         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2018-CA-00900-COA

TERRY JOHNSON                                                                APPELLANT

v.

TERESA JENKINS JOHNSON                                                         APPELLEE

DATE OF JUDGMENT:                          05/25/2018
TRIAL JUDGE:                               HON. KENNETH M. BURNS
COURT FROM WHICH APPEALED:                 CHICKASAW COUNTY CHANCERY
                                           COURT, SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                    GENE BARTON
ATTORNEY FOR APPELLEE:                     TERESA JENKINS JOHNSON (PRO SE)
NATURE OF THE CASE:                        CIVIL - DOMESTIC RELATIONS
DISPOSITION:                               AFFIRMED - 08/13/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

       GREENLEE, J., FOR THE COURT:

¶1.    Terry Johnson appeals from a final judgment of the Chancery Court of the Second

Judicial District of Chickasaw County, in which he was granted a divorce from Teresa

Jenkins Johnson. Terry claims the chancellor erred by (1) failing to consider Teresa’s

extramarital affairs when dividing the marital property, and (2) admitting Teresa’s counseling

records into evidence. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Terry and Teresa were married in March 1998. In November 2017, Teresa filed a

complaint for divorce alleging habitual cruel and inhuman treatment or, in the alternative,
irreconcilable differences. Terry filed a counter-complaint, which made the same allegations

against Teresa and was later amended to include adultery.

¶3.    During their marriage, Terry and Teresa lived in a house that Teresa’s mother

previously owned and located on three acres of land. In 2003, the house was deeded to

Teresa and placed in her name. But in 2008, during foreclosure proceedings, Terry

purchased the house for $13,000. At trial, Terry and Teresa agreed that the value of the

house was approximately $50,000. Both Terry and Teresa were employed. Teresa testified

that she did not have a retirement account. However, Terry’s retirement account was valued

at approximately $42,000. Terry reported an additional $3,500 on his tax return as a pension;

however, he could not explain where it came from.

¶4.    Terry accused Teresa of misspending money and having extramarital affairs

throughout their marriage. Teresa admitted that, without Terry’s permission, she had applied

for and was issued three credit cards in Terry’s name. However, according to Teresa, Terry

told the credit card companies that he did not know who applied for the credit cards. And

Teresa did not believe that Terry paid for any of the charges.

¶5.    Teresa also admitted to having extramarital affairs with two men from 2003 until 2011

and 2014 until 2017. However, Teresa suspected that Terry had an affair as well. Teresa

testified that they were both physically abusive. But she claimed that Terry was also verbally

and emotionally abusive and that the abuse escalated over the years. Teresa testified that

Terry called her names, including “burnt up b[****].”1 And at one point Terry threatened



       1
           Teresa had been in an house fire as a child and suffered burns to her body.

                                               2
to kill her.

¶6.     In 2012, Teresa went to the S.A.F.E. House in Tupelo, Mississippi. The S.A.F.E.

House provided counseling to Teresa from October 29, 2012 until June 6, 2016. At the time

of trial, Teresa was receiving counseling from the West Main Psychiatric and Counseling

Clinic. Teresa testified that she discussed the affairs and the abuse with the counselors. The

chancery court admitted Teresa’s counseling records into evidence over Terry’s objection.

Teresa testified that she had been taking anxiety and depression medication regularly for at

least one year.

¶7.     In May 2018, the chancery court entered its final judgment awarding Terry a divorce

based on adultery. Teresa was awarded the marital property, which included the house

valued at $50,000 and the three acres valued at $6,000. She was also awarded the following

separate property: a 1988 Chevrolet Cavalier valued at $300; a 2004 Oldsmobile Alero

valued at $500; and a 2014 Chevrolet Malibu valued at $4,000. Terry was awarded the

following separate property: a 1989 GMC truck valued at $1,500; a 1995 Oldsmobile Sierra

valued at $500; a 2002 GMC Sierra valued at $4,500; a 2004 Chevrolet Silverado valued at

$5,000; a 2010 Nissan Altima valued at $5,000; a Chevrolet Cavalier valued at $500; an

Oldsmobile Sierra valued at $500; and his retirement account valued at approximately

$42,000.

¶8.     Terry filed several post-trial motions claiming, among other things, that the chancellor

did not consider Teresa’s extramarital affairs when dividing the marital property and erred

in accepting Teresa’s medical records when a doctor did not testify at trial. After the denial



                                               3
of his post-trial motions, Terry appealed.

                                STANDARD OF REVIEW

¶9.    “This Court will not disturb the findings of a chancellor when supported by substantial

evidence unless the chancellor abused his discretion, was manifestly wrong or clearly

erroneous or applied an erroneous legal standard.” Cockrell v. Cockrell, 139 So. 3d 766, 769

(¶9) (Miss. Ct. App. 2014) (quoting Sanderson v. Sanderson, 824 So. 2d 623, 625-26 (¶8)

(Miss. 2002)).

                                       DISCUSSION

¶10.   We note that Teresa has failed to file a brief in this matter. This Court has held that

the failure of an appellee to file a brief is tantamount to confession of error and will be

accepted as such unless we can say with confidence, after considering the record and the

brief of the appealing party, that there was no error. Id. at 770 (¶10). We have considered

the record and Terry’s brief, and we can say with confidence that there was no error.

       I.       Marital Fault

¶11.   Terry claims that the chancellor abused his discretion by failing to consider Teresa’s

extramarital affairs when dividing the marital property.

¶12.   In ordering an equitable distribution of property, a chancellor is required to make

findings of fact regarding the Ferguson factors.2 Bond v. Bond, 69 So. 3d 771, 772-73 (¶5)

(Miss. Ct. App. 2011). These factors include:

       (1) contribution to the accumulation of property, (2) dissipation of assets,
       (3) the market or emotional value of assets subject to distribution, (4) the value

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

                                               4
       of assets not subject to distribution, (5) the tax and economic consequences of
       the distribution, (6) the extent to which property division may eliminate the
       need for alimony, (7) the financial security needs of the parties, and (8) any
       other factor that in equity should be considered.

Id. (quoting Hults v. Hults, 11 So. 3d 1273, 1281 (¶36) (Miss. Ct. App. 2009)). This Court

has held that chancellors should also consider each party’s marital fault when it impacts upon

the harmony and stability of the marriage. Id. at 773 (¶7); see also Ferrara v. Ferrara, 190

So. 3d 884, 893 (¶31) (Miss. Ct. App. 2016).

¶13.   In assessing Terry and Teresa’s contribution to the stability and harmony of the

marriage, the chancellor found:

       The parties were married on March 13, 1998[,] and both parties continue to
       reside in the marital residence. Teresa admitted to having extramarital affairs
       with two different men. Terry was at various times verbally, emotionally[,]
       and physically abusive toward Teresa during the marriage. Taking into
       account the totality of the credible proof, neither party has made a greater
       contribution to the harmony of the home than the other.

Furthermore, in the order denying Terry’s post-trial motions, the chancellor noted that

“[t]here were numerous times when [Terry] was abusive to [Teresa] and his abuse

contributed to the breakdown of this marriage.”

¶14.   Therefore, Terry’s contention that the chancellor did not make explicit findings on

Teresa’s marital fault is without merit. The order shows the chancellor explicitly considered

Teresa’s adultery in his Ferguson analysis.

¶15.   Terry also claims that the chancellor stated that he “was required to divide all of the

property equally” and that the chancellor’s distribution was not equal. Terry’s argument is

not supported by the record. When discussing various items of personal property, the court



                                              5
stated: “I just want [Terry] to understand that when you’ve got a marriage of this [length],

usually we split this stuff up equally . . . .” (Emphasis added). It is clear that the chancellor’s

statement was limited to the division of personal property. And in the final judgment, the

chancellor ordered: “Each party shall equally divide the personal property and contents

located in the marital residence by a listing process to be coordinated through counsel.”

Furthermore, although Teresa was awarded the house, the land, and three vehicles, the total

value of her assets was $60,800. By comparison, Terry was awarded his retirement account

as well as seven vehicles for a total value of approximately $59,500.

       II.     Counseling Records

¶16.   Terry claims the counseling records from the S.A.F.E. house constituted hearsay, and

that the chancellor erred by admitting them into evidence over his hearsay objection at trial.3

Although records of a regularly conducted activity are an exception to the rule against

hearsay, Terry claims for the first time on appeal that the records were not properly certified

and that he did not receive notice of the records as required by Mississippi Rules of Evidence

803(6) and 902(11).

¶17.   Rule 902(11)(B) states:

       Before the trial or hearing at which the record will be offered, the proponent
       must give an adverse party notice of the intent to offer the record—and must
       provide a copy of the record and certificate—so that the party has a fair
       opportunity to state any objection. Otherwise, the record is not self-
       authenticating under this paragraph (11).

¶18.   Terry asserts that he did not receive the certificate until the day before trial, and has

       3
       Terry does not take issue with the admission of Teresa’s counseling records from
the West Main Psychiatric and Counseling Clinic.

                                                6
attached emails to his record excerpts in support of his assertion. However, these emails are

not part of the official record in this case. This Court has held that it “will not consider

matters which do not appear in the record and must confine itself to what actually does

appear in the record.” Evans v. State, 742 So. 2d 1205, 1209 (¶13) (Miss. Ct. App. 1999).

“If a party believes that the appellate record contains errors or omissions, the proper

procedure for ‘Correction or Modification of the Record’ is outlined in Mississippi Rule of

Appellate Procedure 10(e).” Kimball Glassco Residential Ctr., Inc. v. Shanks, 64 So. 3d 941

n.3 (Miss. 2011). Accordingly, this Court will not consider the extra-record materials filed

with the record excerpts.

¶19.   Furthermore, while Terry objected to the admission of the records at trial, Rule

902(11)(C) states that “[a]n adverse party waives any objection that is not: (i) stated

specifically in writing; and (ii) served within 15 days after receiving the notice required by

subparagraph (B), or at a later time that the parties agree on or that the court allows.”

However, Terry did not object to the certificate in writing prior to trial.

¶20.   Nevertheless, any error in admitting the records was harmless. Teresa testified that

she told the counselors about her extramarital affairs and the abuse between her and Terry.

The counseling records merely reiterate what Teresa testified to at trial. See Bower v. Bower,

758 So. 2d 405, 413 (¶38) (Miss. 2000).

                                      CONCLUSION

¶21.   After reviewing the record, we find that the chancellor considered Teresa’s

extramarital affairs in his Ferguson analysis. We further find that Terry waived his claims



                                               7
that Teresa’s counseling records were not properly certified and that he did not receive notice

of the records. Therefore, we affirm the judgment of the Chancery Court of the Second

Judicial District of Chickasaw County.

¶22.   AFFIRMED.

     BARNES, C.J., CARLTON, P.J., LAWRENCE AND McCARTY, JJ.,
CONCUR. J. WILSON, P.J., McDONALD AND C. WILSON, JJ., CONCUR IN
PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
TINDELL, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN
OPINION, JOINED BY McDONALD AND C. WILSON, JJ. WESTBROOKS, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION.

       TINDELL, J., CONCURRING IN RESULT ONLY:

¶23.   As to the admission of the counseling records, I cannot find that Terry’s failure to

comply with the requirements of Mississippi Rule of Evidence 902(11)(C) waived the issue.

This is because Rule 902(11)(B) requires the proponent of such records to “give an adverse

party notice of the intent to offer the record . . . .” “Otherwise, the record is not self-

authenticating under this paragraph (11).” Id. As Rule 902’s advisory committee note

explains, Rule 902(11)(B) “requires that the proponent have early anticipation of the use of

this method so there is time before trial for notice, objections[,] and a hearing.” Since the

official record in this case is void of such notice,4 I believe Terry’s oral objection to the

records’ admission at trial was sufficient to preserve this issue for our consideration upon



       4
        As the majority notes, Terry attached emails to his record excerpts indicating that
he did not receive the certificate until the day before trial. While we cannot consider those
emails because they are not part of the official record, it is fair to say that providing notice
upon the eve of trial would not comply with the intent of Rule 902(B). Without proof of
such notice in the official record, which is the proponent’s responsibility, there is simply no
proof that notice was ever provided. As such, the records would be inadmissible.

                                               8
appeal. Regardless, I agree with the majority that the admission of the records was harmless.

I therefore concur with the majority’s result.

       McDONALD AND C. WILSON, JJ., JOIN THIS OPINION.

       WESTBROOKS, J., DISSENTING:

¶24.   I disagree with my esteemed colleague that the chancellor considered the impact that

Teresa’s adulterous conduct had on her marriage to Terry. The chancellor briefly mentioned

in the order that Teresa admitted to having extramarital affairs with two different men and

that Terry was abusive5 toward Teresa in the relationship; however, the order lacked

elaboration on how Teresa’s affairs burdened the stability and harmony of the marriage. I

believe that the circumstances in this case require a more thorough analysis, especially since

the divorce was granted based on Teresa’s adultery.

¶25.   The Mississippi Supreme Court has reversed and remanded cases when the chancellor

did not consider how an extramarital relationship “impacted and burdened the stability and

harmony of the marriage.” Watson v. Watson, 882 So. 2d 95, 108 (¶68) (Miss. 2004)

(quoting Singley v. Singley, 846 So. 2d 1004, 1009 (¶13) (Miss. 2002)). In Watson, the

Supreme Court found that the trial court ignored adulterous conduct and equally divided the

assets. Id. at 109 (¶68). The case was remanded for recalculation of marital assets based on

the husband’s adulterous relationship.

¶26.   Accordingly, the case should be reversed and remanded for the chancellor to make



       5
        Teresa admitted that both she and Terry were abusive toward each other in their
marriage and that she applied for and was issued three credit cards without Terry’s
permission.

                                                 9
adequate findings on the record to reflect how Teresa’s adulterous relationships impacted and

burdened the stability and harmony of the marriage. See Watson, 882 So. 2d at 111 (¶79)

(citing Singley v. Singley, 846 So. 2d 1004, 1009 (¶13) (Miss. 2002)).

¶27.   It is important to note that after the chancellor’s thorough consideration and analysis

of Teresa’s conduct, the distribution of marital assets may be modified or remain. However,

without a thorough analysis and consideration of Teresa’s conduct, the order and final

judgment appears to reflect that the marital assets were erroneously distributed.

¶28.   Therefore, I respectfully dissent.




                                             10
