        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CA-00210-COA

JOHN DAVID FOREMAN                                                       APPELLANT

v.

KRISTY LYNN FOREMAN                                                        APPELLEE

DATE OF JUDGMENT:                        11/3/2015
TRIAL JUDGE:                             HON. PATRICIA D. WISE
COURT FROM WHICH APPEALED:               HINDS COUNTY CHANCERY COURT,
                                         FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                 STEVEN ALFRED KOHNKE
                                         TIMOTHY KEVIN BYRNE
ATTORNEY FOR APPELLEE:                   SHARON PATTERSON THIBODEAUX
NATURE OF THE CASE:                      CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:                 GRANTED DIVORCE AND AWARDED
                                         APPELLEE FULL CUSTODY OF THE
                                         MINOR CHILD; $700 IN MONTHLY CHILD
                                         SUPPORT; $3,300 IN MONTHLY PERIODIC
                                         ALIMONY; $40,000 OF APPELLANT’S
                                         RETIREMENT; EXCLUSIVE USE AND
                                         POSSESSION OF THE MARITAL HOME,
                                         HOUSEHOLD GOODS, AND 2007 FORD
                                         EXPEDITION; AND $3,500 IN
                                         ATTORNEY’S FEES
DISPOSITION:                             AFFIRMED IN PART; REVERSED AND
                                         REMANDED IN PART: 07/18/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.

      GRIFFIS, P.J., FOR THE COURT:

¶1.   Kristy Lynn Foreman was granted a divorce from John David Foreman based on

uncondoned adultery. John appeals the chancellor’s distribution of the marital estate, the
alimony award, and the child-support determination.

                        FACTS AND PROCEDURAL HISTORY

¶2.    John and Kristy were married on July 19, 1996. They had one child. After the child’s

birth, Kristy primarily stayed home while John worked. John’s job required him to spend

lengthy periods of time in China. While in China, John had an extramarital affair and

fathered a child.

¶3.    John and Kristy separated around October 2012, and John later filed for divorce based

on irreconcilable differences. Kristy counterclaimed for divorce on the grounds of habitual

cruel and inhuman treatment, uncondoned adultery, and desertion. In February 2013, Kristy

filed for separate maintenance. The chancellor issued a separate-maintenance order1 granting

Kristy sole legal and physical custody of the minor child and $3,500 per month to maintain

the mortgage and pay other household bills.

¶4.    On January 25, 2016, the chancellor entered a final judgment of divorce based on

uncondoned adultery. The chancellor awarded physical custody of the child to Kristy and

divided the marital property. The property division included the marital home, a timeshare

property, vehicles, and John’s retirement account. The chancellor ordered John to pay $700

per month in child support, $3,300 per month in periodic alimony, and $3,500 of Kristy’s

attorney’s fees. The chancellor also ordered that John provide twenty-four consecutive

months of health insurance for Kristy and assume all responsibility for the child’s dance and



       1
        The appellate record does not contain a copy of the separate-maintenance order.
This information came from the transcript where both parties, their attorneys, and the
chancellor repeatedly referenced the details of the order.

                                              2
choir expenses. It is from this judgment that John now appeals.

                                STANDARD OF REVIEW

¶5.    “In domestic-relations cases, ‘[t]his Court will not disturb a chancellor’s judgment

when [it is] supported by substantial evidence unless the chancellor abused his discretion,

was manifestly wrong [or] clearly erroneous, or [applied] an erroneous legal standard.”

Ewing v. Ewing, 203 So. 3d 707, 711 (¶9) (Miss. Ct. App. 2016) (citation omitted). “If the

chancellor’s findings are supported by substantial evidence, then we will affirm.” Id.

(citation omitted). “Questions of law, however, are reviewed de novo.” Id. (citation

omitted).

                                         ANALYSIS

       I.     Whether the chancellor erred in the division of the marital estate.

¶6.    First, John appeals the chancellor’s division of the marital property. He claims that

the chancellor did not classify the property as marital or nonmarital property prior to

distribution. He further contends that the chancellor failed to conduct an analysis under the

Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994), factors when dividing the marital

property. John also argues that the chancellor’s calculation of alimony was erroneous.

¶7.    “When dividing marital property, chancellors are directed to (1) classify the parties’

assets as marital or separate; (2) determine the value of those assets; (3) divide the marital

estate equitably based upon the factors set forth in Ferguson; and (4) consider the

appropriateness of alimony if either party is left with a deficiency.” Ewing, 203 So. 3d at 711

(¶11) (citation omitted).



                                              3
              A.      Classification of Assets

¶8.    John contends that the chancellor operated under the presumption that all of the

property at issue was marital property. He argues that the chancellor erred when she failed

to classify the property as marital before making a distribution. Kristy contends that the

chancellor was correct in her determination because all of the assets were in fact marital. She

asserts that, during the trial, neither party disputed whether the assets were marital or

nonmarital.

¶9.    “In dividing the property of the divorcing couple, the chancellor must first classify

their assets and liabilities as belonging to the marriage, to the husband, or to the wife.” Smith

v. Smith, 856 So. 2d 717, 719 (¶8) (Miss. Ct. App. 2003) (citing Hemsley v. Hemsley, 639

So. 2d 909, 914 (Miss. 1994)). “Once this is done, the chancellor must [then] look to the

factors set out by the supreme court in Ferguson. . . .” Id. “The Ferguson factors are used

to determine how to divide the marital assets between the divorcing couple.” Id.

¶10.   From the bench, the chancellor did not clearly classify the property as marital or

nonmarital. “However, a failure to classify property does not automatically result in

reversible error if the division of property is fair.” Branch v. Branch, 174 So. 3d 932, 944

(¶45) (Miss. Ct. App. 2015) (citation omitted). Here, the chancellor heard testimony, in

which both John and Kristy stated that they jointly owned the home, timeshare, and vehicles.

It appears the chancellor relied on this testimony; however, this is not completely clear from

the record. We do not have the benefit of the chancellor’s analysis as to how John’s

retirement account was a marital asset. As a result, we must reverse the judgment and



                                                 4
remand for a clear classification of the marital property.

              B.     Ferguson Factors

¶11.   John argues that the chancellor failed to adequately analyze the Ferguson factors when

distributing the marital property. He further contends that the chancellor made no findings

of fact or conclusions of law to accompany the property distribution. He mainly asserts error

in the chancellor’s division of the marital residence, timeshare, and his retirement account.

¶12.   After classifying property as marital, a chancellor must equitably divide the property

in accordance with the factors prescribed in Ferguson. The factors are:

       (1) Substantial contribution to the accumulation of the property. Factors to be
       considered in determining contribution are as follows: (a) [d]irect or indirect
       economic contribution to the acquisition of the property; (b) [c]ontribution 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) [c]ontribution 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;

       (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

                                              5
       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.

¶13.   “In Ferguson, [the supreme court] established guidelines [that] chancellors must

follow when dividing marital property.” Lee v. Lee, 78 So. 3d 326, 329 (¶10) (Miss. 2012).

Additionally, in applying the factors, “chancellors must support their decisions with findings

of fact and conclusions of law.” Dickerson v. Dickerson, 34 So. 3d 637, 644 (¶24) (Miss.

Ct. App. 2010) (citation omitted). “While chancellors need not make findings as to each and

every factor set forth in Ferguson,” more is required than vague references to factors with

no indication of how each was applied. Lee, 78 So. 3d at 329 ¶10. “The failure to make

findings of fact and conclusions of law is manifest error requiring reversal and remand.” Id.

¶14.   Kristy concedes that the Ferguson factors must be used when making a division of the

marital property. However, she asserts an application of the factors was not necessary

because neither party disputed any asset as nonmarital property. Further, she argues that the

chancellor did not actually divide the marital home or the timeshare. Instead, Kristy asserts

there was no property division; while she received exclusive use and possession of the

marital home, the property remains a jointly owned asset. Kristy cannot sell the home

without John’s consent, nor can John sell the timeshare without ensuring that Kristy receives

fifty percent of the net proceeds. Kristy also contends that she was entitled to fifty percent,

rather than forty-six percent, of John’s retirement account because the account was

                                              6
accumulated entirely during the marriage.

¶15.   Here, the chancellor did not clearly specify each party’s contribution to the marital

property. From the bench, the chancellor made a vague reference to the difference in John’s

and Kristy’s income statuses. This reference suggests that the chancellor sought to establish

that John was the financial provider, and Kristy, as the domestic provider, was entitled to

maintain the lifestyle she had become accustomed to living. However, the chancellor made

no specific findings of fact or conclusions of law to support this inference.

¶16.   Further, the chancellor made no reference to the Ferguson factors from the bench or

in the final judgment of divorce. John argues that the property division was inequitable

because the chancellor failed to support the division of the marital property with legal

authority. We agree, and reverse and remand for an application of the Ferguson factors.

       II.    Whether the chancellor’s grant of periodic alimony was proper.

¶17.   John next argues that the chancellor erroneously awarded Kristy $3,300 per month in

periodic alimony. He asserts the chancellor failed to identify the precise type and duration

of the support. Further, John contends that the chancellor did not consider his actual income

or expenses at the time of trial. He claims that the chancellor’s miscalculation of alimony

placed numerous financial burdens on him.

¶18.     Pursuant to the separate-maintenance order John paid $3,300 per month to Kristy

for the mortgage, utilities, and other related bills. At the trial, the chancellor ordered that

John continue to pay $3,300 for the same expenses. The chancellor declined to characterize

the monthly support as alimony and instead explained her decision as follows:



                                              7
       The reason the Court specifically is ordering – it’s not necessarily in the form
       of spouse’s support, but that’s what it equates to because of the difference of
       income status of the parties and the fact that that’s the position, according to
       the testimony, that they maintained prior to the separation. Of the [$]3,300
       would be the utility expenses and all the expenses associated with everything
       else. Okay?

¶19.   The chancellor appeared reluctant to declare the $3,300-per-month payment to Kristy

as alimony.2 However, the chancellor pointed out that the award was made because of the

difference in the income status of the parties. Thus, we characterize the grant as periodic

alimony.

¶20.   “The chancellor has broad discretion in alimony cases.” Mamiaro v. Mamiaro, 179

So. 3d 51, 54 (¶13) (Miss. Ct. App. 2015) (citation omitted). “Appellate courts need only to

determine if the chancellor’s decision was supported by credible evidence.” Id. “[P]eriodic

alimony should only be considered if the chancellor determines that a spouse has suffered

a disparity of income and standard of living following the equitable division of the marital

assets.” Ewing, 203 So. 3d at 715 (¶26) (citation omitted).

¶21.   The chancellor must consider an award of alimony based on the following factors

provided in Armstrong:

       (1)    The income and expenses of the parties;

       (2)    The health and earning capacities of the parties;

       (3)    The needs of each party;

       (4)    The obligations and assets of each party;

       2
        At trial, the chancellor also stated that when the parties’ child reached the age of
twenty-one, the $3,300 payment would be reduced by the amount of the mortgage.
However, the final judgment did not provide for such a reduction.

                                              8
       (5)     The length of the marriage;

       (6)     The 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)     The age of the parties;

       (8)     The standard of living of the parties, both during the marriage and at
               the time of the support determination;

       (9)     The tax consequences of the spousal support order;

       (10)    Fault or misconduct;

       (11)    Wasteful dissipation of assets by either party; or

       (12)    Any other factor deemed by the court to be “just and equitable” in
               connection with the setting of spousal support.

Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).

¶22.   While the chancellor made no specific findings as to the Armstrong factors, it is

apparent that she relied loosely on several of the factors. The chancellor made brief

references to the income disparity between the parties and to Kristy’s standard of living.

However, the chancellor failed to make any specific findings as to either party’s income. The

chancellor also made no mention of either party’s financial statements or obligations. Thus,

it is difficult to ascertain the factors taken into consideration when granting the alimony.

¶23.   John contends that the chancellor either based the alimony payment on his previous

salary or that she failed to consider his financial burdens. He claims that just prior to the trial

he was demoted at work, which drastically reduced his income. Prior to the demotion, John




                                                9
received a base salary of $99,199.92 and a $300-per-day per diem when he worked in China.3

After the loss of management status, John provided a financial statement and pay stubs,

which reflected the loss of his bonus pay. He argues that the chancellor did not consider his

financial burdens as provided in his financial statement. John also contends that the

chancellor failed to apply the Armstrong factors when she ordered him to pay $3,300 in

alimony and $700 in child support; provide two years of health insurance for Kristy; and take

sole responsibility for the child’s dance and choir expenses, which were capped at $4,500 per

year.

¶24.    While the chancellor did not specifically determine that the monthly payment was

periodic alimony, the record indicates the grant of $3,300 amounts to the equivalent of such.

Again, this is evinced by the chancellor’s notation of the income disparity between the parties

and reference to Kristy’s standard of living. The chancellor also ordered that John continue

to pay the mortgage until the child reaches the age of twenty-one. This indicates that the

alimony award would eventually be reduced by the cost of the monthly mortgage. These

factors indicate that the chancellor made a grant of alimony without fully applying

Armstrong.

¶25.    “In determining the amount of support payable to the wife, a chancellor must consider

‘not only reasonable needs of wife but also [the] right of husband to lead as normal a life as

reasonably possible with a decent standard of living.’” Layton v. Layton, 181 So. 3d 275,



        3
       John testified that prior to being demoted at work his gross income for 2012 was
approximately $150,000. In both 2012 and 2013, respectively, John’s gross income was
approximately $170,000 each year.

                                              10
293 (¶63) (Miss. Ct. App. 2015) (quoting Massey v. Massey, 475 So. 2d 802, 803 (Miss.

1985)). Here, it appears the chancellor did not take John’s standard of living into account.

While John’s earnings far exceeded Kristy’s income, the $3,300 monthly payments were not

reasonable. There is no evidence in the record that the chancellor assessed the award in

relation to John’s payments for child support, Kristy’s health insurance and attorney’s fees,4

and the child’s dance and choir expenses. Thus, on remand, an award of alimony should be

considered in light of John’s other payments.

¶26.   “Because of the uncertainty regarding the husband’s income, [this Court has

previously] vacated and remanded the alimony award for the chancellor to make more

detailed findings of fact regarding the Armstrong factors.” Seghini v. Seghini, 42 So. 3d 635,

641 (¶17) (Miss. Ct. App. 2010) Here, the chancellor made insufficient findings in the

record and failed to adequately discuss the Armstrong factors. Most importantly, while the

chancellor made clear there were differences in John’s and Kristy’s incomes, she entered no

findings of fact or conclusions of law regarding the income considerations. Further, the

chancellor failed to discuss the reasonable needs of both John and Kristy when determining

the amount of the award. Therefore, this issue is reversed as to the indirect finding of

alimony in the amount of $3,300. The chancellor, on remand, should specify the type of

alimony, apply the Armstrong factors, and consider John’s other financial obligations along

with his ability to maintain a decent standard of living.

       III.   Whether the chancellor’s child-support award complies with

       4
       The chancellor ordered that John maintain Kristy’s medical insurance for twenty-
four months and also pay $3,500 of her legal fees.

                                             11
              Mississippi Code Annotated section 43-19-101 (Rev. 2015).

¶27.   John argues that the chancellor did not properly calculate the child-support payment,

which resulted in an excessive award. He further contends that the chancellor made no

findings of fact to support deviating from the guidelines set forth in Mississippi Code

Annotated section 43-19-101. He argues that the $700-per-month child-support payment and

the $4,500 in annual support for the child’s dance and choir expenses have a cumulative

effect. He contends there was insufficient consideration of his income and financial capacity

to meet these child-support obligations.

¶28.   Kristy argues that the “child support guidelines are mere guidelines and do not control

the chancellor’s award of child support.” McEachern v. McEachern, 605 So. 2d 809, 814

(Miss. 1992). Kristy applies the statutory calculations to the adjusted gross income (AGI)

of John’s base salary, and she asserts that the child-support award of $700 was actually below

the statutory-requirement amount of $1,137.37.5 This finding suggests that the chancellor

considered other factors, such as the child’s health-insurance needs and the dance and choir

expenses.

¶29.   This Court has held “that without an express finding of fact as to the payor’s income,

‘it cannot be said that the [child-support] guidelines were either followed or not followed.’”



       5
        Kristy applied the child-support guidelines as set forth in section 43-19-101. She
calculated John’s year-to-date income, which included monies received prior to John’s
demotion. She relied on gross earnings totaling $139,080.46. From this amount she
subtracted the “nondiscretionary taxes” and came up with an AGI of $96,974.86. She then
reduced the AGI by fourteen percent, which is the applicable percentage when calculating
child support for one child. Kristy came up with an annual child-support payment for
$13,576.48, or $1,131.37 per month.

                                             12
Seghini, 42 So. 3d at 641 (¶17) (quoting Gray v. Gray 745 So. 2d. 234, 237 (¶14) (Miss.

1999). John asserts that the chancellor likely relied upon his income as provided in the

separate-maintenance order instead of his actual base salary at the time of trial. John testified

that he had recently been demoted at work, which resulted in a substantial decrease to his

income. As proof of this change in income, John submitted into evidence his last two pay

stubs. The record does not indicate which documentation the chancellor relied upon when

calculating the child-support award. Therefore, we conclude that the chancellor failed to

make an express finding of fact as to John’s income.

¶30.   This issue is affirmed as to the finding that child support is warranted. But the

chancellor, on remand, should make an express finding with regard to John’s current income.

The chancellor should also consider every aspect of the child support, including the

maintenance of health insurance for the child, dance and choir expenses, and John’s other

financial obligations.

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

       ISHEE, WILSON AND GREENLEE, JJ., CONCUR. FAIR, J., CONCURS IN
PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. LEE,
C.J., BARNES AND CARLTON, JJ., CONCUR IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. IRVING, P.J., AND WESTBROOKS, J.,
DISSENT WITHOUT SEPARATE WRITTEN OPINION.




                                               13
