        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CA-00313-COA

BRIDGET WARREN HOLMAN                                                      APPELLANT

v.

DAVID SCOTT HOLMAN                                                           APPELLEE

DATE OF JUDGMENT:                          10/12/2015
TRIAL JUDGE:                               HON. PERCY L. LYNCHARD JR.
COURT FROM WHICH APPEALED:                 DESOTO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                    JERRY WESLEY HISAW
ATTORNEY FOR APPELLEE:                     JOHN STANNARD FARESE
NATURE OF THE CASE:                        CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:                   FOUND APPELLEE’S FINANCIAL
                                           STATEMENT WAS NOT MATERIALLY
                                           FALSE; REFUSED TO CLASSIFY OR
                                           DIVIDE APPELLEE’S RETIREMENT
                                           ACCOUNT; AWARDED ATTORNEY’S
                                           FEES TO THE APPELLEE; AND FOUND
                                           THERE WAS NO CHILD-SUPPORT
                                           ARREARAGE
DISPOSITION:                               AFFIRMED IN PART; REVERSED AND
                                           REMANDED IN PART: 04/04/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Bridget Warren Holman appeals the chancellor’s findings regarding the distribution

of marital property, the award of attorney’s fees, and child support. Upon review, we affirm

in part, and reverse and remand in part.

                        FACTS AND PROCEDURAL HISTORY

¶2.    Bridget and David “Scott” Holman were married July 10, 2003. They have two minor
children together, and Bridget has a minor child from a previous relationship.

¶3.    On January 15, 2013, Bridget filed for divorce on the grounds of adultery, habitual

cruel and inhuman treatment, and/or irreconcilable differences. In March 2013, Scott

counterclaimed for divorce on the grounds of habitual cruel and inhuman treatment and/or

irreconcilable differences. Both Bridget and Scott sought custody of their minor children and

an equitable distribution of the marital property. An agreed temporary order was entered in

August 2013; Bridget received temporary custody of the minor children, and Scott paid

$2,500 per month in child support.

¶4.    The case lingered because Bridget changed attorneys and there were various contempt

and discovery issues. The trial initially began on June 16, 2015; Bridget was represented by

her fourth attorney. Late that day, Bridget testified about an incident when Scott spanked one

of the children. The chancellor construed Bridget’s testimony as an allegation of abuse,

appointed a guardian ad litem, and rescheduled the trial.

¶5.    The trial resumed on October 12, 2015. Before then, Bridget terminated her fourth

attorney and proceeded to represent herself. At the conclusion of the trial, the chancellor

dismissed Bridget’s complaint for divorce on the ground of adultery, and awarded Scott a

divorce on the ground of habitual cruel and inhuman treatment. The chancellor awarded

custody of the minor children to Bridget, divided the marital property, and ordered Bridget

to pay Scott’s attorney’s fees for the child-abuse allegation.

¶6.    After the trial, Bridget retained new counsel. Her counsel obtained Scott’s payroll

records. Then, Bridget filed a motion for reconsideration and/or a new trial. Scott filed a



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similar motion. The motions were denied by the chancellor. From this judgment, Bridget

now appeals.

                                STANDARD OF REVIEW

¶7.    In an appeal from chancery court, we apply a limited standard of review. Scott v.

Scott, 115 So. 3d 847, 849 (¶6) (Miss. Ct. App. 2012). “We will not disturb the chancellor’s

factual findings if they [are] supported by substantial evidence.” McNatt v. Turbeville, 162

So. 3d 881, 883 (¶9) (Miss. Ct. App. 2015). “However, we will reverse the chancellor if he

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

legal standard.” Id. “We review questions of law de novo.” Id.

                                        ANALYSIS

       I.      Scott’s Financial Statement

¶8.    Bridget claims Scott filed a materially false financial statement, which failed to

disclose a retirement account and grossly misrepresented his monthly income. During the

trial, Scott submitted two financial statements: dated January 2013 and October 2015,

respectively. Neither of the financial statements listed a retirement account. Bridget claims

that, based on the documents she obtained posttrial, Scott had a retirement account worth

$53,701.14 and an average monthly income of $13,526.38. She now argues that Scott’s

failure to properly disclose his income and assets was a fraud on the chancery court.

¶9.    “Uniform Chancery Court Rule 8.05 requires each party in a domestic-relations case

involving economic issues and/or property division to file a financial statement with the

court.” Bell v. Stevenson, 158 So. 3d 1229, 1237 (¶22) (Miss. Ct. App. 2015). “[A] party’s



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intentional filing of a substantially false Rule 8.05 financial statement constitutes a fraud on

the court.” Trim v. Trim, 33 So. 3d 471, 478 (¶17) (Miss. 2010). “[M]ere nondisclosures

alone do not rise to the level of fraud on the court.” Finch v. Finch, 137 So. 3d 227, 235

(¶23) (Miss. 2014). Instead, “[r]elief based on ‘fraud upon the court’ is reserved for only the

most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme

which is designed to improperly influence the court in its decision.’” Trim, 33 So. 3d at 477

(¶15). “[F]raud must be prove[n] [by] clear and convincing evidence.” Finch, 137 So. 3d

at 235 (¶23).

¶10.   Here, the chancellor found there was “no evidence that [Scott] willfully withheld,

secreted, or had any plan to perpetrate a fraud upon the court.” We agree.

¶11.   Scott listed his gross monthly income as $6,333 on his first financial statement and

$6,000 on his second. However, Scott noted that these amounts were averages since he

received commissions and bonuses that varied.

¶12.   During the June 2015 trial, Scott was questioned by Bridget’s former counsel

regarding his income and admitted his income varied each month. During the October 2015

trial, Scott explained there were months where he would bring in a large amount of money,

but there were also months where he did not have “much of anything coming in.” Scott

agreed that the income listed in his financial statement was “an average over a period of time

looking at it and trying to come up with [it] the best [he] could.”

¶13.   Additionally, during the June 2015 trial, Bridget’s former counsel questioned Scott

about his financial statement. When asked if there were any additional accounts other than



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the ones listed in his financial statement, Scott acknowledged he had a retirement account

through his employment, but did not know the balance. In the October 2015 trial, Scott again

acknowledged the retirement account and stated that he did not draw dividends.

¶14.   The record indicates that Bridget was aware of both the variation in Scott’s income

and the retirement account. However, Bridget had four different attorneys throughout the

litigation. She terminated her fourth attorney prior to the October 2015 trial, and proceeded

to trial pro se. She hired her fifth attorney after the October trial. Interestingly, she now

relies on payroll records obtained by her fifth attorney only days after the October trial.

¶15.   During the hearing on the motions for reconsideration, the chancellor declined to

admit the documents and ultimately found as follows:

       With respect to the retirement account and in conjunction with the income
       argument, as the Court recalls, [Scott’s] income is not a guaranteed amount.
       It is fluctuating and speculative. He represented it to be one figure. If his
       testimony were to be impeached, it should have been impeached at trial.
       There’s no evidence that he willfully withheld, secreted, or had any plan to
       perpetrate a fraud upon the Court. His 8.05 reflected what he believed his
       income to be or what he represented his income to be, presumptively in good
       faith. It certainly could have been attacked and impeached by — clearly,
       easily discoverable evidence, which I think [Bridget’s counsel] has shown that
       it is.

¶16.   There is no evidence Scott intentionally filed a substantially false financial statement.

He acknowledged his variation in income as well as his retirement account during trial.

Bridget was aware of Scott’s employment and had the option of obtaining financial records

to dispute Scott’s income and retirement. Notably, the newly obtained financial documents

were previously available to Bridget. Yet, because of her inability to retain and keep counsel

for a consistent period of time and her self-representation at trial, Bridget failed to present

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evidence to dispute Scott’s testimony.

¶17.   Bridget asserts Scott’s failure to properly disclose his income resulted in child-support

payments that are “too low.” However, Bridget may seek a modification in child support and

use the financial records she obtained posttrial. The chancellor found that Scott’s disclosures

did not amount to fraud. Also, the chancellor found no evidence of “egregious misconduct”

or “an unconscionable plan or scheme which [was] designed to improperly influence the

court in its decision.” Thus, we do not find the chancellor erred in failing to find Scott

intentionally submitted a materially false financial statement. We do not find the chancellor

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

legal standard. We affirm the chancellor’s ruling on this issue.

       II.    Scott’s Retirement Account

¶18.   The record shows Scott has a retirement account through his employment, which was

accumulated during the marriage. Although its value was unknown, the account was

discussed at trial. However, the chancellor failed to classify or address the retirement

account.

¶19.   “[A] failure to classify property does not automatically result in reversible error if the

division of property is fair.” Dykes v. Dykes, 191 So. 3d 1287, 1291 (¶26) (Miss. Ct. App.

2016). However, a “failure to classify a material asset is grounds for reversal on appeal.”

Strong v. Strong, 981 So. 2d 1052, 1055 (¶18) (Miss. Ct. App. 2008).

¶20.   We find the retirement account is a material asset that should have been classified and

addressed. We find it was reversible error for the chancellor to not classify and consider



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Scott’s retirement account in the equitable division of marital property. We therefore reverse

and remand for a classification and division, if appropriate, of Scott’s retirement account.

       III.   Attorney’s Fees

¶21.   At the end of the initial trial in June 2015, Bridget testified regarding an incident of

excessive spanking of one of the parties’ minor children. Bridget stated, “I mean it wasn’t

just a spanking on the butt. We’re talking about up and down the back, red marks, and had

I been smart enough, I would have taken a picture of that.”

¶22.   The chancellor construed Bridget’s testimony as an allegation of child abuse,

appointed a guardian ad litem, and continued the trial. The guardian ad litem ultimately

found the allegations of child abuse to be without foundation. As a result, the chancellor

ordered Bridget to pay Scott’s attorney’s fees related to the child-abuse allegation.

              a.     Abuse Allegation

¶23.   Bridget claims she did not make an abuse allegation “but merely talked about Scott’s

bad parenting” and “an incident of excessive spanking.” Pursuant to Mississippi Code

Annotated section 43-21-105(m) (Rev. 2016), “physical discipline, including spanking,

performed on a child by a parent, guardian or custodian in a reasonable manner shall not be

deemed abuse under this section.”

¶24.   Bridget asks that we find the chancellor erred in construing Bridget’s allegation of

excessive spanking and her testimony that Scott spanked the child up and down his back,

leaving red marks, as an allegation of child abuse. We disagree. Based on Bridget’s

testimony, it was not manifestly wrong or clearly erroneous for the chancellor to have



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concerns since, under Mississippi Code Annotated section 43-21-105(m) (Rev. 2015),

spanking must be reasonable.

¶25.   Moreover, neither Bridget nor her former trial counsel objected to the chancellor’s

interpretation of Bridget’s testimony, or attempted to clarify Bridget’s statements. Bridget

had the opportunity to advise the chancellor at that time what she now asserts to this Court

on appeal—that she did not intend to allege child abuse, but was simply discussing Scott’s

bad parenting.

              b.        Amount of Attorney’s Fees Awarded

¶26.   Bridget next argues “the chancellor had no legal authority to award attorney’s fees.”

Bridget further argues that even if it was proper for the chancellor to award Scott attorney’s

fees, the attorney’s fees should have been limited to those fees actually incurred in defending

the abuse allegation.

¶27.   “An award of attorney’s fees will not be disturbed unless the chancellor abused his

discretion or committed manifest error.” Stuart v. Stuart, 956 So. 2d 295, 299 (¶20) (Miss.

Ct. App. 2006). Attorney’s fees may be properly awarded “where one party’s actions have

caused the opposing party to incur additional legal fees.” Id.

¶28.   The chancellor ordered Scott’s counsel to present an accounting of attorney’s fees

incurred in the defense of the abuse allegation. However, Scott’s counsel submitted an

affidavit and an attached itemization, which included charges for all work performed since

June 2015, when the allegation of abuse was made by Bridget.

¶29.   The chancellor awarded Scott $15,135 in attorney’s fees, which represented all work



                                              8
performed by Scott’s counsel since the child-abuse allegation was made. The chancellor

explained his decision as follows:

       This matter was tried almost to its conclusion as [Scott’s counsel] correctly
       stated, in day one, and then a revelation by [Bridget] comes about alleging
       abuse by [Scott]. The [chancery court], pursuant to the appropriate statute,
       halted the proceedings and appointed a guardian ad litem. In doing so, that not
       only increased the attorney[’s] fees for both parties, but also, of course,
       incurred the fees of the guardian ad litem.

       We tried the matter then on yet another day, again to its conclusion . . . . I think
       in all fairness and in all equity, because of the additional attorney[’s] fees
       incurred because of the revelation from the stand and not anywhere prior . . .
       in any deposition, discovery, or otherwise, it’s only proper that the party who
       causes another party to incur those fees should be assessed.

¶30.   As the chancellor noted, at no point prior to the June 2015 trial had Bridget alleged

child abuse. Indeed, the abuse allegation was made for the first time after approximately two

and one-half years of litigation. Such an allegation caused additional delay and costs. Thus,

we do not find the chancellor abused his discretion or committed manifest error in awarding

attorney’s fees.

¶31.   However, we do find the chancellor erred in failing to determine what portion of the

submitted fees was actually incurred by Scott in responding to the abuse allegation. “The

fees ‘should be fair and should only compensate for services actually rendered after it has

been determined that the legal work charged for was reasonably required and necessary.’”

Martin v. Stevenson, 139 So. 3d 740, 752 (¶40) (Miss. Ct. App. 2014) (citing Dunn v. Dunn,

609 So. 2d 1277, 1286 (Miss. 1992)). Accordingly, we reverse and remand in order for the

chancellor to determine the amount of attorney’s fees associated with Scott’s defense of the

abuse allegation.

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       IV.    $7,500 Child-Support Arrearage

¶32.   In the final decree, the chancellor found Scott owed $14,103.67 in unpaid child

support. Bridget claims the amount owed is $21,603.67, and argues “there [is] $7,500 in

arrearages on child support that was not addressed” by the chancellor in his final decree.

¶33.   Bridget asserts Scott failed to pay child support in the amount of $2,500 per month

“for the three (3) months of child support due from the time of the first trial [in June 2015]

to the second trial [in October 2015].” However, we do not find the record supports

Bridget’s claim of a $7,500 arrearage.

¶34.   During the initial trial in June 2015, Bridget testified that Scott owed $14,103.67 in

child support from November 2014 to June 2015. During the October 2015 trial, Bridget

stated the amount to date was $21,603.67 for “medical bills and so forth.” Thus, it is unclear

whether the additional $7,500 alleged by Bridget is in fact an “arrearage on child support”

or includes additional expenses such as medical bills.

¶35.   Additionally, the testimony shows that in October 2014, Bridget stopped paying the

mortgage and the land note.1 As a result, Scott subtracted the amount of the mortgage and

the land note from his monthly child-support payments.2 During the October 2015 trial, Scott

testified that he continued to pay child support at the “subtracted” rate until “June [2015] or


       1
        The temporary order entered August 2013 does not address who was responsible
for payment of the mortgage or the land note.
       2
         The amount of child support Scott was required to pay pursuant to the temporary
order was never reduced or modified by the chancellor. According to Scott, he was unable
to pay all of the expenses after Bridget stopped paying the mortgage and the land note and,
as a result, he unilaterally subtracted the amount of the mortgage and the land note from his
monthly child support payments in order to avoid foreclosure.

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so,” and then began to pay the $2,500 again, plus the other expenses. Bridget had the

opportunity to cross-examine Scott following his testimony. However, Bridget did not ask

a single question regarding child support, nor did she present any evidence to dispute Scott’s

testimony regarding child-support payments following the June 2015 trial.

¶36.   Moreover, despite numerous motions for contempt filed by Bridget throughout

litigation, there is no record that Bridget filed a motion for contempt for Scott’s failure to pay

child support “for the three (3) months of child support due from the time of the first trial [in

June 2015] to the second trial [in October 2015].”

¶37.   There is nothing in the record to show that Scott failed to pay child support for three

months following the June 2015 trial. Thus, we find the chancellor did not err in failing to

account for a $7,500 arrearage, as Bridget failed to show such an arrearage exists.

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

    LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ, CONCUR.




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