       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                          NO. 2014-CA-01735-COA

JAN DYKES                                                      APPELLANT

v.

EVERETT G. DYKES                                                 APPELLEE

DATE OF JUDGMENT:                   04/07/2014
TRIAL JUDGE:                        HON. WILLIAM R. BARNETT
COURT FROM WHICH APPEALED:          COVINGTON COUNTY CHANCERY
                                    COURT
ATTORNEY FOR APPELLANT:             CHRISTOPHER RANDALL PURDUM
ATTORNEY FOR APPELLEE:              MICHAEL DUANE MITCHELL
NATURE OF THE CASE:                 CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:            APPELLEE ORDERED TO PAY $7,042.
                                    APPELLEE GRANTED JUDGMENT OF
                                    DIVORCE ON GROUND OF ADULTERY.
                                    APPELLEE ORDERED TO PAY $800 PER
                                    MONTH FOR TWO YEARS AS
                                    REHABILITATIVE ALIMONY, TO BE
                                    APPLIED TOWARD THE $7,042. AS PART
                                    OF DIVISION OF ASSETS, APPELLEE
                                    ORDERED TO TRANSFER TO APPELLANT
                                    THE MARITAL HOME WITH ALL
                                    ADJOINING LAND. APPELLEE FOUND
                                    RESPONSIBLE FOR INDEBTEDNESS
                                    ENCUMBERING SAID PROPERTY.
DISPOSITION:                        AFFIRMED IN PART AND REVERSED
                                    AND REMANDED IN PART - 05/10/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., BARNES AND ISHEE, JJ.

      LEE, C.J., FOR THE COURT:

                   FACTS AND PROCEDURAL HISTORY

¶1.   Jan and Everett Dykes were married on July 3, 1987, in Covington County,
Mississippi, and lived together until January 1, 2006, when they finally separated.

¶2.    On March 14, 2006, Jan filed for divorce on the fault ground of habitual cruel and

inhuman treatment or, in the alternative, irreconcilable differences. Jan also petitioned for

separate maintenance in the event the divorce was not granted.1 On August 20, 2009, Jan

amended her complaint to include the additional fault ground of uncondoned adultery. In his

counter-complaint for divorce, Everett asserted the fault ground of adultery or, in the

alternative, irreconcilable differences. On May 11, 2010, the chancery court dismissed

Everett’s counter-complaint and granted Jan’s motion to withdraw fault grounds. The

chancery court then awarded Jan separate maintenance.

¶3.    In November 2010, Everett was laid-off from his job due to lack of work. Everett

accepted another job, which resulted in a decrease in his income. Consequently, Everett fell

behind on his payments under the separate-maintenance order.

¶4.    In February 2011, Jan filed a petition for citation of contempt against Everett, and the

chancery court continued the case and ordered Everett to make payments each month until

the date set for trial. In June 2012, Jan filed another petition for citation of contempt against

Everett. This time, the chancery court entered a judgment of contempt.

¶5.    On May 14, 2013, the chancery court dismissed the divorce matter.

¶6.    On May 31, 2013, Everett filed a motion to modify the final decree of separate

maintenance. Everett simultaneously filed a complaint for divorce on the fault ground of

adultery. The two actions were consolidated.

       1
        A temporary decree of separate maintenance was issued, and several continuances
were granted throughout this case.

                                               2
¶7.    When trial began in March 2014, Everett was—again—in arrears under the separate-

maintenance order. Jan asserted that Everett’s unclean hands barred him from proceeding

with his modification and divorce actions. However, the chancellor proceeded without

making a ruling.

¶8.    Jan testified that she had sexual relationships with three men during the parties’

marriage. Similarly, Everett testified that he had a sexual relationship with another woman

during the parties’ marriage. However, Everett stated that Jan’s affairs were “the reason [he

wanted] a divorce.”

¶9.    Jan made a motion to dismiss based on the defense of recrimination. After argument

from both sides, the chancellor denied Jan’s motion and ultimately awarded Everett a divorce

on the ground of adultery.

¶10.   In the second part of the trial—division of property and alimony—the chancery court

found that Everett was $7,042 in arrears and ordered Everett to pay rehabilitative alimony

of $800 per month for two years, to be applied toward the arrearage of $7,042. The chancery

court also ordered Everett to transfer the parties’ marital home with all adjoining land as

lump-sum alimony to Jan. Furthermore, Everett was responsible for all debts encumbering

said land. Everett’s counsel requested an analysis of the Ferguson2 factors, but the

chancellor declined to do so from the bench. Subsequently, the chancellor entered a written

opinion “to expand [his] bench opinion [and] to include the Ferguson and Armstrong3



       2
           Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994).
       3
           Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).

                                             3
factors[.]”

¶11.   Jan filed a motion for a new trial and a motion to alter or amend the judgment, which

the chancery court granted in part and denied in part. The chancery court stated that the

marital home should have been classified in the division of assets and not as lump-sum

alimony.

¶12.   Jan appeals, asserting that the chancellor erred in: (1) allowing Everett to proceed with

unclean hands; (2) failing to make findings of fact; (3) failing to deny the divorce based on

recrimination; (4) failing to classify the marital property; (5) misapplying the Ferguson

factors; and (6) misapplying the Armstrong factors.

                                 STANDARD OF REVIEW

¶13.   “In domestic-relations cases, we ‘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.’” Artz v. Norris, 163 So.

3d 983, 987 (¶10) (Miss. Ct. App. 2015) (quoting In re Dissolution of Marriage of Wood, 35

So. 3d 507, 512 (¶8) (Miss. 2010)). “We review questions of law de novo.” Id.

                                       DISCUSSION

       I.     Clean-Hands Doctrine

¶14.   In her first issue, Jan claims the chancellor erred in granting Everett relief due to his

unclean hands.    Jan argues that because Everett was in arrears under the separate-

maintenance order, his hands were unclean, thus prohibiting him from coming into the

chancery court to seek relief.



                                               4
¶15.   “The doctrine of clean[ ]hands provides that ‘he who comes into equity must come

with clean hands.’” Andres v. Andres, 22 So. 3d 314, 320 (¶25) (Miss. Ct. App. 2009)

(quoting Cook v. Whiddon, 866 So. 2d 494, 498 (¶13) (Miss. Ct. App. 2004)).                  A

complaining party may not obtain equitable relief “when he is guilty of willful misconduct

in the transaction at issue.” Id. at (¶16). Everett came into the court with unclean hands. See

id. at 321 (¶29). However, he did not leave with unclean hands. See id. The chancellor

entered a judgment against Everett for $7,042, which cleansed Everett’s hands. See id. This

issue is without merit.

       II.    Findings of Fact

¶16.   In her second issue, Jan claims the chancellor erred in failing to make findings of fact

when he granted a divorce on the ground of adultery.

¶17.   “A party must establish his or her claim of adultery by clear and convincing

evidence.” McClelland v. McClelland, 879 So. 2d 1096, 1098 (¶12) (Miss. Ct. App. 2004)

(citing Mitchell v. Mitchell, 767 So. 2d 1037, 1040 (¶5) (Miss. Ct. App. 2000)). “There must

be clear and convincing evidence both of an adulterous inclination and a reasonable

opportunity to satisfy that inclination.” Id. (quoting Mitchell, 767 So. 2d at 1040 (¶5)).

“Adultery may be proven by admissions or other evidence.” Id. (citing Holden v. Frasher-

Holden, 680 So. 2d 795, 799 (Miss. 1996)). “Where allegations of adultery are raised as

grounds for divorce, the chancellor is required to make findings of fact.” Holden, 680 So.

2d at 798 (citing McAdory v. McAdory, 608 So. 2d 695, 699 (Miss. 1992)).

¶18.   From the bench, the chancellor stated: “Based on the testimony of the parties, the



                                              5
[c]ourt does find that Everett Dykes is entitled to [a] [d]ivorce from Jan Dykes on the

grounds of uncondoned adultery.” Later, in the written final judgment, the chancellor stated:

“Jan Dykes, by her own admission and through other evidence presented, has been guilty of

uncondoned adultery. Everett G. Dykes is hereby granted a divorce . . . from Jan Dykes on

the grounds of uncondoned adultery.” (Emphasis added).

¶19.   The chancellor made a specific finding of fact when he stated that the basis for

granting the divorce was—in part—“[Jan’s] own admission.” This issue is without merit.

       III.   Recrimination

¶20.   In her third issue, Jan claims the chancellor erred by failing to deny the divorce based

on the defense of recrimination. “The doctrine of recrimination is founded on the basis that

the equal guilt of a complainant bars his/her right to divorce, and the principal consideration

is that the complainant must come into court with clean hands.” Ware v. Ware, 7 So. 3d 271,

273 (¶7) (Miss. Ct. App. 2008) (quoting Cherry v. Cherry, 593 So. 2d 13, 18 (Miss. 1991)).

¶21.   Mississippi Code Annotated section 93-5-3 (Rev. 2013) provides: “If a complainant

or cross-complainant in a divorce action shall prove grounds entitling him to a divorce, it

shall not be mandatory on any chancellor to deny such party a divorce, even though the

evidence might establish recrimination on the part of such complainant or cross-

complainant.” (Emphasis added).

¶22.   Jan appears to concede that it was within the chancellor’s discretion not to deny the

divorce based on recrimination. However, Jan launches into a discussion about lack of proof

that she caused the separation since the adultery was committed after her separation from



                                              6
Everett. Jan relies on Boutwell v. Boutwell, 829 So. 2d 1216 (Miss. 2002), in support of her

argument. In Boutwell, the supreme court cited to Garriga v. Garriga, 770 So. 2d 978 (Miss.

Ct. App. 2000), where this Court held that when both parties are seeking a divorce, “the

chancellor must determine which of the parties will be granted the divorce by determining

which party’s conduct was the cause of the deterioration of the marital relationship.”

Boutwell, 829 So. 2d at 1224 (¶41). Here, only Everett is seeking a divorce. Therefore, the

above rule does not apply. Furthermore, this Court has held that “[t]here is no requirement

that the adultery precede the spouses’ separation.” Lister v. Lister, 981 So. 2d 340, 344 (¶29)

(Miss. Ct. App. 2008) (citing Curtis v. Curtis, 796 So. 2d 1044, 1051 (¶31) (Miss. Ct. App.

2001)).

¶23.   Even though Everett admitted to having an affair, the chancellor was not required to

deny him a divorce when he had proven that Jan had also committed adultery. See Ware, 7

So. 3d at 273 (¶9). This issue is without merit.

       IV.    Equitable Distribution

¶24.   We consolidate Jan’s remaining issues as whether the chancellor erred in dividing the

marital property. It is well established:

       First, the character of the parties’ assets, i.e., marital or non-marital, must be
       determined pursuant to Hemsley. The marital property is then equitably
       divided, employing the Ferguson factors as guidelines, in light of each
       part[y’s] non-marital property. If there are sufficient marital assets which,
       when equitably divided and considered with each spouse’s non-marital assets,
       will adequately provide for both parties, no more need be done. If the situation
       is such that an equitable division of marital property, considered with each
       party’s non-marital assets, leaves a deficit for one party, then alimony based
       on the value of non-marital assets should be considered [pursuant to
       Armstrong].


                                               7
Lauro v. Lauro, 847 So. 2d 843, 848 (¶13) (Miss. 2003) (internal citation omitted).

¶25.   Jan claims that the chancellor erred in failing to establish a line of demarcation. Jan

also claims that the chancellor erred in failing to classify the parties’ property as marital or

nonmarital.

¶26.   “Assets acquired after an order for separate maintenance should be considered the

separate property of the parties, absent a showing of either (1) contribution to the acquisition

of the asset by the other spouse . . . or, (2) acquisition of the asset through the use of marital

property.” Goodwin v. Goodwin, 758 So. 2d 384, 386 (¶7) (Miss. 1999). Furthermore, “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) (citing

Kimbrough v. Kimbrough, 76 So. 3d 715, 721 (¶27) (Miss. Ct. App. 2011)). Although the

chancellor did not specifically state that the separate-maintenance order was the line of

demarcation in this case, a review of the record indicates that this is the exact line that the

chancellor used. Property acquired after the separate-maintenance order was considered

separate—or nonmarital.

¶27.   Jan lists the parties’ assets as follows:

       1.      The marital home;

       2.      The adjoining lot next to the marital home;

       3.      Ford F-150 truck;

       4.      Trailer park in Jones County;

       5.      Lincoln Town Car automobile;



                                                8
         6.     Nissan automobile;

         7.     Jaguar automobile;

         8.     Everett’s retirement account;

         9.     Everett’s family land.

¶28.     Jan concedes that the chancellor addressed the marital home, the adjoining lot next

to the marital home, and the Ford F-150, but claims that the chancellor erred in not

classifying the other assets. Everett acquired the trailer park, Nissan automobile, and Jaguar

automobile, and inherited his family’s land after the separate maintenance order was entered.

Everett testified that he bought the Lincoln Town Car before the separate-maintenance order;

however, the title for the Lincoln Town Car was still in his father’s name. Because Everett

contributed to his retirement account during the parties’ marriage, this asset could be either

marital or nonmarital property. Therefore, we reverse and remand for a classification of this

asset.

¶29.     Jan lists the parties’ debts as follows:

         1.     The marital-home mortgage;

         2.     Priority-One bank credit line;

         3.     Internal Revenue Service;

         4.     Ford F-150 truck note;

         5.     Community Bank loan;

         6.     Community Bank loan;

         7.     Bank of West loan;



                                                    9
       8.     Sheffield lawnmower loan;

       9.     Sam Smith promissory note.

¶30.   Again, Jan conceded that the chancellor addressed the marital home and the Ford F-

150, but claims that the chancellor erred in not classifying the other debts. Everett incurred

the IRS debt as a result of his trailer park, which was acquired after the separate-maintenance

order. Everett also secured one of the Community Bank loans to pay for his trailer park.

And Everett secured the other Community Bank loan to pay Jan under the separate-

maintenance order. Everett secured the Bank of West loan for his trailer, which was acquired

after the separate-maintenance order. And Everett secured the Sam Smith promissory note,

which he also used to pay Jan under the separate-maintenance order. Everett indicated that

the Sheffield-lawnmower loan was his own debt. However, the Priority-One Bank credit

line, which was actually two credit cards that Everett told Jan to max out for their child’s

college tuition, could be either marital or nonmarital property. Therefore, we reverse and

remand for a classification of this debt.4

¶31.   We reverse and remand for a classification of Everett’s retirement account and the

Priority-One debt. The chancellor should then divide the marital property equitably,

employing the Ferguson factors as guidelines. 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

pursuant to Armstrong. See Daniels v. Daniels, 950 So. 2d 1044, 1046 (¶10) (Miss. Ct. App.

       4
         Jan did not list two credit cards—Citi and Bank of America. However, Jan testified
that these credit cards were her debts.

                                              10
2007) (because this Court remanded for an analysis of the applicable Ferguson factors, we

also remanded the issue of alimony); see also Stevens v. Stevens, 924 So. 2d 645, 648 (¶7)

(Miss. Ct. App. 2006) (“Alimony is considered only after the marital property has been

equitably divided and the chancellor determines one spouse has suffered a deficit.”).5

¶32. THE JUDGMENT OF THE COVINGTON COUNTY CHANCERY COURT IS
AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF
THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-
HALF TO THE APPELLEE.

    IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.




       5
         The chancellor awarded rehabilitative alimony to Jan. We note that
“‘[r]ehabilitative periodic alimony’ is not intended as an equalizer between the parties.”
Lauro, 847 So. 2d at 849 (¶15) (quoting Hubbard v. Hubbard, 656 So. 2d 124, 130 (Miss.
1995)).

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