        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CA-00865-COA

MAXWELL LOMAX                                                             APPELLANT

v.

TARA JOHNSON LOMAX                                                          APPELLEE


DATE OF JUDGMENT:                         05/23/2014
TRIAL JUDGE:                              HON. PERCY L. LYNCHARD JR.
COURT FROM WHICH APPEALED:                DESOTO COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                  DAVID CLAY VANDERBURG
                                          MAXWELL LOMAX (PRO SE)
ATTORNEY FOR APPELLEE:                    M.W. ZUMMACH
NATURE OF THE CASE:                       CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:                  DIVORCE GRANTED ON GROUND OF
                                          HABITUAL CRUEL AND INHUMAN
                                          TREATMENT
DISPOSITION:                              AFFIRMED - 08/11/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., BARNES AND FAIR, JJ.

       BARNES, J., FOR THE COURT:

¶1.    Maxwell (Max) and Tara Johnson Lomax were married on October 25, 2013. The

couple, who had a troubled relationship prior to the marriage, separated less than three

months later, on January 11, 2014. There were no children born of the marriage, and the

couple acquired no real property during the marriage.

¶2.    Tara filed a complaint for divorce on February 7, 2014, alleging habitual cruel and

inhuman treatment or, in the alternative, irreconcilable differences. Max contested the

divorce. Tara amended her complaint on April 16, 2014, claiming Max was addicted to illicit
drugs.

¶3.      After a hearing on the matter on May 23, 2013, the DeSoto County Chancery Court

granted the divorce on the ground of habitual cruel and inhuman treatment. Although the

chancellor concluded that the couple had no marital property, he determined that the couple

had incurred $5,000 in debt, which included $2,000 expended for Max’s business leads and

$3,000 for wedding expenses. He ordered Max to pay Tara $3,500 toward that debt within

forty-five days of the order. Tara was awarded the engagement ring given to her by Max,

along with the couple’s two vehicles, as she held sole title to both of them.

¶4.      Max filed a post-trial motion, arguing there was insufficient proof to support a divorce

of the ground of habitual cruel and inhuman treatment, and that the award of the engagement

ring to Tara was in error. The chancellor denied the motion. On June 20, 2014, Max

appealed.1 Finding no error, we affirm.

                                 STANDARD OF REVIEW

¶5.      In domestic-relation cases, our review is limited to whether the chancery court’s

findings were “manifestly wrong or clearly erroneous, or the court applied the wrong legal

standard.” Jackson v. Jackson, 114 So. 3d 768, 773 (¶10) (Miss. Ct. App. 2013). If there is

substantial evidence in the record to support the chancery court’s findings of fact, we will not

reverse its decision on appeal. Henrichs v. Henrichs, 32 So. 3d 1202, 1205 (¶8) (Miss. Ct.



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        The record indicates that Max’s trial attorney withdrew as counsel on December 31,
2014, and Max is proceeding pro se.

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App. 2009).

       I.     Whether the chancery court erred in granting the divorce on the
              ground of habitual cruel and inhuman treatment.

¶6.    Max claims that the chancery court should not have granted Tara a divorce on the

ground of habitual cruel and inhuman treatment, which encompasses conduct that either:

       (1) endangers life, limb, or health, or creates a reasonable apprehension of
       such danger, rendering the relationship unsafe for the party seeking relief, or
       (2) is so unnatural and infamous as to make the marriage revolting to the
       nonoffending spouse and render it impossible for that spouse to discharge the
       duties of marriage, thus destroying the basis for its continuance.

Harmon v. Harmon, 141 So. 3d 37, 41 (¶14) (Miss. Ct. App. 2014) (quoting Smith v. Smith,

90 So. 3d 1259, 1262 (¶10) (Miss. Ct. App. 2011)). Such conduct must constitute more than

mere unkindness, lack of affection, or incompatibility. Id. (citing Jackson v. Jackson, 922

So. 3d 53, 56 (¶4) (Miss. Ct. App. 2006)). Furthermore, “[t]he cruel treatment must be

routine and continuous.” Jackson, 922 So. 2d at 56 (¶4) (citing Moore v. Moore, 757 So. 2d

1043, 1047 (¶16) (Miss. Ct. App. 2000)).

¶7.    At the hearing, neither party disputed they had a tumultuous relationship prior to their

marriage that had resulted in physical altercations, with one incident involving police

intervention. However, Max claimed there was no ground for divorce, as he had never

physically assaulted Tara during their marriage, and he wanted to seek marriage counseling

rather than divorce. Tara, on the other hand, stated that Max had physically abused her on

a consistent basis after the marriage. She submitted photographic evidence of injuries

(multiple bruises, a busted lip, and a cut forehead) to her face and body. Tara claimed that

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the injuries depicted in the photos were inflicted during the marriage, and she could not

continue to stay married to Max.

       Q.     You heard [Max] say that he, quote, absolutely did not strike you after
              y’all got married. Was that true?

       A.     No.

       Q.     The photographs that you have, are those the only times that you were
              injured and you took photos, or were there other times that you didn’t
              take photos.

       A.     There were other times.

       Q.     Do you feel safe in that house?

       A.     No.

¶8.    Evidence of emotional abuse was also presented through text messages sent from Max

to Tara, concerning her weight fluctuation, among other matters. During direct examination,

Tara testified that the texts were “just a sampling. I mean, I’ve suffered so much emotional

abuse from him[,] along with physical abuse. It’s just unreal. . . . throwing things at me when

he loses his temper, hitting me. I mean . . .he’s a loose cannon. He’s violent. He cusses me

out. He, you know, insults me.” Tara further testified that two marriage counselors, from

whom the couple had sought assistance, had advised them to divorce.

¶9.    Max claims that the chancery court erroneously “den[ied]” relevant evidence

regarding fights between Max and Tara that occurred prior to the marriage. He refers to his

testimony regarding two separate altercations, and DeSoto County Deputy Sheriff James

Gray’s testimony that he investigated one of the domestic incidents between Tara and Max.

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He claims this testimony disproves Tara’s statement that her injuries occurred during the

marriage. We find no merit to Max’s argument; the record clearly indicates that both Max

and Gray were allowed to testify regarding the pre-marriage altercations between the parties.

The chancery court merely concluded that Deputy Gray’s testimony was not relevant because

the parties did not dispute that the pre-marriage argument took place. Furthermore, Deputy

Gray was unable to confirm that the photographic evidence reflected any of the injuries he

saw on Tara that evening.

¶10.   Consequently, we find there was ample evidence to support the chancellor’s judgment,

granting a divorce on the ground of habitual cruel and inhuman treatment.

       II.    Whether the chancery court erred in its equitable distribution of
              marital property.

¶11.   The main point of contention in the divorce and the determination of marital property

concerned the chancery court’s award of the engagement ring to Tara. The chancellor

concluded that Tara was entitled to keep the ring, which had previously belonged to Max’s

mother, since Max had given the ring to Tara as an inter vivos gift prior to the marriage.

Max argues that the parties had an oral agreement that if the marriage did not work out, the

ring would be returned to his mother. At the hearing, Max testified that his mother’s ring

was given to Tara under the condition that once Max could afford another stone for the ring

setting they had purchased, she would return the ring.

¶12.   Tara, however, emphatically denied that there was an actual agreement that the ring

would be returned, but she acknowledged that after the couple separated, she told her mother-

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in-law she wanted to be “fair” and return the stone. But she explained at the hearing that

when she made that comment to Max’s mother, she “didn’t realize that [Max] intentionally

wanted to cost [her] $20,000” to obtain the divorce.

¶13.   In Neville v. Neville, 734 So. 2d 352, 357 (¶19) (Miss. Ct. App. 1999), this Court held

that since an engagement ring was a gift that predated the marriage of the parties, it “was not

a marital asset subject to equitable division.” “It was, therefore, beyond the chancellor’s

authority to order [the wife] to return possession of that item to [the husband] and [the

chancellor’s] refusal to do so cannot constitute reversible error on appeal.” Id. Accordingly,

we find no error in the chancellor’s decision to award the engagement ring to Tara.

¶14.   Additionally, Max summarily states that he received no interest in the Range Rover

that was purchased during the marriage, although he makes no actual claim on appeal that

the Range Rover was marital property. However, Tara was solely responsible for the loan

payments on the Range Rover, and she sold her former vehicle to pay equity towards the

Range Rover’s purchase. Therefore, we find no error in the chancery court’s determination

that this personal property was Tara’s non-marital property.

       III.   Whether Tara was entitled to attorney’s fees at trial and on appeal.

¶15.   In both her original and amended complaint for divorce, Tara requested that she

receive attorney’s fees “for both temporary and permanent matters.” In his response to the

amended complaint, Max asked the chancery court to “assess all court cost[s] and

attorney’[s] fees against the plaintiff, Tara Lomax.” (Emphasis added). At the hearing, the


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chancellor stated:

       With respect to the request for attorney[’s] fees by both parties, the Court . .
       . finds that an inability to pay must be shown before attorney[’s] fees may be
       awarded in a divorce case. Both parties here have adequate estates and income
       which would allow them to pay their attorney[’s] fees, and accordingly, no
       inability to pay has been shown by either party, and both will be responsible
       for the payment of their own attorney[’s] fees.

Thus, in the May 28, 2014 order granting the divorce, the chancery court stated that “[both]

part[ies have] an adequate estate to pay their own attorney[’s] fees, and [both] part[ies are]

responsible for their own attorney[’s] fees.”

¶16.   Tara contends in her appellee’s brief that the chancery court erred in not ordering Max

to pay her attorney’s fees, arguing that “[t]he appeal [by Max] is clearly for the purposes of

increasing [her] attorney[’s] fees and is nothing more than rank harassment.” She requests

that this Court invoke Rule 38 of the Mississippi Rules of Appellate Procedure and award

her attorney’s fees and costs of the appeal. Max did not address the issue of attorney’s fees

in either his original or reply brief, except to assert that he has not filed “any frivolous or

baseless claims[.]”

¶17.   This Court has held that “[i]n order for the appellee to gain reversal of any part of the

decision of a trial court about which the appellant brings no complaint, the appellee is

required to file a cross-appeal.” Delta Chem. & Petroleum Inc. v. Citizens Bank of Byhalia,

Miss., 790 So. 2d 862, 878 (¶52) (Miss. Ct. App. 2001). As Tara seeks to reverse and alter

the chancery court’s portion of the judgment that states both parties are responsible for their

own attorney’s fees, Tara was required to file a cross-appeal on this issue. As she failed to

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do so, the issue regarding the award of attorney’s fees at trial will not be addressed on

appeal.2

¶18.   Furthermore, in order for this Court to award Tara costs and attorney’s fees on appeal

pursuant to Rule 38, we would have to determine that Max’s appeal and claims are frivolous.

Max brought several claims on appeal – specifically that the chancellor erred in (1) granting

the divorce based on habitual cruel and inhuman treatment; (2) denying testimony regarding

altercations prior to the marriage; (3) the division of the marital property; and (4) not ruling

that the engagement ring should be returned to Max. Whether a claim is frivolous “under

Rule 38 is evaluated using the same standard that applies under Rule 11 of the Mississippi

Rules of Civil Procedure.” Balius v. Gaines, 95 So. 3d 730, 732 (¶10) (Miss. Ct. App. 2012)

(citing Harris v. Harris, 988 So. 2d 376, 380 (¶16) (Miss. 2008)). “Accordingly, an appeal

is frivolous under Rule 38 where the appellant has no hope of success.” Id.

¶19.   While we do not find Max’s claims to be meritorious, we do not find them to be


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         Regardless, “[t]he award of attorney’s fees in divorce cases is left to the discretion
of the chancellor, assuming he follows the appropriate standards.” Speights v. Speights, 126
So. 3d 76, 81 (¶15) (Miss. Ct. App. 2013) (quoting Creekmore v. Creekmore, 651 So. 2d
513, 520 (Miss. 1995)). “We are reluctant to disturb a chancellor’s discretionary
determination whether or not to award attorney’s fees and . . . the amount of any award.”
Rhodes v. Rhodes, 52 So. 3d 430, 449 (¶77) (Miss. Ct. App. 2011) (quoting Smith v. Smith,
614 So. 2d 394, 398 (Miss. 1993)). As noted by the chancellor in the present case,
“[a]ttorney[’s] fees are not generally awarded unless the party requesting such fees has
established the inability to pay.” Creekmore, 651 So. 2d at 520. Tara said that she borrowed
money from her parents to pay a portion of her attorney’s fees ($3,600), but she also
acknowledged that she earned $58,000 a year. There is nothing to suggest that the
chancellor erred in his determination that both parties had the ability to pay their respective
attorney’s fees at trial.

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frivolous. Max clearly desired to make Tara “pay” for divorcing him. A copy of a text

message sent from Max to Tara on January 22, 2014, was submitted into evidence. In the

message, he stated:

       I told you [to] get ready for the fight of your life, what I mean by that is that
       you and your lawyer that you are about to hire is gonna cost your parents[’] ass
       . . . ! Oh[,] and every time it’s continued[,] it’s another [$]1000.00, and it’s
       another 1000.00 every time your lawyer tells you don’t worry about him and
       his threats. . . !

       ....

       So, your cheating friends that know the Lord that wanna advise you and give
       you guidance, tell them to get the[ir] check books out!! This could easily cost
       you 15 to 20 thousand! Truth ask your lawyer, I’ve asked mine already.

Max admitted at the hearing that he told Tara he would see to it that she spent tens of

thousands of dollars in attorney’s fees. As deplorable as Max’s conduct was, “the award of

attorney’s fees is based on necessity rather than entitlement.” Faerber v. Faerber, 150 So.

3d 1000, 1009 (¶33) (Miss. Ct. App. 2014) (quoting Carroll v. Carroll, 98 So. 3d 476, 483

(¶26) (Miss. Ct. App. 2012)). The chancery court did not award Tara attorney’s fees at trial,

and we cannot find that Max’s claims are frivolous. Therefore, we find nothing to support

Tara’s claim that she is entitled to costs and attorney’s fees on appeal.

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

    IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL, FAIR AND
WILSON, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE
WRITTEN OPINION. LEE, C.J., NOT PARTICIPATING.


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