author: CHARLES R. JONES, Judge.

text:
    CITI MORTGAGE, INC. v. Nikecia CHASE and La. Citizens Property Insurance Corporation.
    No. 2011-CA-0661.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 2011.

      Benjamin B. Dean, Dean Morris, LLP, Monroe, LA, for PlaintiffAppellee.
    René S. Paysse, Jr., Genevieve K. Jacques, Johnson Johnson Barrios & Ya-coubian, New Orleans, LA, for Defen-dantAppellant.
    (Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, and Judge ROLAND L. BELSOME).
   CHARLES R. JONES, Judge.

hThe appellant, Louisiana Citizens Property Insurance Corporation (Louisiana Citizens) seeks review of the district court judgment granting the partial motion for summary judgment of Citimortgage, Inc., the appellee. After a careful review of the record, we affirm the judgment of the district court granting the partial motion for summary judgment of appellee, Citi-mortgage, and denying the motion for summary judgment of Louisiana Citizens.

The instant action arose out of the alleged conversion of insurance proceeds by the executrix of a Succession. Ms. Diane Broussard Poree was the insured of Louisiana Citizens for property located at 3905-3907 Elysian Fields Avenue, in New Orleans. The property was also subject to a mortgage agreement between Ms. Poree and Citimortgage (originally in favor of City Wide Mortgage Company, but endorsed to Citimortgage), and the mortgage required that Ms. Poree maintain hazard insurance on said property. The contract of insurance further provides under the section titled “Policy Interests” that the first mortgagee on the subject property is Citimortgage and that the second mortgagee is Liberty Bank.

| ¿¡Following Hurricane Katrina, the property sustained significant damage and Ms. Poree filed a claim for losses with Louisiana Citizens, but she died on April 14, 2006, prior to receiving the insurance proceeds for her claim. Subsequently, Nike-cia Chase was appointed the independent executrix of the succession of Ms. Poree.

Louisiana Citizens issued the insurance proceeds of $56,363.27, via check (# 0000569419) payable to “Diane Brous-sard Poree, Liberty Bank & Trust Co., and CIT c/o Ms. Nikecia Chase,” to Ms. Chase on or about August 17, 2007, and same was endorsed by Ms. Chase and Liberty Bank. Ms. Chase received the insurance proceeds, but did not tender payment to Citimortgage toward satisfaction of the outstanding mortgage obligation. As a result of Ms. Chase absconding with and converting the funds for her own benefit, Citimortgage’s interest in the insured property was rendered unprotected, and any monies which were to be tendered to Citimortgage for the renovation of the property were lost.

Citimortgage thereafter filed a Petition for Damages as a result of its status as a “loss payee” under the Louisiana Citizens policy of insurance. Citimortgage claimed that the subject check should have been endorsed by the insured and then forwarded to Citimortgage to satisfy the mortgage agreement. Citimortgage also alleged that the actions of Ms. Chase constituted fraud, conversion, and breach of the promissory note and mortgage agreement. Finally, Citimortgage alleged that | ^Louisiana Citizens breached its contractual and fiduciary responsibilities under the policy of insurance by issuing the check to “CIT c/o Ms. Nikecia Chase.”

In response to the Petition, Louisiana Citizens filed a motion for summary judgment seeking a dismissal of the claims raised by Citimortgage.

Citimortgage filed its own partial motion for summary judgment to have the district court declare that Louisiana Citizens was liable for the allegations contained in the Petition.

At the hearing on the motions for summary judgment, the district court denied the motion for summary judgment of Louisiana Citizens, and granted the partial motion for summary judgment of Citimort-gage. In its reasons for judgment, the district court determined, in pertinent part, that:

Citimortgage was left unprotected by the release of funds to Chase. The funds were converted without any benefit to Citimortgage. There is no genuine issue of material fact in dispute concerning the endorsement. Pursuant to the law, Citimortgage is entitled to recoup such amounts from Citizens.

Louisiana Citizens noticed its intent to appeal, and this timely appeal followed.

In the instant appeal, Louisiana Citizens raises two (2) assignments of error, as follows:

(1) The district court improperly denied the motion for summary Judgment of Louisiana Citizens given that Citi-mortgage failed to produce any evidence to contradict that Louisiana Citizens satisfied its duties under the policy issued to Ms. Poree as evidenced by the check issued by Louisiana Citizens to the named insured and mortgagees; and,
(2) The district court improperly granted the partial motion for summary Judgment of Citimortgage given that Citimortgage failed to produce any evidence to contradict that Louisiana Citizens satisfied its duties |4under the policy issued to Ms. Poree as evidenced by the check issued by Louisiana Citizens to the named insured and mortgagees.

DISCUSSION

In a recent case, Foundation Materials, Inc. v. Carrollton Mid-City Investors, L.L.C., 2010-0542, pp. 4-5 (La.App. 4 Cir. 5/25/11), 66 So.3d 1230, 1233, this Court discussed the standard of review for summary judgments as follows:

“Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” Foundation Materials, Inc. v. Carroll-ton Mid-City Investors, 09-0414, p. 3 (La.App. 4 Cir. 8/26/09), 17 So.3d 513, 515 citing King v. Parish National Bank, 04-0337 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966 A(2)). Appellate courts review grants of summary judgment de novo using the same standard applied by the trial court in deciding the motion for summary judgment. Foundation Materials, Inc. v. Carrollton Mid-City Investors, 09-0414, p. 3,17 So.3d at 515. According to that standard, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B.
Once the moving party has discharged the initial burden of establishing a prima facie case that it is entitled to summary judgment, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. When a motion for summary judgment is made and supported, the nonmoving party may not rest on the mere allegations or denials of his pleadings, but the non-moving party’s response, by affidavits or with other competent evidence as provided by law, must set forth specific facts showing that a genuine issue of material fact exists for trial. La. C.C.P. art. 967 B. If the non-moving party does not so respond, “summary judgment, if appropriate, shall be rendered against him.” Id.

| ¡¡Considering insurance contracts, in Johnson v. First Nat. Ins. Co. of Am., 2010-1335 (La.App. 4 Cir. 4/27/11), 65 So.3d 693 this Court wrote:

An insurance policy is a contract between the parties and should be interpreted using the general rules of contracts as provided in the Civil Code. Huggins v. Gerry Lane Enterprises, Inc., 06-2816, 06-2843, p. 3 (La.5/22/07), 957 So.2d 127,129 (citing Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763). The plain, ordinary and generally prevailing meanings should be given to words and phrases used in an insurance policy, unless the words have acquired a technical meaning. Id. (citing La. C.C. art. 2047; Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; Carbon v. Allstate Ins. Co., 97-3085, p. 4 (La.10/20/98), 719 So.2d 437, 439). If the language of the insurance policy is clear and unambiguous, this Court must refrain from enlarging or restricting the provisions beyond the reasonably contemplated terms. Id. (citing Carrier v. Reliance Ins. Co., 99-2573, pp. 11-12 (La.4/11/00), 759 So.2d 37, 43).

Id., 2010-1335, p. 3, 65 So.3d at 695.

Furthermore, a contract is a conventional obligation, hence, it therefore follows that “an obligor is liable for the damages caused by his failure to perform a conventional obligation. A failure to perform results from nonperformance, defective performance, or delay in performance.” La. C.C. art. 1994.

In its first assignment of error, Louisiana Citizens argues that the district court improperly denied its motion for summary judgment as Citimortgage failed to produce any evidence that Louisiana Citizens failed to satisfy its duties under the policy issued to Ms. Poree. Thus, Louisiana Citizens argues that there was no ^genuine issue of material fact as to the issue of liability related to the allegations contained in Citimortgage’s petition.

In support of its contention that it satisfied all of its obligations under the policy of insurance, Louisiana Citizens argues that it timely issued the check to the insured, or rather, the designated representative of the insured once the claim had been made, and that it clearly identified the names of the payees on the check.

Citimortgage argues that Louisiana Citizens breached its duties under the contract of insurance by failing to pay Citimort-gage. In support of its argument, Citi-mortgage refers to the mortgage clause contained in the contract of insurance. The subject mortgage clause appears in a document entitled “Homeowners 2 Broad Form”, under Section I■ — Conditions, and provides in pertinent part:

12. Mortgage Clause.

The word “mortgagee” includes trustee. If a mortgagee is named in this policy, any loss payable under Coverage A or B will be paid to the mortgagee and you, as interests appear. If more than one mortgagee is named, the order of payment will be the same as the order of precedence of the mortgages....

In the instant case, it is undisputed that the contract of insurance contains a mortgage clause. “Mortgage clauses fall into two forms, the open or simple mortgage clause and the standard or union mortgage clause.” May v. Mkt. Ins. Co., 387 So.2d 1081,1083 (La.1980).

The simple mortgage clause merely provides in effect that the proceeds of the policy shall be paid first to the mortgagee as his interest may appear; but the so-called standard or union mortgage clause is somewhat more specific in that it also provides that the mortgagee shall |7be protected against loss from any act or neglect of the mortgagor or owner, so that it shall not defeat the insurance so far as the interest of the mortgagee is concerned.

Id., citing Couch on Insurance § 42:648 (2d ed.1963). Furthermore,

[wjhere the policy contains a simple or open loss payee clause, the contract remains one between the insurer and the insured. The loss payee is but a conditional payee of a part of the proceeds of the policy. The rights of the loss payee are no greater than the rights of the insured and are subject to all of the terms and conditions of the policy.

Howard Griffin, Inc. v. Progressive Cas. Ins. Co., 409 So.2d 1262, 1263 (La.App. 2 Cir.1982).

Based upon the provisions contained within the insurance policy, it is clear that the mortgage clause in the Louisiana Citizens’ policy of insurance is a simple mortgage clause and that the first mortgagee is Citimortgage. The record in this matter indicates that the check issued to Ms. Chase by Louisiana Citizens did not follow the order of payment detailed in the policy of insurance. The check lists Ms. Poree as the first payee, Liberty Bank as the second payee, and Citimortgage, only identified as CIT, is listed as the third payee. Hence, the check as drafted was not consistent with the provisions of the mortgage clause contained in the insurance policy. Thus, it appears that Louisiana Citizens breached its duty, at a minimum, in failing to properly list Citimortgage as the second payee after Ms. Poree. Therefore, a genuine issue of material fact precludes the grant of summary judgment in Louisiana Citizens’ favor based on its failure to fulfill its obligations to Citimortgage under the contract of insurance.

|8In its second assignment of error, Louisiana Citizens argues that the district court improperly granted the partial motion for summary judgment of Citi-mortgage and that Citimortgage failed to produce any evidence to contradict that Louisiana Citizens failed to satisfy its duties under the policy issued to Diane Broussard Poree. Louisiana Citizens argues that it honored its duties by issuing the check to Ms. Poree, via her executrix, Ms. Chase, and that the negotiation of said check with only two endorsements, by Liberty Bank and Ms. Chase deems Liberty Bank and Ms. Chase liable for damages. In short, Louisiana Citizens argues that once it issued the insurance proceeds, it was relieved of any obligation under the contract of insurance and was it no longer liable for actions which occurred once the proceeds were issued.

Additionally, Louisiana Citizens also argues that a bank has a duty to use reasonable care when it cashes a check and that Liberty Bank, in cashing the check without the proper endorsement, is liable for damages. Louisiana Citizens further argues that a bank honoring a check without proper endorsement should be liable for any damages caused by acceptance of the check.

In its partial motion for partial summary judgment, Citimortgage argued that Louisiana Citizens was liable for damages because the check, as written, improperly identified “CIT c/o Ms. Chase,” as a payee and that the identification of Ms. Chase “c/o” improperly indicated that Ms. Chase represented the interests of “CIT.” Citi-mortgage also argued that it never authorized Ms. Chase to obtain funds on its behalf, and that despite the fact that the insurance contract required |9that the check be made jointly payable, Louisiana Citizens “arbitrarily and without reason” gave Ms. Chase authority to receive the funds on behalf of Citimortgage. Citi-mortgage argues that because of the acts of Louisiana Citizens, it was damaged because it was left unprotected due to Louisiana Citizens’ disregard and breach of its contractual obligations.

In the alternative, Citimortgage argues that the check was “ambiguously payable” to Ms. Chase because it created the appearance of agency, thereby enabling Ms. Chase to present the check for payment without the required endorsement of Citi-mortgage. Further, it argues that the placement of “c/o” creates an ambiguity as to who is exactly entitled to receive the proceeds. Citimortgage argues that creating a cheek payable to ambiguous payees is also a breach of obligations under the contract of insurance.

Citimortgage further argues that because it is a loss payee, it has the status as either an additional insured or a third party beneficiary, and it has a right to demand specific performance from Louisiana Citizens, pursuant to La. C.C. art. 1981, entitled Rights of beneficiary and stipulator, which provides, “[t]he stipulation gives the third party beneficiary the right to demand performance from the promisor. Also the stipulator, for the benefit of the third party, may demand performance from the promisor.”

In addition, Citimortgage argues that in issuing the check to any and all persons/entities that may have an interest in the proceeds, Louisiana Citizens breached its contractual duties to issue payment to the person/entity that is entitled 110to payment. Citimortgage argues that the affidavit of David Burnette, the Assistant Vice President of Citimortgage, indicated that Citimortgage’s loan balance was approximately $113,226.24, the amount of the insurance proceeds, and therefore, pursuant to the pertinent provisions of the mortgage and insurance contracts, Citimortgage was entitled to the entirety of the proceeds, and should have been the only payee on the check. Citimortgage concludes that the actions of Louisiana Citizens caused damages because the insurance proceeds that were to be used to restore the subject property and pay the outstanding loan balance, were converted by Ms. Chase due to Louisiana Citizens listing the payees in an ambiguous manner.

Louisiana Revised Statute 10:3 — 110(d), entitled Identification of person to whom instrument is payable, provides:

If an instrument is payable to two or more persons alternatively, it is payable to any of them and may be negotiated, discharged, or enforced by any or all of them in possession of the instrument. If an instrument is payable to two or more persons not alternatively, it is payable to all of them and may be negotiated, discharged, or enforced only by all of them. If an instrument payable to two or more persons is ambiguous as to whether it is payable to the persons alternatively, the instrument is payable to the persons alternatively.

The scenario presented in the instant matter indicates that multiple persons/entities were listed as payees on the check thereby deeming the check as being negotiable by any of the named payees without regard to the other payees on the check.

In Thus, we need only reiterate that a contract of insurance is the law between the parties. As the primary mortgagee, Citimortgage, as the first mortgagee, should have been named as the first payee on the check, but Liberty Bank was listed as the first payee. Citimortgage (as the primary mortgagee) was merely referred to as “CIT” immediately followed by “c/o Nikecia Chase.” We find that Louisiana Citizens had an obligation to make sure all of its obligations were met by: (1) paying the claim of Ms. Poree, and (2) making sure that the mortgagee(s) to which the check was paid, were both properly identified and listed in order of primacy, as per the contract of insurance. We find that there is no genuine issue of material fact in dispute concerning the defective issuance of the check, and pursuant to La. C.C. art. 1994, Citimortgage is entitled to recoup such amounts from Louisiana Citizens, given that Louisiana Citizens did not meet its obligations under the policy of insurance.

DECREE

Considering the foregoing, we affirm the judgment of the district court.

AFFIRMED


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Wilbur Harold WILLIAMSON Sr., Appellant v. Mary Jean (Waddell) WILLIAMSON, Appellee.
    No. 2010-CA-00400-COA.
    Court of Appeals of Mississippi.
    Jan. 10, 2012.

      Bobby T. Vance, John L. Bailey, Bates-ville, attorneys for appellant.
    Malenda Harris Meacham, Hernando, Joy W. Graves, Starkville, Charles E. Win-field, attorneys for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Wilbur Harold Williamson Sr. (Will) appeals the judgment of the Tate County Chancery Court, which granted him an irreconcilable-differences divorce from his wife, Mary Jean Waddell Williamson (Mary), and the denial of his motion for reconsideration and other relief. Will raises the following assignments of error: (1) whether the chancellor abused her discretion and/or applied an erroneous legal standard and committed manifest error in the division of the marital estate and award of alimony and (2) whether the chancellor abused her discretion and committed manifest error in finding him in contempt of court and in awarding attorney’s fees to Mary. We find merit to Will’s assignments of error as to the equitable division of the marital property and the award of alimony. Therefore, we affirm the judgment of the chancery court as to the judgment of contempt and award of attorney’s fees for contempt of the agreed temporary order and motion to compel. However, the judgment is reversed in part as to the division of the marital estate and the award of alimony, and the case is remanded for further proceedings consistent with this opinion.

FACTS

¶ 2. On August 5, 1967, Will and Mary married. The marriage produced two children-a son born in 1970, and a daughter born in 1977. Will and Mary later separated on December 30, 2008.

¶ 3. On February 4, 2009, Mary filed an “Original Bill of Complaint for Divorce, etc. and Temporary Relief’ on the grounds of habitual cruel and inhuman treatment and/or, in the alternative, irreconcilable differences. On March 10, 2009, Will filed his answer to the complaint for divorce and asserted a counterclaim alleging habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences.

¶ 4. On April 7, 2009, Will and Mary entered into a temporary agreed order, which states in pertinent part:

THIS CAUSE came on for hearing upon the Petition for Temporary Relief filed by the [pjlaintiff, and the parties having reached an agreement in this matter and this [cjourt finding said agreement well taken does hereby find[s] as follows:
2. That both parties shall remain in the marital home.
3. That the parties shall continue to pay the household bills as they have done in the past.
4. That the [pjlaintiff shall continue to pay the note on her vehicle, the light bill[,j and the cable bill, her credit card bills[;j and both parties shall be responsible for the purchase of groceries.
5. That the [defendant shall continue to pay all other household bills, including, but not limited to, [the] mortgage on the marital home (including taxes and insurance), gas/propane (for the marital home), his vehicle note, garbage pickup, pest control, automobile insurance for the parties, his cell phone bill, upkeep and maintenance on the marital home[,] and any bills solely in his name.
6. That the [defendant shall continue to maintain the [p]laintiff on his dental insurance and shall provide vision insurance if same is available through his employer.
7. That both parties are hereby enjoined from removing and/or dissipating funds from any accounts except to conduct the ordinary course of business. Further, both parties are hereby enjoined from removing, destroying, selling[,] and/or dissipating any marital assets.
8. That the [defendant's retirement account with Union National and the [plaintiff’s 401[-]K account through Sycamore Bank shall be frozen until further orders of this [c]ourt. Any other retirement accounts that the parties may own, that are not addressed in this agreement, are hereby frozen as well. Any withdrawals made by the [defendant from any retirement account shall be immediately disclosed to the [c]ourt and an accounting of said funds shall be filed with the [c]ourt.

¶ 5. To receive complete responses to the discovery requests that she had previously served upon Will on March 31, 2009, Mary filed a “Motion for Order Compelling Discovery” on September 28, 2009. Then, on September 29, 2009, Will filed a “Motion to Modify Temporary Order and for Trial Setting,” in which he asserted that he had agreed by order dated April 7, 2009, to pay the mortgage on the house and that he had paid the same through September 2009. He argued in his motion to modify the temporary order that he was now unable to pay the mortgage and other household bills due to a steady decrease in his income since the court entered the temporary order. On December 11, 2009, the chancellor entered an order granting Mary’s motion to compel and required Will to respond fully to all discovery requests, while reserving the issue of attorney’s fees for trial on the merits.

¶ 6. On December 16, 2009, Mary filed a petition for contempt alleging therein that Will was not in compliance with the April 7, 2009 temporary agreed order. In addition to asking the chancellor to hold Will in contempt of court and punish him accordingly for his failure to abide by the temporary order, Mary further requested the chancellor order Will to compensate her for her attorney’s fees and for all costs incurred in bringing the petition for contempt.

¶ 7. Prior to the commencement of the trial, Will and Mary filed a stipulation whereby the parties consented to a divorce on the ground of irreconcilable differences and submitted the following issues for the court’s determination: “[division of marital assets; the award of attorney’s fees, if any; [t]he award of alimony, if any; [and] [t]he issue of contempt, if any.” Trial then commenced on January 13, 2010, in the Tate County Chancery Court. At the beginning of the trial, the parties stipulated that they had agreed to a division of their personal property. After hearing testimony from both parties, the chancellor announced an oral ruling, which was memorialized into the divorce decree and filed by the chancery court on February 9, 2010. Both parties then filed motions for reconsideration, which the chancellor denied. On March 5, 2010, Will filed a notice of appeal, wherein he appealed the divorce decree and the chancellor’s denial of his motion for reconsideration.

¶ 8. On April 6, 2010, while this case was on appeal, Mary filed a petition for contempt, alleging that Will failed to abide by the court’s divorce decree, and she claimed Will owed her $4,824.81. Mary also sought compensation for attorney’s fees and costs incurred in bringing the petition for contempt filed on April 6, 2010. Will filed a response on April 22, 2010, to Mary’s petition for contempt alleging, among other things, impossibility to perform and insufficiency of process and service of process. The chancellor held a hearing on the matter on June 23, 2010, and the chancellor entered an order finding Will in contempt for his failure to abide by the divorce decree and awarding Mary attorney’s fees. In making such findings, the chancellor found that even though Will had paid Mary the sum of $4,824.81 since she filed her petition on April 6, 2010, Mary had still incurred costs in retaining an attorney to bring the action to obtain Will’s compliance with the court’s orders. The chancellor concluded Mary was entitled to compensation for her attorney’s fees.

¶ 9. Additional facts, as necessary, will be provided in our discussion.

STANDARD OF REVIEW

¶ 10. “This Court reviews judgments in domestic relations cases under the familiar ‘substantial evidence/manifest error’ rule.” Trim v. Trim, 33 So.3d 471, 474 (¶ 5) (Miss.2010) (citing Evans v. Evans, 994 So.2d 765, 768 (¶ 9) (Miss.2008)). ‘We will not disturb the chancellor’s findings unless those findings were manifestly wrong, clearly erroneous, or the chancellor applied an incorrect legal standard.” Id.

¶ 11. Additionally, we recognize this standard of review holds true for contempt actions. “[C]ontempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than are we.” Morreale v. Morreale, 646 So.2d 1264, 1267 (Miss.1994) (quoting Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990)). “Contempt is to be determined upon the facts of an individual case and is a matter for the trier of fact.” Milam v. Milam, 509 So.2d 864, 866 (Miss.1987).

DISCUSSION

I. Whether the chancellor abused her discretion and/or applied an erroneous legal standard and committed manifest error in the division of the marital estate and award of alimony.

¶ 12. In our review, we will first address the chancellor’s equitable distribution of the marital property; then, we will address Will’s claim of error in the award of alimony.

A. Property Division

¶ 13. Will argues the chancellor erred by (1) failing to consider the value of the personal property divided by the parties pursuant to their agreement; (2) assigning incorrect values to the parties’ “401-K” accounts, using the value date of his 401-K account as the date of trial, but using the value date of Mary’s 401-K account as the date of the filing for the divorce; (3) failing to assign a value to Mary’s occupation and use of the marital home until sold and the additional costs of a separate residence for him; (4) not assigning a value to the parties’ vehicles; (5) not assigning a value to Mary’s First Tennessee Retirement account where Mary stood to receive approximately $300 per month upon reaching age sixty-five; and (6) not giving him credit for the amounts he had paid under the temporary order or the sums ordered to be paid pursuant to the chancellor’s contempt findings prior to the division of the parties’ 401-K accounts. Will also alleges that the chancellor provided insufficient findings of fact and conclusions of law regarding the valuation and distribution of the marital estate.

¶ 14. The Mississippi Supreme Court has provided the proper sequence for a chancellor’s determination as to the division of marital assets and the award of alimony, stating:

Alimony is considered only after the marital property has been equitably divided and the chancellor determines one spouse has suffered a deficit. “Division of marital assets is now governed under the law as stated in Hemsley [v. Hemsley, 639 So.2d 909 (1994) ] and Ferguson. First, the character of the parties’ assets, i.e., marital or non-marital, 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 [v. Ferguson], 639 So.2d [921,] 928 [ (Miss.1994) ]. If there are sufficient marital assets which, when equitably divided and considered with each spouse’s non-marital assets, will adequately provide for both parties, no more need be done. If the situation is such that an equitable divi-sión of marital property, considered with each party’s non-marital assets, leaves a deficit for one party, then alimony based on the value of non-marital assets should be considered.”

Lowrey v. Lowrey, 25 So.3d 274, 298 (¶ 44) (Miss.2009) (quoting Lauro v. Lauro, 847 So.2d 843, 848 (¶ 13) (Miss.2003)).

¶ 15. At the conclusion of the trial, after considering the evidence and testimony presented by Will and Mary, the chancellor provided the following on-the-record findings as to the equitable division of the marital property:

Your personal property is going to be divided as y’all stipulated, at the beginning of the hearing, remember, when we read out the list. And the additional stipulation that y’all agreed. The only other personal property that y’all talked to me about was the sound system and the DVD player. And I think y’all agreed, during the lunch hour, that [Will] is going to get the one that was in your bedroom, I believe, [Mary], So, [attorneys, y’all incorporate that into the [djecree as the agreement of the parties. And I’m just ratifying your agreement. Y’all didn’t really talk about, or put on any proof about, your cars, but I understood, from the testimony, that [Mary] has a vehicle. She is paying for her vehicle. [Will] has a vehicle. He is paying for his vehicle. And that will continue. You will be awarded your vehicle, [Will]. You will be awarded your’s, [sic] [Mary]. Y’all will each be required to pay the debt on your own vehicle. If the other one’s name is on the title or the indebtedness, y’all need to get your names off the title.... If the other persons’ name is on the obligation to pay for the vehicle[,] I want you each to indemnify each other, you know, for that amount, whatever amount it is you are supposed to be paying on your vehicles. And, other than that, the marital assets, as I understand what they are, are [Will’s] Harrah’s 401-K account, his Wells Fargo Retirement account, and [Mary’s] Retirement or 401-K account, and the home — the marital home.
So, I’m going to talk about the home, separately. I want to talk about your 401-K [accounts], right now. And the only figures I can go with are the figures y’all presented to me, about what the values that you think are the values on the 401-K accounts. And I just can use your testimony about what you think the value is, as well as statements that y’all produced. [Mary’s] 401-K account, the last statement that she had, or the last thing she knew, it was worth $19,000. I don’t know how long ago that was. It may have gone up some; it may have gone down some. But I’m going to use $19,000 as my evaluation, because that’s the testimony I have today. [Will’s] Wells Fargo account — and, if y’all are wondering why I called your attorneys back in there a few minutes ago, when I went to deliberate, I had written down that there was a principal account, [Will]. That principal account, Wells Fargo and your Harrah’s [sic]. And I just wanted to ask your attorneys. They straightened me out. They said the principal account was rolled over into the Wells Fargo account. So, you have two 401-K [accounts]. [Mary] has one. But I’m telling you, the amount [Will] testified was in his Wells Fargo account is around $25,000, so I’m using $25,000 as my evaluation on that. I have got a statement that was produced, that’s a little bit less than that, but he said, the last time he checked, it was about $25,000. [Will’s] Harrah’s 401-K account has about $1[,]500 in it. In fact, I had written that down wrong. I thought it was $11,000. I understand that [Will] took out about $10,000 out of that account. And his testimony is, that he used some of that money to pay his attorney. He used the bulk of that money to pay his attorney. He got some of the money back from his attorney to pay one of the house payments that he was ordered to pay. And, because this money was taken out of his account, very early on, and it was used to pay his attorneyf’s] fees. [Mary] also testified that she had saved some money. She had some money that was saved in a Safety Deposit Box. She used some of that to pay her attorney[’s] fees. I’m going with what we have got in the account, right now, which is $1[,]538.07, is what [Will’s] testimony was. It’s a little bit more than the statement that he produced. I think it was $1[,]400, almost $1[,]500. But I’m going to use that amount. Well, I’m going to treat your 401-K [accounts] kind of together; then, I’ll deal with the house, which is a separate asset.
And, basically, the [c]ourt has the discretion in dividing your properties, to make a fifty-fifty split or any split that the [c]ourt feels is an equitable split. I have made divisions of property fifty-fifty. Generally that’s what I do.... I don’t feel like either one of you have made any more of a dissipation of the assets than the other one has. I mean, I know, basically, what your testimony is, and what I see, as I look at y’all, y’all are sixty and sixty-three years old.... But I added up the values that I have, that I just gave y’all, all of your 401-K accounts. And the total value is $45,538.07. Well, as I said, I’m working on a fifty-fifty split. I feel like y’all worked, y’all both worked, toward raising this family. You both are still supportive of your adult children. Y’all both have worked during the marriage. Y’all both have contributed. You might have contributed more dollars, at some times, [Will], because you made more money. But [Mary] has done other things. And I think — I am finding that your contributions are equal in value, because y’all have both have made contributions to making the marriage work and making — accumulate these things— and I feel like, an equitable thing to do will split things, half and half.

¶ 16. After equitably dividing the 401-K accounts, and addressing the parties’ tax returns by equitably dividing the tax refunds, the chancellor then addressed the equitable division of the marital home as follows:

Okay, the house is the next issue I want to address. The wife will be allowed to continue to live in the house. I mean, basically, [Will], you agreed that you could and would vacate the house. The house is going to be sold. I’m going to order that the house be placed on the market, immediately, and made ready to sell.... And when the house is sold, the equity is to be split, equally, between the two of you.... I’m, going to say that, if the house is not sold within twelve months, then y’all can bring it back to the [cjourt and have the [cjourt re-visit this part of my [ojrder, with regard to you living in the house and the house to be sold.... I’m also trying to equitably divide the debts of the marriage. And the house debt is one of your biggest debts. I don’t want to keep y’all tied up with each other and y’all having to fight about this, but I’m going to try to make a ruling that I think will be equitable and be fair. One thing I don’t think is real fair is if [Mary] pays the whole house payment from now until the house is sold, and it takes three years, and, then, I say the equity is to be divided at the end, that’s not really fair to you, [Will], because — I mean, it’s not fair to her, because she has been building up equity and you get half of it. But, you know, then, she has also had the use of the house, the whole time, too. So, I mean, there is just something I want to try to even out in equity, right now. But, what I’m going to do, I’m going to discuss the alimony factors and, then, I’ll tell y’all what I’m going to do about the house payment.

(Emphasis added). The foregoing opinion of the chancellor reflects that the chancellor considered alimony before completing the equitable division of the property. Even though the chancellor equitably divided the marital home, she used periodic alimony to accomplish such division.

¶ 17. After reviewing the record before us, we find the chancellor erroneously considered and applied the Ferguson factors in completing an equitable division of the marital estate by awarding alimony after completion of the equitable division of the property and by using periodic alimony to accomplish the equitable division of the marital home. The record shows that in an effort to divide the marital home equitably with a fifty-fifty split of the marital property, the chancellor achieved such property division by ordering Will to pay Mary $594 per month as a part of periodic alimony until the house sold, and the chancellor ordered Will to pay an additional $200 per month in periodic alimony. The chancellor then ordered Will to pay, upon the sale of the marital home, $800 in periodic alimony to Mary. The record, therefore, shows that the chancellor failed to complete the equitable division of the property prior to considering whether a need existed warranting an award of periodic alimony.

¶ 18. Accomplishing the equitable division of the marital property by use of periodic alimony confused the issue of the equitable division of the marital home and the issue of whether, after an equitable division of the marital property, this case warrants alimony. See Lowrey, 25 So.3d at 292 (¶ 44) (“The subject of alimony should not be broached unless and until the property division is complete.”). Furthermore, we recognize that the chancellor ordered a money payment of $594 to Mary to accomplish an equitable division of property, but no sale of the house appears in sight. While “we grant chancellors wide discretion when dividing marital property[,]” see Jones v. Jones, 995 So.2d 706, 715 (¶ 33) (Miss.2008), we must, nonetheless, reverse the division of the marital property and the accompanying alimony award, and remand this case for the chancellor to classify and divide the marital property before determining if an award of alimony is warranted in light of any remaining needs of the spouses. After completion of an equitable division of the marital property, then a consideration of whether either spouse suffered a deficit is appropriate in determining whether a need for alimony exists. See Lowrey, 25 So.3d at 293 (¶ 44).

¶ 19. We, nonetheless, find no merit to Will’s claim that the chancellor erred by not providing him “credit” for the amounts the chancery court had ordered him to pay pursuant to the court’s contempt findings prior to dividing the parties’ 401-K accounts. As acknowledged by Mary in her appellate brief, the effect of such an interpretation penalizes Mary for paying the amounts the court ordered her to pay under the temporary agreed order from other funds while allowing Will to deplete his 401-K account, thereby reducing the amount available to Mary. Such an application of payments, in terms of practical effect, charges Mary with a portion of the payments and penalties assessed to Will.

B. Alimony

¶ 20. Will next argues that the chancellor provided insufficient findings of fact and conclusions of law regarding her award of alimony to Mary. Will also argues that the chancellor applied an erroneous legal standard because the facts of this case fail to support an award of permanent periodic alimony. Will contends that before considering periodic alimony, the chancellor had already divided the parties’ 401-K accounts in making an equitable division of the marital estate, and for all practical purposes, the chancellor essentially awarded lump-sum alimony to Mary when the chancellor directed Will to pay Mary $3,768.54 from his 401-K account, thereby equalizing the marital estate. Will further contends that the chancellor’s findings clearly reflect the chancellor’s intent to equalize the financial incomes of the parties. Will asserts that equalization of the future incomes of the parties provides an erroneous and unsupported legal standard in determining periodic alimony. Will also argues because the chancellor rendered no finding of a deficit to either spouse upon the equitable division of the marital estate, then she erred in considering and awarding periodic alimony. As explained in addressing the equitable division of the marital property, we reverse the chancellor’s judgment and remand this ease because the equitable division of the marital property had, indeed, not been completed prior to ordering Will to pay periodic alimony to Mary.

¶ 21. “An award of alimony should only be considered if one party will suffer a deficit after the marital property has been equitably divided.” Seymour v. Seymour, 960 So.2d 513, 519 (¶ 16) (Miss.Ct.App.2006) (citing Lauro, 847 So.2d at 848 (¶ 13)). “Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede.” Id. In determining whether to award periodic alimony, precedent provides the following factors to consider:

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.

Id. at 519-20 (¶ 16) (quoting Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993)).

¶ 22. We now turn to the relevant portions of the chancellor’s findings regarding the Armstrong factors wherein the chancellor achieved an equitable division of the marital property by use of an award of periodic alimony:

The Appellate Courts, in their cases, have given guidelines for the [t]rial [cjourts to use in determining if alimony is going to be awarded or not, and, if so, how much, you know, what to do to even out the equities. And these factors are: the income and expenses of the parties. I have considered your expenses; I have considered your incomes. Your attorneys have both put on a lot of information, and there is about a $31,000, gross[ ] difference in your incomes. According to the cases that have come out of the Supreme Court, for long-term marriages, a lot of time, what the Courts try to do is just even up the income. If you are going to do things, fifty-fifty, they try to — You know, if it’s $31,000, they divide that in half and take half of that money away from husband and give half that money to the wife, to even up the incomes. I’m not going to figure all this on your gross incomes though, because you might be in different tax brackets, you know, once you are divorced. But, you know, I did consider your incomes, in trying to figure out what I think will be a fair thing with regard to alimony and future support. The health and earning capacities of the parties — both of you are still healthy, but both of you are also approaching retirement. And that’s another — I have a big problem with alimony. I really don’t like alimony. I like to try to figure out some other way to divide up things and make things equal, without having to resort to alimony. But the case law says, what I’m supposed to do is divide up your property. And, then, if there is still and [sic] inequity, then I can use alimony to even that out. But one thing I am concerned about, if I award a huge amount of alimony, does that mean you have got to keep working until you are ninety-five, so you can pay that alimony. Well, you know, if I do award a periodic alimony payment, you know, I think, if there is a substantial change in circumstances, at some point in the future, you have the right to come back into [cjourt and to ask that the alimony amount be modified. That’s questionable. I have seen this happen. I have seen the Appellate Court, sometimes, not let that happen, not let it get modified. But — [y]ou know, if they feel like you are just trying to quit working, so you don’t have to pay alimony, and she still has needs. But, anyway, that is another problem that I have about making an alimony award. But, nonetheless, I think that this is a case that alimony is going to be appropriate. But I do want to say about the earning capacities. I think, at this point, you have a different earning capacity, based on what your earnings are now. But I recognize that both of you are approaching retirement. Both of you anticipate retiring, at some point in the future. And I think that’s reasonable, and it’s reasonable to think that, regardless of what sort of alimony award I make, that [sic] it could possibly be modified in the future, if your respective earning capacity changes. The needs of each party, with regard to your financial statements and your expenses, I have taken in to consideration your needs. The obligations and assets of each party, I have also taken that into consideration. The length of the marriage is one of the factors. And, as I said, if there were a five-year marriage, a ten-year marriage, I don’t like alimony. So, you know, people that come in front of me that have short-term marriages, they can just about kiss alimony goodbye, because I don’t like it. But this is a forty-two[year] marriage. Y’all have been together more of your lives than you have been apart.... I mean, y’all have children and grandchildren that you are very close to. They even live with you, not just, you know, peripherally in your life, but that’s another factor that just says to me, based on case law, that this is a case that alimony is appropriate. 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. That’s one of the factors. Y’all have some minor children in your home, but they are not your responsibility, you know. And, in fact, as I looked through your expenses, I felt like both of you are — your expenses, your household expenses, are greater than they should be, just as you, [Mary], would need, or you, [Will], would need, because you are supporting and you have got your children and your grandchildren living in your home.... But I’m not taking that into consideration, because that’s not your responsibility to provide.
The tax consequences of the spousal support [o]rder ... any periodic alimony is going to be taxable to you, [Mary], It’s going to be a tax break to you, [Will]. Fault or misconduct — and I have heard the little bit of evidence about fault. That might weigh a little bit in my decision. It’s not going to make a huge dent, one way or the other. But I have heard that testimony.
Wasteful dissipation of assets by either party. I don’t think, as I said earlier, that either one of you have dissipated
any assets. But, when I tried to figure out what would be the difference, if I took your income and your income, and tried to equalize your incomes, basically, I worked from the net income, but added back in the $7,000 tax refund that y’all would get. Because, basically, your tax refund is income to you, and it averages out about $588 a month more income, if you take $7,000.... You got about $7,000 back, last year. That averages in to about another $500-and-something a month. That leaves a difference — Like, if I took $81847 from you, [Will], and gave it to [Mary], that would, pretty much, equalize your net incomes each month. So, that is kind of the figure that I’m working with, in my head. I’m not, at this point, going to set alimony [on] that amount, because, at this point, we also have this joint marital debt, this $1[,]188, I think is what that [sic] y’all said you owe on the marital home. So, I’m going to, basically, divide that amount. I’m going to have [Will] pay you, $594 every month, [Mary], until the house is sold. And I’m ordering you to take that $594, and put your own $594 with it, and pay the house payment each month, because the house payments have got to be paid. It’s a joint marital obligation.
And, then, in addition to that, until the house is sold, I’m going to require [Will] to pay you an additional $200 every month in alimony. That, basically, gives you about $800 a month from [Will], [Mary]. Half of that is going — I mean $591 of that is going to befar your offset for your house payment. And, actually, right now, that means [Will] is coming out a little bit behind, because out of that, you get your living space paid for. [Will] is still — That’s going to about equalize your incomes, but, out of that, [Will] is still going to have to pay something to put a roof over his head. So, that’s going to be my [ojrder. The month after the house is sold, [Will’s] alimony is going to increase to $800 a month, so that will equalize your incomes.

(Emphasis added).

¶ 23. The record reflects that in equitably dividing the marital property, the chancellor erroneously applied the Armstrong factors by awarding Mary alimony in order to create equalization of the parties’ incomes. The chancellor then ordered Will to pay Mary $594 per month to be applied toward the mortgage on the marital home; and, in addition to that amount, the chancellor awarded Mary $200 per month in periodic alimony, for a total of $794, or approximately $800, until the former home sold. As evidenced by the chancellor’s findings, the chancellor accomplished the ordered equitable division of the marital property by aid of an award of periodic alimony in favor of Mary in order to make the parties’ financial situations “equalized.” The record shows, as set forth in the excerpts herein, that the chancellor had not completed an equitable division of the marital property prior to considering alimony. In accordance with precedent, the equitable division of the marital property must be completed prior to determining if either spouse suffers a deficit in the division of the marital estate warranting an award of alimony. The record in this case shows, however, that the chancellor used alimony to equalize the parties’ future incomes instead of awarding alimony based upon need existing after completion of an equitable division of the marital property.

¶ 24. Mississippi now embraces the process of equitable division of the marital property. In applying the “equitable” division of the marital property in accordance with the Ferguson factors, alimony fails to serve as the primary method to equalize property division. See Lowrey, 25 So.3d at 292 (¶ 44) (“[A]limony has become a secondary remedy to property division .... ‘One of the goals of adopting equitable distribution was to alleviate the need for alimony.’”). Alimony, instead, assists in the event the chancellor determines that a need exists by a spouse after the completion of the equitable division of the marital property. See id. at 293 (¶ 44) (“If the situation is such that an equitable division of marital property, considered with each party’s non-marital assets, leaves a deficit for one party, then alimony based on the value of non-marital assets should be considered.”); George v. George, 22 So.3d 424, 428 (¶ 7) (Miss.Ct.App.2009) (“[A]n award of periodic alimony is based upon need.”).

¶ 25. Accordingly, we must reverse the award of alimony, along with the division of the marital property, and we remand this case for future proceedings consistent with this opinion.

II. Whether the chancellor abused her discretion and committed manifest error in finding Will in contempt of court and in awarding Mary attorney’s fees.

A. Contempt of Temporary Agreed Order/Motion to Compel

¶ 26. In reviewing contempt matters, we recognize that “contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than we are.” Morr-eóle, 646 So.2d at 1267.

¶ 27. On December 16, 2009, Mary filed a petition for contempt. In her petition, Mary complained that Will failed to abide by the temporary agreed order, specifically by failing to pay the mortgage payment on the marital home for two months and by not paying for the gas/propane for the marital home. After a hearing on January 13, 2010, the chancellor found Will in contempt, noting that Will admitted to being in contempt for his failure to comply with the temporary order, and the chancellor also ordered Will to pay Mary $2,500 for her attorney’s fees incurred in bringing the contempt action. Additionally, the chancellor ordered Will to pay Mary $915.81 in attorney’s fees for her efforts in bringing a motion to compel to receive more complete answers to the discovery requests she propounded upon Will.

¶ 28. Will argues that the chancellor erred by finding him in contempt and in awarding Mary attorney’s fees. Will claims that he was unable to pay the amounts in the temporary agreed order because the temporary order resulted in his 401-K accounts being frozen by a Qualified Domestic-Relations Order (QDRO) until further order from the court. Will further asserts inability to pay is a defense to a case of contempt. Will also avers he was not properly held in contempt because there was no time frame stated in the temporary order in which he had to pay the items attributed to him. Will also alleges Mary’s simple recitation of her attorney’s fees is subject to abuse. Finally, Will asserts that the chancellor’s award of attorney’s fees was not made in accordance with the McKee factors and should be reversed. We find Will’s assertions are without merit.

¶ 29. After reviewing the record, we find the chancellor did not err in finding Will in contempt of court for his failure to abide by the temporary agreed order and in awarding Mary attorney’s fees for the cost she incurred in bringing the contempt action regarding the temporary order. See id. As acknowledged by the chancellor, the record shows Will admitted to being in contempt of the chancery court’s order for his failure to pay the amounts agreed upon in the temporary agreed order. The record further reveals that even if the court froze Will’s 401-K accounts by the temporary order until further order of the court, testimony presented at trial demonstrated that Will possessed sufficient income to pay Mary the amounts agreed upon in the temporary agreed order when the payments were due. We also find sufficient evidence in the record to support the chancellor’s award of attorney’s fees. See Patterson v. Patterson, 20 So.3d 65, 73 (¶ 26) (Miss.Ct. App.2009) (an award of attorney’s fees is appropriate after a finding of contempt). The record reflects that the chancellor admitted into evidence the attorney’s statement of fees incurred without objection from Will. We find no error by the chancellor, and Will also waived his claim of insufficiency of evidence in support of such award by the chancellor because he failed to object timely. See Common v. Common, 42 So.3d 59, 62 (¶7) (Miss.Ct.App.2010) (“Where a party fails to object to an issue at the trial, the issue is waived on appeal.”).

¶ 30. Furthermore, we find no merit to Will’s contention that the chancellor erred in awarding attorney’s fees to Mary due to a lack of consideration of the McKee analysis. Will’s argument fails to differentiate the chancellor’s award of attorney’s fees in a divorce action as compared to a contempt action. In Mabus v. Mabus, 910 So.2d 486, 490 (¶ 13) (Miss.2005), the Mississippi Supreme Court explained that, generally, in divorce actions, appropriate attorney’s fees are awarded in an amount to secure a competent attorney. However, in contempt actions, attorney’s fees are awarded “to make the plaintiff whole.” Id.; see also Patterson, 20 So.3d at 73 (¶ 26) (stating that an award of attorney’s fees is appropriate when there is a finding of contempt, and “[n]o showing as to the McKee factors is required”); Bounds v. Bounds, 935 So.2d 407, 412 (¶ 18) (Miss.Ct. App.2006). As stated, Mary introduced an itemization of attorney’s fees into evidence at trial. Will failed to provide sufficient evidence showing that the attorney’s fees testified to by Mary were unreasonable. Therefore, we find no abuse of discretion by the chancellor in finding Will in contempt and in awarding Mary the attorney’s fees she incurred in bringing her petition for contempt. See Mabus, 910 So.2d at 489 (¶ 8) (“Where a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney[’s] fees and expenses should be awarded to the wronged party.”).

¶ 31. Additionally, as to Will’s argument that the chancellor erred by awarding Máry attorney’s fees for her costs in filing the motion to compel, we, likewise, find no merit. We recognize the chancellor possesses sole discretion as to whether sanctions should be imposed for discovery violations, and we employ an abuse-of-discretion standard of review when considering a chancellor’s order of sanctions. Williams v. Williams, 43 So.3d 517, 521-22 (¶ 19) (Miss.Ct.App.2010) (citing Hayes v. Entergy Miss., Inc., 871 So.2d 743, 747 (¶ 11) (Miss.2004)). Mississippi Rule of Civil Procedure 37(a)(4) provides:

If the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

¶ 32. The record shows that Will failed to provide complete and timely responses to Mary’s requests for discovery prior to Mary filing her motion to compel. The record also reflects Will provided no adequate reason for his failure to comply. Thus, in accordance with Rule 37, we find no error in the chancellor’s order requiring Will to pay Mary’s attorney’s fees for her cost incurred in bringing the motion to compel. See Russell v. Russell, 733 So.2d 858, 862-63 (¶ 16) (Miss.Ct.App.1999).

¶ 33. Accordingly, we find no merit to Will’s arguments as to chancellor’s findings of contempt and award of attorney’s fees to Mary.

B. Contempt of Divorce Decree

¶ 34. Will argues that the chancellor erred in finding him in contempt of the divorce decree after he filed his notice of appeal and in awarding attorney’s fees to Mary for costs incurred in bringing the petition for contempt. We find this issue is not properly before this Court for our consideration and find the contempt action separate from the divorce judgment cited in the notice of appeal. See Shavers v. Shavers, 982 So.2d 397, 402 (¶ 25) (Miss.2008) (“Although contempt proceedings in divorce cases often are filed in the same cause number and proceed with the underlying divorce case, they are held to be separate actions, requiring new and special summons under Mississippi Rules of Civil Procedure 81.”).

¶ 35. Mississippi Rule of Appellate Procedure 3(c) requires the notice of appeal to designate as a whole or in part the judgment or order from which appealed. Will filed his notice of appeal on March 5, 2010, appealing the divorce decree and the chancellor’s order denying his motion for reconsideration. Particularly, Will’s notice of appeal contains no reference to the chancellor’s order finding him in contempt of the divorce decree as required.

¶ 36. THE JUDGMENT OF THE TATE COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ„ CONCUR. FAIR, J„ NOT PARTICIPATING.

      . In her motion, Mary asserted that on June 10, 2009, Will provided responses to her discovery requests, but the answers were incomplete.

      . In her appellate brief, Mary acknowledges that Will filed a motion to modify the temporary order and for trial setting but states that there is no evidence in the record that Will ever advanced the motion to modify the temporary order. Mary asserts there is certainly no ruling on the motion in the record; therefore, the temporary agreed order remained in effect throughout the pendency of the divorce action. Will contends that the hearing on the motion was noticed for October 26, 2009; however, he states that it is apparent that the motion was not heard on that day. Will also acknowledges that his motion to modify the temporary agreed order was not heard on the date of the trial, January 13, 2010.

      . The parties initially disputed the division of their audio-visual equipment; however, the matter was resolved by the parties during the trial.

      . The record shows that Mary filed her motion for reconsideration and other relief on February 12, 2010, and the chancellor denied the motion on March 9, 2010. The record further shows that Will filed his motion for reconsideration and other relief on February 17, 2010. The chancellor denied Will’s motion on March 4, 2010.

      . The parties stipulated that Will should receive the following items of personal property: weed eater; chain saw; tools; yard tools; shotgun; his personal effects; utility trailer; his clothing; big screen television; DVD player and sound system in Mary’s bedroom; and his bed, mattresses, desk, and armoire. The parties further stipulated that they would equally divide and/or have copies made of the family photographs, and Mary would keep all other items of personal property located in the marital home and in her possession.

      . The Ferguson factors include: “(1) contribution to the accumulation of property, (2) dissipation of assets, (3) the market or emotional value of assets subject to distribution, (4) the value of assets not subject to distribution, (5) the tax and economic consequences of the distribution, (6) the extent to which property division may eliminate the need for alimony, (7) the financial security needs of the parties, and (8) any other factor that in equity should be considered.” Hults v. Hults, 11 So.3d 1273, 1281 (¶ 36) (Miss.Ct.App.2009).

      . The record shows that the chancellor told the parties that they could return to court if the house was not sold in twelve months so that the court could revisit the issue of the house being sold and Mary's continuing to live in the house until it sold. However, during the interim, the chancellor explained she equally divided the house debt by requiring Will to pay $594 each month to Mary until the house sold, in addition to paying Mary $200 in periodic alimony, for a total amount of $794 a month.

      . Will specifically asserts that the chancellor made no finding of a deficit to either spouse after the division of the parties' 401-K accounts.

      . As stated, the chancellor instructed the parties that they could return to court if the house had not sold in twelve months so that the court could revisit the issue of the house being sold and Maty’s continuing to live in the house until it sold. During the interim, the chancellor explained she equally divided the mortgage debt by requiring Will to pay $594 each month to Mary until the house sold, in addition to paying Mary $200 in periodic alimony.

      .In finding Will in contempt, the chancellor stated:
      Also, then [Mary] testified that, of the monies that I ordered you, [Will] to pay, she has had to give to you, $200 toward the house payment; $449 to pay toward the gas in the house; $610 she had to pay to buy eye glasses [sic], when you are supposed to have vision insurance for her; and $150 for the lawn service_ That totals $1,409 of monies that I ordered you to pay, [Will], at the [temporary, that, either, she paid to you, or she paid directly, that you have got to pay her back. So, I am awarding [Mary] a [¡Judgment in that amount, and I am ordering you to pay that. And I'm also assessing you attorney’s fees of $2[,]500 for her having to bring the contempt action. If you had done what you were supposed to do, you wouldn't have had to be paying her attorney[’s] fees for contempt.

      . Will alleges that the QDRO puts a hold on his 401-K account after the temporary agreed order was entered even if it was not the intent of the chancery court.

      . McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982).

      . In contradiction to this claim, Will acknowledges in his brief that the decision whether to award attorney’s fees is discretionary with the court, and the court is not required to take McKee proof in a contempt action.

      . Mary brought the petition for contempt of the divorce decree on April 6, 2010, after the filing of the notice of appeal and while the case was on appeal.

      . Moreover, we recognize that this is not a situation addressed by Mississippi Rule of Appellate Procedure 4(d), where a notice of appeal filed prior to the entry of certain post-trial rulings is deemed to include those rulings since the petition for contempt filed on April 6, 2010, is an entirely separate action and not a post-trial motion. See Shavers, 982 So.2d at 402 (¶ 25).


author: GRIFFIS, P.J., CARLTON, J.,

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of Ameriquest Mortgage Securities, Inc., Asset Backed Pass Through Certificates, Series 2004-R11 Under the Pooling and Servicing Agreement, Appellant v. Wilburn L. BRECHTEL, Jr., and Barbara Brechtel, Appellees.
    No. 2010-CA-01794-COA.
    Court of Appeals of Mississippi.
    Jan. 31, 2012.

      Sean Albert Southern, attorney for appellant.
    Wilburn L. Brechtel Jr., appellee, pro se.
    Barbara Brechtel, appellee, pro se.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Deutsche Bank National Trust Company appeals the chancellor’s denial of its motion for a default judgment. This Court lacks jurisdiction to consider this appeal. We therefore dismiss this appeal for want of jurisdiction.

¶2. On September 22, 1994, the Bre-chtels obtained property located in Harrison County at 13509 W. Echo Drive in Gulfport, Mississippi, from Hazel Louise Wilson and James J. Robinson via a warranty deed. The Brechtels recorded the deed in the land records.

¶ 3. After acquiring the property, the Brechtels purchased a manufactured home in 1999 and placed it on the land. The Brechtels affixed the manufactured home to the property at 13509 W. Echo Drive and removed the wheels and axles. On December 2, 1999, they had the manufactured home certified as real estate by the Harrison County Tax Assessor.

¶ 4. On November 9, 2004, the Brechtels executed a deed of trust to Ameriquest Mortgage Company and, subsequently, recorded the instrument in the land records. Ameriquest then assigned the deed of trust on June 25, 2007 to Deutsche Bank, as Trustee of Ameriquest Mortgage Securities Inc. Asset Backed Pass Through Certificates, under the Pooling and Servicing Agreement. This assignment was also recorded in the land records. The deed of trust contained no reference to the manufactured home.

¶ 5. The Brechtels defaulted on the terms and conditions of their loan. On July 17, 2008, Deutsche Bank foreclosed on the property through a non-judicial foreclosure sale. A substitute trustee’s deed conveying the property to Deutsche Bank was recorded in the land records.

¶ 6. On June 1, 2010, Deutsche Bank filed a complaint for a declaratory judgment that asked the chancellor to declare that the manufactured home was included in the foreclosure sale of the Brechtels’ property. Deutsche Bank also asked the chancellor to direct the Mississippi State Tax Commission (MTC) to issue a new certificate of title to the manufactured home, listing Deutsche Bank as the owner. On June 25, 2010, the Brechtels were served with process by publication, and on June 11, 2010, “any and all persons with an interest in the property at 13509 W. Echo Drive, Gulfport, Mississippi,” were also served by publication.

¶ 7. On August 3, 2010, docket entries of default were filed for the Brechtels and “any and all persons with an interest in the property bearing the municipal address of 13509 W. Echo Drive, Gulfport Mississippi.” The MTC filed an entry of appearance, but it did not contest the complaint.

118. On August 3, 2010, Deutsche Bank filed its motion for a default judgment, which the chancellor denied on September 13, 2010. The chancellor considered the merits of the complaint and interpreted Mississippi Code Annotated section 27-53-15 (Rev. 2010). The chancellor’s order of denial explained that he had interpreted the statute to provide that it was not mandatory for a party to obtain a security interest in a manufactured home along with a security interest in the land; however, in order to obtain a security interest in the manufactured home, the party would have to follow the statute by describing both the land and the manufactured home in the security instrument. The chancellor reasoned that since the deed of trust failed to contain the legal description of the manufactured home, then the foreclosure sale failed to include the manufactured home; thus, Deutsche Bank could not obtain a certificate of title listing Deutsche Bank as the owner of the manufactured home.

¶ 9. Deutsche Bank now appeals the chancellor’s order of denial, arguing that the chancellor erred in his interpretation of section 27-53-15 and in his denial of the motion for a default judgment.

¶ 10. The only brief before this Court on appeal is Deutsche Bank’s brief. In the appellant’s brief, Deutsche Bank asserts the errors made by the chancellor, but the issue of whether the chancellor’s judgment is a properly appealable, final judgment has not been raised. However, this Court must address the issue on its own initiative. M.W.F. v. D.D.F., 926 So.2d 897, 899 (¶ 4) (Miss.2006) (quoting Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284, 285 (¶ 5) (Miss.1999)).

¶ 11. We are compelled to find an order that denies a motion for a default judgment under Mississippi Rule of Civil Procedure 55(b) is not a final, appealable judgment. The comment to Rule 55, citing Mississippi Rule of Civil Procedure 54(a), clearly states: “A judgment entered pursuant to Rule 55(b) may be reviewed on appeal to the same extent as any other judgment; however, an order denying a motion for default judgment is interlocutory and not appealable.” Rule 54(a). (Emphasis added). See Adult Film Ass’n of Am., Inc. v. Thetford, 776 F.2d 113, 115 (5th Cir.1985).

¶ 12. The dissent finds that the order denying motion for a default judgment was a final, appealable judgment. Yet the cases cited by the dissent do not stand for this principle. In fact, there are no Mississippi cases where an appellate court considered the trial court’s “denial” of a motion for default judgment as an appeal-able, final judgment. The dissent simply ignores the comment to Rule 55.

¶ 13. Despite its lack of authority to support its finding, the dissent concludes that “no issues of fact were left remaining after the chancellor issued his denial of the default judgment.” The order for a default judgment does not resolve “facts in dispute” or decide the “merits of the plaintiffs claim.”

¶ 14. After the chancellor denied the motion for a default judgment, Deutsche Bank had to decide whether to amend the complaint, dismiss the complaint, file a motion for summary judgment, or set the case for trial. If we agree with the dissent and affirm the chancellor’s order, this case would not be over. Instead, it would be in the same procedural posture as if it were never appealed.

¶ 15. Deutsche Bank’s attempt to appeal the denial of the motion for a default judgment is an interlocutory appeal. Interlocutory appeals are governed by Rule 5 of the Mississippi Rules of Appellate Procedure. To proceed with an appeal from an interlocutory order, the appellant must receive permission from the Mississippi Supreme Court. M.R.A.P. 5. Here, no permission was requested, and none was received. This matter is not within this Court’s jurisdiction. Therefore, we dismiss this appeal.

¶ 16. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., BARNES, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, P.J., ISHEE AND RUSSELL, JJ. FAIR, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 17. I respectfully dissent. The majority opinion raises an issue as to this Court’s jurisdiction and states that the denial of a motion for a default judgment is not a final, appealable judgment. The majority ultimately determines that this Court lacks jurisdiction to hear this appeal. I most respectfully disagree with this conclusion. As I find that this appeal is properly before this Court, I must respectfully dissent.

¶ 18. I acknowledge that an appeal “may be taken as a matter of right only after the trial court disposes of all the claims against all defendants.” Calvert v. Griggs, 992 So.2d 627, 631 (¶10) (Miss.2008). In this case, Deutsche Bank National Trust Company (Deutsche Bank) filed its complaint in the Harrison County Chancery Court for a declaratory judgment and for mandamus presenting only a question of law defining the respective rights of the parties in' accordance with the controlling statute and the language of the deed of trust at issue. More specifically, the question of whether ownership in the manufactured home vested and was, therefore, included in the foreclosure sale under the deed of trust at issue constituted the sole issue raised by the complaint against Wilburn and Barbara Brechtel (collectively, the Brechtels) for declaratory judgment and for mandamus. The chancellor denied the relief requested by Deutsche Bank in denying the motion for a default judgment and finding that under Mississippi Code Annotated section 27-53-15 (Rev. 2010) and the language of the deed of trust failed to grant Deutsche Bank a security interest in the manufactured home. See M.R.C.P. 57(a) & (b).

¶ 19. In the chancellor’s order, he denied Deutsche Bank’s motion for a default judgment and addressed a question of law and statutory interpretation. In this case, I find that no issues of fact were left remaining after the chancellor issued his denial of the default judgment, which constituted a declaratory judgment adjudicating the respective rights raised by Deutsche Bank’s sole claim against the Brechtels. See M.R.C.P. 52; M.R.C.P. 58 (“[A] judgment which fully adjudicates the claim as to all parties and which has been entered as provided in [Mississippi Rule of Civil Procedure] 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled.”); Miss.Code Ann. § 11-51-3 (Rev. 2002); Clark v. Clark, 43 So.3d 496, 502 (¶ 29) (Miss.Ct.App.2010) (Although appellate courts generally lack jurisdiction to hear appeals from temporary orders, denial of- certain motions can constitute final, appealable judgments.); Rigdon v. Miss. Farm Bureau Fed’n, 22 So.3d 321, 324-25 (¶¶7-9) (Miss.Ct.App.2009).

¶ 20. As the Mississippi Supreme Court explained in Unknown Heirs at Law of Blair v. Blair, 601 So.2d 848, 851 (Miss.1992), “[a] default judgment is one entered without regard to the merits of the plaintiffs claim.” In Sliman v. Nguyen, 22 So.3d 1173, 1174 (¶ 6) (Miss.2009) (citations omitted), the supreme court reiterated that a judgment adjudicating the merits of the controversy which settles all the issues as to all the parties is a final judgment. Conversely, interlocutory orders adjudicate “fewer than all the claims or the rights and liabilities of fewer than all the parties” and are not appealable. Stringer v. Am. Bankers Ins. Co. of Fla., 969 So.2d 113, 117 (¶ 18) (Miss.Ct.App.2007) (citing Stringer v. Am. Bankers Ins. Co. of Fla., 822 So.2d 1011, 1015 (1112) (Miss.Ct.App.2002)); M.R.C.P. 54(b). In the present case, the chancellor’s order adjudicated the sole issue between the parties of whether the manufactured home on the property constituted part of the real property subject to the foreclosure sale under that deed of trust. The chancellor’s determination of this sole issue raised in Deutsche Bank’s complaint for declaratory relief left no remaining issues of fact to be determined between the parties. Rule 57(a) provides that a judgment for declaratory relief action may be either affirmative or negative in form or effect and that the existence of another adequate remedy does not preclude a judgment for declaratory relief in actions where it is appropriate. The comment to Rule 57 further explains that the scope of relief requested is limited to the relief requested in the pleadings, and the evidence and the decree can be no broader than the issue tried.

¶21. The chancellor issued an order declaring the parties’ rights with respect to the language of the deed of trust at issue and the controlling statute. In doing so, the chancellor denied Deutsche Bank the relief it requested in its motion for a default judgment. After denying the relief requested by the complaint for declaratory judgment and subsequent motion for a default judgment, no issues of fact were left to adjudicate. In Allstate Insurance Company v. Green, 794 So.2d 170, 174-75 (¶ 13) (Miss.2001), the supreme court addressed the authority of the court to render default judgments based upon the merits of claims for relief in the pleadings, stating:

In Dynasteel Corp. v. Aztec Indus., Inc., 611 So.2d 977, 984 (Miss.1992), this court noted the well-established rule that “the pleadings must lay a basis for any claim upon which relief can subsequently be granted.” See also Thomson v. Wooster, 114 U.S. 104, 108, 5 S.Ct. 788, 29 L.Ed. 105 (1885) (holding default judgment may be lawfully entered only “according to what is proper to be decreed upon the statements of the bill[,] assumed to be true[,]” and not “as of course according to the prayer of the bill”); Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir.1975) (“There must be a sufficient basis in the pleadings for the judgment entered”). Thus Green can only seek relief supported by the facts, not conclusions, articulated in his complaint, and if those facts do not establish a legal basis for recovery, Green is not entitled to judgment, notwithstanding Allstate’s neglect in failing to answer his complaint.

Accordingly, I find that the chancellor’s judgment is not interlocutory in nature; therefore, this appeal is properly before the Court. Stringer, 969 So.2d at 117 (¶ 20); See also Rigdon, 22 So.3d at 324-25 (¶¶ 7-9) (A judgment is final and appeal-able if there is a writing which is the final determination of an action and has the affect of terminating the litigation, signed by the court, and filed and entered by the clerk.).

¶ 22. After finding that this Court does indeed possess jurisdiction over the present case, I now turn to address the merits of Deutsche Bank’s assignment of error. Deutsche Bank argues on appeal that the manufactured home became part of the real property once the Brechtels affixed the manufactured home to the land and proceeded to take the necessary steps to have the home certified as real estate by the tax assessor. Deutsche Bank further submits that the language in section 27-53-15 constitutes permissive language; thus, it claims the chancellor erred in interpreting the language of the statute as being mandatory.

¶ 23. In his order denying the request for a default judgment, the chancellor explained that the Brechtels originally executed the deed of trust to Ameriquest Mortgage Securities Inc. (Ameriquest), and then Ameriquest later assigned the deed to Deutsche Bank. The deed of trust contained a legal description of the real property attached to the deed, but the legal description contained no reference to the manufactured home located on the real property. In applying the controlling statute to resolve the issue, the chancellor stated that the use of “may” in the relevant portion of section 27-53-15 means that a security interest in a manufactured home classified as real property may be obtained using the method set forth in the statute. The chancellor also found that a party is not required to obtain a security interest in both the manufactured home and the land, but a security interest in just the land may be obtained by deed of trust. The chancellor further determined that since the deed of trust only included a description of the land, then Deutsche Bank chose not to obtain a security interest in the manufactured home. Instead, Deutsche Bank only obtained a security interest in the land described in the deed of trust.

¶ 24. The chancellor therefore held that ownership of the manufactured home failed to vest in Deutsche Bank as a result of the foreclosure of the property since the deed of trust only included the legal description of the land with no description of the manufactured home. The chancellor then denied the motion for a default judgment. Deutsche Bank’s confusion arises in that Mississippi law allows an owner of a manufactured home to classify the home as real property to attain the ad valorum tax benefits, but additional steps are needed to ensure a security interest in the land attached also to the manufactured home.

¶ 25. In my review, I turn to language from section 27-53-15, which sets forth the steps required to classify a manufactured home as real property to attain ad valorum tax benefits as follows:

The manufactured homeowner or mobile homeowner who owns the land on which the manufactured home or mobile home is located shall have the option at the time of registration of declaring whether the manufactured home or mobile home shall be classified as personal or real property. If the manufactured home or mobile home is to be classified as real property, then the wheels and axles must be removed and it must be anchored and blocked in accordance with the rules and procedures promulgated by the Commissioner of Insurance of the State of Mississippi. After the wheels and axles have been removed and the manufactured home or mobile home has been anchored and blocked in accordance with such rules and procedures, the manufactured home or mobile home shall be considered to have been affixed to a permanent foundation. The county tax assessor shall then enter the manufactured home or mobile home on the land rolls and tax it as real property on the land on which it is located from the date of registration. At such time, the county tax assessor shall issue a certificate certifying that the manufactured home or mobile home has been classified as real property.

¶ 26. I now turn to a later provision in that same statute which sets forth the procedure to obtain a security interest in the manufactured home, stating:

Upon the filing of the certificate in the land records, the manufactured home or mobile home shall then be considered real property for purposes of ad valorem taxation. The filing of such a certificate shall not affect the validity or priority of any such existing perfected lien. If a manufactured home or mobile home is classified as real property and no certificate of title was required to be issued or issued for such property pursuant to Chapter 21, Title 68, Mississippi Code of 1972, a security interest may be obtained therein through the use of a mortgage or deed of trust describing both the manufactured home or mobile home and the land on which the manufactured home or mobile home is located.

Miss Code Ann. § 27-58-15.

¶ 27. After reviewing the record and applicable statutes, I find that Deutsche Bank properly acknowledged section 27-53-15 as the controlling statutory authority on how to perfect a security interest or mortgage interest in a manufactured home. However, Deutsche Bank relies on a reading of only a portion of the statute, and it is Deutsche Banks’s reading of that portion out of context that has caused its confusion. Deutsche Bank fails to embrace Mississippi law applicable to fixtures such as manufactured homes, as reflected in section 27-53-15. The statute must be read as a whole and read in context, and this Court must apply the plain meaning of the statute. City of Natchez, Miss. v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992). In so doing, I would affirm the chancellor’s judgment.

¶ 28. I agree with the chancellor that Deutsche Bank failed to obtain a security interest in the manufactured home through the deed of trust; rather, it obtained only a security interest in the land since the deed of trust failed to include a description of the manufactured home. The plain language of section 27-53-15 sets forth the option of classifying manufactured homes as personal or real property. This statute also specifies the method by which a security interest may be obtained in a manufactured home classified as real property in situations where Chapter 21, Title 63 of the Mississippi Code Annotated required no issuance of certificate of title.

¶ 29. Significant to both my separate opinion and the chancellor’s judgment, the method set forth in section 27-53-15 allows a security interest to be obtained in manufactured homes classified as real property “through the use of a mortgage or deed of trust describing both the manufactured home or mobile home and the land on which the manufactured home or mobile home is located.” Therefore, the mere classification of a manufactured home as real property for ad valorum tax benefits is insufficient; the additional step of describing the home in the deed of trust or mortgage is required to obtain a security interest. Even though the manufactured home may be currently classified as real property for tax purposes, the manufactured home still retains its status as personal property for chattel financing, and the owner possesses the option to later reclassify the manufactured home as personal property.

¶ 30. A review of case law from other jurisdictions reveals that many states have wrestled with classification of fixtures, such as manufactured homes, that may be classified as real property for taxation purposes but may also retain or regain their status as personal property. For example, in the case of In re Renaud, 302 B.R. 280 (Bankr.E.D.Ark.2003), the United States Bankruptcy Court for the Eastern Division of Arkansas held that the bank’s mortgage on real property owned by a Chapter 7 bankruptcy debtor failed to perfect its security interest in the debtor’s manufactured home, even though the manufactured home was affixed to the real property. The court based its determination on the language of the Arkansas vehicle titling statute, which required liens on manufactured homes to be filed with the Arkansas Department of Finance and Administration and also required such liens to be reflected on the manufactured home’s certificate of title as the exclusive method for perfecting security interest therein.

¶ 31. Indeed, I recognize that conflicts between personal property interests and real property interests in fixtures arise when a real-estate mortgagee claims not only the real estate but also all appurtenances, fixtures, buildings, equipment, and so forth. See 4 White & Summers, Uniform Commercial Code § 33-5 (6th Edition 2010). Under the Uniform Commercial Code, manufactured homes fall into a class of goods that become a part of real property for certain purposes, but as to which chattel financing may also be preserved. UCC § 9-334; see also UCC § 9-334 cmt. 3. Goods cross the line from goods to fixtures when they become so sufficiently related to the real property that they would pass in a deed under local real-estate law. 35 Am.Jur.2d Fixtures § 1 (1967). However, I recognize that property passing by deed in one state may not be sufficiently related to the realty to pass through a deed in another state. Thus, I must follow Mississippi’s statute defining how to attach a security interest by deed of trust to a manufactured home classified as real property.

¶ 32. In this case, I find that the chancellor correctly found that this statute set forth the method to obtain a security interest in a manufactured home in a mortgage or deed of trust, and I similarly find that the statute requires that the deed or trust or mortgage must contain a description of the manufactured home in a order to obtain a security interest in both the realty and the home.

¶ 33. Based upon the foregoing, I must respectfully dissent from the majority’s opinion. After finding that this Court indeed possesses jurisdiction to hear the present case, I would affirm the chancellor’s determination that ownership of the manufactured home failed to pass to Deutsche Bank in the foreclosure of the property listed in the deed of trust.

IRVING, P.J., ISHEE AND RUSSELL, JJ., JOIN THIS OPINION.

      . Based on the information before this Court, it appears that Deutsche Bank may decide to amend its complaint, under Mississippi Rule of Civil Procedure 15, and allege a claim of mutual mistake. Deutsche Bank could assert that the parties intended to include the manufactured home in its deed of trust and then proceed with another foreclosure proceeding. Thereafter, there would be no reason the MTC could not then be directed to deliver the certificate of title or cancel the security interest.

      . Mississippi Rule of Civil Procedure 57(b) provides: "Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status or other legal relations thereunder.”

      . I acknowledge that default judgments are not favored by the law. See Am. States Ins. Co. v. Rogillio, 10 So.3d 463, 467 (¶ 8) (Miss.2009).

      . Compare Williams v. Bud Wilson’s Mobile Home Serv., 887 So.2d 830, 832 (¶¶ 5-6) (Miss.Ct.App.2004) (Where there is nothing left in a Mississippi trial court and a Mississippi appellate court constitutes the only court left that can provide relief as to a question of law, the dismissal was a final judgment.).

      . See M.R.C.P. 58.

      . The method set forth in section 27-53-15 allows a security interest to be obtained in a manufactured home by a deed of trust describing the manufactured home in the security instrument, the deed of trust, or the mortgage.

      . To attain classification as real property for ad valorem tax status, Mississippi Code Annotated section 27-13-53 sets forth requirements that must be met in order to consider the manufactured home affixed to a permanent foundation and thus classified as real property, i.e., the wheels and axles must be removed and the home anchored and blocked in accordance with rules set forth by Mississippi’s Commissioner of Insurance. Section 27-53-15 further provides that a certificate from the tax assessor certifying the manufactured home as real property shall be filed in the land records of the county where the property is located. The statute states: "Upon the filing of the certifícate in the land records, the manufactured home or mobile home shall then be considered real property for purposes of ad valorem taxation.” However, such certificate shall not affect the priority of any existing perfected lien.

      . Indeed, section 27-53-15 allows the owner of the manufactured home, who owns the land where the home is located, the option at registration to declare whether the manufactured home shall be classified as real or personal property for ad valorum tax purposes. This classification pertains to the ad valorem tax status of the manufactured or mobile home, not to a security interest.