text:
    STATE In The Interest of L.W., J.W. & L.W.
    No. 09-243.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      Robert J. Elliott, Department of Social Services, Alexandria, LA, for Appellee, State of Louisiana, Department of Social Services.
    Robert L. Kennedy, Colfax, LA, for Ap-pellees, J.W, L.W., and L.W.
    James F. Slaughter, Colfax, LA, for Appellant, J.M.W.
    James Patrick Lemoine, District Attorney, Renee W. Dugas, Assistant District, Attorney, Colfax, LA, for, Appellee, State of Louisiana.
    Joseph P. Beck, III, Ball, LA, for Appellant, A.W.R.
   THIBODEAUX, Chief Judge.

_[iDefendants-appellants, A.W.R. and J.M.W., appeal the trial court judgment that terminated their parental rights to their three minor children and certified the children for adoption. Defendants allege the judgment should be reversed because the plaintiff-appellee, State of Louisiana, Department of Social Services (DSS), failed to prove by clear and convincing evidence the grounds for termination as set forth in La.Ch.Code arts. 1015(4)(b) and (5). Defendants also allege the trial court erred in accepting psychologist, David G. Adkins, Ph.D., as an expert witness qualified to offer opinions regarding termination in this case since he only interviewed the defendants once and his examination methodologies were unreliable.

We affirm.

I.
ISSUES
1. Did the trial court err in accepting David G. Adkins, Ph.D., as an expert qualified to offer an opinion in this case?
2. Did the DSS prove by clear and convincing evidence;the parents’ failure to provide significant contributions of care and support to the children for at least six consecutive months as required by La.Ch.Code art. 1015(4)(b)?
3. Did the DSS prove by clear and convincing evidence the grounds for termination set forth in La.Ch.Code art. 1015(5), which include: (a) the children being in DSS custody for a period of one year; (b) no substantial parental compliance with the case plans for services; and (c) no reasonable expectation of significant improvement in the parents’ conditions or conduct in the near future?

J¿I.

FACTUAL BACKGROUND

The DSS confirmed a report of neglect, drug dependency, and inadequate housing on July 12, 2007, when they responded to a complaint alleging the defendants’ three minor children (who were then ages one, five, and six) were unexpectedly left for three days in the care of their aunt by their mother, A.W.R., who could not be located. The mother left under the false pretense of going to the store for diapers and failed to return. The children were left with only the clothes they were wearing. It was also reported that it was not AW.R.’s first time leaving her children unexpectedly for an extended period of time. The case worker was advised that A.W.R. had left her children with another acquaintance for two days, during which time she could not be contacted.

The children’s father, J.M.W., was incarcerated at the time the report was made to DSS. Consequently, the aunt placed the children with their paternal grandmother, but the DSS case worker investigating the complaint found the grandmother’s home unsuitable for the young children. The home lacked sufficient food, was without electricity, had little or no furniture, and was in a physical state deemed unsafe for the children’s ages.

The case worker’s investigation also revealed the defendants’ inadequate housing situation and their possible drug abuse problems. The home the defendants lived in with their children was a small, one-bedroom house. There was no running water in the home at the time of the investigation, and there was a lack of adequate space or beds for the three children. The mother’s and father’s drug abuse became a concern during the investigation when the DSS social worker investigating the ease stated that multiple “collaterals” voiced concerns of illicit drug abuse by both of the |adefendants. In addition, a former babysitter for the children reported having witnessed the five-year-old child mimic drug use by placing a straw in his nose and attempting to sniff baby powder. The mother’s drug abuse was confirmed in July, shortly after the investigation had begun, when she consented to a drug test, which returned with positive results for opiate use.

On September 26, 2008, DSS filed a Petition for Termination of Parental Rights and Certification of Minor Children for Adoption, alleging termination was justified due to the parents’ failure, during the year their children had been in State custody, to substantially comply with the case plans for services that sought to reunify the family. It was further alleged that neither of the defendants had contributed any significant contributions to the care and support of the children during the children’s entire time in State custody. DSS asserted there was no reasonable expectation of significant improvement in the near future in the behaviors, conditions, or conduct of the defendants.

The trial on termination of the parental rights of the defendants was heard on November 12, 2008, approximately one year and four months after the children were placed in State custody. After testimony was provided, the trial court granted the termination. The mother and father have both appealed the judgment.

III.

LAW AND DISCUSSION

Dr. Adkins as an Expert Witness

The defendants argue that Dr. David Adkins, the clinical psychologist who evaluated the defendants as a requirement of the case plans for reunification of the family, was erroneously allowed to testify as an expert about their suitability for regaining custody of, and parenting, them children. Their arguments do not challenge 14Pr. Adkins’ qualifications as an expert in the field of clinical psychology. The opposition to his testimony is based on his limited interaction with the defendants and challenges to the reliability of the data he obtained through his testing of the defendants.

During Dr. Adkins’ April 22, 2008, evaluation of the defendants, he reviewed their social histories, which had been obtained by a member of his staff, and performed a clinical interview with each defendant. He also conducted some psychological testing, which consisted of a “brief’ intelligence test, as requested by DSS; a parenting inventory; and a personality assessment inventory, which was administered to the mother, A.W.R., only. According to Dr. Adkins, it was determined that the father, J.M.W., had a learning disability and was unable to read and understand the personality assessment inventory. Consequently, he did not complete this portion of the evaluation.

Based on the results obtained, Dr. Adkins opined that the defendants both exhibited factors that led him to believe the children were at substantial risk for maltreatment in them home and should not be in the custody or care of their parents under the circumstances. He testified at trial that his primary concerns were the lack of stable housing and income for the family and drug abuse by the defendants. He advised the court that he had no new information about the defendants’ status in these regards, but stated if they had shown no improvement during the six months since his April 2008 evaluation, he would continue to recommend that the children not be returned to the care of their parents.

Dr. Adkins based his conclusions on specific findings drawn from his conversations with the defendants and their test results. He testified that the mother, A.W.R., had an average I.Q. but exhibited signs of a double depression, consisting |5of dysthy-mia (mild but ongoing, chronic depression) overlaid with a major depressive episode (acute but shorter term depression). Moreover, he stated that A.W.R. presented signs of post-traumatic stress syndrome, possibly related to alleged multiple episodes of childhood abuse she reportedly suffered. He recognized passive-aggressive personality traits in her and stated that she scored extremely poorly (16th percentile) on the scale measuring her ability to relate with empathy to children. He explained that this means a child’s value and importance is less to the parent than is normal and that she has problems helping children or finding ways to meet their needs. He added that the normal developmental demands of children typically seem bothersome to persons with low empathy scores such as A.W.R.’s. Also, he diagnosed poly-substance abuse in partial remission. Dr. Adkins explained that the partial remission portion of the diagnosis was based on AW.R.’s admission to him of her history of drug use and her claims to have stopped using many of those drugs taken in her past. Prior to any attempts to reinstate custody to A.W.R., Dr. Adkins recommended clinical mental health treatment for the depression; in-house rehabilitation for the apparent drug-dependency; and, that A.W.R. obtain employment and complete a parenting program.

According to Dr. Adkins, the father, J.M.W., exhibited characteristics of an adjustment disorder with depressed mood, a learning disability for which further testing was needed, and anti-social personality tendencies, manifested as “trouble with authorities,” a “headstrong” attitude, and non-conformist behaviors. Dr. Adkins also made a provisional diagnosis of poly-substance abuse in partial remission. He labeled the drug abuse as provisional because J.M.W. stated he took opiates to treat residual pain from past hip and/or back injuries. These injuries were verified. Dr. Adkins did not have information to verify if the narcotics were necessary to treat |6residu al pain or were being used excessively. Dr. Adkins recommended further evaluation of this drug use by a medical doctor. He further recommended that to address these concerns, J.M.W. should be required to submit to random drug tests, complete a parenting program, and maintain employment or seek disability assistance through the Social Security Administration (if his physical condition necessitated this).

Both defendants cite Louisiana Code of Evidence Article 702, regarding testimony by experts, in support of their argument:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The defendants contend Dr. Adkins’ testimony should not have been relied upon in this case because he did not spend sufficient time with them to gain accurate or reliable information about their abilities to serve as suitable parents. Moreover, they argue the data upon which he based his opinions — test scores from the parental and personality assessments — were not established as being accurate. Finally, they assert that during the formulation of the opinions Dr. Adkins rendered at the trial, he failed to consider any changes in the defendants’ circumstances that may have occurred during the six months that had passed since his assessment of them.

This court has recognized “the qualification of an expert witness rests within the sound discretion of the trial court, and its determination will not be disturbed on appeal except upon a showing of manifest error.” Succession of Launius, 503 So.2d 682, 683 (La.App. 3 Cir.1987) (citing Richardson v. Continental Ins. Co., 468 So.2d 675, (La.App. 3 Cir.1985), writ denied, 474 So.2d 1304 (La.1985)). “The weight to be accorded to the testimony of experts depends largely 17on their qualifications and the facts on which they base their opinions.” Oliver v. Oliver, 95-1026, p. 19 (La.App. 3 Cir. 3/27/96), 671 So.2d 1081, 1092 (quoting Durkee v. City of Shreveport, 587 So.2d 722, 728 (La.App. 2 Cir.), writ denied, 590 So.2d 68 (La.1991)). Consequently, expert testimony is to be weighed in the same manner as any other evidence presented at trial. Lanasa v. Harrison, 02-26 (La.App. 4 Cir. 8/7/02), 828 So.2d 602, 605, writ denied, 02-2512 (La.11/27/02), 831 So.2d 286. That is, the trial court may exercise its broad discretion and accept or reject, in whole or in part, an expert’s testimony. Id. The court of appeal is not to disturb the trial court’s actions in this regard unless it determines the trial court has committed an abuse of discretion. Id.

While on the witness stand, Dr. Adkins was questioned about the thoroughness and reliability of his evaluations of the defendants. He rejected the notion that the period of the evaluation was too short or that the information elicited could not accurately be relied upon. He testified that the length of the evaluations of the defendants was slightly longer than is typical. In addition, he stated that the evaluation of the defendants was conducted according to the standard procedure he used in performing an average of 250 to 300 such parental evaluations per year. According to Dr. Adkins, the tests administered, in addition to the social histories and interviews conducted, are clinical standards used in his field of clinical psychology to formulate opinions about the persons being interviewed.

Dr. Adkins further explained that he earned his Ph.D. in clinical psychology in 1996 and had been licensed in Texas since then. He became a Louisiana licensed clinical psychologist in 2003. He attested to being qualified as an expert in the field of clinical psychology in various courts approximately two to three times per month, on average, in his capacity as a medical consultant performing | ^disability determinations and also due to his regular performance of parental evaluations for DSS’ Office of Community Services.

Accordingly, we find no merit to the defendants’ argument that the trial court abused its discretion by allowing Dr. Adkins to provide expert testimony in this case. Considering Dr. Adkins’ experience and qualifications, he clearly possesses an expertise in providing assessments in cases involving parental fitness. He testified that the tests used by him to obtain the personality and parenting information on which he relied in formulating his opinions were routinely used and accepted as clinically standardized methods in his field of clinical psychology. This testimony was not refuted. Further, he adequately qualified his testimony regarding the defendants, stating that his opinion was based on the information provided to him during his April assessment of the defendants and revealing that he did not have any knowledge of any changed circumstances since then. The trial court did not indicate in its oral ruling what, if any, weight it gave to the testimony offered by Dr. Adkins and we cannot speculate as to this factor. Regardless, the trial court possessed the discretion to consider this information, and we find no abuse of the trial court’s discretion to allow Dr. Adkins to offer this testimony for the court’s consideration.

Termination of Parental Rights

Before a court can involuntarily terminate an individual’s rights and privileges as a parent, the State must establish at least one of the statutory grounds set forth in La.Ch.Code art. 1015 by clear and convincing evidence. State ex reí. A.T., 06-501 (La.7/6/06), 936 So.2d 79. An appellate court cannot set aside the trial court’s findings of fact unless the trial court’s findings are manifestly erroneous. Id. (citations omitted).

|9Puring the trial in this case, the State sought to establish that the defendants satisfied the grounds that would allow for involuntary termination of their parental rights pursuant to La.Ch.Code art. 1015(4)(b) and (5). Those sections state:

The grounds for termination of parental rights are:

(4) Abandonment of the child by placing him in the physical custody of a nonpar-ent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

The defendants contend the State did not establish by clear and convincing evidence the grounds of La.Ch.Code art. 1015(4)(b) — the parents’ failure to provide significant care for the children for six consecutive months. We disagree.

The record reflects unrefuted proof that during the more than one-year period of the State’s custody of the children, neither defendant ever provided any assistance, monetary or otherwise, for the care of the children as they remained in | mfoster care. Consequently, we find that the grounds for termination set forth in La.Ch.Code art. 1015(4)(b) were established by clear and convincing evidence.

The State also established that involuntary termination of the defendants’ parental rights was warranted pursuant to La. Ch.Code art. 1015(5). Article 1015(5) states that each of the following be established: (1) at least one year has elapsed since the children entered State custody; (2) there is no substantial parental compliance with the case plan for services; (3) and there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future. The first element of Article 1015(5) is clearly established based on facts in the record revealing that the children were in State custody for more than one year when the termination trial was held and the judgment granting the involuntary termination was rendered.

The second element — requiring clear and convincing evidence of the lack of “substantial parental compliance” with the family’s case plan — is established in the record as well. According to La.Ch. Code art. 1036(C), the lack of parental compliance with a case plan can be proven by showing one or more of the following:

(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by .the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
| n(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

In this case, multiple instances of the defendants’ failure to comply with these conditions, which were all a part of the case plan for reunification of the family, exist.

Specifically, the case plan required the parents to do the following: participate in substance abuse evaluations, which includes providing honest information regarding drug abuse history and following any recommendations as a result of the evaluations; submit to random drug testing; participate in psychological evaluations and follow resulting recommendations, which were included in the case plan (seek mental health and medical follow-up examinations, complete parenting classes, and maintain a stable income and home environment); exhibit ability to maintain adequate housing and food in the home for a minimum period of six months; demonstrate the ability to maintain a stable income sufficient to care for the children; visit regularly with the children according to the agreed-upon schedule; and, notify DSS of any changes in address, telephone number, employment, and household composition.

The record reflects the unrefuted evidence of both defendants’ failure to complete any of these requirements. Neither defendant fully completed substance abuse evaluations and treatment. A.W.R. completed ten days of a detoxification program, but did not complete the recommended in-house substance abuse treatment program that followed. In addition, she, thereafter, tested positive on a few other occasions for opiate use. J.M.W. did not submit to a substance abuse evaluation, but he contends the evaluation was unnecessary because it was never established that he abused drugs. All of his tests resulted in negative results. However, the record |12contains J.M.W.’s admission to having taken illegally obtained narcotics, such as Lortab and Vicodin, albeit to treat allegedly legitimate pain even after the children were in State custody. In addition, according to the testimony of case worker, Chris Koehler, the drug testing that J.M.W. submitted to that resulted in the negative results, did not constitute random testing. Koehler testified that both defendants refused requests for drug tests on multiple occasions and would submit themselves for testing at later times of their own choosing.

The record further establishes that the defendants were both incarcerated on multiple occasions during the more than one year period the children were in State custody prior to the termination hearing, and they never maintained a stable address for a minimum of six months. The defendants lived at different locations, with multiple relatives, for various periods during the time the case plans seeking reunification of the family were in effect. According to the case worker, Koehler, often these relatives would not have knowledge of the defendants’ whereabouts when contacted. Moreover, the defendants never kept DSS regularly apprised of their changing addresses or other contact information.

The defendants never provided verifiable proof of incomes that were stable and suitable to provide the necessary care for their three children. A.W.R. did not obtain any employment during the children’s tenure in State custody. J.M.W. testified at trial that he historically worked at random jobs, when not incarcerated, to obtain income and testified that he was employed at the time of trial. However, he did not offer any testimony of the amount of his income or how long he could expect to be employed.

11SWe find that all of these failures to comply with the statutorily defined measures of compliance, constitute a lack of “substantial” parental compliance with the case plan.

Finally, the record supports a finding, by clear and convincing evidence, of a “lack of a reasonable expectation of significant improvement” in the defendants’ conduct or conditions in the near future. Louisiana Children’s Code Article 1036(D) explains that this component of La.Ch. Code art. 1015(5) may be established by proof of the following:

(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the. child for extended periods of time.
(3)Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

The State’s expert, Dr. Adkins, provided his unrefuted opinion that the children were at risk for harm based on the mother’s, and possibly father’s, drug abuse problems. Moreover, both parties were revealed to be unreliable sources of stability for the children, based on their repeated episodes of abandonment and incarceration for criminal activity. In addition, the parents’ pattern of conduct revealed either an inability or unwillingness to establish a stable home environment and income suitable for the care of three children. Accordingly, we find that the grounds for termination of parental rights pursuant to La.Ch.Code art. 1015(5) were established by clear and convincing evidence set forth in the record.

JiálV.

CONCLUSION

The judgment of the trial court, involuntarily terminating the parental rights of A.W.R. and J.M.W. to their three children, J.M.W., Jr., L.W., and L.W., is affirmed. All costs are assessed to A.W.R. and J.M.W.

AFFIRMED.


source: Caselaw Access Project

author: PICKETT, J. PAINTER, J.,

license: Public Domain

text:
    SUCCESSION OF Robert EDWARDS Sr.
    No. 09-175.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.
    Timothy O’Dowd, Attorney at Law, Lake Charles, LA, for Appellee, Anita De-jean.

      Robert Michael McHale Jr., Attorney at Law, Lake Charles, LA, for Appellant, Mary Audrey Edwards.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, J.

| tMary Audrey Edwards, the wife of the decedent, Robert (NMI) Edwards Sr., appeals a judgment of the trial court denying her petition to probate the purported last will and testament of her husband and finding that testament, which was executed on June 8, 2007, null and void for lack of the decedent’s capacity to execute the same. We affirm the judgment of the trial court.

FACTS

Robert Edwards Sr. died on January 12, 2008. On January 28, 2008, his daughter Anita Dejean, filed a petition to be named administratrix of her deceased father’s succession. In her petition, she noted that a will in the name of “Robert Edwards” had been filed in the records of Calcasieu Parish but had not been presented for probate. She prayed to be named admin-istratrix “on information and belief the decedent died intestate.” On January 30, 2008, Ms. Dejean filed a document in the succession proceeding captioned “Opposition to the Probate of the Purported Last Will and Testament of Robert Edwards Dated June 8, 2007.” In the “opposition” document, Ms. Dejean stated three grounds for the basis of her opposition: 1) that at the time the will was executed, the decedent lacked the capacity to perfect a will; 2) that the purported will was the result of undue influence on the part of Mary Audrey Edwards, the decedent’s then wife; and/or 3) that the signature on the purported will is not that of the decedent.

Mary Audrey Edwards, the widow of the deceased, filed a “Petition for Probate of Statutory Testament and Appointment of Executrix and Opposition to Petition for Homologation of Final Account.”

| gin due course, on October 16, 2008, a hearing was held to hear arguments on the issues raised by the parties in their respective filings. Following the hearing, the trial court found that the purported will executed on June 8, 2007, was null and void for the decedent’s lack of comprehension (mental acuity) at that time. This appeal followed.

LAW AND ARGUMENT

On appeal, Ms. Edwards lists three assignments of error:

1. The trial judge erred and committed manifest error in admitting the testimony, over timely objections, of a psychiatrist as an expert in the field of “psychological autopsy” even though the doctor had never seen or examined and ultimately based his opinions on subjective information from partial medical records, which he admitted were inconsistent.
2. The trial judge committed manifest error in ignoring the testimonies of five disinterested parties, including, the attorney who drew up the will, a long time friend who sat with the testator on a daily basis, and three medical professionals who treated the testator.
3. The trial judge was clearly wrong in concluding that the testimony of the psychiatrist and the testator’s daughter proved by clear and convincing evidence that the testator was incapacitated.

“The trial court is accorded vast discretion concerning the admission of evidence, and its decision will not be reversed on appeal absent an abuse of that discretion.” McIntosh v. McElveen, 04-1041, pp. 9-10 (La.App. 3 Cir. 2/2/05), 893 So.2d 986, 994, writ denied, 05-528 (La.4/29/05), 901 So.2d 1069; citing Maddox v. Omni Drilling Corp., 96-1673 (La.App. 3 Cir. 8/6/97), 698 So.2d 1022, writs denied, 97-2766, 2767 (La.1/30/98), 709 So.2d 706.

Concerning the admissibility of expert testimony, the Louisiana Supreme Court has stated:

Admissibility of expert testimony in Louisiana is governed by La.Code of Evid. art. 702, which provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the | sevidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The above article follows Fed. Rule of Evid. 702, according to Official Comment (b) (1988) to La.Code of Evid. art. 702. A district court is accorded broad discretion in determining whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert. Official Comment (d), citing 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 702[02] (1981). See also Merlin v. Fuselier Const. Inc.[] 2000-1862, p. 12 (La.App. 5 Cir. 5/30/01), 789 So.2d 710, 718 [“Whether an expert meets the qualifications of an expert witness and the competency of the expert witness to testify in specialized areas is within the discretion of the trial court.”] A district court’s decision to qualify an expert will not be overturned absent an abuse of discretion. Id.; State v. Castleberry, 1998-1388 (La.4/13/99),758 So.2d 749, 776.
In Daubert, the United States Supreme Court set a new standard to assist district courts in evaluating the admissibility of expert testimony. The new standard required the district courts to perform a “gatekeeping” function to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. at 589, 113 S.Ct. 2786. See also State v. Chauvin 2002-1188 (La.5/20/03), 846 So.2d 697, 700-01. In Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the United States Supreme Court held that the analysis established by Daubert is to be applied to determine the admissibility of all expert testimony, not just scientific testimony. Merlin, 2000-1862 at p. 12, 789 So.2d at 718. The Kumho Tire case dealt specifically with the issue of whether Daubert applies to engineering expert testimony. 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238.
Daubert established the following nonexclusive factors to be considered by district courts to determine the admissibility of expert testimony:
(1) The “testability” of the scientific theory or technique;
(2) Whether the theory or technique has been subjected to peer review and publication;
(3) The known or potential rate of error; and
(4) Whether the methodology is generally accepted in the scientific community. Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786. This court in Foret characterized the Daubert factors as “observations” which provide |4a “helpful guide for our lower courts in considering this difficult issue.” 628 So.2d at 1123.

Cheairs v. State, Dep’t of Transp. and Dev., 03-680, p. 6-7 (La.12/3/03), 861 So.2d 536, 540-1.

In her first assignment of error, the appellant argues that the trial judge erred in admitting the testimony of Dr. James M. Anderson who performed a psychological autopsy of the decedent by examining his medical records, the wills executed by the decedent and by the appellant, and the depositions of various parties involved in this proceeding. Dr. Anderson stated that, for the purpose of determining competency to execute a will, he concentrates on the date the will was confected, June 8, 2007, and on the period of time prior to that date — in this case from May 8 to June 4, 2007 — when the decedent was treated in the rehabilitation facility, and the period from the decedent’s discharge to the date the contested will was confected. He also reviewed the decedent’s medical records prior to May 8, 2007. He concluded that Mr. Edwards lacked testamentary capacity on June 8, 2007.

We find this ease very similar to the situation in Succession of Pardue, 40,177 (La.App. 2 Cir. 11/8/05), 915 So.2d 415, writ denied, 06-125 (La.4/28/06), 927 So.2d 284, wherein a universal legatee appealed the trial court’s decision nullifying a 2002 will, finding that Jo Green Pardue, the decedent, lacked testamentary capacity when she executed that notarial will. Charles Platt, the universal legatee, argued that the trial court erred in admitting the expert testimony of Dr. Paul Ware who used the psychological autopsy method to determine the decedent’s competency at the time she confected the contested will. In finding Dr. Ware’s testimony was properly admitted, the trial court stated:

|sWe note that Dr. Seiden testified that the psychological autopsy method has been described and validated in a number of peer reviewed psychiatric journals. The record shows that Dr. Ware ... reviewed medical records and witness depositions and statements in reaching [his] conclusions regarding Pardue’s testamentary capacity. Thus, since the technique employed by Dr. Ware was substantially the same as the psychological autopsy method, which is generally accepted in the psychiatric field, the trial court could reasonably have found that Dr. Ware’s methodology was sufficiently reliable under the Dau-bert standard. Consequently, we cannot say the trial court abused its discretion in admitting Dr. Ware’s expert testimony. The assignment of error lacks merit.

Pardue, 915 So.2d at 421.

As the court did in Pardue, we find that the trial court did not err in admitting Dr. Anderson’s testimony. Thus, the appellant’s first assignment of error is without merit.

In her second assignment of error, the appellant argues that the trial court “committed manifest error in ignoring the testimonies of five disinterested parties, including, the attorney who drew up the will, a long time friend who sat with the testator on a daily basis, and three medical professionals who treated the testator.” The standard of review applicable to this assignment of error has been firmly established.

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. In applying the manifestly erroneous— clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.
| ftWhen findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact-finder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations and footnote omitted).

The appellant’s second assignment of error relies on “the testimonies of five disinterested parties.” The first of those parties is David F. Dwight, the attorney/notary who prepared the contested document. The contested will consists of one page and is in statutory form and leaves the testator’s “entire estate” to his wife, the appellant herein. In his deposition, Mr. Dwight stated that the document was prepared at the instructions of Mrs. Edwards and that he did not receive any instructions from Mr. Edwards. When asked specifically about the trip to the Edwards’s house to execute the will, Mr. Dwight stated that he was there about five to ten minutes, that Mr. Edwards did not verbalize anything, and that he smiled, nodded and shook his head. As the trial court stated, Mr. Dwight never said he discussed any options concerning the disposition of property with Mr. Edwards. In fact the court stated: “I think the reason he didn’t discuss that is because Mr. Edwards wasn’t in the position to have that conversation.” In fact Mr. Dwight admitted that he had no conversation with Mr. Edwards.

As to David Loyd, he testified that he did not visit Mr. Edwards from the time he was hospitalized in March 2007 until sometime after he got home in June. He 17stated that he did not find out Mr. Edwards was home until he got a phone call from Martha Simmons, Mr. Edwards’ sister-in-law, informing him that Mr. Edwards was home; however he could not be sure exactly when she called. Accordingly, Mr. Loyd’s testimony is of little help in determining Mr. Edwards capacity to donate at the time the contested will was confected.

Yvonner Ceasar, a certified nurses’ aid, attended Mr. Edwards from June 6, 2007, till he died in January 2008. She stated that the first time she came to the house, Mr. Edwards was confined to bed and that it wasn’t until he received some physical therapy that he was able to get out of bed. She admitted that he had trouble communicating, verbalizing only such things as “yeah,” “uh-huh,” “hmm-mm,” and “no.” She noted that he could not say “yes.” She also stated that at times he was incontinent and couldn’t remember his last bowel movement. Once again, this testimony is of little help in determining if Mr. Edwards had testamentary capacity on June 8, 2007.

Pamela Buller, Mr. Edwards’ physical therapist, also did not see Mr. Edwards until after he was discharged to his home. She could not remember the first time she saw him. She stated that Mr. Edwards could follow her commands during therapy, that he could not verbalize, but that he appeared to be oriented to time and place. Here too, her contact with the decedent didn’t begin until after the contested will was executed, making it of little value.

Finally, Holly Lemoine, R.N., who was Mr. Edwards’ home health nurse testified that she, too, didn’t start treating Mr. Edwards until after he was discharged to home. She stated that when she went to the home to complete the paper work to enroll Mr. Edwards into home health, he could not sign the papers. She remembered |8that he could not verbalize and that, although he appeared alert, he was not oriented to the time of day. She stated that between the time he was admitted to home health to just before his death, his cognitive ability improved. Ms. Lemoine visited two to three times a week for fifteen to thirty minutes a visit. The most relevant portion of her testimony was that on her initial assessment of Mr. Edwards on June 5, 2007, she listed Mr. Edwards as having “impaired decision-making.”

The appellant’s third assignment that “[t]he trial judge was clearly wrong in concluding that the testimony of the psychiatrist and the testator’s daughter proved by clear and convincing evidence that the testator was incapacitated,” is clearly mis-stated. In reaching a decision on the testamentary capacity of the decedent, the trial court must consider all the evidence and testimony in the record just as we must do in reviewing the trial court’s judgment.

Our review of the record reveals the following. In 2000, Mr. Edwards suffered a cerebrovascular accident which resulted in right-sided hemiparesis. Thereafter, in March 2007, he suffered a subdural hema-toma which required evacuation. This procedure left him with an increased right-sided hemiparesis, post-operative seizures, and a lower left extremity deep-vein thrombosis (DVT). Mr. Edwards developed aspirational pneumonia which as successfully treated with antibiotics. In April of 2007, he had a percutaneous endoscopic gastrostomy to place a feeding tube (a PEG tube), and approximately two weeks later, an inferior vena cava (IVC) filter was inserted as a precaution against possible complications from his DVT.

In May 2007, he was transferred to the acute rehabilitation unit at Lake Charles Memorial Hospital (L.C.M.H.)where he remained until he was discharged to his home on June 4, 2007, just four days before he allegedly confected the contested will. | ^Accordingly, his condition during his stay at L.C.M.H. is much more relevant to his testamentary capacity on June 8, 2007, than his condition later in June and through December 2007. On May 15, 2007, his weekly progress summary from the records at L.C.M.H. indicate the following (emphasis ours): “All information is given by the wife. Patient is aphasic and dysarthric and unable to effectively communicate 90% of the time in therapy. However, patient is following one-step commands approximately 85% of the time.” The May 15, 2007 Transdiscipli-nary Treatment Plan estimates Mr. Edwards’s ability to follow one-step commands at 80% and states: “Two-step and three-step commands were 0%.” Further, the document states: “Reading comprehension is nonfunctional.” The report of May 22, 2007, remains basically unchanged, except that Mr. Edwards appears to have increased his compliance to one-step commands to 90%; barriers to discharge are “dysarthria, expressive/receptive language deficits, cognition and dys-phagia. The last progress report, from May 29, 2007, contains NO assessment of Mr. Edwards’s communication or reading ability or of his compliance to commands.

Anita Dejean, Mr. Edwards’s daughter, testified that at no time during her father’s confinement to L.C.M.H. could she have meaningful communication with him. She visited him three to four times a week during his hospitalization and after he got home. She stated that her nephew was graduating from high school in California and that the week before (the week of June 7, 2008) she left for the graduation, she visited her father every day. Ms. Dejean stated that at no time during that period could she have meaningful communication with her father. She further testified that before her father’s illness, she had helped him with his business affairs and that at no time had he mentioned his intent to make a new will.

|10We have considered the extent of injury to Mr. Edwards’s brain from the hema-toma and from the treatment necessitated thereby; the medical records from L.C.M.H.; the testimony of Dr. James Anderson, who performed the “psychological autopsy” and who concluded that Mr. Edwards lacked testamentary capacity on June 8, 2007; and the testimony of Anita Dejean. Based upon the forgoing, we cannot say that the trial court was clearly wrong in concluding that the mover-in-rule, Anita Dejean, carried her burden of proving, by clear and convincing evidence, that her father, Robert Edwards, lacked testamentary capacity to execute a will on June 8, 2007.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed. All costs of this appeal are assessed against defendant-in-rule, Mary Audrey Edwards.

AFFIRMED.

PAINTER, J., dissents and assigns written reasons.

PAINTER, J.,

dissenting.

| ]I respectfully dissent from the majority’s opinion the June 8, 2007 will of Robert Edwards, Sr. Was null and void for the decedent’s lack of comprehension (mental acuity) at the time of its execution. In affirming the trial court’s decision to find the will invalid, the majority finds no error in the admission of the testimony of Dr. James M. Anderson. Dr. Anderson performed a psychological autopsy of the decedent. This “autopsy” consisted of the review of medical records, the wills executed by the decedent and his widow, and the depositions of several witnesses including Mary Audrey Edwards, the decedent’s widow, and David Dwight, the attorney who prepared the will. The majority concludes Dr. Anderson’s testimony meets the requirements of La.Code of Evid. art. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 118 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Therefore, the majority finds no abuse of the trial court’s discretion in the admission of Dr. Anderson’s testimony. I respectfully disagree.

While recognizing that the second circuit, in Succession of Pardue, 40,177, p. 7 (La.App. 2 Cir. 11/8/05), 915 So.2d 415, 421, writ denied, 06-125 (La.4/28/06), 927 So.2d 284, has found that the psychological autopsy method has been “described and validated in a number of peer reviewed psychiatric journals,” I do not share the opinion that Dr. Anderson’s review in this case was sufficient. Dr. Anderson himself testified that there are no established guidelines for the performance of a psychological autopsy. Furthermore, Dr. Anderson based his opinions on incomplete medical records which he admitted were inconsistent and did not speak to Mr. | gEdwards’ family or caregivers. Accordingly, I do not agree that Dr. Anderson’s testimony met the requirements of Dau-berl. Therefore, I would reverse the trial court’s ruling and find the will valid.


author: ROBERTS, J.,

text:
    Jeffery S. GOELLNER, Appellant v. Tena C. GOELLNER, Appellee.
    No. 2008-CA-00595-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.

      Suzette Faries Breland, attorneys for appellant.
    E. Foley Ranson, Ocean Springs, attorneys for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. On March 31, 2008, after a turbulent four-year marriage, the George County Chancery Court granted Tena Goellner a divorce from Jeffery Goellner on the ground of habitual cruel and inhuman treatment. The court awarded Tena temporary alimony and made an equitable distribution of the couple’s marital property. Aggrieved by the chancellor’s ruling, Jeffery appeals and raises four issues. Finding no error, we affirm.

FACTS

¶ 2. While both were still married to other people, Tena and Jeffery began living together in September 2002. After obtaining divorces from their respective spouses, Tena and Jeffery married each other on March 8, 2003. No children were born to the marriage. At the time Tena and Jeffery married, Tena worked for the Jackson County Sheriffs Department, but prior to her employment with the sheriffs department, she had worked as a hairdresser since 1986. Due to Tena’s relocation outside of Jackson County after her marriage, she lost her job with the sheriffs department, so she resumed her career as a hairdresser. At the time of the divorce, Tena was working at Ellen’s Cut and Style in Moss Point, Mississippi, and she attended college pursing a degree in drafting and design. Jeffery had been employed at Chevron, in Pascagoula, Mississippi since July 1999.

¶ 3. Tena and Jeffery agree that there were some good times during the marriage, but they both stated that there were numerous arguments and periods of separation. Although they disagree about how many times Tena left the marital home, both parties agree that on at least four occasions Tena removed some of her belongings and left for a matter of days or weeks. Tena claims she left because of physical abuse.

¶ 4. Law enforcement was summoned to the couple’s home, in Lucedale, Mississippi on at least two occasions. On December 26, 2005, the couple had an altercation, and Tena called the police alleging physical abuse. Jeffery was arrested, and a court date was set on a domestic violence charge, but the case never went to trial. Jeffery claims it never went to trial because Tena would not cooperate with the prosecutor, but Tena contradicts his account of the facts. She asserts that they had a court date; the court date was postponed; she did not hear anything else about the case; and she did not know why the case had not gone forward. The parties have placed nothing in the record either to substantiate stories or to verify why the case against Jeffery for domestic violence had not been pursued.

¶ 5. Throughout the marriage, Tena suffered from depression, and she had overdosed on medications twice. Tena admitted that one overdose was an attempted suicide, but she was adamant in her testimony that the other overdose was accidental. In addition to her claims of physical abuse, Tena alleges that Jeffery repeatedly called her vulgar names, denigrating and verbally abusing her. Jeffery denies the allegations of physical abuse and claims that Tena had a history of drug abuse. To rebut Tena’s accusations, Jeffery’s first wife and his sister both testified at trial that Jeffery was not a violent person. Nevertheless, based on the evidence, the chancellor determined that Tena was entitled to a divorce on the ground of habitual cruel and inhuman treatment, and he ordered distribution of the couple’s property. Despite their rocky relationship, Tena and Jeffery had attained significant assets during them marriage.

¶ 6. The couple jointly owned properties in George County, which appraised for $135,000 as of January 8, 2008. Jeffery and Tena acquired this property in two separate transactions. In July 2003, they purchased a twenty-acre parcel of land for $33,600, and in December 2003, they purchased a fifteen-acre parcel of land for $24,500. Tena paid the down payments on both land purchases- — one totaling $9,990 and the other totaling approximately $7,000. She also paid $2,400 for the digging of a well, and $3,000 for a septic system and use of a tractor. The couple purchased a mobile home in which to live, and Tena initially paid the full purchase price of $13,000. However, Jeffery later reimbursed $10,000 of the purchase price to Tena. Tena made some of the payments on the mobile home until she lost her job at the sheriffs department. Jeffery made a lump-sum payment of $57,000 on the property and mobile home. Additionally, in order to eliminate the mortgage, Jeffery took out a $30,000 loan against his retirement account for the remainder owed on the property, and at the time of the divorce hearing, he still owed $17,000 on that loan.

¶ 7. The parties also paid for each other’s vehicles. Tena paid $23,941 toward a 2002 GMC truck, which Jeffery had purchased prior to the couple’s marriage, and Jeffery bought Tena a 2000 Honda Accord for $11,942.50. After the parties separated, Tena gave a Honda automobile to her daughter because her daughter had recently divorced and needed transportation, and Tena replaced the Honda with a used 2004 Mazda RX-8. At the time of the divorce, Tena had a car note of $279 per month for the Mazda. Jeffery and Tena also purchased motorcycles while they were married, with each party paying for his or her own. At the time of the divorce, Tena was continuing to make payments of $142 per month on her motorcycle. Tena’s financial contribution to the aforementioned purchases was possible because of the sale of a home that she owned prior to her marriage to Jeffery. She received $68,000 from the sale of that home.

PROCEDURAL HISTORY AND PROPERTY DIVISION

¶ 8. Tena filed a complaint for divorce on May 23, 2007. Claiming that she was in fear for her own safety, Tena also requested ex parte relief seeking temporary alimony, a temporary restraining order, and an order to enjoin Jeffery from disposing of assets. In response, Jeffery filed his answer to the complaint, along with affirmative defenses, a counterclaim, and a motion for temporary relief. Jeffery denied the allegations set forth in Tena’s corn-plaint and counterclaimed for divorce on the grounds of habitual and excessive use of opium, morphine, or other like drug; habitual cruel and inhuman treatment; or, in the alternative, irreconcilable differences. Additionally, Jeffery requested that Tena be enjoined and restrained from harassing, abusing, threatening, or intimidating him; and he requested that she be permanently enjoined and restrained from coming onto his into his property and residence.

¶ 9. A temporary order was issued by the court on August 1, 2007, in which the court granted Tena $800 in temporary alimony for the months of August and September 2007. The court also ordered an appraisal of the jointly owned real property, and the parties were enjoined from harassing or interfering with the other or disposing of or encumbering any marital asset. The divorce hearing was conducted on January 17, 2008. At the conclusion of the trial, the court allowed each party to submit briefs on the property-division issue. After all the property, both real and personal, was designated as marital or non-marital and a valuation was done, the chancellor made an equitable distribution of both the marital assets and liabilities. Tena received net marital equity of $127,281.27, and Jeffery received net marital equity of $168,031.27.

¶ 10. After considering the appraisals of the property, the court found the value of the land and improvements to be $135,000, with an outstanding loan balance of $23,391.49, as of March 31, 2007, which was secured by Jeffery’s retirement account. Therefore, the court found the net equity in the marital domicile and real property to be $111,608.51. The court awarded the marital domicile and real property to Jeffery and directed him to pay Tena $55,804.26 within ninety days of the judgment. Tena then was to quitclaim any and all interest that she had in the property to Jeffery.

¶ 11. Jeffery was awarded the 2005 GMC truck, valued at $25,000, and Tena was awarded the 2004 Mazda. The Mazda was found to have no marital equity, and Tena was directed to pay the $14,000 balance on its loan. Each party was awarded their respective motorcycle, and Tena was to pay the $4,200 still owed on her motorcycle. The court awarded Tena the personal property listed on her financial declaration, which was valued at $1,000, and Jeffery was awarded the household furnishings listed on his financial declaration, which were valued at $2,000. Additionally, each party was awarded a television, which were valued at $500 each; Tena was awarded a computer valued at $600; and Jeffery was awarded a lawnmower and guns valued at $1,500 collectively. Both Jeffery and Tena were ordered to pay their own attorneys’ fees.

¶ 12. Jeffery and Tena have individual retirement accounts that were in place before and during their marriage, as well as other bank accounts. Basically, the chancellor made an equal division of the marital asset portion of those bank and retirement accounts. As Jeffery’s accounts had considerable funds and require detailed explanation, they will be discussed in greater detail later in the opinion.

¶ 13. Tena was granted a divorce from Jeffery on March 31, 2008, on the ground of habitual cruel and inhuman treatment accompanied with the property division set out above.

I. WHETHER THE CHANCELLOR WAS MANIFESTLY WRONG IN GRANTING TENA A DIVORCE ON THE GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT.

¶ 14. “The chancery court sitting as the trier of fact has the primary authority and responsibility to assess the credibility of witnesses.” Sproles v. Sproles, 782 So.2d 742, 746(¶ 12) (Miss.2001) (citation omitted). “[W]here we find substantial evidence in the record supporting the findings of fact, we will seldom reverse, whether those findings be of ultimate fact or evidentiary fact.” Id. (citation omitted).

¶ 15. In Langdon v. Langdon, 854 So.2d 485, 488-89(¶ 7) (Miss.Ct.App.2003), this Court stated:

The ground for divorce on the basis of habitual cruel and inhuman treatment must be proven by a preponderance of the credible evidence. The conduct which evinces habitual cruel and inhuman treatment must be such that it (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger and renders the relationship unsafe for the party seeking relief, or (2) renders the marriage revolting to the non-offending spouse because it is so unnatural and infamous, and makes it impossible to carry out the duties of the marriage, therefore destroying the basis for its continuance. Generally, the conduct must be shown to have been systematic and continuous. However, a single incident may be of sufficient severity to prove the ground. There must be a causal connection between the treatment and the separation.

(Internal citations and quotations omitted).

¶ 16. Although we do not set forth an exhaustive list of Tena’s and Jeffery’s accusations, the following is an adequate rendition of the couple’s history. Tena recounted several occasions of physical assault during the marriage, and law enforcement was called to Jeffery and Tena’s premises on at least two occasions, with Tena alleging abuse by Jeffery. She testified that once, while sitting in a chair, Jeffery slung her and the chair against a counter, injuring her leg. She also testified that during one of the altercations she suffered a black eye and an injured wrist, for which she sought medical treatment. Jeffery denied hitting Tena, and he claimed that Tena’s medical records fail to substantiate or support her allegations of abuse because the records merely state that she was treated for pain in her arm without any notation of a black eye or statement that it was the result of domestic abuse. However, this is somewhat contradicted in Jeffery’s brief to this Court. In his brief, he admits that, following the altercation after which he was arrested, the police documented a “slight injury” to Tena’s arm, as well as a “red swollen area” on Jeffery’s face. It seems apparent to us that there was a physical altercation between the couple.

¶ 17. Tena also presented testimony from her daughters to support her allegations of abuse. Although neither daughter testified that they had ever seen Jeffery hit Tena, they did state that they had witnessed Jeffery repeatedly yelling at Tena and calling her vulgar names. One of her daughters testified that she saw a red mark on Tena’s face after the incident that led to Jeffery’s arrest, and that, in the past, she had seen Jeffery shove Tena. Jeffery acknowledges that the marriage was turbulent and that the parties argued, but he blamed Tena’s erratic and irrational behavior as being the catalyst for the altercations. Jeffery argues that throughout the marriage Tena exhibited a history of drug abuse and depression. Indeed, she was treated on two separate occasions for a drug overdose, and on another occasion, he found her outside with a gun threatening to kill herself. According to Jeffery, the gun incident occurred after they had a “small argument.” Undoubtedly, the couple had a very troubled relationship, and Tena was an emotionally disturbed and distraught individual.

¶ 18. In his brief to this Court, Jeffery appears to minimize Tena’s claims of abuse by stating that she alleged only three instances of physical abuse over the four-year marriage, and that he was arrested only once for abuse. He contends that this cannot be considered a “continuing course of conduct.” Jeffery further argues that the instances of violence were very minor and that there was no serious danger, or reasonable apprehension of danger, to Tena’s life or health. Furthermore, Jeffery maintains that Tena was an active participant in these arguments and “was not victimized in the least.”

¶ 19. There is no way for this Court to know the extent to which Tena may have been an “active participant” during these “altercations,” but we disagree with Jeffery’s purported belief that Tena could not have been victimized. We recognize that the emotions of fear and apprehension are subjective, and we take note of Jeffery’s testimony that he is six foot three and weighs about 320 pounds. It is plausible that during these physical altercations, Tena was in reasonable apprehension of danger to her life, limb, or health.

¶ 20. Furthermore, the supreme court has held that:

Habitual cruel and inhuman treatment may consist of repeated acts of the same nature such as personal violence, or it may consist of a series of acts, some of the same nature and some of different natures, but which, when taken together, tend to cause pain and suffering on the part of the innocent spouse.

Savell v. Savell, 240 So.2d 628, 629-30 (Miss.1970) (citation omitted). And that “[tjhere are many kinds of acts such as ... verbal abuse, neglect, and the like which, if taken alone will not constitute cruelty, but when taken together will manifest a course of conduct as a whole which may amount to cruelty.” Id. This Court recognized in Langdon that even a single incident may be of sufficient severity to prove the ground of habitual cruel and inhuman treatment. Langdon, 854 So.2d at 489(117).

¶ 21. The chancellor was faced with stories from the parties that differed in some respects by 180 degrees. Although the chancellor stated that both parties contributed to the failure of the marriage, he found that Jeffery’s outbursts of anger, abusive language, and the physical altercations supported Tena’s plea for a divorce based on the ground of habitual cruel and inhuman treatment. The supreme court “has repeatedly stated that it will examine the record and accept the evidence reasonably tending to support the findings made below, along with all reasonable inferences which may be drawn therefrom and which favor the trial court’s finding of fact.” Sproles, 782 So.2d at 746(¶ 12). “Put another way, unless the chancellor’s determination of fact in a divorce case is manifestly wrong, this Court will uphold the chancellor’s decision.” Id. (citation omitted). The record is replete with facts sufficient to support a determination that the couple had a very tumultuous relationship. We find that the chancellor did not abuse his discretion when he found Tena’s testimony credible and granted her a divorce on the ground of habitual cruel and inhuman treatment, nor did he commit manifest error. Therefore, we will not disturb his decision. This issue is without merit.

II. WHETHER THE CHANCELLOR COMMITTED MANIFEST ERROR IN AWARDING PERIODIC ALIMONY TO TENA.

¶ 22. It is well settled that the following factors are to be considered by the chancellor when determining if an award of alimony is justified. They are:

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.

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

¶ 23. Jeffery argues that the chancellor’s findings of fact do not meet the standard demanded by the supreme court in Armstrong. He argues that the chancellor failed to address the needs of the parties, the standard of living of the parties, any wasteful dissipation, and other factors. He asserts that the chancellor did not make any effort to explain the award or adequately address all of the Armstrong factors or make sufficient findings of fact and conclusions of law regarding the Armstrong factors. Additionally, Jeffery contends that Tena’s financial statement reveals extravagant expenses, and that the chancellor erred when he failed to question these expenses or Tena’s stated earning potential. We disagree.

¶ 24. This Court has stated:

When the chancellor fails to address all factors on-the-record, we are not required to remand the case, and should not, so long as all facts are available to us so as to allow an equitable determination to be made. Thus, a lack of an on-the-record consideration of the Armstrong factors by a chancellor in making his determination of the appropriateness of an alimony award will only be reversed if, after a review of all facts and application of the Armstrong factors, it appears that the chancellor’s failure to make findings of fact and corresponding conclusions of law constitutes manifest error.

Dorsey v. Dorsey, 972 So.2d 48, 54 (¶ 17) (Miss.Ct.App.2008) (internal citation omitted). In other words, “[ejven if the chancellor has failed to delineate all the factors on the record, where all the facts are available to us, we are not required to remand the case to the trial court.” Voda v. Voda, 731 So.2d 1152, 1155 (¶ 11) (Miss.1999). We find that, although the chancellor may not have expounded on every Armstrong factor, he gave ample consideration to them when arriving at his decision.

¶ 25. To begin with, the chancellor acknowledged the statutory authority to award alimony in a divorce, which is found in Mississippi Code Annotated section 93-5-23 (Rev.2004). It states:

When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the ... maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of the sum so allowed.

Miss.Code Ann. § 93-5-23 (emphasis added). The chancellor then acknowledged that an award of alimony was largely within the discretion of the trial court, and that the court had at its disposal several ways in which it could require alimony payments to best serve the parties’ needs under the guidance of Hubbard v. Hubbard, 656 So.2d 124, 129 (Miss.1995). Thereafter, the chancellor quoted the Armstrong factors, then stated the following:

The Court finds this to be a short-term marriage that does not warrant the award of long-term alimony benefits. After reviewing the income and expenses of the parties, there is a disparity of income between these parties and the Court finds that, although Ms. Goellner is awarded a divorce based on habitual cruel and inhuman treatment, both parties contributed to the failure of this marriage. Ms. Goellner will complete her education in May of 2009 and she will receive a drafting and design degree. There are no minor children born to this marriage and both parties appear to be healthy other than Ms. Goellner’s battle with depression and her ulcers. Ms. Goellner is 46 years old and currently working as a cosmetologist. Mr. Goellner is 40 years old and currently working as an operator at Chevron.

¶ 26. It seems clear to us that the chancellor considered no less than six of the Armstrong factors. He addressed the length of the marriage, the fault of the parties, the lack of children, the health of the parties, the age of the parties, and the income and expenses of the parties. However, in accordance with the Dorsey court, we will “review all the facts and appl[y] ... the Armstrong factors .... [to determine if] it appears ... the chancellor[ ] fail[ed] to make findings of fact and corresponding conclusions of law [and whether his finding] constitutes manifest error.” Dorsey, 972 So.2d at 54(¶ 17).

1. The Income and Expenses of the Parties

¶ 27. The record supports the chancellor’s recognition of the disparity in income between Tena and Jeffery, as well as Tena’s health and her expenses. Tena’s and Jeffery’s tax returns for 2005 through 2007 verify the vast difference between the parties’ incomes. In 2005, Tena earned $6,800 with Jeffery earning $105,000; in 2006, Tena earned $15,000 and Jeffery earned $103,000; and in 2007, Tena earned between $15,000 and $16,000. Jeffery testified that he thought his gross income for 2007 was $115,000. Although Jeffery insists that “[t]he chancellor should have considered the validity of Tena’s claim that a hairdresser with approximately twenty-one years experience can only make $15,000 per year,” there is nothing in the record that would disprove the veracity of Tena’s statements concerning her earning potential. At trial, Tena testified that she had to purchase her own supplies; she detailed the percentage she was required to pay the shop owner; and she talked about the varying fees charged for the haircuts she performed. To support his claim that Tena was earning below her potential, Jeffery offers no more than mere conjecture and speculation, based solely upon the length of time Tena has been a hairdresser. We find the insinuations unpersuasive, and we find no error in the chancellor’s decision to refuse to question Tena’s stated earnings or her earning potential. There is nothing in the record to indicate that Tena has lowered her income in order to attain a larger settlement from Jeffery or to prevent paying some familial obligation. Furthermore, her tax returns indicate that she has increased her earnings each year between 2005 and 2007. We also find Jeffery’s allegation that Tena has extravagant expenses is without merit.

¶ 28. Jeffery criticizes Tena for her motorcycle payment, her car note for the used car that she purchased after then-separation, and her credit card bill. He argues that she has “inflated her expenses with extravagant purchases and excessive credit card debt.” We will address each payment. First, the motorcycle was purchased during Tena and Jeffery’s marriage when they went together and purchased motorcycles. Second, the car in question was a used car that Tena purchased after giving her unencumbered Honda to her daughter. Tena testified that she gave the car to her daughter because her daughter had recently divorced and was in need of transportation. Tena testified that she would be willing to sell both the motorcycle and the car. And third, Tena testified that her credit card bill, which amounts to a total indebtedness of $10,000, accumulated because she used it for personal expenses while paying her own bills during the marriage. Also, she testified that she uses the credit card to help support herself while in school. Jeffery counters Tena’s explanation for the credit card use declaring that the use was unnecessary because Tena receives financial assistance for school. In any event, Tena’s total monthly obligations for her car, motorcycle, and credit card were, at the time of the trial, approximately $631 per month. Although this amount may be currently “beyond her means,” we find this to be far from an extravagant lifestyle.

2. The Health and Earning Capacities of the Parties

¶ 29. Tena suffers from depression and bleeding ulcers. However, Tena makes no contention that she is unable to work. To the contrary, she testified that she is seeking to attain a degree in order that she may have a more stable and lucrative earning potential. There was no testimony or evidence presented that would indicate Jeffery has adverse health issues, nor is there an anticipated reduction in his earning potential. However, he testified that he experiences some fluctuations in his income due to periods of available, if not mandatory, overtime.

S. The Needs of Each Party

¶ 30. It appears from the record that there are no special needs for either party besides the expenses listed on each party’s Rule 8.05 financial statement.

J. Obligations and Assets of Each Party

¶ 31. Jeffery’s Rule 8.05 financial statement reflects a total monthly income of $4,800, with total monthly expenses of $3,754; and Tena’s Rule 8.05 financial statement reflects a total monthly income of $1,400, with total monthly expenses of $1,779. The chancellor painstakingly detailed Tena’s and Jeffery’s property and obligations, which are discussed in detail below. However, briefly stated, the couple owned approximately thirty-five acres of land, a mobile home, and bank and retirement accounts. The chancellor determined the portions that were marital property, and then he divided the assets. After reviewing the record, we find that the chancellor did not err when identifying, valuing, and distributing the obligations and assets of the parties.

5. Length of Marriage

¶ 32. Jeffery and Tena were married for four years.

6. The Presence or Absence of Minor Children in the Home

¶ 33. No children were born to the marriage, and at the time of the divorce, Tena’s daughters were nineteen and twenty-three. Neither daughter lived with Tena at the time of the divorce. Jeffery has two sons who did not live with him and Tena.

7. Age of the Parties

¶ 34. At the time of the divorce, Tena was forty-six and Jeffery was forty.

8. The Standard of Living of the Parties, Both During the Marriage and at the Time of the Support Determination

¶ 35. As stated, Tena and Jeffery purchased approximately thirty-five acres and a mobile home, which was their marital domicile, during their marriage. Jeffery testified that the couple had enjoyed several vacations together. Although the parties maintained separate bank accounts and Tena testified that she paid most of her own bills, it does not appear from the record that the physical needs of either party were unmet. The mobile home and land were awarded to Jeffery, and he was to pay Tena half of the equity. Based upon the chancellor’s equitable division of the marital property, there is no indication that either party will struggle to maintain a comparable standard of living.

9. Tax Consequences of the Spousal Support Order

¶ 36. Neither party has raised any argument related to tax obligations or consequences. Although not addressed in the divorce decree, both parties would be responsible for their own tax obligations. Tena’s taxable income would be increased by the amount of the alimony awarded, and Jeffery’s taxable income would be reduced by the amount of the alimony paid.

10. Fault or Misconduct

¶ 37. Tena was granted a divorce on the ground of habitual cruel and inhuman treatment.

11. Wasteful Dissipation of Assets by Either Party

¶ 38. Other than Jeffery’s accusation that Tena had destroyed some of the marital property after their separation, neither party claims that the other committed wasteful dissipation of assets. Likewise, the chancellor did not address this issue in his extensive findings of fact and conclusions oflaw.

12. Any Other Factor Deemed by the Court to be Just and Equitable in Connection with the Setting of Spousal Support

¶ 39. The record suggests no other relevant factors for consideration.

¶ 40. The chancellor directed Jeffery to pay Tena periodic alimony in the amount of $800 per month beginning on March 31, 2008, and ending on May 31, 2009, for a total alimony award of $4,200. The chancellor specifically noted the disparity of income between the parties, but he determined that Tena was not entitled to an award of long-term alimony benefits because both parties contributed to the failure of the marriage. After considering the twelve factors and the corresponding facts in the record, we find that the chancellor was neither manifestly wrong nor did he abuse his discretion when he awarded Tena $300 a month in alimony. “The award was not oppressive, unjust, or grossly inadequate.” Rodriguez v. Rodriguez, 2 So.3d 720(¶ 41) (Miss.Ct.App.2009).

¶ 41. Jeffery correctly noted in his brief to this Court, the time frame for the alimony payments coincides with Tena’s anticipated graduation date, and he argues that “[t]he court did not explicitly state that the award of alimony was rehabilitative alimony, [but] ... it seems that [it was] intended ... to be rehabilitative in nature.” We agree. Although we find that the chancellor adequately applied the Amstrong factors, he titled the award of alimony incorrectly. The chancellor stated, “[Jeffery] is directed to pay periodic alimony in the amount of $300 per month up and until May 31, 2009.... ” The supreme court has held “that a chancellor may place a time limitation on periodic alimony ... [which] is called ‘rehabilitative periodic alimony’ for rehabilitative purposes .... [It will be upheld] as ‘rehabilitative periodic alimony’ instead of ‘periodic alimony.’ It is still the law in Mississippi that ‘periodic alimony’ cannot have a fixed termination date.” Hubbard, 656 So.2d at 129-130 (citation omitted). The Hubbard court went on to explain, “rehabilitative periodic alimony, synonymous with ‘periodic transitional alimony’ ... is a separate and equitable tool for chancellors to use in their discretion....” Id. at 130. “[It] is an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim.” Id,. “‘Periodic alimony’ is for an indefinite period vesting as it comes due and modifiable. ‘Rehabilitative periodic alimony is modifiable as well, but [it] is for a fixed period of time vesting as it accrues.” Id.

¶ 42. We find the chancellor’s labeling of the alimony award was harmless error. Tena requested temporary, rehabilitative, permanent, and lump-sum alimony in her complaint. Likewise, in response to a question regarding her motivation for temporary alimony, Tena stated that she “would like some money to help [her] finish school.” The chancellor’s order relating to the alimony award indicates that he intended to assist Tena’s transition into a more lucrative and stable employment via an award of rehabilitative alimony, and the record supports the chancellor’s order. The Hubbard court clearly stated, we look “to the substance of the provision, and not the label.” Id. at 129 (citation omitted).

¶ 43. “The chancellor’s decision on alimony will not be disturbed on appeal unless it is found to be against the overwhelming weight of the evidence or manifestly in error.” Mosley v. Mosley, 784 So.2d 901, 909(¶ 36) (Miss.2001) (citation omitted). “The amount of alimony awarded is a matter primarily within the discretion of the chancery court because of ‘its peculiar opportunity to sense the equities of the situation before it.’” Id. (citation omitted) “A chancellor can award alimony payable in one lump sum or periodic alimony, payable monthly, or both, dependent upon the circumstances of the parties.” Id. Based upon the guidance of the Hubbard court, well-settled precedent, and the evidence presented in the record, we find that the chancellor was not in error and was within his discretion to make the award of alimony, whether it is was called “periodic alimony” or “rehabilitative alimony.” This issue is without merit.

III. WHETHER THE CHANCELLOR FAILED TO MAKE AN EQUITABLE DIVISION OF MARITAL ASSETS.

¶ 44. “It is well-established ... that the chancery court has the authority to order an equitable division of property that was accumulated through the joint efforts and contributions of the parties.” Christopher v. Christopher, 766 So.2d 119, 121(¶ 7) (Miss.Ct.App.2000) (citation omitted). The supreme court has set forth the following guidelines and instructed the chancery courts to support their decisions with findings of fact and conclusions of law for purposes of appellate review. See Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). The guidelines that the supreme court set forth for the chancellor to apply are as follows:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.
This Court cannot contemplate every situation that may present itself in future cases; therefore, the Court will address other questions as they arise, taking into consideration that fairness is the prevailing guideline in marital division. For example, interspousal gifts are not a part of this factual situation. Chancellors will have to determine for this Court’s review whether an interspousal gift is a highly personal one or whether some type of property, i.e., stocks and bonds, may require something beyond a gift analysis.

Ferguson, 639 So.2d at 928-29. Jeffery contends that the chancellor’s simple recitation of the Ferguson factors and valúation of the assets and division of the property was reversible error. Jeffery argues that we have no way of determining whether the chancellor applied the correct standard for equitable distribution. We disagree.

¶45. “The chancellor is not required to address each and every factor and may consider only the factors which he finds applicable to the marital property at issue.” Wells v. Wells, 800 So.2d 1239, 1244(¶ 8) (Miss.Ct.App.2001) (citation omitted). “It is well-settled law that the courts, when making an equitable distribution of marital property, are not required to divide the property equally.” McLaurin v. McLaurin, 853 So.2d 1279, 1283(¶ 11) (Miss.Ct.App.2003). When “reviewing a chancellor’s judgment, [in property division], this Court does not conduct a Ferguson analysis anew, but reviews the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion.” Phillips v. Phillips, 904 So.2d 999, 1001(¶ 8) (Miss.2004). Unlike the recent case of Rodriguez, the case at bar does not reflect that the chancellor adopted verbatim one of the parties’ proposed findings of fact and conclusions of law. Therefore, we find no need to evaluate each individual Ferguson factor. If the chancellor had not made an independent evaluation, “this Court [would] ‘review the record de novo’ ... [to] ensure that the chancellor adequately performed his judicial function.... ” Rodriguez, 2 So.3d at (¶ 10) (internal citations omitted). Instead, we will consider the record and the lengthy discourse committed to the discussion of property division included in the chancellor’s findings of fact and conclusions of law.

¶ 46. After quoting the guidelines of Ferguson, the chancellor referenced the exhibits presented by the parties that listed all of the parties’ assets, both marital and non-marital. As stated in the facts above, the chancellor found the net equity of the marital domicile to be $111,608.51. He then awarded the marital domicile and real property to Jeffery, but he ordered Jeffery to pay half of that amount, $55,804.26, to Tena within ninety days. As discussed above, the property was purchased while the two were married; Tena made the down payments on the property; she made at least some of the payments during the marriage; and the two utilized the residence as their marital home. Both Tena and Jeffery testified that they performed the daily chores required to maintain the home. The record reveals testimony that they both helped to clear the land and to landscape the premises. Although the parties disagree about the extent of each other’s involvement in the maintenance of the home and household duties, it is evident that both parties made substantial contributions to the accumulation and maintenance of the property. Also, the fact that Jeffery had the greater earning capacity and was able to make more of the monthly payments does not negate Tena’s contribution of the down payment as well as her making some of the monthly payments as she was able. We find that the chancellor did not abuse his discretion in awarding Tena half of the equity related to the couple’s real property-

¶ 47. The chancellor then addressed the retirement plans of the parties. The chasm between the values of the parties’ retirement accounts is as wide as it is between their incomes. Tena was enrolled in the Public Employee Retirement System (PERS) prior to her marriage to Jeffery, and Jeffery was making contributions into two investment accounts with Chevron. As of June 30, 2007, Tena’s PERS statement reflected a balance of $6,668.63, and her total years of service was shown to be thirty-seven months. Tena was married to Jeffery for sixteen of those months. Accordingly, the chancellor determined that $2,883.73 was marital property, and that the remaining $3,784.90 was non-marital property. Jeffery was awarded $1,441.87, but to keep matters simple, the chancellor awarded Tena her entire retirement account and decreased Tena’s interest in Jeffery’s retirement account by the $1,441.87.

¶ 48. The chancellor noted that there were two aspects to Jeffery’s retirement plans. First, the court addressed the Chevron Retirement Plan, which had a five-year cliff-vesting schedule, but Jeffery had not met the five-year requirement. Due to their relatively brief marriage, Tena did not claim an interest in that part of Jeffery’s retirement plan. The second part of Jeffery’s retirement plan, and the primary one at issue, is his Chevron Employee Savings Investment Plan (ESIP). As of March 8, 2003, the ESIP was valued at $26,620.11, and on May 23, 2007, the ESIP’s value had increased to $146,517.83. In other words, during the marriage, Jeffery’s ESIP increased in value by $119,897.72. Given that the increase was marital property, it was subject to equitable distribution, and the chancellor awarded Tena $59,948.86. The court reduced this award by $1,441.87 to credit Jeffery for his interest in Tena’s PERS retirement account. Tena was ultimately awarded $58,506.99 of Jeffery’s ESIP account. The supreme court has held that “for purposes of divi[d]ing marital property, retirement plans are considered martial [sic] assets.” Phillips, 904 So.2d at 1002(¶ 9). And, “[this Court] [has] routinely upheld an equitable division of one-half of the marital assets where warranted by the facts and circumstances.” Id. at 1003(¶ 13).

¶ 49. Tena and Jeffery had individual bank accounts. At the time of the divorce, Tena’s combined balance of her checking and savings accounts was $200, and Jeffery had savings, checking, and money market accounts totaling $35,772.58. The chancellor noted that “although the parties maintained separate bank accounts, much of their monies were commingled for marital purposes.” Accordingly, the court awarded Tena half of Jeffery’s accounts but reduced the award by the $200 because Tena had been allowed to keep the money in her bank accounts. Both Tena and Jeffery were ordered to pay for their own credit card debt. We find that Jeffery’s argument that Tena “only contributed minimally to the accumulation of marital property” is without merit.

¶ 50. Ferguson clearly states, “contributions of domestic services are not made directly to a retirement fund, [but] they are- nonetheless valid ... contributions which indirectly contribute to any number of marital assets, thereby making such assets jointly acquired.... [I]t must be remembered, the goal of the chancellor in a divorce case is to do equity.” Ferguson, 639 So.2d at 934. This was echoed by the supreme court case wherein the court stated, “[i]n determining a spouse’s contribution which justifies equitable distribution, we look not only at cash contributions and assistance in the spouse’s workplace or business, but also to domestic work in the home such as caring for children, cooking meals, cleaning house, and washing and ironing clothes.” Haney v. Haney, 907 So.2d 948, 955(¶ 27) (Miss.2005). Likewise, in Pittman v. Pittman, 791 So.2d 857, 862(¶ 10) (Miss.Ct.App.2001), we stated that a “spouse who has made a material contribution toward the acquisition of an asset titled in the name of the other may claim an equitable interest in such jointly accumulated property.”

¶ 51. Jeffery contends that Tena worked and was never a “housewife,” but we find that argument unpersuasive. The end result of Jeffery’s arguments is that Tena should not be credited for working and contributing financially, because it was a “minimal” amount, nor should she be credited for her domestic contributions, because she worked and was not a “housewife.” This rationale would certainly place Tena in an inequitable lose-lose situation. A detailed review of the record makes it apparent that both parties contributed to the marital disharmony. However, they both testified that there were some good times during the marriage. Both Tena’s and Jeffery’s contributions to the accumulation and maintenance of the marital property should be credited.

¶ 52. Without conducting a Ferguson analysis anew, we have reviewed the chancellor’s findings of fact and conclusions of law, as well as a thorough review of the record, and we find that the chancellor did not abuse his discretion or commit manifest error when he considered both parties’ contributions and crafted an equitable distribution of Tena and Jeffery’s marital property.

IV. WHETHER THE CHANCELLOR ERRED IN REQUIRING JEFFERY TO MAINTAIN MEDICAL INSURANCE COVERAGE ON TENA IN ADDITION TO THE AWARD OF ALIMONY.

¶ 53. Jeffery was ordered to continue to pay for Tena’s COBRA insurance coverage, and it was classified as alimony. The chancellor stated that this was due to Tena’s health condition. Tena gave undisputed testimony that she suffered from bleeding ulcers and depression; had ongoing pain in her arm, stemming from an earlier auto accident; and was still paying medical bills relating to her motorcycle accident. Jeffery was ordered to pay for the insurance for thirty-six months. This was in addition to the $300 per month for fourteen months that Jeffery was to pay in alimony. Once again, Jeffery contends that the chancellor committed manifest error in awarding the insurance coverage, and he erred by not making adequate findings of fact and conclusions of law. However, this argument is not consistent with Ferguson. In Ferguson, the court also required the husband to maintain insurance for his ex-wife through his employer’s COBRA plan for as long as the law allowed. In Ferguson, the husband contended that the chancellor abused his judicial discretion in ordering him to provide his ex-wife with health and hospitalization insurance through his employer while awarding the ex-wife periodic, continuing, or permanent alimony. Ferguson, 639 So.2d at 936. The Ferguson court stated, “the chancellor was not manifestly wrong in ordering Billy to maintain insurance on Linda under the Bell South COBRA plan for as long as the law allowed. Linda is eligible for COBRA coverage for thirty-six (36) months from the time of her divorce from Billy.” Id. The case at bar is the same situation.

¶ 54. Although Jeffery recognizes that a chancellor is authorized to order a spouse to continue to provide insurance, he claims that it is normally reserved for spouses with serious and costly medical conditions. Jeffery cites Haney for this proposition, but it is not apparent that the supreme court made such a ruling. In Haney, the wife had requested an award of temporary support which included $130 per month for health insurance premiums. Haney, 907 So.2d at 955-56(¶ 31). Rather than stating that serious and costly medical conditions are normally required for the maintenance of insurance to be ordered, the court simply stated, “[t]he chancellor granted Pat’s request, and Bob made the payments as ordered. Pat made no request for an order requiring Bob to keep her insured on his group policy. Thus, we are unable to find in the record any basis for holding these medical bills against Bob.” Id. In other words, the husband in Haney was not responsible for his ex-wife’s medical bills because he had paid for the wife’s insurance temporarily, as ordered by the court, but the wife had made no request for an order requiring her ex-husband to keep her on his insurance policy .for an extended period of time. In the instant case, Tena has ongoing medical problems, and we find no error in the chancellor’s order requiring Jeffery to keep Tena insured for thirty-six months. Based upon a detailed review of the record and the chancellor’s findings of fact and conclusions of law, we affirm the chancellor’s judgment.

¶ 55. THE JUDGMENT OF THE CHANCERY COURT OF GEORGE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR.

      . Tena and Jeffery recalled the number of separations differently. Jeffery testified that Tena left approximately ten times, and Tena remembers four. Regardless of whom is accurate, it is apparent the couple's relationship was far from harmonious.

      . The vehicle given to Tena’s daughter was a different vehicle than the one Jeffery paid for, but Jeffery takes issue with the gift because Tena owned the car debt free. The gift created the need for Tena to purchase another vehicle. Therefore, Jeffery claims that Tena intentionally inflated her lifestyle with extravagant purchases and expenses.

      . Tena presented photographs depicting her with a black eye, which she testified was caused by Jeffery. Jeffery denied die accusation.

      . The Hubbard court stated:
      Our law vests in the chancery courts of this state broad authority to provide for the material needs of spouses incident to divorce. ... [And] our cases have recognized several general forms of aid including, but not limited to: (a) periodic alimony ... (b) lump-sum alimony ... (c) division of jointly accumulated property; and (d) award of equitable interest in property.

        Hubbard, 656 So.2d at 129.

      . The parties testified that they both purchased motorcycles, but Jeffery paid for his, and Tena paid for hers. Tena later had a motorcycle accident wherein she experienced a knee injury that required surgery. This accident led to additional medical bills for Tena.

      . Tena testified that she suffers from three bleeding ulcers, as well as depression, and her medicine expenses are approximately $200 per month.

      . The chancellor’s findings of fact is approximately sixteen pages long, with six of those pages committed to the chancellor's determination of what was marital property, the value of that property, and the distribution of that property.

      . Tena testified that she helped Jeffery clear the land; she helped plant approximately forty crepe myrtle trees; and she assisted Jeffery in constructing a pole barn.