                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2012-CT-01218-SCT

MATTHEW BURNHAM

v.

DANA BURNHAM

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:           06/26/2012
TRIAL JUDGE:                HON. DAVID SHOEMAKE
TRIAL COURT ATTORNEYS:      JOHN D. SMALLWOOD
                            THOMAS T. BUCHANAN
                            DAVID ALAN PUMFORD
COURT FROM WHICH APPEALED: COVINGTON COUNTY CHANCERY
                            COURT
ATTORNEYS FOR APPELLANT:    JOHN D. SMALLWOOD
                            THOMAS T. BUCHANAN
ATTORNEY FOR APPELLEE:      DAVID ALAN PUMFORD
NATURE OF THE CASE:         CIVIL - DOMESTIC RELATIONS
DISPOSITION:                AFFIRMED IN PART, REVERSED IN PART
                            AND REMANDED - 11/12/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC

       DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    One party to this irreconcilable-differences divorce appeals the chancellor’s award

of child support and equitable distribution of marital property. We find the chancellor’s

award of child support was supported by the evidence, and we affirm in that respect. But

because the chancellor’s property distribution rested on several factual findings unsupported

by the evidence at trial, we reverse and remand for a new property distribution.
                       FACTS AND PROCEDURAL HISTORY

¶2.    After a twelve-year marriage, Matthew and Dana Burnham agreed to a divorce based

on irreconcilable differences, that Dana would take primary physical custody of their two

minor children—Audrey and Mattilyn—and to a visitation schedule for Matthew. The

parties asked the chancellor to determine child support, insurance coverage, distribution of

marital property, and whether the parties would share legal custody of the children.

¶3.    After a trial, the chancellor ordered Matthew to pay $600 per month in child support,

noting that the amount was based on an agreement of the parties. He also ordered Matthew

to pay all property taxes, maintain homeowner’s insurance for the marital home, and to

provide health, dental, and life insurance for the children.

¶4.    The chancellor awarded Dana use and possession of the marital home valued at

$255,000. He ordered that the home be held until the youngest child reached the age of

majority, and then sold, with Dana receiving seventy-five percent of the proceeds. He

awarded three other pieces of real property—with a combined value of $119,350—to

Matthew, to be sold at the same time as the marital home, with Matthew receiving seventy-

five percent of the proceeds.

¶5.    Dana also received a 2008 Suburban, valued at $27,000; her Roth IRA, valued at

$1,226.87; and half of Matthew’s PERS retirement account—$20,582.20, and a Mississippi

Deferred Compensation account—$33,329.27—when they became available for

distribution. Matthew received his IRA, valued at $730.67; a 2003 F250 truck, valued at

$5,000; a 2000 Suburban, valued at $5,000; as well as the remainder of his PERS and



                                              2
Mississippi Deferred Compensation accounts. He also was ordered to pay all marital

debt—a mortgage and home equity line of credit, a farm loan, and a student loan—totaling

$225,472.79. So, in total, the chancellor awarded Dana assets worth a total of $303,225.84

and Matthew assets and debts amounting to a net value of negative $7,568.15.

¶6.    Matthew appealed the chancellor’s equitable-distribution and child-support awards,

and the Mississippi Court of Appeals affirmed on rehearing.1 Matthew petitioned this Court

for writ of certiorari, which we granted, and we now affirm the award of child support, but

reverse and remand for a new equitable distribution of marital property.

                                STANDARD OF REVIEW

¶7.    In his petition for certiorari, Matthew argues that the Court of Appeals should not

have applied a deferential standard of review because the chancellor adopted Dana’s

proposed findings of fact and conclusions of law. We disagree. In Bluewater Logistics,

LLC v. Williford, we abandoned the rule that a chancellor’s decision to adopt a party’s

proposed findings of fact was subject to “heightened scrutiny.”2 A chancellor’s factual

findings, even those adopted from a party, are reviewed for an abuse of discretion.3




       1
       Burnham v. Burnham, No. 2012-CA-01218-COA, 2014 WL 9913457 (Miss. Ct.
App. June 16, 2015).
       2
        Bluewater Logistics, LLC v. Williford, 55 So. 3d 148, 156–57 (Miss. 2011) (citing
In re Estate of Grubbs, 753 So. 2d 1043, 1046–47 (Miss. 2000); Brooks v. Brooks, 652 So.
2d 1113, 1118 (Miss. 1995)).
       3
           Bluewater Logistics, LLC, 55 So. 3d at 157.

                                             3
                                          ANALYSIS

       I.      Child Support

¶8.    Matthew contends that the chancellor erred by ordering him to pay $600 per month

in child support because the chancellor erroneously concluded that the parties had agreed

to that amount, and because $600 per month exceeds the child support that should have been

ordered based on the evidence presented at trial and the statutory guidelines. Because

Matthew admitted that the agreement existed in the trial court, we disagree.

¶9.    The parties’ Consent to Divorce on the Grounds of Irreconcilable Differences

reserved child support as an issue to be determined by the chancellor. On the day of trial,

Dana’s attorney also stated that the parties were asking the chancellor to adjudicate child

support. But, in the final order, the chancellor stated:

       Based on the testimony and the evidence as presented at the trial and
       temporary hearing and the agreement of the parties stated into the record, child
       support shall be payable to Dana in the amount of $600.00 per month on or
       before the first of each month.

Matthew now claims that the chancellor erred by relying on an agreement that did not exist.

¶10.   The record before this Court does not contain an agreement of the parties as to child

support. But, when Matthew filed his Motion for New Trial & Motion to Alter or Amend

Judgment in the trial court, he stated:

       The parties entered into a Consent for Divorce on Irreconcilable Differences
       and the divorce was granted accordingly. The parties also agreed to terms of
       custody, child support and medical insurance and medical bills for the minor
       children. All agreed to provisions are not at issue here.4



       4
           Emphasis added.

                                              4
“The well-recognized rule is that a trial court will not be put in error on appeal for a matter

not presented to it for decision.”5 So we will not now find that the chancellor relied on an

agreement that did not exist, when Matthew’s post-trial motion seeking to amend that order

admitted that the parties had agreed on child support and that it was not at issue.

¶11.   And because we do not find that the chancellor erred by relying on the parties’ child-

support agreement, as well as “the testimony and the evidence as presented at the trial and

temporary hearing,” Matthew’s argument that the chancellor impermissibly departed from

the statutory guidelines lacks merit. We have recognized that the statutory guidelines are

just that, guidelines, and the parties may agree to child support in excess of the statutory

guidelines.6 And so long as the chancellor finds the amount of child support to be adequate

and sufficient, we will not reverse solely because the amount exceeds the guidelines.7

       II.      Equitable Distribution

¶12.   Parties to an irreconcilable-differences divorce may agree to the divorce itself, but

submit disputed issues—such as property division—to the chancellor for adjudication.8



       5
        Mills v. Nichols, 467 So. 2d 924, 931 (Miss. 1985) (citing Natural Father v. United
Methodist Children’s Home, 418 So. 2d 807 (Miss. 1982); Mabry v. Winding, 229 Miss.
88, 90 So. 2d 175 (1956)).
       6
         Short v. Short, 131 So. 3d 1149, 1152 (Miss. 2014) (“Although, on the surface, it
appears the amount of child support is indeed high, Andy freely consented to provide more
support for his child than is recommended by the statutory guidelines. . . . Thus, Andy
should be required to adhere to the agreement he freely entered into, which was deemed
sufficient by the chancellor and was incorporated into the judgment of divorce.”).
       7
           Id. at 1152 (citing Bell v. Bell, 572 So. 2d 841, 845 (Miss. 1990)).
       8
           Miss. Code Ann. § 93-5-2 (Rev. 2013).

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When the parties request that the chancellor resolve the issue of property division, the

chancellor must do three things: “(1) classify the parties’ assets as marital or separate, (2)

value those assets, and (3) divide the marital assets equitably.”9 Here, neither party

questions the chancellor’s classification or valuation of the property. Rather, Matthew

contends that the chancellor distributed that property in an inequitable manner.

¶13.   “[A]n equitable division of property does not always mean an equal division of

property.”10 Instead, equitable distribution is determined by applying the factors set out by

this Court in Ferguson v. Ferguson.11 Those factors are:

       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 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.




       9
        Wheat v. Wheat, 37 So. 3d 632, 637 (Miss. 2010) (citing Ferguson v. Ferguson,
639 So. 2d 921, 928 (Miss. 1994)).
       10
            Bresnahan v. Bresnahan, 818 So. 2d 1113, 1118 (Miss. 2002).
       11
            Ferguson, 639 So. 2d at 928.

                                               6
       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.12

Here, the chancellor made detailed findings under each of the Ferguson factors, and his

findings led him to a significantly disparate property distribution. Dana received assets with

a total value of $303,225.84, and none of the marital debt. Matthew received $217,904.64

worth of marital assets but the entire $225,472.79 in marital debt.

¶14.   While a disproportionate distribution is not per se inequitable,13 several of the

chancellor’s findings were not supported by the evidence presented at trial. Under the

second Ferguson factor, the chancellor faulted Matthew for dissipating marital assets and

for violating the chancellor’s temporary order.

¶15.   Before trial, the chancellor entered a temporary order which stated:


       12
            Id.
       13
        Carney v. Carney, 112 So. 3d 435, 438 (Miss. 2013) (“And we iterate that
awarding 100 percent equity in a marital asset to one party is not error per se.”).

                                                 7
       The Court orders that neither party is to dispose of or encumber any marital
       assets, with the exception that Matthew may use income generated by the sale
       of agricultural products to defray the FSA note that is owed and that he is
       responsible for continuing to pay. An accounting will be given by Matthew
       of any and all receipts, cash or otherwise, as a result of the farming operation.

At trial, the undisputed evidence showed that Matthew had paid off the entire FSA note by

selling all of his agricultural equipment on the advice of his counsel. He also had made

extra payments on his student loan with his own income, and with more than three thousand

dollars from the sale of hay that was left after the FSA note had been paid in full.

¶16.   Despite the fact that Matthew used the proceeds of the sale to pay off marital debt,

the chancellor weighed these acts against Matthew in his Ferguson analysis, finding that

Matthew had violated the temporary order and dissipated marital assets. According to the

chancellor’s statements during trial, he intended the phrase “sale of agricultural products”

to mean the sale of crops generated through farming, such as the hay.

¶17.   But that meaning of “agricultural products” is not apparent from the temporary order,

and could mean either agricultural equipment such as tractors, or agricultural crops, such as

hay. Further, even if the chancellor correctly concluded that Matthew willfully violated the

order, the proper punishment for contempt does not include shifting equitable distribution

in favor of the other party.

¶18.   Also, based on the evidence in the record before us, Matthew’s actions cannot be

considered dissipating marital assets. While it is true that the items Matthew sold were

marital assets, it was undisputed at trial that every penny accrued from those sales was used

to pay marital debt. So the sale of farm equipment had a net-neutral effect on the total value



                                              8
of the marital estate by decreasing marital debt by the same amount that it decreased the

value of marital assets.

¶19.   The chancellor also found that Matthew has an earning capacity that exceeds his

present income as a professor at Jones County Junior College. He based this finding on the

fact that Matthew had operated a small cattle-farming operation. In the chancellor’s opinion,

Matthew could re-enter the farming business to obtain additional income.            In fact,

throughout his order, the chancellor repeatedly referred to the farm as an additional source

of income.

¶20.   But the undisputed evidence at trial showed that the farm operated at a loss every

year. And while the chancellor observed that Matthew possesses four college degrees, no

evidence was provided to show that those degrees should provide more gainful employment

than he presently possesses as a junior college professor.

¶21.   So, given that the chancellor’s equitable distribution of marital property was

significantly affected by findings that were unsupported by the evidence at trial, we must

reverse and remand for a new equitable distribution.

                                       CONCLUSION

¶22.   We affirm the chancellor’s award of child support, but we reverse the chancellor’s

distribution of marital property and remand this case for a new equitable distribution.

Because the Court of Appeals affirmed the chancellor’s property distribution, we affirm its

decision in part and reverse it in part.

¶23.   AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.



                                             9
    WALLER, C.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND
COLEMAN, JJ., CONCUR. RANDOLPH, P.J., NOT PARTICIPATING.




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