In the Matter of the Conservatorship of Michelle A. Geno v. Craig M. Geno

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-CA-01767-COA

IN THE MATTER OF THE APPELLANT/
CONSERVATORSHIP OF MICHELLE A. GENO CROSS-APPELLEE

v.

CRAIG M. GENO APPELLEE/
CROSS-APPELLANT

DATE OF JUDGMENT: 09/14/2018
TRIAL JUDGE: HON. J. LARRY BUFFINGTON
COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: J. PEYTON RANDOLPH II
ROBERT W. LONG
RICK D. PATT
ATTORNEY FOR APPELLEE: DAVID BRIDGES
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: ON DIRECT APPEAL: AFFIRMED.
ON CROSS-APPEAL: AFFIRMED IN PART;
REVERSED AND REMANDED IN PART -
03/30/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

BARNES, C.J., FOR THE COURT:

¶1. Craig and Michelle Geno were married on March 1, 2008. During the marriage, the

family’s main source of income came from Craig’s law practice. Michelle stayed at home

to care for the couple’s two minor children, but she also had some success as the author of

a two-book series published on Amazon. Craig and Michelle separated on or about July 16,

2015, and two weeks later, Craig filed a complaint for divorce in the Madison County

Chancery Court. On June 17, 2016, the parties consented to a divorce on the ground of
irreconcilable differences. The chancery court entered an “Agreed Order” on August 23,

2016, which provided in relevant part that Craig was to pay for the transportation of

Michelle’s furniture from the current residence to her new residence and that he was to

receive credit for those funds “from any final award to Michelle the [c]ourt may make.”

During the course of the proceedings, Michelle experienced mental health issues (bipolar

disorder, ADHD, Cluster B personality disorders, hallucinations, and delusions), which

required hospitalization; so the chancery court appointed Robert “Bobby” Long as

conservator of Michelle’s estate on January 23, 2017.

¶2. The trial on the remaining issues was conducted over eight days in 2017 and 2018.

The court issued a bench ruling on September 4, 2018, and a written final judgment was

entered on September 14, 2018. The chancery court awarded Craig sole legal and physical

custody of the children. Michelle received supervised visitation but was not ordered to pay

child support, as the court found she had no “present earnings capacity.” The court

determined that the “marital estate ha[d] a total value of $3.9 million, and that with the

exception of Craig’s law practice, the value of the marital estate should be divided equally

between the parties.” However, three assets were considered to be Craig’s separate, non-

marital property: (1) HG Realty LLC, a Mississippi limited liability company Craig formed

in 2003; (2) a portion of a Vanguard account ($893,190.66, as well as passive earnings of

$322,403); and (3) an ING/BankPlus account (valued at $298,808.03). Michelle was

awarded permanent periodic alimony of $2,500 per month.

¶3. Michelle filed a motion to reconsider the judgment, particularly with regard to the

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court’s determination of non-marital property and alimony. Craig filed a motion to alter or

amend the judgment, “respectfully urg[ing]” the court to increase its finding of $200,000 for

Michelle’s wasteful dissipation as assets for the following reasons:

Michelle controlled, and then spent, without any explanation whatsoever, over
$392,000.00 that she had taken from the parties’ joint checking accounts
during the course of the marriage, $64,000.00 for proceeds of book sales
(while Craig paid the income taxes thereon); and over $56,000.00 in capital
gains from stock sales of marital assets in 2015 and 2016. In addition,
Michelle’s premarital student loans of over $10,000.00 were paid, in full,
during the course of the marriage, from Craig’s earnings. The unexplained
funds/waste value is over $512,000.00, yet Michelle was “awarded” less than
one-half of funds she wasted and did not account for at all.

Craig also claimed “[t]he alimony award is over and above distributions that were balanced

in the division of marital assets.” The court entered an updated order on November 26, 2018,

denying the relief requested by the parties. The court did clarify Michelle’s equitable share

of the marital assets and the method of transferring funds.

¶4. Michelle appeals, asserting that the chancery court erred (1) in its classification of

certain assets as non-marital property; and (2) in its determination of the alimony award.

Craig has filed a cross-appeal, also challenging the alimony award and additionally claiming

that the chancery court (1) erred in its valuation of Craig’s his law practice; and (2) failed

properly to consider Michelle’s dissipation of marital assets.

¶5. On direct appeal, we affirm, finding Michelle has not demonstrated that the court’s

findings on her assignments of error were not supported by substantial evidence. Regarding

the issues raised by Craig on cross-appeal, we hold that the chancery court’s findings

concerning the valuation of Craig’s law practice are supported by substantial evidence.

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However, because the court failed to set forth specific findings as to the wasteful dissipation

of assets by Michelle, we reverse and remand on this issue for further findings, which may

require further consideration of the equitable distribution of assets and alimony. We also find

the court erred by failing to include the amount Craig expended in transporting Michelle’s

furniture ($12,118.16) in the valuation and distribution of assets, in accordance with the

chancery court’s August 2016 order.

STANDARD OF REVIEW

¶6. “The scope of review in domestic cases is limited by the substantial evidence/manifest

error rule. This Court will not disturb a chancellor’s findings unless they were manifestly

wrong or clearly erroneous, or the chancellor applied an erroneous legal standard.” Lee v.

Lee, 154 So. 3d 904, 906 (¶5) (Miss. Ct. App. 2014) (citations omitted).

DISCUSSION

Direct Appeal

I. Classification of Assets

¶7. Michelle maintains that the chancery court erred in ruling that HG Realty LLC,

portions of the Vanguard investment account, and the ING/BankPlus retirement account were

non-marital property. Our review of a chancellor’s decision is limited. Fogarty v. Fogarty,

922 So. 2d 836, 839 (¶11) (Miss. Ct. App. 2006). The distribution of property in a divorce

will be affirmed if “it is supported by substantial credible evidence.” Bowen v. Bowen, 982

So. 2d 385, 394 (¶32) (Miss. 2008). Additionally, “[e]quitable distribution does not [always]

mean equal distribution.” Seymour v. Seymour, 960 So. 2d 513, 519 (¶15) (Miss. Ct. App.

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2006) (quoting Lauro v. Lauro, 924 So. 2d 584, 590 (¶23) (Miss. Ct. App. 2006)). The aim

of equitable division is “a fair division of marital property based on the facts of each case.”

Id. (citing Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994)). Property division “is

committed to the discretion and conscience of the [c]ourt, having in mind all of the equities

and other relevant facts and circumstances.” Chamblee v. Chamblee, 637 So. 2d 850, 864

(Miss. 1994) (quoting Brown v. Brown, 574 So. 2d 688, 691 (Miss. 1990)).

¶8. Prior to determining equitable distribution, the chancery court should first classify the

couple’s assets as either marital or non-marital. Boutwell v. Boutwell, 829 So. 2d 1216, 1221

(¶19) (Miss. 2002). The Mississippi Supreme Court addressed the classification of marital

property in Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994), holding that “[a]ssets

acquired or accumulated during the course of a marriage are subject to equitable division

unless it can be shown by proof that such assets are attributable to one of the parties’ separate

estates prior to the marriage or outside the marriage.” As this Court has succinctly stated,

only marital property of the parties is subject to equitable division. Messer v. Messer, 850

So. 2d 161, 167 (¶24) (Miss. Ct. App. 2003) (citing Hemsley, 639 So. 2d at 914).

A. HG Realty LLC

¶9. In 2003, Craig created HG Realty LLC (HGR) as a means to own and lease the office

building in which his law firm was housed. A lease was obtained by HGR, and the payments

were covered through rent from the property’s tenants, including Craig’s law firm. In

exchange for providing bookkeeping services to HGR, Craig’s law firm received a discount

of two months’ rent each year. The chancery court determined that HGR was a separate,

5
non-marital asset. Michelle contends that HGR is a marital asset and subject to equitable

distribution, noting the rental payments from Craig’s law firm and bookkeeping services

provided to HGR.

¶10. In Spahn v. Spahn, 959 So. 2d 8, 12 (¶10) (Miss. Ct. App. 2006), this Court concluded

that where a husband (1) owned a warehouse prior to the marriage, (2) maintained a separate

account into which he deposited rent, and (3) “did not commingle the proceeds from the

warehouse, nor use the warehouse for family purposes,” the property was properly classified

as non-marital property. Similar to Spahn, HGR was Craig’s separate property before the

marriage, the rent was not paid to HGR from marital funds, and the building was not used

for family purposes. Craig never received income from HGR. In addition, Michelle was

neither involved in the management of HGR nor provided funds for its upkeep. Accordingly,

we find the chancellor was correct in classifying HGR as non-marital property.

B. Vanguard Account

¶11. Craig owned a Vanguard account containing $893,190.06 prior to the marriage. At

the time of the parties’ separation, the account had a balance of $3,352,855.33. The

chancellor held that the original $893,190.06, as well as an additional $322,403 in passive

income from interest and dividends earned after the marriage, were Craig’s non-marital

property. Michelle contends that the entire account should have been considered marital

property because new funds were commingled with Craig’s pre-existing funds, and funds

from the account were used for the family to purchase marital property and pay household

expenses.

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¶12. The family-use doctrine in Mississippi is generally applied in instances involving

physical assets. McKissack v. McKissack, 45 So. 3d 716, 720 (¶22) (Miss. Ct. App. 2010).

However, other “nonmarital assets may lose their status as such if the party commingles the

asset with marital property or uses the assets for the benefit of the family.” Renfro v. Renfro,

125 So. 3d 92, 97 (¶17) (Miss. Ct. App. 2010). “The supreme court defined commingled

property as a ‘combination of marital and non-marital property in which the non-marital

property has lost its status as non-marital property by virtue of its being combined with the

marital property.’” Allgood v. Allgood, 62 So. 3d 443, 448 (¶15) (Miss. Ct. App. 2011)

(quoting Boutwell, 829 So. 2d at 1221 (¶20)). “[T]he key to determining when there has been

transmutation by commingling is whether the marital interests can be identified, i.e., can be

traced.” Brock v. Brock, 906 So. 2d 879, 888 (¶50) (Miss. Ct. App. 2005).

¶13. Testimony showed that the initial balance in the Vanguard account was entirely

attributable to Craig, as he brought it into the marriage. Michelle was never added to this

account; nor did she make any contributions. During the marriage, the balance of the account

grew as Craig’s earnings were deposited in it and investments were successful. We find the

case cited by Michelle to support her claim, Petterson v. Petterson, 269 So. 3d 466 (Miss.

Ct. App. 2018), distinguishable from the present case. In Petterson, the husband had

commingled IRA disbursements into accounts that were deemed marital property by the

court, and the Pettersons actively managed the account. Id. at 473-74 (¶¶17-18). Here,

although Craig admittedly used funds from the account to pay some household expenses, and

even gave Michelle money from the account, the record does not indicate that the account’s

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funds were commingled with other accounts found to be marital property. Neither Craig nor

Michelle spent time “managing” the account—it was managed by an investment broker.

Increases in the account’s value during the marriage, as well as purchases for family use (i.e.,

the Oxford condominiums), were appropriately deemed to be marital property and subject

to equitable distribution. Based on the testimony and evidence, the chancellor determined

that because the interest on this amount could be traced, these portions of the Vanguard

account were not commingled. We find the chancellor’s decision to be supported by

substantial evidence.

C. ING/BankPlus Account

¶14. At trial, there was testimony that Craig’s retirement account had increased from

$298,808.03 at the time of the marriage to $572,364.88. No withdrawals were made from

this account during the marriage. In his bench ruling and final judgment, the chancellor

classified only $298,808.03 of this account as non-marital property. Michelle claims this

finding was in error because Craig had contributed to the investment account “using various

marital-related accounts and marital assets to grow the accumulation of the ING/BankPlus

account.”

¶15. “Marital property is ‘any and all property acquired or accumulated during the

marriage.’” Pearson v. Pearson, 761 So. 2d 157, 162 (¶15) (Miss. 2000) (quoting Hemsley,

639 So. 2d at 915). An asset that is determined to be separate property rather than marital

property is not subject to equitable distribution. Fitzgerald v. Fitzgerald, 914 So. 2d 193,

197 (¶17) (Miss. Ct. App. 2005). We find the chancellor properly classified the amount that

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Craig brought into the marriage as non-marital property and considered all additional funds

that were added to the retirement account during the marriage to be marital funds subject to

equitable distribution. As such, this Court can find nothing manifestly wrong or clearly

erroneous in the chancellor’s findings with regard to the ING/BankPlus account.

II. Alimony

¶16. Based on his application of the Armstrong factors,1 the chancellor awarded Michelle

permanent periodic alimony of $2,500 per month. Both parties appeal this award. On direct

appeal, Michelle argues that “[s]ince the purpose of alimony is to ideally allow the person

to live in the manner to which she has become accustomed,” this Court should reverse and

“remand for a determination of the proper amount, or alternatively, for clarification of the

[c]hancellor’s ruling as to his findings of fact.”

¶17. Only after the chancellor equitably divides the marital property and determines that

one spouse has suffered a deficit should alimony be considered. Lauro, 847 So. 2d at 848

(¶13). The decision to award alimony and, if so, in what amount, is left to the chancellor’s

discretion. Voda v. Voda, 731 So. 2d 1152, 1154 (¶7) (Miss. 1999). Although Michelle

claims that Craig has a separate estate valued at $1.5 million, she fails to point to any deficit

she sustained that the chancellor did not take into account. In determining the alimony

award, the chancellor specifically discussed Michelle’s health and Craig’s separate estate.

He also awarded Michelle $1.25 million in cash, noting that she owned a house that was paid

for (among other assets), and made specific findings as to her monthly household expenses.

1
Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).

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¶18. To further support her demand for an increased alimony award, Michelle cites Rogillio

v. Rogillio, 57 So. 3d 1246 (Miss. 2011), in which the supreme court held “that the husband

is required to support his wife in the manner to which she has become accustomed, to the

extent of his ability to pay.” Id. at 1250 (¶11) (emphasis added). Because Michelle has not

demonstrated that the award of alimony is inadequate, we find Rogillio does not support her

argument. Moreover, the chancellor specifically found that Craig’s earnings would not allow

either Michelle or Craig to live in the manner to which they had been accustomed during the

marriage, noting the “serious downward trend” in Craig’s income.2 See Thompson v.

Thompson, 816 So. 2d 417, 420 (¶9) (Miss. Ct. App. 2002) (upholding chancellor’s finding

that the amount of periodic alimony requested was not feasible due to the husband’s “greatly

reduced earning potential” and that “neither party would be able to live as well separately”

as they did together). We find Michelle has not demonstrated that the chancery court’s

decision not to award her larger amount of alimony was erroneous. We will address Craig’s

cross-appeal claims concerning alimony below.

Cross-Appeal

III. Valuation of Craig’s Law Practice

¶19. In its ruling, the chancery court valued Craig’s law firm at $772,000. While Craig

retained his law practice, Michelle was awarded forty-percent (40%) of its value. In his

initial brief, Craig claims that a mathematical error resulted in an overvaluation of his law

practice by $33,405.81. In his cross-appellant’s reply brief, Craig asserts that “[e]ven using

2
The court also noted that Craig was nearing retirement age but “recognize[d] that
that would be a change that he would be entitled to” if future modification is sought.

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the [c]hancellor’s math,” the law practice was over-valued by $12,405.81, an amount Craig

admits would be “de minimis” if it were the only error.

¶20. The third Ferguson factor directs a chancery court to consider “[t]he market value . . .

of the assets subject to distribution.” Ferguson, 639 So. 2d at 928. This Court has held that

there are three ways in which a business’s market value can be calculated for equitable

distribution purposes: “(1) an asset-based approach, in which assets and liabilities are

evaluated, (2) a market-based approach, in which the market is surveyed for similar sales, or

(3) an income-based approach, in which a value is placed on earning potential.” Lacoste v.

Lacoste, 197 So. 3d 897, 907 (¶34) (Miss. Ct. App. 2016).

¶21. Although Craig values his practice at $471,116.44, the value calculated by Michelle

Biegel, the person appointed by the chancery court to value his law practice, was

$852,290.37. Craig contends that the court erred in valuing his law practice at $772,000,

noting Biegel’s failure (1) to deduct the law firm’s outstanding checks and (2) to list the

accounts payable owed by the law firm as liabilities. The record shows that the court did take

these deficiencies into account when calculating the valuation of Craig’s law practice. Using

Biegel’s valuation of “852,000” as a “starting point,” the chancery court stated at trial that

it had “deducted the accounts payable and the outstanding checks” based on the testimony

of Ken Lefoldt, a certified public accountant, and Lefoldt’s opinion letter concerning the

firm’s valuation (Exhibit 64). Lefoldt’s letter opined that there were “outstanding checks of

$98,775.79” and accounts payable totaling “$14,920.39” that Biegel did not take into

account. The court also added back $21,000 “that was paid to the lawyers” in its calculation.

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As Craig recognized in his cross-appellant’s reply brief, the “chancellor’s math” resulted in

an over-valuation of $12,405.81, which Craig concedes “might be considered a de minimis

mistake” if not for “a far larger error.”

¶22. Craig’s main point of error is that “Biegel’s testimony could not be substantial

evidence, because it was based solely on what [he] told her” about the firm’s accounts

receivable. Valuation “may be accomplished by adopting the values cited in the parties’ 8.05

financial disclosures, in the testimony, or in other evidence.” Jenkins v. Jenkins, 67 So. 3d

5, 13 (¶19) (Miss. Ct. App. 2011) (quoting Horn v. Horn, 909 So. 2d 1151, 1165 (¶49) (Miss.

Ct. App. 2005)). But in some instances, “expert testimony may be essential to establish

valuation sufficient to equitably divide property . . . .” Redd v. Redd, 774 So. 2d 492, 495

(¶9) (Miss. Ct. App. 2000) (quoting Ferguson, 639 So. 2d at 929). In this case, “[c]onflicting

expert testimony—often called a ‘battle of the experts’ — require[d] the fact-finder to assign

credibility.” Estate of Sykes ex rel. Campbell v. Calhoun Health Servs., 66 So. 3d 129, 135

(¶27) (Miss. 2011). The chancellor can accept or reject the opinion of any expert, and his

finding is reviewed for abuse of discretion. Canadian Nat’l/Ill. Cent. R.R. Co. v. Hall, 953

So. 2d 1084, 1094 (¶29) (Miss. 2007). In addition to the parties’ Rule 8.05 statements3 and

the expert reports, there was extensive testimony on this issue. Craig’s experts, Lefoldt and

Steve Rosenblatt, another bankruptcy attorney, presented testimony at trial, as did Biegel.

As Craig acknowledges, the underlying data regarding the law firm’s accounts receivables

had been provided by Craig. Craig personally questioned Biegel, and he also testified

3
UCCR 8.05.

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regarding the valuation. Craig’s own expert, Lefoldt, admitted that there was more than one

way to calculate the net present value of a long-term receivable. Lefoldt also testified that

he did not have “any major issue with [Biegel’s] methodology.”

¶23. Substantial, credible, and reasonable evidence is required to support a chancery

court’s factual findings. Upchurch Plumbing Inc. v. Greenwood Utils. Comm’n, 964 So. 2d

1100, 1107 (¶15) (Miss. 2007). However, “[o]ur courts have repeatedly recognized that the

chancellor is entitled to make an independent judgment of a property’s value, especially

where the estimates of the parties vary widely.” Marter v. Marter, 164 So. 3d 511, 514 (¶12)

(Miss. Ct. App. 2015). This Court has also “affirmed a valuation where the chancellor had

apparently just averaged the two proposed values, because the evidence in the record

supported the conclusion that the low estimates were too low and the high estimates were too

high.” Id. at 514-15 (¶12) (citing McKnight v. McKnight, 951 So. 2d 594, 596 (¶¶7, 10)

(Miss. Ct. App. 2007)). In Dunaway v. Dunaway, 749 So. 2d 1112 (Miss. Ct. App. 1999),

this Court said:

It is our conclusion that the chancellor, faced with proof from both parties that
was something less than ideal, made valuation judgments that find some
evidentiary support in the record. To the extent that the evidence on which the
chancellor based his opinion was less informative than it could have been, we
lay that at the feet of the litigants and not the chancellor.

Id. at 1121 (¶28). Although the chancery court’s deduction of the outstanding checks and

accounts payable may not have been precise, as in Dunaway, the chancery court in this case

“fully explored the available proof and arrived at the best conclusions that he could . . . .”

Id. Based on the evidence in the record, we find no manifest error with regard to the court’s

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valuation of Craig’s law firm.

IV. Wasteful Dissipation of Assets

¶24. When Michelle and Craig married, a joint account was established at Regions Bank.

Michelle was not working at the time. Craig deposited money into the account from which

Michelle paid the household bills. According to Craig, Michelle’s total unaccounted

transfers from the couple’s checking account, “Etrade Waste & ATM Withdrawals” totaled

$392,564, and he submitted evidence at trial that from June 2009 to November 2015,

Michelle had transferred $274,300 from their joint Regions account to an HSBC online

account solely in her name. Craig was unaware of these withdrawals until 2013.

Additionally, Craig had to pay the taxes on $56,047 in accrued capital gains when Michelle

liquidated the account. These amounts, in large part, form the basis of Craig’s dissipation

claim.

¶25. Craig submitted evidence at trial of alleged dissipation of assets by Michelle totaling

$595,269.52, but the chancellor reduced Michelle’s part of the marital estate by only

$200,000 with no findings on the record as to why the remaining $395,269.52 was not also

attributed to Michelle. Arguing the chancellor erred in its calculation, Craig asserts that the

money Michele secreted from their banking account into a separate account “was wasted,”

as well as $64,000 in proceeds from her book and the $56,047 that he had to pay in capital

gains taxes because she had liquidated investment accounts. Michelle does not dispute the

finding of dissipation and notes that the chancellor heard the testimony, agreed with some

of Craig’s claims, and reduced her portion of the marital estate by $200,000. See id. at 1119

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(¶19) (holding that a chancellor erred in awarding a wife 100% of the assets dissipated by her

husband and that 50% was a more appropriate award).

¶26. Michelle testified that the funds she moved out of their joint account was “marital

money” that she was putting into savings. Craig disputed this testimony, saying the HSBC

account was in her name only.4 Although she claimed Craig knew about the other account,

he testified that it was not until she was committed to psychiatric treatment in 2013 that he

learned she had been withdrawing money to put in that account.5

¶27. In addition, Craig claims that shortly before he filed for divorce, Michele began “out-

of-control spending,” which lasted throughout their separation. This assertion is supported

by testimony and evidence that from July 2015 to January 2016, Michelle incurred

$82,658.52 in charges to her American Express card. During this time, Craig was paying for

all of Michelle’s expenses other than her clothes. The American Express bills showed

charges for dozens of DVDs of the same movie, hundreds of dollars for perfume, thirty-two

pairs of tennis shoes for the Genos’ two children purchased in the same month, and seventy

or eighty baseball caps, among other similar purchases. Craig also factors into his dissipation

claim:

1. His payment of $10,554.64 for Michelle’s student loans from the joint
Regions account;

4
Craig acknowledged that his name was listed on the HSBC account but claimed he
never had signatory authority or “authorized [his] name to be placed on there.”
5
The couple’s joint tax returns for 2008-2011 reflect interest from an HSBC account;
so presumably it is either a different account, or Craig did not question the source of the
funds.

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2. Michelle’s earnings from the sale of her novels on Amazon in the
amount of $64,000 which were never accounted for, but for which
Craig paid the taxes; and

3. The chancellor’s failure to credit $12,118.16 to Craig for the funds
expended by him in having Michelle’s personal property moved from
Oregon to Mississippi.

Craig claims that the chancellor committed reversible error in failing to explain why these

remaining alleged dissipated assets were not included in its valuation.

¶28. In calculating the equitable division of marital assets, the chancery court must

consider “[t]he degree to which each spouse has expended, withdrawn[,] or otherwise

disposed of marital assets[.]” Lowrey v. Lowrey, 25 So. 3d 274, 286 (¶28) (Miss. 2009)

(quoting Ferguson, 639 So. 2d at 928). Here, the chancellor simply stated in his bench

opinion:

I am taking from [the marital assets] – because there was enough testimony to
me of squandered property that [Michelle] did, basically, after the separation
prior to the – to the drop-dead date, as I like to say, even though it was paid
there, it’s – so I’ve taken $200,000 off for what I consider money that just
went wherever, I don’t have any idea.

“[I]n applying the [Ferguson] factors, ‘chancellors must support their decisions with findings

of fact and conclusions of law.’” Foreman v. Foreman, 223 So. 3d 178, 183 (¶13) (Miss. Ct.

App. 2017) (quoting Dickerson v. Dickerson, 34 So. 3d 637, 644 (¶24) (Miss. Ct. App.

2010)). Although the court credited $200,000 for the dissipation of assets, there were no

specific findings on the record as to why the remaining $395,269.52 requested by Craig was

not also attributed to Michelle. In the absence of specific findings, this Court has no way of

knowing how the court arrived at that figure. In Lowrey, the supreme court held:

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Our rules provide parties the right to request chancellors to make specific
findings of fact and conclusions of law. Factor tests, such as provided in
Ferguson for property division and Armstrong for alimony, must be considered
on the record in every case. See Ferguson v. Ferguson, 639 So. 2d 921, 928
(Miss. 1994); Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993).
These factor considerations are not only essential for appellate purposes, but
also for trial courts, as they provide a checklist to assist in the accuracy of their
rulings.

Lowrey, 25 So. 3d at 280 (¶7). Specifically, the Lowrey court found that the chancery court

erred, as its judgment failed “to calculate the correct amount of wasteful dissipation,” among

other factors. Id. at 286 (¶29). Further, the supreme court noted that while the court “did

make a finding of fact regarding the disposal of assets,” the “substantial evidence [did] not

support the totality of the wasteful dissipation.” Id. at 288 (¶32). Although there was no

fault found in the chancery court’s determination that the wife had “dissipated assets due to

her gambling addiction,” it was concluded that “the amount of wasteful dissipation charged

to [her] in the findings of fact, $122,000, significantly understate[d] the amount dissipated

and the timing of the waste.” Id. at 288-89 (¶34).

¶29. Similarly, the court in this case arrived at a random amount of dissipated assets, with

seemingly no regard to the credible evidence that Craig produced as to Michelle’s siphoning

of funds from their marital account and her undisputed excessive spending during the

couple’s separation. While Craig may not be entitled to credit for the entire $595,269.52 he

requested, the chancery court should have addressed the allegations of Michelle’s dissipation

of assets with greater specificity. Therefore, we reverse and remand for detailed findings of

fact on this issue.

¶30. Furthermore, because the court’s August 2016 order ruled that Craig was to “receive

17
credit for the funds advanced for the transportation” of Michelle’s furniture, we find the

chancery court erred in failing to include that amount ($12,118.16) in the valuation and

distribution of assets.

V. Alimony

¶31. Craig cross-appeals the alimony award, arguing it was too high based on the severe

reduction of his income over the last several years, the dissipation of assets by Michelle, the

fact that Michelle sustained no deficit after the distribution of assets, and the fact that parties

were only married for seven years. Although Craig contends Michelle “was to some extent

capable of providing for herself,” we find the chancellor’s determination that Michelle’s

“illness,” which will require treatment and “limit her ability to have gainful employment,”

is supported by the substantial evidence presented concerning her ongoing medical/mental

issues.

¶32. Craig also contends that the court erroneously determined that seven years is a long

marriage. We find no merit to Craig’s argument. One Armstrong factor to be considered is

the “length of the marriage.” Id. at 292 (¶44). Whether seven years constitutes a long

marriage may be questionable to some people. However, in Parsons v. Parsons, 678 So. 2d

701, 705 (Miss.1996), the supreme court determined that an award of periodic alimony was

appropriate in a marriage that lasted less than four years, as the wife had “significant monthly

expenses, but absolutely no income, thus, no means of paying these expenses.” Likewise,

the chancery court here considered, among other factors, Michelle’s illness, treatment

requirements, and her inability to earn enough to support herself in the manner she had

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become accustomed to during the marriage.

¶33. Lastly, although Craig acknowledges that the chancery court determined on the record

that Michelle “had actually wasted $200,000 in the marital assets,” he claims that because

the chancery court “only gave passing consideration” to Michelle’s wasteful dissipation of

marital assets in awarding alimony, that factor “had no discernable effect on [the court’s]

decision.” Craig argues that he should not “be required to pay permanent alimony to his

[thirty-eight] year old ex-wife – especially after she inflicted such grievous injury on the

family’s finances.”

¶34. As discussed, we have found the chancery court’s failure to make specific findings

on the record as to Michelle’s wasteful dissipation of assets warrants a remand for further

findings. One of the factors to be considered in determining an alimony award is the

“[w]asteful dissipation of assets by either party.” Armstrong, 618 So. 2d at 1280. Therefore,

in making additional findings on this factor, the chancery court will need to consider whether

those findings affect the alimony award. Moreover, the supreme court has held, “Alimony

and distribution of assets are distinct, but interrelated, concepts, and where one expands, the

other must recede.” Rogillio, 57 So. 3d at 1251 (¶16). See also Lauro, 924 So. 2d at 588

(¶11) (“[P]eriodic alimony can only be awarded after the proper equitable distribution of

marital assets is complete[,] and when equitable distribution is revisited[,] periodic alimony

must also be revisited.”). We make no ruling as to whether the court must expand the

alimony award in light of any change in the distribution of assets, particularly as any decrease

in distribution to Michelle would be attributable to her dissipation of assets. However, the

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chancellor must be free to revisit the final award of periodic alimony in light of any change

in distribution of assets.

CONCLUSION

¶35. We affirm the court’s findings with regard to the issues raised on direct appeal, as

Michelle has not shown that the chancery court’s findings were not supported by substantial

evidence or constituted manifest error. On cross-appeal, we hold that the court’s

determination regarding the valuation of Craig’s law practice is supported by substantial

evidence. However, regarding the issue of wasteful dissipation of assets, we reverse and

remand for the court to make more detailed findings as to its calculation of this amount,

which may affect distribution of both marital assets and alimony. We further find that on

remand, the chancery court should provide Craig with credit for the funds he expended in

transporting Michelle’s furniture, in compliance with the August 2016 “Agreed Order.”

¶36. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED IN
PART; REVERSED AND REMANDED IN PART.

WILSON, P.J., LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ.,
CONCUR. GREENLEE AND McDONALD, JJ., CONCUR IN PART AND DISSENT
IN PART WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J.,
CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION, JOINED BY CARLTON, P.J., AND McDONALD, J.; GREENLEE, J.,
JOINS IN PART.

WESTBROOKS, J., CONCURRING IN PART AND DISSENTING IN PART:

¶37. The majority finds that the trial court failed to make specific findings regarding

Craig’s claim of wasteful dissipation. While this is true, I am of the opinion that the

chancellor gave sufficient consideration to Michelle’s expenditures before designating an

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amount for wasteful dissipation. Therefore, I respectfully dissent in part.

¶38. Although Mississippi has no specific test for discerning the dissipation of marital

assets, the issue has been addressed by this Court. See Smith v. Smith, 90 So. 3d 1259, 1268-

69 (¶37) (Miss. Ct. App. 2011) (stating that although there is no specific test, the dissipation

must be “wasteful”). The majority opinion posits that Michelle’s dissipation of marital assets

should have been more thoroughly discussed on the record based on the factors set forth in

Ferguson. While Ferguson does indicate that a chancellor should take into account when

a “spouse has expended, withdrawn or otherwise disposed of marital assets[,]” the case does

not indicate any specific factors that should be taken into account when making a

determination as to dissipation. Ferguson, 639 So. 2d at 928.

¶39. We have previously held that factors to be considered when a dissipation claim is at

issue should be:

1. whether the expenditure benefitted the marriage . . . ;

2. the timing of the transaction [(i.e., did it occur at or near the time of
separation)];

3. whether the expenditure[s] [were] excessive or de minimis; and

4. whether the dissipating party intended to hide, deplete, or divert the
marital assets.

Smith, 90 So. 3d at 1268-69 (¶37) (quoting Thompson v. Thompson, 811 N.E.2d 888, 915

(Ind. Ct. App. 2004)). The chancellor did not specifically discuss these factors on the record,

but because no formal test has been adopted by the Supreme Court, he was not required to

do so. Id. Despite the fact that the factors set out in Smith have yet to be adopted, the record

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is clear that Michelle’s spending did not benefit the marriage, occurred in large part around

the date of separation, was excessive, and hid or diverted assets. Notably, Michelle does not

dispute the finding of dissipation and notes that the chancellor heard the testimony, agreed

with some of Craig’s claims, and reduced her portion of the marital estate by $200,000. The

chancellor stated that his decision finding that Michelle “squandered property” after the

separation was based on the parties’ trial testimony.

¶40. The chancellor cannot be found to have abused his discretion in this instance because

there was no statute or caselaw obligating him to make additional findings regarding

Michelle’s dissipation of marital assets. I believe there is substantial evidence in the record

to support the chancellor’s decision regarding dissipation. Craig’s argument that he should

have received credit for the entire $595,269.52 is incorrect.

¶41. For the foregoing reasons, I respectfully dissent from the majority opinion regarding

wasteful dissipation of assets.

CARLTON, P.J., AND McDONALD, J., JOIN THIS OPINION. GREENLEE,
J., JOINS THIS OPINION IN PART.

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