall be a binding and lawful judgment.

(Emphasis added.)

¶26. Since the parties were unable to agree what percentage interest, if any, Patty had in L & L Enterprises,
she specifically requested in accordance with section 93-5-2(3), that the chancellor make that
determination and further requested that he classify that amount as "lump sum alimony." There is an
old maxim that you should be careful what you wish for because you just may get it. Patty received exactly
what she wished for. Per her request, the chancellor determined her interest in L & L Enterprises and
awarded that interest as lump sum alimony. Patty cannot come back and now question the chancellor's
ruling or modify her agreement and "try again" simply because she does not like the results. "Absent fraud or
a contractual provision stating otherwise, neither a property settlement nor lump sum alimony may be
modified." Norton v. Norton, 742 So. 2d 126, 129 (Miss. 1999); Mount v. Mount, 624 So. 2d 1001,
1005 (Miss.1993). Patty has not argued fraud or some contrary contractual provision, and without a
showing of either, neither the chancellor nor this Court has the power to "try again" to grant her wish.

¶27. As to the issue of the miscalculation of John's interest in L & L Enterprises, we should make any
corrections here. The chancellor held that the percentage was 70 percent. The majority has already shown
that the correct number is clearly illustrated in the record as 74 percent. There is no need to send this issue
back to the chancellor to re-evaluate the record and make a new determination, when the majority has
already stated what percentage is to be used.

¶28. The chancellor did not err in making the requested determination of Patty's interest in L & L
Enterprises. The parties clearly stated that they sought a determination from the chancellor of the value of
her interest and that the interest be classified as "lump sum alimony." Time and again we have applied the
above law and principles to requests of former husbands seeking to modify property settlement agreements
containing lump sum alimony provisions, and time and again those requests have been denied. I see no
reason to make an exception to our rule here. Obviously, Patty requested the lump sum alimony so that
there could be no modification or reduction at a later time by John. What is sauce for the gander is sauce
for the goose. Additionally, since the correct calculation as to John's interest in L & L Enterprises has been
established by this Court, there is no reason to remand on that issue either. Accordingly, I dissent.

1. The contract labeled "Consent of Parties to Divorce Being Granted on the Basis of Irreconcilable
Differences and Stipulation of Issues to be Decided by the Court,"reads in pertinent part:

      ITEM 11: Mrs. Louk does hereby waive any and all right or entitlement she may have to periodic or
      rehabilitative alimony. It is the understanding of the parties that the Court may award lump
      sum alimony as it pertains to Item 14 (A).

      ITEM 12: The parties further stipulate and agree that Mr. Louk is not the natural father of the child
      recently born to Mrs. Louk and that the natural father of the child is John O'Flynn and that the Court
      should include in its Final Judgment appropriate language which would authorize the birth certificate of
      such child to be changed to accurately reflect that John O'Flynn is the natural father of such child not
      Mr. Louk.

      ITEM 13: The parties do further agree to execute any and all documents of any kind whatsoever to
      effectuate the provisions of this Consent.

      ITEM 14: The parties further stipulate that they have not been able to reach an agreement regarding
      all other issues and voluntarily consent and petition this Court to dispose of all other issues, towit:

      (A) Any interest or entitlement of Mrs. Louk to L & L Enterprises, Inc. and/or Patent No. 5,
     234,076, which the parties agree shall be paid to Mrs. Louk as lump sum alimony. The
     amount of such lump sum alimony and the schedule of any such payments is to be determined by the
     Court.

     ***

     In executing this consent, the parties acknowledge that they understand that the decision of this Court
     shall be a binding and lawful judgment, and that this Consent may not be withdrawn by either party
     without leave of this Court once proceedings are commenced.

(Emphasis added.)
