                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2011-IA-01287-SCT

ROBERT G. GERMANY

v.

GINGER GERMANY


DATE OF JUDGMENT:                          08/12/2011
TRIAL JUDGE:                               HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:                 MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   MYLES A. PARKER
                                           JAMES L. CARROLL
                                           STACEY P. STRACENER
                                           CLIFTON M. DECKER
ATTORNEYS FOR APPELLEE:                    SETH C. LITTLE
                                           BARRY W. GILMER
                                           THOMAS A. WALLER
NATURE OF THE CASE:                        CIVIL - DOMESTIC RELATIONS
DISPOSITION:                               REVERSED AND REMANDED - 10/17/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.    This interlocutory appeal arises from the Madison County Circuit Court’s denial of

Robert Germany’s motion to sever and transfer claims filed against him by his wife, Ginger

Germany, to the Germanys’ pending divorce proceeding in the Hinds County Chancery

Court. Finding that many of Ginger’s claims against Robert are either equitable in nature or

are related to divorce and alimony, we reverse the circuit court and remand with instructions
to sever and transfer those claims to the pending divorce action in the Chancery Court of the

First Judicial District of Hinds County, Mississippi.

                              STATEMENT OF THE CASE

¶2.    Ginger filed a complaint against Robert and Holly Morgan for money damages, an

accounting, and injunctive relief in the Circuit Court of Madison County, Mississippi, on

February 24, 2011. On February 28, 2011, Robert filed a complaint for divorce against

Ginger in the Chancery Court of the First Judicial District of Hinds County, Mississippi.

¶3.    In her complaint against Robert, Ginger asserted claims for breach of contract; fraud,

deceit and deception; constructive trust and unjust enrichment; conversion; accounting;

intentional infliction of mental distress; negligent infliction of mental distress; and a request

for injunctive relief. She requested judgment in the form of a constructive trust in her favor

as well as a money judgment against Robert for both actual and punitive damages. Ginger

also requested a judgment against Defendant Morgan for actual and punitive damages for her

claims of alienation of affection, intentional infliction of mental distress, and negligent

infliction of emotional distress.

¶4.    On April 7, 2011, Robert filed in the circuit court a motion to dismiss, an alternative

motion to transfer, and an alternative motion to stay proceedings, arguing that Ginger’s

claims against him are matters of equity or are related to divorce and alimony and would be

better addressed in chancery court. A hearing on the motion was held on June 17, 2011, and

on August 12, 2011, the circuit court judge filed his order denying Robert’s motion. On

August 22, 2011, Robert filed a motion to reconsider and requested that the circuit court

judge stay the proceedings until this Court renders its decision on the interlocutory appeal.


                                               2
¶5.    On September 2, 2011, Robert filed a petition for interlocutory appeal with this Court,

raising the following issues:

       I.      Whether the Madison County Circuit Court erred in denying
               Robert’s Motion to Sever and Transfer Ginger’s claims to the
               pending divorce action in the Chancery Court for the First Judicial
               District of Hinds County.

       II.     Whether the Madison County Circuit Court erred in denying Mr.
               Germany’s Motion to Stay in light of the pending divorce action in
               the Chancery Court for the First Judicial District of Hinds County.

¶6.    The circuit court judge issued an order on November 2, 2011, to hold in abeyance

Robert’s motion to reconsider pending the disposition of the petition for interlocutory appeal.

The court noted that there was “potential for conflicts in a situation where the Plaintiff and

the Defendant Robert Germany may be involved in litigation in two different courts,

involving similar evidentiary matters, at the same time.”

¶7.    Having granted Robert’s petition for interlocutory appeal, we limit our discussion to

the first issue, finding it to be dispositive.

                                  STANDARD OF REVIEW

¶8.    Robert argues that Ginger’s claims, “if viable at all, are within the exclusive subject

matter jurisdiction of the Chancery Court, and should properly be determined with all other

issues in the pending Divorce Action.” Jurisdiction is a question of law which this Court

reviews de novo. Trustmark Nat’l Bank v. Johnson, 865 So. 2d 1148, 1150 (Miss. 2004)

(citations omitted). The standard of review for a ruling on a motion to transfer from chancery

court to circuit court, or vice-versa, for lack of subject-matter jurisdiction is also de novo.

Union Nat’l Life Ins. Co. v. Crosby, 870 So. 2d 1175, 1178 (Miss. 2004).



                                                 3
                                         DISCUSSION

          Whether the Madison County Circuit Court erred in denying Robert’s
          Motion to Sever and Transfer Ginger’s equitable claims to the pending
          divorce action in the Chancery Court for the First Judicial District of
          Hinds County.

¶9.       Robert asserts that the circuit court erred in failing to sever and transfer Ginger’s

claims against him in the underlying circuit court action to the Germanys’ pending divorce

action in the Chancery Court of the First Judicial District of Hinds County, Mississippi.

Robert argues that, although Ginger’s claims were brought “under the guise of being ‘legal’

claims,” they are substantively “matters in equity” or “divorce and alimony.” In support of

his argument, Robert relies on Article 6, Section 159 of the Mississippi Constitution, which

states:

          The chancery court shall have full jurisdiction in the following matters and
          cases, viz.:

                 (a)    All matters in equity;
                 (b)    Divorce and alimony;
                 ...
                 (f)    All cases of which the said court had jurisdiction under the laws
                        in force when this Constitution is put in operation.

(Emphasis added.) Additionally, Article 6, Section 157, of the Mississippi Constitution

requires that “[a]ll causes that may be brought in the circuit court whereof the chancery court

has exclusive jurisdiction shall be transferred to the chancery court.” (Emphasis added.)

This Court has rejected the assertion that Article 6, Section 159 of the Mississippi

Constitution conferred exclusive jurisdiction in all matters of equity when it conferred full

jurisdiction over such matters. W. Horace Williams Co. v. Fed. Credit Co., 21 So. 2d 582,

583 (Miss. 1945) (emphasis added).            However, the Legislature has instructed that

                                                 4
“proceedings to obtain a divorce shall be by complaint in chancery . . . .” Miss. Code Ann.

§ 93-5-7 (Rev. 2004) (emphasis added).

¶10.     The real question before this Court is whether Ginger’s complaint presents legal

claims that should be decided by a jury in circuit court, or whether her claims are really

matters of equity or related to her marriage and/or divorce that should be heard in chancery

court.    This Court has held that, in determining whether a court has subject-matter

jurisdiction, “one must look at the substance, and not the form, of the claim in order to

determine whether the claim is legal or equitable” and “we look to the face of the complaint,

examining the nature of the controversy and the relief sought.” Trustmark Nat’l Bank v.

Johnson, 885 So. 2d 1148, 1151 (Miss. 2004) (citations omitted); Derr Plantation, Inc. v.

Swarek, 14 So. 3d 71, 716 (Miss. 2009) (emphasis added) (citing RAS Family Partners, LP

v. Onnam Biloxi, LLC, 968 So. 2d 926, 928 (Miss. 2007)). Thus, we must look to the

substance of each of Ginger’s claims, examining the nature of the controversy and the relief

sought, to determine whether they are truly legal or equitable in nature.

                A. Breach of Contract

¶11.     Ginger alleges that she and Robert formed an oral contract prior to their marriage and

continuing to the present wherein she agreed to set over her money and assets to Robert for

his use, management, and financial investment purposes. Ginger also allowed Robert to use

her money for the payment of income taxes. Ginger claims that, in exchange, Robert

promised that they would equally share $12,000,000 from his tobacco settlement (the

settlement was earned by Robert in 1999 but he chose to defer receipt of the money until

2011). Although not expressly stated, it appears that Ginger is seeking specific performance

                                               5
of the contract – she claims that they agreed that she would receive repayment of her cash

contributions as well as an equal part of the tobacco money. She also alleges that Robert’s

breach of contract was willful, capricious, and malicious and that the breach amounts to a

separate tort and she should be entitled to actual and punitive damages together with

attorneys’ fees and other costs associated with the litigation.

¶12.   Although labeled as a breach-of-contract claim, the “contract” that Ginger refers to

is an agreement she and Robert made, when they lived together and continuing during their

marriage, for the management of their money and assets. It was held long ago that “marriage

itself, as a personal relation between the parties, is not a matter of contract within the

meaning of the constitutional provision in reference to the inviolability of contracts.” Carson

v. Carson, 40 Miss. 349, 351 (Miss. 1856).

¶13.   While Ginger’s claim to the “tobacco money” is artfully pleaded, this allegation

cannot be considered in isolation. The parties operated under the terms of this “contract”

throughout their ten-year marriage, accumulating and commingling property, until their

separation in 2010. For example, the funds Ginger allegedly entrusted to Robert’s

management were used to purchase marital property, such as the parties’ homes in Jackson,

Mississippi, and Scottsdale, Arizona. As discussed below, the chancellor has found that

Ginger received proceeds from the sale of the Jackson home, contrary to the allegations in

her complaint. The parties also accumulated a substantial wine collection, which Ginger

argues should be sold, with the proceeds being handed over to her. Ginger also claims that

her funds were used for the payment of the income tax debt resulting from Robert’s tobacco

litigation fee, and that a substantial part of Ginger’s estate was committed during the

                                              6
marriage. Finally, as explained more fully below, Ginger has sought and been awarded

separate maintenance in the chancery court proceeding, based in large part on Robert’s

substantial income from the tobacco litigation. Looking at this case as a whole, it would be

impossible for a circuit court to separate Ginger’s breach-of-contract claim from her other

claims that are substantively equitable in nature and concern the distribution of the couple’s

property.   The substance of Ginger’s breach-of-contract claim is whether the parties

commingled their assets during the marriage and whether she is entitled to receive a portion

of Robert’s tobacco litigation fee. The chancery court could better address whether Ginger

is entitled to any of this money when it determines how the parties’ assets should be

separated upon dissolution of the marriage, based on the factors set out in Ferguson. See

Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994).

¶14.   Ginger has been awarded separate maintenance in the divorce action.1 Separate

maintenance is an equitable remedy based upon the marriage relationship, and a decree for

separate maintenance is a command to the husband to resume cohabitation with his wife or

to provide suitable maintenance “until such time as they may be reconciled to each other.”

Daigle v. Daigle, 626 So. 2d 140, 145 (Miss. 1993) (citing Lynch v. Lynch, 616 So. 2d 294,

296 (Miss. 1993)). The purpose of separate maintenance is “to provide, as nearly as may be

possible, the same sort of normal support and maintenance for the wife, all things considered,




       1
        It was revealed at oral argument before this Court that Ginger has sought and was
awarded separate maintenance in the pending divorce proceeding. The chancellor issued a
temporary order granting Ginger separate maintenance on March 20, 2013. Robert’s petition
for interlocutory appeal challenging the award of separate maintenance was denied. See
Robert G. Germany v. Ginger M. Germany, No. 2013-M-01180-SCT (Aug. 28, 2013).

                                              7
as she would have received in the home, if the parties had continued normal cohabitation. .

. .” Robinson v. Robinson, 554 So. 2d 300, 305 (Miss. 1989). When making an award of

separate maintenance, the chancery court is to consider:

       (1)    The health of both husband and wife;
       (2)    Their combined earning capacity;
       (3)    The reasonable needs of the wife and children;
       (4)    The necessary living expenses of the husband;
       (5)    The fact that the wife has free use of the home and furnishings; and
       (6)    Other such facts and circumstances bearing on the subject that might be
              shown by the evidence.

Daigle, 626 So. 2d at 145.

¶15.   In a divorce proceeding, the chancery court will determine the division of marital

assets through equitable distribution and will consider:

       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.
       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;




                                              8
       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.

Ferguson, 639 So. 2d at 928 (emphasis added).

¶16.   Ginger claims that she learned that Robert had breached their “contract” when he

announced on November 29, 2010, that he was having an affair and wanted a divorce. It is

significant to note that Ginger considers the date that Robert announced his intent to file for

divorce as the date that the “contract” was breached. The tobacco money, to which Ginger

alleges she is entitled an equitable share, may or may not be deemed marital property in the

divorce action, but it would be considered during the equitable distribution of the couple’s

property and in determining the amount of separate maintenance or alimony, if any, to which

she would be entitled. See Johnson v. Johnson, 650 So. 2d 1281, 1287 (Miss. 1994) (“If 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.”) Therefore, we find that the substance of the

breach-of-contract claim is related to divorce and alimony and, thus, should be transferred

to the chancery court proceeding.

                     B. Fraud, Deceit, and Deception

¶17.   In her claim for fraud, Ginger reiterates that she set over a substantial amount of her

inheritance, which otherwise would have been nonmarital property.            See Hemsley v.

Hemsley, 639 So. 2d 909, 914 (Miss. 1994) (“Assets acquired or accumulated during the



                                              9
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.”); but see Johnson, 650 So. at 1286 (nonmarital assets may lose such

status if the asset is commingled with marital property or used for familial benefit). She

claims that “all of this commingling of assets and furnishing of money to Defendant

Germany was based on his false material misrepresentations that Plaintiff’s money and other

assets would be invested, safely kept and otherwise returned to Plaintiff upon the receipt and

distribution of the ‘tobacco money’. . . .”

¶18.   Ginger seeks punitive damages “in a sum sufficient to deter such conduct [fraud,

deceit, and deception] in the future.” In support of her contention that her claim for fraud is

legal and not equitable, she cites this Court’s holding in Southern Leisure Homes v. Hardin,

742 So. 2d 1088 (Miss. 1999). In Hardin, the Hardins filed suit against Southern Leisure

Homes, Inc., in the Chancery Court of Washington County. Id. at 1089. The Hardins

alleged that Southern had breached a contract to sell a mobile home to the Hardins, that

Southern had entered the contract with full knowledge that the property already had been

contracted to be sold to another party, and that such actions were both negligent and

fraudulent. Id. The Hardins sought to recover both actual and punitive damages and

attorneys’ fees. Id. This Court found that, although acts of fraud may give rise to actions

in equity, the Hardins clearly were seeking a legal, rather than equitable remedy— $10,000

in actual damages and $100,000 in punitive damages. Id. at 1090.

¶19.   The facts of the case sub judice are distinguishable from those in Hardin. In Hardin,

we concluded that the plaintiff’s claims amounted to “essentially a breach of contract claim

                                              10
which is best heard in circuit court.” Id. But Hardin involved a commercial “arm’s length”

transaction, rather than an agreement between spouses concerning how the couple’s finances

would be managed. The remedy Ginger seeks for Robert’s alleged fraud – “the promised

equal share of the ‘tobacco money’”– further illustrates the equitable substance of her claim.

The fact that she is seeking punitive damages should not be the determining factor of whether

her claim is legal rather than equitable. See Tideway Oil Programs, Inc. v. Serio, 431 So. 2d

454, 464 (Miss. 1983) (Claims for punitive damages are legal and not equitable, but chancery

courts have actual subject-matter jurisdiction over punitive-damages claims). Ginger has

alleged essentially the same set of facts for her fraud claim as she did in her breach-of-

contract claim, which we find to be equitable in nature and related to the parties’ pending

divorce. Accordingly, we find that Ginger’s fraud claim is related to divorce and alimony

and should be transferred to the chancery court proceeding.

              C. Constructive Trust and Unjust Enrichment

¶20.   Ginger’s claim that Robert has been unjustly enriched and that the court should

impose a constructive trust upon certain assets is based on the same set of facts that give rise

to her other claims that she contends are “purely legal.” However, Ginger’s attorney

conceded at the hearing on the motion to transfer that her claims for constructive trust and

unjust enrichment are equitable claims. She, in fact, asserts that “equity should restore her

to her former financial position together with an equitable share of the tobacco money. . . .”

This Court has made it clear that the remedies of constructive trust and unjust enrichment are

equitable. See McNeil v. Hester, 753 So. 2d 1057, 1064 (Miss. 2000) (“A constructive trust

is a fiction of equity created for the purpose of preventing unjust enrichment . . . .”)

                                              11
(emphasis added); Koval v. Koval, 576 So. 2d 134, 136 (Miss. 1991) (Unjust enrichment is

an equitable remedy based on contract law) (emphasis added).

¶21.   Ginger specifically requests an equitable portion of Robert’s assets. Ginger argues

that she is not seeking a divorce or alimony, and the fact that her claims are based on the

parties’ marriage and Robert leaving such marriage should not convert her claims to those

of “divorce and alimony.” However, Ginger has asserted that she is entitled to separate

maintenance and alleges the same set of facts for consideration in the chancery court matter.

Equitable distribution, alimony, and separate maintenance would be considered in the divorce

action. Our holding in Ferguson, 639 So. 2d 921, established the guidelines that chancellors

are to consider when dividing marital property. And alimony is considered only after the

marital property has been equitably divided and the chancellor determines that one spouse

is at a deficit. Johnson, 650 So. 2d at 1287. Although Ginger has not requested alimony per

se, her claims filed in the circuit court would have the same effect and serve the same

purpose that equitable distribution or an award of alimony would serve in the divorce matter;

therefore, to allow her to pursue a claim for unjust enrichment in circuit court based on the

same facts alleged in the chancery court matter potentially would lead to double recovery.

              D. Conversion

¶22.   Ginger claims that Robert converted her money to his use and that she has been

injured in excess of $1,000,000 because of this conversion. Ginger argues that this is a legal

claim and relies on this Court’s holding in Crosby, in which this Court found that

“conversion, which requires an intent to exercise dominion or control over goods which is




                                             12
inconsistent with the true owner’s rights, is an intentional tort . . . . Tort claims are heard in

circuit court.” Crosby, 870 So. 2d at 1182 (citations omitted).

¶23.   Ginger alleges in her complaint that the couple’s Jackson, Mississippi, home sold for

$2,225,000 and that Robert converted $1,163,515.53 from the sale of the home to his own

use, dominion, and control by endorsing the check with his signature and forging Ginger’s

signature. In a temporary hearing that occurred subsequent to the filing of Ginger’s civil

complaint, the chancellor addressed some of the allegations in Ginger’s civil complaint

related to the sale of the parties’ Jackson home.2 The chancellor found, contrary to the

allegations in Ginger’s complaint, that the sale of the home netted approximately $750,000

after fees, expenses, mortgage payoff and the payment of back taxes and that Ginger received

$126,000 from the proceeds of the home. With the remaining money, Robert paid American

Express $262,619, paid the Internal Revenue Service (IRS) $32,398, paid BankPlus $32,398,

paid his lawyer $15,000 in an unrelated domestic matter, and paid twelve mortgage payments

(including taxes and insurance) on the Arizona home totaling approximately $140,000.

¶24.   Part of Ginger’s “conversion claim” includes a judicial sale of Robert’s wine

collection with an order setting over the proceeds of the sale to her. Ownership and

disposition of the wine collection, part of which was acquired during the marriage,

necessarily should be determined by the chancery court as part of the divorce action. Ginger




       2
        See Robert G. Germany v. Ginger M. Germany, No. G-2011-309, Judgment with
Findings of Fact and Conclusions of Law (Hinds County Chancery Court, First Judicial
District, Aug. 19, 2011).

                                               13
has not asserted how the substance of her claim for conversion is a legal, rather than

equitable, claim.

¶25.   We find that Ginger’s claim for conversion is really a request for the circuit court

judge to award her marital assets that ordinarily would be distributed in the divorce action.

              E. Accounting

¶26.   Ginger explains that Robert maintains dominion and control over most of the records

and documents reflecting disposition of the money throughout their marriage. She requests

access to the couple’s financial records and asserts that “[j]ustice and equity cannot be done

without access to such records and the formulation of a strict accounting reflecting the

disposition of said money together with the full disclosure of Defendant Germany’s

transactions, income, debts, expenditures, assets and liabilities from 1993 to present.”

¶27.   The chancery court and circuit court have concurrent jurisdiction over “suits involving

inquiry into matters of mutual accounts.” Miss. Const. art. 6, § 161. However, if a plaintiff

brings suit in circuit court, that court may “transfer the cause to the chancery court, if it

appears that the accounts to be investigated are mutual and complicated.” Id. We find that

the facts of this case present such an instance where the circuit court’s transfer to chancery

court would be proper, as the accounts at issue are complicated. This conclusion is supported

by evidence already considered in the divorce proceeding. Robert and Ginger already have

filed financial disclosure statements (“8.05 forms”) in the pending divorce proceeding in

chancery court. See URCCC 8.05. The chancery court already has begun to analyze the

parties’ financial information, such as the sale of the Jackson home. The chancellor also has

considered the financial situations of the parties for the purpose of determining separate

                                             14
maintenance.3 The chancery court therefore is in the best position to address Ginger’s claim

for accounting.

                 F. Intentional and Negligent Infliction of Emotional Distress

¶28.   Ginger has asserted claims of intentional and negligent infliction of mental distress

against Robert. Ginger claims that Robert openly engaged in an extramarital affair with

Holly and that he flaunted the affair by taking trips using Ginger Germany’s American

Express credit card. She claims that Robert intended to punish her for complaining of

mounting debt by incurring additional debt with Defendant Morgan. Ginger also claims that

she suffered emotional distress due to Robert’s failure to warn that he was having an affair

or that he desired to divorce her. She seeks both compensatory and punitive damages for the

mental distress which she claims she has suffered as a result of his actions.

¶29.   Robert argues that Ginger’s claim against him for intentional and negligent infliction

of mental distress are directly related to the chancery court’s determination of “fault or

misconduct” and are “matters in equity” or “divorce and alimony” and should be determined

by the chancery court.

¶30.   It appears that Ginger’s claims for negligent and intentional infliction of mental

distress are substantially an attempt to recover punitive damages against Robert through a

claim akin to the tort of alienation of affection. “Where a husband [wife] is wrongfully

deprived of his [her] rights to the ‘services and companionship and consortium of his [her]

wife [husband],’ he [she] has a cause of action ‘against one who has interfered with his [her]




       3
           See supra n.1.

                                             15
domestic relations.’” Camp v. Roberts, 462 So. 2d 726, 727 (Miss. 1985) (quoting Walter

v. Wilson, 228 So. 2d 597, 598 (Miss. 1969), overruled in part on other grounds by

Saunders v. Alford, 607 So. 2d 1214 (Miss. 1992)). Ginger certainly is entitled to bring the

claims of alienation of affection and negligent and intentional infliction of emotional distress

against Robert’s alleged paramour in circuit court; however, we have never recognized a

cause of action against one’s own spouse for failure to warn either of an affair with a

paramour or of the desire to obtain a divorce. Nevertheless, this claim clearly seeks a purely

legal remedy – monetary and punitive damages for the distress Ginger claims she suffered

because of Robert’s actions. Because the merits of this claim could not be addressed

sufficiently in a divorce action, we find that Ginger’s claim against Robert for intentional and

negligent infliction of emotional distress should be retained by the circuit court.

               G. Alienation of Affection

¶31.       Ginger requests a judgment against Holly Morgan for the sum of $2,000,000 as

actual and punitive damages for her claim of alienation of affection.4 This claim is properly

before the circuit court.

               H. Injunctive Relief

¶32.   Ginger asserts that she is entitled to injunctive relief in the form of temporary

restraining orders and/or preliminary injunctions. Specifically, she requests that Robert

employ all means necessary to satisfy IRS claims from his resources other than the wine




       4
         Although not an issue in this case, Ginger’s claim for alienation of affection against
Holly Morgan may have to be severed from her claims for intentional and negligent
infliction of emotional distress against Robert.

                                              16
collection . . . or the sale of the marital home in Scottsdale, Arizona; that he be ordered to

satisfy the requirements of Lydian Bank and Trust and BankPlus regarding full payment or

service of the existing mortgages and homeowners’ association fees, taxes and insurance; that

he be ordered to pay all sums owed on the American Express account, which is in Ginger’s

name, and cease use of such; that he be enjoined from entering the Scottsdale home; and such

other injunctive relief as the court deems proper.

¶33.   A determination of who is responsible for the parties’ accounts should be made in the

divorce action in chancery court. Ginger’s claim for injunctive relief is directly related to the

winding down of the marital relationship. This Court has held that injunctive relief is an

equitable remedy within the chancery court’s jurisdiction. Derr Plantation, Inc., 14 So. 3d

at 718 (citing Issaquena Warren Counties Land Co. v. Warren County, 996 So. 2d 747, 751

(Miss. 2008)). Accordingly, we find that the substance and the form of Ginger’s claim for

injunctive relief is equitable and is directly related to the distribution of marital property.

Therefore, the issue presented should be decided in the divorce action.

                                       CONCLUSION

¶34.   Ginger’s claims against Robert that are more closely related to the marital relationship

and financial affairs of the parties should be decided in chancery court. On the other hand,

Ginger’s claims against Robert for intentional and negligent infliction of emotional distress,

along with Ginger’s claims against Holly Morgan, are purely legal and are properly before

the circuit court. Therefore, we find that the trial court erred in denying the motion to sever

and transfer Ginger’s claims against Robert that are either equitable or relate to the pending

divorce to chancery court. Accordingly, we reverse the judgment of the trial court and

                                               17
remand with instructions to transfer the equitable claims to the ongoing chancery court

action.

¶35.      REVERSED AND REMANDED.

    RANDOLPH, P.J., LAMAR, CHANDLER AND PIERCE, JJ., CONCUR.
COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
DICKINSON, P.J., AND KING, J. KITCHENS, J., NOT PARTICIPATING.

          COLEMAN, JUSTICE, DISSENTING:

¶36.      On February 24, 2011, Ginger Germany filed a complaint in the Circuit Court of

Madison County, Mississippi, against her husband, Robert Germany, and her husband’s

alleged paramour. She asserted the following counts for relief against her husband: (1)

breach of contract; (2) fraud, deceit, and deception; (3) constructive trust and unjust

enrichment; (4) conversion; (5) a request for an accounting; (6) intentional infliction of

mental distress; (7) negligent infliction of emotional distress; and (8) a request for injunctive

relief. Because I disagree with the majority’s universal relegation of Mrs. Germany’s claims

to chancery court – where she will be deprived of her constitutional right to a jury trial

simply because her estranged husband filed a later complaint for divorce – I respectfully

dissent.

¶37.      Pursuant to Article 3, Section 31 of the Mississippi Constitution, “The right of trial

by jury shall remain inviolate . . . .” Miss. Const. art. 3, § 31. Mrs. Germany’s complaint

contains claims for relief that belong in circuit court, including those for breach of contract

and the tort claims of intentional and negligent infliction of emotional distress. Southern

Leisure Homes, Inc. v. Hardin, 742 So. 2d 1088, 1090 (¶ 6) (Miss. 1999) (breach of contract

claim is “best heard in circuit court”); McLean v. Green, 352 So. 2d 1312, 1314 (Miss. 1977)

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(“courts of equity should not assume jurisdiction over claims for personal injury”). Because

of the constitutional right to a jury trial, chancery courts should not be given jurisdiction over

tort claims. McLean, 352 So. 2d at 1314.

¶38.   The instant case is not one such as Issaquena Warren Counties Land Co., LLC v.

Warren County, 996 So. 2d 747 (Miss. 2008), where we justified chancery court jurisdiction

– and the coinciding denial of a jury trial to a party that wanted one – because damages

would be based on an ordinance, thereby obviating the need for a jury. Id. at 751 (¶ 11). If

tried, Mrs. Germany’s claims for breach of contract and infliction of emotional distress will

require a trier of fact to weigh evidence, make credibility determinations, and assess

damages, if any. The Constitution is clear that Mrs. Germany has the right to have a jury

make those determinations, and the right to a jury trial is infringed, i.e., violated, when cases

that otherwise would be decided by a jury are heard in chancery court. Southern Leisure,

742 So. 2d at 1090 (¶ 7). Even if there is some doubt as to the nature of Mrs. Germany’s

claims, they belong in circuit court. As we often have written, “[I]t is more appropriate for

a circuit court to hear equity claims than it is for a chancery court to hear actions at law since

circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction.”

Union Nat’l Life Ins. Co. v. Crosby, 870 So. 2d 1175, 1182 (¶ 24) (Miss. 2004); Southern

Leisure, 742 So. 2d at 1090 (¶ 6); McDonald’s Corp. v. Robinson Indus., Inc., 592 So. 2d

927, 934 (Miss. 1991).

¶39.   I remain unpersuaded by the majority’s reliance upon Article 6, Section 159 of the

Mississippi Constitution, which places “full jurisdiction” of divorce proceedings and

equitable matters in chancery court. After all – as the majority acknowledges – full

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jurisdiction does not equal exclusive jurisdiction. As noted above, circuit courts certainly

may hear equitable claims. Also, neither Section 159 nor the statute upon which the majority

relies, Mississippi Code Section 93-5-7, applies to Mrs. Germany’s complaint as her

complaint was not one for divorce. Judicial economy is indeed served by having Mrs.

Germany’s claims adjudicated in the same forum as Mr. Germany’s, and it is a noble goal.

However, if the bill comes due and shows the price to be Mrs. Germany’s constitutional right

to a jury trial, I believe we must decline the bargain.

¶40.   When considering a facial attack alleging lack of jurisdiction, we must consider all

allegations in the plaintiff’s case to be true. Schmidt v. Catholic Diocese of Biloxi, 18 So.

3d 814, 822 (¶ 15) (Miss. 2009). Unfortunately, the majority appears to go through great

pains to explain why Mrs. Germany’s allegations are untrue. To use her breach of contract

claim as an example, Mrs. Germany alleges that she married Mr. Germany after the couple

already had enjoyed a close, confidential relationship for eight years. Although the majority

writes that the Germanys entered into the alleged contract during marriage (Maj. at ¶ 12), the

complaint reads as follows:

       Defendant Germany became precisely familiar with the nature and extent of
       [Mrs. Germany’s father’s] estate and Ginger’s entitlements as an heir at law.
       Robert G. Germany acted as Ginger’s attorney during the conservatorship
       proceedings. Dr. Murphree’s estate was liquidated and dispersed to Ginger
       and her two sisters. Ginger Murphree Germany received substantial wealth
       upon the disbursement of the estate and entrusted the management of said
       money to Defendant Germany with the agreement and trust that Defendant
       Germany would assist the Plaintiff in financial investment matters and
       particularly the purchase of real estate. This course of conduct was carried out
       for several years prior to the marriage of Plaintiff and Defendant Germany
       and continued subsequent to the marriage. . . .




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(Emphasis added.) If Mrs. Germany’s claim for breach of contract is not a viable claim for

breach of contract, our rules of procedure contain vehicles, e.g., Rules of Civil Procedure

12(b)(6) and 56, for their dismissal. However, as shown above, if it is a claim for breach of

contract she has a constitutional right to a jury trial. Based on the allegations of her

complaint, which we are bound to accept as true, I believe she has stated viable claims as to

which she has a constitutional right to a jury trial.

¶41.   Just as the public policy favoring a plaintiff’s right to choose the forum does not

outweigh the constitutional right to a jury trial, Crosby, 870 So. 2d at 1182 (¶ 22), I do not

believe the policy consideration of judicial economy outweighs Mrs. Germany’s right to a

jury trial. In my opinion, the circuit court has sole jurisdiction over Mrs. Germany’s breach

of contract and tort claims and shares concurrent jurisdiction over her claims for equitable

relief. Because the circuit court first obtained jurisdiction, it “retains jurisdiction over the

whole controversy to the exclusion or abatement” of Mr. Germany’s lawsuit. Scruggs,

Millette, Bozeman & Dent, P.A. v Merkel & Cocke, P.A., 804 So. 2d 1000, 1006 (¶ 15)

(Miss. 2001). Accordingly, I dissent.

       DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.




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