130 So. 3d 1162 (Miss. Ct. App. 2013)
Teresa and William Gardner married in 1987 and separated on December 15, 2007.1 Teresa filed for divorce on March 24, 2010, in the Hinds County Chancery Court, alleging habitual cruel and inhuman treatment, desertion, and irreconcilable differences.2 William filed a counterclaim seeking a divorce on the ground of habitual cruel and inhuman treatment.3 All grounds were subsequently dropped except the ground for desertion.4
After a trial, the chancellor granted Teresa a divorce on the ground of desertion.5 The chancellor divided the marital estate and ordered William to pay Teresa a total of $27,055.50.6 The chancellor denied both parties’ requests for attorney’s fees.7
William appeals, asserting the following issues: (1) the chancellor erred in granting Teresa a divorce on the ground of desertion; (2) the summaries of bank records were improperly admitted; (3) the chancellor erred in distributing marital assets; and (4) he was denied his right to a fair trial.8 Teresa cross-appeals, asserting the chancellor erred: (1) in distributing the marital assets; (2) in the valuation of the motorcycle tools; (3) in dividing the marital debt; and (4) by failing to award her attorney’s fees.9
The chancellor determined that William left the marital home on December 15, 2007, and failed to return or resume any marital duties.10 Teresa testified she spoke on the phone frequently with William in an effort to persuade him to return to the marriage.11 Teresa also testified that William never entered the house to pick up his mail; rather, she left it outside for him.12 William offered no testimony to contradict Teresa’s assertion or to show that his failure to return was her fault.13
The chancellor found that the parties opened two checking accounts in about 2003, a joint account on which both parties had authority to withdraw funds and another that was a business account for William’s private investigation work.14 William testified he opened two accounts in 2008, one was the account he used to deposit work checks and the other was described by William as a joint account.15 The evidence showed both parties used funds from the accounts for marital expenses.16
Teresa sold tools consisting of a welding machine, a lift table, an air compressor, and jacks.17 In his financial statement, William estimated these tools were worth approximately $8,000.18 Teresa sold some of these tools for $800 and gave the others away after William had left the marital home.19
William’s attorney received notice from Teresa’s attorney that the bank records were available for his review as early as November 29, 2010.20 William admitted that he and his attorney reviewed the bank statements on December 3, 2010, at Teresa’s attorney’s office.21
Whether the chancellor erred in granting Teresa a divorce on the ground of desertion?22
Mississippi Code Annotated section 93-5-1 allows for a divorce on the ground of willful, continued and obstinate desertion for the space of one year.23 To prevail, the moving party must show that the other spouse left the marital home and failed to return or resume marital duties, and that the departure was not the moving party's fault.24
No. William left the marital home on December 15, 2007, and failed to return or resume any marital duties.25 Teresa testified she spoke on the phone frequently with William in an effort to persuade him to return to the marriage. William offered no testimony to contradict Teresa's assertion or to show that his failure to return was her fault. The chancellor found William's contributions to joint debts were in his own financial self-interest to preserve assets.26
Therefore the chancellor did not err.27
The chancellor did not err in granting Teresa a divorce on the ground of desertion.28
Related opinions on this issue
Judge Ishee concurs with much of the majority opinion but dissents on the grant of divorce on the ground of desertion.29 He notes that the Mississippi Supreme Court first recognized desertion in Griffin v. Griffin, where the husband failed to provide basic necessities.30 Ishee emphasizes that desertion requires a complete separation or abandonment of the marital relationship.31
Unlike in Griffin, William provided some support by visiting the home twice a month, contributing to debts, and filing a joint tax return.32 Therefore, Ishee would reverse and remand the judgment of divorce on the ground of desertion.33
Whether the summaries of bank records were improperly admitted in violation of Mississippi Rule of Evidence 1006?34
Mississippi Rule of Evidence 1006 permits the contents of voluminous writings that cannot conveniently be examined in court to be presented as a chart, summary, or calculation, provided the originals or duplicates are made available for examination by other parties at a reasonable time and place.35
No. William's attorney received notice from Teresa's attorney that the bank records were available for his review as early as November 29, 2010.36 In his testimony, William admitted that he and his attorney reviewed the bank statements on December 3, 2010, at Teresa's attorney's office.37 The comment to Rule 1006 states that the summaries are clearly admissible as evidence, but the underlying material should be made available to the other parties for their examination.38 The decision to admit evidence is within the chancellor's discretion.39
We cannot find any abuse of discretion by the chancellor in allowing the summary of William's bank records into evidence.40 Therefore the chancellor did not err in admitting the summaries.41
The chancellor did not err in admitting the summaries of bank records.42
Whether the chancellor erred in distributing marital assets?43
A party appealing equitable distribution must cite authority and advance substantive argument; otherwise the appellate court is not required to address the issue.44
No. William failed to cite any authority or advance any substantive argument to support his claim that he should receive credit for monthly deposits into the joint checking account between 2008 and 2010.4546 It is well settled that this Court is not required to address any issue that is not supported by reasons and authority.47 The court therefore declines to review the issue.48
The chancellor did not err in distributing the marital assets.49
Whether William was denied his right to a fair trial?50
A claim that a party was denied a fair trial must be supported by distinct argument and authority; reargument of a previously rejected evidentiary issue does not establish unfairness.51
No. William's fair-trial claim simply reargues the already-rejected contention that the bank-statement summaries were improperly admitted.52 Having found that issue to be without merit, we likewise find this issue to be the same.53 Because that evidentiary issue lacks merit, the fair-trial claim likewise lacks merit.54
William was not denied his right to a fair trial.55
Whether the chancellor’s factual findings regarding a bank account opened by William in 2003 were in error?56
A chancellor’s findings of fact in equitable distribution are reviewed for manifest error or clear error; if the chancellor conducted an in-depth Ferguson analysis, the findings will be affirmed absent an abuse of discretion.57
No. The chancellor made detailed findings on the multiple accounts opened in 2003 and 2008, noted the confusing testimony, and performed a full Ferguson analysis.58 The evidence showed both parties used funds from the accounts for marital expenses. The chancellor further found that the evidence in the form of account documentation and the testimony of the parties does not completely clarify the uses made of the funds in these accounts.59 No manifest error appears.60
The chancellor’s factual findings regarding the bank accounts were not in error.61
Whether the chancellor erred in finding Teresa wrongfully sold some of William’s motorcycle tools and in the valuation of those tools?62
Valuation of marital property may be accomplished by adopting the values stated in the parties’ financial disclosures or in testimony; expert testimony is not required.63
No. William’s financial statement and trial testimony valued the tools at approximately $8,000.64 Teresa sold some for $800 and gave the rest away after separation.65 Findings on valuation do not require expert testimony and may be accomplished by adopting the values cited in the parties’ financial disclosures or in the testimony.66 The chancellor did the best he could with the evidence presented to him, and we decline to find error in his conclusions.67
The chancellor adopted the only values in the record and committed no error.68
The chancellor did not err in the finding or valuation of the tools.69
Whether the chancellor erred in dividing the marital debt?70
A claim that marital debt was divided inequitably that merely restates an already-rejected argument about asset distribution presents no independent ground for reversal.71
No. Teresa’s debt-division argument is a restatement of her claim that the chancellor’s bank-account findings produced an inequitable result.72 Having found no abuse of discretion by the chancellor in regard to Teresa’s first issue on cross-appeal, we find no merit to this issue.73 Because that underlying claim lacks merit, the debt-division claim likewise lacks merit.74
The chancellor did not err in dividing the marital debt.75
Whether the chancellor should have awarded Teresa attorney’s fees?76
No. The chancellor ordered each party to be responsible for their respective legal fees and other costs in this proceeding.79 Although the chancellor made no specific findings under the McKee factors, there was sufficient evidence for the chancellor to consider in deciding whether to award Teresa attorney’s fees.80 Absent an apparent abuse of discretion, this Court will assume the chancellor considered the appropriate factors in awarding or denying attorney’s fees.81 No abuse of discretion occurred.82
The chancellor did not err by declining to award Teresa attorney’s fees.83