         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2016-CA-01691-COA

EDWARD WILLIAM SPEIGHTS III                                                   APPELLANT

v.

KIMBERLY DANIELS SPEIGHTS                                                       APPELLEE

DATE OF JUDGMENT:                           10/04/2016
TRIAL JUDGE:                                HON. GERALD MARION MARTIN
COURT FROM WHICH APPEALED:                  JEFFERSON DAVIS COUNTY CHANCERY
                                            COURT
ATTORNEY FOR APPELLANT:                     RENEE M. PORTER
ATTORNEY FOR APPELLEE:                      S. CHRISTOPHER FARRIS
NATURE OF THE CASE:                         CIVIL - DOMESTIC RELATIONS
DISPOSITION:                                AFFIRMED IN PART; REVERSED AND
                                            REMANDED IN PART: 09/18/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       BARNES, J., FOR THE COURT:

¶1.    Edward Speights (“Trey”) appeals the judgment of the Chancery Court of Jefferson

Davis County, which granted Kimberly Speights a divorce on the ground of habitual

drunkenness and divided the marital property. On appeal, Trey claims the chancery court

erred in failing to make findings of fact and conclusions of law on the divorce, as well as

allowing Trey’s parents “to act as his de facto attorneys” for the division of marital assets at

trial, when Trey failed to appear. Trey also argues the chancery court erred in failing to order

the parties to submit a Uniform Chancery Court Rule 8.05 financial disclosure form.

Regarding the property division, Trey contends the chancery court failed to make a
distinction between marital and non-marital property, and failed to support its decision with

findings of fact under the Ferguson1 factors.

¶2.    We affirm the grant of divorce on the ground of habitual drunkenness. We also find

no error in the role of Trey’s parents at the trial. However, we reverse and remand on the

issue of property division, in order for the chancery court to make findings of fact under

Ferguson, and for the parties to file Rule 8.05 financial disclosure forms to assist and support

the chancellor in making those findings.

               STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶3.    Kimberly and Trey married in 2004 and separated in December 2015. No children

were born of the marriage. In January 2016, Kimberly filed for divorce from Trey on the

grounds of habitual cruel and inhuman treatment, excessive drug use, habitual drunkenness,

or, alternatively, irreconcilable differences. Kimberly requested Trey continue to be

restrained from threatening and harassing her under an order similar to an already-issued

Justice Court Domestic Abuse Protective Order. The complaint was properly served on Trey

on January 21, 2016, along with a Mississippi Rule of Civil Procedure 81 summons to appear

at the hearing on February 3, 2016.

¶4.    On that date, the trial was continued until March 2, 2016. The protection order was

extended as well. On February 19, 2016, Trey answered the complaint through counsel. The

March 2 trial was continued again. On June 28, 2016, another summons was issued for Trey


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           Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994).

                                                2
to appear at the trial, which was reset for August 8, 2016. Trey was served with the

summons on July 7, 2016. Trey’s attorney moved to withdraw because Trey “failed to obey

the requests of [his] attorney.” The motion to withdraw was granted.

¶5.    On August 8, 2016, an order was entered continuing the trial until September 21,

2016.2 Trey was properly served with a summons on September 11, 2016, but he failed to

appear at the trial.3 Testifying at the trial on September 21 were Kimberly and Trey’s

parents. At the end of the witness’s testimony, the chancellor granted Kimberly a divorce

on the ground of habitual drunkenness without further comment.

¶6.    On October 4, 2016, the judgment of divorce was entered, as well as a qualified-

domestic-relations order (QDRO), dividing Trey’s retirement benefits from his roofing

business. The chancellor explained that he distributed the marital property based upon lists

presented to the court as exhibits that were signed by Trey’s parents,4 but the record is void

of analysis of the Ferguson factors. Kimberly was awarded $52,500 of Trey’s employee

pension plan. Trey was also ordered to pay $17,259.87 in credit-card debt and permanently

restrained from having any contact with Kimberly.

¶7.    On October 24, 2016, an appearance form was entered for Trey’s new attorney, along



       2
         Both the trial transcript and the judgment of divorce inaccurately state that the trial
was held on August 21, 2016, which was a Sunday. Trey explains in his appellate-reply
brief that he moved the chancery court to correct this clerical error, which was so ordered.
       3
           Trey offers no reason for his failure to appear.
       4
           These exhibits were not included in the record.

                                                3
with a motion for an extension to appeal and relief under Mississippi Rule of Civil Procedure

59. The extension was granted, and Trey timely filed his notice of appeal.

                                STANDARD OF REVIEW

¶8.    The scope of review in domestic cases is limited to the substantial evidence rule.

Jundoosing v. Jundoosing, 826 So. 2d 85, 88 (¶10) (Miss. 2002). The findings of the

chancellor will be upheld unless those findings were manifestly wrong or clearly erroneous.

Id. However, this Court will not hesitate to reverse if the chancellor’s decision is manifestly

wrong, or the court applied an erroneous legal standard. Owen v. Owen, 928 So. 2d 156, 160

(¶11) (Miss. 2006).

                                        ANALYSIS

       I.     Divorce Based upon Habitual Drunkenness

¶9.    Trey claims the chancery court erred in granting Kimberly a divorce on the ground of

habitual drunkenness because the chancellor did not make specific findings of fact and

conclusions of law. He also argues that Kimberly did not meet her burden of proving

habitual drunkenness.

¶10.   Habitual drunkenness is a fault-based ground for divorce provided by Mississippi

Code Annotated section 93-5-1 (Rev. 2013). Similar to the ground of excessive drug use,

to receive a divorce, the “plaintiff should prove that the defendant was habitually, or

frequently, drunk, that the drinking adversely affected the marriage, and that the habit

continued at the time of the divorce trial.” Deborah H. Bell, Bell on Mississippi Family Law


                                              4
§ 4.02[6] (2005); see Sproles v. Sproles, 782 So. 2d 746, 747-48 (¶20) (Miss. 2001). The

chancery court sits as the trier of fact and “has the primary authority and responsibility to

assess the credibility of the witnesses.” Sproles, 782 So. 2d at 746 (¶12).

¶11.   Although not specifically raised as a point of error by Trey, there was no error in the

chancellor’s proceeding with the trial in Trey’s absence because Trey had been properly

served with notice. Kimberly was still required, however, to prove the alleged ground, even

in the absence of a defense by Trey. See Turner v. Turner, 73 So. 3d 576, 583 (¶30) (Miss.

Ct. App. 2011) (citing Lindsey v. Lindsey, 818 So. 2d 1191, 1194 (¶13) (Miss. 2002)). “If

that is done, the chancellor has authority to grant the divorce despite the absence of the

defendant.” Carlisle v. Carlisle, 11 So. 3d 142, 145 (¶12) (Miss. Ct. App. 2009) (quoting

Stinson v. Stinson, 738 So. 2d 1259, 1263 (¶15) (Miss. Ct. App. 1999)).

¶12.   Although Trey is correct that the chancellor failed to make specific findings of fact

or conclusions of law regarding the grant of divorce based on habitual drunkenness, we do

not find error. Trey failed to make any motion or complaint before the chancery court raising

this issue. “A divorce judgment entered when a party fails to appear is ‘a special kind of

default judgment.’” Lee v. Lee, 78 So. 3d 326, 328 (¶7) (Miss. 2012) (quoting Mayoza v.

Mayoza, 526 So. 2d 547, 548 (Miss. 1988)). In order to obtain relief from such a judgment,

absent parties must raise any requests or objections in a post-trial motion under Mississippi

Rule of Civil Procedure 52, 59, or 60. Id. Although the “absent party” in Lee did not even

file an answer, as Trey did, the same principles apply. Trey could have filed a motion to


                                              5
make or amend findings of fact under Mississippi Rule of Civil Procedure 52 and Mississippi

Rule of Chancery Court 4.01, but he failed to do so. Further, Trey did not file a Rule 59

motion for a new trial or to alter or amend the judgment, or a Rule 60 motion for relief from

judgment under the Mississippi Rules of Civil Procedure. The record is void of any attempt

by Trey before, during, or after the judgment of divorce to request findings of fact regarding

the grounds for divorce. Accordingly, we cannot find the chancery court erred in failing to

make such findings when Trey did not request them.5

¶13.   Although the chancellor made no specific findings of fact, there was sufficient

evidence provided at the trial in the form of testimony from Kimberly and Trey’s parents to

prove habitual drunkenness. Kimberly testified that during the last year of their marriage,

while they were living in Boca Raton, Florida, Trey was drinking “a lot.” She also related

times when Trey discontinued drinking and had severe alcohol withdrawal symptoms, such

as seizures and tremors. During one drinking-related incident in March 2015, Trey threw

Kimberly against a wall and threatened to kill her and the dog, but she ran to the neighbors’

home and spent the night. During another incident, Trey had a wreck and was charged with

“enhanced DUI.” After the wreck he could not find his vehicle and did not even know the

county in which the incident occurred. After using Kimberly’s vehicle to search for his



       5
         Trey responds that “there is no proof he received the judgment timely” in order to
file a post-trial motion within the ten-day deadline. However, there is no proof that he did
not receive a copy of the judgment within ten days of its entry. This argument is without
merit.

                                              6
truck, Trey came home drunk, carrying a bottle of vodka behind his arms. During this

period, Kimberly described him as “out of control.” She and a friend tried to “get him some

help.” They took him to a physician who told Trey “he needed to go to rehab”; however,

Trey continued to drink. Kimberly left him when he became verbally and physically abusive.

¶14.   Kimberly testified that Trey’s parents and uncle attempted an intervention in Florida,

but “it did not go well.” Another time, Kimberly and her best friend arranged for Trey to

attend a rehabilitation and detoxification facility. Trey agreed to go, but then he refused to

stay. He called a taxi-cab and stopped by a liquor store on the way home. Trey agreed to

return but again did not stay. He came home drunk, telling Kimberly he bought a car on her

credit card. He never returned to rehab, and his parents brought him home to Mississippi

from Florida.

¶15.   Kimberly also moved back to Mississippi. She testified Trey continued to drink and

take prescription narcotics. After he threatened to kill her, Kimberly obtained a protective

order against him; however, Trey violated the order and was arrested. She described him

during this time as “erratic and scary.” Kimberly was able to testify that Trey was still

drinking at the time of trial because recently he had been calling her friends in the early

morning hours leaving incomprehensible messages.

¶16.   Trey’s father, Edward Speights Jr. (Edward Jr.), testified that Trey had been suffering

from an “alcohol addiction” for the past two years, and was currently suffering from it. Trey

lived in a camp house next to their home. Edward Jr. corroborated Kimberly’s testimony


                                              7
about the family’s intervention attempts. Edward Jr. confirmed Trey was “incapable of

functioning.” He did not know if Trey would ever again be agreeable to any sort of alcohol-

addiction treatment. Trey’s mother testified that she agreed with everything Edward Jr.

stated.

¶17.      This testimony was sufficient evidence to grant Kimberly a divorce on the ground of

habitual drunkenness. It showed Trey’s alcohol consumption was frequent, negatively

impacted the marriage, and continued until the time of trial. Furthermore, the chancellor, as

the trier of fact, was in the best position to determine the credibility of the witnesses. See

Bowen v. Bowen, 982 So. 2d 385, 395 (¶42) (Miss. 2008). The chancery court did not err in

this regard.

          II.    Trey’s Parents as “De Facto Attorneys”

¶18.      Trey argues that the chancery court erred in allowing his parents to act as his “de

facto” attorneys during the trial for the division of marital assets, violating his due-process

rights. He accurately asserts that his parents are not qualified to practice law under

Mississippi Code Annotated sections 73-3-2(2) or 73-3-31 (Rev. 2017), nor has he executed

a power of attorney giving them such authority. For this reason, he claims the case should

be reversed and remanded.

¶19.      Trey’s complaint is based upon lists of personal-property compiled by his parents that

were to be attached to the judgment. At trial during the discussion of property division, since

Trey was not present, Kimberly’s attorney, Christopher Farris, confirmed that he had


                                                8
“discussed” with Trey’s parents “a division of the marital estate.” Farris then proceeded to

discuss the details of the division. He mentioned handwritten lists of personal property

which would be attached to the judgment as exhibits.6 The judgment also stated the personal-

property distribution was “based off of lists presented to the court as Exhibits 1 and 2” signed

by Kimberly and Trey’s parents.

¶20.   Trey’s parents were present and participated in the trial as witnesses, but we do not

find the chancery court improperly allowed Trey’s parents to exercise authority over the

property distribution, or that they acted as “de facto attorneys.” Trey’s parents did not

“negotiate” the distribution of property, as Trey now contends. In fact, Trey’s parents did

not offer any testimony regarding the property distribution, only the lists offered through

Kimberly’s counsel. Trey’s absence indicates he was either incapable or uninterested in

participating in the trial, or he would have been present. In lieu of having absolutely no say

in the property distribution, Trey’s parents stepped forward and created lists of property

belonging to each party to expedite the process. This issue is without merit.

       III.    Rule 8.05 Financial Disclosures

¶21.   Trey contends that it was error for the chancellor to attempt to distribute the marital

estate without requiring both parties to file financial disclosure forms under Uniform

Chancery Court Rule 8.05. Trey contends that because of this failure, there was no

information upon which the court could make a determination of marital and nonmarital


       6
           These exhibits were not attached to the judgment or made a part of the record.

                                               9
assets, and a subsequent equitable division of the marital assets. We agree.

¶22.   Rule 8.05 requires “each party in every domestic case involving economic issues

and/or property division” to provide a “detailed written statement of actual income and

expenses and assets and liabilities.” The parties must submit their income-tax returns for the

preceding year and a general statement of employment history and earnings from the

inception of the marriage or from the date of divorce, depending on the type of action. The

rule also states that financial statements are not necessary if excused by court order for good

cause shown. “It is vital to the effective administration of justice in the domestic relations

arena that chancellors undertake this task while in possession of accurate financial

information.” Trim v. Trim, 33 So. 3d 471, 478 (¶16) (Miss. 2010).

¶23.   At trial, no mention was made of Rule 8.05 forms. In her appellate brief, Kimberly

states that the issue is without merit “because the parties had already exchanged financial

affidavits during the discovery process.” Yet, no Rule 8.05 forms are in the record, and there

is no indication on the chancery-court docket that any financial forms were exchanged, filed,

or excused. However, Trey does not suggest, and we do not find, that there was any

fraudulent intent by either party in failing to comply with this rule.

¶24.   Citing Luse v. Luse, 992 So. 2d 659 (Miss. Ct. App. 2008), Kimberly argues that this

issue is waived since Trey did not appear at the proceedings. We disagree. In Luse, the

appellant, John Luse, argued that the chancery court erred in failing to require the parties to

file Rule 8.05 statements; therefore, there was no documentation in the record regarding


                                              10
ownership of the property or any evidence justifying the court’s division of property. Luse,

992 So. 2d at 664 (¶16). The chancellor had stated in her findings that because child support

and alimony were not at issue, and John failed to appear, the chancery court waived the Rule

8.05 disclosures. Id. at (¶19). This Court found no error in that regard, and that John, in

failing to defend the suit in the chancery court, was attempting to do so on appeal, which was

improper. Id. at (¶¶18-19).

¶25.     However, Luse is distinguishable. While John “never responded to the complaint or

entered an appearance in the court,” here, Trey took the actions of hiring counsel and timely

answered the complaint, but he did not appear further. Id. at 660 (¶3). Therefore, we cannot

say that Trey waived this issue. Because we are reversing and remanding on the property

division, as explained below, on remand the chancery court should require both parties to

complete and file Rule 8.05 financial forms.

         IV.    Property Division

¶26.     Trey contends that the chancery court erred in failing to make findings of fact

regarding the equitable distribution of the marital property under the Ferguson factors. We

agree.

¶27.     “To equitably divide property, the chancellor must: (1) classify the parties’ assets as

marital or separate, (2) value those assets, and (3) equitably divide the marital assets [based

upon the Ferguson factors].” Anderson v. Anderson, 174 So. 3d 925, 929 (¶8) (Miss. Ct.

App. 2015). Although the chancellor need not evaluate every Ferguson factor, the chancellor


                                               11
must consider the factors relevant to the case, on the record, in every case. Sproles, 782 So.

2d at 748 (¶25); Heimert v. Heimert, 101 So. 3d 181, 187 (¶24) (Miss. Ct. App. 2012) (citing

Lowrey v. Lowrey, 25 So. 3d 274, 280 (¶7) (Miss. 2009)). The policy consideration behind

this requirement is “not only essential for appellate purposes,” but to provide trial courts “a

checklist to assist in the accuracy of their rulings . . . [and to] reduce[] unintended errors that

may affect the court’s ultimate decision. The absence of an analysis of these factors and

failure to apply the law to the facts at hand create error.” Id.

¶28.   Trey is correct that there were no findings of fact by the chancery court regarding the

distribution of marital assets. There was no discussion about which assets were marital, and

the record is devoid of any mention of the Ferguson factors. Kimberly argues that these

findings were not necessary because Trey did not appear, citing Luse in support. Again, we

find Luse distinguishable because Trey actually did answer the complaint and denied

Kimberly’s allegations regarding accumulation and division of marital property. Although

the court was entitled to proceed with trial because Trey did not appear, the court was still

required to make the necessary findings for the property distribution.

                                        CONCLUSION

¶29.   We affirm the grant of divorce to Kimberly on the ground of habitual drunkenness.

However, we reverse and remand on the issue of property distribution, in order for the parties

to file Rule 8.05 financial disclosures, and for the chancellor to make specific findings of fact

and conclusions of law consistent with Ferguson.


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

     LEE, C.J., GRIFFIS, P.J., CARLTON, FAIR, WILSON, WESTBROOKS AND
TINDELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.                GREENLEE, J.,
CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN
OPINION.




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