        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CA-00598-COA

DIANA LYNN CARTER LARSON                                                 APPELLANT

v.

MARK ALAN LARSON                                                           APPELLEE

DATE OF JUDGMENT:                        01/20/2014
TRIAL JUDGE:                             HON. MITCHELL M. LUNDY JR.
COURT FROM WHICH APPEALED:               PANOLA COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                 JAMES ROGER FRANKS JR.
                                         WILLIAM RUFUS WHEELER JR.
ATTORNEY FOR APPELLEE:                   THOMAS ALAN WOMBLE
NATURE OF THE CASE:                      CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:                 DENIED APPELLANT REHABILITATIVE
                                         AND PERMANENT ALIMONY AND
                                         REDUCED APPELLANT’S EQUITY IN
                                         THE MARITAL HOME
DISPOSITION:                             AFFIRMED – 05/31/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., CARLTON AND JAMES, JJ.

      IRVING, P.J., FOR THE COURT:

¶1.   Diana Lynn Carter Larson appeals the Chancery Court of Panola County’s division

of property and alimony in her divorce action. Diana raises two issues: (1) the chancellor

erred in determining the equity in the marital home; and (2) the chancellor erred in not

awarding her permanent or rehabilitative alimony.

¶2.   Finding no error, we affirm.

                                        FACTS

¶3.   Mark Alan Larson and Diana married on February 14, 1992. Mark filed for divorce
on September 8, 2008, on the ground of irreconcilable differences. On September 11, 2008,

Mark amended his complaint to include the grounds of adultery, habitual cruel and inhuman

treatment, abandonment, and, in the alternative, irreconcilable differences. On December 17,

2010, the chancellor issued a ruling granting Mark a divorce on the ground of adultery. The

chancellor distributed the couple’s assets and assessed the amount of alimony payable to

Diana. She was awarded $80,000 worth of equity in the marital home and lump-sum alimony

of $36,000, in addition to other property.1 Diana, aggrieved by the allocation of the marital

assets and the alimony award, filed a request for reconsideration, which was denied. On

January 7, 2011, the chancery court issued a judgment of divorce. On February 2, 2011,

Diana appealed the court’s decision.

¶4.    On March 3, 2013, this Court affirmed in part and reversed and remanded in part the

chancellor’s judgment. Larson v. Larson, 122 So. 3d 1213, 1219 (¶18) (Miss. Ct. App.

2013). This Court’s instructions on remand were for the chancellor to conduct an on-the-

record analysis of the Armstrong2 factors, which are factors considered when making an

alimony determination, and to state the chancellor’s reasoning in awarding Diana her portion

of equity in the marital home. Id. at (¶17). On remand, the chancellor awarded Diana


       1
         The equity in the marital home and alimony are the only items disputed in this
appeal, but the chancellor also awarded Diana: (1) her IRA account; (2) $25,000 for her one-
half interest in a Quiznos restaurant; (3) a vehicle; (4) furs and jewelry; (5) an annuity; and
(6) a condominium in Destin, Florida, valued at $1,000,000 with a $574,000 outstanding
mortgage.
       2
           Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).

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$80,000 in equity, but the record supported a finding that there was in fact only $28,500

worth of equity in the home. On December 2, 2013, the chancery court heard oral arguments.

On December 17, 2013, the chancery court entered its judgment denying Diana’s request for

periodic and rehabilitative alimony. In addition, the judgment provided a detailed analysis

of the Armstrong factors, awarding Diana $28,500 of the equity in the marital home and

$87,500 in lump-sum alimony. Diana now appeals the chancellor’s judgment following

remand from this Court.

                                      DISCUSSION

¶5.    “The overall standard for reviewing the findings of a chancellor is a familiar one and

[an appellate] [c]ourt will not disturb those findings unless manifestly wrong, clearly

erroneous, or an erroneous legal standard was applied.” Hill v. Se. Flooring Co., 596 So. 2d

874, 877 (Miss. 1992).

       I.     Allocation of Equity in the Marital Home

¶6.    Diana argues that the chancellor erred in determining the equity distribution in the

marital home. She alleges the valuation of the marital home only accounted for the value of

the home and did not account for the personal content and furnishing within the home. Diana

valued the items at an additional $474,080, which had not been distributed between the

parties. She also argues the second mortgage on the marital home should not have been

allowed to affect the valuation on remand, because the chancellor had excluded the second

mortgage during the prior trial-court proceeding. She states that the original valuation for


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the marital home was $285,000, but there was also a $106,500 mortgage on the property.

This left $178,500 of equity to split between the parties. On remand, the chancellor allowed

the $150,000 mortgage to affect the valuation, which reduced the amount of equity in the

home to $28,500, of which Diana received the entire amount. Diana argues she is entitled to

a valuation and distribution of the furnishings in the home and a revaluation of the property

without the second mortgage as a factor.

¶7.    In response, Mark argues that Diana’s assertion that the chancellor improperly valued

the marital home is barred. He states the remanded portion of this Court’s decision was

limited to the on-the-record analysis of the Armstrong factors and clarification of Diana’s

equity award in the marital home. Mark alleges the other arguments raised by Diana have

already been rejected and should be barred by caselaw and res judicata. He further alleges

that Diana has previously argued that the marital home was insured for $632,100 and the

value of the property inside the home had a value of $474,080. This argument has been

heard and rejected by the chancery court as well as this Court. Larson, 122 So. 3d at 1218-19

(¶¶12-13). Mark argues this argument should be barred since it has already been factored

into previous decisions. He also argues that this Court limited the scope of the remand to

address the allocation of the $80,000 worth of equity and the analysis of the alimony award.

In addition, he contends this Court gave no indication that there was a need to adjust the

award on the basis of the valuation of the furnishings within the home or the amount of

insurance on the home. He further contends this Court contemplated Diana’s argument in


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the prior appeal and rejected her argument that the award needed to be changed based on

those grounds.

¶8.    If an “issue was raised on appeal then it has been previously litigated and therefore

is barred from consideration in the present proceedings.” Pruett v. Thigpen, 444 So. 2d 819,

823 (Miss. 1984). This Court finds that Diana’s arguments regarding the valuation of the

marital home are barred, as they have been previously contemplated3 by this Court in

deciding Larson, 122 So. 3d 1213 (¶¶12-13). Mark is correct in his assertion that the law of

the case governs, and it is well established that “[it is] the practice of courts generally to

refuse to reopen what has previously been decided.” Cossitt v. Alfa Ins., 726 So. 2d 132, 141

(¶47) (Miss. 1998). Diana has failed to present an argument that reflects the limited scope

of this Court’s instructions to the chancellor on remand.

¶9.    Nevertheless, the chancellor did not abuse his discretion in making his award to

Diana. This Court’s instructions to the chancery court on remand, with respect to the equity

in the marital home, were for the chancellor to state his reasoning for awarding Diana her

portion of equity in the marital home. It appears the chancellor originally based his

calculations of the positive equity in the marital home on the assumption that only one

mortgage existed on the property. Mark brought the second mortgage of $150,000 to the

court’s attention during the trial. However, the chancellor excluded the second mortgage on


       3
        Although not directly addressed by this Court in its previous opinion, the arguments
presented, with respect to this issue, were contemplated in the trial court’s opinion and in
this Court’s denial of Diana’s motion for rehearing in cause number 2011-CA-0305-COA.

                                              5
the property, because it had not been included in the parties’ Rule 8.054 financial statements.

According to the record, there is no dispute that a second mortgage existed during the time

of these proceedings. On remand, the chancellor accepted this error as evidenced by his

statement in his opinion that “it appears the equity of the marital residence is disturbing to

the Court [of Appeals] and frankly it is to this chancellor.” The chancellor corrected this

error by properly adjusting the amount of equity distributed to Diana. It is clear from the

chancellor’s opinion that he weighed all factors in his decision and found the award in line

with Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994),5 as evidenced by his

statements that “[t]his [c]hancellor attempted to make an equitable division and be fair to

both sides,” and that “the $80,000 appeared to be equitable and sufficient for Diana’s needs.”

In addition, the chancellor’s original order valued the “home and furnishings” with respect

to the marital home at $285,000. Although Diana argues the furnishings within the home

were worth significantly more, she provides no evidence to support her contention. In the

absence of that information, this argument is without merit.

       II.     Permanent and Rehabilitative Alimony


       4
           UCCR 8.05.
       5
          “All property division, lump sum or periodic alimony payment, and mutual
obligations for child support should be considered together. 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. Thus, the
chancellor may divide marital assets, real and personal, as well as award periodic and/or
lump sum alimony, as equity demands.” Ferguson, 639 So. 2d at 929 (internal citations and
quotations omitted).

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¶10.   Diana argues the chancellor erred in not awarding her permanent or rehabilitative

alimony. She asserts that the chancellor’s award was grossly inadequate in light of the

parties’ respective financial situations. She argues that Mark receives approximately $6,500

per month in income compared to the $230 disability payment she receives each month as

well as a $10,000 annuity payment every five years. She contends that “[a]limony, if

allowed, should be reasonable in amount, commensurate with the wife’s accustomed standard

of living, minus her own resources, and considering the ability of the husband to pay.” Gray

v. Gray, 562 So. 2d 79, 83 (¶4) (Miss. 1990). She also contends that the distribution made

by the chancellor falls below her accustomed standard of living, and therefore should be

adjusted.

¶11.   In response, Mark argues that the chancellor did not abuse his discretion by not

awarding Diana alimony. “[T]his court will not disturb a chancellor’s findings regarding the

award or amount of alimony unless there is manifest error.” Rodriguez v. Rodriguez, 2 So.

3d 720, 730 (¶26) (Miss. Ct. App. 2009) (citing Armstrong, 618 So. 2d at 1280). According

to Mark the chancellor conducted an analysis of the Armstrong factors as ordered, and his

findings support the fact that Diana was not entitled to rehabilitative or permanent alimony.

Mark argues that the chancellor carefully weighed the factors and found that ten of the

twelve factors weighed in favor of Mark, the other two favored neither party, and therefore

“not one single factor weighed in favor of granting . . . [Diana] alimony.”

¶12.   This Court is of the opinion that the chancellor satisfied his obligation on remand.


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The on-the-record analysis of the facts of the case gave context as to how he arrived at his

decisions. The chancellor did not abuse his discretion. The chancellor was instructed to

address the distribution of equity in the marital home and analyze the Armstrong factors with

respect to the alimony. The following factors are to be considered by the chancellor in

arriving at findings and entering a judgment for alimony:

       (1) [t]he income and expenses of the parties; (2) [t]he health and earning
       capacities of the parties; (3) [t]he needs of each party; (4) [t]he obligations and
       assets of each party; (5) [t]he length of the marriage; (6) [t]he presence or
       absence of minor children in the home, which may require that one or both of
       the parties either pay, or personally provide, child care; (7) [t]he age of the
       parties; (8) [t]he standard of living of the parties, both during the marriage and
       at the time of the support determination; (9) [t]he tax consequences of the
       spousal support order; (10) [f]ault or misconduct; (11) [w]asteful dissipation
       of assets by either party; or (12) [a]ny other factor deemed by the court to be
       “just and equitable” in connection with the setting of spousal support.

Armstrong, 618 So. 2d at 1280. As evidenced from the court’s judgment, the chancellor

went step by step through each factor explaining his analysis. The court’s judgment stated:

       (1) The parties[’] income and expenses. Mark[’s] . . . income is, without a
       doubt, greater than Diana’s. However, out of that income comes great
       expenses[.] (i.e.[,] the house mortgages as well as living expenses and
       educational expenses of the parties[’] minor child, Alan, without the benefit
       of financial help from Diana). Diana left the marital residence to move to
       Florida to become knowledgeable in the real estate market in that area and
       according to testimony, she had numerous contacts in that arena. Her expenses
       further were not that great and [she] was not “saddled” with expenses of the
       minor child, Alan. (2) The parties[’] health and earning capacities. At the
       time of the divorce both parties’ health was good and even though Mark’s
       earning capacity was greater, Diana was capable of making a living in the real
       estate market in Florida. (3) Each party’s needs. The division of the marital
       assets as well as $36,000.00 [in] lump-sum alimony . . . and the $80,000.00
       appeared to be equitable and sufficient for Diana’s needs. (4) Each party’s
       obligations and assets. Diana’s obligations were not that great[,] especially in

                                               8
       view of the fact that she had no financial obligations to support the minor child
       and his educational or medical needs. Her equitable division of assets
       appeared substantial in view of her estimate of the value of the condominium
       and the equity thereon, which was given to her. (5) The length of marriage.
       Although the marriage was some sixteen years, they lived apart and separate
       for some years with Diana choosing to reside in [F]lorida and learn the Florida
       real estate business. (6) The presence or absence of the minor children in the
       home, which may require that one or both of the parties either pay, or
       personally provide[,] child care. Diana does not have the responsibility
       financially with regard to the health, education[,] and support of their minor
       child, Alan. This is huge and “insulates” Diana from the financial pitfalls of
       raising a child to majority (and then some). (7) The parties’ age. This Court
       doesn’t consider this to be a factor. (8) The parties’ standard of living, both
       during the marriage and at the time of the support determination. This factor
       concerned the Court as both parties lived above their respective means. (9)
       The parties[’] tax consequences of any spousal support order. The Court did
       take this into consideration[,] hopefully not burdening Diana with tax
       consequences of a support order. (10) Fault or misconduct. The Court did
       take this, somewhat, into consideration in its ruling. Diana’s marital infidelity
       and deciding to remove herself from the marital home and from the trials and
       tribulations of the marriage and raising an adolescent son definitely was an
       important consideration. (11) Wasteful dissipation of assets by either party.
       As noted before, Diana’s lavish lifestyle was a continuous drain and wasteful
       dissipation of assets. Living outside the marriage in West Palm Beach and
       excessive gambling was not helpful to the marriage, nor the accumulation of
       assets. (12) Any other factor deemed by the Court to be “just and equitable”
       in connection with the setting of spousal support. A huge factor in not
       awarding any alimony, rehabilitative or period[ic][,] was [the] “just and
       equitable” factor . . . . [T]his Court placed the entire financial obligation of
       raising the parties’ child . . . on Mark. This Court also felt that the lump-sum
       alimony in the amount of $36,000 was another equitable factor that negated
       periodic or rehabilitative alimony being awarded.

¶13.   The chancellor demonstrated his analysis of the Armstrong factors. On remand, this

Court gave the chancellor the instruction to, “[i]f necessary, . . . make adjustments to his

equitable-distribution award.” Accordingly, the chancellor’s award to Diana of $28,500 of

equity in the marital home and the award of $51,500 of additional alimony were not manifest

                                              9
error, and this Court does not find that the chancellor abused his discretion.

¶14.   Accordingly, we affirm.

¶15. THE JUDGMENT OF THE CHANCERY COURT OF PANOLA COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

       LEE, C.J., GRIFFIS, PJ., BARNES, ISHEE, CARLTON, FAIR AND WILSON,
JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN
OPINION. GREENLEE, J., NOT PARTICIPATING.




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