         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CP-01367-COA



RODNEY MAURICE WILLIAMS                                                      APPELLANT

v.

COURTNEY DARLENE WILLIAMS                                                      APPELLEE

DATE OF JUDGMENT:                           08/22/2014
TRIAL JUDGE:                                HON. PERCY L. LYNCHARD JR.
COURT FROM WHICH APPEALED:                  DESOTO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                     RODNEY MAURICE WILLIAMS (PRO SE)
ATTORNEY FOR APPELLEE:                      JOHN STANNARD FARESE
NATURE OF THE CASE:                         CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:                    GRANTED APPELLEE A DIVORCE ON
                                            THE GROUND OF HABITUAL CRUEL
                                            AND INHUMAN TREATMENT,
                                            DISTRIBUTED THE MARITAL ESTATE,
                                            AND AWARDED APPELLEE ATTORNEY’S
                                            FEES
DISPOSITION:                                AFFIRMED IN PART AND REVERSED
                                            AND REMANDED IN PART – 11/17/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       IRVING, P.J., FOR THE COURT:

¶1.    Rodney Williams, proceeding pro se, appeals from the judgment of the Chancery

Court of DeSoto County that granted his wife, Courtney, a divorce on the ground of habitual

cruel and inhuman treatment. He asserts that the chancellor erred in (1) excluding certain

evidence, (2) granting the divorce, (3) failing to classify certain debts, (4) distributing the

marital estate, (5) awarding Courtney periodic alimony, and (6) awarding Courtney attorney’s
fees. He also argues that the chancellor was biased and should have recused himself.

¶2.    We find that the chancellor did not err in excluding the evidence complained of and

that the granting of the divorce and the award of attorney’s fees to Courtney were proper.

We further find that the record does not establish bias on the part of the chancellor.

Consequently, we affirm on these issues. However, because we find that the chancellor erred

in failing to classify certain debts that allegedly were incurred during the course of the

marriage, we reverse and remand on this issue, which necessarily requires new consideration

of the distribution of the marital estate. Also, we pretermit discussion of the issue of

alimony, as it is not ripe for consideration until after the marital estate has been properly

identified, valuated, and distributed.

                                           FACTS

¶3.    Rodney and Courtney were married on November 29, 2002, in Tennessee, and they

separated on or about June 30, 2013, in DeSoto County, Mississippi. No children were born

to the marriage.

¶4.    On two occasions before this litigation ensued, Courtney sought to have Rodney

involuntarily committed to a mental-health facility based upon allegations that Rodney was

delusional and suffering from paranoia. As a result, Rodney was committed for inpatient

treatment and later—following Courtney’s second application to have him committed—was

ordered to get outpatient treatment. After Rodney completed his outpatient treatment, he

filed a complaint for divorce against Courtney, alleging habitual cruel and inhuman treatment

and, in the alternative, irreconcilable differences. Courtney filed a counterclaim for divorce,



                                              2
alleging habitual cruel and inhuman treatment, insanity, and, in the alternative, irreconcilable

differences. After a trial, the chancellor dismissed Rodney’s complaint and granted Courtney

a divorce on the ground of habitual cruel and inhuman treatment. This appeal followed.

                                        DISCUSSION

¶5.    The standard of review in domestic-relations matters is well-settled:

       The findings of a chancellor will not be disturbed when supported by
       substantial evidence unless the chancellor abused his discretion, was
       manifestly wrong [or] clearly erroneous or an erroneous legal standard was
       applied. Under the standard of review utilized to review a [chancellor’s]
       findings of fact, particularly in the areas of divorce, alimony[,] and child
       support, an appellate court will not [reverse] unless [the chancellor’s] findings
       were manifestly wrong. For questions of law, our standard of review is de
       novo.

Arrington v. Arrington, 80 So. 3d 160, 164 (¶11) (Miss. Ct. App. 2012) (internal citations and

quotation marks omitted).

       I.     Exclusion of Evidence

¶6.    Rodney argues that the chancellor erred in finding that certain letters constituted

inadmissible hearsay. He contends that the letters were admissible under Rule 803(4) of the

Mississippi Rules of Evidence. As might be expected, Courtney argues that the letters were

properly excluded.

¶7.    During trial, Rodney attempted to submit two letters into evidence: one allegedly from

a psychiatrist who had treated him during and following his outpatient treatment and one

purportedly from a therapist who also had treated Rodney. Neither the psychiatrist nor the

therapist was present during trial, and as noted, the chancellor found that the letters were

inadmissable hearsay.

                                               3
¶8.    “This Court reviews a trial judge’s decision to admit or deny evidence under an

abuse-of-discretion standard.” Wright v. Royal Carpet Servs., 29 So. 3d 109, 113 (¶9) (Miss.

Ct. App. 2010) (citation omitted). Rule 803(4) provides: “Statements made for purposes of

medical diagnosis or treatment and describing medical history, or past or present symptoms,

pain, or sensations, or the inception or general character of the cause or external source

thereof insofar as reasonably pertinent to diagnosis or treatment.” The Mississippi Supreme

Court has outlined a two-part test for admitting hearsay statements under Rule 803(4): “First,

the declarant’s motive in making the statement must be consistent with the purposes of

promoting treatment; and second, the content of the statement must be such as is reasonably

relied on in treatment.” Wilson v. State, 96 So. 3d 721, 727 (¶16) (Miss. 2012) (citation

omitted).

¶9.    The first letter stated, in relevant part:

       To Whom It May Concern[:]

       Rodney Williams initially came under my psychiatric care while admitted to
       Parkwood Behavioral Health from April 8, 2013[,] to April 17, 2013.

       Since then, I have followed him on an outpatient basis. He has been in my
       office on May 11, 2013, August 17, 2013, November 9, 2013[,] and January
       11, 2014.

       Over the course of his treatment[, he] has not been prescribed any medications
       nor has he evidenced any psychotic symptoms.

       Mr. Williams’[s] current diagnosis is Depressive Disorder - Not Otherwise
       Specified.

¶10.   The second letter stated, in relevant part:

       To Whom It May Concern:

                                                4
       Rodney Williams has been seeing me in individual therapy every two weeks
       since he saw me for his initial assessment on April 29, 2013. He has been
       compliant with my suggestions and in attending the therapy sessions. He has
       been attending Alcoholics Anonymous (AA) and Al Anon meetings weekly.
       He relates having started the steps with his sponsor.

       In the eight months that I have seen Mr. Williams[,] I have not witnessed any
       behaviors that would evidence psychosis.

¶11.   It is obvious that the letters were prepared for this litigation and are not statements

made for the purpose of medical diagnosis or treatment, such that they would be excepted

from the hearsay rule. This issue is without merit.

       II.    Divorce

¶12.   Rodney contends that the chancellor erred in granting Courtney a divorce on the

grounds of habitual cruel and inhuman treatment and mental illness because the evidence was

insufficient to support either ground. Rodney also contends that the chancellor abused his

discretion in basing his findings on certain involuntary-commitment files, which he argues

were not credible evidence because they were not properly submitted to the court under

Mississippi Code Annotated section 41-21-69 (Rev. 2013). He further contends that the

evidence was insufficient to support the divorce because an insane person is incapable of the

deliberate conduct required by Mississippi law to prove cruelty. Also, Rodney insists that

the evidence failed to establish that he was ever a physical danger to Courtney. Of course,

Courtney sees things differently, as she argues that the chancellor did not err in granting the

divorce. Because the chancellor granted the divorce on the ground of habitual cruel and

inhuman treatment, we do not discuss Rodney’s insanity argument.



                                              5
¶13.   As stated, Courtney sought to have Rodney committed on two occasions. During trial,

Rodney submitted the medical records that derived from the commitment proceedings in an

attempt to establish that they constituted the cruel and inhuman treatment of him by

Courtney. The commitment records contain two affidavits from Courtney, one in support of

each application that she made to have Rodney committed. In the first affidavit, dated

December 19, 2011, Courtney alleged that Rodney was “paranoid and delusional.” In this

affidavit, she provided details as to several incidents evidencing Rodney’s paranoia and

delusional state. We summarize those details as follows:

       1.    Rodney had been carrying a loaded pistol in his waistband, and he
             believed that the government was listening to everything that he said;

       2.    He had purchased a new engagement ring and had told Courtney that
             their marriage was not legal;

       3.    He had told Courtney that he was aware that she had signed secret
             papers with the government;

       4.    He believed that God had told him that he would be the next President
             of the United States and that Courtney would have to quit her job to
             support his campaign;

       5.    He believed that Michelle Obama had made comments directed toward
             him during a presidential debate;

       6.    He believed that their preacher was conspiring with a noted
             televangelist because he did not like Rodney’s taste in music;

       7.    He believed that Courtney was having an affair with her ex-husband,
             whom she had not seen in twenty years; and

       8.    He suspected that he was being photographed as he completed his daily
             tasks.

In the affidavit, Courtney stated that she believed Rodney had been smoking marijuana

                                            6
habitually, that she was afraid to return to the marital home, and that she feared Rodney

would “harm himself or someone else if he [did] not get inpatient treatment.”

¶14.   On December 21, 2011, Catherine Davis with the Department of Mental Health

completed a preevaluation-screening form for Rodney. In that form, she noted that he

suffered from psychotic-like behavior, including delusions, irritability, and poor judgment.

Catherine also noted that “Rodney is a danger to himself due to his paranoid behavior. He

believes others are out to get him and are watching him. Rodney carries a loaded gun. . . .

Rodney is in need of inpatient treatment due to his current psychotic behavior.”

¶15.   On December 28, 2011, Dr. David A. Ball evaluated Rodney and completed a form

labeled “Certificate of Examining Physician/Psychologist.” In the form, Dr. Ball noted that

Rodney exemplified “grossly disturbed behavior/faulty perspective.” Dr. Ball stated that the

reason for his opinion was that Rodney “has unrealistic ideas[, such as] running for president.

He has distrust for people around him[.]” Also on December 28, 2011, Dr. Lee Linder

completed a certificate, in which he noted that Rodney exemplified “grossly disturbed

behavior/faulty perspective.”     Dr. Linder also noted that Rodney posed a substantial

likelihood of physical harm to himself and to others and that he should be committed to a

treatment facility. On December 29, 2011, the chancery court ordered Rodney to obtain

mental-health treatment through the Lakeside Behavioral Health Hospital (LBHH) in

Memphis, Tennessee.

¶16.   In Courtney’s second affidavit, dated April 5, 2013, in support of her second attempt

to have Rodney involuntarily committed, she alleged that Rodney had a history of mental



                                              7
illness and that he had been diagnosed with paranoid schizophrenia, for which he had been

prescribed psychiatric medications. Courtney also alleged that Rodney had refused to take

his medications and follow up with his outpatient treatment at LBHH. Courtney further

alleged that Rodney was paranoid and delusional, insomniac, and easily angered without

provocation. She stated that she believed that Rodney was a danger to himself and to others.

In a preevaluation-screening form dated April 8, 2013, Catherine noted that Rodney “has

some psychotic symptoms,” and she recommended outpatient commitment. In that same

form, Catherine also noted that Rodney had been prescribed three medications to treat his

condition.

¶17.   In a certificate of examination, dated April 17, 2013, Doctors Dan Boyd and Tejinder

Saini noted that Rodney did not pose a substantial likelihood of physical harm to himself or

to others and that commitment to a treatment facility was not recommended. However, the

doctors recommended outpatient treatment. The chancery court immediately ordered Rodney

to complete outpatient treatment at Region IV Mental Health of DeSoto County.

¶18.   During trial, the following colloquy occurred during Courtney’s testimony:

       Q:     [When Rodney] came home [after his first commitment,] [d]id the
              behavior continue?

       A:     Not when he first got home.

       Q:     Okay.

       A:     But then when he stopped taking the medication, it gradually got back
              into chaos.

       Q:     Okay. And at that point later on as has already been talked about in
              2013, did you do the same things with this set of papers [(indicating the

                                              8
              statements made by Courtney in the second involuntary-commitment
              affidavit)] where there’s the same thing? . . .

       A:     Yes, sir.

       Q:     And do you remember those lists of circumstances that are in that
              document?

       A:     Yes, sir.

                                             ****

       Q:     Did these -- did this behavior, some of which is the same, but some a
              little different, scare you and cause you fear?

       A:     Yes, sir.

       Q:     Were you scared to be with Mr. Williams --

       A:     Yes, sir[.]

       Q:     -- at all, much less as husband and wife?

       A:     Yes, sir[.]

       Q:     Did this behavior and this series of incidences make it -- do you feel
              like it’s impossible to continue to be married to Mr. Williams?

       A:     Yes, sir, as long as he wasn’t taking his medicine.

¶19.   In his bench ruling, the chancellor stated:

       In this case[,] looking at the evidence fairly[,] . . . the [c]ourt finds that the
       actions of [Rodney] because of his illness illustrated in the [commitment]
       files[,] which he admitted into evidence[,] reflect and corroborate the
       testimony of [Courtney]. [The court finds t]hat he acted at times erratically
       and incoherently[,] causing the marriage to break down and result[ing] in the
       final separation of the parties. [Rodney’s behavior] was the causal effect of the
       separation of the parties.

       Accordingly, the [c]ourt finds that . . . [Courtney] has met the burden of proof
       in order to be awarded a divorce on the grounds of habitual cruel and inhuman

                                               9
       treatment.

¶20.   To prove cruelty, Courtney was required to show conduct on Rodney’s behalf that (1)

endangered her life, limb, or health or created a reasonable apprehension of such danger,

rendering the marriage unsafe for her, or (2) was so unnatural and infamous as to make the

marriage revolting to her and render it impossible for her to discharge the duties of the

marriage, thus destroying the basis for its continuance. Harmon v. Harmon, 141 So. 3d 37,

41 (¶14) (Miss. Ct. App. 2014) (citations omitted). It is established that a party’s “combined

acts [may] manifest a course of revolting conduct [that] give[s] rise to cruelty.” Jackson v.

Jackson, 922 So. 2d 53, 57 (¶8) (Miss. Ct. App. 2006) (citation omitted).

¶21.   Here, Courtney testified that when Rodney stopped taking his prescribed medications,

he acted chaotically and that his behavior caused her fear. She also testified that she was

afraid of Rodney and that she felt that it was impossible for her to remain married to him as

long as he failed to take his medicines regularly. Courtney’s testimony was supported by the

commitment files, which establish that Rodney required treatment for a mental illness that,

when left untreated, rendered it impossible for her to discharge the duties of the marriage.

Therefore, based on our limited standard of review, we do not find that the chancellor erred

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

issue is without merit.

¶22.   As to Rodney’s argument that the chancellor erred under section 41-21-69 in relying

on his medical records, we first note that Rodney—not Courtney—willingly submitted those

records to the chancellor for review. We also note that Rodney failed to raise this issue



                                             10
before the chancellor. Therefore, it has been waived. See generally Haggerty v. Foster, 838

So. 2d 948, 954 (¶8) (Miss. Ct. App. 2002) (citation omitted).

       III.     Equitable Distribution

                A.     Valuation of 401(k) Accounts

¶23.   Rodney argues that the chancellor erred in valuating his retirement account based on

its value at the time of trial as opposed to its value on November 13, 2013, when, according

to Rodney,1 a temporary-relief order was filed. Rodney contends that any funds placed into

the retirement account after that date are his separate property. Rodney also argues that the

chancellor erred in failing to classify Courtney’s two retirement accounts as marital property

and in failing to award him one-half of the value of those accounts.

¶24.   During trial, the following colloquy took place after Courtney’s attorney questioned

Rodney about the value of his 401(k) account:

       THE COURT:             Mr. Williams, . . . [y]our testimony, as I understand it, is
                              you have no idea what your 401(k) is; is that correct?

       [RODNEY]:              I had a document that said it was [approximately]
                              [$]60,[000,] and that’s the last I saw it, Your Honor.

       THE COURT:             So what do you think it is [now]?

       [RODNEY]:              I’m thinking it’s probably about [$]62[-]64,[000].

                                           ****
       [ATTORNEY]:            Do you know how much is in your 401(k)?

       [RODNEY]:              At the time I provided you the document, it was
                              [approximately $]50[,000]. That was over a year or so
                              ago. Estimate, [$]64,[000].

       1
           The record does not reveal that a temporary order was filed on November 13, 2013.

                                               11
¶25.   The chancellor valued the 401(k) at $64,000, which, as discussed, was the value

Rodney assigned to it on the date of trial. “When equitably dividing marital property upon

divorce, the date of valuation is necessarily within the discretion of the chancellor.” Bullock

v. Bullock, 733 So. 2d 292, 298-99 (¶37) (Miss. Ct. App. 1998) (citation omitted). As such,

we do not find that the chancellor abused his discretion in valuing the 401(k) as of the date

of trial. This issue is without merit.

¶26.   As to Rodney’s claim that the chancellor erred in failing to classify Courtney’s two

retirement accounts as marital property and in failing to award him one-half of the value of

those accounts, we note Courtney’s testimony that the first account was from her employment

that ended before the marriage. The chancellor failed to classify the first account as separate

or marital property, but he awarded Rodney one-half of the value of the second account. We

find substantial evidence supporting the chancellor’s division of the second account.

However, we find that the chancellor erred in failing to classify the first account because

“[i]n dividing property of a couple upon divorce, the chancellor must first classify their assets

and liabilities as marital or non-marital[.]” Barnett v. Barnett, 908 So. 2d 833, 838 (¶9)

(Miss. Ct. App. 2005) (citation omitted). While it seems clear that if Courtney’s testimony

on this point is accepted as true, the first retirement account would likely be her separate

property. However, on remand, the chancellor should make the proper classification and

valuation of this account, as it should be considered in the overall distribution of the marital

estate and in the determination as to the appropriateness of alimony.

              B.      Valuations of Martial Residence and Memphis Property



                                               12
¶27.   Rodney insists that the chancellor erred in accepting Courtney’s valuations of the

marital residence and certain rental property, without ordering appraisals of those properties.

In the alternative, he insists that the chancellor should have averaged Courtney’s proposed

valuations and his proposed valuations and accepted those averages as the values of the

respective properties.

¶28.   During trial, Rodney testified that before the marriage, he purchased a house in

Memphis for $107,000 and that he had recently made some improvements to that house.

However, he denied that the house had appreciated in value, and in both of his financial

disclosures,2 he valued the house at $85,000. Courtney testified that the house was valued

at $107,000.

¶29.   Rodney also testified that shortly after the marriage, he purchased a house in Olive

Branch, Mississippi. His testimony regarding the value of that house was ambiguous, but

one of his financial-disclosure statements reveals that the house was valued at $247,000.

During trial, Rodney testified that he owed $226,215.40 on the house. During Courtney’s

testimony, she confirmed, in response to questioning, that she believed $250,000 was a fair

value for the marital residence.

¶30.   Neither party submitted appraisals for the houses. Also, Rodney did not object to

Courtney’s testimony as to the value of the marital residence. The chancellor found that the

Memphis house was Rodney’s separate property, and the court did not assign a value to that

property. The chancellor also found that the marital residence was marital property valued

       2
         The appellate record reveals that Rodney filed at least two different financial-
disclosure statements: one dated November 13, 2013, and one dated July 21, 2014.

                                              13
at $250,000.

¶31.     In Jenkins v. Jenkins, 67 So. 3d 5, 13 (¶19) (Miss. Ct. App. 2011) (internal citations

and quotation marks omitted), we stated:

         While we note that expert testimony may be essential to establish valuation
         sufficient to equitably divide property, particularly when the assets are diverse,
         we also recognize and reiterate the principle that findings on valuation do not
         require expert testimony and may be accomplished by adopting the values
         cited in the parties’ 8.053 financial disclosures, in the testimony, or in other
         evidence.

Here, there was substantial evidence to support the chancellor’s valuation of the marital

residence. So we do not find that the chancellor abused his discretion. This issue is without

merit.

                 C.       Courtney’s Contribution to the Acquisition of Marital Assets

¶32.     Rodney contends that the chancellor erred in finding that he and Courtney had

contributed equally to the marital estate because, according to him, Courtney only made

“meager material economic contribution[s] to the acquisition of the marital assets.” He also

contends that the chancellor erred in determining that Courtney was a homemaker. In

response, Courtney argues that she contributed to the accumulation of the marital assets as

“both a financial contributor and a domestic contributor.”

¶33.     During trial, Courtney testified that for eleven years out of the twelve-year marriage,

she was employed by Collierville Medical Specialists in Memphis, where she earned

approximately $2,400 per month in gross income. She also testified that her grandchildren,

Jamie and Shakyla, had lived with her and Rodney for a period of time. She stated that

         3
             UCCR 8.05.

                                                14
“Jamie and Shalyla [had lived with them for approximately two years], but Jamie was there

for longer.”

¶34.   The chancellor found that

       the wife was the homemaker of the parties[ and] that the husband earned the
       majority of the financial income. This is reflected by the domestic services
       rendered by [the wife] shown during the periods of time in which the
       grandchildren lived in the home, and she, as well as the husband, took care of
       them. I find that both have contributed equally toward the acquisition of
       property[—]he directly financial[] and she through domestic and in-kind
       services. Accordingly, I find that both are entitled to an equal distribution of
       those properties.

¶35.   In Lowrey v. Lowrey, 25 So. 3d 274, 287 (¶31) (Miss. 2009) (citation omitted), the

Mississippi Supreme Court explained:

       [T]he concept of homemaker services rests on a showing that the homemaker
       has contributed to the economic well-being of the family unit through the
       performance of the myriad of household and child-rearing tasks. In valuing
       this service[,] consideration should be given to the quality of the services. For
       example, a homemaker who, over the course of the marriage, has been frugal
       in the handling of homemaker expenditures and has thereby enhanced the
       family assets is entitled to a more equitable return than one who has been
       extravagant.

¶36.   In this case, the record does not establish the extent of Courtney’s contribution toward

the acquisition of the marital property. It appears that the chancellor mistakenly thought

Courtney was a stay-home spouse and grandmother. As noted, Courtney worked during the

course of the marriage, working eleven of the twelve years of marriage at one place, where

her net income was approximately $1,600 per month. The record does not inform us where

Courtney worked during the first year of the marriage or how much she earned during that




                                              15
year. The parties had no children together,4 and there is no testimony in the record regarding

the division of the household duties. Although Courtney took care of the grandchildren in

the home for some period of time, we note that the grandchildren were her grandchildren, but

not Rodney’s grandchildren. It appears that the chancellor placed some weight on this fact

in determining that Courtney was a homemaker and that her grandchild-caring duties

contributed to the acquisition of the marital estate. The record reflects that Rodney paid the

majority of the household expenses and the entire mortgage note on the marital home. It

further reflects that Courtney deposited only $250 biweekly in a joint bank account to help

with the household expenses but routinely withdrew money from that account for other

purposes unrelated to household expenses. And the record is silent as to any other financial

contributions that Courtney may have made during the marriage. Therefore, there is not

substantial evidence in the record supporting the chancellor’s finding that the parties “both

have contributed equally toward the acquisition of property[—]he directly financial[] and she

through domestic and in-kind services.”

                  D.   Marital Debts

¶37.   Rodney argues that the chancellor erred in distributing all of the marital debt to him.

Alternatively, he argues that the chancellor erred in failing to classify as marital the debts

listed in his financial-disclosure statement. Again, Courtney argues that no error occurred

in this regard.

¶38.   The chancellor found that the Olive Branch home was marital property and ordered



       4
           Courtney was thirty-nine and Rodney was forty years old when they got married.

                                             16
Robert to pay Courtney one-half of the equity in the home, and Courtney was ordered to deed

the house to Robert via a quitclaim deed, leaving Robert responsible for one hundred percent

of the remaining debt owed on the home. Robert was also awarded an Acura MDX, for

which he still owed a debt. In his financial-disclosures statements, Robert listed several other

debts that he alleged were martial, but the chancellor failed to classify or name the party

responsible for paying them.

¶39.   As noted, the first step in the equitable-distribution process requires chancellors to

classify the parties’ assets as martial or separate property. Clausell v. Clausell, 116 So. 3d

189, 192 (¶9) (Miss. Ct. App. 2013) (citation omitted). This includes the parties’ debts. See

generally Seale v. Seale, 150 So. 3d 987, 989 (¶7) (Miss. Ct. App. 2014) (citations omitted).

The chancellor erred in failing to classify the debts set forth in Rodney’s financial-disclosures

statement and in failing to assign responsibility to one or both of the parties for paying the

debts. Therefore, we reverse and remand on this issue.

       IV.    Attorney’s Fees

¶40.   Rodney argues that the chancellor erred in awarding Courtney attorney’s fees because

there was insufficient evidence of the amount owed and of her inability to pay them. Rodney

also argues that he should not have been required to pay the attorney’s fees incurred by

Courtney as a result of her filing frivolous motions and pleadings.

¶41.   During trial, Courtney testified that her net monthly income was approximately

$1,600. She confirmed that she was unable to pay her attorney’s fees and that she had

borrowed money from her friends and family members to pay her attorney’s retainer fee. She



                                               17
also confirmed that she was financially incapable of repaying the money that she had

borrowed.

¶42.   “An award of attorney’s fees is appropriate in a divorce case where the requesting

party establishes an inability to pay.” Stewart v. Stewart, 2 So. 3d 770, 776 (¶18) (Miss. Ct.

App. 2009) (quoting Gray v. Gray, 745 So. 2d 234, 239 (¶26) (Miss. 1999)). “However, if

a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate.”

Id. (citation and quotation marks omitted). “As the issue of whether to award attorney’s fees

in a divorce case is a discretionary matter left to the chancellor, this Court is reluctant to

disturb such a finding.” Id. (citation and quotation marks omitted). Here, there was

substantial evidence establishing Courtney’s inability to pay her attorney’s fees. As such,

this issue is without merit.

       V.     Chancellor’s Bias

¶43.   Rodney alleges that the chancellor was biased against him and should have recused

himself. As support for this issue, Rodney essentially points to the following rulings of the

chancellor that he deems are questionable:

       1.     Dismissing Rodney’s case without allowing relevant evidence in the
              trial[, including] [t]he doctor’s statement, [b]ank records, work
              evaluations[,] and [a] marriage certificate/license[;]

       2.     Awarding Courtney a divorce based on [h]abitual . . . [c]ruel [and
              inhuman] treatment[;]

       3.     Allowing a “coin” to be flipped to resolve a healthcare issue[;]

       4.     Not addressing the erroneous healthcare clause brought before the
              court[;]



                                               18
       5.     Allowing the marital assets to be equally divided[,] while ignoring the
              marital debt and abuse of funds[;]

       6.     Allowing Courtney to keep $732.51 of her primary retirement. Rodney
              was due $366.25 of that amount per the court’s ruling[;]

       7.     Allowing Courtney to keep the additional retirement account of
              $1,129.08 and not classifying it as marital or non-marital property[;]

       8.     Allowing Courtney’s opinion to stand as evidence for a $250,000[]
              value placed on the primary home and $107,000[] for the value of the
              rental property[;]

       9.     Giving Courtney $12,000[] worth of equity in [thirty] days based on her
              . . . valuation of the marital home at $250,000[,] which[,] according to
              the [tax] assessor’s office[, has an approximate value] of $237,966[;]

       10.    Classifying Courtney as a homemaker[,] while both parties worked
              full[-]time jobs[,] and by [not] addressing the waste [of] marital
              assets[;]

       11.    Awarding Courtney all of her attorney[’s] fees of $10,476[,] . . . to be
              paid by Rodney [within thirty] days . . . [; and]

       12.    Awarding [Courtney] $500[] in alimony until she dies, [marries], or
              other order of court when she suffered no deficit.

¶44.   “For the purposes of recusal, judicial rulings alone almost never constitute a valid

basis for a bias or partiality motion.” Mingo v. State, 944 So. 2d 18, 31 (¶45) (Miss. 2006).

As in Mingo, “[t]he record contains no indication that the trial judge was unreceptive or

dismissive of [Rodney’s] arguments. We will not find adverse rulings to demonstrate bias

simply because they are adverse.” Id. at (¶46). This issue is without merit.

¶45. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY 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.

                                             19
     LEE, C.J., CARLTON, MAXWELL AND JAMES, JJ., CONCUR. FAIR, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J.,
BARNES, ISHEE AND WILSON, JJ.

       FAIR, J., DISSENTING:

¶46.   At trial, Courtney alleged she was entitled to a divorce because she felt it was not

“safe” to live with Rodney anymore. Her proof offered for the divorce was incredibly

cursory, and her testimony on this point consisted entirely of her attorney asking her whether

she felt unsafe, and her answering in the affirmative. She also agreed, in another one-word

answer, that the allegations she had previously made in her attempts to get Rodney

committed were true. But at no point did she allege that Rodney hurt her or threatened her.

Apparently Courtney intended to rely on insinuations that Rodney’s mental illness made him

dangerous.

¶47.   The trial judge does not seem to have accepted Courtney’s claims that Rodney was

dangerous, except to the extent that he found that Rodney “acted at times erratically and

incoherently[,] causing the marriage to break down.” I agree that the record supports that

finding, but I must dissent because occasional erratic or incoherent behavior is not grounds

for divorce.

¶48.   The majority fairly relays Courtney’s allegations against Rodney in the commitment

proceedings, though I should point out that they are a series of anecdotes collected over

several years rather than descriptions of continuing behavior. And Courtney backtracked

from the most important allegation on cross-examination. The first time she attempted to

have Rodney committed, Courtney alleged various erratic but harmless statements Rodney



                                             20
had made, but she topped it off with the claim that he had been carrying a loaded gun in his

waistband. Her affidavit implied that this was regular and continuing behavior, but on cross-

examination at trial she admitted it had only happened twice. In both instances Rodney was

inside his own home, and he was armed because he feared a stranger may have come into the

house. Courtney even admitted she did not know whether Rodney had real cause to be

alarmed in either instance; in fact, one of the doors to the home was broken and could not be

locked. Moreover, these incidents occurred at some unspecified time prior to the first

commitment proceeding, long before the separation and divorce. Courtney did not testify

that it had happened again since.

¶49.   Courtney described Rodney as disagreeable and paranoid. She did allege that he

sometimes involved her in his delusions, but she never described him as responding to

perceived persecutions with violence. In fact, Courtney never alleged that Rodney hurt her,

tried to hurt her, or threatened her – or that he had ever done anything like that to anyone

else. The most recent psychological evaluation, following Courtney’s second attempt to have

Rodney committed, described him as “[n]onthreatening, nonviolent, [and] cordial” and

relayed that he had been “observed in ward for one week without incident of violence or

threats.” Past indications of concern by medical professionals seem to have been largely

based on Courtney’s misleading allegations rather than examination or observation of

Rodney. And at no point did any medical professional ever indicate that Rodney presented

a “substantial likelihood of physical harm” to anyone.

¶50.   Rodney represented himself at trial, and, although it may be tempting to joke that one



                                             21
would have to be crazy to do so, so far as the record reveals he appeared to be coherent and

rational throughout the litigation. His brief on appeal is not only coherent, it is exceptional

for a layman. At all relevant times throughout, Rodney has been able to hold down a high-

paying job with the Internal Revenue Service.

¶51.      After the second unsuccessful attempt to have Rodney committed, his doctors

apparently discontinued whatever medication he had previously been prescribed. Courtney

testified that when Rodney was not on the medication he was disagreeable and “impossible”

to live with, and that was why she left him.

¶52.      That Rodney’s actions “caused the marriage to break down” is insufficient to prove

habitual cruel and inhuman treatment. Instead, Courtney was required to show 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
          non-offending spouse and render it impossible for that spouse to discharge the
          duties of marriage, thus destroying the basis for its continuance.

Richard v. Richard, 711 So. 2d 884, 889 (¶22) (Miss. 1998). There is no allegation of

unnatural or infamous conduct, nor has that been asserted in Courtney’s brief on appeal; so

the issue is whether there was proof of conduct by Rodney that “endangered life, limb, or

health” or created a reasonable fear of such. Courtney did not prove this.

¶53.      Mississippi law specifically allows for divorce when one spouse is suffering from

incurable mental illness. But the Legislature, in the exercise of its exclusive authority to

make laws, does not allow divorce for just any mental illness; it must be so severe that the

                                                22
“offending” spouse has been institutionalized for three years prior to the commencement of

the divorce action. See Miss. Code Ann. § 93-5-1 (Rev. 2013). That did not happen in this

case, and Courtney’s attempt to “end around” the statute by appealing to the stigma of mental

illness should fail. “Divorce is a creature of statute[,] . . . not a gift to be bestowed by the

chancellor.” Hemsley v. Hemsley, 639 So. 2d 909, 912 (Miss.1994) (citation omitted). It “is

a statutory act and the statutes must be strictly followed as they are in derogation of the

common law.” Id.

¶54.   I respectfully dissent.

       GRIFFIS, P.J., BARNES, ISHEE AND WILSON, JJ., JOIN THIS OPINION.




                                              23
