author: IRVING, J.,

text:
    Peirce McINTOSH, Appellant v. Gay Reed McINTOSH, Appellee. Gay Reed McIntosh, Appellant v. Peirce McIntosh, Appellee.
    Nos. 2006-CA-02136-COA, 2006-CA-01762-COA.
    Court of Appeals of Mississippi.
    March 25, 2008.

      John H. Daniels, Greenville, attorney for appellant.
    Edward D. Lamar and Frank J. Dan-tone, Greenville, attorneys for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises from a judgment of divorce entered by the Washington County Chancery Court in favor of Peirce McIntosh, which was stayed upon motion by Gay Reed McIntosh. Gay appealed initially, and her appeal was assigned cause number 2006-CA-01762. Shortly thereafter, Peirce appealed the chancellor’s decision to stay the final judgment of divorce and to reinstate the order of temporary support. Peirce’s appeal was assigned cause number 2006-CA-02136 and has been consolidated with Gay’s.

¶ 2. Gay asserts (1) that the trial court erred in granting Peirce a divorce on the ground of cruel and inhuman treatment, (2) that the trial court erred in dismissing her complaint for separate maintenance, (3) that the trial court, in dividing the couple’s assets, erred in failing to consider Peirce’s Public Employees’ Retirement System (PERS) account and Peirce’s contributions to a deferred compensation plan, (4) that the trial court erred in denying Gay periodic, lump sum, or rehabilitative alimony, and (5) that the trial court erred in awarding Gay only half of her attorney’s fees and expenses.

¶ 3. Peirce asserts that the trial court erroneously granted the stay and that the court did not have jurisdiction to reinstate its temporary order.

FACTS

¶ 4. Gay and Peirce were married on June 10, 1978. One child, Jae, was born on October 5, 1989. On April 22, 2005, after almost twenty-seven years of marriage, Peirce moved out of the marital home. On September 9, 2005, Gay filed a complaint for separate maintenance. On the same day, she also filed a motion for separate maintenance pendente lite and a motion for child support pendente lite. Peirce, in turn, filed a petition for divorce and an answer to Gay’s complaint. On December 13, 2005, a hearing was held on Gay’s motion for separate maintenance pendente lite and child support pendente lite.

¶ 5. At the hearing, Gay testified that Peirce had moved out of the marital home; however, she did not elaborate on Peirce’s motive for doing so. Later, the chancellor asked her whether she had caused Peirce to leave the marital home. Gay responded that she was not aware of anything that she had done that caused Peirce to leave. Gay did not mention that she believed Peirce was having an affair.

¶ 6. Gay testified that she filed a complaint for separate maintenance, rather than a complaint for divorce, because she wished to remain married and that the separation had taken a financial toll on her. Gay also testified that Peirce had been responsible for paying the household bills since 1988 because she had problems managing the couple’s finances. Gay admitted to writing checks that were not honored due to insufficient funds. Gay recalled that “he’s been doing it pretty much ever since [1988] and he changed everything to him at that point.”

¶ 7. Upon further examination by the court, Gay testified that she had not filed an income tax return since 2002. On re-redirect examination, Gay testified that, to her knowledge, the same was true for Peirce. On recross-examination, she testified that if Peirce had made payments to the Internal Revenue Service (IRS) the payments would have been for unpaid taxes prior to 2002.

¶ 8. Peirce testified as an adverse witness. He was adamant that he did not leave Gay for Gloria Sample, the curriculum coordinator at the school where he served as principal. He also testified that he had not engaged in sexual relations with Gloria. Peirce stated that he could no longer trust Gay because she had not been honest with him and that she had been financially irresponsible for years. Peirce testified that Gay would tell him that she had paid certain bills when she had not done so and that she would write checks when there was not enough money to cover them.

¶ 9. Peirce stated that he and Gay began to have problems with them income taxes as long ago as 1985. He recalled that when the problems arose Gay was responsible for filing their income taxes but had neglected to do so. Peirce stated that he did not know that the taxes had not been paid because Gay did not give him notices sent by the IRS. Consequently, he did not learn that the taxes had not been paid until the IRS began garnishing his wages. Peirce testified that he hired a certified public accountant to handle the problem; however, he gave Gay the responsibility again about a year later. Thereafter, Gay failed to file income taxes again.

¶ 10. On direct examination, Peirce testified that the primary reason that he left the marital home was because he did not trust Gay anymore. Peirce stated that he and Gay had had problems for years, beginning about ten years into their marriage when he found out that Gay had given birth to a child before they were married. However, Peirce stated that Gay’s mishandling of the marital funds was the primary reason that he left the marital home.

¶ 11. Upon examination by the court, Peirce stated that living with Gay had become very difficult because Gay would fail to pay the mortgage and other bills after he had given her the money to do so, and she had also stolen checks from his checkbook. As a result, he would not leave his checkbook where Gay would have access to it, and he began having his mail delivered to him at work, rather than at home.

¶ 12. On January 16, 2006, the chancellor entered an order for temporary support, overruling Gay’s motion for separate maintenance. The chancellor found that although Gay proved that she did not cause Peirce to leave the marital home, she faded to prove that Peirce had willfully failed to support her and Jae during their separation. The court granted Gay’s request for child support and ordered Peirce to pay $500 per month, along with certain additional amounts shown on his 8.05 statement that, according to Peirce, he was already paying for Gay’s and Jae’s support.

¶ 13. On August 8, 2006, a hearing was held on Gay’s motion for separate maintenance. Peirce was called as an adverse witness and testified as to what prompted him to leave the marital residence on April 22, 2005. He stated that he and Gay had an argument after she claimed to have heard a message that was left on his cellular telephone by Gloria. Peirce stated that the argument began when Gay asked him for money but that it escalated when she accused him of having an affair with Gloria.

¶ 14. During the hearing, Peirce related an incident that occurred in June 2005 when he and Gay spent the night at his mother’s home in Armory, Mississippi, before traveling to a conference on the Mississippi Gulf Coast. Peirce denied having sexual relations with Gay during this time; however, Gay recalled that they did. According to Peirce, toward the end of the trip, Gay began to suspect that he was having an affair, which he denied.

¶ 15. Peirce also testified about an incident that occurred after he and Gay had separated. During that time, he was living in a trailer located on a dirt road in Indianola, Mississippi. Peirce testified that on November 22, 2005, he had fallen into a “diabetes sleep” after eating pizza and drinking beer. He was awakened by someone knocking on the trailer, and he called the police to investigate. Peirce stated that when Deputy Doug Grantham arrived, he and the deputy walked around the trailer and the surrounding property but saw no one. Shortly thereafter, Deputy Grantham saw a car parked down the road and went to investigate. Peirce then went to a nearby store to buy water. According to Peirce, when he returned, Deputy Grantham was talking to Gay.

¶ 16. On direct, Peirce testified that Gay often accused him of committing adultery with a maid at the school, assistant teachers, and a custodian. Peirce also testified that between 1991 and 2005 Gay would misappropriate their funds approximately every two months. However, upon examination by the court, Peirce testified that Gay stopped stealing his checks around 1995.

¶ 17. Gay’s version of what occurred the night that Peirce left the marital home differed from Peirce’s version. Gay admitted that she listened to a voicemail message that was left on Peirce’s cellular telephone by Gloria, but she stated that she did not mention to Peirce that she had heard the message. Gay further testified that she asked Peirce for some money. He responded by telling her that he was leaving because he was “tired of this.” Gay stated that as Peirce packed his things she unpacked them. Gay testified that she and Peirce talked for a while, and she tried to convince him that they could work out their problems. During the conversation, Peirce began to feel ill. Gay recalled that “it was like he was having a heart attack or something, you know, because he started sweating and then he got tired.” She stated that Peirce was not physically able to leave until around 3:00 а.m., at which time, Peirce went to his car and gave Gay the money she had requested. As he continued to pack his things, Gay asked him whether he was leaving her for Gloria. Gay stated that Peirce told her that he was leaving because he was tired. Gay testified that it was at that point that she told him that she had heard Gloria’s message. Gay stated that as Peirce packed his car and attempted to leave, she sat in the passenger seat of Peirce’s car. Gay further testified that Peirce tried to push her out of the car and that she hit him. They both started pushing each other and they eventually fell out of the car onto the ground. Peirce left shortly thereafter.

¶ 18. Gay testified that she remained ready and willing to take her husband back and that her willingness to have sexual intercourse during their separation proved this.

¶ 19. On cross-examination, Gay admitted that she had not always been truthful during the course of their marriage. She testified that “in the past” she had (1) taken checks from Peirce’s checkbook, (2) taken savings bonds that Peirce had purchased prior to the marriage and forged his signature, (3) failed to pay the rent on an apartment after Peirce had given her the money to do so, and later lied about having made the payments, and (4) purchased items using a credit card only to return the items for cash. Although Gay admitted doing the things mentioned above, she insisted that she always used the money to meet the household needs.

¶ 20. An issue of contention was also Gay’s refusal to attend church or social functions associated with Peirce’s duties as a high school principal. Gay testified that, prior to September 2005, it had been approximately ten years since she had attended church with Peirce. We note that at the December 2005 hearing, Gay testified that she had resumed attending church with Peirce in April 2005 but that she had stopped again in either October or November 2005. According to Gay, she stopped attending church with Peirce and Jae because she did not want to impede on the time that Jae spent with his father. Gay also testified that she did not attend school-related functions with Peirce because she often did not have the appropriate attire.

¶21. The chancellor entered a bench opinion on October 2, 2006, in which she granted Peirce a divorce on the ground of cruel and inhuman treatment. In her judgment, the chancellor divided the parties’ debts and assets, awarded custody of the couple’s minor child to Gay, ordered Peirce to pay $1,000 per month in child support, and awarded Gay one half of her reasonable attorney’s fees and one half of her expenses. The chancellor also dismissed Gay’s motion for separate maintenance 'pendente lite and child support pendente lite and declined to award Gay alimony.

¶ 22. On October 11, 2006, Gay filed a motion for stay of enforcement of the judgment of divorce and a notice of appeal. On November 1, 2006, the court, sua sponte, modified its final judgment of divorce, asserting that it failed to “consider the nature of the retirement accounts in making its division of the parties’ investments and savings and checking accounts.” Peirce filed a motion objecting to the modification, and the court later voided the November 1 modification. On December 1, 2006, the court entered an order staying the final judgment of divorce until issuance of the Mississippi Supreme Court mandate.

¶ 23. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Habitual Cruel and Inhuman Treatment

¶ 24. “This Court will not reverse a chancellor’s decree of divorce unless it is manifestly wrong as to law or fact.” Fisher v. Fisher, 771 So.2d 364, 367(¶ 8) (Miss.2000). Gay argues that the chancellor erred in granting Peirce a divorce on the ground of habitual cruel and inhuman treatment and relies on several cases to show that Peirce is not entitled to a divorce on the ground of cruel and inhuman treatment based on her conduct.

¶ 25. First, she cites to Marble v. Marble, 457 So.2d 1342 (Miss.1984). In Marble, John Marble appealed the chancellor’s judgment denying his request for a divorce on the ground of cruel and inhuman treatment and awarding separate maintenance to Rebecca Marble. Id. at 1342. The Mississippi Supreme Court reversed the chancellor’s grant of separate maintenance; however, it concluded that “[w]hile John Marble appears genuinely unhappy in this marriage, in our opinion he has not proved this dissatisfaction is caused by any cruel and inhuman treatment on Rebecca’s part.” Id. at 1343. The Marble court found no evidence of conduct that could be said to have constituted cruel and inhuman treatment. Id. It appears that the only evidence John presented to support his allegations of cruel and inhuman treatment on Rebecca’s part was that they did not share the same religious views and that “she [was] unwilling or unable to be as fastidious a housekeeper and as demonstrative as he would [have] like[d].” Id. Clearly, Gay’s conduct, as evidenced in the recitation of the facts, is more egregious. Thus, we find Gay’s reliance on Marble misplaced.

¶ 26. Second, Gay cites Kergosien v. Kergosien, 471 So.2d 1206, 1210 (Miss.1985) where the Mississippi Supreme Court reversed a chancellor’s grant of a divorce to Ames Kergosien from Rosalie Kergosien on the ground of cruel and inhuman treatment. We note that Rosalie’s conduct as it related to her mismanagement of family funds is similar to Gay’s conduct. The court noted:

The record reflects that Rosalie Kergo-sien’s manner of handling money caused Mr. Kergosien hardship and embarrassment. She would not balance the checkbook or keep the statements, and she constantly caused the account to be overdrawn. Her failure to pay utility bills and to pay attention to disconnect notices caused Mr. Kergosien to get all the bills sent to him at his office.

Id. at 1208. Nevertheless, the court held that Ames was not entitled to a cruel and inhuman treatment divorce because, although Rosalie’s conduct was atrocious, it did not have an adverse impact on Ames’s health. Id. at 1210. The court concluded that “[n]owhere in the testimony is there anything indicating that the appellee’s health was even slightly impaired, as in Wires [v. Wires, 297 So.2d 900 (Miss.1974)].” Id. In Kergosien, the court noted that in Wires it upheld a chancellor’s grant of divorce on the ground of cruel and inhuman treatment “where the proof showed that the wife was jealous and accused the husband of philandering with his secretary; that her bickering caused their son to leave home; and that she made anonymous calls to his secretary,” which the husband complained caused him to “have a knot in his stomach.” Id. The Wires court held that in order to uphold a cruel and inhuman treatment divorce:

“The conduct of the offending spouse must be so unkind as to be cruel, that is, so unreasonably harsh and severe as to be inhumane, so lacking in human qualities, so unfeeling or brutal as to endanger, or put one in reasonable apprehension of danger to life, limb, or health. And finally, such conduct must be habitual, that is, done so often, or continued so long, that its recurrence may be reasonably expected whenever occasion or opportunity presents itself.” Bunkley and Morse, Amis on Divorce and Separation in Mississippi § 3.14(3), at 114 (1957); cited in Burnett v. Burnett, 271 So.2d 90, 92 (Miss.1972).

Wires, 297 So.2d at 902.

¶ 27. Unlike in Kergosien, there is considerable evidence that the marriage had a negative impact on Peirce’s health. Gwen Milton, Peirce’s former office manager; Adrian Haynes, Peirce’s sister; and Peirce all testified about how the marriage had negatively impacted Peirce’s health. Milton testified as follows:

Q. The last two years since January, 2005, have you seen any changes in Mr. McIntosh’s personality—
A. Yes.
Q. Describe, if you will, what that is.
A. His health is not what it used to be. He seems more depressed, more of something else on his mind. He’s just not as strong as he used to be.
Q. This is the school year '06/'07, and I know that’s the way you measure things given the fact you’ve been 18 years at [the high school]. When did you first notice that?
A. Say, at the beginning of the school '05/'06.
Q. And when would that start?
A. In August of '05.
Q. Tell me what you saw, as specific as you can be.
A. His health seems to be deteriorating some. He’s having a lot of problems with his blood pressure and his diabetes.
Q. There are things that he told you about?
A. These are things that I’ve seen.

¶ 28. Additionally, Haynes provided the following testimony:

Q. During the last ten years, bringing yourself forward to this time, what changes, if any, have you seen in your brother?
A. Well ... you say ten years?
Q. Yes, mam [sic].
A. Actually, there’s been a lot of changes I’m going to say probably in the last two years that I’ve seen.
Q. All right. Give yourself the best time period that you can to give the court your testimony.
A. Okay. Now, I don’t know exactly when he — he has diabetes, so I don’t know exactly when he got that. I cannot tell you exactly. But I know it’s a lot worse now than what it was and I do know, if you know him and look at him, you can tell that he’s sick. Even his color has entirely changed. I talk to him almost daily now, you know, and that’s been the last, a little over a year, and it’s because of his depression and everything.
⅜ ⅜ ⅜ ⅜
A. Okay. As I said, I notice a depression in him. He didn’t tell me this, but I noticed this and then, when he gets depressed, and I know that’s the reason he calls me. He- may call me at 1:00 in the morning and just to talk or just to tell me something, you know, that has happened. I may say, hey, don’t call me at 1:00 in the morning. But I tease him about that. Like I say, his color. His color used to be a lot lighter and, if he sat there very long, he’s going to fall asleep. I can’t tell you if it’s because of the diabetes, but that’s just what I believe is in his depression stage.
Q. Now, take the court back to the first time you noticed this depressive stage that you talk about and how did it manifest itself; that is, how did it exhibit itself to you?
A. Oh, wow, let’s see.
Q. I know that’s two questions and I can break them down if you wish.
A. Okay.
Q. First off, when did you first notice?
A. I’m going to say probably a year ago or maybe a little bit over a year, but I’m going to say about the first of '05, maybe. Around the first part of '05—
Q. All right.
A. —is when it really started getting real prevalent is around that time.
Q. And how did it manifest itself? How did it exhibit itself to you?
A. I guess that just by what I just said. It started manifesting after, I guess, the first of the year and it’s through the frequent phone calls and I guess — am I answering what you need? The frequent phone calls, the depressive stage, and divorce. He was talking about that to me. He began to talk about that to me. Actually, I noticed it before that, before I knew about it. But I never got into his personal business.

¶29. Finally, Peirce testified that he had been experiencing health problems as a result of his relationship with Gay:

Q. What is the condition of your health, Mr. McIntosh?
A. Without being facetious, you know, my health is not very good, but I thought I was okay. But people been talking about me pretty bad lately, so I’m feeling a little sick. I’m a diabetic. I have pneumonia right now. It’s a small case. Of course, my blood pressure is high and my diabetes runs real high. So, that’s where I’m at.
Q. How has [sic] the issues of your separation impacted upon, based on what you know, your diabetes?
A. You know, Your Honor, I’d like to think it hasn’t impacted at all, but like I said, they’ve been telling me it’s been impacting me. But I like to think that it hasn’t impacted it at all. The stress supposed [sic] to have such a ... I have a little knowledge, but I’d like to have more knowledge of pretty much what’s all going on. My sister was right, my color have [sic] changed. I know I’m getting real dark in this area here. I know my eyes are real hazy a lot. So, I don’t know. I just know that I want this over so that I can get on. I know that much. I’ve made a move. I’m going in another direction. I just want to get my son out of high school and in college and move on.

¶ 30. Based on the testimony quoted above, we find that the proof in our case is sufficient to support a divorce on the ground of habitual cruel and inhuman treatment. It is clear that Peirce’s mental and physical health has deteriorated as a result of Gay’s antics, unlike in Kergosien where the court found no such evidence.

¶ 31. Third, Gay cites Gallaspy v. Gallaspy, 459 So.2d 283 (Miss.1984). In Gal-laspy, the chancellor granted Audra Fox Gallaspy a divorce on the ground of habitual cruel and inhuman treatment. Id. at 284. The Mississippi Supreme Court reversed, finding that the facts did not rise to the level of cruel and inhuman treatment. Id. at 285. Audra offered the following reasons as the basis for her contention that she should be granted a habitual cruel and inhuman treatment divorce:

appellant’s criticism of her being overweight; that his first priority was his work, where he spent long hours when he could have been at home; that his second priority was his mother and his father’s estate; that he was critical of appellee’s family; and that he did not praise or support the children enough and his discipline was too severe for them.

Id.

¶ 32. In reversing the chancellor, the Gallaspy court stated, “We recognize that courts have become liberal in the application of proof on the habitual cruel and inhuman treatment ground. However, by no means have they made a farce and mockery of the requirement to prove the ground.” Id.

¶ 33. We fail to see how Gallaspy lends Gay any support, as we see no comparison between the acts alleged to constitute cruel and inhuman treatment in Gallaspy and the acts that Gay admitted to committing. As previously stated, Gay admitted that she had stolen checks from Peirce’s checkbook, cashed in Peirce’s savings bonds, failed to use money to pay the rent, and returned items to stores for cash after using a credit card to make the purchases. Based on these facts, we cannot say that the chancellor was manifestly wrong as to law or fact.

¶ 34. Fourth, Gay cites this Court’s opinion in Crenshaw v. Crenshaw, 767 So.2d 272, 274(¶1) (Miss.Ct.App.2000), wherein we affirmed a chancellor’s finding that the evidence did not rise to the level of habitual cruel and inhuman treatment. In Crenshaw, Thomas Crenshaw sought a habitual cruel and inhuman treatment divorce from his wife, Cynthia Crenshaw, based on his assertion that “when he was commuting to a job in Memphis and going to school, he would sometimes come home to find no food prepared and his clothes not laundered and ironed for the following day.” Id. at 274(¶ 4). Thomas also asserted that “his wife sometimes would be unavailable for marital relations for as much as a month at a time.” Id. at 274(¶ 5).

¶ 35. We note at the outset that much of the evidence in Crenshaw was disputed, and the chancellor found in favor of Cynthia, ruling that her actions did not constitute habitual cruel and inhuman treatment. However, in our case, the facts related to Gay’s habitual cruel and inhuman treatment of Peirce were not in dispute. The chancellor found that Gay’s conduct was sufficient to warrant Peirce a divorce on the ground of habitual cruel and inhuman treatment. If we were deciding the case, we may have decided it differently; however, we must give deference to the chancellor’s finding, as she heard the evidence and determined that Gay’s actions rose to the level of cruel and inhuman treatment. See Owen v. Owen, 928 So.2d 156, 168(1135) (Miss.2006).

¶ 36. In Crenshaw, we noted that the “conduct must either (1) endanger life, limb, or health, or create a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) be so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying any basis for its continuance.” Crenshaw, 767 So.2d at 275(¶ 11) (emphasis added) (citing Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993)).

¶37. Although the chancellor did not specify which type of conduct supported her finding, obviously Gay’s conduct would fall within the second category relating to conduct that is “so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying any basis for its continuance.” Crenshaw, 767 So.2d at 275(¶ 11). Although not mentioned in the chancellor’s judgment, we find it particularly disturbing that Gay was involved in a shoving match with Peirce shortly after he had been so ill that she “thought he was having a heart attack.”

¶ 38. Moreover, we point out the impropriety of Gay’s act of forging Peirce’s name to the savings bonds, cashing them without notifying him before doing so, and pretending to help him look for them afterward. Such acts certainly qualify as conduct that could have rendered the marriage revolting to Peirce and could have made it impossible for him to discharge the duties of marriage.

2. Separate Maintenance

¶39. “Separate maintenance is a court-created equitable relief based upon the marriage relationship and is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her until such time as they may be reconciled to each other.” Perkins v. Perkins, 787 So.2d 1256, 1262(¶15) (Miss.2001) (citing Daigle, 626 So.2d at 144). “[T]he allowance of separate maintenance and the amount to be awarded are for the most part matters -within the discretion of the chancellor.” Hants v. Honts, 690 So.2d 1151, 1153 (Miss.1997). We will not reverse unless the decision was against the overwhelming weight of the evidence. Id. (citing Tanner v. Tanner, 481 So.2d 1063, 1064 (Miss.1985)).

¶ 40. The Mississippi Supreme Court has held that “[t]he power to grant separate maintenance to a wife was based on (a) separation without fault on the-wife’s part, and (b) willful abandonment of her by the husband with refusal to support her. These jurisdictional requirements for a separate maintenance decree have continued up to the present time.” Robinson v. Robinson, 554 So.2d 300, 303 (Miss.1989) (emphasis added) (quoting Thompson v. Thompson, 527 So.2d 617, 621 (Miss.1988)). “[A] wife is not required to be totally blameless to allow an award of separate maintenance, ‘but her (mis)conduct must not have materially contributed to the separation.’ ” Daigle, 626 So.2d at 145 (quoting Lynch v. Lynch, 616 So.2d 294, 296 (Miss.1993)).

¶ 41. Although Gay contends that she is entitled to separate maintenance, we agree with the chancellor that she failed to satisfy both prongs of the test, as she failed to prove that Peirce refused to support her. Gay testified that during their separation Peirce continued to pay the majority of the household bills. Likewise, Peirce testified that he was “willing to pay anything.” It is well established that the chancellor is afforded great deference with regard to matters which are the subject of appeal. Tanner, 481 So.2d at 1064. We find no merit to this assignment of error.

3.Division of Marital Estate

¶ 42. In this assignment of error, Gay asserts that the chancellor erred in failing to consider Peirce’s PERS account, deferred compensation plan, and non-retirement accounts when dividing the marital estate. In Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994), the Mississippi Supreme Court announced factors that chancellors should consider when equitably dividing a marital estate. The court held:

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;
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.

Id.

¶ 48. In Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994), the Mississippi Supreme Court outlined the procedure for applying the Ferguson factors. The Johnson court held that “division of marital assets is now governed under the law as stated in Hemsley [v. Hemsley, 639 So.2d 909, 914-15 (Miss.1994) ] and Ferguson.” Id.

[T]he character of the parties’ assets, i.e., marital or nonmarital, must be determined pursuant to Hemsley. The marital property is then equitably divided, employing the Ferguson factors as guidelines, in light of each parties’ non-marital property. Ferguson, 639 So.2d at 928. If there are sufficient marital assets which, when equitably divided and considered with each spouse’s nonmari-tal assets, will adequately provide for both parties, no more need be done. If the situation is such that an equitable division of marital property, considered with each party’s nonmarital assets, leaves a deficit for one party, then alimony based on the value of nonmarital assets should be considered.

Id.

¶ 44. In the present case, the chancellor made specific findings in the record to show that she considered Ferguson and Hemsley before dividing the marital estate. Although the chancellor failed to provide a figure for the total value of the marital estate, we necessarily conclude from the figures given in her judgment that the marital estate totaled $275,027.95, of which Gay received $137,269.64 and Peirce received $137,758.31. The chancellor concluded that parties’ taxes and liabilities totaled $169,961.59, of which $84,562.50 was assigned to Peirce and $85,399.09 to Gay.

¶ 45. Gay strenuously argues that the chancellor “left out and thus failed to consider” Peirce’s PERS account. Gay acknowledges that Peirce listed the PERS account on his Rule 8.05 form which was received into evidence. Nevertheless, she contends that Peirce failed to list the PERS account as an asset on the 8.05 form. We note that Gay’s counsel did not bring this oversight to the chancellor’s attention either before the judgment was entered, or in any posttrial motion, even though counsel was aware of its existence. Moreover, Peirce was questioned extensively on cross-examination about deductions listed on his 8.05 form during the August 2006 hearing. Gay’s attorney brought to the chancellor’s attention that Peirce had taken a job as the principal of another high school and earned a higher salary:

Q. And to get this 8.05 accurate, we would apply those new deductions to your new income.
A. What I did was — what I tried to do — was this right here. I can tell you what I tried to do. Before I got this, number 11, when I got that, I was trying to figure, tried to work it out myself about what was what there, federal and state tax. I just received this this weekend.
Q. I understand. I’m not questioning — all we’re doing is trying to re-fleet the 8.05 to reflect what it is today. And so, where it says state income tax, instead of one forty-four, it would be two sixty-fix. [sic] Is that right?
A. Right.
Q. And federal income tax, instead of three sixty, it would be eight thirty-five oh [sic] three?
A. Right.
⅜ ⅜ ⅜: ⅜
Q. And the mandatory retirement, instead of $477.82, is $536.99. Is that right?
A. That’s correct.
Q. And then this retirement, you have $1100.00 in exhibit number 9, that is not mandatory? That is voluntary on your part, as I understand it.
A. Yes, that’s voluntary on my part.

¶ 46. As illustrated in the above colloquy, in addition to questioning Peirce about his PERS account, Gay’s counsel questioned Peirce about monthly payments he had made to a voluntary retirement account. It was the responsibility of Gay’s attorney to inform the chancellor that the chancellor had failed to consider certain accounts at the time she divided the marital estate. This should have been done by filing a motion to amend the final judgment of divorce, prior to bringing this issue on appeal. The attorney failed to do so. Therefore, we find that this issue is procedurally barred because it was not first raised at the trial level. Brown v. Thompson, 927 So.2d 733, 738(¶ 16) (Miss.2006) (citing Scott v. State, 878 So.2d 933, 963(¶ 81) (Miss.2004)). This issue is without merit.

A Alimony

¶ 47. Gay contends that the chancellor erred in declining to award her periodic, lump sum, or rehabilitative alimony. Apparently, Gay contends that she is entitled to alimony because the chancellor divided the marital estate without being fully abreast of all of the relevant information, as the chancellor failed to consider Peirce’s PERS account, deferred compensation plan, and retirement and non-retirement accounts. “Alimony awards are within the discretion of the chancellor; this Court will not reverse an award on appeal absent manifest error or abuse of discretion.” Watson v. Watson, 724 So.2d 350, 354(¶ 18) (Miss.1998) (citing McEachem v. McEachem, 605 So.2d 809, 815 (Miss.1992)). When making a determination on whether to award alimony, chancellors are required to consider the following factors announced in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993) (citing Hammonds v. Hammonds, 597 So.2d 653, 655 (Miss.1992)):

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

¶ 48. Additionally, a year after deciding Armstrong, the Mississippi Supreme Court enumerated factors in Hemsley which should be considered when chancellors are attempting to reach a reasonable alimony award:

(1) the health of the husband and his earning capacity;
(2) the health of the wife and her earning capacity;
(3) the entire sources of income of both parties;
(4) the reasonable needs of the wife;
(5) the reasonable needs of the child;
(6) the necessary living expenses of the husband;
(7) the estimated amount of income taxes the respective parties must pay on their incomes;
(8) the fact that the wife has the free use of the home, furnishings and automobile, and
(9) such other facts and circumstances bearing on the subject that might be shown by the evidence.

Hemsley, 639 So.2d at 912-13 (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So.2d 147, 153 (1955)).

¶ 49. We find that the chancellor’s refusal to award alimony was not against the weight of the evidence. However, in the interest of being thorough, we will briefly summarize the law as it relates to periodic, lump sum, and rehabilitative alimony.

a. Periodic Alimony

¶ 50. “The award of periodic alimony arises from the duty of the husband to support his wife.” Watson, 724 So.2d at 354(¶ 17) (citing McDonald v. McDonald, 683 So.2d 929, 931 (Miss.1996)). “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. (quoting Brennan v. Brennan, 638 So.2d 1320, 1324 (Miss.1994)). “In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Id. at 354-55 (quoting Armstrong, 618 So.2d at 1280). “Alimony is considered only after the marital property has been equitably divided and the chancellor determines one spouse has suffered a deficit.” Lauro v. Lauro, 847 So.2d 843, 848(¶ 13) (Miss.2003). In light of the fact that the chancellor essentially split the marital estate equally, we cannot find that the chancellor abused her discretion in denying an award of alimony to Gay.

b. Lump Sum Alimony

¶ 51. When reviewing a chancellor’s decision to deny lump sum alimony we employ the factors considered by the Mississippi Supreme Court in Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988):

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.
2) A long marriage.
3) Where recipient spouse has no separate income or the separate estate is meager by comparison.
4) Without the lump sum award the receiving spouse would lack any financial security.

(internal citations omitted). Additionally, the Cheatham court concluded that the single most important factor is the disparity of the separate estates. Id. We note that the disparity between Gay and Peirce’s estate is less than five hundred dollars. Furthermore, we acknowledge that Peirce earns significantly more than Gay; however, we note that the chancellor took this into consideration and found that: “Both Peirce and Gay’s marital assets, after equitable division and in light of their income, will adequately provide for both parties. In addition, although Peirce earns three times more money than Gay, the equitable division of the marital property resulted in no appreciable deficit for either party.” This issue lacks merit.

c. Rehabilitative Alimony

¶ 52. In Lauro, 847 So.2d at 849(¶ 15), the Mississippi Supreme Court concluded that: “Rehabilitative alimony is awarded to parties who have put their career on hold while taking care of the marital home. Rehabilitative alimony allows the party to get back into the working world in order to become self-sufficient. Therefore, rehabilitative alimony is not considered during equitable distribution.”

¶ 53. Clearly, Gay’s contention that she is entitled to rehabilitative alimony is flawed, as the record is devoid of any evidence indicating that she “put her career on hold” to take care of the marital home. At the time of both of the hearings, Gay was employed full-time as a school teacher, and there is nothing in the record to suggest that Gay sacrificed her career for the marriage. Thus, we give deference to the chancellor’s decision to deny Gay rehabilitative alimony. There is no merit to this issue.

5. Attorney’s Fees

¶ 54. Gay requested attorney’s fees in the amount of $12,022.50 for 68.70 hours of work and expenses in the amount of $829.52. The chancellor concluded that Gay’s attorney’s fees were excessive and unreasonable. Accordingly, the chancellor reduced them by half and awarded Gay $3,005.63 in attorney’s fees and $414.76 for the expenses. “The question of attorney fees in a divorce action is a matter largely entrusted to the sound discretion of the trial court.” Overstreet v. Overstreet, 692 So.2d 88, 93 (Miss.1997) (citing Kergosien, 471 So.2d at 1212). A chancellor should only grant attorney’s fees in situations where the requesting party can establish an inability to pay. Id. (citing Dunn v. Dunn, 609 So.2d 1277, 1287 (Miss.1992)). Although the chancellor noted that Gay testified that she was unable to pay her attorney’s fees, the chancellor found that Gay will have a “small amount of extra money” after she pays her reasonable attorney’s fees. We find no merit to this issue.

6. Motion for Stay and Reinstatement of Temporary Order

¶ 55. Peirce argues that the chancery court erred in granting a stay of the final judgment of divorce and that the chancery court lacked authority to reinstate its temporary order. We agree. Rule 59(e) of the Mississippi Rules of Civil Procedure provides: “A motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.” Thus, the chancery court lost jurisdiction ten days after the court entered its final judgment of divorce, as Gay failed to file a posttrial motion. Moreover, a temporary order terminates when a final judgment is entered. We find that the chancery court erred in granting the stay and in reinstating its temporary order of support. Therefore, we reverse and render the chancery court’s judgment granting the stay. We also reverse the chancery court’s reinstatement of the temporary order and remand to the chancery court, with directions to make an accounting of what Peirce would have been required to pay under the final judgment had it not been stayed and what he has paid pursuant to the temporary order. We also order the chancellor to make an adjustment for any excess money that Peirce has paid pursuant to the temporary order that he was not ordered to pay in the final judgment of divorce.

7. Supersedeas Bond

¶ 56. Peirce also argues that the chancellor erred in granting the stay without requiring Gay to post a supersedeas bond. As support, Peirce directs our attention to Rule 8(b)(1) of the Mississippi Rules of Appellate Procedure and Mississippi Code Annotated section 11-51-31 (Rev.2002). We agree with Peirce that the chancellor erred in granting the stay without requiring Gay to post a supersede-as bond, and we reverse and render the chancellor’s decision on this point. However, we decline to order that a bond be entered, as the need for it is now moot. Therefore, the stay is hereby dissolved. Nonetheless, we note that if Gay desires to maintain a stay of this cause pending further judicial proceedings, she is required to post a supersedeas bond pursuant to Rule 8(b)(1) or any other applicable law.

¶ 57. THE JUDGMENT OF THE WASHINGTON COUNTY CHANCERY COURT IN CAUSE NO. 2006-CA-02136 IS REVERSED AND RENDERED AND REMANDED. THE JUDGMENT OF THE WASHINGTON COUNTY CHANCERY COURT IN CAUSE NO. 2006-CA-01762 IS AFFIRMED. ALL COSTS OF THESE APPEALS ARE ASSESSED TO THE APPELLANT IN CAUSE NO. 2006-CA-01762.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . According to Gay, during the separation, Peirce paid ninety-five percent of the household bills, including the mortgage.

      . Peirce testified that in the early nineties he and Gay began having problems with the IRS again for failure to pay income taxes. He admitted that he had not paid taxes, because he assumed that he was not required to do so because he was losing money and not making a profit. Based on his testimony, at the time of the hearing Peirce was working to become current with the IRS.

      .Upon examination by the court, Peirce elaborated by stating that early in their marriage, Gay told him that she had given birth to a child who had died. However, about ten years into their marriage, he found out that the child was in fact alive and had been put up for adoption.

      . Peirce admitted that he had an affair shortly after he and Gay were married; however, he testified that he had not been unfaithful in the last ten years.

      . Deputy Grantham contradicted Peirce on this point. According to Deputy Grantham, Peirce left while he was speaking with Gay.

      . Gay testified that she recognized Gloria’s voice because Gloria and Peirce had worked together for many years, and Gloria would answer the telephone when Gay called Peirce at work.

      . Although the record is not clear as to what caused Peirce’s illness on the night he left the marital home, we note that he was diagnosed with Type II Diabetes in 1999 and is dependent on insulin.

      . During the examination by the court, the chancellor asked Gay whether Peirce gave a reason as to why he was leaving her. Gay responded that Peirce simply stated that he was "tired of this mess.”

      . According to Gay, she and Peirce had sexual relations on least three occasions after Peirce left the marital home.

      . Gay also admitted that she did not tell Peirce that she had taken the savings bonds; instead, she helped him look for the bonds before finally telling him that she had cashed them in.

      . Peirce's initial 8.05 form was admitted into evidence at the December 2005 hearing; however, an updated 8.05 form was admitted at the August 2006 hearing.

      . Rule 8(b)(1) provides:
      Application for a stay of the judgment or the order of a trial court pending appeal or for approval or disapproval of a contested supersedeas bond or for an order suspending, modifying, restoring, or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance to the trial court. The court shall require the giving of security by the appellant in such form and in such sum as the court deems proper, and for good cause shown may set a supersedeas bond in an amount less than the 125 percent required in cases under 8(a).
      Mississippi Code Annotated section 11-51-31 provides: “A supersedeas shall not be granted in any case pending before the Supreme Court, unless the party applying for it shall give bond as required by the Rules of the Supreme Court.”


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY f/k/a Mississippi Employment Security Commission, Appellant v. John JOHNSON, II, Appellee.
    No. 2007-CC-00433-COA.
    Court of Appeals of Mississippi.
    March 25, 2008.

      Leanne F. Brady, attorney for appellant.
    John D. Johnson, II, appellee, pro se.
    Before MYERS, P.J., GRIFFIS and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. The Mississippi Department of Employment Security (MDES), formerly known as the Mississippi Employment Security Commission, appeals the Washington County Circuit Court’s award of unemployment benefits to John Johnson, II, a former instructor for the Greenville Public School District (District). Initially, Johnson was denied benefits by the claims examiner based on a finding of misconduct. Johnson appealed the decision; however, both he and the employer failed to appear at the hearing. Johnson’s appeal was deemed abandoned and dismissed in accordance with MDES’s appellate procedure, and it was later affirmed by the MDES Board of Review. The circuit court overturned the decision of the Board of Review, finding that the employer’s failure to appear at the hearing was a failure to present the necessary evidence against Johnson. Finding that Johnson’s appeal was properly dismissed pursuant to MDES’s appellate regulations, we reverse the decision of the circuit court and render judgment to reinstate the decision of the Board of Review.

FACTS AND PROCEDURAL HISTORY

¶ 2. Johnson was employed by the District from 1999 until 2006 as an auto body repair instructor. In the summer prior to the 2006-2007 school year, the District elected against renewing Johnson’s teaching contract for his failure to maintain the required work performance standards. Johnson subsequently applied for unemployment benefits. Initially, the claims examiner declined Johnson’s request for an award of unemployment benefits, citing misconduct as the basis for the disqualification. Johnson appealed and a telephonic hearing was scheduled and noticed to occur on August 25, 2006. However, neither party appeared. The administrative appeals officer (AAO) dismissed Johnson’s appeal based upon his failure to appear at the scheduled hearing, finding Johnson abandoned his appeal. Johnson subsequently appealed this decision; however, the MDES Board of Review summarily affirmed the decision of the AAO. Johnson then sought review by the circuit court, which reversed the decision of the Board of Review. The circuit court found, based upon the precedent of Little v. MESC, 754 So.2d 1258 (Miss.Ct.App.1999), that the District failed to prove, by clear and convincing evidence, Johnson’s misconduct. The circuit court found the AAO’s reasoning to be flawed, holding that the District’s failure to appear at the hearing was a failure to present the necessary evidence demonstrating Johnson’s misconduct. The circuit court concluded that requiring Johnson to appear and offer evidence against an allegation of misconduct would improperly shift the burden of proof to Johnson, contrary to the principles found in the Unemployment Compensation Act. The decision of the AAO was overruled, and benefits were awarded to Johnson. Aggrieved by this order, MDES appeals.

STANDARD OF REVIEW

¶ 3. We find our standard for reviewing the findings and decisions of the MDES in Mississippi Code Annotated section 71-5-531 (Supp.2006) which provides: “In any judicial proceedings under this section, the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.”

DISCUSSION

¶4. MDES seeks a determination of whether the circuit court erred in finding that the District did not present adequate evidence establishing Johnson’s misconduct, and thereby reversing the earlier finding by MDES that unemployment benefits were precluded based upon misconduct. Further, MDES argues the circuit court’s reliance upon Little in overturning the AAO’s finding that Johnson abandoned his appeal was erroneous. MDES asserts that Johnson abandoned his appeal according to the Mississippi Department of Employment Security Appeal Regulation 10, which provides an avenue for dismissal of a claimant’s appeal should that claimant fail to pursue his case.

¶ 5. While Johnson argues that the circuit court’s reliance on the precedent of Little in overturning the decision of the Board of Review was correct, we find the facts of Little distinguishable, and thereby inapplicable to this case. In Little, the employee appealed her dismissal based upon misconduct, but the employer failed to appear at the hearing before the AAO. However, Little appeared at the hearing as the only witness and despite the employer’s absence; the AAO questioned Little regarding her alleged misconduct and dismissal. Subsequently, the AAO affirmed Little’s dismissal and disqualified Little from receiving unemployment benefits due to alleged misconduct. Little, 754 So.2d at 1259(¶ 3). The Board of Review and circuit court affirmed. Id. at 1259(¶ 4). This Court reversed and rendered as to the decision of the lower court, finding that the AAO improperly shifted the burden of proof to Little when Little’s testimony’s was used to find misconduct without requiring the employer to be present and offer evidence. Id. at 1259(¶ 2). In the case at hand, both the employee and employer failed to appear at the hearing. The AAO did not elicit testimony from anyone regarding the alleged misconduct and formulate an opinion on such testimony. Rather, the case was adjudicated pursuant to MDES’s appeals regulations providing that when the party requesting the appellate hearing fails to appear, the appeal is deemed abandoned and dismissal is proper.

¶ 6. Mississippi Department of Employment Security Appeal Regulation 10 provides that a default ruling may be entered against the appellant for failing, without good cause, to appear at a hearing. Regulation 10 provides for a dismissal of an appeal based upon abandonment as follows:

A party shall be deemed to have abandoned a request for a hearing if neither the party appealing nor his/her representative appears at the time and place fixed for the hearing and prior to the hearing such party does not show good cause why he/she or his/her representative cannot appear.

Upon abandonment of a request for a hearing or appeal by the party who filed it, the AAO may dismiss the appeal or request for a hearing. Such regulation comports with the authority granted to the Commission to promulgate rules and regulations. See Miss.Code Ann. § 71-5-115 (Supp.2007).

¶ 7. MDES predicated its dismissal of Johnson’s claim upon the foregoing appeal regulation, finding Johnson’s failure to attend the hearing was fatal to his appeal. We cannot find error in the AAO’s decision or the Board of Review’s affirmance, of such. Therefore, we reverse the decision of the circuit court, and thereby render judgment to reinstate the decision of the Board of Review.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY IS REVERSED AND JUDGMENT IS RENDERED TO REINSTATE THE DECISION OF THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY BOARD OF REVIEW.

KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR.

      . Since the scheduled hearing on the matter, MDES has formally changed the name of the Administrative Appeals Officers to "Administrative Law Judge.”


text:
    Ex parte Helen Kathryn WHEELER and William Newton Phillips, as trustee under the Doris R.H. Phillips Revocable Living Trust Agreement. (In re Helen Kathryn Wheeler et al. v. Don Siegelman et al.)
    1051788.
    Supreme Court of Alabama.
    May 18, 2007.
    As Modified on Denial of Rehearing Aug. 17, 2007.

      Eugene P. Stutts and Steve R. Burford of Spain & Gillon, L.L.C., Birmingham, for petitioners.
    H.E. Nix, Jr., and Murry S. Whitt of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery, for respondents the Alabama Incentives Financing Authority; Henry C. Mabry III, individually, and as secretary of the Alabama Incentives Financing Authority, in his official capacity as director of finance; and Don Siegelman, individually, and as president of the Alabama Incentives Financing Authority, in his official capacity as governor.
    Tyrone C. Means, Christopher K. Whitehead, Ramadanah M. Salaam-Jones, and Camille L. Edwards of Thomas, Means, Gillis & Seay, P.C., Montgomery, for respondents the Montgomery County Commission and William F. Joseph, Jr.
    Turner B. Williams, John F. De Buys, Jr., and Scott A. Boykin of Burr & For-man, LLP, Birmingham, for respondents CSX Transportation, Inc., CSX Real Property, Inc., David W. Hemphill, and J. Randall Evans.
    Robert E. Poundstone IV of Bradley Arant Rose <& White, LLP, Montgomery; and Joseph B. Mays of Bradley Arant Rose & White, LLP, Birmingham, for respondents Hyundai Motor Manufacturing Alabama, LLC, and Hyundai Motor America.
    Albert L. Jordan and Jason E. Gam-mons of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for respondent Todd Strange.
    Thomas T. Gallion III and Constance C. Walker of Haskell Slaughter Young & Gal-lion, LLC, Montgomery; and Jesse P. Evans III of Haskell Slaughter Young & Rediker, LLC, Birmingham, for respondents Reuben E. Thornton, Jr., and the Industrial Development Board of the City of Montgomery.
   Helen Kathryn Wheeler and William Newton Phillips, as trustee under the Doris R.H. Phillips Revocable Living Trust Agreement (“Phillips”), petition this Court for a writ of mandamus directing the trial court to vacate its order removing Spain & Gillon, LLC, as their counsel in this litigation. Because we hold that Spain & Gillon did not violate Rule 1.10, Ala. R. Prof. Cond., and because we hold that any violation of Rule 8.4 of those rules resulted in minimal harm to the defendants, we grant the petition and issue the writ.

Statement of Facts

During Governor Don Siegelman’s term of office, a firm representing Hyundai Motor Company (“Hyundai”) contacted the Alabama Development Office (“ADO”) and requested information regarding incentives and available locations in Alabama for building a large industrial facility. In response to this inquiry, the City of Montgomery, the Montgomery Industrial Development Board (“the IDB”), the Montgomery County Commission, and the Montgomery Area Chamber of Commerce searched for available sites for such a facility. They ultimately acquired land in Montgomery County for an industrial site, including land belonging to Helen Kathryn Wheeler and Phillips.

Wheeler and Phillips executed an option agreement with the IDB for the sale of 800 acres of land for the project site. The option agreement provided that Wheeler and Phillips would sell their land for a minimum of' $4,500 per acre. By the terms of the most-favored-nations clause in the option agreement, Wheeler and Phillips would receive an amount equal to the highest price paid to any other seller whose property was later purchased for the project. The IDB subsequently assigned this option to the City of Montgomery and Montgomery County, which exercised the option and then transferred the property to Hyundai Motor Manufacturing Alabama, LLC, as part of a project agreement for the construction of the Hyundai automobile-manufacturing plant. Just before Hyundai announced its choice of a plant site in the United States, a Hyundai representative telephoned ADO and spoke to Todd Strange, the director of ADO. The representative communicated to Strange that Hyundai wanted to acquire a certain piece of property (“the Shelton property”) that would allow a redesign of the railroad spur servicing the project site. Various individuals, whom Strange named the “working group,” met at the offices of the Montgomery Chamber' of Commerce to discuss the request, and Strange and an executive at CSX Transportation, Inc. (“CSX”), arranged for the acquisition of the Shelton property. Under this arrangement, CSX would purchase the Shelton property for rail access, thereby keeping the Shelton property outside the terms of the option agreement. CSX would pay the owner $8,000 per acre for the Shelton property, and the State would reimburse CSX for the purchase. Strange informed the Hyundai representative that the property could be acquired. Subsequently, Hyundai announced that Montgomery would be the site of its automobile-manufacturing site.

Wheeler, Phillips, and other plaintiffs sued several of the participants in these transactions, including the president of the Montgomery Area Chamber of Commerce, Strange, the IDB, the City of Montgomery, the Alabama Incentives Financing Authority (“AIFA”), former Governor Sie-gelman, former Finance Director Henry Mabry, CSX, and Hyundai. They alleged fraud, suppression, breach of contract, rescission, and conspiracy arising out of the option to purchase their land. Specifically, they allege that the defendants conspired to purchase the Shelton property at a higher price than was paid for their property and that they did so to avoid complying with the most-favored-nations clause of the option agreement.

A. Lee Miller III served as chief of the legal division of the Department of Finance from January 1987 to September 2003. The Code of Alabama defines this position as follows:

“The chief of the legal division shall confer with and advise the Director of Finance and any and all of the subordinate officers and employees of the Department of Finance on all legal matters pertaining to said department.”

§ 41-4-203, Ala.Code 1975. Miller served as chief of the legal division during Governor Siegelman’s term of office and while Mabry was finance director. After resigning from the Department of Finance in 2003, Miller became “of counsel” to Jemi-son, Mendelsohn, & James, P.C. (“the Je-mison firm”), which represented South-dale, LLC, a plaintiff in this litigation.

Less than a week before this case was set to go to trial, the defendants moved the trial court to disqualify the Jemison firm from representing Southdale, LLC, in this litigation. The defendants asserted that they had “recently learned through discovery ... that a member of [the Jemison firm], Lee Miller, ... appears to have provided legal advice regarding the 93 acre rail yard property ... [during his employment with the Department of Finance].” The defendants also moved to disqualify the firm of Spain & Gillon, LLC, from representing Wheeler and Phillips. The defendants based their motion

“on the ground [that] Spain & Gillon, L.L.C., and its attorneys are working closely with, and upon information and belief, have received confidential information from, Lee Miller of Jemison, Mendelsohn & James P.C., related to this matter and the 93 acres, which likewise causes these attorneys to have impermissible conflict of interest in this case.”

After holding hearings on the motion to disqualify, the trial court granted thé motion as to both the Jemison firm and Spain & Gillon. Wheeler and Phillips petition this Court for the writ of mandamus, arguing that the trial court erred in disqualifying Spain & Gillon from representing them in this litigation.

Analysis

Although the Jemison firm’s disqualification from this litigation has not been challenged, Wheeler and Phillips petition this Court for the writ of mandamus, arguing that the trial court erred in disqualifying Spain & Gillon. The defendants argue that Spain & Gillon was properly disqualified because its representation of Wheeler and Phillips violated Rules 1.10 and 8.4, Ala. R. Prof. Cond. Rule 1.10 provides for the ■ imputed disqualification of a firm based on a conflict of interest in a case on the part of an attorney associated with the firm. Rule 8.4, in part, prohibits attorneys from knowingly assisting other attorneys in violating, or inducing other attorneys to violate, the Alabama Rules of Professional Conduct. Before determining whether Spain & Gillon violated these rules, we must decide whether the defendants had standing to file their joint motion to disqualify counsel.

I. Standard of Review

In Ex parte Central States Health & Life Co. of Omaha, 594 So.2d 80, 81 (Ala.1992), this Court held that “the correct method for seeking review of a lower court’s ruling on a motion to disqualify an attorney -... is by a petition for writ of mandamus only.” A writ of mandamus “ ‘is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ” Ex parte Terminix Int’l Co., 736 So.2d 1092, 1093-94 (Ala.1999) (citations omitted). The question, before us,, therefore, is - whether Spain & Gillon has a “clear legal right” to represent Wheeler and Phillips in this litigation.

II. Standing

a. Based on a Conflict of Interest

In their petition for the writ of mandamus, Wheeler and Phillips argue that the defendants lacked standing to bring their motion to disqualify Spain & Gillon. Wheeler and Phillips cite our holding in Ex parte Tiffin, 879 So.2d 1160, 1165 (Ala.2003), in which we stated that “ ‘a stranger to the, attorney-client relationship lacks standing to assert a conflict of interest in that relationship.’ ” (Quoting Jones v. American Employers Ins. Co., 106 Ohio App.3d 636, 641, 666 N.E.2d 1152, 1155 (1995).) They argue that neither of Miller’s former clients, the Department of Finance and the State Board of Adjustment, are parties to this litigation. Because the defendants were not Miller’s clients, Wheeler and Phillips argue, the defendants lack standing to move the trial court to disqualify Spain & Gillon from representing Wheeler and Phillips.

In Tiffin, we held that minority shareholders could not move to disqualify a corporation’s counsel on the basis of a conflict of interest under Rules 1.7 and 1.9, Ala. R. Prof. Cond. Because the case was not a shareholder-derivative suit, the shareholders were not representing the interests of the corporation. Because the corporation, and not the shareholders, was counsel’s client, the shareholders lacked standing to challenge the representation based on a conflict of interest.

Similarly, in Lowe v. Graves, 404 So.2d 652, 653 (Ala.1981), we held that “‘[t]he principle seems to be fully established that only a party who sustains the relation of a client to an attorney, who Undertakes to represent conflicting interests, may be entitled to object to such representation for that reason alone.’ ” (Quoting Riley v. Bradley, 252 Ala. 282, 287, 41 So.2d 641, 644 (1948).) Furthermore, we have stated:

“To allow an unauthorized surrogate to champion the rights of the former client would allow that surrogate to use the conflict rules for his own purposes where a genuine conflict might not really exist. It would place in the hands of the unauthorized surrogate powerful presumptions which are inappropriate in his hands.”

404 So.2d at 653. Therefore, we must first determine whether any of the defendants were Lee Miller’s clients during his employment as legal counsel for the Department of Finance.

Other courts have held that a lawyer employed by a state agency represents that agency only and does not have a conflict of interest in cases against the state or another state agency. See Gray v. Rhode Island Dep’t of Children, Youth & Families, 937 F.Supp. 153, 158 (D.R.I.1996) (“The client clearly includes the attorney’s own agency. On the other hand, it would not include some other agency under all circumstances, because any two agencies can have compatible or conflicting positions depending on the matter involved.”).

The defendants assert standing on various grounds. The AIFÁ and former Governor Siegelman and former Finance Director Mabry, its president and secretary, respectively, at all times pertinent to this litigation, assert that they were Miller’s clients during his employment with ' the Department of Finance. Therefore, they argue, they have standing to challenge his representation in this case and to impute his alleged conflict to Spain & Gillon. They argue that Miller represented the AIFA and thereby represented then Governor Siegelman in his role as president of the AIFA and then Finance Director Ma-bry in his role as secretary of AIFA. In his deposition, Miller agreed That “the AIFA utilized the staff’ of the Department of Finance, including Miller as general counsel, “on some issues.” Furthermore, Ma-bry testified that Miller “ran” the AIFA. They also argue that Miller was Mabry’s “statutorily designated lawyer.” Presumably, they are referring to § 41-4-203, Ala.Code 1975, which provides: “The chief of the legal division [of the Department of Finance] shall confer with ánd advise the Director of Finance ... on all legal matters pertaining to said department.”

Wheeler and Phillips acknowledge that by statute Miller reported to Mabry as the Director of Finance. However, they argue, Mabry was not sued in his capacity as Director of Finance. Instead, he was sued individually and as secretary of the AIFA. Moreover, they argue, Mabry did not consult Miller regarding the Hyundai transaction, but instead sought counsel from attorneys with the law firm of Maynard, Cooper & Gale,- P.C. They state: “There is certainly no evidence whatsoever that Ma-bry or the AIFA ever consulted Miller in any way as to the ‘ploy’ used by the defendants to purchase the Shelton property.”

Although we agree with Wheeler and Phillips that Miller did not act as then Finance Director Mabry or then Governor Siegelman’s personal attorney during his employment with the Department of Finance, Miller’s testimony shows that through his position with the Department of Finance he worked for the AIFA. Miller’s statutory duties extended only to the Department of Finance and the State Board of Adjustment, but the AIFA apparently operated largely through the staff of the Department of Finance and through Miller particularly. By using Miller as its general counsel “on some issues,” the AIFA established an attorney-client relationship with Miller. Therefore, the AIFA had standing to move to disqualify Miller from representing Southdale, LLC, in its action against the AIFA. In the same way, Miller reported to then Governor Siegel-man and then Finance Director Mabry, as president and secretary, respectively, of the AIFA. Because we hold that Miller represented the AIFA and both former Governor Siegelman and former Finance Director Mabry in their capacities with the AIFA, these defendants had standing to move for Spain & Gillon’s disqualification from this case on the basis of a conflict of interest.

. b. Based on Rule 8.4

CSX argues that it has standing to seek, disqualification of Spain & Gillon on the basis of Rule 8.4(a). CSX states that it' seeks disqualification not on the basis of a conflict of interest, but because of “counsel’s obligation under the Rules to report a violation of Rule 8.4(a) to the Court.” Rule 8.3, Ala. R. Prof. Cond., imposes on attorneys a duty to “report” any “unprivileged knowledge of a violation of Rule 8.4 ... to a tribunal or other authority empowered" to investigate or act upon such violation.” The defendants assert that Spain & Gillon violated the following provision of Rule 8.4(a): “It is professional misconduct for a lawyer to ... violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”

CSX cites Ex parte Lammon, 688 So.2d 836 (Ala.Civ.App.1996), for the proposition that CSX has standing to seek Spain & Gillon’s disqualification for violating Rule 8.4, Ala. R. Prof. Cond. In Lammon, an attorney moved for sanctions, including the disqualification of counsel, after opposing counsel violated Rule 4.2, Ala. R. Prof. Cond. The trial court disqualified opposing counsel. The Court of Civil Appeals held that “[a] trial court has the authority and the discretion to disqualify counsel for violating the Rules of Professional Conduct, and a ‘common sense’ approach should be used.” 688 So.2d at 838 (citing Roberts v. Hutchins, 572 So.2d 1231, 1234 (Ala.1990)). The Court of Civil Appeals upheld the sanction, .stating that “[c]ommon sense supports the trial court’s disqualification of an attorney who may have violated the Rules of Professional Conduct, and we find no abuse of the trial court’s discretion.” 688 So.2d at 838.

Rule 8.3 imposes a duty to report unethical behavior “to a tribunal or other authority” and specifically to report behavior in violation of Rule 8.4. CSX and the remaining defendants therefore have standing to seek the disqualification of Spain & Gillon on the allegation of impropriety under Rule 8.4(a).

III. Conflict of Interest

In their joint motion" to disqualify counsel, the defendants "argue that Miller’s conflict in the present case can be imputed to Spain & Gillon “if confidential information obtained by Miller during his representation of the Defendants AIFA and Ma-bry was shared with Spain & Gillon, L.L.C.” Rule 1.10, Ala. R. Prof. Cond., provides for such imputed disqualification:

“(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone, would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9, or 2.2.
“(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously • represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter.”

The comment to Rule 1.10 explains that “[p]aragraph (a) operates only among the lawyers currently associated in a firm.” In Ex parte Terminix International, 736 So.2d at 1094, this Court explained: “Nothing in Rule 1.10(a) or in the comment to the rule suggests that attorneys employed by different firms working together in a cocounsel relationship constitute a ‘firm’ within the meaning of 1.10(a).” Paragraph (a) does not govern imputed disqualification between Miller and Spain & Gillon because they are not “associated in a firm” as is required by the rule.

The defendants argue that paragraph (b) applies to this case because, they say, the language in it is looser than the language in paragraph (a); instead of applying to lawyers “associated in a firm,” paragraph (b) applies to lawyers “associated with a firm.” They argue that Miller, while working with the Jemison firm, was associated with Spain & Gillon, and, therefore, that Spain & Gillon should be disqualified from representing Wheeler and Phillips in this case.

In Terminix, this Court “require[d] proof of actual disclosure of confidential information as a prerequisite to disqualifying counsel” when a lawyer with a conflict was never cocounsel with the subject law firm. 736 So.2d at 1095. The Court explained that, “[i]f a showing of actual disclosure was not required, then disqualification could arguably be based on a ‘double imputation’ theory (imputing information from a firm to a member of that firm and then to a member of another firm acting as cocounsel), a theory that has been heavily criticized by other courts.” 736 So.2d at 1095. In this case, Miller never acted as cocounsel with Spain & Gillon; in fact, the Jemison firm was not acting as cocounsel with Spain & Gillon, because the firms represented different clients in the litigation. Although Terminix dealt largely with Rule 1.10(a), the Court held that “requiring proof of actual disclosure of confidential information is consistent with paragraphs (b) and (c) of Rule 1.10.” 736 So.2d at 1095. The Court also noted in Termi-nix that the comment to Rule 1.10 “state[s] that paragraphs (b) and (c) of Rule 1.10 operate to disqualify a firm only when the lawyer involved has actual knowledge of information protected by the Rules of Professional Conduct.” 736 So.2d at 1096. Therefore, in order to impute Miller’s or the Jemison firm’s alleged conflict to Spain & Gillon, the evidence must show an actual exchange of confidential information between Miller and Spain & Gillon or between the Jemison firm and Spain & Gillon.

In their joint motion to disqualify counsel, the defendants pointed to communications between Gene Stutts, an attorney with Spain & Gillon, and Lee Miller, after he had gone to work for the Jemison firm, as evidence of actual disclosure of confidential information. To show that Stutts had communicated with Miller, they relied solely on an e-mail from Miller to Pat Haigler, the custodian of records for the AIFA. The e-mail asks whether the bonds issued by the AIFA to finance the Hyundai project were taxable and states that “Gene Stutts, a lawyer from Bfirmingham], has asked me to review some documents relating to the AIFA grant to Hyundai to purchase the CSX rail site.” In later emails to Haigler, Miller asked for a copy of the project agreement. Miller testified that he did not recall whether Stutts or Mays Jemison, a principal in the Jemison firm, asked him to obtain the project agreement, but he thought that the purpose of obtaining the project agreement was to give it to Stutts. When asked whether he discussed with anyone any of the documents he obtained from Haigler, Miller stated, “No. I would have passed those on to whoever had asked for them when I got them.” In another e-mail, Miller asked Haigler whether she knew if the IDB “got any AIFA or 21st Century money to help it fund the land purchases for the Hyundai project.” Miller testified that he may have also asked her for a copy of a payment voucher.

Wheeler and Phillips argue that the project agreement, which Miller admitted obtaining for Stutts, is a public document and its disclosure therefore does not amount to an “actual disclosure of confidential information.” The defendants do not argue that the project agreement is not a public document. Instead, they cite Ex parte Taylor Coal Co., 401 So.2d 1, 9 (Ala.1981), for the proposition that “all information coming to the attorney from his client, whether it be from public records or not, is confidential.” However, the information obtained in Taylor Coal was given to an attorney by an individual who was a client of -the attorney’s at the time of the disclosure; therefore, the informátion came to the attorney through the attorney-client relationship and was entitled to the attorney-client privilege. By contrast, Miller sought the project agreement from Hai-gler after his attorney-client relationship with both the AIFA and the Department of Finance had ended. The information was not obtained as a result of the attorney-client relationship and was not entitled to the privilege. Therefore, the statement in Taylor Coal does not apply in this instance, and the public document does not amount to .ah “actual disclosure of confidential information” by Miller to Stutts.

In their submission in support of the joint motion to disqualify counsel and in. their briefs to this Court/ defendants Sie-gelman, Mabry, and the AIFA also cite a couple of meetings at which both Miller and Stutts were present as evidence1 of communications between Stutts and Miller. Miller testified that he met with Stutts before the filing of this action. The meeting consisted of a general “discussion about the facts that gave rise to this lawsuit.” Miller also testified that, sometime after July 2004, Stutts, Mays Jemison, Miller, and two other attorneys went to lunch and discussed this case. Miller testified that “they were talking about the issues in the case and who might have been involved in it:” He said that he mostly listened at this lunch, but he also testified that the other attorneys “probably” asked him about how public corporations like the AIFA raise their money.

In Terminix, this Court quoted from the report of the special master who had previously heard the case. The special master referred to an opinion of the State Bar, which stated “ ‘that any presumption of shared confidence between members of the same firm does not extend to lawyers in a cocounsel relationship.’ ” 736 So.2d at 1094. Instead, the Bar stated that “‘the disqualification of a lawyer or firm would only be appropriate when confidential information has actually been disclosed between cocounsel.’ ” 736 So.2d at 1094. Although the meetings involving Stutts and Miller could lead one to speculate that confidential information could have been shared between Miller and Spain & Gillon, no such presumption exists; instead, the defendants must show actual disclosure of confidential information in those meetings. The defendants have failed to present evidence of any actual disclosure between Miller and Stutts and thus have failed to meet their burden.

iy. Rule 84

The defendants also argue that Spain & Gillon violated Rule 8.4(a), Ala. R. Prof. Cond., by “knowingly assisting] or inducting]” Miller in violating the Alabama Rules of Professional Conduct. In their submission in support of the joint motion to disqualify counsel, the defendants stated:

“Stutts used Miller to analyze documents received from the Department of Finance and was present in a meeting with Miller that was used to gain information related to several of the Defendants in this case. Stutts, knowing of Lee Miller’s role with the Finance Department, had a duty to act in accordance with the Rules of Professional Conduct, just as the Jemison firm. Yet, like the Jemison firm, Stutts chose to ignore his ethical obligations in order to receive the benefit of the use of Lee Miller and his confidential information.”

Rule 1.11(a), Ala. R. Prof. Cond., prohibits a former government attorney from “representfing] a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the' appropriate government agency consents after consultation.” Similarly, Rule 1.11(a) prohibits the firm with which that attorney is associated from representing the private client, unless the disqualified lawyer is screened from participating in the representation and written notice is given to the government agency. The defendants assert, and Wheeler and Phillips do not argue otherwise, that no written notice was given to the AIFA in this case. Also, it appears clear from the record that Miller was not screened from this case, but was instead involved in the investigation of the case. The question, therefore, is whether Miller “participated personally and substantially” in the Hyundai matter while he was employed by the State. Frank McPhillips, an attorney with Maynard, Cooper & Gale who represented the State in the Hyundai transaction, testified that he thought of Miller as his cocounsel regarding the Hyundai matter. Also, Miller approved the funding of the purchase of the Shelton property through the AIFA while he worked for the Department of Finance. There is sufficient evidence, therefore, to show that Miller worked both “personally and substantially” on. the Hyundai matter during his employment with the State. Therefore, Rule 1.11 prohibits him from- representing a private client in connection with this matter; further, it prohibits the Jemison firm from representing a private client in the matter unless Miller is screened from any participation and written notice is provided to the Department of Finance.

Spain & Gillon knew of Miller’s former employment with the State. Miller’s email to Haigler says that Gene Stutts, of Spain & Gillon, asked Miller to review documents in relation to the purchase of the Shelton property for use by Hyundai. Furthermore, even though the documents Miller transmitted to Stutts were public documents and therefore not privileged, Miller’s “representation” of a private client in this case was prohibited by Rule 1.11. If Stutts did, ask Miller to obtain and review documents on behalf of a private client, he may have “induee[d] another” to “violate the Rules of Professional Conduct,” which would have been a violation of Rule 8.4(a).

V. Prejudice to the Plaintiffs

Although Stutts may have violated Rule 8.4 by asking Miller to obtain and review documents for Stutts as he prepared for this case,-we must also consider the prejudicial effect of the disqualification of Spain & Gillon on Wheeler and Phillips themselves. The defendants cite Baker v. Bridgestone/Firestone, Inc., 893 F.Supp. 1349 (N.D.Ohio 1995), in support of their argument in favor of disqualification based on Rule 8.4.

In Baker, the Ohio court disqualified an attorney and one of two law firms representing the plaintiffs in a products-liability action. The court disqualified one firm because of frequent contacts between it and the disqualified lawyer, stating that “[t]he weight of the evidence therefore makes it more likely than not that on isolated occasions additional disclosures were made.” 893 F.Supp. at 1369. However, the court noted that, “[w]ere [the firm] the Bakers’ sole attorney, the Court would be inclined ... to stop short of disqualification,” 893 F.Supp. at 1369, because “the disclosure case against the [firm] [wa]s weak” and “any resulting taint [from the possible disclosures] is more formal than real.” 893 F.Supp. at 1368-69. The court did stop short of disqualifying the second firm, holding that “[t]he facts strongly suggest that confidential information, if any, wrongly passed to [the second firm] will have no impact on the just resolution of this litigation.” 893 F.Supp. at 1368. The court, quoting an expert from an exhibit in the litigation, stated:

“ ‘To completely disqualify [the second firm] at this late stage, merely because of the theoretical possibility that it gained some small advantage by having had access to the material provided by [the disqualified lawyer] for a brief period of. time, would not only be an overreaction, but would be largely symbolic and would do little to protect the defendant’s interests in any event.’ ”

893 F.Supp. at 1368.

This Court similarly considers the interests at stake when deciding whether to disqualify counsel:

“ ‘Disqualification of counsel, like other reaches for perfection, is tempered by a need to balance a variety of competing considerations and complex concepts. Disqualification in spasm reaction to every -situation capable of appearing improper to the jaundiced cynic-is as goal-defeating as failure to disqualify in blind disregard of flagrant conflicts of interest. Between these ethical extremes lie less obvious influences on the interest of society in the orderly administration of justice, .on the interest of clients in candid consultation and choice of counsel, and on the interest of the legal profession in its representational soul.’ ”

Taylor Coal, 401 So.2d at 7 (quoting Arkansas v. Dean Foods Prods. Co., 605 F.2d 380, 383 (8th Cir.1979)).

In this case, the defendants filed their joint motion to disqualify counsel one week before the trial date and more than two years after this litigation had commenced. The parties have taken over 29 depositions, and the plaintiffs have obtained thousands of pages of documents. According to the affidavit of Steve R. Burford, an attorney with Spain & Gillon, the lawyers with Spain & Gillon have spent more than 2,469 hours working on this case. Unlike the disqualified firm in Baker, Spain & Gillon is the only firm representing Wheeler and Phillips. Wheeler and William Newton Phillips, both elderly individuals living outside the State of Alabama, would undoubtedly suffer a great deal of prejudice if Spain & Gillon was disqualified from representing them in this case.

Moreover, the defendants have not shown any actual disclosure of confidential information from Miller to Spain & Gillon. Although Stutts’s request for Miller to obtain documents from the State and to review those documents was improper in light of Rule 1.11, Ala. R. Prof. Cond., the resulting harm to the defendants was minimal. Miller testified that he did not analyze the documents or discuss them with Stutts; he says he merely “passed them on.” The documents were matters of public record, and Miller’s acquiring them did not provide Spain & Gillon with confidential information. To disqualify Spain & Gillon under these circumstances, based on the evidence provided by the defendants, would amount to the “overreaction” the Baker court sought to avoid.

Conclusion

The defendants in this case did not provide evidence of-an actual disclosure of confidential information between Miller and Spain & Gillon, as is required by this Court’s holding in Terminix. Therefore, no conflict of interest arose under Rule 1.10. Although Gene Stutts arguably “induce[d]” Miller to obtain and review documents from the State in violation of Rule 1.11, the documents he obtained were public records, and any harm to the defendants resulting from Stutts’s request appears to be minimal. Balancing this harm against the prejudice to Wheeler and Phillips that would be caused by disqualifying their counsel at this stage in the litigation, we hold that the trial court erred in granting the joint motion to disqualify counsel as to Spain & Gillon. Therefore, we grant the petition and issue the writ of mandamus, directing the trial court to vacate its order insofar as it removed Spain & Gillon as Wheeler and Phillips’s counsel in this litigation.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . Both Wheeler and Phillips were ultimately paid $4,500 per acre for their properties.

      . The landowner received over $12,000 per acre for the property.

      . In his position as Governor, Siegelman served as president of the AIPA. Dr. Henry Mabry, as state finance director during Governor Siegelman’s term, served as secretary of the AIFA. See Ala.Code 1975, § 41-10-540 et seq.

      . In an e-mail sent to David Echols, the ADO project manager, confirming this arrangement, David Hemphill, an assistant vice president of industrial and economic development for CSX, explained the situation as follows:
      “Regarding the extra 93 acres that will need to be purchased, you asked if [CSX] would be willing to buy this property for the State and [the City of] Montgomery at approximately $8,000 an acre.... The purpose of doing it this way rather than what you did in getting control of the other 1800 acres is to avoid paying the other landowners $8,000 an acre, which would have a negative impact of $10 million on the site cost.... Moreover, the other landowners will get wind of this ploy and may create negative community publicity. We have seen this happen before and would prefer not to be in the middle, so if asked, we would respond that the State asked us to buy this additional property and to contact them for further information.”
      Strange responded by letter, stating:
      "As I indicated to you last night, our option agreements have a ‘most favored nation’ clause where we agreed to pay no more for any one parcel than any of the other parcels .... We decided the most appropriate course to follow would be to ask CSX to obtain the parcel for rail access to keep it outside of the project agreement.”
      Both then Governor Siegelman and then Finance Director Mabry received copies of Strange’s letter.

      . Strange argues several other bases for standing to seek the disqualification of Spain & Gillon; however, it is not necessary to address these arguments.

      . In their petition, Wheeler and Phillips also argue that the defendants waived their right to file the joint motion to disqualify by waiting to file it until days before the trial. However, because we hold in favor of Wheeler and Phillips on the basis of the prejudicial effect to them of disqualifying Spain & Gillon, we do not reach this issue.