        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2018-CA-00330-COA

ELEANOR E. ELLISON                                                      APPELLANT

v.

STEPHEN D. WILLIAMS                                                       APPELLEE

DATE OF JUDGMENT:                        12/28/2017
TRIAL JUDGE:                             HON. C. MICHAEL MALSKI
COURT FROM WHICH APPEALED:               UNION COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                  JOE M. DAVIS
ATTORNEY FOR APPELLEE:                   RICHARD SHANE McLAUGHLIN
NATURE OF THE CASE:                      CIVIL - DOMESTIC RELATIONS
DISPOSITION:                             AFFIRMED IN PART; REVERSED AND
                                         REMANDED IN PART - 06/18/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE J. WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

      WESTBROOKS, J., FOR THE COURT:

¶1.   Eleanor Ellison appeals the Union County Chancery Court’s division of her and

Stephen Williams’s marital estate. Ellison and Williams separated in August 2016 when

Williams moved out of the marital home. Ellison and Williams resided in two homes during

their marriage and owned both at the time of their separation. The Union County Chancery

Court found that both homes were marital property and divided their remaining assets. The

chancellor awarded Ellison sixty percent of the marital estate and awarded Williams the

remaining forty percent. Ellison timely appeals.

                                        FACTS

¶2.   Ellison and Williams married on April 23, 2007, and resided in a home deeded to
Ellison by her parents (Ingomar Property). Her parents had fully paid for the home, and they

deeded it to Ellison in her name only. The couple resided in the home for almost eight years

before they decided to purchase another home in a different school district so that Ellison’s

grandson could attend school there (Highway 348 Property).

¶3.    Together Ellison and Williams took out an equity loan on the Ingomar Property to

purchase the Highway 348 Property and an additional loan to cover the amount that the

equity loan did not. They resided at the Highway 348 Property and rented the Ingomar

Property from January 2015 until their separation in September 2016. While residing in the

home, Williams took on many repair projects, such as painting rooms, putting down

hardwood floors, installing a hot tub, and laying a brick paver around the home.

¶4.    After Williams left the marital home, Ellison was solely responsible for the finances

of both the Ingomar Property and the Highway 348 Property with the exception of two

months. She continued to rent out the Ingomar Property, which covered its mortgage, and

began receiving $500 a week from her son to help with the Highway 348 Property mortgage

and her living expenses because she was not working. Ellison testified that since the

separation, her son had loaned her approximately $35,000.

¶5.    Shortly after Williams’s departure, he began an extramarital relationship. In January

2017, Ellison filed a complaint for divorce and cited Williams’s adultery. After a hearing in

November 2017, the chancellor granted the divorce and awarded Ellison sixty percent of the

marital estate and Williams forty percent. The chancellor also found that the $35,000 loan

from Ellison’s son was not marital debt, and the chancellor did not award either party



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attorney’s fees. In 2018, Ellison filed a motion to reconsider, which was denied by the

chancery court. Aggrieved, Ellison appealed. After review of the record, we affirm the

chancellor’s judgment in part and reverse and remand in part for further proceedings.

                               STANDARD OF REVIEW

¶6.    “It is well settled that this Court applies a limited standard of review on appeals from

chancery court.” Rodgers v. Moore, 101 So. 3d 189, 193 (¶8) (Miss. Ct. App. 2012) (internal

quotation mark omitted). “The chancery court’s factual findings will not be disturbed if they

are supported by substantial evidence unless we can say with reasonable certainty that the

chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an

erroneous legal standard.” Id. “Questions of law receive a de novo review.” Id.

                                       DISCUSSION

¶7.    Ellison raises three issues on appeal. Ellison asserts the chancellor erred (1) by

misapplying the Ferguson factors, (2) by not finding the loan from her son was marital debt,

and (3) by denying her request for attorney’s fees.

       I.     Ferguson Factors

¶8.    Ellison first asserts that the chancellor misapplied the Ferguson factors and that she

should have been awarded a larger part of the marital estate. In Ferguson v. Ferguson, 639

So. 2d 921, 928 (Miss. 1994), the Mississippi Supreme Court set out the following factors

to be considered by the chancellor when dividing marital estates:

       1.     Substantial contribution to the accumulation of the property. Factors to
              be considered in determining contribution are as follows:

              a.     Direct or indirect economic contribution to the acquisition of the


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                     property;

              b.     Contribution to the stability and harmony of the marital and
                     family relationships as measured by quality, quantity of time
                     spent on family duties and duration of the marriage; and

              c.     Contribution to the education, training or other accomplishment
                     bearing on the earning power of the spouse accumulating the
                     assets.

       2.     The degree to which each spouse has expended, withdrawn or
              otherwise disposed of marital assets and any prior distribution of such
              assets by agreement, decree or otherwise.

       3.     The market value and the emotional value of the assets subject to
              distribution.

       4.     The value of assets not ordinarily, absent equitable factors to the
              contrary, subject to such distribution, such as property brought to the
              marriage by the parties and property acquired by inheritance or inter
              vivos gift by or to an individual spouse;

       5.     Tax and other economic consequences, and contractual or legal
              consequences to third parties, of the proposed distribution;

       6.     The extent to which property division may, with equity to both parties,
              be utilized to eliminate periodic payments and other potential sources
              of future 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.

“A chancellor is required to make findings of fact regarding all applicable Ferguson factors.”

Lowrey v. Lowrey, 25 So. 3d 274, 285 (¶26) (Miss. 2009). “The distribution of marital assets

in a divorce will be affirmed if it is supported by substantial credible evidence.” Id. The

Ferguson factors evaluate the needs, contributions, and conduct of the parties.



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¶9.    Here, Ellison states that the chancellor did not properly account for the fact that she

bore the largest burden in acquiring both properties or for Williams’s multiple departures

from the home during their marriage and his extramarital relationship. She further states that

Williams did not contribute financially during his absences except for paying $200 toward

the mortgage in September and October of 2016, leaving her to pay all marital expenses.

Ellison testified that before their final separation in September 2016, Williams was absent

from the marital home several days in April 2008, February 2008, September 2010, July and

August of 2011, October through December of 2012, and for a year lasting from March 2013

to March 2014. Williams testified to leaving the marital home about four times during their

marriage. He further admitted he did not contribute to household expenses during his

absence.

¶10.   In the final judgment, the chancellor reduced Williams’s distribution to account for

one-half of the air conditioner that Ellison had to replace and one-half of the payments made

on the indebtedness during their separation. Accordingly, we find that the chancellor

properly accounted for Williams’s absences in dividing the marital estate and find this issue

without merit.

¶11.   Ellison also asserts that the chancellor should have considered Williams’s extramarital

affair. We agree. The Mississippi Supreme Court has reversed and remanded cases when

the chancellor did not consider how an extramarital relationship “impacted and burdened the

stability and harmony of the marriage.” Watson v. Watson, 882 So. 2d 95, 108 (¶68) (Miss.

2004) (quoting Singley v. Singley, 846 So. 2d 1004, 1009 (¶13) (Miss. 2002)). “Mississippi



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is in a minority of states in which marital misconduct is a factor for consideration in property

division.” Deborah H. Bell, Bell on Mississippi Family Law § 6.08[2][e], 176 (2d ed. 2011).

¶12.   Here, Ellison did receive a slightly larger portion of the marital estate than Williams,

but the chancellor did not cite that as his reasoning. The chancellor stated that he was aware

it was Ellison’s family home that they first resided in and then leveraged to purchase another

home; he therefore awarded Ellison sixty percent. The chancellor awarded Ellison a fault-

based divorce but then did not directly consider how Williams’s absences and infidelity

affected the stability and harmony of the home when dividing the estate. Because we believe

the chancellor’s lack of consideration was error, we reverse and remand for further

proceedings on this issue to allow the chancellor to consider the extramarital relationship in

equitably dividing their estate. Additionally, we reverse and remand to allow the chancellor

to make a full Ferguson analysis on the record.

       II.    Marital Indebtedness

¶13.   Ellison also asserts that the chancellor erred in ruling that the $35,000 loan from her

son was not marital debt. Ellison maintains that had it not been for Williams’s behavior she

would not have had to borrow money from her son to cover expenses. Ellison testified that

the $35,000 included almost $5,000 worth of attorney’s fees and $2,300 for the new HVAC

system. Ellison also testified that she and her son signed a promissory note dated in 2017

that she would begin paying him back January 2018.

¶14.   Williams counters that Ellison was working for her son after her daughter-in-law had

a stroke and that the $500 a week her son gave her were wages for Ellison helping them out



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around their home and not a loan intended to be repaid. On direct examination, Ellison

testified that she did assist her son and his family but did not amount to $500 a week’s worth

of assistance and that he never gave her a check or a W-2. On cross-examination, Ellison

admitted that at one point she did work for her son and that he would pay her $150 or $250

a week, but once he started depositing $500 a week into her account it turned from payment

into a loan. Additionally, Williams pointed out that Ellison listed the $2,000 a month she

was receiving from her son as income and not as a loan on her Rule 8.05 financial statement.1

¶15.   Because Ellison failed to affirmatively prove that the loan was not wages earned, we

do not find that the chancellor was manifestly wrong or abused his discretion in finding that

the loan was not marital debt. Therefore, we find this issue without merit.

       III.    Attorney’s Fees

¶16.   Lastly, Ellison argues that she should have been awarded attorney’s fees because she

demonstrated that she was unable to pay. The Mississippi Supreme Court has held that:

       The award of attorney fees in divorce cases is left to the discretion of the
       chancellor, assuming he follows the appropriate standards. Attorney fees are
       not generally awarded unless the party requesting such fees has established the
       inability to pay. The fee should be determined that the legal work charged for
       was reasonably required and necessary. When considering an award of
       attorney fees, a sum sufficient to secure a competent attorney is the criterion
       by which we are directed. The fee depends on relative financial ability of the
       parties, the skill and standing of the attorney employed, the nature of the case
       and novelty and difficulty of the questions at issue, as well as the degree of
       responsibility involved in the management of the cause, the time and labor
       required, the usual and customary charge in the community, and the preclusion
       of other employment by the attorney due to the acceptance of the case.
       Attorney fees have been refused where little or no evidence has been presented
       to substantiate the amount requested. Unless the chancellor abused his

       1
           UCCR Rule 8.05.

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       discretion or is manifestly wrong, his decision regarding attorney fees will not
       be disturbed on appeal.

Creekmore v. Creekmore, 651 So. 2d 513, 520 (Miss. 1995) (internal quotation marks

omitted).

¶17.   Here, Ellison testified that she paid her attorney’s fees out of the loan from her son,

but she provided no proof of the amounts paid or her inability to pay. Accordingly, without

proof, we find that the chancellor did not abuse his discretion or was manifestly wrong and

affirm his decision to deny the request.

                                       CONCLUSION

¶18.   After review of the record, we affirm the chancellor’s decision to classify the loans

made to Ellison as non-marital debt and the denial of attorney’s fees. We reverse and remand

for further proceedings to allow the chancellor to reconsider Williams’s extramarital

relationship as a factor in dividing the estate.

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

    BARNES, C.J., J. WILSON, P.J., McDONALD, LAWRENCE AND C.
WILSON, JJ., CONCUR. TINDELL, J., CONCURS IN PART AND DISSENTS IN
PART WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON, P.J.,
GREENLEE AND McCARTY, JJ.

       TINDELL, J., CONCURRING IN PART AND DISSENTING IN PART:

¶20.   Because the chancellor heard evidence of Williams’s extramarital relationship and

thereafter awarded Ellison with a greater percentage of the marital estate, I would affirm the

chancellor’s judgment in its entirety. Where substantial evidence supports a chancellor’s

findings, the Court is without authority to disturb the chancellor’s conclusions even if it



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would have found otherwise in the original matter. Joel v. Joel, 43 So. 3d 424, 429 (¶14)

(Miss. 2010). We have previously held that “failure to make an explicit factor-by-factor

analysis does not necessarily require reversal where we are satisfied that the chancellor

considered the relevant facts.” Palmer v. Palmer, 841 So. 2d 185, 190 (¶18) (Miss. Ct. App.

2003). Unless the chancellor’s judgment was manifestly wrong, clearly erroneous, or applies

an erroneous legal standard, the judgment should stand. Carambat v. Carambat, 72 So. 3d

505, 510-11 (¶24) (Miss. 2011).

¶21.   The final judgment does address Williams’s adultery in the chancellor’s findings of

fact. Further, after conducting a full Ferguson analysis, the chancellor awarded Ellison sixty

percent of the marital assets and forty percent to Williams. Substantial evidence supported

the chancellor awarding a greater portion of the marital estate to Ellison, and he did so

accordingly. For these reasons, I find no manifest error in his conclusions and respectfully

dissent in part from the majority’s opinion.

       CARLTON, P.J., GREENLEE AND McCARTY, JJ., JOIN THIS OPINION.




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