         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2018-CA-00423-COA

SHANN M. MARTIN                                                             APPELLANT

v.

JAMES MITCHELL MARTIN JR.                                                     APPELLEE

DATE OF JUDGMENT:                          02/02/2018
TRIAL JUDGE:                               HON. JANE R. WEATHERSBY
COURT FROM WHICH APPEALED:                 WARREN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                    DAVID M. SESSUMS
ATTORNEY FOR APPELLEE:                     BRANAN PATRICK SOUTHERLAND
NATURE OF THE CASE:                        CIVIL - CUSTODY
DISPOSITION:                               AFFIRMED - 08/06/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

       McCARTY, J., FOR THE COURT:

¶1.    The Chancery Court of Warren County granted Shann Martin and James “Mitch”

Martin a divorce on the ground of irreconcilable differences. The divorce decree awarded

Mitch physical custody of the couple’s son and three parcels of real property. Shann appeals,

challenging the chancery court’s custody determination and distribution of the marital assets.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Shann and Mitch were married twice, most recently in 2013. Their union produced

one child, a son. The couple again separated in 2017. During their marriage, Mitch’s parents

gifted the couple three different parcels of property totaling thirty-five acres. Both Shann’s

and Mitch’s names were on the deeds. One parcel was where the couple intended to build
their family home. The land was cleared, but the home was never built. Another parcel was

exchanged for Shann’s mobile home. Upon the death of Mitch’s father, his mother did not

want to live in the house she shared with her husband, and the parties traded Shann’s mobile

home for her house. That parcel contained Mitch’s childhood home, which Shann and Mitch

used as their marital home. The couple used their joint tax returns to make repairs and

improvements on the property.

¶3.    When distributing the marital assets, the chancery court awarded Mitch the thirty-five

acres, including the marital home.      The chancery court awarded Shann $20,000 in

compensation for improvements on the marital home. In exchange, Shann was to deed her

undivided one-half interest in the thirty-five acres to Mitch. The chancery court found that

each party had enough money to meet his or her needs and that the property division

eliminated the necessity of alimony.

¶4.    During the custody proceedings the chancery court conducted a best-interest analysis

under Albright v. Albright, 437 So. 2d 1003 (Miss. 1983). The factors were found to equally

favor both parents except for two: the morality of the parents and preference of the child,

both of which favored Mitch. The chancery court awarded physical custody of the couple’s

son to Mitch and ordered that Shann pay $382 a month in child support.

¶5.    Shann’s appeal requests a different division of the property and a change in the

custody determination.

                                       DISCUSSION

       I.     The division of the assets was equitable.



                                             2
¶6.    Shann argues on appeal that the chancery court’s distribution of the marital assets was,

in part, an attempt to punish her for adultery. She maintains that her contributions to the

marriage and accumulation of marital assets entitle her to a share of Mitch’s retirement

account and a greater division of the jointly-owned real property.

¶7.    “It is within the [chancery court’s] authority to make an equitable division of all

jointly acquired real and personal property.” Bullock v. Bullock, 669 So. 2d 1205, 1210-11

(¶24) (Miss. 1997). This Court reviews a chancery court’s division of marital assets for an

abuse of discretion. Spahn v. Spahn, 959 So. 2d 8, 12 (¶12) (Miss. Ct. App. 2006). We will

not reverse a chancery court’s distribution of assets absent a finding that the decision was

manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Brock v.

Brock, 906 So. 2d 879, 887 (¶47) (Miss. Ct. App. 2005).

¶8.    Our Supreme Court has held that “the foundational step to make an equitable

distribution of marital assets is to determine the value of those assets.” Stribling v. Stribling,

906 So. 2d 863, 870 (¶25) (Miss. Ct. App. 2005). From there the chancery court must apply

the Ferguson factors which include: (1) contribution to the accumulation of the marital

property; (2) dissipation of the assets; (3) the market or emotional value of assets subject to

distribution; (4) the value of assets not subject to distribution; (5) the tax and economic

consequences of the distribution; (6) the extent to which property division may eliminate the

need for alimony; (7) the financial security needs of the parties; and (8) any other factor that

in equity should be considered. Ferguson v. Ferguson, 639 So. 3d 921, 928 (Miss. 1994).

Upon review, this Court will not conduct a new Ferguson analysis but will examine the



                                                3
chancery court’s application of the factors. Spahn, 959 So. 2d at 12 (¶12).

¶9.      Shann contends that the distribution of assets was overwhelmingly in Mitch’s favor.

Yet the record does not contain financial information to support this argument. Despite

numerous requests from the chancery court, neither party provided the court with a single

valuation of the assets at issue. There was no testimony of the market value of the real

property. Appraisals were never conducted. Both parties failed to provide an amount of the

tax refunds, the amount of money which was invested into the marital home, or by whom the

money was invested. Indeed, the chancery court even noted in the divorce decree that “the

Court [was] perplexed at the lack of evidence concerning property values.”

¶10.     It is incumbent upon the parties, not the chancery court, to prepare the evidence

needed to clearly make a valuation judgment. Stribling, 906 So. 2d at 870 (¶25). “Where

a party fails to provide accurate information, or cooperate in the valuation of assets, the

[chancery court] is entitled to proceed on the best information available.” Id.; see also

Messer v. Messer, 850 So. 2d 161, 170 (¶43) (Miss. Ct. App. 2003) (“This Court has held

that when a chancellor makes a valuation judgment based on proof that is less than ideal, it

will be upheld as long as there is some evidence to support his conclusion.”). “To the extent

that further evidence would have aided the chancellor in these decisions, the fault lies with

the parties and not the chancellor.” Ward v. Ward, 825 So. 2d 713, 719 (¶21) (Miss. Ct. App.

2002).

¶11.     Where, as here, a chancery court “appears to have fully explored the available proof

and arrived at the best conclusions that [they] could . . . we can discover no abuse of



                                              4
discretion in those efforts that would require us to reverse [their] valuation determinations.”

Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (¶28) (Miss. Ct. App. 1999). The chancery

court used the information provided by the parties to conduct a Ferguson analysis. “To the

extent that the evidence on which the [chancery court] based [its] opinion was less

informative than it could have been, we lay that at the feet of the litigants and not the

[chancery court].” Id.

¶12.   This Court employs an “attitude of equity and non-punishment towards the division

of marital property.” Carrow v. Carrow, 642 So. 2d 901, 904 (Miss. 1994). Shann claims

on appeal that the chancery court’s award was punishment for her conduct during the

marriage. But, “[t]his Court [has moved] away from the harsh effects of punishment in

domestic cases towards the just principles of fairness.” Lenoir v. Lenoir, 611 So. 2d 200, 204

(Miss. 1992). The chancery court was within its discretion in decreasing the award, and the

record is devoid of evidence that the property distribution was a punishment.

¶13.   Finding no error of law or abuse of discretion, we affirm the chancery court’s property

distribution.

       II.      The child custody determination was proper.

¶14.   For her second assignment of error, Shann contends that the custody order should be

vacated due to perceived shortcomings in the guardian ad litem’s investigation. Specifically,

she argues that the guardian ad litem failed to include any mention of Mitch’s “adultery and

cohabitation” with his girlfriend and that this omission improperly influenced the chancery

court’s custody determination.



                                              5
¶15.   “This Court applies a limited standard of review in child-custody cases.” Gateley v.

Gately, 158 So. 3d 296, 300 (¶19) (Miss. 2015). We “will reverse a [chancery court’s]

decision regarding child custody determinations only when the decision of the trial court was

manifestly wrong or clearly erroneous, or an erroneous legal standard was employed.”

Purviance v. Burgess, 980 So. 2d 308, 310-11 (¶8) (Miss. Ct. App. 2007).

¶16.   “[T]he polestar consideration in any child custody matter is the best interest and

welfare of the child.” Albright, 437 So. 2d at 1004. To determine the best interest of the

child, Mississippi courts are guided by the factors set forth in Albright.

¶17.   Chancery courts may appoint a guardian ad litem to assist in making custody

determinations. The duty of a guardian ad litem is to gather information and make a

recommendation to the Court. Chancery courts are not obligated to abide by a guardian ad

litem’s recommendation. Gateley, 158 So. 3d at 301 (¶24). It is the chancery court, not the

guardian ad litem, who is the ultimate finder of fact. Id. “[T]his Court will uphold a

[chancery court’s] custody order even if it is partly based on a less than perfect guardian-ad-

litem investigation.” Id. at (¶26).

¶18.   Shann is right—the information about Mitch’s girlfriend was not included in the

guardian ad litem’s report. Yet the information was repeatedly brought out during trial.

Testimony about Mitch’s relationship was elicited during Mitch’s cross-examination and

when their son was questioned by the court. Further, the chancery court noted Mitch’s

girlfriend in the final decree. The chancery court properly considered the guardian ad litem’s

report and reached the same result after a thorough Albright analysis. Any concerns were



                                              6
alleviated by the court’s diligent inquiry and the robust cross-examination. This issue is

without merit.

¶19.   For the reasons discussed above we affirm the chancery court’s division of the marital

assets and custody determination.

¶20.   AFFIRMED.

    BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE AND C. WILSON, JJ., CONCUR. J. WILSON, P.J.,
CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.




                                             7
