Julia Gates Hines Mabus v. Raymond Edwin Mabus, Jr. ( 2000 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2001-CA-00381-SCT
JULIA GATES HINES MABUS
v.
RAYMOND EDWIN MABUS, JR.
DATE OF JUDGMENT: 8/8/2000
TRIAL JUDGE: HON. STUART ROBINSON
COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: MINOR F. BUCHANAN
WILLIAM B. KIRKSEY
ATTORNEYS FOR APPELLEE: RICHARD C. ROBERTS, III
ROBERT W. KING
T. ROE FRAZER, III
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 02/13/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE SMITH, P.J., EASLEY AND GRAVES, JJ.
EASLEY, JUSTICE, FOR THE COURT:
PROCEDURAL HISTORY
¶1. Julia Gates Hines Mabus (Julie) and Raymond Edwin Mabus, Jr. (Ray) were married
on January 3, 1987. During the course of the marriage two daughters were born in 1990 and
1992. On January 8, 1998, Julie filed for divorce in the Chancery Court of the First Judicial
District of Hinds County. Julie alleged habitual cruel and inhuman treatment, and Ray
counterclaimed alleging uncondoned adultery. Prior to trial, Julie stipulated that the fault
ground alleged by her against Ray was without merit. Consequently, the chancellor entered
an order which dismissed Julie’s claim with prejudice.
¶2. The divorce proceeding was bifurcated. By agreed order Ray’s allegation of divorce
was tried first. Any remaining issues were to be tried at a later time. After the trial, the
chancellor granted a divorce to Ray on the grounds of uncondoned adultery. In April 2000,
a trial ensued on the remaining issues. Julie does not appeal the chancellor’s ruling as to
the judgment of divorce. Her appeal stems from the chancellor’s ruling on various issues
including the admission and exclusion of certain evidence, denial of a motion to amend the
complaint, the prenuptial agreement, the award of legal custody to Ray, and the distribution
of the marital assets. After careful review, we affirm the judgment.
FACTS
¶3. Julie and Ray met in 1985. In June 1986, Ray’s father died, and Julie, who is a CPA,
worked on the estate. She also worked on Ray’s finances and his successful 1987 campaign
for Governor. Prior to their engagement, Julie worked at Eastover Corporation. However,
she quit that position to start her own consulting firm and to spend time with her sick mother
and Ray. She stated that Ray never asked her to quit her position but that he was happy
when she left her job.
¶4. Julie and Ray were engaged in September 1986 and married on January 3, 1987.
During the marriage, Julie kept meticulous records of the expenses. Julie claims that at the
time of the marriage she did not know Ray’s net worth nor did the prenuptial agreement
have a schedule attached to it. On the day before their marriage, January 2, 1987, Ray
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brought up the prenuptial agreement. Julie was sobbing, and she stated “So I can't remember
exactly what happened. But he [Ray] knew that I was unhappy doing it [signing the
agreement], and I said, I will show you that I love you; I worship and adore you; I’ll show
you that; I will sign the stupid agreement, but please, please tear it up; don’t do this to me;
please tear it up’ he said Okay, okay, okay; and I said thank you....”
¶5. Julie was a graduate of the University of Mississippi (Ole Miss) and received a B.A.
degree in mathematics. She also analyzed financial statements while working in New York
for Chemical Bank. She later attended Columbia University and received an M.B.A. in
1977. After receiving her M.B.A., Julie worked in the bond fund department at Merrill
Lynch on Wall Street in New York. In the early eighties, Julie passed the Certified Public
Accountant exam. Julie also taught money and banking courses at Mississippi College and
the University of San Francisco, undergraduate level, and at Golden Gate University,
graduate level. Eventually, Julie was employed by Eastover Corporation in Jackson.
¶6. On cross-examination Julie stated that she kept a cash flow ledger for Ray. When
questioned, Julie agreed that she knew Ray’s spending habits and his income prior to the
marriage. During the marriage, the Mabuses had nannies to help with the children and other
staff to assist in operating the household. Julie testified at length about the couples' various
accounts and assets. The Mabuses kept separate accounts throughout the marriage. The
Mabuses had properties in Jackson and a vacant lot in Alabama. Julie testified that none of
her money was used to purchase the property. The properties were, however, titled to both
Julie and Ray.
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¶7. A number of witnesses testified at trial concerning the lifestyle and parenting skills
of Julie and Ray. Julie had a teacher and a few neighbors testify on her behalf. Ray had
Margie Cumberland, a housekeeper, and other witnesses to testify at trial. In addition, many
witnesses testified as to their observations of the two Mabus children.
¶8. Holmes Adams (Adams) testified concerning the prenuptial agreement. Adams, an
attorney, has worked on wills, trusts and estate planning. Ray and Adams attended law
school at Harvard together. When Ray’s father died, Adams worked on probating the will
and other estate matters. Adams described his relationship with Julie as cordial. In regard
to the estate of Ray’s father, Julie was the “point person.”
¶9. Adams stated that Ray called him because both Julie and Ray wanted a prenuptial
agreement. Adams agreed to draft the agreement. Ray and Julie wanted to protect their
separate property in the event of a divorce. According to Adams, the meeting took place a
few months prior to the January 1987 wedding. He explained to both Julie and Ray that
normally each person has their own attorney. However, both Julie and Ray stated that they
were in agreement and an attorney was not necessary.
¶10. At the meeting, a copy of the agreement was given to each person, and Adams went
through every paragraph of the agreement. As they reviewed the agreement, Julie and Ray
asked Adams questions. Adams distinctly remembered telling Julie and Ray that if they had
any disagreement concerning the terms of the agreement, then they would have to get
separate counsel. Adams advised the couple to prepare schedules of their assets and
anticipated inheritance. At the time of the meeting, the schedules were not attached. He was
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not present at the time of the signing of the agreement. The Mabuses did not send him a
copy of the executed document.
¶11. Renee Haycraft (Haycraft) is a notary public and worked with Ray for many years.
Ray asked her to witness the signing of the prenuptial agreement. On January 2, 1987,
Haycraft went to Ray’s home with her husband. When Haycraft and her husband arrived,
Julie and Ray were hospitable. After chatting for a few minutes, Julie and Ray signed the
document. Haycraft flipped through the document and was satisfied that it was complete
and notarized it. She stated that at no time was Julie sobbing nor did Julie ask Ray to tear
up the document.
¶12. A former political consultant for Ray, Harrison Hickman (Hickman) testified and
provided an affidavit. In the fall of 1986 Harrison spoke to Julie and Ray about a prenuptial
agreement that they would be signing. According to Hickman, Julie stated that they were
having a prenuptial agreement because she wanted the agreement.
¶13. Dr. David Channell (Dr. Channell), a doctorate in finance and administration and
current professor of business and economics at William Carey College in Hattiesburg,
Mississippi, was an expert witness at trial. He examined Julie's educational background,
work history, possible employment locations, and general skills. Based on the information,
Dr. Channell testified that Julie could earn a median annual income of $108,450 ($90,000.00
salary with 20.5% in fringe benefits). In addition, he testified that her employability in the
Jackson area is very high.
STANDARD OF REVIEW
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¶14. When reviewing a decision of a chancellor, this Court applies a limited abuse of
discretion standard of review. McNeil v. Hester, 753 So.2d 1057, 1063 (Miss. 2000). This
Court will not disturb the findings of a chancellor “unless the chancellor was manifestly
wrong, clearly erroneous, or applied the wrong legal standard.” Id.DISCUSSION
1. Whether the chancellor erred and abused his discretion in limiting
evidence sought to be presented by Julie and allowing evidence
sought to be presented by Ray to such an extent as to deny Julie a
fair trial.
¶15. Julie argues that the chancellor made erroneous rulings regarding evidentiary matters.
Reviewing the rulings collectively, Julie suggests that the chancellor was manifestly wrong,
abused his discretion and denied her a fair trial. Of particular concern, Julie argues that she
was not allowed to present evidence of the children’s excited utterances, rebuttal evidence
against Dr. Wood Hiatt (Dr. Hiatt), Ray's expert witness, and evidence to explain her actions
upon which Ray and Dr. Hiatt relied and presented to the court.
¶16. This Court has consistently held that an unsupported assignment of error will not be
considered. Ellis v. Ellis, 651 So.2d 1068, 1072 (Miss. 1995). Julie did not cite any authority
for her argument that the chancellor erred. This Court does not have to consider alleged error
by when no authority is cited in the brief. Armstrong v. Armstrong, 618 So.2d 1278, 1282
(Miss. 1993). See also Brown v. Miss. Transp. Comm'n, 749 So.2d 948, 959 (Miss. 1999).
Accordingly, this issue is procedurally barred.
2. Whether the chancellor erred in excluding the testimony of Janna
Findley Harris.
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¶17. Julie also argues that the chancellor erred by excluding testimony from Janna Findley
Harris (Harris). Harris testified at a motion hearing before the court that she saw all of the
Mabus family members and that she was a member of the American Association of Marriage
and Family Therapists. Julie, however, argues that Harris’s testimony was excluded because
Harris indicated that she was a marriage counselor and had interviewed Ray. Julie maintains
that Ray stated he only visited Harris as a courtesy. Accordingly, Julie contends that the fact
that Harris is, among other qualifications, a marriage counselor, has no bearing on her ability
to testify at court. In addition, Julie argues that the chancellor relied upon Miss. Code Ann.
§ 73-54-39 (2000 & Supp. 2002) to exclude the testimony and thus overlooked his previous
ruling that Ray did not seek marriage counseling. Finally, she argues that Rule 803 and 804
of the Mississippi Rules of Evidence make the testimony admissible and that § 73-54-39
is unconstitutional.
¶18. The chancellor stated in the order that he considered “the Motion, the testimony of
Janna Findley Harris, the handwritten notes taken by Ms. Harris during her office visits with
Ray Mabus, portions of Mr. Mabus’ deposition, the arguments of counsel both in support
of and in opposition to the Motion, and the applicable authorities cited by counsel...." Based
on his review of this information, the chancellor ruled that Harris was not permitted to
testify. Therefore, the chancellor completed a comprehensive review of many documents
and testimony in making his decision. In addition, the chancellor wrote to the parties, dated
March 20, 2002, and had no question that Ray was involved in therapy with Harris. The
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chancellor based his finding on his review of Harris’s notes from the sessions and Ray’s
deposition testimony in which Ray referred to himself as a patient.
¶19. Miss. Code Ann. § 73-54-39 states the following:
If both parties to a marriage have obtained marriage and family therapy by a
licensed marriage and family therapist, the therapist shall not be
competent to testify in an alimony, custody or divorce action concerning
information acquired in the course of the therapeutic relationship.
(emphasis added). As to Julie’s assertion that the chancellor overlooked his previous ruling
that Ray had not sought counseling, the record reflects that the chancellor did not rule on
that issue. There had been a prior hearing before the chancellor concerning the issue of
privilege. The transcript testimony quoted by Julie in her brief relates to the issue of
privilege and a motion for a protective order, not Harris’s competence to testify pursuant to
§ 73-54-39.
¶20. As to the constitutionality of § 73-54-39, the issue was not raised for the chancellor
to consider. “[T]his Court has also consistently held that errors raised for the first time on
appeal will not be considered, especially where constitutional questions are concerned.”
Ellis, 651 So.2d at 1072 (citations omitted). Accordingly, this issue is barred from review.
Notwithstanding the procedural bar, this issue still fails. Julie claims that the rules of
evidence supercede any statute concerning court procedure. In effect, Julie claims that the
chancellor’s ruling disregards M.R.E. 803 and 804, which deal with hearsay exceptions.
Here, the statute states that a licensed marriage and family therapist shall not be competent
to testify, whereas the M.R.E. concern the exceptions to the hearsay rule. There is no
confusion or conflict between the statute and the rules.
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¶21. Neither party cites M.R.E 601, which addresses the general rules of competency.
There is no family therapist exception under this Rule. What is more, M.R.E. 1103 repeals
any evidentiary rules inconsistent with the Rules of Evidence, regardless of whether they are
provided in a statute, court decision or court rule. In the context of M.R.E. 601 and the
statute, there does appear to be a conflict. However, this Court need not address an issue
that is not properly raised by a party. Ellis, 651 So.2d at 1072 (citations omitted).
Notwithstanding that the issue was not raised and is procedurally barred, this Court will
none the less review the issue to determine if the exclusion of Harris’s testimony prejudiced
Julie’s case.
¶22. The heart of Julie’s argument is that Harris would have given testimony pertaining
to the custody of the children and their alleged preference to live with Julie. In her brief
Julie specifically stated that Harris’s testimony would establish that (1) the children were
bright and intelligent; (2) the eldest child was 14 years old in intelligence even though she
was not yet 12 years of age; and (3) the children preferred to live with Julie. At trial, other
witnesses testified to these facts. Accordingly, to the extent that there may have been any
prejudice to Julie’s case, it was harmless.
¶23. Two expert witnesses testified during the trial. Dr. Donald Guild (Dr. Guild) was the
expert witness for Julie, and Dr. Hiatt was the expert for Ray. Dr. Guild testified that the
children were very bright and intelligent and had stronger emotional ties to Julie. When
considering the Albright factors, Dr. Guild stated that the sex of the children was significant
and the children should be with Julie. Dr. Guild disagreed with Dr. Hiatt’s assessment of
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the children. In his testimony, Dr. Guild suggested that Julie have physical custody of the
children, not Ray. Nancy McNamee, another witness called by Julie, testified that the
children were upset, i.e. crying and running down a hall in their home, when they learned
of a modification to visitation at least six months prior to the hearing before the chancellor.
Judy Menist, the children’s teacher, stated that the children were intelligent. Julie had a
loving relationship with them.
¶24. Dr. Hiatt testified that the children were bright and intelligent. In making his
evaluation, he also considered the fact that the eldest child expressed her desire to live with
Julie. Ultimately, however, Dr. Hiatt recommended that Ray be given custody of the
children. The chancellor had an opportunity to consider all the testimony from various
witnesses and the differing recommendations for custody by the experts. The testimony by
these witnesses contains the same information that Harris was to have given the chancellor.
Even though Harris was prohibited from testifying in the case, her testimony would have
been redundant to the testimony given by other witnesses. This issue is without merit.
3. Whether the chancellor erred in admitting the testimony of George
Bougher.
¶25. Julie argues that the chancellor abused his discretion and committed manifest error
by allowing George Bougher (Bougher) to testify. She contrasts the chancellor’s refusal to
permit Harris to testify with the admission of Bougher’s testimony. Of significance is that
Bougher testified that he did not have any special designation in the area of marriage and
family counseling. He is a psychotherapist and a licensed professional counselor. During
voir dire, he stated that he is not considered a marriage family therapist, but works with
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groups, individuals couples or families. The chancellor accepted Bougher as an expert in
the field of counseling only. In addition, the parties both signed waivers in this case. This
issue is without merit.
4. Whether the chancellor erred in relying upon the testimony of Dr.
Wood Hiatt.
¶26. Julie argues a number of alleged errors by the chancellor pertaining to Dr. Wood
Hiatt’s (Dr. Hiatt) testimony. Dr. Hiatt is a psychiatrist who testified at trial. Julie claims
that Dr. Hiatt had previously testified in her favor, but changed his opinion by the time of
trial. She also claims that the chancellor relied heavily upon Dr. Hiatt’s testimony as is
reflected in the court’s opinion. Further, Julie argues that Dr. Hiatt’s testimony is flawed
because he never interviewed her. She alleges that Dr. Hiatt relied on many remote facts,
apart from interviews with the children and the January 1998 tape between the Mabuses and
a priest. She claims that had Harris been allowed to testify, it would be clear that custody
should have been granted to Julie. Further, Julie asserts that Dr. Donald Guild (Dr. Guild)
disagreed with Dr. Hiatt and that physical custody should go to her with Julie and Ray
sharing joint legal custody.
¶27. As to the claims that Dr. Hiatt had previously testified that Julie was preferred for
custody on a 52% to 48% basis and then changed his testimony by the time of trial in favor
of Ray, the record does show that Dr. Hiatt made an overall recommendation at trial that Ray
have physical custody of the children. However, Dr. Hiatt’s testimony concerning the
alleged 52% to 48% recommendation in favor of Julie concerns just one Albright factor.1
1
Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).
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Julie cites to the transcript for authority; however the transcript testimony by Dr. Hiatt,
states:
Q. You have here, back to number 9, the home, school and community
record of the child.
A. Yes, sir.
Q. Even.
A. Yes, sir.
Q. In your deposition, you gave Mrs. Mabus a slight edge, I believe.
A. Okay.
Q. Fifty-two to forty-eight.
A. Okay, fifty-two to forty-eight.
Q. And the stability of the home and employment, you gave a plus to Ray
on that.2
A. Correct.
.....
The transcript does not indicate that Dr. Hiatt recommended Julie should have custody of
the children. It only indicates that Julie had a marginal preference on that one factor.
¶28. Julie also claims that the chancellor relied upon Dr. Hiatt’s testimony in his opinion.
While it is true that the chancellor mentions that the court heard testimony from various
individuals on various topics considered in the Albright factors, the chancellor’s only
specific reference to Dr. Hiatt is found under the moral fitness of the parents factor. The
chancellor stated, “Defense’s expert, Dr. Wood Hiatt, testified that he believed the older
daughter was aware of the affair based upon his interviews with the children.” There is no
further mention of Dr. Hiatt in the opinion. In fact, the chancellor appears to suggest that
the high volume of telephone calls combined with the intelligence of the children would
make the children curious of their mother’s behavior. The chancellor also indicated that the
2
This is another Albright factor. See the child custody issue that follows for further factors.
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affair interfered with effective parenting of the children regardless of whether the children
knew of the affair.
¶29. Julie also places importance on the evidence used by Dr. Hiatt to form his opinion.
She is correct in stating that Dr. Hiatt never interviewed her. At trial, Dr. Hiatt testified that
he requested interviews with Julie but that he never had any with her. However, Dr. Hiatt
relied on more than the interviews with the children and the taped meeting between the
Mabuses and the priest in formulating his opinion. Dr. Hiatt relied on many sources for
information such as interviews with Margie Cumberland, Ida Turnage, and the children. Dr.
Hiatt actually interviewed the children 21 times starting in February 1998. He reviewed the
pleadings and relied upon statements by Julie. He reviewed at least sixty depositions. Dr.
Hiatt testified that he was present in the courtroom and heard all the testimony at trial. He
took notes and listened to the testimony, and he based his opinion on all the evidence. Dr.
Hiatt testified that the substance of the depositions that he reviewed were much the same as
the testimony given in trial. In other words, the depositions and the testimony were
cumulative. Dr. Hiatt recommended that Ray have custody of the children. Dr. Hiatt also
testified to some of Julie’s positive attributes. He stated that Julie was able to care for the
children and that Julie was described as loving and caring of the children. He also stated
that the Mabuses' parenting skills are equal.
¶30. Finally, Julie argues that Harris’s testimony, if allowed, would have demonstrated
why she should have custody of the children. This Court addressed the rationale for not
allowing Harris to testify above and will not address it further. As for the conflict in
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testimony between Dr. Hiatt and Dr. Guild, the chancellor relied upon various testimony to
reach his decision. It is not known to what extent each witness’s testimony influenced the
decision. However, the chancellor stated in his opinion: “This Court’s desire to award joint
legal and joint physical custody; however, neither party has petitioned for joint custody.
Therefore, the requirements of § 93-5-24 of the Mississippi Code Annotated have not been
met and this Court is precluded from granting joint custody.”
¶31. This issue is without merit.
5. Whether the chancellor erred by denying Julie’s motion to amend
her complaint.
¶32. Julie next complains that the chancellor erred by denying her motion to amend the
complaint to include joint legal custody. She alleges that this issue was tried by implied
consent. Julie relies in part upon Setser v. Piazza, 644 So.2d 1211, 1217 (Miss. 1994), for
implied consent authority. Setser concerned a child’s emancipation and held that issues can
be tried by implied consent pursuant to M.R.C.P. 15(b) even if the issue is not raised in the
pleadings. Setser, 644 So.2d at 1217. “A finding that an issue was tried by implied consent
depends upon whether the parties recognized that a new issue was being litigated at trial.”
Id. (citing Shipley v. Ferguson, 638 So.2d 1295 (Miss.1994)). However, implied consent
will not be found where the “questions asked or the evidence presented at trial are relevant
to the issues actually raised in the pleadings.”Id. (citing Shipley, 638 So.2d at 1301).
¶33. Miss. Code Ann. § 93-5-24(3) (1994 & Supp. 2002) provides that in cases which do
not involve irreconcilable differences, joint custody may be awarded, in the discretion of the
court, upon application of one or both parents. The chancellor issued an Opinion and Order
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of the Court on July 6, 2000, and awarded legal custody of the children to Ray and alternate
six-month periods of physical custody to both Ray and Julie. On August 8, 2000, the
chancellor issued the Judgment which incorporated by reference the previous opinion and
order.
¶34. Prior to the final judgment, on July 24, 2000, Julie filed a motion to amend the
pleadings to conform with the evidence. Julie claims that she filed the motion prior to the
judgment so that the court could consider joint legal custody. She asserts that the issue of
joint custody was tried by implied consent. She claims that she never wanted anything but
joint custody, which she stated on the first day of trial. Julie also argues that her expert, Dr.
Guild, confirmed that desire at the conclusion of the trial. In addition, she claims that Ray
never objected to this testimony and was not prejudiced by it.
¶35. M.R.C.P. 15(b) concerns amending the pleadings to conform with the evidence and
states:
(b) Amendment to Conform to the Evidence. When issues not raised by
the pleadings are tried by expressed or implied consent of the parties,
they shall be treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be necessary to
cause them to conform to the evidence and to raise these issues may be
made upon motion of any party at any time, even after judgment; but
failure so to amend does not affect the result of the trial of these issues.
If evidence is objected to at the trial on the ground that it is not within
the issues made by the pleadings, the court may allow the pleadings to
be amended and shall do so freely when the presentation of the merits
of the action will be subserved thereby and the objecting party fails to
satisfy the court that the admission of such evidence would prejudice
him in the maintaining of his action or defense upon the merits. The
court may grant a continuance to enable the objecting party to meet
such evidence. The court is to be liberal in granting permission to
amend when justice so requires.
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¶36. Ray argues that two isolated statements, one during Julie’s testimony and the other
in the rebuttal testimony of her expert, do not amount to implied consent. Ray further argues
that the two parties requested sole legal and physical custody in all pleadings and that no
witness testimony addressed the possibility of joint custody. Further, Ray argues that he did
object to the testimony of the witness. The record reveals that counsel for Ray objected to
the testimony of Dr. Guild on rebuttal claiming that the testimony should have been
presented in Julie’s case-in-chief. Counsel also objected to Dr. Guild giving a
recommendation. (Dr. Guild recommended that Julie have physical custody and that there
be joint legal custody of the children with a guardian ad litem.). The chancellor allowed
testimony on limited issues.
¶37. A hearing on the motion occurred on October 31, 2000. The chancellor listened to
arguments from both parties and stated in part:
All right. Mr. Ross, I’m in agreement with what Mr. Roberts said in this case.
Both sides fought for six days, not including the motions that we tried, each
one determined to get sole legal and sole physical custody. And even after the
case was over, I remember getting with the lawyers in chambers and
suggesting that they prepare some proposal in case I decide I wanted to award
joint legal and/or physical custody. Now, Mr. Roberts at that point said he
doubted that they were going to address the issue, that they were going to go
all the way for sole legal and sole physical custody. I think Mrs. Thibodeaux
and Mr. Crockett possibly said that they would make a proposal. I’m not even
sure how that went. But anyway, what it boiled down to was we were still in
the situation of both fighting for sole custody, legal and physical. And the
case law I later found out - - I didn’t know - - I thought I had the authority at
that time to go ahead and award joint legal and/or physical custody if I felt
that that was the proper thing to do. But I later found out that that was not
what the case law said and it had to be one or the other. And that’s the reason
I did it the way I did. And based on that, I’m going to overrule your motion.
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The chancellor entered an order denying the motion on January 8, 2001. In his ruling dated
January 8, 2001, the chancellor stated:
Regarding Plaintiff’s Motion to Amend the Pleadings to Conform to the
Evidence, the Court finds that both parties sought sole legal and physical
custody at the trial of this cause. Even in Chambers, after the Court asked the
attorneys for both parties to consider joint legal and/or physical custody, both
parties rejected the opportunity. Therefore, the Court finds that Plaintiff’s
Motion to Amend the Pleadings to Conform to the Evidence shall be and is
hereby DENIED.
Clearly, mentioning a variation in custody in no more than two instances does not rise to
implied consent. Ray objected to and had a continuing objection to Dr. Guild’s testimony.
All the pleadings and testimony, apart from Julie’s assertion given during cross-examination,
did not address joint custody. In fact, both parties maintained that they wanted sole custody
of the children. The intent of the parties was clear, and to allow an amendment at such late
date and after the initial findings would be prejudicial. This issue is without merit.
6. Whether the chancellor erred in awarding legal custody to Ray
and alternate physical custody to Julie.
¶38. The standard of review in cases involving child custody is limited. Lee v. Lee, 798
So.2d 1284, 1288 (Miss. 2001) (collecting authorities). Reversal occurs only when the
chancellor is manifestly in error or has applied an erroneous legal standard. Id. The evidence
and credibility of a witness is the sole responsibility of the chancellor as well as the weight
of this evidence. Id. In Lee, this Court set forth the Albright factors and held the following:
To help guide us to a proper determination as to custody, the court considers
the following factors in determining the child's best interests: (1) age, health
and sex of the child; (2) a determination of the parent that has had the
continuity of care prior to the separation; (3) which has the best parenting
skills and which has the willingness and capacity to provide primary child
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care; (4) the employment of the parent and responsibilities of that
employment; (5) physical and mental health and age of the parents; (6)
emotional ties of parent and child; (7) moral fitness of the parents; (8) the
home, school and community record of the child; (9) the preference of the
child at the age sufficient to express a preference by law; (10) stability of
home environment and employment of each parent and other factors relevant
to the parent-child relationship. Albright v. Albright, 437 So.2d 1003, 1005
(Miss.1983). While the Albright factors are extremely helpful in navigating
what is usually a labyrinth of interests and emotions, they are certainly not the
equivalent of a mathematical formula. Determining custody of a child is not
an exact science.
798 So.2d at 1288. However, “[g]iven our standard of review, we need not reexamine all
of the evidence to see if we agree with the chancellor's ruling; our charge is merely to see
if the chancellor's decision is supported by credible evidence.” Id. at 1289.
¶39. The chancellor devoted over seven pages of his opinion to the child custody issue.
In his opinion, the chancellor made a thorough and detailed analysis of each Albright factor
apart from factor 9, the preference of the child at the age sufficient to express a preference
by law, which the chancellor found inapplicable. The end result of his analysis was that Ray
should receive legal custody and Julie and Ray have alternate six (6) month periods of
physical custody of the children. Julie’s argument merely re-analyzes the Albright factors
with a different outcome. Not surprisingly Julie’s analysis finds that she should have
custody of the children. A brief review of the chancellor’s findings follows:
(1) Age, health and sex of the child.
¶40. The chancellor found that both parents were capable of caring for the children's
health and that the sex of the children slightly favored Julie. The children were seven and
nine at the time of the proceedings, female and in good health with the exception of one
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child having asthma, and beyond the tender years exception. The chancellor also found that
while it is important that Julie have an active role in the children's lives and upbringing, it
was not paramount that she have full custody.
(2) A determination of the parent that has had the continuity of care prior
to the separation.
¶41. The chancellor found that the testimony was conflicting but the factor weighed evenly
for Julie and Ray.
(3) Who has the best parenting skills and which has the willingness and
capacity to provide primary child care.
¶42. The chancellor found this factor to weigh evenly for Julie and Ray. Both parents
were determined to be willing and capable of providing primary care for the children.
(4) The employment of the parent and responsibilities of that employment.
¶43. The chancellor found that this factor weighed evenly for Julie and Ray. While neither
parent had a typical nine to five job, the chancellor determined that each can impart a strong
work ethic to the children.
(5) Physical and mental health and age of the parents.
¶44. The chancellor found that this factor slightly favored Ray. The chancellor found that
Julie and Ray had good physical health. In addition, Ray was determined to have good
mental health. As for Julie, the chancellor found that there was some evidence that she has
some anger management problem and that the stress of the proceedings and the
circumstances had taken a toll on her mental health and stability.
(6) Emotional ties of parent and child.
19
¶45. The chancellor found this factor weighed evenly for Julie and Ray. The chancellor
stated that there was much testimony from neighbors, friends, relatives and doctors. It was
clear that the children were bonded to both parents. Also, the chancellor indicated that
witnesses for each party attempted to describe a stronger tie to one parent over the other.
However, the chancellor noted that none of these witnesses observed the children in separate
settings with each parent.
(7) Moral fitness of the parents.
¶46. The chancellor found this factor weighed in favor of Ray. A divorce was granted on
the grounds of uncondoned adultery. Nevertheless, the chancellor specifically stated that
“[w]hile it is not the purpose of this Court to punish adultery, it is a factor to consider in
awarding custody of minor children.” The chancellor concluded that the affair interfered
with Julie’s ability to effectively parent, regardless of whether the children knew of it.
(8) The home, school and community record of the child.
¶47. The chancellor found this factor weighed evenly for Julie and Ray. The children were
determined to be exceptional and well adjusted, but neither parent could take sole credit for
that accomplishment.
(9) The preference of the child at the age sufficient to express a preference
by law.
¶48. The chancellor found this factor inapplicable since neither child was of an age to
express a preference.
(10) Stability of home environment and employment of each parent and
other factors relevant to the parent-child relationship.
20
¶49. The chancellor found the stability factor weighed evenly for Julie and Ray. Both have
fine homes to raise the children. As for the marital domicile, the chancellor found that it was
an appropriate place to raise the children before the separation and continued to be an
appropriate place. The homes and employment records of both parents were stable.
(11) Other considerations.
¶50. The chancellor considered other aspects of the evidence. Some of the things
considered included Julie’s interference with Ray’s time as well as her care of the girls since
the separation.
¶51. The chancellor considered all of the above factors. The best interests of the children
were considered, and Ray was determined to be the more appropriate parent to have legal
custody. Julie's arguments, for the most part, cites testimony that results in her conclusion
that she has a stronger and more favorable outcome than Ray in every Albright factor,
except for the moral fitness factor in which she considers both parents to be equal.
Appellate review is limited in custody cases. Lee, 798 So.2d at 1288. The chancellor heard
the testimony of all witnesses and had the opportunity to observe the demeanor of the
witnesses for six days. Considering the evidence and credibility and the witnesses as well
as the weight assigned is the responsibility of the chancellor. Lee, 798 So.2d at 1288. The
appellate court reviews whether the chancellor's decision is supported by credible evidence.
Id. at 1289. This Court reviews the chancellor’s decision under an abuse of discretion
standard and will not disturb the findings of a chancellor “unless the chancellor was
21
manifestly wrong, clearly erroneous, or applied the wrong legal standard.” McNeil v. Hester,
753 So.2d at 1063.
¶52. After a review of the voluminous record in this case and the chancellor's detailed
opinion, we conclude that his findings are substantially supported by the record.
Accordingly, we find that the chancellor's decision is not manifestly wrong, clearly
erroneous, nor did he apply the wrong legal standard. Therefore, the chancellor did not
abuse his discretion. This issue is without merit.
7. Whether the chancellor erred in ruling that the prenuptial
agreement was valid and enforceable.
¶53. An antenuptial contract is just as enforceable as any other contract. Smith v. Smith,
656 So.2d 1143, 1147 (Miss. 1995). In an antenuptial contract the same construction and
interpretation rules are applicable as well as the intent of the parties. Estate of Hensley v.
Estate of Hensley, 524 So.2d 325, 327-28 (Miss.1988). “However, this Court imposed the
requirement of fairness in the execution of such contracts.” Smith v. Smith, 656 So.2d at
1147 (citing Estate of Hensley, 524 So.2d at 327). A duty to disclose is also of paramount
importance. Id. (citing Estate of Hensley, 524 So.2d at 328). However, “[i]t is not now and
never has been the function of this Court to relieve a party to a freely negotiated contract of
the burdens of a provision which becomes more onerous than had originally been
anticipated.” Estate of Hensley, 524 So.2d at 328 (citations omitted). "This Court will not
disturb the chancellor's opinion when supported by substantial evidence unless the
chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous
22
legal standard was applied." McBride v. Jones, 803 So.2d 1168, 1170 (Miss. 2002) (quoting
Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)).
¶54. Julie argues that the chancellor erred in ruling that the prenuptial agreement was valid
and enforceable. Her basic argument centers on her claim that she never saw the schedules
attached to the agreement until it was presented as evidence. In other words, Julie claims
there was no full disclosure and that the agreement was not fair. Julie also cites many other
considerations for this Court. Included among her complaints are her arguments that she had
no independent counsel; she sacrificed 13 years of her career for Ray; the agreement is
against public policy; the testimony of Haycraft, the notary, is suspect at best; the separate
estates are so disparate that fundamental fairness must be questioned; and the agreement
waives alimony.
¶55. After presiding over a six-day trial and numerous other motion hearings, the
chancellor in this case wrote an extensive twenty-one page opinion and order. He devoted
four pages to the prenuptial agreement and alimony. The chancellor determined that the
prenuptial agreement was fair and enforceable. The chancellor also noted that even if the
prenuptial agreement was not enforced, the ruling would have been the same citing the
Mabuses meticulous maintenance of separate premarital, gift and inheritance accounts.
¶56. The chancellor found that “[t]he evidence shows that Julie wanted a prenuptial
agreement, understood the terms of the agreement, and knew that she had a right to a
separate attorney. However, Julie chose not to avail herself of an independent attorney and
she voluntarily executed the agreement to protect her own anticipated inheritance.” As to
23
Julie’s claim that she signed the agreement only after Ray allegedly promised to destroy it,
the chancellor stated that is not grounds for refusal to enforce the contract. The chancellor
cited Spragins v. Sunburst Bank, 605 So.2d 777, 781 (Miss. 1992) for the principle that
alleged fraudulent misrepresentation “cannot be predicated on a promise relating to future
actions." An appellate court must respect the findings of fact made by a chancellor which
are supported by credible evidence and are not manifestly wrong. Rogers v. Morin, 791
So.2d 815, 826 (Miss. 2001). In addition, "[t]he chancellor, by his presence in the
courtroom, is best equipped to listen to witnesses, observe their demeanor, and determine
the credibility of the witnesses and what weight ought to be ascribed to the evidence given
by those witnesses." Id. (quoting Carter v. Carter, 735 So.2d 1109, 1114 (Miss. Ct. App.
1999)).
¶57. The ruling is supported by substantial evidence and there is no abuse of discretion
by the chancellor. Both Julie and Ray had some assets prior to the marriage and potential
for further inheritance in the future. Ray and Julie were engaged in the fall of 1986 and
married January 3, 1987. In June 1986, Ray’s father died and left Ray, an only child, a
substantial estate. A week after Julie and Ray were engaged, Julie’s mother died, leaving
an irrevocable trust for Julie and her two sisters. Upon the death of her father, Herman
Hines, Julie will receive a one-third share of the trust estimated to be approximately $1.6 to
1.75 million at the time of trial. In addition, Julie had already received some stock from her
father and is entitled to a one-third share of her father’s estate upon his death.
24
¶58. Julie is a very well educated woman. She stated that she always liked numbers She
has a Masters of Business Administration (M.B.A.) degree from Columbia University and
a CPA certificate. She has worked on Wall Street at Merrill Lynch and taught graduate and
undergraduate money and banking courses.
¶59. Julie testified that she prepared numerous documents pertaining to the estate of Ray’s
father, including completing tax return schedules for the estate. Ray stated that he paid Julie
$3,000.00 for her work on his father’s estate. Adams, the attorney for the estate of Ray’s
father, testified that Julie was the point person for the estate. In addition, Julie stated that
“[o]ver the course of the marriage, probably even before we got married, I kept meticulous
records about what we had, what we spent and what we got. I guess you could say I was the
custodian of all the information....” Despite these statements Julie argues that there was no
full disclosure and that the schedule of assets were not attached to the agreement when she
signed it.
¶60. About October of 1986, Julie and Ray went to Adams’s office and discussed a
prenuptial agreement. Adams stated that Ray called and stated that both Julie and he wanted
a prenuptial agreement, and Adams agreed to draft the agreement. Ray and Julie wanted to
protect their separate property in the event of a divorce. Adams stated that normally each
party has their own attorney, however, Julie and Ray stated that they were in agreement and
an attorney was not necessary. While at the meeting, Adams gave each of them a copy and
explained each paragraph of the agreement. In addition, Adams distinctly remembered
telling Julie and Ray that if they had any disagreement concerning the terms of the
25
agreement, then they would have to get separate counsel. At the time of the meeting, the
schedules were not attached, so Adams advised the couple to prepare schedules of their
assets and anticipated inheritance. After the meeting, Adams stated that he called Julie to
discuss the progress of the schedule. Julie told him that she and Ray were in the process of
preparing the schedules. Ray testified that he and Julie compiled the list together on January
1, 1987. Ray also claimed that Julie typed the schedule on his typewriter. The prenuptial
agreement itself states that the parties acknowledge that they received a complete financial
disclosure from one another.
¶61. Hickman, a former political consultant, stated that in the fall of 1986 Julie and Ray
told him about a prenuptial agreement that they would be signing. According to Hickman,
Julie stated that they were having a prenuptial agreement because she wanted the agreement.
¶62. On January 2, 1987, Haycraft went to Ray’s home with her husband to notarize the
prenuptial agreement. After chatting for a few minutes, Julie and Ray signed the document.
Haycraft flipped through the document and was satisfied that it was complete and notarized
it. Haycraft stated that at no time was Julie sobbing nor did Julie ask Ray to tear up the
document.
¶63. The chancellor is in the best position to observe a witness and determine the witness’s
credibility and the weight to be given to evidence presented by a witness. Rogers, 791 So.2d
at 826. Although Julie claims that she had no attorney, the chancellor correctly determined
that pursuant to Hensley independent counsel is not required to fairly execute a prenuptial
agreement. After listening to the testimony, the chancellor determined that Julie wanted the
26
prenuptial agreement, understood the agreement and chose not to seek independent counsel.
As for Julie’s claims that there was no full disclosure and the agreement was not fair, the
chancellor, after listening to all the testimony from the numerous witnesses and being in the
position to observe the witness’s demeanor and weigh the evidence presented, determined
that the agreement was valid and enforceable and impliedly determined that the agreement
was fair and the parties were provided full disclosure. As to Haycraft’s testimony, the
chancellor was in the best position to determine the credibility of the witness and the weight
given to her testimony about the day the prenuptial agreement was signed by Julie and Ray
and notarized by her. In other words, the chancellor resolved any disputes or conflicts in the
testimony and evidence presented.
¶64. The chancellor also acknowledged that Julie’s estate is smaller than Ray’s and that
she gave up her rights to alimony in the agreement.3 However, the chancellor determined
that Julie freely negotiated the agreement, and the chancery court would not relive her of the
obligation even if it was a bad bargain. The claim that the estates of the parties are so
disparate that it questions fundamental fairness is of no consequence. An antenuptial
agreement is as enforceable as any other contract in Mississippi. Smith, 656 So.2d at 1147.
Of course, there must be fairness in the execution and full disclosure in an antenuptial
agreement in Mississippi. Id. Both Julie and Ray signed a valid agreement. Had the tables
been turned and Julie’s estate increased in value while Ray’s estate decreased in value from
the time of the agreement, Julie would presumably want this Court to uphold the agreement
3
The issues of alimony and equitable distribution will be discussed further in the next issue.
27
to her benefit. The parties made this agreement to protect their assets. The fact that over
time one party had the fortune of increasing their assets is not a reason to abolish or
invalidate the agreement. At the time the agreement was made the parties wanted to protect
premarital and inheritance assets, the agreement has done exactly what it was intended to do.
All contracts involve some type of risk; this agreement was no different.
¶65. As for the alimony issue, the chancellor relied on case law and gave detailed
reasoning for his decision. The chancellor stated in part:
[T]his Court would not award alimony even absent the prenuptial agreement.
The Mississippi Supreme Court has held that the Court need not award
alimony “if there are sufficient marital assets which, when equitably divided
and considered with each spouse’s non-marital assets, will adequately provide
for both parties.” Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss. 1994).
Julie has approximately $800,000 in liquid assets in her own name, will
receive a portion of the marital estate in equitable distribution, receives annual
dividends of approximately $20,000, and has substantial earning capacity.
After considering Julie’s total estate, as well as her adultery, this Court finds
that she will be adequately provided for without and award for alimony.
Therefore, even absent the prenuptial agreement, the results would be the
same given the circumstances and the law.
While the prenuptial agreement is controlling, the standard of review for alimony will
nevertheless be applied as stated in our case law. "Our scope of review of an alimony award
is well-settled. Alimony awards are within the discretion of the chancellor, and his discretion
will not be reversed on appeal unless the chancellor was manifestly in error in his finding
of fact and abused his discretion." Ethridge v. Ethridge, 648 So.2d 1143, 1145-46 (Miss.
1995)(citing Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993)). See also Voda
v. Voda, 731 So.2d 1152, 1154 (Miss. 1999); Traxler v. Traxler, 730 So.2d 1098, 1104
(Miss. 1998); Parsons v. Parsons, 678 So.2d 701, 703 (Miss. 1996). The ruling of the
28
chancellor will not be disturbed if the findings of fact are supported by credible evidence in
the record. Id.
¶66. The chancellor did not abuse his discretion in finding the prenuptial agreement to be
enforceable, but even pursuant to Mississippi case law, we find that the chancellor was not
manifestly wrong or abuse his discretion on the issue of alimony. A divorce was granted to
Ray on the grounds of uncondoned adultery. The chancellor only briefly mentioned the
adultery. This Court has set forth criteria for the assessment of lump sum and periodic
alimony:
In White v. White, 557 So.2d 480, 483 (Miss.1989), we listed several
factors to be considered by the chancellor in determining whether to award
lump sum alimony and amount:
1. Substantial contribution to accumulation of total wealth
of the payor either by quitting a job to become a
housewife, or by assisting in the spouse's business. Tutor
v. Tutor, 494 So.2d 362 (Miss.1986); Schilling v.
Schilling, 452 So.2d 834 (Miss.1984);
2. A long marriage. Jenkins v. Jenkins, 278 So.2d 446(Miss.1973); Tutor and Schilling, supra;
3. Where the recipient spouse has no separate income or
the separate estate is meager by comparison. Jenkins,
Tutor and Schilling, supra;
4. Without the lump sum award the receiving spouse would
lack any financial security. Abshire v. Abshire, 459
So.2d 802, 804 (Miss.1984).
A closer analysis of these cases, however, reveal that the single
most important factor undoubtedly is the disparity of the
separate estates.
Also, Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988); Retzer v.
Retzer, 578 So.2d 580, 592 (Miss.1990).
Cleveland v. Cleveland, 600 So.2d 19, 197 (Miss. 1992).
29
¶67. The Court in Cleveland applied the factors to a wife that was granted a divorce from
her husband on ground of habitual cruel and inhuman treatment. Unlike the wife in
Cleveland, Julie was determined to be at fault for uncondoned adultery. Ray was given the
divorce because of Julie's wrongdoing. This Court had held that "[i]t is a general rule that
alimony will not be allowed a wife when the husband is granted a divorce because of her
fault." Retzer v. Retzer, 578 So.2d 580, 592 (Miss. 1990)(citations omitted). Nevertheless
even if Julie were granted the divorce, she cannot satisfy the test set out in Cleveland. See
also Retzer v. Retzer, 578 So.2d 580, 592 (Miss.1990); Cheatham v. Cheatham, 537 So.2d
435, 438 (Miss.1988).
¶68. In his opinion, the chancellor acknowledged Julie's contributions to the marriage.
Julie filed for divorce in 1998 and moved out of the marital home shortly thereafter. The
chancellor granted a divorce in July 2000. Thus the Mabuses were together for
approximately eleven years, not a long marriage. Julie is a highly educated woman with
numerous degrees and an M.B.A. from Columbia University. Her earning capacity is
significant based on her fine education and abilities. In addition, Julie had other assets and
separate income. Furthermore, the chancellor's award of marital property was slightly in
Julie's favor.4 All these factors make Julie a financially secure person. Consequently, Julie
was adequately provided for even with no award of alimony. As the chancellor determined
in his opinion, Julie is not left destitute.
4
This issue is addressed more fully in the equitable distribution issue.
30
¶69. The issue of disproportionality of the estates is more fully addressed in the final issue
concerning equitable distribution reviewed by this Court. However, the chancellor
acknowledged in his opinion that Julie made contributions to the family and Ray's success.
In addition, the chancellor stated that even though Julie was not entitled to alimony, "the
Court considered the disparity of the separate estates and will make a property division
which will eliminate the need for any periodic payments, with the exception of child support
obligations."
¶70. The chancellor listened to the testimony of witnesses and considered the evidence.
The chancellor’s ruling was supported by substantial evidence, and there is no evidence that
the ruling was an abuse of discretion, was manifestly wrong, clearly erroneous, or that an
erroneous legal standard was applied. Consequently, the prenuptial agreement was correctly
determined to be valid and enforceable. We find that this issue is without merit.
8. Whether the chancellor erred in the distribution of marital assets.
¶71. The prenuptial agreement was determined to be valid and enforceable by the
chancellor. This determination is affirmed. Both Julie and Ray agreed to the arrangement
and signed the prenuptial agreement in 1987. Accordingly, the prenuptial agreement is
controlling in the distribution of the assets. The agreement stated in part the following:
This agreement is intended to cover and apply to all property now owned by
each party and to all property which each may acquire in his or her sole and
separate right, and to any property acquired by an exchange, lease, mortgage
or otherwise, to any property vesting by purchase, reinvestment, substitution,
increase, descent, gift, bequest, or devise, and to proceeds derived from any
sale. The agreement does not apply to property as to which title is taken after
their marriage in the names of both parties as joint tenants or tenants by the
entirety.
31
While the chancellor upheld the agreement, he noted that his decision on the distribution of
marital assets would have been the same even if the agreement was determined to be
unenforceable. Of vital importance in the case sub judice is evidence that the parties’
“meticulously maintained separate accounts for their premarital separate property and for the
gifts and inheritances that they each received during the marriage.” Again, the chancellor
wrote a very detailed opinion with more than six pages devoted to the distribution of assets.
The chancellor's equitable distribution analysis considered the Ferguson factors. See
Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994).
¶72. There is a limited standard of review on appeal for issues addressing the division and
distribution of property in divorces. Owen v. Owen, 798 So.2d 394, 397 (Miss. 2001) (citing
Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997)). The chancellor's ruling of the division
and distribution "will be upheld if it is supported by substantial credible evidence." Id.(quoting Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994)). "This Court will not
substitute its judgment for that of the chancellor '[e]ven if this Court disagree[s] with the
lower court on the finding of fact and might ... [arrive] at a different conclusion.'" Id. at 397-
98 (quoting Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978)).
¶73. When reviewing the Ferguson factors, a chancellor may consider only the factors that
he or she deems to be applicable to the property placed before the chancery court's
consideration. Id. at 398. Accordingly, not all of the eight factors must be considered in
every case. Id. Ferguson set forth the following guidelines to assist a chancellor in the
evaluation and distribution of assets:
32
Although this listing is not exclusive, this Court suggests the chancery courts
consider the following guidelines, where applicable, when attempting to effect
an equitable division of marital property:
1. Substantial contribution to the accumulation of the
property. Factors to be considered in determining
contribution are as follows:
a. Direct or indirect economic contribution to the
acquisition of the property;
b. Contribution to the stability and harmony of the
marital and family relationships as measured by
quality, quantity of time spent on family duties
and duration of the marriage; and
c. Contribution to the education, training or other
accomplishment bearing on the earning power of
the spouse accumulating the assets.
2. The degree to which each spouse has expended,
withdrawn or otherwise disposed of marital assets and
any prior distribution of such assets by agreement,
decree or otherwise.
3. The market value and the emotional value of the assets
subject to distribution.
4. The value of assets not ordinarily, absent equitable
factors to the contrary, subject to such distribution, such
as property brought to the marriage by the parties and
property acquired by inheritance or inter vivos gift by or
to an individual spouse;
5. Tax and other economic consequences, and contractual
or legal consequences to third parties, of the proposed
distribution;
6. The extent to which property division may, with equity
to both parties, be utilized to eliminate periodic
payments and other potential sources of future friction
between the parties;
33
7. The needs of the parties for financial security with due
regard to the combination of assets, income and earning
capacity; and,
8. Any other factor which in equity should be considered.
Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994).
¶74. The chancellor determined that while Ray paid most of the consideration for the
assets, Julie nevertheless made substantial contributions to the family and Ray's success.
Each party was determined to have expensive tastes and expended the marital assets. There
was no emotional ties to the marital property, and the value is discussed in a subsequent
paragraph. The chancellor enforced the prenuptial agreement, which provided for each party
to keep property brought to the marriage as well as separate inheritance and gifts. The
chancellor acknowledged that Ray had an estate that was substantially larger than Julie's
estate, and the chancellor considered this factor to be important in the analysis.5 There were
no unique tax or economic consequences. Further, the chancellor stated that he previously
addressed the issue of assets and considered that Julie receives some dividends and had
substantial earning capacity considering her education and skills. The chancellor also
considered finality and stated that Julie was not entitled to alimony, but that disparity of the
estates was considered and the property division would eliminate the need for periodic
payments with the exception of child support payments.
¶75. The chancellor divided the marital property. The Mabuses had three pieces of real
property, a pension account, some marital debt and personal property considered by the
5
The chancellor stated that Ray's estate was valued at $8 to 9 million and Julie's estate was valued at $500,000
to $600,000.
34
chancellor. The marital home was valued at $250,000 with no debt associated with it. A
lot in Kiva Dunes, Alabama, was valued at $350,000 with no debt associated with it.
Sixteen acres of land in Ridgeland was valued at $450,000 with no debt associated with it.
However, there was a marital debt of $255,000 and Ray’s pension. The chancellor divided
the property as follows: Julie was to receive $125,000 in exchange for a quitclaim deed to
the marital home; Julie was to receive the Kiva Dunes property valued at $350,000; Ray was
to receive the Ridgeland property valued at $450,000 and assume the $255,000 in marital
debt; and Julie was to receive one half of Ray’s pension6 in the amount of $9,126.66. The
parties split the personal property. The chancellor also ruled on the child support issue that
Ray pay Julie the tax free sum of $4,100 per month in child support for the months that she
had physical custody of the children, $1,200 per month for the months Ray had physical
custody of the children, and Ray was to pay the children's tuition for private school and
medical insurance.
¶76. Julie argues that the chancellor should have considered marital and non-marital
assets; alimony, especially in light of Julie’s sacrifice of 13 years of life for Ray’s political
career; and the disparity of the estates. She argues that she aided in the management of his
father's estate, participated in his political career for 13 years without compensation, and
helped to keep his books on investments and contributed to the appreciation of Ray's assets.
6
Ray had approximately 14.25 years service towards his pension. Ray and Julie were married for 5 of the 14.25
years service in which Ray receive the pension benefits. The chancellor determined that 5 years equaled approximately
35% of the total pension balance of $52,023. Therefore, the chancellor determined that Julie received half of $18,253
for a total of $9,126.66.
35
Julie contends that she relieved Ray of many details concerning reporting, record keeping
and decision making on the utilization of the assets.
¶77. Ray argues that Julie never lived a life of sacrifice during their marriage. He cites to
the testimony that there always was domestic help during the marriage, the children always
had a nanny, he paid for the expenses, and he did not prevent her from working. Ray
contends he had received his inheritance prior to the marriage. Furthermore, Ray argues that
Julie received approximately 60% of the marital assets ($484,126.66), even though she made
no financial contribution to the acquisition of the property, whereas Ray received
approximately 40% of the assets ($329,126.66). In addition, he claims there was no
transmutation of separate property into marital property and cites the chancellor's finding
that the separate accounts were "meticulously maintained." As for any claim of increase in
valuation of non-marital property during the marriage, Ray contends that there was no
evidence presented by Julie. Without conceding his position, Ray argues that any increase
in value to the gifted and inherited assets, was passive and not a result of Julie's
contributions. Ray testified that Lanny Autry, a professional forester employed by Ray,
managed and made the decisions concerning the timber property. Neither Ray nor Julie had
expertise in timber management and any increase was not due to efforts by Julie or Ray.
Likewise, Ray argues that any of his brokerage accounts were placed in a mutual fund
selected by a broker.
¶78. The chancellor determined that the prenuptial agreement was valid and enforceable,
as such, the agreed division of the property in the agreement is controlling. Coupled with the
36
agreement is the testimony of the maintenance of separate assets during the marriage. The
chancellor also determined that the property was maintained in separate accounts for their
premarital property as well as for gifts and inheritances received during the marriage. The
chancellor acknowledged that Ray used income from his inherited property to pay household
bills which became marital property. However, the chancellor noted that 'this did not
convert the remainder of Ray's separate property to marital property." The chancellor further
stated:
Our Mississippi Supreme Court has ruled similarly in Johnson v. Johnson,
650 So.2d 1281 (Miss. 1994), stating that funds used for the benefit of the
family became marital property, but the funds and assets which were not so
used remained separate. An entire inheritance does not become marital
property merely because a portion of it was used for the benefit of the family.
Each party's separate property is sufficiently identifiable and shall remain non-
marital property not subject to equitable distribution. See A&L, Inc. v.
Grantham, 747 So.2d 832 (Miss. 1999).
Contrary to Julie's contention, the chancellor addressed the issues of Julie's contribution to
the marriage and disparity of the separate estates.7 The chancellor in his Ferguson analysis
stated that "Julie's contributions will not be overlooked by this Court." The opinion further
stated that Julie " helped to keep the financial records for the family" and "made substantial
contributions to the family and to Ray's success." As to the disparity in the estates, the
chancellor specifically stated that "clearly, Julie's separate estate of gifts, inheritance, and
separate property is minor in comparison to Ray's separate estate. This Court considers this
factor to be important in the case at hand." The chancellor also considered the disparity of
7
Alimony is addressed in the preceding issue.
37
the estates and stated that the court would make a property division which would eliminate
the need for periodic payment, excluding child support payments.
¶79. Julie argues that she contributed to the appreciation in value of Ray's non-marital
assets. She testified that she worked on the estate of Ray's father. She could not remember
if Ray had paid her for the work. Ray testified that he paid Julie $3,000 for her work on the
estate. During the course of the marriage, Julie kept meticulous records of the expenses.
However, there is no evidence that Julie handled the timber or brokerage assets other than
to provided monthly accountings of all expenses and records. The chancellor had already
noted Julie's contribution to the family in keeping track of the records. However, this does
not amount to active participation in the increase of value of non-marital assets.
Accordingly, this issue is without merit.
CONCLUSION
¶80. For these reasons, the judgment of the Hinds County Chancery Court, First Judicial
District, is affirmed.
¶81. AFFIRMED.
PITTMAN, C.J., McRAE AND SMITH, P.JJ., DIAZ, CARLSON AND
GRAVES, JJ., CONCUR. COBB, J., CONCURS IN RESULT ONLY. WALLER, J.,
DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
38