text:
    DEPARTMENT OF AGRICULTURE AND COMMERCE and Mississippi State Agencies Workers’ Compensation Trust, Appellants v. Hugh K. AUSTIN, Appellee.
    No. 2014-WC-00222-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2014.

      Peter L. Corson, Ridgeland, attorney for appellants.
    Floyd E. Doolittle, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Hugh Austin suffered a back injury while employed by the Mississippi Department of Agriculture and Commerce (Department of Agriculture). Austin filed a claim for workers’ compensation benefits, which the administrative judge (AJ) granted. The Department of Agriculture and the Mississippi State Agencies Workers’ Compensation Trust, the insurance carrier, appealed to the Mississippi Workers’ Compensation Commission (Commission). The Commission affirmed the AJ’s order finding Austin’s claim compensable, and the Department of Agriculture now appeals the Commission’s judgment to this Court.

¶ 2. On appeal, the Department of Agriculture raises the following issues: (1) whether the Commission erred by finding that Austin established a causal connection between his work injury and his subsequent treatment and surgery; and (2) whether the Commission erred by denying the Department of Agriculture’s motion to correct the record and admit additional evidence. Upon review, we find that the record contains substantial evidence to support the Commission’s decision. We therefore affirm.

FACTS

¶ 3. In 2001, Austin slipped off a ladder and fell thirty feet. As a result of the fall, Austin injured his hand and leg and began to experience pain in his lower back. Following the incident, Austin saw Dr. Bruce Senter, who performed spinal fusion surgery on Austin in January 2003. After the fusion, Austin continued to receive treatment from Dr. Senter. In April 2003, Dr. Senter released Austin to “go back to pretty much doing what he wants to do, with the exception of any lifting over [thirty] pounds and no long-term repetitive bending and stooping.”

¶ 4. In October 2003, Austin became employed with the Department of Agriculture and began working at the Mississippi Agriculture and Forestry Museum (Agriculture Museum). In 2007, Austin sought treatment for his back pain from Dr. John Lancon. Dr. Lancon referred Austin to Dr. Gordon Lyons, who gave Austin an injection for his back pain. On September 5, 2009, while working at the Agriculture Museum, Austin picked up a box of tile weighing fifty pounds and experienced pain in his back and legs. Austin reported his injury to Joel Kohler, the Department of Agriculture’s payroll officer. On September 21, 2009, Austin again saw Dr. Lyons, who gave Austin injections and referred him to physical therapy. On November 17, 2009, Dr. Lyons reported that Austin had reached maximum medical improvement (MMI) and released Austin to return to work without any restrictions.

¶ 5. Almost a year later, on November 22, 2010, Austin returned to Dr. Lyons after experiencing additional lower back pain. While Dr. Lyons’s notes indicated that Austin experienced chronic lumbar pain, the notes made no reference to Austin’s September 2009 work-related injury. Dr. Lyons’s notes also reflected that Austin had not experienced any new trauma and that Austin wanted the visit placed on his private insurance.

¶ 6. Dr. Lyons referred Austin to Dr. Senter. When Austin visited Dr. Senter in January 2011, Dr. Senter noted that Austin had experienced significant back pain since 2010. On the intake form for the visit, however, Austin failed to reference any work-related injuries and failed to mark the option on the form indicating that he had experienced an “injury at work.” On February 1, 2011, Austin was admitted to the hospital for surgery, and Dr. Senter repaired a non-union on Austin’s spine.

¶ 7. Following the surgery, Dr. Senter reported that Austin would not reach MMI until around February 2012. Dr. Senter estimated that Austin’s physical impairment rating would be a whole-body impairment of fifteen percent. Dr. Senter instructed Austin to only perform light-duty work that involved no overhead work, stooping, bending, or climbing stairs or ladders. Dr. Senter also gave Austin a twenty-pound lifting restriction. Dr. Sen-ter opined that, based on a reasonable medical probability, Austin’s September 2009 work-related injury aggravated Austin’s lumbar spine condition to the extent that Austin required surgery.

¶ 8. The Department of Agriculture paid for the treatment provided by Dr. Lyons, and Austin asked that the Department of Agriculture also pay for the treatment provided by Dr. Senter. Austin reported to Kohler that he was receiving treatment from Dr. Senter, but Kohler failed to authorize a workers’ compensation claim with Dr. Senter. After receiving no reply to his request for payment of Dr. Senter’s fees, Austin filed a claim with his private insurance company. Although Austin’s private insurance company paid Dr. Senter, Austin also had to pay several thousand dollars himself.

¶ 9. When Dr. Senter recommended that Austin undergo back surgery, Austin alerted the Department of Agriculture of the recommendation. However, the Department of Agriculture made no offer to pay for the surgery. Austin informed the Department of Agriculture of his work restrictions and continued to work until his surgery. He also sought other employment but was unable to find work that suited his limitations. On October 31, 2011, Austin tendered his letter of resignation to the Agriculture Museum.

¶ 10. After hearing all the parties’ evidence, the AJ concluded that Austin sustained a work-related injury on September 5, 2009. The AJ further found that Austin’s work-related injury caused the need for Austin’s surgery on February 1, 2011. Finding Austin’s surgery to be compensa-ble, the AJ ordered the Department of Agriculture and its insurance carrier “to provide medical services and supplies as required by the nature of [Austin’s] injury and the process of his recovery.”

¶ 11. The Department of Agriculture appealed the AJ’s decision to the Commission. Six months after the hearing before the AJ, the Department of Agriculture also filed a motion to correct the record and to admit additional evidence from Dr. Lyons. In an order entered January 17, 2014, the Commission affirmed the AJ’s order. The Commission found that “the overwhelming weight of the factual and medical evidence ... supports a finding that [Austin] sustained a compensable work injury ... on September 5, 2009, and that his work injury ... accelerated the need for [his] lumbar surgical repair on February 1, 2011.” The Commission also denied the Department of Agriculture’s motion to correct the record and admit additional evidence. Aggrieved by the Commission’s ruling, the Department of Agriculture appeals to this Court.

STANDARD OF REVIEW

¶ 12. In a workers’ compensation appeal, this Court’s standard of review is limited to a determination of whether substantial evidence supports the Commission’s decision. Harrison Cnty. Bd. of Supervisors v. Black, 127 So.3d 272, 274 (¶ 7) (Miss.Ct.App.2013). “The Commission sits as the ultimate finder of fact; its findings are subject to normal deferential standards upon review.” Id. (citation omitted). “We will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id. (citation omitted). “Though we defer to the Commission’s findings of fact, we review the Commission’s application of the law de novo.” Clark v. Spherion Corp., 11 So.3d 774, 777 (¶ 13) (Miss.Ct.App.2009) (citation and internal quotation marks omitted).

DISCUSSION

I. Whether the Commission erred by finding that Austin established a causal connection between his work injury and his subsequent treatment and surgery.

¶ 13. As the record reflects, no dispute exists as to the compensability of Austin’s September 5, 2009 work-related injury. Instead, the parties’ disagreement centers on whether the Commission properly determined that Austin’s work injury caused a need for the treatment provided by Dr. Lyons in November 2010 and the surgery performed by Dr. Senter in February 2011. The Department of Agriculture asserts that Austin failed to establish causation because the evidence showed that his work injury had been treated and had resolved prior to his November 2010 visit to Dr. Lyons.

¶ 14. Arguing that the Commission’s findings lack support in the record and misapplied the relevant caselaw, the Department of Agriculture asks this Court to reverse the Commission’s decision. The Commission’s order reflects, however, that Austin’s September 2009 work-related injury was causally related to, and necessitated the need for, the November 2010 treatment by Dr. Lyons and the February 2011 surgery by Dr. Senter. While Dr. Lyons’s patient history and notes contained no reference to Austin’s prior work injury, his diagnosis reflected that Austin experienced chronic lumbar pain and suffered no new trauma that could have caused the chronic lumbar pain. As our caselaw acknowledges, “[o]nce it is shown that a disability was produced by an injury and that the employee continues to be disabled, the presumption is that the disability continues to be causally related to the injury, and the burden of proof is upon the employer to show that the continuing disability is due to some other intervening cause or pre-existing condition for which he is not responsible.” Marshall Durhin Cos. v. Warren, 633 So.2d 1006, 1009 (Miss.1994) (citation omitted).

¶ 15. In Rathbome, Hair & Ridgeway Box Co. v. Green, 287 Miss. 588, 594, 115 So.2d 674, 676 (1959), the Mississippi Supreme Court held:

The rule in this State is that when a pre-existing disease or infirmity of an employee is aggravated, lighted up, or accelerated by a work-connected injury, or if the injury combines with the disease or infirmity to produce disability, the resulting disability is compensable. A corollary to the rule just stated is that when the effects of the injury have sub- ' sided, and the injury no longer combines with the disease or infirmity to produce disability, any subsequent disability attributable solely to the disease or infirmity is not compensable.

¶ 16. “Under workers’ compensation law, the claimant has the burden of proof in showing the causal connection between the claimant’s employment and the resulting disabling condition.” Clark, 11 So.Bd at 777 (¶ 15) (citation omitted). This Court has previously stated:

To establish a prima facie case of disability, the claimant bears the burden of showing by a fair preponderance of the evidence: (1) an accidental injury; (2) arising out of and in the course of employment; and (3) a causal connection between the injury and the claimed disability. An injury arises out of employment when some causal connection exists between the employment and the injury. Once a claimant establishes a prima facie case of disability, the burden of proof shifts to the employer. Additionally, unless common knowledge suffices, medical evidence must prove not only-the existence of a disability but also its causal connection to the employment. As with any fact-finder, the Commission is entitled to rely upon the evidence and reasonable inferences.

Anthony v. Town of Marion, 90 So.Bd 682, 688 (¶ 18) (Miss.Ct.App.2012) (internal citations and quotation marks omitted).

¶ 17. As previously stated, although the Department of Agriculture argues that Austin failed to establish a causal connection, the Commission found support in the record for the AJ’s determination that Austin’s claim was compensable. We also acknowledge that the Department of Agriculture bore the burden of proof to show that Austin’s November 2010 treatment and February 2011 surgery resulted from some intervening cause or pre-existing condition for which the Department of Agriculture was not responsible. See Marshall Durbin Cos., 633 So.2d at 1009. As reflected in its order, the Commission found that Austin had almost six years of employment with the Department of Agriculture at the time of his 2009 injury. The Commission stated that, although Austin possessed a history of back pain, the medical proof showed limited complaints of back pain between 2005 and 2009. Additionally, the Commission found that Austin was able to perform the essential tasks of his employment until his injury in 2009.

¶ 18. The Commission further found that Austin met his burden of showing an accidental injury arising out of and in the course of employment. The Commission explained that Dr. Senter’s testimony indicated that the 2009 work injury aggravated Austin’s lumbar spine, causing the need for Austin’s surgery in 2011. The Commission therefore found that a causal connection existed between Austin’s work injury and the resulting treatment in November 2010 and the surgery in February 2011.

¶ 19. The Department of Agriculture failed to meet its burden to show that Austin’s continuing chronic back pain following his 2009 work injury resulted from some intervening cause or from a preexisting condition for which the Department of Agriculture bore no responsibility. See Marshall Durbin Cos., 638 So.2d at 1009. Accordingly, after reviewing the record and applicable caselaw, we find that this assignment of error lacks merit.

II. Whether the Commission erred by denying the Department of Agriculture’s motion to correct the record and admit additional evidence.

¶ 20. The Department of Agriculture next argues that the Commission erroneously denied its motion to correct the record and admit additional evidence. Approximately six months after the hearing before the AJ, the Department of Agriculture sought to include in the record a letter from Dr. Lyons about his exam of Austin on November 17, 2009. The Department of Agriculture asserts that, at the hearing before the AJ, the letter was admitted into evidence with Dr. Lyons’s medical-records affidavit but was then inadvertently omitted from the record on appeal to the Commission. The Department of Agriculture further contends that, because its motion actually constituted an attempt to correct the record rather than to admit new evidence, the Commission erred by denying its motion.

¶ 21. Our supreme court has previously stated:

We emphasize that the Commission is an administrative agency, not a court. It has broad discretionary authority to establish procedures for the administration of compensation claims. It has like authority to relax and import flexibility to those procedures where in its judgment such is necessary to implement and effect its charge under the Mississippi Workers’ Compensation Act. It is a rare day when we will reverse the Commission for an action taken in the implementation and enforcement of its own procedural rules.

Delta Drilling Co. v. Cannette, 489 So.2d 1378,1380-81 (Miss.1986).

¶ 22. Our caselaw further provides thát “the Commission enjoys great latitude in deciding whether to reopen a workers’ compensation ease for the admission of additional evidence.” Mié-Delta Home Health Inc. v. Robertson, 749 So.2d 379, 388 (¶ 33) (Miss.Ct.App.1999). “The decision to reopen a workers’ compensation case is purely discretionary with the Commission, and the Commission’s order will not be reversed absent a clear abuse of discretion.” Id. at 387 (¶ 29) (citation omitted).

¶ 23. In its order denying the motion to correct the record and admit additional evidence, the Commission found that the Department of Agriculture failed to sufficiently explain its tardiness in producing Dr. Lyons’s letter until almost six months after the hearing before the AJ. The Commission also found that the “note from Dr. Lyons simply providefd] a snapshot from a single exam of [Austin] and [was] not contrary to the evidence as a whole in this claim.” The Commission cited Mississippi Code Annotated section 71-3-61 (Rev. 2011) as authority to promulgate and enforce its own procedural rules, and it recognized that Mississippi courts have “developed strict discovery rules in order to avoid trial by ambush and to insure each party ha[s] a reasonable time to prepare for trial.” Congleton v. Shellfish Culture, Inc., 807 So.2d 492, 496 (¶ 12) (Miss. Ct.App.2002) (citations omitted).

¶ 24. As a result of its findings, the Commission denied the Department of Agriculture’s motion and refused to admit Dr. Lyons’s letter into evidence. Upon review, we find that the record contains substantial evidence to support the Commission’s findings and that the decision was not arbitrary or capricious. See Harrison Cnty. Bd. of Supervisors, 127 So.3d at 274 (¶ 7). As a result, this assignment of error lacks merit.

¶ 25. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . See also Miss.Code Ann. § 71-3-7 (Rev. 2011) (addressing cases where a pre-existing physical handicap, disease, or lesion materially contributes to the results following the claimant’s injury).

      . Our caselaw also recognizes that "a claimant does not have to prove with absolute medical certainty that his work-related injuries were the cause of his disability.” Wayne Farms LLC v. Weems, 105 So.3d 1178, 1181 (¶ 8) (Miss.Ct.App.2012) (citation omitted). Instead, ”[a]ll that is necessary is that the medical findings support a causal connection.” Id. (citation omitted). "Unless the case is simple and routine, medical causation must prove the disability and the causal connection to employment by use of expert testimony.” Rankin v. Averitt Express, Inc., 115 So.3d 874, 879 (¶ 17) (Miss.Ct.App.2013) (citation omitted). “The causal connection between the claimant’s injury and disability must be proven with competent medical proof and based upon a reasonable degree of medical probability.” Anthony, 90 So.3d at 690 (¶ 28) (citation omitted).

      . As the record reflects, the Commission’s order also cites the cases of Bermond v. Casino Magic, 874 So.2d 480 (Miss.Ct.App.2004), and Mid-Delta Home Health Inc., 749 So.2d 379. See also Twine v. City of Gulfport, 833 So.2d 596, 602 (¶ 20) (Miss.Ct.App.2002) (acknowledging that Mississippi Workers' Compensation Commission Procedural Rule 9 requires motions to admit additional evidence to be filed in writing at least five days prior to the date of the hearing of the review by the full Commission); ■ Miss.Code Ann. § 71-3-47 (Rev. 2011) (providing that an informal conference or hearing may be conducted in a contested case by a Commission representative, whose decision shall be final unless, within twenty days, a party files a request or petition for review by the full Commission).


source: Caselaw Access Project

author: JAMES, J.,

license: Public Domain

text:
    Robert Edward FAERBER, Appellant/Cross-Appellee v. April FAERBER, Appellee/Cross-Appellant.
    No. 2013-CA-00295-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2014.

      Robert D. Jones, Meridian, Elizabeth Rhae Randall Darsey, attorneys for appellant.
    William B. Jacob, Joseph A. Kieronski Jr., Daniel P. Self Jr., Meridian, attorneys for appellee.
    BEFORE IRVING, P.J., MAXWELL and JAMES, JJ.

      . Faerber v. Faerber, 13 So.3d 853 (Miss.Ct. App.2009).

   JAMES, J.,

for the Court:

¶ 1. Robert Faerber (Bobby) and April Faerber appear before this Court for the second appeal of the dissolution of their marriage. In the prior appeal, April asserted that the chancellor erred when he: failed to correctly apply the Ferguson factors in determining the equitable distribution of the parties’ marital property; failed to consider the business, College Park Auto (CPA), as Bobby’s separate property; failed to award April permanent alimony; failed to award April attorney’s fees; and failed to correctly determine Bobby’s adjusted gross income for purposes of child support. Finding error, this Court reversed and remanded the case. Bobby now appeals from the chancellor’s judgment after remand, raising the following issues: (1) whether the chancellor erred in his equitable division of CPA and the marital home; and (2) whether the chancellor erred when he set the payment schedule for equitable distribution and amended child support. April cross-appeals raising the following issue: whether the chancellor erred in failing to award her attorney’s fees. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. April and Bobby were married on July 7, 1995. The couple separated on February 11, 2005; and on March 8, 2005, April filed a complaint for divorce in the Lauderdale County Chancery Court on the ground of uncondoned adultery. On July 5, 2005, the chancellor entered a judgment granting temporary relief. A trial was held on December 4-5, 2007. During the trial, Bobby admitted to engaging in three adulterous relationships during the marriage. On January 14, 2008, the chancellor granted April and Bobby a divorce on the ground of Bobby’s uncondoned adultery, distributed the marital property, awarded April lump-sum alimony, and set child support.

¶ 3. April appealed, and this Court reversed the judgment and remanded the case to the trial court, finding that the chancellor erred in his application of the law and abused his discretion in the manner that he classified April’s and Bobby’s property, structured April’s lump-sum alimony, and determined Bobby’s adjusted gross income for purposes of child support.

¶ 4. On March 31, 2010, the chancellor entered an order designating the following issues for adjudication: equitable distribution of marital property; alimony; April’s request for attorney’s fees; and child support. A trial was held on June 25-27, 2012, and November 27, 2012, during which the chancellor heard testimony from both parties. On January 16, 2013, the chancellor entered a memorandum opinion and corresponding judgment in which the chancellor set forth his findings of fact and conclusions of law.

A. Marital Property

¶ 5. The chancellor found that the total value of the marital property was $742,937.50, consisting of personal property, the value of the formal marital home, and the business CPA. As for personal property, the chancellor found that forty-nine items of personal property were marital property, with a combined value of $119,937.50. The chancellor awarded April $41,487.50 in personal property. In turn, the chancellor awarded Bobby personal property with a total value of $78,450.

¶ 6. The chancellor found that CPA was marital property subject to equitable distribution. April was awarded thirty-three and one-third percent of the increased value of CPA in the amount of $74,326. Bobby was awarded sixty-six and two-thirds percent of the increased value of CPA in the amount of $148,674.10. Finally, the chancellor found that the value of the former marital home was $325,000. April was awarded fifty percent of the value of the former marital home in the amount of $162,500. Thus, Bobby was ordered to pay April $181,326 in equitable distribution. The chancellor ordered that Bobby distribute the money to April in three payments: $50,000 on June 1, 2013; $50,000 on September 1, 2013; and $81,326 on February 1, 2014.

B. Adjusted Child Support

¶ 7. During the 2007-2008 divorce proceedings, Bobby did not seek custody of the parties’ two children. In the judgment entered on January 14, 2008, the chancellor ordered Bobby to pay $376 per month in child support, plus half the children’s medical expenses, which was an additional $100 per month. This amounted to twenty-five and three-tenths percent of Bobby’s reported self-employment income of $1,880 per month. However, we reversed, finding that the record did not substantially support the chancellor’s child-support award in light of Mississippi Code Annotated section ' 43 — 19—101 (3) (a) — (b) (Rev. 2004). Faerber, 13 So.3d at 864 (¶ 41). We further found that the chancellor erred when he “accepted Bobby’s asserted monthly self-employment income reflected on his tax documents as $1,880 without considering the potential commingling of CPA’s assets and expenses with personal assets and expenses, all of Bobby’s income sources, and without considering the generally recognized test for determining self-employment income.” See id. at (¶ 43). On remand, the chancellor found that Bobby’s monthly adjusted income, as of December 2007, was $5,291.10; thus, Bobby’s monthly child-support obligation, as of December 2007, should have been $1,058. The total amount of child support paid by Bobby from February 2008 to December 2011 was $22,372. Based on the chancellor’s corrected assessment on remand, Bobby should have paid a total of $49,726 in child support between February 2008 and December 2011. Thus, the chancellor found that Bobby owed $27,354 in amended child support. The chancellor ordered Bobby to pay April the amended child support in two equal installments of $13,677, to be paid on March 1, 2013, and on April 1, 2013.

C. Attorney’s Fees

¶ 8. April requested that Bobby be ordered to pay her attorney’s fees. The chancellor found that April incurred attorney’s fees of $9,246.54 for the first trial, $6,154.44 for the first appeal, and $17,018.75 for the second trial, for a total of $32,419.73. However, the chancellor denied April’s request, finding that April failed to demonstrate an inability to pay her attorney’s fees.

¶ 9. On January 25, 2013, Bobby filed a motion for a new trial or to alter or amend the judgment. A hearing on Bobby’s motion was held on February 11, 2013, during which Bobby argued that the chancellor failed to consider specific debts incurred after the parties’ marriage when distributing the marital property and failed to consider the title and ownership of CPA when. making the equitable distribution of the marital property. Bobby also argued that the chancellor’s payment schedule for the amended child support and equitable distribution was unreasonable. On February 12, 2013, the chancellor entered a memorandum and order denying Bobby’s motion for a new trial or to alter or amend the judgment.

¶ 10. Bobby appeals, and April cross-appeals. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 11. “This Court’s scope of review in domestic-relations matters is strictly limited.” Curry v. Frazier, 119 So.3d 362, 365 (¶ 8) (Miss.Ct.App.2013) (quoting Pritchard v. Pritchard, 99 So.3d 1174, 1177 (¶ 18) (Miss.Ct.App.2012)). “A chancellor’s findings will not be disturbed when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard.” Id. (citation and internal quotation marks omitted).

DISCUSSION

DIRECT APPEAL

I. Whether the chancellor erred in his equitable division of CPA and the marital home.

¶ 12. Bobby asserts that the chancellor erred in his equitable distribution of the marital property. Marital property has been defined as “any and all property acquired or accumulated during the marriage.” Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). For the purposes of divorce, “[a]ssets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor.” Id. “We assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic[,] or otherwise!,] are of equal value.” Id. The Mississippi Supreme Court’s decision in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994), sets forth the framework for property designation and distribution.

In light of [Ferguson ] and its progeny, when dividing marital property, “chancellors are to (1) classify the parties’ assets as marital or separate; (2) determine the value of those assets; (3) divide the marital estate equitably based upon the factors set forth in Ferguson; and (4) consider the appropriateness of alimony if either party is left with a deficiency.”

Roberts v. Roberts, 135 So.3d 935, 939^0 (¶ 13) (Miss.Ct.App.2014) (quoting Dickerson v. Dickerson, 34 So.3d 637, 643-44 (¶ 23) (Miss.Ct.App.2010)). The factors set forth in Ferguson are:

(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.

Id. (quoting Dickerson, 34 So.3d at 644 (¶ 23)). Finally, “equitable distribution does not mean equal distribution.” Brabham v. Brabham, 950 So.2d 1098, 1100 (¶ 7) (Miss.Ct.App.2007) (citing Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss.1994)).

A. CPA

¶ 13. Bobby does not dispute that the increase in value of CPA during the course of the marriage is marital property subject to equitable distribution. The parties agreed that the original value of CPA was $75,000 and that CPA’s value as of July 5, 2005, when temporary relief was ordered, was $298,000, an increase in value of $223,000. However, Bobby contends that the chancellor erred when he found Bobby to be the sole owner of CPA. Instead, Booby argues that he only possessed a one-half interest in CPA. Bobby asserts that the chancellor’s finding that he was the sole owner of CPA during the marriage was manifestly wrong, clearly erroneous, and not supported by substantial evidence; therefore, the chancellor erred in awarding April an equitable distribution of thirty-three and one-third percent of the increased value of CPA.

¶ 14. The ownership of CPA was a point of contention during the trial. CPA is an auto-repair, quick-lube, and auto-inspection business that was originally owned by Bobby’s father, William Faerber. Bobby testified that he began working as the manager of CPA in 1987. On December 14, 1995, William conveyed a one-half interest in the real property and building where CPA is operated to Bobby. According to Bobby, this deed is evidence that Bobby only owned a one-half interest in CPA.

¶ 15. However, other evidence was received at trial that contradicted Bobby’s claim. At trial, Bobby acknowledged that the Schedule C on his 1995 tax return listed him as the sole owner of CPA. According to Bobby, William did not want to pay taxes on the business. Bobby and April’s jointly filed 2002 and 2003 federal individual income tax returns were also admitted at trial. Attached to each federal return was a Schedule C identifying Bobby as the proprietor of CPA. Bobby’s 2004-2007 federal and state income-tax returns, in which Bobby filed as “married filing separately,” were also received at trial. The Schedule C’s on the tax returns from 2004-2007 all identified Bobby as the proprietor of CPA. Bobby testified that the reason he filed as proprietor of CPA was because William “only drew a minimal amount out of the business and, therefore, was not going to be liable for taxes.” However, Bobby acknowledged that the tax returns, which identified him as the sole proprietor of CPA, were signed under penalty of perjury.

¶ 16. The chancellor found that Bobby was'the owner of CPA, which is reflected in the memorandum opinion entered on January 16, 2013, in which the chancellor found as follows:

This [cjourt has considered the evidence relevant to the acquisition, management^] and operation of CPA. This [c]ourt finds that Bobby operated and managed CPA after December 14, 1995, and that ... [William] was not involved in the daily operation and management of CPA. The CPA income was reported to the Internal Revenue Service as the income of Bobby Faerber. This [c]ourt finds that Bobby Faerber was the owner of CPA after December 14,1995.

¶ 17. We find that the chancellor’s finding that Bobby was the owner of CPA was supported by substantial evidence and that the chancellor was not manifestly wrong or clearly erroneous in his determinations. Accordingly, this issue is without merit.

B. Marital Home

¶ 18. Bobby acknowledged that he and April lived in the former marital home as husband and wife from July 7, 1995, to February 11, 2005, and raised their two children in the home. Thus, Bobby does not dispute that the former marital home is marital property subject to equitable distribution. However, Bobby asserts that the chancellor erred in awarding April fifty percent of the value of the former marital home and that the chancellor erred in his valuation of the home.

¶ 19. Bobby built the home just prior to the parties’ marriage. Bobby testified that he and his mother, Mary Faerber, paid for the construction of the home. According to testimony at trial, Mary loaned Bobby $50,000 to pay for the lot on which the home was built, as well as other costs. April did not contribute any funds toward the purchase of the lot and testified that her only financial contribution toward the construction of the home was her contribution of $5,000 for new carpet. However, the chancellor noted that Bobby was able to work nine to ten hours per day because April cared for the home and the children and that April was a stay-at-home mom and the parent who was at home to care for the children, among other household contributions.

¶ 20. Bobby asserts that the chancellor’s award to April of fifty percent of the home was manifestly wrong and clearly erroneous and was not supported by substantial evidence, arguing that he should have been awarded a larger portion of the home based on his financial contributions.

¶ 21. We disagree with Bobby’s assertion that the chancellor erred in awarding April fifty percent of the value of the marital home, regardless of the discrepancies in April’s financial contribution toward the building of the home. We note again that “equitable distribution does not mean equal distribution.” Brabham, 950 So.2d at 1100 (¶ 7). Furthermore, we “assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic[,] or otherwise];,] are of equal value.” Hemsley, 639 So.2d at 915. Finally, “[i]n applying the Ferguson factors, chancellors should consider each party’s marital fault.” Dickerson, 34 So.3d at 644 (¶ 23).

¶22. Here the chancellor made extensive findings pursuant to Ferguson, and found:

This [c]ourt has considered the evidence relevant to the purchase of the ... lot, the construction of the former marital home[,] and the use of the former marital home by April [and] Bobby from April, 1995, to July 5, 2005. This is the marital home in which April and Bobby lived as wife and husband.... This [c]ourt finds that the former marital home and real property upon which it was constructed is marital property subject to equitable distribution[.]
This [c]ourt further finds that April should be granted [fifty percent] of the value of the former marital home[.]

The chancellor also noted that April substantially contributed to the stability and harmony of the marital home and found that Bobby admitted his involvement in three extramarital affairs during the marriage.

¶ 23. ' Chancellors need not divide the marital 'estate equally when ordering equitable distribution; to the contrary, “an unequal division may be appropriate under certain circumstances.” Dickerson, 34 So.3d at 645 (¶ 30). Therefore, the chancellor’s award to April of fifty percent of the home was not manifestly wrong or clearly erroneous and was supported by substantial evidence.

¶ 24. Bobby next argues that the chancellor erred in his valuation and division of the former marital home by failing to consider the $50,000 loan from Mary. However, the record is clear that the chancellor took the loan into consideration.

¶ 25. In his memorandum opinion, the chancellor noted: “Bobby and Mary ... testified that [Mary] provided Bobby with $50,000 in varying amounts for the house construction. [Mary] testified that the $50,000 was a loan and that she expected repayment. However, Bobby has not executed a note for $50,000.00 to his mother.” The chancellor went on to describe Exhibit 34, which included copies of nine checks issued by Mary that amounted to $50,000. The chancellor concluded:

This [e]ourt has considered the evidence relevant to the funds provided to Bobby by his mother to purchase the lot and construct the house. This [c]ourt finds that these funds were a loan to Bobby and that they were not a gift. However, [Mary] has not requested or demanded payment upon the loan and she will only expect payment when Bobby decides that his circumstances are convenient for him to pay.

Thus, it is clear that the chancellor considered the loan from Mary to Bobby in his distribution of the marital home.

¶ 26. Finally, Bobby argues that the chancellor erred by refusing to consider money that Bobby spent to repair damage to the marital home, purportedly caused by April, after April vacated the home. However, the chancellor noted Bobby’s claim, but ultimately found that “April and Bobby did riot unreasonably expend, withdraw[,] or otherwise dispose of the marital assets.”

¶ 27. After reviewing the record and the chancellor’s findings, we find that the chancellor acted well within his discretion in applying the Ferguson factors and dividing the marital home. Accordingly, this issue is without merit.

II. Whether the chancellor erred when he set the payment schedule for equitable distribution and amended child support.

¶ 28. Finally, Bobby argues that the chancellor’s payment schedule for the equitable distribution of the marital property and the amended child support was unreasonable, erroneous, and not supported by the evidence. As noted above, Bobby was ordered to pay April $181,326 in equitable distribution, to be paid in three payments: $50,000 on June 1, 2013; $50,000 on September 1, 2013; and $81,326 on February 1, 2014. Likewise, the chancellor found that Bobby owed $27,354 in amended child support and ordered Bobby to pay April the amended child support in two equal installments of $13,677, to be paid on March 1, 2013, and April 1, 2013. Bobby asserts that the chancellor’s ruling “effectively requires Bobby to pay the sum of $208,680 in [a] period of less than one year, even though ... [his] adjusted gross income is $5,291.10 per month and his assets are not easily liquidated.”

¶ 29. In the order denying Bobby’s motion for a new trial or to alter or amend the judgment, the chancellor addressed Bobby’s claim that the payment schedule was unreasonable, noting: “Time is a relevant factor.... Almost seven years have elapsed since this civil action was commenced[.]” The chancellor further noted:

[April] and the litigant’s two children were deprived of the amended child support from January, 2008, to January, 2012. [April] has been deprived of her use and benefit of the equitable distribution of the marital property while ... [Bobby] has had the use and benefit of his equitable distribution of marital property. This [c]ourt found ... that “Bobby has manifested a capability to acquire and/or accumulate property and funds for business ventures.” It is reasonable to conclude that ... [Bobby] can apply this same capability to pay his former wife amended child support and her equitable distribution of property.

Given the chancellor’s finding that Bobby’s gross monthly income was $5,291.10 and that Bobby received nearly $400,000 in marital property, we cannot conclude that the chancellor’s decision was manifestly wrong or clearly erroneous and not supported by substantial evidence. Accordingly, this issue is without merit.

CROSS-APPEAL

Whether the chancellor erred in failing to award April attorney’s fees.

¶ 30. On cross-appeal, April argues that the chancellor erred by failing to award her attorney’s fees for the first trial, her first appeal, and the second trial. April asserts that the chancellor’s failure to award attorney’s fees amounted to an abuse of discretion and, as a result, she was required to “deplete assets awarded in equitable distribution and child support.” We disagree and find that the chancellor did not abuse his discretion in failing to award attorney’s fees.

¶ 31. The awarding of attorney’s fees is “largely entrusted to the sound discretion of the chancellor.” Rhodes v. Rhodes, 52 So.3d 430, 449 (¶ 77) (Miss.Ct.App.2011) (citing McKee v. McKee, 418 So.2d 764, 767 (Miss.1982)). Therefore, “[w]e are reluctant to disturb a chancellor’s discretionary determination whether or not to award attorney’s fees[.]” Id. Furthermore, “neither party is entitled to [attorney’s] fees unless the requesting party has established the inability to pay.” Dorsey v. Dorsey, 972 So.2d 48, 51 (¶ 5) (Miss.Ct.App.2008) (citation and internal quotation marks omitted).

¶ 32. Here, the chancellor heard testimony and received evidence from April, April’s attorney, and Bobby’s attorney as to the fees incurred by the respective parties. The chancellor found that April incurred attorney’s fees of $9,246.54 for the first trial, $6,154.44 for the first appeal, and $17,018.75 for the second trial, for a total of $32,419.73. However, the chancellor found that April failed to demonstrate her inability to pay her attorney’s fees. We find nothing in the record to contradict this finding; thus, we do not find that the chancellor abused his discretion in denying April attorney’s fees and costs.

¶ 33. April also asks this Court to award her attorney’s fees for her defense of this appeal. We have “generally awarded attorney’s fees on appeal in the amount of one-half of what was awarded in the lower court.” Lauro v. Lauro, 924 So.2d 584, 592 (¶ 33) (Miss.Ct.App.2006). However, “[t]he award of attorney’s fees is based on necessity rather than entitlement.” Carroll v. Carroll, 98 So.3d 476, 483 (¶ 26) (Miss.Ct.App.2012). Here, the chancellor found that April failed to meet her burden by demonstrating her inability to pay her attorney’s fees; likewise, we decline to award her attorney’s fees on appeal. Accordingly, this issue is without merit.

¶ 34. THE JUDGMENT OF THE LAUDERDALE COUNTY CHANCERY COURT IS AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND THE APPELLEE/CROSS-AP-PELLANT.

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

      . Faerber, 13 So.3d at 858 (¶ 19).

      . Prior to the first appeal, April filed a motion to recuse due to the chancellor’s alleged bias in favor of Bobby. The chancellor denied April's motion. Although April did not designate this issue as a separate assignment of error in her appeal, she did argue that the judgment displayed bias. Although we noted that April failed to provide proof that the chancellor abused his discretion in denying April’s motion to recuse, we stated that the issue of recusal could be revisited on remand. On remand, the chancellor entered an order of recusal, and the case was reassigned to a different chancellor.

      . Neither party contests the division of the personal property; therefore, we do not find it necessary to list each item of personal property and its respective value. .

      . The parties agreed that the original value of CPA was $75,000 and that CPA’s value as of July 5, 2005, when temporary relief was ordered, was $298,000, an increase in value of $223,000.

      . The total amount awarded to April was $236,826; however, Bobby was credited with $55,500 for previously designated lump-sum alimony.

      . Bobby was paying $376 per month in child support and $100 per month for the children's medical coverage, for a total of $476 per month.

      . A Schedule C is a form used to report income or loss from a business that one operates or a profession one practiced as a sole proprietor. ' See www.irs.gov/uac/Schedule-C-(Form-1040),-Profit-or-Loss-From-Business.

      . April testified that -she refused to file jointly after 2003.