Robert O. Baumbach v. Jennifer Anne Baumbach , 242 So. 3d 193 ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-00978-COA
ROBERT O. BAUMBACH APPELLANT
v.
JENNIFER ANNE BAUMBACH APPELLEE
DATE OF JUDGMENT: 06/06/2016
TRIAL JUDGE: HON. DOROTHY WINSTON COLOM
COURT FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: TIFFANY ALAYNE YATES
RACHEL LEE HODGES
ATTORNEY FOR APPELLEE: CARRIE A. JOURDAN
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 04/03/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
BARNES, J., FOR THE COURT:
¶1. Robert and Jennifer Baumbach were granted a divorce on the ground of irreconcilable
differences on January 25, 2016. Subsequently, in a June 6, 2016 order determining the
remaining issues, the Lowndes County Chancery Court awarded Jennifer sole physical
custody of the couple’s minor children, the marital residence, all of her 401(k) and Roth IRA,
twenty-five percent of Robert’s 401(k), and a portion of Robert’s military pension. Robert
was awarded the couple’s other real-estate holdings, which had a negative value of $357,000,
and he was ordered to pay rehabilitative alimony, child support, private-school tuition, and
mortgage payments on the marital home. Robert was also ordered to maintain a life-
insurance policy with Jennifer as the primary beneficiary.
¶2. Robert filed a motion to alter or amend the judgment, requesting a clarification of
visitation and alleging numerous errors such as the award of alimony, attorney’s fees, and the
equitable division of the marital assets. While the chancery court granted the motion in part
on the issue of visitation, it denied the motion as to the other issues raised. Aggrieved,
Robert now appeals.
¶3. Finding the chancery court (1) failed to make specific findings regarding the deviation
from child support in excess of the statutory guidelines; (2) failed to address the specific
McKee factors and whether Robert would be forced to liquidate assets to pay Jennifer’s
attorney’s fees; and (3) erred in the equitable division of marital assets, we reverse the court’s
judgment in part and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶4. Robert and Jennifer were married in Florida on November 9, 2003. Jennifer was
employed as a flight attendant, and Robert was a pilot with the United States Air Force. A
daughter was born of the marriage on October 13, 2006. Jennifer remained employed but
used her maternity and sick leave to stay home with the child.
¶5. In August 2008, the couple moved to Columbus, Mississippi, where Robert was
stationed with the Air Force. A second daughter was born on May 23, 2009. The couple
purchased a marital residence in Columbus, valued at $400,000; they also owned four rental
properties in Florida through their company, RJB Real Estate Holdings. Although both
children were enrolled in school, Jennifer never returned to work. Robert retired from the
2
Air Force on September 1, 2013, and went to work for Delta Airlines, which required him
to be out of town often. Eventually, he moved into an apartment in Atlanta in April 2014,
and the couple separated.
¶6. Jennifer filed a complaint for divorce with the chancery court on May 22, 2014,
alleging habitual drunkenness and habitual cruel and inhuman treatment, or in the alternative,
irreconcilable differences. In the complaint, she sought sole legal and physical custody of
the couple’s children, child support, medical insurance, an equitable division of marital
assets, alimony, attorney’s fees, and temporary support. She requested an emergency hearing
for temporary relief, seeking exclusive use and possession of the marital home, sole custody
of the children, and a restraining order against Robert.
¶7. Robert filed an answer and counterclaim for divorce, citing the same grounds. He
requested sole legal and physical custody of the children, child support, reimbursement for
one-half of insurance premiums, and all real property owned by the parties, except for the
marital residence. He later supplemented his claim with an affidavit citing instances of
Jennifer’s excessive drinking, and alleging she had verbally and physically assaulted him.
He also refuted Jennifer’s claims of habitual drunkenness and noted he had not failed any
random drug and alcohol tests by the Federal Aviation Administration over the years.
¶8. The chancellor appointed a guardian ad litem (GAL) on July 10, 2014, to investigate
the allegations of heavy drinking, prescription drug use, and verbal abuse by both parties.
On July 31, 2014, the chancery court temporarily awarded Jennifer “the sole use, possession
and control of the marital home, the marital property and contents,” and issued a restraining
3
order against Robert, excepting prescribed visitation with the minor children.
¶9. The GAL’s report noted that both parties had “a history of drinking excessively.” The
report also expressed concern that Jennifer’s drinking caused her to be “a very ‘angry
drunk.’” However, the report determined that both parties were sincere in their claims they
were no longer drinking and “neither parent poses any risk of danger to the children.”
Because the children were already enrolled in school, the GAL recommended they remain
in Jennifer’s physical custody until a final hearing on the matter.
¶10. On October 14, 2014, the chancery court entered a temporary order, awarding Jennifer
temporary legal and physical custody of the children, with Robert entitled to visitation.
Robert was ordered to pay $3,000 a month in temporary alimony, $2,000 a month in child
support, the mortgage and related expenses for the marital home, and any other joint debts
of the parties, except utilities for the residence, which were to be paid by Jennifer. Robert
filed a motion for reconsideration, which the court denied.
¶11. On November 14, 2014, Jennifer filed a motion for contempt, claiming Robert was
$9,400 in arrears for temporary alimony and child support.1 On November 17, 2014, Robert
also filed a petition for contempt, asserting Jennifer was denying him reasonable visitation
and telephone contact with the children. Robert filed a subsequent motion for an emergency
hearing and a response to Jennifer’s motion for contempt, claiming he was simply “unable
to pay due to a huge loss in his business.” He argued that Jennifer should bear fifty percent
of the costs to maintain the couple’s four rental properties.
1
On November 18, 2014, the chancellor entered an order requiring Robert’s employer,
Delta Airlines, to withhold child support from his salary.
4
¶12. On June 1, 2015, Robert filed another petition for contempt. He claimed Jennifer
continued to be uncooperative with visitation and was not paying the household bills or the
children’s school tuition. Jennifer responded that Robert had been aggressive when
exchanging the children and that the children were unkempt and had not bathed after
visitation with their father.
¶13. Two months later, Jennifer filed a motion to suspend Robert’s visitation pending
investigation, asserting claims that a couple of weeks after Robert’s visitation with the girls
in June, she found a search history of pornographic material on the iPad used by the couple’s
daughters. She attached an affidavit by a technology consultant, Benjamin Hurt. Robert
denied the accusations, and he provided an affidavit from a computer forensic examiner who
had reviewed the iPad and determined the information gathered by Hurt did “not originate
from the iPad Mini under investigation but rather from an additional two iPads and an iPhone
that were also associated” with Robert’s Apple account. Thus, the examiner questioned the
integrity of Hurt’s results and concluded that he had “accessed these web sites, and, in turn,
destroyed the evidence.” On October 6, 2015, the chancery court appointed a second GAL
to investigate the allegations. Upon recommendation by the second GAL, the chancellor
reinstated temporary visitation to Robert on January 19, 2016.
¶14. On January 25, 2016, the parties consented to an entry of a divorce based upon
irreconcilable differences. All other contested matters were submitted to the court for
review. A trial was held on February 12, 2016. Jennifer filed a motion for contempt of the
temporary order and to reopen the hearing on June 2, 2016, asserting that Robert was $57,000
5
in arrears for alimony and $2,225 in arrears for child support.
¶15. The chancery court entered a final judgment on June 6, 2016. Jennifer was awarded:
(1) sole physical custody of the couple’s minor children; (2) the marital residence and one-
half of the equity;2 (3) her 2008 Toyota Sequoia valued at $10,500; (4) her 401(k) and Roth
IRA fund cumulatively valued at $92,000; (5) twenty-five percent of Robert’s 401(k) which
percentage was valued at $92,000; (6) one-half of eight years of his military pension;3 and
(7) one-half of the couple’s last joint income-tax refund. Robert was awarded the couple’s
other real-estate holdings, four rental properties in Florida with a negative value of $357,000.
He was also awarded his thrift savings plan valued at $21,900, seventy-five percent of his
401(k) which percentage was valued at $276,000, and a mortgage investment account valued
at $6,000. Robert was ordered to pay: (1) $1,500 per month in rehabilitative alimony for
thirty-six months for a total of $56,000; (2) $1,817 per month in child support;4 (3) all tuition
and fees associated with the children’s private-school education;5 (4) mortgage payments
(approximately $2,400 monthly), taxes, and insurance on the marital home. He was also
ordered to provide health insurance for the children. The chancery court further directed
Robert to pay $48,000 in arrearage for temporary alimony, paying $1,000 per month until the
2
The court required Jennifer to sell the home when either: (1) the children graduate
from high school; (2) she remarries; or (3) she moves. Robert was awarded one-half of the
equity.
3
Robert testified he had twenty-four years of service.
4
Robert stated his annual salary was approximately $200,000, and the chancellor
determined that Robert’s monthly adjusted gross income was $9,093.
5
The parties are to split equally the costs of the children’s extracurricular activities.
6
amount is paid in full.
¶16. Additionally, Robert was ordered to maintain a $500,000 life-insurance policy with
Jennifer as the primary beneficiary. Finding Jennifer in contempt for denying Robert his
visitation and telephone contact, the court awarded Robert $10,000 in attorney’s fees. But
he also awarded Jennifer $15,000 in attorney’s fees, finding she had no ability to pay the fees
without liquidating assets.
¶17. Robert filed a motion to alter or amend the judgment on June 16, 2016, objecting to
the “award of alimony, division of property and debts, award of attorney fees, and judgment
of past[-]due alimony.” He specifically argued that the monthly financial obligation imposed
on him was “excessive and unreasonable,” as it exceeded seventy percent of his adjusted
monthly gross income. He also claimed the chancery court’s order to maintain the $500,000
life-insurance policy would cause him to exceed his available income and created a risk of
harm to him because Jennifer had previously threatened him. Lastly, he requested
clarification of the visitation.
¶18. The chancellor granted Robert’s motion to clarify visitation on June 27, 2016, but
denied his motion as to the other assignments of error. Robert now appeals.
STANDARD OF REVIEW
¶19. Our appellate standard of review in a domestic-relations matter is limited – we
generally will not overturn a chancery court’s findings of fact unless they are “manifestly
wrong or clearly erroneous,” or it “applied an erroneous legal standard.” White v. White, 208
So. 3d 587, 592 (¶10) (Miss. Ct. App. 2016) (citations omitted). “In the case of a divorce
7
decree, facts will be viewed in a light most favorable to the appellee.” Id. (quoting G.B.W.
v. E.R.W., 9 So. 3d 1200, 1204 (¶8) (Miss. Ct. App. 2009)).
DISCUSSION
I. Whether the chancellor erred in awarding Jennifer physical
custody of the children.
¶20. Citing Jennifer’s previous attempts to interfere with his visitation, Robert claims the
chancellor’s decision to award Jennifer sole physical custody of the children “was against the
weight of the evidence and should be overturned.” Jennifer contends that because Robert did
not address the issue of custody in his motion to amend the judgment, he is procedurally
barred from asserting it on appeal. However, in reference to Mississippi Rule of Civil
Procedure 59, the Mississippi Supreme Court has stated:
[Although i]t is clearly the better practice to include all potential assignments
of error in a motion for new trial . . . when the assignment of error is based on
an issue [that] has been decided by the trial court and duly recorded in the
court reporter’s transcript, . . . [an appellate court] may consider it regardless
of whether it was raised in the motion for new trial.
Kiddy v. Lipscomb, 628 So. 2d 1355, 1359 (Miss. 1993); see also Jackson v. State, 423 So.
2d 129, 131 (Miss. 1982) (“[I]t is not necessary to make a motion for a new trial grounded
upon errors shown in the official transcript of the record, including the pleadings, transcribed
evidence, instructions, verdict[,] and judgment of the court.”). Since the issue of child
custody was clearly decided by the chancery court at trial, we find any failure to raise this
issue in Robert’s motion to alter or amend the judgment does not bar it from review on
appeal.
¶21. “In reviewing a child custody decision, we will affirm unless the chancellor was
8
manifestly wrong, the decision was clearly erroneous, or the chancellor applied an erroneous
legal standard. Error arises if the chancellor’s decision is not supported by substantial
evidence in the record.” Ethridge v. Ethridge, 226 So. 3d 1261, 1262 (¶5) (Miss. Ct. App.
2017) (quoting Limbaugh v. Limbaugh, 749 So. 2d 1244, 1246 (¶9) (Miss. Ct. App. 1999)).
In Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983), the supreme court held that “the
polestar consideration in child custody cases is the best interest and welfare of the child.”
Factors to be considered in determining an award of custody are:
[the] health[] and sex of the child; a determination of the parent that has had
the continuity of care prior to the separation; which has the best parenting
skills and which has the willingness and capacity to provide primary child
care; the employment of the parent and responsibilities of that employment;
physical and mental health and age of the parents; emotional ties of parent and
child; moral fitness of parents; the home, school[,] and community record of
the child; the preference of the child at the age sufficient to express a
preference by law; stability of [the] home environment and employment of
each parent[;] and other factors relevant to the parent-child relationship.
Id. In this case, the chancellor thoroughly considered the applicable Albright factors and
determined that the following factors favored Jennifer: continuity of care; employment of
the parent and responsibilities of that employment; home, school, and community record of
the children; and stability of the home environment. As to the remaining factors, including
parenting skills and moral fitness, the chancellor found neither party was favored.
¶22. We find no manifest error in the chancellor’s determination to award sole physical
custody to Jennifer. As the chancellor mentioned, the children had grown up in Columbus,
with Jennifer as the primary caregiver. Robert lived in Atlanta, and was frequently traveling
due to his job as a pilot, with little support to help him with the children. Accordingly, this
9
issue is without merit.
II. Whether the chancery court erred in ordering Robert to pay the
children’s tuition and fees in addition to child support.
¶23. The chancery court ordered Robert to pay $1,817 per month in child support. This
amount represents twenty percent of his adjusted gross income per the statutory guidelines
in Mississippi Code Annotated section 43-19-101(1) (Rev. 2015). Additionally, the court
determined that Robert should pay the children’s tuition and fees for private school. The
children attend a private school in Columbus with a monthly tuition cost of $780.
¶24. Robert argues that this was a deviation from the child-support guidelines and required
additional findings of fact by the court. Therefore, he argues this award should be reversed.
We agree. Ordinarily, “[p]re-college tuition is considered part of child support, not an
extraordinary expense,” and the chancery court may not require a parent to pay said tuition
in excess of the statutory percentage “without a written or specific finding . . . as to why the
deviation is needed.” Moses v. Moses, 879 So. 2d 1043, 1048 (¶14) (Miss. Ct. App. 2004)
(citing Southerland v. Southerland, 816 So. 2d 1004, 1006 (¶11) (Miss. 2002) & § 43-19-
101(2)). Since the chancery court failed to make specific findings as to why Robert should
be obligated to pay the children’s tuition in excess of the ordered child support, we reverse
the judgment as to this issue and remand for further findings, especially as Robert’s court-
ordered monthly financial obligations of over $6,500 exceed, as he notes in his brief,
“seventy percent (70%) of his monthly income.” Jennifer even acknowledges that “Robert
is paying a large percentage of his income to support [her] and [the] children.” While we
acknowledge that Robert’s adjusted gross income exceeded $100,000, as noted by Judge Fair
10
in his dissent, section 43-19-101(4) requires in such cases that the chancery court “make a
written finding in the record as to whether or not the application of the guidelines established
in this section is reasonable.” Here, the chancellor simply determined that Robert “shall pay
child support in the amount of $1,817.00 per month” and additionally, “shall be responsible
for the timely payment of all tuition and fees associated with the children attending
Annunciation Catholic School.” There were no specific findings by the court as to its
reasons for exceeding the statutory maximum for child support.
III. Whether the chancery court erred with regard to the property
division.
¶25. In determining the equitable division of the marital assets, the chancery court
considered the applicable factors in Ferguson v. Ferguson, 639 So. 2d 921, 918 (Miss. 1994),
and awarded Jennifer: (1) the marital home valued at $400,000;6 (2) all furnishings and
personal property in her possession valued at $36,200; (3) a 2008 Toyota Sequoia valued at
$10,500; (4) Jennifer’s 401(k) and Roth IRA valued at $92,000; (5) twenty-five percent of
Robert’s 401(k) which percentage was valued at $92,000; (6) one-half of eight years of
Robert’s military pension;7 and (7) one-half of the couple’s $10,000 joint tax refund. Robert
was awarded: (1) one-half the equity in the marital home;8 (2) four Florida rental properties
with a negative value of $357,000; (3) a 2006 BMW valued at $6,250; (4) seventy-five
6
Robert testified the equity on the home was approximately $50,000.
7
Robert was ordered to pay any costs associated with this retirement fund to ensure
Jennifer receives the monthly amount, “unless a lump sum is permissible.”
8
See n.2, supra.
11
percent of his 401(k), which percentage was valued at $276,000; (5) his thrift savings plan
valued at $21,900; and (6) a mortgage-investment account valued at $6,000. Robert also
received the remainder of his miliary pension. While each party was to be responsible for
all debt solely in his or her name, Robert was ordered to pay the mortgage on the marital
home (approximately $350,000).
A. Consideration of Temporary Support
¶26. Citing Wells v. Wells, 35 So. 3d 1250, 1259 (¶41) (Miss. Ct. App. 2010), Robert
argues the chancery court erred in failing to consider the temporary support he paid in the
months leading up to trial as a relevant factor in its Ferguson analysis. While the trial court
in Wells did consider the temporary support paid by the husband as one “other factor” to be
considered under Ferguson, Wells does not stand for the proposition that a trial court’s
failure to consider temporary support in its equitable division of marital assets constitutes
reversible error. Nor have we found any case to support Robert’s claim of error.
Accordingly, we find the failure to address any temporary support paid by Robert in the
analysis of the Ferguson factors was not reversible error.
B. Equity Award of Marital Residence
¶27. Although Jennifer retained exclusive use of the marital home without the
responsibility of the $350,000 mortgage debt associated with it, the chancery court also
awarded her one-half of the equity in the home at such time she decides to sell it, finding that
“[b]oth parties contributed to the accumulation of marital assets.” While we find no abuse
of discretion in the chancery court’s determination that Jennifer’s homemaking contributions
12
were equal to those of her wage-earning spouse, see Hemsley v. Hemsley, 639 So. 2d 909,
915 (Miss. 1994); in this particular instance, we agree with Robert’s argument that because
he has made all contributions to the home’s mortgage, the court’s decision to order the equity
proceeds from the eventual sale of the marital home to be split equally is inequitable.
¶28. Our supreme court has held: “An equitable division of property does not necessarily
mean an equal division of property.” Lowrey v. Lowrey, 25 So. 3d 274, 285 (¶26) (Miss.
2009) (quoting Chamblee v. Chamblee, 637 So. 2d 850, 863-64 (Miss. 1994)). “[F]airness
is the prevailing guideline in marital division.” Ferguson, 639 So. 2d at 929. An equal
distribution of proceeds from the sale of a marital home may be an abuse of discretion if the
contributions by one spouse are disproportionately large. Trovato v. Trovato, 649 So. 2d
815, 817-18 (Miss. 1995). In Trovato, the chancery court awarded the wife the marital home,
but she also bore the responsibility for the remaining mortgage debt. Id. at 817. The husband
made no contributions to the home after the divorce. Id. However, the court ruled that the
proceeds from the sale of the home should be split equally. Id. The supreme court
concluded:
Because [the wife] had the advantage of living in the home, she might not be
necessarily entitled to a share of the proceeds proportionate to the payments
she made. [The husband], however, is not automatically entitled to an equal
share. Brown v. Brown, 574 So. 2d 688, 691 (Miss. 1990). Taking into
account the fact that [the wife] made a significantly larger contribution to the
acquisition of the property, coupled with the fact that during some of the time
she was making payments [the husband] was not making child support
payments, equal distribution of the proceeds was an abuse of discretion.
Id. at 818. Here, Robert is paying all of the mortgage debt, but Jennifer is allowed to live
debt-free in the marital home and benefit from the growing equity that Robert’s mortgage
13
payments will provide. Thus, while it may have been equitable to award Jennifer one-half
of the equity at the time of the couple’s separation (approximately $25,000), we do not find
it equitable for her to reap the ongoing benefits of any equity invested by Robert after their
divorce, especially considering that Jennifer could potentially live in the marital residence
for a number of years,9 and Robert is responsible for all of the marital debt.
¶29. We do observe that the chancery court remarked in its Ferguson analysis that the
marital property “needs to be divided to eliminate periodic payments and to avoid friction
between the parties.” Therefore, this equity award potentially may be in lieu of an award to
Jennifer for periodic alimony. But given the broad, non-specific language used by the
chancellor with regard to this Ferguson factor, and her award of rehabilitative alimony to
Jennifer ($1,500 a month for three years), we decline to make this assumption. Therefore,
we reverse and remand for the court to address the disparity between Robert’s contributions
and the equity award in the marital home.
C. Division of Marital Debt
¶30. Lastly, Robert argues the court erred in its division of marital assets because he was
“burdened” with the $375,000 debt owed on the Florida properties, as well as the $350,000
mortgage on the marital home occupied by Jennifer and the children; therefore, Jennifer is
being “unjustly enriched.” At trial, Robert submitted two proposals for the equitable
distribution of the marital assets. In one proposal, Jennifer would be awarded the equity in
9
See n.2, supra. The youngest child, born in 2009, would not be expected to
graduate from high school (one of the triggering events for the sale of the marital residence)
for another eleven years after the date of the court’s order.
14
the marital home and her retirement; Robert would retain the four rental properties with their
negative value, but keep his entire 401(k). The second proposal involved selling the
investment properties and awarding Jennifer a portion of Robert’s retirement – essentially,
a 50/50 split of assets. However, Robert testified that it was unlikely they would be able to
sell the rental properties at that time “without eating a large debt somehow[.]”10
[COUNSEL] Okay. So is there any option that you see, as we sit here
today, for you to off load these properties or anything
like that?
[ROBERT] Bankruptcy would be about it.
[COUNSEL] Okay. Other than bankruptcy.
[ROBERT] I mean, keep them occupied and keep running them is the
only way.
....
[COUNSEL] Are you making any profit off any of these based on what
you are getting in rent or anything like that?
[ROBERT] Definitely not.
Robert reiterated that while the Florida properties could be sold, “it’s going to be a major loss
and somehow I would have to come up with the money to . . . pay off the loans.”11 He
expressed to the court that he really did not want the properties, calling them a “financial
drain,” but said he would take them “in exchange for retaining [his] full active duty pension”
10
The proposal indicated no profit from the sale of the rental properties.
11
Jennifer did not dispute that the properties were subject to considerable debt. When
asked on cross-examination if all Robert would be awarded “is four underwater pieces of
property [with a] complete negative equity,” Jennifer replied, “Correct[,] if you want to put
it that way.”
15
and his 401(k) funds.
¶31. Instead, the chancery court ordered Robert to be responsible for all of the debt for the
real estate (both in Florida and Mississippi), and Jennifer received $92,000 in the form of a
fractional portion of both Robert’s retirement and part of his pension. The only debt awarded
to Jennifer was her car note. In making its determination under Ferguson, the court noted
that Robert was already responsible for all of the marital debt for the homes and vehicles and
“clearly has the potential to currently earn more than [Jennifer].”
¶32. “Debts acquired during the course of the marriage are also subject to equitable
distribution.” Carter v. Carter, 98 So. 3d 1109, 1114 (¶15) (Miss. Ct. App. 2012) (citing
McLaurin v. McLaurin, 853 So. 2d 1279, 1285-86 (¶24) (Miss. Ct. App. 2003)). In Burnham
v. Burnham, 185 So. 3d 358, 362 (¶13) (Miss. 2015), the trial court awarded the wife assets
“with a total value of $303,225.84, and none of the marital debt[, while the husband]
received $217,904.64 worth of marital assets but the entire $225,472.79 in marital debt.”
This left the husband with assets and debt with a negative value of $7,568.15, which the
supreme court determined to be “a significantly disparate property distribution.” Id.
¶33. Similarly, in the present case, Jennifer was awarded over $250,000 in marital assets,
not including what she is to receive from Robert’s pension. Conversely, due to the
approximately $700,000 in marital debt assigned to Robert, the value of marital assets
attributed to Robert is less than zero, as the debt negates any value from his retirement
accounts.12 While it is undisputed that Robert’s income is substantially greater than
12
No one estimated the value of his military pension.
16
Jennifer’s, we cannot see how awarding Robert all of the marital debt associated with the
couple’s real estate is equitable.
¶34. Accordingly, finding the chancery court abused its discretion in the division of marital
property, specifically the division of the marital debt, we remand for additional findings and
a new equitable distribution.
D. Valuation of Retirement Accounts
¶35. Robert also asserts that the chancery court’s valuation of his retirement accounts was
incorrect because the court valued the accounts as of the date of the trial, not the date of the
temporary order. Noting he contributed to the retirement accounts after the temporary order
was in place, Robert contends those funds were separate property.
¶36. Robert has not cited any authority to support his claim; nor has he assigned any value
to those funds he alleges are separate property as evidence of the disparity in the award. The
supreme court has held: “[W]hen equitably dividing marital property upon divorce, the date
of valuation is necessarily within the discretion of the chancellor.” Hensarling v. Hensarling,
824 So. 2d 583, 591 (¶25) (Miss. 2002) (quoting MacDonald v. MacDonald, 698 So. 2d
1079, 1086 (Miss. 1997)).
IV. Whether the chancery court erred in awarding Jennifer
rehabilitative alimony.
¶37. The chancellor awarded Jennifer $1,500 a month for thirty-six months in rehabilitative
alimony. Robert argues that the record does not support a finding that Jennifer is in need of
alimony after the property division in this case. Further, he claims that he cannot “achieve
a reasonable standard of living after paying the alimony award and other obligations placed
17
on him by the property division.”
¶38. In his separate opinion, Judge Tindell suggests that “[s]ince other issues regarding
equitable distribution are being remanded” for consideration, likewise, the issue of
rehabilitative alimony should also be remanded. However, while “[o]rdinarily, the reversal
of a chancellor’s division of marital property requires [the] reversal of an alimony award[,]
. . . the decision to award rehabilitative alimony is not considered during equitable
distribution.” Lacoste v. Lacoste, 197 So. 3d 897, 911 (¶51) (Miss. Ct. App. 2016) (citations
and internal quotations omitted); see also Hearn v. Hearn, 191 So. 3d 129, 133-34 (¶¶15-18)
(Miss. Ct. App. 2016) (affirming an award of rehabilitative alimony even though the issue
of the equitable distribution of marital assets was reversed and remanded). The purpose of
rehabilitative alimony is to provide the former spouse an opportunity to enter the work force
and prevent the party from becoming destitute while searching for employment. Lacoste, 197
So. 3d at 911 (¶51).
¶39. We find the chancellor’s award of rehabilitative alimony is supported by the evidence.
As noted in the court’s order, Jennifer had been out of the workforce for several years to raise
the couple’s minor children. Furthermore, her former profession as a flight attendant would
require travel; so Jennifer would be unable to return to her former job and would require
training for a new career.13 This issue is without merit.
V. Whether the chancery court erred in awarding Jennifer attorney’s
fees.
¶40. In its decision to award Jennifer attorney’s fees, the chancery court concluded: “After
13
Jennifer testified she was working toward obtaining a real-estate license.
18
considering the McKee factors and the fact that [Jennifer] has no ability to pay her attorney
fees without liquidating some of the assets awarded to her herein, . . . an award of attorney
fees in the amount of $15,000 is appropriate.” Robert was awarded $10,000 in attorney’s
fees due to Jennifer’s contempt in denying him his court-ordered visitation and telephone
contact with the children. Robert contends that the court’s decision to award Jennifer
attorney’s fees was inequitable as he also would be forced to liquidate assets to pay her
attorney’s fees. He further asserts the chancery court erred in failing to conduct an on-the-
record analysis of the factors outlined in McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982).
Those factors are:
[T]he 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, . . . 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.
Id.
¶41. A chancery court’s decision to award attorney’s fees is discretionary. Mitchell v.
Mitchell, 823 So. 2d 568, 573 (¶21) (Miss. Ct. App. 2002) (citing Grogan v. Grogan, 641 So.
2d 734, 744 (Miss. 1994)). Attorney’s fees are justified when equity suggests “one party
should assist the other, and the other party is unable to pay.” Rodriguez v. Rodriguez, 2 So.
3d 720, 732 (¶43) (Miss. Ct. App. 2009) (quoting Haney v. Haney, 907 So. 2d 948, 957 (¶41)
(Miss. 2005)). “An inability to pay could be created if one party would be forced to liquidate
a portion of [his] retirement or savings accounts in order to pay attorneys’ fees.” Id. (citing
Wells v. Wells, 800 So. 2d 1239, 1246 (¶¶16-17) (Miss. Ct. App. 2001)).
19
¶42. Robert contends: “It is hardly equitable that Jennifer should not be required to
liquidate her assets to pay her own fees when she received the majority of the assets, but
Robert should liquidate his to pay her fees for her.” While we find no abuse of discretion in
the chancery court’s determination that Jennifer should be awarded some attorney’s fees as
she would be forced to liquidate assets to pay her fees, since both parties were found in
contempt, we do find it was an abuse of the court’s discretion not to likewise discuss whether
Robert would be forced to liquidate his assets in order to pay Jennifer’s attorney’s fees.
Under the circumstances of this case, and since the chancery court failed to make detailed
findings pursuant to the McKee factors, we reverse and remand for further findings.
VI. Whether the chancery court erred in awarding payment of
temporary support in excess of Robert’s monthly income and in
refusing to credit Robert any of his temporary-support payments.
¶43. Robert argues that because he lacked the financial ability to pay the court-ordered
temporary alimony of $3,000 a month, he should not have been found in contempt of the
court’s order. He cites Davis v. Davis, 268 So. 2d 913, 916 (Miss. 1972), in which the
supreme court reversed a finding of contempt because the husband was left with only $85
a month after paying the temporary support and did not have the ability to comply with the
court order absent being a “financial genius or magician.”14
¶44. In determining whether a party is in contempt, “[t]he chancellor has substantial
14
Jennifer responds that had Robert not hired an “expensive out-of-state attorney”
to represent him, he could have managed his funds to meet his temporary-support
obligations. But, Robert clarifies that his attorney was located in Mississippi during the
majority of the proceedings and only moved to Texas just before trial. We agree with Robert
that Jennifer’s argument is “irrelevant and inappropriate.”
20
discretion.” Watkins v. Watkins, 942 So. 2d 224, 230 (¶20) (Miss. Ct. App. 2006). “[W]e
will not reverse the chancellor’s decision unless it is manifestly erroneous.” Id. In its order,
the chancery court noted that Robert’s Rule 8.05 financial form listed his monthly adjusted
gross income as $9,093. While the obligation to pay temporary alimony, temporary child
support, and the mortgage on the marital home certainly necessitated that Robert had to
budget carefully his monthly income, those obligations did not “far exceed[]” his monthly
income as he claims, or leave Robert with little to no money to live, as in Davis.15 At trial,
the chancellor told Robert to start paying temporary alimony as ordered and admonished him:
If you have to let something else go, you [have] got to let something else go.
. . . I consider a lot of times people who, you know, are having financial
problems and can’t pay it, but they pay something. “I couldn’t pay it all, but
I paid something.” That makes me know that you are trying. You just didn’t
do anything.
We find no error in the court’s finding of contempt; nor do we find the order by the court to
pay $1,000 a month until the arrearage is satisfied to be unreasonable or excessive.
CONCLUSION
¶45. As the chancellor (1) failed to make specific findings why Robert should pay private-
school tuition in excess of the statutory guidelines for child support; (2) failed to specifically
address the McKee factors and whether Robert would be forced to liquidate assets to pay
Jennifer’s attorney’s fees; and (3) erred in the equitable distribution of the marital assets, we
reverse and remand on these issues. Regarding the remaining issues, we affirm the court’s
15
There was evidence of Robert’s excessive credit-card debt, approximately $70,000
according to his testimony, and counsel for Jennifer noted that some expenses were for items
such as a gym membership, dinners, and gifts from a jewelry store.
21
findings.
¶46. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., CONCUR. GREENLEE, J.,
CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. WILSON, J.,
CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN
OPINION. FAIR, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION, JOINED BY CARLTON AND WESTBROOKS,
JJ.; WILSON, J., JOINS IN PART. TINDELL, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY
GREENLEE, J.
FAIR, J., CONCURRING IN PART AND DISSENTING IN PART:
¶47. Jennifer and Robert Baumbach were married for eleven years. During that time, they
had two children, and Jennifer quit her job as a flight attendant to stay home with them. She
could not return to that line of work after the divorce, and she had poor employment
prospects otherwise; while her husband earned more than $200,000 per year as an airline
pilot and military retiree. The chancellor did give Jennifer a lopsided share of the meager
marital estate and generous temporary support, but these awards clearly were calculated to
eliminate the need for periodic alimony.
¶48. The majority reverses the chancellor’s judgment on several sub-issues for further
findings of fact. The reason for requiring findings of fact and conclusions of law as to the
various factor tests is to allow the reviewing court to know why the chancellor did what she
did and to ensure that the chancellor considered all the relevant facts and employed the
correct legal standard in reaching her decision.16 In my opinion, those requirements are met
if the chancellor’s twenty-four-page judgment is read as a whole. I would affirm the
16
See Sandlin v. Sandlin, 699 So. 2d 1198, 1203-04 (Miss. 1997).
22
judgment in full, and so I respectfully dissent.
1. Equitable Distribution
¶49. The majority concludes that the chancellor’s division of the marital property and debts
was not equitable. But “[i]t is well settled that an equitable division of property does not
necessarily mean an equal division of property.” Carney v. Carney, 201 So. 3d 432, 440
(¶27) (Miss. 2016) (quoting Chamblee v. Chamblee, 637 So. 2d 850, 863-64 (Miss. 1994)).
Given that Jennifer was not awarded periodic alimony, I see no abuse of discretion in the
assignment of marital debts or in the orders that Robert pay mortgage on the marital home
and split the proceeds from its eventual sale with Jennifer. “Alimony and equitable
distribution are distinct concepts, but together they command the entire field of financial
settlement of divorce. Therefore, where one expands, the other must recede.” Ferguson v.
Ferguson, 639 So. 2d 921, 929 (Miss. 1994) (citation omitted). “[T]he chancellor may divide
marital assets, real and personal, as well as award periodic and/or lump sum alimony, as
equity demands.” Id.
¶50. The chancellor explained that Jennifer had been a stay-at-home mother and would be
unable to resume her prior occupation. She relied on Robert’s implicit promise to support
her not just during the time she is actually raising the children, but over the course of her life,
given that their decision for her to stay home with the children resulted in a lifetime of
reduced earnings. Accordingly, the chancellor awarded Jennifer rehabilitative alimony to
allow her time to find a new job and more of the marital estate to allow Jennifer to maintain
her standard of living despite the loss of her husband’s income upon which she depended.
23
The chancellor further held that “[t]he marital property needs to be divided to eliminate
periodic [alimony] payments and to avoid friction between the parties.” See id. at 928.
Respectfully, I disagree with the majority’s characterization of this statement as too “broad”
and “non-specific,” as the chancellor’s intent was clear when considered alongside her
discussion of the Armstrong factors17; the chancellor discussed the assets, liabilities, earnings,
and earning potential of the parties at some length. In my judgment, the chancellor’s reason
for the award is clear, rational, and supported by the evidence.
¶51. At the time of the divorce, Robert earned more than $200,000 per year while Jennifer
had no income and poor prospects of future employment. The property division is indeed
lopsided, but I would emphasize that despite the fact that Robert and Jennifer owned a
substantial amount of property, the net value of the marital estate was almost zero. The most
important marital “assets” were investment properties located in Florida that had a net
negative value of approximately $350,000. The chancellor had to do something with these
properties, and the testimony at trial suggested that Robert had taken a much more active role
in their acquisition and management than Jennifer had. But these properties were not the
albatross Robert suggests in his brief; they produced income that mostly paid for the debt
service. Only Robert had the means to maintain the properties when the rental income fell
short, as it sometimes did. And while the properties had negative net values at the time of
the divorce, they would eventually be saleable after the debt is paid down (or if the properties
appreciate in the future).
17
Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).
24
¶52. As to the particular issue of the division of the equity in the marital home after it is
sold, the chancellor ordered that it would be split equally between the parties. Obviously,
this benefitted Jennifer, as Robert would be paying the mortgage for up to eleven years
before the sale occurs. The majority would find this to be reversible error, but it is apparent
to me that the chancellor intended this result, as the marital estate was otherwise inadequate
to eliminate the need for alimony. And given the immediate demands on Robert’s income
following the divorce, he also benefitted from the chancellor’s decision to structure the award
this way.
¶53. I would also note that Robert’s obligations are temporary and mostly short-lived. The
award of rehabilitative alimony was for just three years, and Robert’s discretionary income
would gradually increase as the marital debts are paid off, the children graduate from school,
and the marital home is sold. I concede that his obligations are initially onerous, but they are
front loaded by design and not beyond his ability to pay. Property division is entrusted to the
sound discretion of the chancery court and should not be disturbed unless that discretion has
been abused. Berryman v. Berryman, 907 So. 2d 944, 947-48 (¶14) (Miss. 2005). I cannot
call this decision an abuse of discretion given that the needs of Jennifer and the children are
immediate and Ferguson instructs that, if possible, property division should be effected to
eliminate the need for periodic alimony. See Ferguson, 639 So. 2d at 928.
2. Attorney’s Fees
¶54. Chancellors are instructed to apply the McKee factors in granting or denying
attorney’s fees. Here, the chancellor stated that she had considered the McKee factors in
25
reaching her decision, though she did not expressly list the factors or subdivide her analysis
between them. But where there is substantial evidence in the record supporting the
chancellor’s award of attorneys’ fees, the omission of specific McKee findings cannot be
deemed reversible error. See Varner v. Varner, 666 So. 2d 493, 498 (Miss. 1995). The
McKee factors include:
(1) relative financial ability of the parties; (2) the skill and standing of the
attorney employed, (3) novelty and difficulty of issues in the case, (4) the
responsibility required in managing the case, (5) time and labor required, (6)
the usual and customary charge in the community, and (7) whether the attorney
was precluded from undertaking other employment by accepting the case.
Chesney v. Chesney, 849 So. 2d 860, 862-63 (¶10) (Miss. 2002) (citing McKee v. McKee,
418 So. 2d 764, 767 (Miss. 1982)).
¶55. The attorney’s fee award to Jennifer was $15,000, substantially less than she
requested. Thus, on appeal, Robert does not take issue with the chancellor’s decision on six
of the seven factors; the only factor he challenges is the relative financial ability of the
parties. The majority concedes that Jennifer is unable to pay her attorney’s fees without
liquidating assets, but it would remand for the chancellor to “discuss whether Robert would
[likewise] be forced to liquidate his assets in order to pay Jennifer’s attorney’s fees.”
¶56. The chancellor laid out both parties’ incomes, earning potential, and assets at great
length in her opinion and judgment and directly compared them more than once. I cannot
agree that she failed to consider Robert’s ability to pay $15,000 of Jennifer’s attorney’s fees,
and I would affirm that aspect of the judgment as well.
3. Child Support
26
¶57. Even though Robert’s income exceeded $200,000 per year, the chancellor accepted
Robert’s rather conservative claim that his adjusted gross income was just $109,116 per year
or $9,093 per month. The chancellor ordered Robert to pay monthly child support of $1,817
and an additional $780 per month for private-school tuition, as the children had attended
private school by agreement of both parties during the marriage.
¶58. Taken together, these awards amount to 28.5% of Robert’s adjusted gross income.
The majority would find this reversible error because it is a deviation from the statutory
guidelines for two children, which is 20% of the adjusted gross income. See Miss. Code
Ann. § 43-19-101 (Rev. 2015). But the statutory guidelines simply do not apply to this case
because Robert’s adjusted income exceeds $100,000. Rather, the question is whether
application of the guidelines is reasonable. See Miss. Code Ann. § 43-19-101(4) (Rev.
2015). While the chancellor did not explicitly say that she found it unreasonable, she did find
that Robert “has substantially more earning capacity” and “more opportunity to increase his
savings and build up his retirement.” Meanwhile, Jennifer “has been out of the workforce
for 10 years so that she could stay home and take care of the children” and “is unable to
return to her former job as a flight attendant and will need training to return to the
workforce.” During their marriage, the Baumbachs “lived an above average lifestyle” and
“the children attend[ed] private school.” As we recently said in Ali v. Ali, 232 So. 3d 770,
777 (¶21) (Miss. Ct. App. 2017), “the ‘reasonable needs’ of the child ought to be viewed at
least as broadly as the reasonable needs of a wife seeking alimony.” (Citation omitted). “It
is not an abuse of discretion for the chancellor to consider the standard of living to which the
27
child is accustomed in deciding what amount of support is reasonable.” Id.
¶59. Determinations of child support are intensely fact-sensitive, requiring “a knowledge
special to the actual circumstances and to the individual child or children.” Thurman v.
Thurman, 559 So. 2d 1014, 1018 (Miss. 1990). The chancellor’s opinion reflects that she
ordered Robert to pay more because the girls had been attending private school and were
accustomed to an “above average lifestyle.” Both Robert and Jennifer had jointly determined
the education the girls were receiving was in their best interest, and the chancellor found it
should be continued, a decision which did not constitute an abuse of discretion in light of
Robert’s income and the resolution of other financial aspects of this divorce. Thus, I would
affirm the chancellor’s award of private-school tuition.
Conclusion
¶60. The chancery court’s judgment in this case is somewhat unusual because the facts are
somewhat unusual—Robert has a very high income, but the marital estate was encumbered
by much debt and had very little net value. It may have been more straightforward for the
chancellor to have just ordered periodic alimony, but she followed the supreme court’s
dictates in Ferguson and crafted a property settlement that, though lopsided, eliminated the
need for alimony. See Ferguson, 639 So. 2d at 928. The award was not inequitable and was
reached after applying the proper legal standard and making the required findings of fact.
I would affirm the judgment in its entirety.
CARLTON AND WESTBROOKS, JJ., JOIN THIS OPINION. WILSON, J.,
JOINS THIS OPINION IN PART.
TINDELL, J., CONCURRING IN PART AND DISSENTING IN PART:
28
¶61. On the issues of rehabilitative alimony and temporary support, I must respectfully
dissent. In October 2014, Robert was ordered to pay temporary alimony and child support
and to make monthly payments on the parties’ marital debts, which accounted for seventy-six
percent of his net monthly income. In the chancellor’s final judgment, Robert was ordered
to pay another thirty-six months of rehabilitative alimony, with no apparent consideration for
what he had already paid pursuant to the temporary order.
¶62. The Mississippi Supreme Court has long acknowledged that equitable distribution and
alimony are intertwined and should be considered together to prevent inequity. Ferguson v.
Ferguson, 639 So. 2d 921, 929 (Miss. 1994). Since other issues regarding equitable
distribution are being remanded for the chancellor’s consideration, I would remand the issue
of rehabilitative alimony as well. I therefore concur in part and dissent in part from the
majority’s opinion.
GREENLEE J., JOINS THIS OPINION.
29