                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 94-CA-00287-SCT
MARTHA T. BENNETT
v.
JAMES BENNETT
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                             01/05/94
TRIAL JUDGE:                                  HON. EDWARD C. PRISOCK
COURT FROM WHICH APPEALED:                    NESHOBA COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                       EDWARD A. WILLIAMSON
ATTORNEY FOR APPELLEE:                        HELEN J. MCDADE
NATURE OF THE CASE:                           CIVIL - DOMESTIC RELATIONS
DISPOSITION:                                  REVERSED - 12/15/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                               1/5/98




     BEFORE DAN LEE, C.J., BANKS AND ROBERTS, JJ.


     BANKS, JUSTICE, FOR THE COURT:




Martha and James Bennett were divorced on December 10, 1993 on the ground of Mr. Bennett's
adultery. The chancery court divided some of the property that the Bennetts had acquired over the
course of their marriage, and declined to otherwise award alimony or attorneys' fees. Mrs. Bennett
appeals this decree. Because the chancery court did not make an adequate adjudication of the marital
estate along the guidelines that were enunciated in this Court's decisions in Ferguson v. Ferguson,
639 So. 2d 921 (Miss. 1994), and Hemsley v. Hemsley, 639 So. 2d 909 (Miss. 1994), we reverse
and remand the cause for further consideration.

                                                 I.

James and Martha Bennett were married in 1965 in Neshoba County, Mississippi, and they
subsequently had three children together. During their marriage, Mr. Bennett worked continuously
and Mrs. Bennett worked irregularly, and not at all prior to her children reaching school age. The
Bennetts entered their marriage virtually propertyless, but acquired several different parcels of
property over the years, including a home, a cabin at the Neshoba County Fairgrounds, large tracts of
land containing merchantable timber, and an array of farm equipment. Some of the property was
titled in his name, some was titled in her name, and some of it was titled jointly. Although the
testimony is conflicting about the debts, the Bennetts stipulated that all of the debts on the real
property (which were considerable) were joint liabilities. While Mr. Bennett was the primary income
provider through pipelining work and running their chicken enterprise outside of the home, Mrs.
Bennett contributed to the acquisition of their estate not only through taking care of the home and
the children, but through actual assistance in their various business enterprises in the bookkeeping
and actual operation.

In July, 1992, Mrs. Bennet filed for a divorce on the grounds of habitual cruel and inhuman
treatment, adultery, and irreconcilable differences. She requested the court to order a division of
marital property, alimony, child support and custody of the one remaining minor child, as well as a
number of other specific requests about Mr. Bennett's duties. Mr. Bennett filed a cross-claim for
divorce on the ground of habitual cruel and inhuman treatment and irreconcilable differences. He also
requested custody of the minor child, child support, and alimony. Both parties also moved for
temporary relief, which was granted.

The hearing on the complaints began on June 8, 1993. The chancery court bifurcated the proceeding,
adjudicating the division of property prior to addressing the merits of the divorce. In August,
following the hearing on the property issues, the court issued an Opinion in which it made several
findings of fact and divided various items of property. This resolution of the property issues was to
be incorporated into the final divorce decree, presuming that a divorce was to follow the remaining
portion of the proceeding.

In this Opinion, the court found that the Bennetts had acquired numerous parcels of property, and
debts well in excess of $200,000. The court also found that Mr. Bennett had secretly sold cattle to
stock yards after the commencement of the divorce proceedings.

The court awarded Mrs. Bennett several household items of personal property along with a Massey
Ferguson tractor. Citing Clark v. Clark, 293 So. 2d 447 (Miss. 1974), the court further held that
Mrs. Bennett was entitled to an equitable division of the marital assets, finding that: (1) she was
actively involved in the operation of the chicken business; (2) the marriage lasted for thirty years; (3)
she was in need of a means of support, and had no other means of making a living at her age with her
training and education; (4) she was jointly indebted to the lending institutions for the financing of the
chicken business, resulting in a very large liability.

Thus, the court awarded her the following marital assets: the three newest chicken houses that the
Bennetts had been operating as a business; exclusive use of the Bennetts' residence; and the entire
value of what had been their joint escrow account that held the proceeds from the chicken houses.
The chancellor granted Mrs. Bennett the entire interest in that escrow account in order to
compensate her for her interest in some cattle which Mr. Bennett had secretly sold after the
commencement of the divorce proceedings.

The court awarded Mr. Bennett several household items as well as a tractor, a tractor disc and blade,
a post hole digger, a spreader truck, an electrical generator and a flat bed truck. He was also awarded
the exclusive use of six older chicken houses. The court made no other distributions.
Eleven days after this Opinion was issued, but prior to the conclusion of the divorce portion of the
proceedings, Mrs. Bennett filed a Motion to Modify and Make Specific the Court's Opinion. In that
motion, Mrs. Bennett petitioned the court to address and clarify the division of various items of
property. First, she itemized 26 items of property comprising mainly farm equipment, automobiles, a
bushhog and a $6,000 mutual fund that had been the subject of testimony during the hearing but were
not disposed of in the court's opinion.

Second, Mrs. Bennett protested the Court's analysis of her interest in the cattle that Mr. Bennett had
secretly sold for his own profit. The court had expressly awarded her the entire value of a jointly held
escrow account to compensate for that loss, as opposed to limiting her award to a one-half equitable
interest. In her motion, Mrs. Bennett argued that this was not sufficient compensation for her interest
in the cattle that Mr. Bennett had secretly sold. She argued that her interest in the cows amounts to
$26,100, since she argued that Mr. Bennett testified that the cattle sales had earned him $52,200.(1)

Mrs. Bennett argued that the value of the escrow account does not adequately compensate her for
the cattle sales because the escrow account had a balance of $23,257, half of which was already hers
before any adjustments were made to redress her loss in the secret cattle sales. Furthermore, since
this account was set up to meet emergency financing needs of the chicken house enterprise, Mrs.
Bennett cannot freely use that money as she would have used her cash interest in the cattle sales.
Instead, Mrs. Bennett urged the court to award her an extra portion of the equity in the timber rights
on a parcel of land that the Bennetts had jointly owned.

Third, Mrs. Bennett requested the court to dispose of a 164.5 acre parcel of land in Winston County
that held timber that was worth about $70,000. This parcel had been the subject of testimony at the
trial. Mrs. Bennett urged the court to order all of the merchantable timber to be cut and to order the
resulting proceeds to be first applied to compensate her interest in the secret cattle sales, and the
remainder to be applied to the Bennetts' vast debt. She also requested that the court equitably
distribute the parcel of land, as it had declined to dispose of the property in its Opinion.

On September 7, 1993, Mrs. Bennett also filed a Motion to Re-Open Case in Regard to Property,
requesting the court to reopen the hearing and receive additional evidence about who would receive a
fair cabin that the Bennetts owned at the Neshoba County Fairgrounds. The court had already heard
some testimony about the cabin.

Although the court noted orally in response to these motions that the personal property was just a
"big confusing mess," and that it would not reopen the inquiry into the fair cabin, the court did not
expressly address them outside of its final judgment and order on the divorce. In the final judgment,
which issued on December 10, 1993, the court first granted Mrs. Bennett a divorce on the grounds of
adultery. With the exception of three items of property (a Ford tractor and two automobiles), the
court overruled Mrs. Bennett's Motion to Modify and Make Specific in its entirety. In doing so, the
court declined to adjudicate the remaining twenty-three items of property that Mrs. Bennett had
itemized, declined to alter its analysis of her interest in the secretly sold cattle, and further declined to
divide the 164.5 acre tract of land and its accompanying merchantable timber. The court denied Mrs.
Bennett's requests for alimony and attorneys' fees, and assessed court costs against James Bennett.
The court ordered both Bennetts to do all things necessary and proper to transfer title in accordance
with his order.
On January 5, 1994, the court issued an Amendment to Final Judgment, which amended an erroneous
property description. The map which was attached to the original Final Judgment had included a 49
to 54-acre parcel of land in the area that had been awarded to Mrs. Bennett and which the court had
not intended to adjudicate one way or the other. His amended judgment thus removed this portion
from Mrs. Bennett's award.

After some disputes among the attorneys, the court issued its Composite Final Judgment on February
4, 1994. In that judgment, the court amended its previous judgments to award another automobile to
Mrs. Bennett. The court also added a handwritten note on page three of the order that "no opinions
rendered by this court have ever indicated that title to any real property should be divested from
either party." In accordance with this note, he scratched out the section that had theretofore ordered
Mr. Bennett to do all things necessary and proper to transfer title of the properties that had been
awarded to Mrs. Bennett. Inexplicably, the court left intact the similar language that ordered Mrs.
Bennett to do all things necessary and proper to transfer title of the properties that had been awarded
to Mr. Bennett.

In the introductory paragraph of this Composite Final Judgment, the court stated that the first
judgment entered "failed to order and adjudge that the monies owed on both the six original and
three new chicken houses are joint liabilities of both parties." He then proceeded to nevertheless
scratch out (with his initials) the sentence that had been inserted on page five of the order asserting
that the debts were to be joint liabilities of the parties.

Following the issuance of the Composite Final Judgment, Mrs. Bennett moved under Miss. R. Civ. P.
52 and 59 for Findings of Fact, Amendment of Judgment and New Trial on February 7, 1994. She
petitioned the chancery court to make findings of fact and awards of ownership about the various
items of property first noted in its Motion to Modify and Make Specific, including the 164.5-acre
tract of property in Winston County, the merchantable timber, and the portion of property deleted
from Mrs. Bennett's award in the Amendment to Judgment Correcting Error. Mrs. Bennett also
requested the court to clarify the confusion in the Composite Final Judgment about the joint liabilities
of the parties, and to make findings of fact about the comparative value of the various properties that
were adjudicated. Mrs. Bennett also moved for a new trial in which to establish the ownership of the
fair cabin and the multitude of unadjudicated properties.

She further asserted that the failure of the court to award her fee simple ownership so as to enable
her to refinance her obligations placed her in desperate financial circumstances, in part because Mr.
Bennett had retained actual possession of and legal title to the substantial personal property which the
court had not adjudicated. She further noted that the state of the title left each party a survivorship
interests in all of the property.

Additionally, Mrs. Bennett noted that the funds in the escrow account which she had been awarded
had been applied against the mortgage on the chicken houses, leaving her with only about $7,000 as
of the date of the motion. Thus, she urged the court to reconsider its denial of her request for
alimony.

Mrs. Bennett also filed a contemporaneous Motion to Recuse, arguing that the various amendments
to the court's three successive judgments demonstrated bias and prejudice in favor of Mr. Bennett.
Thus, she urged the court to recuse itself after making findings of fact and ordering a new trial.

In response to these motions, the Court held a hearing on March 11, 1994 at which it declined to
recuse itself on the record. Without hearing any argument, it issued a final Order and Opinion
denying the motion for new trial.(2) The court made several important rulings, including:

     (1) findings on the comparative values of all of the personal property would be impossible,
     given the lack of evidence of value of some of the items. It also ruled that such findings would
     be irrelevant to the courts ultimate decision;

     (2) the request to make findings about Mrs. Bennett's contributions and equity in all of the
     property was"in the nature of a discovery deposition," and had been adequately addressed in the
     prior decisions in the case;

     (3) the court's failure to make any award of the 164.5 acre tract in Winston County or the 49
     acres of land that had been removed from Mrs. Bennett's original award had been adequately
     addressed in the previous judgments and in a special conference on the record, in which the
     court notes that it never intended to adjudicate this parcel at all, and had erroneously awarded it
     to Mrs. Bennett in its original Final Judgment;

     (4) it had considered the issue of whether the merchantable timber should be harvested and its
     profits awarded to the parties, and would not review its decision not to itemize the timber as an
     item of marital property;

     (5) the reference to the joint liabilities of the parties that was made in the Composite Final
     Judgment was only meant to reflect the fact the court had considered the joint nature of the
     liabilities as one of the criteria that was used as a basis for the division of all of the property, not
     as a basis for any assessment of liability for payment;

     (6) finally, it would not order any further partition of property in order to enable the parties to
     separate their holdings and obligations because doing so could force the lending institutions (or
     the chicken buyers) to take actions that would lead to a result not foreseen by and out of the
     control of the court.

In response to this final order of the chancery court, Mrs. Bennett petitioned this Court on March 24,
1994 for a Writ of Mandamus, requesting that this Court order the chancery court to partition and
make awards of all items of personal and real property not theretofore decided, order all things
necessary to separate the debt on the chicken houses, order the sale of the merchantable timber, and
order the chancellor to consider recusing himself from further service, since the chancellor had told
Mrs. Bennett's attorney that a supervisor had attempted to speak with him on behalf of Mr. Bennett.
The petition was denied on April 7, 1994.

Mrs. Bennett presently appeals this final order of the chancery court, raising several issues.

                                                    II.

I. THE CHANCELLOR FAILED TO DETERMINE THE EXTENT, AND CORRESPONDING
VALUE OF, THE MARITAL PROPERTY
Mrs. Bennett first argues that the chancery court erred in failing to adjudicate the value and extent of
the marital estate. Noting that the court conceded its confusion at the vast array of personal and real
property, Mrs. Bennett cites Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994), and Hemsley v.
Hemsley, 639 So. 2d 909 (Miss. 1994), for the proposition that the chancery court should have
allowed sufficient testimony to alleviate his confusion and aid a determination of the fair market value
of the multitude of assets that the Bennetts had acquired over the course of their marriage.

This Court will not disturb the findings of a chancellor unless manifestly wrong. Newsom v. Newsom,
557 So. 2d 511, 514 (Miss. 1990). In Hemsley, this Court held that "[a]ssets acquired or
accumulated during the course of a marriage are subject to equitable division unless it can be shown
by proof that such assets are attributable to one of the parties' separate estates prior to the marriage
or outside the marriage." This Court further held that "[w]e assume for divorce purposes that the
contributions and efforts of the marital partners, whether economic, domestic or otherwise are of
equal value." Hemsley, 639 So. 2d at 914-15.

Mr. Bennett counter-argues in this appeal that the chancellor did not consider the multitude of
unadjudicated properties as part of the marital estate because he must have found that Mrs. Bennett
had only made a substantial contribution to the chicken business, and no other aspect of the estate.

Mr. Bennett's argument, however, does not properly reflect the law. While the nature of a spouse's
contribution to the marital estate may be relevant to the division of the estate, it is irrelevant to the
substance of the marital estate, which Hemsley defines as all assets acquired during the course of the
marriage. Moreover, Mrs. Bennett's conceded contributions to the chicken enterprise (not to mention
her contributions to the rearing of the children and the care of the home) can only logically be
understood to have contributed to the acquisition of the other properties that was undertaken with
the profits from the chicken enterprise.

Thus, we find that the chancery court erred in declining to consider the multitude of properties that,
according to the stipulations and the live testimony, comprise the Bennetts' marital estate, and which
have been repeatedly enumerated in Mrs. Bennett's various motions for adjudication of the items and
parcels. Thus, we are compelled to remand this cause for further adjudication in this regard.

II. THE CHANCELLOR ERRONEOUSLY FAILED TO EQUITABLY DIVIDE THE MARITAL
PROPERTY


Mrs. Bennett next argues that the chancery court's division of property was erroneously inequitable.
In particular, she notes the court's failure to adjudicate a substantial amount of marital property and
its failure to clear up the confusion about whether both parties were required to transfer title with
respect to the properties that were adjudicated, which would have enabled the Bennetts to make
respective arrangements about their joint debt.

In Ferguson, this Court outlined the factors which should guide a chancellor's analysis when
performing an equitable division, including:

1. Substantial contribution to the accumulation of the property. . . . [;]
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 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. This Court further held that findings of fact and legal conclusions must
be made in order to enable appellate review about these factors. Id. at 929.

Not having the benefit of Ferguson's elucidation, the lower court failed to conduct an analysis that
reflected any consideration of several of the Ferguson factors, particularly the fifth and seventh
factors (consideration of economic consequences of the division and the need for financial security).
Therefore, we also remand the chancery court's equitable distribution for further determination in
light of the several Ferguson factors. These factors should provide some guidance in analyzing on
remand the import of the Bennetts' joint debts in determining an equitable division, and the utility of
ordering transfer of title.

III. THE CHANCELLOR ERRONEOUSLY DENIED THE APPELLANT'S REQUEST FOR
LUMP SUM AND PERIODIC ALIMONY

Mrs. Bennett next argues that the chancery court erred in denying her request for alimony. The
decision to award alimony is largely within the discretion of the chancellor, and a decision in this
regard will not be disturbed on appeal unless it is found to be against the overwhelming weight of the
evidence or manifestly in error. McNally v. McNally, 516 So. 2d 499, 501 (Miss. 1987).

In its Opinion following the divorce portion of the proceeding, but preceding the actual decree, the
chancery court stated that "[t]he Court is of the opinion that since the division of the property was
done in such a manner to ensure the Plaintiff of a livelihood by operating the chicken houses, further
relief in the form of periodic or lump sum alimony is not warranted." It made no further findings of
fact on the matter, nor suggested that it had otherwise considered the numerous factors that this
Court has held should be considered in Cheatham v. Cheatham, 537 So. 2d 435 (Miss. 1988) (lump-
sum alimony), or Hammonds v. Hammonds, 597 So. 2d 653 (Miss. 1992) (periodic alimony).

This Court has held that the determination of whether alimony is warranted should be considered
together with the determination of property division and child support provisions. We therefore direct
the chancery court to review its denial of alimony as it conducts its equitable distribution of all of the
property on remand. Ferguson, 639 So. 2d at 929.

IV. THE CHANCELLOR ERRED IN FAILING TO ORDER THE SALE OF MERCHANTABLE
TIMBER SO AS TO REDUCE MARITAL DEBT

Mrs. Bennett next argues that the chancery court erred in denying her repeated requests that he order
their merchantable timber harvested and the proceeds applied against the Bennetts' joint debt. As with
the rest of the marital property that the chancery court failed to address, we remand this cause in
order that the chancery court apply the Ferguson analysis to the timber, and, thereafter, equitably
distribute it.

V. THE CHANCELLOR ERRONEOUSLY FAILED TO AWARD ATTORNEYS' FEES TO
MARTHA BENNETT

Finally, Mrs. Bennett argues that the chancery court erred in declining to award her attorneys' fees.
Mrs. Bennett states that she is unable to pay her attorneys' fees because of Mr. Bennett's secret sale
of cattle, which deprived her of money with which to pay her attorney.

The question of attorneys' fees in a divorce action is a matter largely entrusted to the sound discretion
of the trial court. Where a party has not shown an inability to pay, attorneys' fees are generally not
appropriate. Jones v. Starr, 586 So. 2d 788, 792 (Miss. 1991).

Nevertheless, an award of attorneys' fees, or the failure to make such an award, is an economic ruling
which arises out of a chancery court's assessment of the financial position of the parties. Thus, in light
of the fact that the entire matter of the economic and property distribution needs to be remanded for
redetermination, the query of whether Mrs. Bennett can afford to pay her attorneys' fees needs to be
reconsidered on remand as well. See, e.g. Brooks v. Brooks, 652 So.2d 1113, 1120 (Miss. 1995)
(ability to pay attorneys' fees may be evaluated after the chancellor awards alimony and property to
the parties upon remand); Brabham v. Brabham, 226 Miss. 165, 177, 84 So.2d 147 (1955) (where
alimony and child support have been remanded, chancery court should make adjustments for
attorneys' fees).

                                                   III.

For the foregoing reasons, we vacate the chancery court's final order, and remand this cause for
reevaluation in light of the guidance of this Court's decisions in Hemsley and Ferguson. On remand,
the chancery court should specifically determine the extent, value, and equitable distribution of the
marital property that was the subject of testimony at the court's initial hearing on the matter, and was
the subject of Mrs. Bennett's repeated requests for clarification.

REVERSED.

PRATHER AND SULLIVAN, P.JJ., PITTMAN, McRAE, ROBERTS AND SMITH, JJ.,
CONCUR. LEE, C.J., CONCURS IN RESULT ONLY. MILLS, J., NOT PARTICIPATING.
1. These figures that Mrs. Bennett asserts in this motion are not apparent from the testimony in the
record. Mr. Bennett testified that he had sold thirty or forty cows for around $45,000. He further
testified that he traded an additional twenty cows for a tractor, later indicated to be the Massey
Ferguson tractor. He valued those cows at an average of $325 a piece, which would total $6,500,
bringing the aggregate of the cattle sale proceeds to $51,500 (not discounting for any worth of the
tractor that Mr. Bennett claimed he received for the last twenty cows; in any event, he subsequently
gave the tractor to Mr. Aubrey Warren, who had done some work on it). Mr. Bennett also testified,
however, that this batch of cows was probably worth between $8000 and $9,000. In any case,
assuming that the cows' value was $325 per head, Mrs. Bennett figure of $52,200 is $700 above our
simple calculations, and her source for her figure remains unclear. Although the record is difficult to
comprehend, it seems that her equitable interest in the cattle sales amounts to only $25,750; in any
event we leave this calculation to the trial court to determine on remand.

2. Although this Opinion is the chancery court's final order from which Mrs. Bennett appeals, it is not
included in the Record Excerpts. It can be found in the Clerk's Papers at 135.
