author: COLEMAN, Justice,

text:
    Perry L. COLLINS v. Iretha F. COLLINS.
    No. 2010-CT-01909-SCT.
    Supreme Court of Mississippi.
    May 9, 2013.

      Arnold Datron Lee, attorney for appellant.
    Philip Mansour, Jr., Greenville, attorney for appellee.
   ON WRIT OF CERTIORARI.

COLEMAN, Justice,

for the Court:

¶ 1. After filing for a no-fault divorce in Washington County Chancery Court, Perry and Iretha Collins asked the court to decide the questions of alimony, child support, attorney’s fees, and the division of marital assets. Dissatisfied with the chancellor’s decision, Perry appealed to the Court of Appeals, which affirmed the judgment of the trial court. Perry then petitioned the Court for certiorari and presented four issues; we granted certiorari to consider two issues: (1) the calculation of Perry’s gross income for purposes of determining child support and (2) the designation of marital property. Finding that the Court of Appeals erred in affirming the trial court’s decision regarding both issues, we affirm in part and reverse and remand in part.

FACTS

¶ 2. Perry and Iretha Collins were married in 1991 and filed for divorce in 2005. The marriage produced a daughter, Jer-mylia. During the course of the marriage, the Collinses owned and operated three businesses: (1) Collins Realty, which owned and operated eight rental units; (2) Collins Heating and Air, run by Perry; and (3) Abundance of Life child care center, run by Iretha. After their separation in 2006, Iretha and Jermylia moved into an apartment, and Perry maintained possession of the marital home. Although the couple amicably divided their personalty and agreed upon a custodial arrangement for Jermylia, the Collinses submitted four questions for the chancellor to consider: (1) division of marital assets and debts, (2) alimony, (3) child support, and (4) attorney’s fees.

¶ 3. The ensuing litigation lasted approximately four years. Perry changed attorneys four times, and although the two seemed to agree on a settlement at one point, the discussions eventually fell apart. Although Perry testified at trial regarding his assets, he admitted that his Rule 8.05 form was incorrect and contained omissions. Perry also failed to provide the court with any tax returns because, as he admitted, he failed to file returns for the two years prior to trial.

¶ 4. At the conclusion of the trial, the chancellor awarded the marital home and building used for the heating and air conditioning business to Perry and awarded the building used for the daycare, the rental units, and a portion of Perry’s annuity to Iretha. The court further ordered that Perry pay Iretha $1,300 per month in child support. The court did not award any alimony or attorneys’ fees to either party.

¶ 5. Perry appealed the court’s decision claiming the chancellor erred in her calculation both of Perry’s adjusted gross income for determining child support payments and the proper designation of property. The Court of Appeals affirmed all of the findings of the chancellor except for one component of her income computation related to income from rental properties awarded to Iretha as part of the Final Judgment. The Court of Appeals, however, found this error harmless.

¶ 6. The Court of Appeals correctly affirmed the chancellor’s judgment as to the questions of the marital debt and the division of the marital property. Accordingly, we grant certiorari as to the first and fourth issues only.

STANDARD OF REVIEW

¶ 7. We give a chancellor’s determinations in an irreconcilable differences divorce substantial deference and will not disturb them as long as the findings are “supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002) (quoting Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 (¶ 13) (Miss.1999)).

¶ 8. Particularly in the areas of divorce and child support, this Court must respect a chancellor’s findings of fact when they are supported by credible evidence and not manifestly wrong. Wheat v. Wheat, 37 So.3d 632, 636 (¶ 11) (Miss.2010) (citing R.K. v. J.K., 946 So.2d 764 (¶ 17) (Miss.2007)). Manifest error is that error which is unmistakable, clear, plain, or indisputable. Magee v. Magee, 661 So.2d 1117, 1122 (Miss.1995).

DISCUSSION

I. Property Classification

¶ 9. Regarding the distribution of property, Perry complains that the chancellor did not consider the May 8, 2007, temporary support order to mark the point of demarcation for the purpose of ending the time period during which accrued assets were to be considered marital, rather than separate, property. Perry contends the chancellor abused her discretion when she made the date of the divorce the point of demarcation instead. The law in Mississippi is that the date on which assets cease to be marital and become separate assets—what we refer to herein as the point of demarcation—can be “either the date of separation (at the earliest) or the date of divorce (at the latest).” Lowrey v. Lowrey, 25 So.3d 274, 285 (¶27) (Miss.2009).

¶ 10. In Selman v. Selman, 722 So.2d 547 (Miss.1998), the wife had a retirement fund, and the chancellor awarded the husband half its value even though the fund did not begin to accrue until after the husband had vacated the marital home. Id. at 553 (¶ 22). When including the fund in the marital assets, “the chancellor stated only that ‘[t]he law says that until they are divorced, everything is on the table.’ ” Id. Applying the well-settled manifest error standard of review, id. at 551 (¶ 12), the Selman Court reversed the chancellor’s ruling and wrote, “while the marriage had not legally terminated, the relationship out of which equitable distribution arises had ended some months earlier.” Id. at 553 (¶ 25).

¶ 11. A temporary order may be considered by the chancellor to be a line of demarcation between marital and separate property, Cuccia v. Cuccia, 90 So.3d 1228, 1233 (¶ 8) (Miss 2012); see also Wheat v. Wheat, 37 So.3d 632, 637-38 (¶¶ 16-18) (Miss.2010) (recognizing, in dicta, that a temporary support order can indicate the demarcation point), but we have never held that it must. However, in Pittman v. Pittman, 791 So.2d 857 (Miss.Ct.App.2001), the Mississippi Court of Appeals held, “[T]he temporary support order serves the same purposes as a separate maintenance order and that property accumulated thereafter is separate property.” Id. at 864 (¶ 19). In so writing, the Pittman Court created the impression that Mississippi now has established a rule that temporary orders always and in every case provide the mark of demarcation. Temporary support orders vary. They may include issues such as which spouse controls the marital home, automobiles, and bank accounts, or they may simply, as in the case sub judice, provide only for temporary custody and support of a minor child. Because of the degree of variance in temporary orders and the particularities of every marital dissolution, we reaffirm our holding in Lowrey and hold that it is necessary that a chancellor maintain discretion to decide in each instance whether a temporary order is the proper line of demarcation. To the extent that the Pittman opinion can be read to create a rule that a temporary support order necessarily and always indicates the point of demarcation, we overrule it.

¶ 12. In the case sub judice, the chancellor did not explicitly state what date she chose as the date of demarcation, but from the substance of the opinion, it is clear she chose the date of the divorce. In their briefs, the parties accept that the chancellor used the date of the divorce as the point of demarcation. The temporary support order in the instant case dealt only with child custody and temporary child support. It did not go so far toward separating the parties’ several jointly-held assets that we would hold the chancellor abused her discretion in not finding it to be the point of demarcation.

¶ 13. However, the Cuccia Court noted that the chancellor must set out the specific date used as the line of demarcation and remanded the case partly for the chancellor’s failure to do so. Cuccia, 90 So.3d at 1233 (¶ 11). The chancellor did not do so here, but, as noted above, the parties do not dispute the issue. We take the instant opportunity to write that had the issue been disputed, or had the chancellor’s order been ambiguous as to the demarcation date used, we would have remanded the case as did the Cuccio Court. We reiterate here that chancellors should indicate in the record what date they choose for the point of demarcation and why they choose it.

II. Child Support Award

¶ 14. Perry asserts that the award of $1,300 per month in child support is manifest error for two reasons: (1) the chancellor arbitrarily determined the assets of Perry’s business simply by dividing in half the dollar amount of deposits made in the company’s bank account for one year and declared one half to be assets and designated the other as overhead and expenses; (2) the chancellor added Perry’s future revenue from the rental properties as part of his gross income after she awarded the rental units to Iretha in the Final Judgment.

A. Business Income

¶ 15. During 2009 Perry deposited a total of $188,919.51 into the heating and air conditioning business account. The chancellor stated that, due to the admittedly incorrect information provided in Perry’s 8.05 form, it was difficult to determine his adjusted gross income. Further, the chancellor found Perry’s testimony that the overhead of the business was $300,000 to be “simply not credible.” As a result, the chancellor split the deposited dollar amount in half and declared one half of the deposits ($94,459.75) to be Perry’s annual income from the business. While we agree that the 8.05 form was lacking, the chancellor ignored other evidence regarding the assets of the business.

¶ 16. We recognize that the findings of a chancellor in determining child support presents questions of fact that we are loath to disturb, but such disturbance is required when not substantiated by the evidence. “[A] chancellor’s findings of fact will only be reversed when the record possesses no credible evidence to support them.” Hensarling v. Hensarling, 824 So.2d 583, 586 (¶ 7) (Miss.2002). The Court of Appeals incorrectly stated that Perry had provided no evidence beyond his 8.05 form to substantiate his claims. Perry provided to the court the business’s bank records for 2009. These documents, correctly used by the chancellor to determine the amount of deposits made during the year, further show that the cost of supplies, salary, and other overhead resulted in Perry’s income from the business being nowhere near the $94,459.75 determined by the chancellor.

¶ 17. The chancellor’s concern with the document is justified. In fact, we have stated that failure to comply with Rule 8.05 constitutes a fraud on the court. See Trim v. Trim, 33 So.3d 471 (Miss.2010). However, if the chancellor makes such a finding, the appropriate remedy for such behavior is to hold Perry in contempt and enter appropriate sanctions — not to punish him by disregarding any other credible evidence provided by him to the court. See Uniform Chancery Court Rule 8.05 (“The failure to observe this rule, without just cause, shall constitute contempt of Court for which the Court shall impose appropriate sanctions and penalties”). Rule 8.05 allows evidentiary discovery in addition to the disclosure. Id. In short, errors or omissions in the form do not preclude consideration of other evidence presented to the chancellor. We therefore find that the chancellor was manifestly wrong when she arbitrarily determined Perry’s monthly income to the exclusion of the undisputed evidence he provided.

B. Rental Property Income

¶ 18. A chancellor may determine gross income for child support payments from all sources “... that may reasonably be expected to be available to the absent parent....” Miss.Code Ann. § 43-19 — 101 (3)(a) (Rev.2009). One component of the chancellor’s determination of Perry’s gross income was future revenue from the rental properties the Collinses owned during their marriage. The chancellor, however, awarded those properties to Iretha in the Final Order. It would therefore be quite impossible for Perry to reasonably expect to be awarded the benefit of rental income stemming from property he no longer owned. The Court of Appeals reached the same conclusion in its opinion, but found the error harmless. See Collins v. Collins, 112 So.3d 439 (2012). We concur with the Court of Appeals’s determination of error but find that such error is not harmless for reasons discussed below. We find that the chancellor abused her discretion in attributing any future rental income to Perry when he no longer owned the property.

C. Mississippi Code Section 43-19-101

¶ 19. Tangential to these two errors in the calculation of Perry’s income is the application of Section 43-19-101(4). In pertinent part, the statute requires the court to determine if the guidelines provided in the statute to assist the chancellor in determining gross income are “reasonable” in cases where the adjusted gross income is more than $50,000. The chancellor found the combination of business income and rental income to equal an annual net income for Perry of $110,216.47. Under the guidelines, his child support payments would be $1,285.85 per month. Pursuant to Section 43-19-101(4), the chancellor made a written finding that fourteen percent was not reasonable and the amount of support should be rounded up to an even $1,300 per month. If the $50,000 income threshold is not met without the addition of the assumed rental income, then the error as to its inclusion in Perry’s income level is not harmless as the Court of Appeals opined. We do not contest the chancellor’s findings as to reasonableness on this point, but note that if Perry’s adjusted gross income does not surpass $50,000, the subsection will not apply.

CONCLUSION

¶ 20. Although we find no error in the chancellor’s division of marital property or debt, we do find that credible evidence related to Perry’s heating and air conditioning business was ignored. Additionally, any future revenue from the rental properties awarded to Iretha by the court’s Final Judgment should not have been included in the determination of Perry’s adjusted gross income. We further find that these errors rise to the level of abuse of discretion on the part of the chancellor and remand the case for a new calculation of Perry’s income. Therefore, the judgment of the trial court is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent with this opinion. The judgment of the Court of Appeals is likewise affirmed in part and reversed in part.

¶ 21. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . In his brief. Perry relies on our decision in Godwin v. Godwin, 758 So.2d 384 (Miss.1999), for the proposition that temporary support orders and separate maintenance orders alike mark the point of demarcation. However, the Godwin Court did not address temporary support orders and held only that separate maintenance orders should effect such a result. Id. at 386 (¶¶ 5-7).

      . We note that the Mississippi Legislature raised this threshold to $100,000 during the 2013 legislative session. However, the $50,000 threshold applies in the instant case since that was the threshold amount at the time the suit was commenced.

      . The guidelines in Section 43-19-101 provide that support for one child should be fourteen percent of the parent's adjusted gross monthly income. Miss.Code Ann. § 43-19-101(4) (Rev.2009).


source: Caselaw Access Project

author: PIERCE, Justice,

license: Public Domain

text:
    Howard Wilson CARNEY, III v. Andrea Leigh Bell CARNEY.
    No. 2010-CT-00646-SCT.
    Supreme Court of Mississippi.
    May 9, 2013.
    J. Mack Varner, Clifford C. Whitney, III, Vicksburg, Penny B. Lawson, attorneys for appellant.
    Travis T. Vance, Jr., attorney for appel-lee.
   ON WRIT OF CERTIORARI

PIERCE, Justice,

for the Court:

¶ 1. Howard Carney III and Andrea Leigh Bell Carney obtained a divorce on the ground of irreconcilable differences in the Warren County Chancery Court. They asked the chancery court to determine child support, alimony, equitable distribution of assets, and attorney’s fees. The chancery court determined child support, divided the marital estate, considered alimony but declined to award it, and ordered Howard to pay $5,000 toward Andrea’s attorney’s fees. Howard appealed and the Court of Appeals affirmed. Carney v. Carney, 112 So.3d 453 (Miss.Ct. App.,2012). Howard filed a petition for writ of certiorari, claiming that the Court of Appeals erred in affirming the chancery court judgment because the chancery court manifestly (1) failed to divide the marital estate equitably and (2) erred by listing his unvalued social security benefits under his share of the equitable distribution. We agree with Howard as to issue one; thus, we reverse and remand on this issue. We affirm the Court of Appeals and the chancery court on the second issue.

FACTS AND PROCEDURAL HISTORY

¶ 2. Andrea and Howard were married on November 20, 1998, and separated on November 26, 2008. Two children were born of their marriage, Amanda Leigh Carney, born in June 1999, and Katherine Emily Carney, born in June 2006.

¶ 3. In December 2008, Andrea filed a complaint for divorce from Howard on the grounds of habitual cruel and inhuman treatment and/or irreconcilable differences. In September 2009, Andrea filed an amended complaint for divorce on the grounds of adultery, habitual cruel and inhuman treatment, and/or irreconcilable differences. Howard thereafter filed a counter-complaint for divorce on the grounds of uncondoned adultery, habitual cruel and inhuman treatment, and/or irreconcilable differences. In March 2009, the chancery court entered a temporary order, granting Andrea temporary custody of the two children of the marriage and child support and temporary maintenance of $2,000 per month. On January 13, 2010, the parties filed a consent withdrawing fault grounds to divorce on the ground of irreconcilable differences. The parties asked the chancellor to determine issues of child support, alimony, equitable distribution of assets, and attorney’s fees.

¶ 4. On March 19, 2010, the chancery court entered a memorandum opinion and final judgment of divorce based on irreconcilable differences. The chancellor awarded Andrea full use, title, and possession of the marital home, to include 100 percent of the equity in the home.

¶ 5. The marital home, known as the “Bell Property,” was the home of Andrea’s father and grandfather from 1937 until the home was purchased by her sister, Patricia Barnes. In early 2004, Patricia met an untimely death, and her husband, Jason Barnes, placed the house on the market shortly thereafter. Andrea and Howard wanted to purchase the home, but they could not obtain the proper financing. In an effort to keep the home in the family, Debra and Bob Bayler (“the Baylers”), another sister of Andrea’s, and Andrea’s brother-in-law, agreed to purchase the home.

¶ 6. On March 19, 2004, the Baylers purchased the Bell family home for $279,900. Andrea and Howard entered into a rental agreement with the Baylers whereby they would rent the home from the Baylers until they could secure financing to purchase it themselves, which began on April 6, 2004.

¶ 7. At the time of her death, Patricia left Andrea a $175,000 life insurance policy. On May 14, 2004, Andrea paid the Baylers $165,000 from proceeds of the life insurance policy as a down payment on the home. The Baylers financed the remaining purchase price with River Hills Bank.

¶ 8. On May 8, 2006, Andrea and Howard borrowed $70,000 from Tensas State Bank as a first mortgage. Of the $70,000 loan, they used $54,102.13 to pay off the balance on the loan with River Hills Bank. The remaining $14,925.87 was placed in their joint account. In addition, on May 8, 2006, a settlement statement was executed between Andrea, Howard, and the Baylers, and a warranty deed was executed conveying the property to Andrea.

¶ 9. On February 28, 2007, Andrea and Howard obtained a second mortgage on the home for $10,030 to pay outstanding bills. On May 28, 2009, the property appraised for approximately $253,800. During divorce proceedings, the chancellor found that the first mortgage had a remaining balance of $64,399.29, and the second mortgage had a remaining balance of $3,348.14, at the time of the divorce. Taking the 2009 appraisal value of $253,800, minus the balances of the first and second mortgages at the time of the divorce (totaling $67,747.43), the chancellor determined that the home had equity in the amount of $186,052.57, which was awarded to Andrea in full.

¶ 10. In sum, the chancellor determined that the net value of the marital estate was, after considering marital debt, $237,503.72. The chancellor awarded Andrea $224,050.57 (94.3%) of the estate and Howard, $13,453.13 (5.7%).

STANDARD OF REVIEW

¶ 11. Our scope of review in domestic-relations matters is limited. Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994). The appellate court “will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. (citing Bell v. Parker, 563 So.2d 594, 596-597 (Miss.1990)). “[0]n appeal[,] this Court is required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong.” Id. (quoting Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990)).

DISCUSSION

I. Whether the chancellor failed to divide the marital estate equitably.

¶ 12. The chancellor found the “Bell Property” was marital property under the commingling-of-assets and marital-use doctrines. Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994). This finding was made on the basis that Andrea commingled money she received as a beneficiary of her sister’s life insurance policy in acquiring the property and used the property jointly with Howard as their marital home. On this basis, the chancellor found that the home was a marital asset. But the chancellor did not allot Howard any share in the home’s equity. This created a significant disparity in the division of the marital estate. Further, by absolving Andrea from obligations on the second mortgage’s remaining balance and assigning the balance to Howard, the chancellor’s division resulted in even a greater disparity than that indicated in the above fact portion of this opinion. Technically, since this debt followed Howard, Andrea was awarded $189,400.71 in equity, not $186,052.57.

¶ 13. In dividing the marital estate, the chancellor conducted a thorough Ferguson analysis for the record. But we can find no explanation and/or justification therein for the disparity that resulted in the marital-estate division. We recognize that the chancellor noted that, “It is unfortunate that the funds provided to Mrs. Carney from her deceased sister were used in a manner that requires the court to determine that they were co-mingled [sic].” And it appears to this Court that the chancellor, perhaps unintentionally, but nonetheless ultimately, treated those funds as nonmarital. This was manifest error. Having found that those funds were commingled with the marital estate, the chancellor was required to treat those funds as marital and to distribute and/or consider them equitably under the Ferguson factors. See Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994) (Court found that, by allowing nonmarital-inherited funds to be used to benefit the entire family, spouse converted those nonmarital assets into marital assets; thus, those assets were subject to equitable distribution); cf. Singley v. Singley, 846 So.2d 1004, 1011-12 (Miss.2002) (finding that, although the chancery court correctly determined that a $70,000 inheritance was commingled and became a part of the marital estate, the chancery court apparently failed to realize that it could adjust the Ferguson distribution because of the factors surrounding the source and application of the $70,000); see also Gutierrez v. Bucci, 827 So.2d 27, 39 (Miss.Ct.App.2002) (finding no error in chancery court’s award of $5,000 equity in property to husband in light of wife’s dissipation of assets).

¶ 14. Because Mississippi is not a community property state, the chancellor was not required to divide the property equally — only equitably. Rives v. Rives, 416 So.2d 653, 657 (Miss.1982). And we iterate that awarding 100 percent equity in a marital asset to one party is not error per se. But, in this instance, based on the record before this Court, we are unable to ascertain why the chancery court awarded the entire equity of the marital home solely to Andrea, without awarding Howard some other equitable share in the marital estate or equitable relief from the marital debt. Accordingly, we reverse and remand this matter for further proceedings consistent with this opinion.

II. Whether the chancellor erred in considering Howard’s unvalued social security benefits as part of his equitable share.

¶ 15. On appeal, Howard argues that Ferguson requires the chancellor to value assets prior to distribution. Ferguson, 639 So.2d at 928. Relying on Scott v. Scott, 835 So.2d 82, 87 (Miss.Ct.App.2002), Howard contends the failure to do so is reversible error. This Court finds, however, that the principles in Scott, relied on by Howard, are .inapplicable to valuation of social security benefits in this case. At the time of Andrea’s and Howard’s divorce, the chancellor would not have been able to value these future benefits, unlike the chancellor’s complete failure to value assets in Scott, where means of valuation were readily available. See id. (where the chancellor did not value two vehicles and used a thirty-year old value of the marital home for distribution). .There is no case-law to support Howard’s contention that all assets must or can be valued prior to equitable distribution where no means of valuation exists. This is especially true in Mississippi, since it is not a community property state. Nevertheless, we agree with the Court of Appeals’ holding that, even if the chancellor erred by distributing Howard’s benefits to him despite their unknown value, the error was harmless because no monetary amount was awarded. Carney v. Carney, 112 So.3d 453, at 459-60. We find the second issue on appeal meritless and affirm the Court of Appeals’ holding as well as the judgment of the chancery court on this issue.

CONCLUSION

¶ 16. We find that the chancellor manifestly erred by failing to divide equitably the marital estate. Accordingly, we reverse the Court of Appeals’ holding affirming the chancellor’s distribution, reverse the chancery court’s judgment as to this issue and remand this matter for further proceedings consistent with this opinion. We affirm the Court of Appeals and the trial court on the second issue, whether the chancellor erred in considering Howard’s unvalued social security benefits as part of his equitable share.

¶ 17. AFFIRMED IN PART, REVERSED IN PART AND THE CASE IS REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR.

      . The facts of this case are drawn mostly from the Court of Appeals’ opinion. Carney, 112 So.3d 453, at 454-56.

      . Applying the factors from Ferguson v. Ferguson, 639 So.2d 921 (Miss. 1994), the chancellor divided the assets and debts as follows:
      Andrea was awarded the following marital assets:
      Marital Home: $186,052.57 in equity
      Marital Household Furnishings:
      $5,175.00
      2002 Toyota Sequoia: $7,170.00
      TSB Checking: $53.00
      RHB Checking: $800.00
      DOC-CU Savings: $800.00
      State of LA Retirement: $24,000.00
      Total: $224,050.57
      Andrea was required to pay the following debts:
      First Mortgage with Tensas State Bank: $64,399.29
      Capital One: $2,307.04
      HSBC: $186.80
      Total: $66,893.13
      Howard was awarded the following assets:

        2005 Chevrolet Truck: $327.80 in equity
      2007 Travel Trailer: $3,677.12 in equity
      Social Security Benefits: Actual Value Unknown
      TSB Checking: $875.21
      TSB Savings: $43.52
      40IK: $7,279.50
      Tools: $1,250.00
      Total: $13,453.15
      Howard was ordered to pay the following debts:
      2005 Chevrolet Truck: $10,712.20
      2007 Travel Trailer: $12,712.88
      Jon Barry & Assoc.: $551.42
      Second Mortgage with Tensas State
      Bank: $3,348.14
      Capital One: $2,765.65
      Orchard Bank: $1,765.00
      Total: $31,855.29

      . We note also that Andrea was awarded attorney’s fees based on "the financial conditions of the parties.” The record does not support this finding. Howard, however, did not make this an issue on appeal; thus, we do not address it further. But, since we are remanding for further proceedings, any additional award for attorney’s fee's must be accompanied by an analysis as prescribed by this Court in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).


author: RUSSELL, J., ROBERTS, J.,

text:
    Shirley ALSTON and Robert Alston, Appellants v. Justin P. POPE and T.K. Stanley, Inc., Appellees.
    No. 2010-CA-01760-COA.
    Court of Appeals of Mississippi.
    Jan. 31, 2012.
    Rehearing Denied July 17, 2012.

      Stephen J. Maggio, attorney for appellants.
    B. Stevens Hazard, Jackson, Steven James Griffin, Flowood, attorneys for ap-pellees.
   RUSSELL, J.,

for the Court:

¶ 1. Shirley and Robert Alston appeal the decision of the Wayne County Circuit Court denying their motion for relief from judgment. Upon review, we find that the circuit court abused its discretion in denying the Alstons’ motion. Therefore, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 12, 2005, Shirley was a passenger in a vehicle that collided with a vehicle driven by Justin Pope in Tuscaloosa, Alabama. Pope was within the course and scope of his employment operating a vehicle owned by his employer, T.K. Stanley, Inc. (T.K. Stanley), at the time of the accident. On November 27, 2007, Shirley and her husband, Robert, filed suit in the Circuit Court of Wayne County, Mississippi against Pope and T.K. Stanley (“Defendants”) asserting negligence as their cause of action. Pursuant to Mississippi Code Annotated section 11-ll-S(l)(a)(i) (Rev.2004), “[cjivil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.” One of the defendants in this case, Pope, resides in Mississippi, and T.K. Stanley, the other defendant, has its principal place of business in Mississippi. In the instant case, venue was proper in both Mississippi and Alabama. Litigants are not required to explain their reasons for choosing one venue over another so long as they choose one which is proper.

¶ 3. On January 25, 2008, the Defendants filed their motion to dismiss on the basis of forum non conveniens. On October 14, 2008, a hearing was held on Defendants’ motion to dismiss. At that hearing, Defendants argued that Alabama would be the more appropriate forum. In response, the Alstons argued that the Defendants were required to file a written stipulation agreeing to waive any statute-of-limitations defense they might have in an Alabama state court. Specifically, counsel for the Alstons stated:

So I think the [cjourt has a balancing [test] to engage in, and I grant you that the [c]ourt may decide on balance that my lawsuit should be over in Alabama; and if it does, the relief I’d request from the [cjourt in that regard is the requirement that [the defendants] stipulate to a waiver of the statute of limitations and accept service of process.

¶ 4. In response, counsel for the Defendants made the following statement to the circuit court:

In regard[ ] to the statute requiring stipulation of the waiver of statute of limitations, I admit, your Honor, that was an oversight of not having done so beforehand. It was just kind of the path this took. But we certainly don’t — we certainly are willing to abide by the statute. So in the event the [cjourt is inclined to dismiss this and — such that it be re-filed in Alabama, we’ll certainly file the necessary stipulation as soon as I leave here today.

The Defendants never filed a written stipulation waiving their statute-of-limitations defense. On October 28, 2008, the circuit court entered its order and final judgment dismissing the case with prejudice, which reads, in pertinent part, as follows:

Having read the motions and briefs and having heard the arguments of the parties, the Court finds that all factors as annunciated in [Missouri Pacific R. Co. v. Tircuit, 554 So.2d 878, 882 (Miss.1989) ] and Miss.Code Ann. § 11-11-3 weigh in favor of dismissal of plaintiffs’ complaint based on the doctrine of forum non conveniens and, therefore, the case is dismissed and shall be re[-]filed by the plaintiffs in the more convenient jurisdiction of the Circuit Court of Tuscaloosa County, Alabama. Further, the Court find that since plaintiffs’ complaint was filed in this Court on November 27, 2007, before the expiration of the applicable Alabama two[-]year statute of limitations, [the] defendants waive the right to assert a statute of limitations defense upon the refiling of the action in the Circuit Court [of] Tuscaloosa County, Alabama, pursuant to and as defined by Miss.Code Ann. § 11 — 11—3(4)(b). Lastly, ... the Court finds that the defendants stipulate to accept service of process through service upon their attorney.

¶ 5. On October 15, 2009, the Alstons refiled their complaint in Tuscaloosa County, Alabama. Thereafter, the Defendants filed a motion for summary judgment in the Alabama proceeding, asserting a statute-of-limitations defense.

¶ 6. On May 12, 2010, the Alstons filed their motion for relief from judgment in the Mississippi circuit court. The Alstons argued that the judgment dismissing the action on the ground of forum non conve-niens was void because the Defendants failed to file a written stipulation waiving the right to assert a statute-of-limitations defense in Alabama in accordance with Mississippi Code Annotated section 11 — 11— 3(4)(b) (Rev.2004).

¶ 7. On July 12, 2010, the Alabama circuit court granted the Defendants’ motion for summary judgment due to the running of Alabama’s two-year statute of limitations for negligence actions.

¶ 8. On September 30, 2010, the circuit court in Mississippi entered its judgment denying the Alstons’ motion for relief from judgment. The circuit court found that the Alstons’ motion under Mississippi Rule of Civil Procedure 60(b) was untimely filed, but even if it had been timely filed, the Alstons’ argument — that the judgment of dismissal was void — was without merit.

¶ 9. The Alstons timely appealed the circuit court’s judgment denying their motion for relief from judgment. We face three issues on appeal: (1) whether the language in Mississippi Code Annotated section 11-11 — 3(4)(b), which requires a defendant to file a written stipulation waiving any statute-of-limitations defense that the defendant might have in another jurisdiction, is a prerequisite to dismissing a Mississippi action on the ground of forum non conve-niens; (2) whether the circuit court’s order dismissing the case based on forum non conveniens is void; and (8) whether the circuit court abused its discretion in denying the Alstons’ Rule 60(b) motion on the basis that the motion was untimely filed. We will address issues one and two together.

DISCUSSION

I. Whether the language in section 11 — 11—3(4)(b) operates as a prerequisite to the dismissal of a Mississippi action on the ground of forum non conveniens and whether the order dismissing the case is void.

¶ 10. A circuit court’s dismissal of a suit based on the doctrine of forum non conveniens will be reversed “if the trial court abused its discretion or applied an erroneous legal standard[.]” Poole v. Am. Pub. Life Ins. Co., 878 So.2d 1102, 1108 (¶ 6) (Miss.Ct.App.2004) (citing Metro. Life Ins. Co. v. Aetna Cas. & Sur. Co., 728 So.2d 573, 575 (¶ 7) (Miss.1999)). According to the Alstons, the circuit court erred in dismissing their Mississippi action because the Defendants failed to file a written stipulation agreeing to waive any statute of limitations defense they might have had in Alabama pursuant to Mississippi Code Annotated section 11 — 11—3(4)(b). Section 11 — 11—3(4)(b) provides:

A court may not dismiss a claim under this subsection until the defendant files with the court or with the clerk of the court a written stipulation that, with respect to a new action on the claim commenced by the plaintiff, all the defendants waive the right to assert a statute of limitations defense in all other states of the United States in which the claim was not barred by limitations at the time the claim was filed in this state as necessary to effect a tolling of the limitations periods in those states beginning on the date the claim was filed in this state and ending on the date the claim is dismissed.

(Emphasis added). The Mississippi Supreme Court has held that “there is one classic instance when the doctrine of forum non conveniens will never be applied, and that is to dismiss a case if it is barred elsewhere by a statute of limitations, unless or until the defendant is willing to stipulate that he will waive the statute of limitation defense.” Shewbrooks v. A.C. & S., Inc., 529 So.2d 557, 562 (Miss.1988) (superceded by statute on other grounds). Our supreme court further noted that “[t]o insure an alternative forum is available, the overwhelming authority in this country requires a defendant to waive the statute of limitations before the court will grant a forum non conveniens transfer.” Id. (emphasis added). Moreover, “[federal district courts of this state, as a condition precedent to sustaining a forum non conve-niens transfer motion, require the defendant to waive any statute of limitations defense.” Id. at 563 (citing Tisdale v. Stone & Webster Corp., 595 F.Supp. 1016, 1020 (S.D.Miss.1984)). Similarly, Georgia requires, as a mandatory condition precedent, a written stipulation be filed prior to the dismissal of an action on the basis of forum non conveniens. See Hewett v. Raytheon Aircraft Co., 273 Ga.App. 242, 614 S.E.2d 875, 881 (2005) (holding that “a written stipulation ‘fil[ed] with the court or with the clerk of court’ is a mandatory condition precedent to the dismissal of a case under the doctrine of forum non con-veniens”).

¶ 11. In the instant case, the Defendants were required to file a written stipulation waiving the statute of limitations defense before the circuit court could dismiss the case on the ground of forum non conveniens. Miss.Code Ann. § 11 — 11— 3(4)(b). The statute does not permit “oral” stipulations. To this day, the Defendants have failed to file any such written waiver despite the statutory mandate as well as the defense counsel’s representation to the circuit court that they would do so on the day of the hearing on Defendants’ motion to dismiss. Additionally, the circuit court’s order stated that “since [the] plaintiffs’ complaint was filed in this Court on November 27, 2007, before the expiration of the applicable Alabama two[-]year statute of limitations, [the] defendants waive the right to assert a statute of limitations defense upon the refiling of the action in the Circuit Court [of] Tuscaloosa County, Alabama, pursuant to and as defined by [section] 11 — 11—3(4)(b).” The Defendants ignored the circuit court’s order, the plain language of the statute, and their own prior representations to the circuit court that they would file the written waiver. Most troubling, however, is the fact that despite their representation to the Mississippi circuit court that they would comply with the statutory waiver, the Defendants did not comply and actually raised the statute-of-limitations defense in an Alabama court, resulting in the case being dismissed on statute-of-limitations grounds. Such actions on the part of Defendants’ counsel give this Court great concern. The overall effect of Defendants’ actions was to prevent the Alstons from having their day in court on the merits. The Alstons’ case was dismissed in Mississippi with prejudice, subsequently suit was filed in the Alabama court, and finally dismissed in Alabama on the expiration of the statute of limitations. Thus, the Al-stons have not had an opportunity to present their case and have the merits fairly judged. See Albert v. Allied Glove Corp., 944 So.2d 1, 6 (¶ 16) (Miss.2006) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982)). The filing of the written stipulation is a condition precedent to dismissal. Therefore, we find that the circuit court’s order is void because the court was without authority to dismiss the case under the doctrine of forum non conveniens prior to the defendant filing the stipulation of waiver. See Indymac Bank, F.S.B. v. Young, 966 So.2d 1286, 1290 (¶ 14) (Miss.Ct.App.2007) (noting that a judgment is void under Rule 60(b)(4) “if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if [it] acted in a manner inconsistent with due process of law”).

II. Whether the circuit court abused its discretion in denying the Al-stons’ Rule 60(b) motion on the basis that the motion was untimely filed.

¶ 12. “This Court’s standard of review of the denial of a Rule 60 motion is abuse of discretion.” Jernigan v. Young, 61 So.3d 233, 235 (¶ 12) (Miss.Ct.App.2011) (citing In re Dissolution of Marriage of De St. Germain v. De St. Germain, 977 So.2d 412, 416 (¶ 7) (Miss.Ct.App.2008)). Mississippi Rules of Civil Procedure Rule 60(b)(4) “provides for relief from a judgment or order on the basis that the judgment is void.” Gambrell v. Gambrell, 644 So.2d 435, 439 (Miss.1994). Specifically, Rule 60(b) provides, in pertinent part, as follows:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(4) the judgment is void;
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken.

M.R.C.P. 60(b) (emphasis added). Thus, while there is a six-month time limit to file a Rule 60(b) motion under subsections (1)-(3), a motion under subsection (4) of the rule must be filed “within a reasonable time.” Id. “What constitutes a reasonable time period is determined on a case-by-case basis.” Indymac Bank, 966 So.2d at 1290 (¶ 13) (citing Jenkins v. Jenkins, 757 So.2d 339, 344 (¶ 11) (Miss.Ct.App.2000)). For purposes of timeliness, we consider “whether the opposing party has been prejudiced by the delay in seeking relief and whether there is good reason for the defaulting party’s failure to take appropriate actions sooner.” Id.

¶ 13. In this case, the order and final judgment was entered by the circuit court on October 28, 2008, and the Alstons filed their motion for relief of judgment under Rule 60(b)(4) on May 12, 2010— approximately a year and a half later. As noted by the circuit court, the reason for the Alstons’ delay in filing their motion was that “they were waiting for the Defendants to tender the proper stipulations to the [cjourt waiving any statute of limitations defense they may have [had] in Alabama.” The circuit court found that this argument was without merit because “refiling their lawsuit in Alabama was not conditioned upon the Defendants filing the stipulation in [the circuit court] waiving their statute of limitations defense.” The circuit court found that the Alstons’ motion was not filed within a reasonable time period.

¶ 14. Because we have already determined that the circuit court’s order and judgment entered on October 28, 2008, is void, the timeliness of the Alstons’ Rule 60 motion is now moot. Nevertheless, we disagree with the circuit court’s decision and find that the Alstons’ motion was made within a reasonable time. The Al-stons had good reason for not filing their motion sooner — they were waiting for the Defendants to file the required written stipulation waiving any statute-of-limitations defense they might have in Alabama as required by statute. See Miss.Code Ann. § ll-ll-3(4)(b). Moreover, counsel for Defendants represented to the circuit court at the hearing that he would “certainly file the necessary stipulation as soon as I leave here today.” Accordingly, we find that the circuit court abused its discretion in finding that the Alstons failed to file their motion within a reasonable time.

CONCLUSION

¶ 15. We find that the circuit court’s judgment is void because the circuit court lacked the authority to dismiss the claim in the absence of the Defendants filing a written stipulation. We further find the Alstons’ Rule 60 motion was timely filed. Therefore, we reverse the judgment of the circuit court dismissing the case on the ground of forum non conveniens and remand this case to the Circuit Court of Wayne County to reinstate the case for adjudication on the merits.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

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

ROBERTS, J.,

dissenting:

¶ 17. This appeal arises from a traffic accident that occurred on December 12, 2005, in Tuscaloosa County, Alabama. Shirley Alston and Cynthia Walton were guest passengers in Elizabeth Wilson’s car when Wilson, the driver, was involved in a traffic accident with an eighteen-wheeler. Justin P. Pope was operating the eighteen-wheeler on behalf of his employer, T.K. Stanley Inc., a Mississippi corporation domiciled in Wayne County, Mississippi. Alston, Walton, and Wilson were all residents of Alabama.

¶ 18. On November 27, 2007, Shirley and her husband, Robert, sued Pope and T.K. Stanley (the Defendants) in Wayne County Circuit Court. The statute of limitations on the Alstons’ claim would have expired fifteen days later. The Defendants filed a motion to dismiss the Alstons’ complaint based on forum non conveniens. The Defendants argued that the Alabama state court was a more appropriate forum for the Alstons’ lawsuit because: (1) the collision occurred in Tuscaloosa County, Alabama; (2) the Alstons were Alabama residents; (3) Wilson and Walton were Alabama residents; (4) the cause of action and the damages sought were based on application of Alabama law; and (5) virtually all other witnesses were Alabama residents.

¶ 19. As the majority notes, during the hearing on the Defendants’ motion, the Defendants’ lawyer explained that he had not filed the statutory stipulation waiving any claim that the statute of limitations expired during the time while the Alstons’ lawsuit was pending in the Mississippi circuit court. However, the Defendants’ lawyer said he would file the stipulation after the hearing. The Defendants’ lawyer also said he was “certainly ... willing to abide by the [language in the] statute.” After discussing the relevant factors, the circuit court granted the Defendants’ motion to dismiss based on the ground of forum non conveniens. The circuit court instructed the Defendants’ lawyer to prepare a draft order and submit it to the Alstons’ lawyer for review as to form before sending the order to the court for execution. The circuit court also instructed the Defendants’ lawyer to insert language in the order indicating that the Defendants agree “to stipulate to the waiver of the statute[-]of[-]limitation period as well as the acceptance to service of process.”

¶ 20. On October 17, 2008, the Defendants’ lawyer sent the Alstons’ lawyer a letter and a copy of the draft order dismissing the Alstons’ complaint by both fax and regular United States mail. Six days later, the Defendants’ lawyer sent a letter to the circuit court judge. Within that letter, the Defendants’ lawyer said he had sent the draft order to the Alstons’ lawyer per the circuit judge’s instruction, and the Alstons’ lawyer had not responded or objected to any of the language included in the draft order. On October 28, 2008, the circuit court entered the order dismissing the Alstons’ complaint with prejudice. As noted by the majority, that order included the following language:

since [the Alstons’] complaint was filed in this Court on November 27, 2007, before the expiration of the applicable Alabama two[-]year statute of limitations, [the Defendants] waive the right to assert a statute[-]of[-]limitations defense upon the refiling of the action in the Circuit Court [of] Tuscaloosa County, Alabama, pursuant to and as defined by [Mississippi Code Annotated section] 11 — 11—3(4)(b).

The Alstons never filed a motion to amend the circuit court’s order under Rule 52(b) or Rule 59(e) of the Mississippi Rules of Civil Procedure. Likewise, the Alstons did not appeal the circuit court’s final judgment of dismissal.

¶ 21. Mississippi Code Annotated section 11 — 11—3(4)(b) (Rev.2004) provides:

A court may not dismiss a claim under this subsection until the defendant files with the court or with the clerk of the court a written stipulation- that, with respect to a new action on the claim commenced by the plaintiff, all the defendants waive the right to assert a statute of limitations defense in all other states of the United States in which the claim was not barred by limitations at the time the claim was filed in this state as necessary to effect a tolling of the limitations periods in those states beginning on the date the claim was filed in this state and ending on the date the claim is dismissed.

(Emphasis added). Consequently, the two-year Alabama statute of limitations stopped being tolled and began to run again on the day after the circuit court entered its final judgment. Because the Alstons had fifteen days remaining on their statute of limitations when they filed their complaint in Mississippi, they had fifteen days from October 28, 2008, to refile their complaint in Alabama.

¶ 22. Regrettably, the Alstons failed to refile their complaint in Alabama within fifteen days. Instead, they waited until October 15, 2009, to refile their complaint in Alabama, which was approximately one year after the circuit court dismissed their Mississippi suit. The Defendants successfully moved for summary judgment in Alabama on the basis that the statute of limitations on the Alstons’ claim expired approximately sixteen days after the circuit court dismissed the Alstons’ Mississippi lawsuit on the ground of forum non conveniens. The Defendants did not argue the statute of limitations expired during the tolled period between the time the Alstons filed their complaint in Mississippi and the time that the circuit court dismissed it.

1Í23. Approximately eighteen months later, the Alstons filed a motion for relief from the circuit court’s judgment of dismissal pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure. The Alstons argued they were entitled to relief from the circuit court’s judgment because the Defendants never filed the stipulation described in section ll-ll-3(4)(b). The Defendants responded by arguing that the Alstons’ motion was untimely filed. The Defendants also argued the Alstons’ motion lacked merit because: (1) the statutory stipulation was not a condition precedent to the Alstons’ refiling their complaint; (2) the stipulation language was included in the order dismissing the Alstons’ complaint; and (3) the Defendants never argued contrary to the statutory stipulation by claiming the statute of limitations expired during the time the Alstons’ complaint was pending in Mississippi state court. After conducting a hearing on the Alstons’ motion, the circuit court found the Alstons’ motion was untimely filed; and even assuming it was not untimely, it lacked merit. Aggrieved, the Alstons appeal.

¶24. The majority finds the circuit court erred when it granted the Alstons’ motion to dismiss because, according to the majority, the Defendants were required to file a separate stipulation before the circuit court could grant the Defendants’ motion to dismiss. The majority also finds the circuit court erred when it denied'the Alstons’ motion for relief from judgment because the Alstons had good cause for filing their motion approximately eighteen months after the circuit court dismissed their Mississippi complaint. Respectfully, I dissent.

I. MOTION TO DISMISS

¶ 25. The Alstons claim the circuit court did not have authority to dismiss their complaint for forum non conveniens before the Defendants filed a separate stipulation document that met the requirements set forth in section 11 — 11—3(4)(b). The majority is persuaded by the Alstons’ argument. According to the majority, “the Defendants were required to file a written stipulation waiving the statute[-]of[-]limitations defense before the circuit court could dismiss the case on forum non conveniens grounds.” The majority notes the “circuit court’s order stated that ... [the] defendants waive the right to assert a statute[-]of[-]limitations defense upon the refiling of the action in ... Alabama.” Noting the Defendants did not file a separate stipulation document, the majority concludes that “despite them representation to the Mississippi circuit court that they would comply with the statutory waiver, the Defendants did not comply and actually raised the statute[-]of[-]limitations defense in [an] Alabama court.” First and foremost, I find the Alstons’ claim was untimely filed. Second, I respectfully disagree with the substance of the majority’s conclusion for two reasons: (1) the language of section 11 — 11—3(4)(b) contains discretionary language that did not prevent the circuit court from incorporating the stipulation language in the order dismissing the Alstons’ complaint, and (2) the Defendants never raised an argument the stipulation prohibited.

A. TIMELINESS

¶ 26. The circuit court entered its judgment dismissing the Alstons’ complaint on October 28, 2008. The Alstons had thirty days to appeal the circuit court’s decision. M.R.A.P. 4(a). The Alstons did not appeal that decision. They appealed the circuit court’s decision to deny their motion for relief from judgment approximately eighteen months after the circuit court entered its final judgment. “Timely filing of a notice of appeal is jurisdictional.” Busby v. Anderson, 978 So.2d 637, 638-39 (¶ 6) (Miss.2008) (citation omitted). Therefore, I find this Court has no jurisdiction to review the circuit court’s decision to grant the Defendants’ motion to dismiss.

B. THE STIPULATION

¶ 27. Even assuming the Alstons had timely raised this issue, rather than attempting an end-run by arguing the issue by proxy through their motion for relief from judgment, I find the circuit court had the discretion to include the “stipulation” language in the order dismissing the Al-stons’ complaint based on the ground of forum non conveniens. The majority seems to interpret section ll-ll-3(4)(b) as requiring a separate stipulation document. I do not interpret section 11 — 11—3 (4) (b) the same way.

¶ 28. We are to conduct a de novo review of questions involving statutory interpretation. Austin v. Wells, 919 So.2d 961, 964 (¶ 10) (Miss.2006). We are prohibited from broadening or restricting a legislative act. Barbour v. State ex rel. Hood, 974 So.2d 232, 239 (¶13) (Miss.2008). In considering a statute, we must first determine whether it is ambiguous. Id. If it is not ambiguous, we “should simply apply the statute according to its plain meaning and should not use principles of statutory construction.” Id. In either event, our ultimate goal is to “discern and give effect to the legislative intent.” Id.

¶ 29. Section ll-ll-3(4)(b) provides “[a] court may not dismiss a claim under this subsection until the defendant files ... a written stipulation” waiving the right to claim that the statute of limitations expired “in all other states of the United States in which the claim was not barred by limitations at the time the claim was filed in this state” during the tolled period that began on the date that the complaint was filed in a less convenient forum and end[ed] when a Mississippi trial court dis-misse[d] the Mississippi complaint. More simply stated, the Defendants were required to concede that they would not argue that the Alabama statute of limitations expired while the Alstons’ claim was pending in Mississippi.

¶ 30. The Mississippi Supreme Court has held “there is one classic instance when the doctrine of forum non conveniens will never be applied, and that is to dismiss a case if it is barred elsewhere by a statute of limitations, unless or until the defendant is willing to stipulate that he will waive the statute[-]of[-]limitation defense.” Shewbrooks v. A.C. & S., Inc., 529 So.2d 557, 562 (Miss.1988) (superceded by statute on other grounds). The circuit court’s order — initially drafted by the Defendants’ lawyer — included that acknowledgment. Furthermore, section 11 — 11—3(4)(b) states that a circuit court “may not” dismiss a complaint based on the ground of forum non conveniens until a moving party files a written stipulation. “In statutory interpretation, the term ‘may’ indicates a permissive term, not a mandatory term, such as the term ‘shall’ would indicate.” Tunica County v. Hampton Co. Nat. Sur., LLC, 27 So.3d 1128, 1134 (¶ 20) (Miss.2009) (citing Weiner v. Meredith, 943 So.2d 692, 694 (¶ 8) (Miss.2006)). Under the precise circumstances of this case, the circuit court had the discretion to allow the Defendants to include the. stipulation language in the order dismissing the complaint — especially when the Defendants’ lawyer, an officer of the court, stated in open court that his clients would follow the substance of the statutory stipulation.

¶ 31. Most importantly, the Defendants never asserted a claim that was contrary to their promise. Section 11 — 11—3(4)(b) provides that a cause of action is tolled from the time it is filed in an inconvenient forum until the time the inconvenient forum dismisses a cause of action. Once the inconvenient forum dismisses an improperly filed cause of action, the toll lifts, and the statute of limitations begins to run again. Essentially, the “clock” stops when a complaint is filed in an inconvenient forum, and it resumes ticking once the inconvenient forum dismisses the complaint. The Alstons had fifteen days before the statute of limitations ran when they filed their complaint in Mississippi. Once the circuit court dismissed the case for forum non conveniens, the Alstons had fifteen days to file them complaint in Alabama. The Defendants agreed they would not argue that the Alstons’ claim had lapsed during the time it was pending before the circuit court or during the remaining fifteen days after the Alstons’ complaint was dismissed. True to their word, the Defendants did not argue that the statute of limitations had lapsed any time prior to the expiration of the Alstons’ remaining fifteen days to file their complaint.

¶ 32. Even if the Defendants had filed the statutory stipulation, it would have only precluded the Defendants from arguing that the Alabama statute of limitations expired between the time the Alstons filed their complaint in Mississippi and the time the statute of limitation actually expired after the tolling effect of section 11 — 11— 3(4)(b) applied. In other words, the stipulation would have prevented the Defendants from arguing that the statute of limitations expired before fifteen days after October 28, 2008. The stipulation would not have prevented the Defendants from arguing that the statute of limitations expired by the time the Alstons decided to file their suit in the correct forum of Alabama.

¶ 33. To summarize, the majority opinion favors form over substance because the statutory stipulation language was included in the order dismissing the Alstons’ Mississippi complaint. Substance should prevail over form regardless of the label placed on the documents filed with the circuit court. Newell v. Jones County, 731 So.2d 580, 583 (¶ 13) (Miss.1999). In my judgment, there is no substantial distinction between a defendant filing a separate stipulation before a circuit court dismisses a claim based on the ground of forum non conveniens and a defense counsel’s inclusion of the stipulation language in the actual order dismissing a claim based on the ground of forum non conveniens. Additionally, section ll-U-3(4)(b)’s discretionary “may not” language allowed the circuit court to forego the filing of a separate stipulation when the substance of the statute was accomplished by inserting that language in the circuit court’s order. Finally, the Defendants never argued contrary to their assertion they would not argue that the Alstons’ statute of limitations expired during the time that the Mississippi complaint was pending before the circuit court. However, neither the statute nor the stipulation prevented the Defendants from arguing that the statute of limitations expired when the tolling effect of the statute lifted and the Alstons waited approximately eleven months thereafter to refile their complaint in Alabama. Section 11 — 11—3(4)(b) did not provide the Alstons with some perpetual cause of action that they could refile whenever they chose with absolutely no applicable statute of limitations. Accordingly, I respectfully disagree with the majority’s conclusion that the circuit court committed reversible error when it granted the Defendants’ motion to dismiss.

II. MOTION FOR RELIEF FROM JUDGMENT

¶ 34. Next, I consider the only issue properly before this Court: Whether the circuit court abused its discretion when it denied the Alstons’ Rule 60(b) motion for relief from judgment. The majority concludes the circuit court erred when it denied the Alstons’ Rule 60(b) motion. According to the majority, the circuit court should have found good cause for the Al-stons’ eighteen-month delay in raising their motion. I do not agree. I find the circuit court acted well within its discretion when it denied the Alstons’ motion. It follows that I also dissent from that portion of the majoritys opinion.

¶ 35. “The standard of review when the trial court denies relief under Rule 60 of the Mississippi Rules of Civil Procedure is abuse of discretion.” Burnsed v. Merritt, 38 So.3d 655, 662 (¶42) (Miss.Ct.App.2010) (citing R.N. Tumbow Oil Invs. v. McIntosh, 873 So.2d 960, 963 (¶ 12) (Miss.2004)). A motion arguing that a judgment is void pursuant to Rule 60(b)(4) “shall be made within a reasonable time.” M.R.C.P. 60(b)(4). What constitutes a reasonable time period is determined on a case-by-case basis. Indymac Bank, F.S.B. v. Young, 966 So.2d 1286, 1289 (¶ 13) (Miss.Ct.App.2007) (citations omitted). To determine whether a party filed a Rule 60(b)(4) motion “within a reasonable time,” a reviewing court “must take into account whether the opposing party has been prejudiced by the delay in seeking relief and whether there is good reason for the [moving] party’s failure to take appropriate actions sooner.” Id.

A. PREJUDICE BY THE DELAY

¶ 36. The majority does not discuss this prong of the analysis. Suffice it to say, the majority does not find that the Defendants will not be prejudiced by granting the Alstons’ Rule 60(b)(4) motion. Nevertheless, I find just the opposite.

¶ 37. Postponement of a dispute involving a traffic accident has previously been held to be prejudicial based on the diminishing memories regarding split-second events that occur during traffic accidents. Guar. Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987); Leach v. Shelter Ins. Co., 909 So.2d 1283, 1288-89 (¶ 19) (Miss.Ct.App.2005). Accordingly, I find that this prong supports the conclusion that the circuit court did not abuse its discretion when it found the Alstons’ Rule 60(b)(4) motion was untimely filed.

B. GOOD CAUSE FOR THE DELAY

¶ 38. According to the majority, “[t]he Alstons had good reason for not filing their motion sooner — they were waiting for the Defendants to file the required written stipulation waiving any statute[-]of[-]limitations defense they may have in Alabama as required by statute.” In other words, the majority finds that because the Alstons were waiting for the Defendants to file their stipulation, the Alstons could not have raised their argument (that the judgment was void because the Defendants had not filed their stipulation) any earlier than eighteen months after the circuit court dismissed the Alstons’ complaint.

¶ 39. Before the circuit court dismissed the Alstons’ Mississippi complaint, the Defendants’ lawyer submitted a draft of the order of dismissal to the Alstons’ lawyer for review as to form. The draft order was also accompanied by a letter to the Alstons’ lawyer in which the Defendants’ lawyer encouraged the Alstons to file their suit in Alabama as soon as possible. The Alstons’ lawyer did not respond. He certainly did not object at that time to a lack of a separate stipulation. The Defendants’ lawyer also sent the Alstons’ lawyer a copy of the letter to the circuit court, in which the Defendants asked the circuit court to execute the order if it met the circuit court’s standards. Again, the Alstons’ lawyer did not then object to the lack of a separate stipulation. The Alstons’ lawyer could have claimed a separate stipulation was necessary prior to the circuit court judge’s execution of the order. He did not.

¶ 40. I cannot find good cause for the Alstons’ delay when their basis for waiting eighteen months to file their motion is the same basis as the one they raise in their motion. That rationale existed on the day after the circuit court entered its order dismissing the complaint. It defies logic to find good cause for the Alstons’ eighteen-month delay when they could have raised that exact argument immediately before or shortly after the circuit court entered its order. I cannot conclude the circuit court abused its discretion when it found no good cause for the Alstons’ delay based on the flawed reasoning that the Alstons could not argue the judgment was void for lack of a stipulation any earlier than eighteen months later because the Alstons were still waiting on the Defendants to file the same exact stipulation.

¶41. The majority ■ concludes “the circuit court’s order is void because the court was without authority to dismiss the case based on forum non conveniens prior to the defendant filing the stipulation of waiver.” As authority for its decision, the majority cites Indymac Bank, 966 So.2d at 1290 (¶ 14) for the principle that a judgment is void under Rule 60(b)(4) “if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if [it] acted in a manner inconsistent with due process of law.” Nevertheless, the majority does not specify whether it considers the circuit court’s decision to be erroneous because the circuit court lacked personal jurisdiction, subject-matter jurisdiction, or because the circuit court “acted in a manner inconsistent with due process of law.” I find none of those three circumstances exist in this case. It is undisputed that the circuit court had subject-matter jurisdiction and jurisdiction over the parties. The Alstons pled both in their original complaint. Furthermore, there is absolutely no evidence the circuit court acted “in a manner inconsistent with due process of law.” Due process is satisfied when there is notice and an opportunity to be heard. Harvey v. Stone County Sch. Dist., 982 So.2d 463, 468 (¶ 11) (Miss.Ct.App.2008). “A due[-]process violation so gross as to make the judgment void is extremely rare.” Id. at 469 (¶ 11) (citations and internal quotation omitted). The Alstons never claimed they did not have notice of the hearing on the Defendants’ motion to dismiss. Likewise, the Alstons never claimed the circuit court failed to give them an opportunity to be heard during the hearing on the Defendants’ motion to dismiss. Furthermore, the circuit court’s order in no manner precluded the Alstons from refiling their claim in an Alabama state court within the remaining fifteen days of the applicable statute of limitations. They simply failed to do so.

¶ 42. I would find the Alstons failed to demonstrate that there was good cause for their eighteen-month delay in filing their motion. I further find that the Defendants would be prejudiced by granting the Al-stons’ Rule 60(b)(4) motion. Moreover, I do not find that the circuit court somehow lacked either personal or subject-matter jurisdiction or that the circuit court acted in a manner inconsistent with due process. Therefore, I find the circuit court did not abuse its discretion when it concluded that the Alstons’ Rule 60(b)(4) motion should be denied. Because the majority finds the circuit court abused its discretion, I respectfully dissent.

CARLTON, J., JOINS THIS OPINION.

      . Alabama has a two-year statute of limitations for negligence actions, while Mississippi has a three-year statute of limitations for negligence actions. See Ala.Code § 6-2-38 (2011); Miss.Code Ann. § 15-1-49 (Rev. 2003). The Alstons filed their complaint prior to the expiration of the two-year statute of limitations in Alabama and prior to the expiration of the three-year statute of limitations in Mississippi.

      . The Shewbrooks court noted the following jurisdictions require a waiver of the statute-of-limitations defense before granting a forum-non-conveniens transfer: California, Colorado, Connecticut, District of Columbia, Illinois, Kansas, Maine, Michigan, Missouri, New Hampshire, New Mexico, New York, North Carolina, and Pennsylvania. Id. at 562-63.

      .There is simply no explanation in the record as to why Alabama residents involved in a traffic accident that occurred in Alabama would choose to file suit in Mississippi. The Alstons' lawyer is licensed in both Alabama and Mississippi. Regardless of whether the Alstons could have filed suit in Mississippi, there is still the matter of whether the Alstons should have filed suit in Mississippi. The Mississippi circuit court had no power of compulsory process to require the attendance of uncooperative or reluctant Alabama resident witnesses. All of the witnesses except Pope are Alabama residents. Furthermore, Mississippi courts and lawyers are relatively unsuited to apply Alabama substantive law on liability and damages which undisputedly applies to this case.

      . When a cause of action accrues in another state and the cause of action would be time-barred in that state, the cause of action would also be time-barred in Mississippi. Miss.Code Ann. § 15-1-65 (Rev.2003). Consequently, the Alstons' claim is governed by Alabama’s two-year statute of limitations. Ala.Code § 6-2-38 (2011).

      . Wilson sued the Defendants in an Alabama state court. Walton sued the Defendants in an Alabama federal court. Both lawsuits had been resolved before the hearing on the Defendants' motion to dismiss.

      . Under the circumstances, the term "stipulation” is misleading or an inaccurate term based on the operation of the statute. A stipulation is, by definition, an "agreement made by the attorneys engaged on opposite sides of a cause ... regulating any matter incidental to the proceedings or trial, which falls within their jurisdiction." Black's Law Dictionary 1415 (6th ed. 1990). The statute requires that the party moving for dismissal on the ground of forum non conveniens waives any defense that the statute of limitations expired during the time that a claim was pending in the inconvenient forum or the period that remained on the statute of limitations after the tolling effect of the statute ends. The Alstons could not "stipulate" to what the Defendants would never argue. Because there can be no unilateral "stipulations,” a more accurate characterization would be a "concession,” "acknowledgment,” or "waiver.” In the context of the statute, if the word "stipulate” means a plaintiff must agree with defense counsel, then a plaintiff could defeat any otherwise meritorious motion raised on the ground of forum non conveniens by simply refusing to "stipulate.” Such an interpretation is nonsensical.

      . After closely reviewing the record, I must conclude the essential question in this case arises from the Alstons' counsel’s failure to comprehend fully the effect of section 11-11-3(4)(b). The language in section 11-11-3(4)(b) became law approximately one year before the traffic accident in this case and approximately three years before the Alstons filed their complaint in Mississippi. Apparently the Alstons’ lawyer believed he had an indefinite stay of the statute of limitations that allowed him to refile the Alstons’ lawsuit in Alabama whenever he chose to do so. He simply erred in that conclusion.


author: RUSSELL, J.,

text:
    Howard Wilson CARNEY, III, Appellant v. Andrea Leigh Bell CARNEY, Appellee.
    No. 2010-CA-00646-COA.
    Court of Appeals of Mississippi.
    May 29, 2012.
    Rehearing Denied Oct. 23, 2012.

      Clifford C. Whitney III, J. Mack Varner, Vicksburg, attorneys for appellant.
    Travis T. Vance Jr., attorney for appel-lee.
   RUSSELL, J.,

for the Court:

¶ 1. Howard Carney III appeals the chancery court’s judgment awarding Andrea Leigh Bell Carney the full use, title, and possession of the marital home, along with all of the equity in the home. He argues that he is entitled to one-half of the equity in the marital home. He also argues that the chancellor erred listing his unvalued social security benefits under his share of the equitable distribution. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Andrea and Howard were married on November 20, 1998, and separated on November 26, 2008. Two children were born of their marriage, Amanda Leigh Carney, born June 25,1999, and Katherine Emily Carney, born June 21, 2006.

¶ 3. On December 1, 2008, Andrea filed a complaint for divorce from Howard on the grounds of habitual cruel and inhuman treatment and/or irreconcilable differences. On September 9, 2009, Andrea filed an amended complaint for divorce on the grounds of adultery, habitual cruel and inhuman treatment, and/or irreconcilable differences. On April 3, 2009, Howard filed a counter-complaint for divorce on the grounds of uncondoned adultery, habitual cruel and inhuman treatment, and/or irreconcilable differences. On March 4, 2009, the chancery court entered a temporary order, granting Andrea temporary custody of the two children of the marriage, child support of two-thousand dollars ($2,000.00) per month, and other relief. On January 13, 2010, the parties filed a consent withdrawing fault grounds and consenting to a divorce on the ground of irreconcilable differences. The parties asked the chancellor to determine the following issues: (1) child support; (2) alimony; (3) equitable distribution of assets; and (4) attorney’s fees.

¶ 4. On March 19, 2010, the court entered a memorandum opinion and final judgment of divorce based on irreconcilable differences. The chancellor awarded Andrea full use, title, and possession of the marital home, to include one-hundred percent of the equity in the home.

¶5. The marital home, known as the “Bell Property,” was the home of Andrea’s father and grandfather from 1937 until the home was purchased by her sister, Patricia Barnes. In early 2004, Patricia met an untimely death and her husband, Jason Barnes, placed the house on the market shortly thereafter. Andrea and Howard wanted to purchase the home, but they could not obtain the proper financing. In an effort to keep the home in the family, Debra and Bob Baylor (Baylors), another sister of Andrea and her brother-in-law, agreed to purchase the home.

¶ 6. On March 19, 2004, the Baylors purchased the home for $279,900. Andrea and Howard entered into a rental agreement with the Baylors where they would rent the home from the Baylors until they could secure financing. On April 6, 2004, Andrea and Howard began renting the home from the Baylors.

¶ 7. At the time of her death, Patricia left Andrea a $175,000 life-insurance policy. On May 14, 2004, Andrea gave the Baylors $165,000 from the life insurance policy to use as a down payment on the home. The Baylors financed the remaining purchase price.

¶ 8. On May 8, 2006, Andrea and Howard borrowed $70,000 from Tensas State Bank as a first mortgage. Of the $70,000 loan, they used $54,102.13 to pay off the balance of their loan with River Hills Bank. The remaining $14,925.87 was placed in their joint account. Also on May 8, 2006, a settlement statement was executed between Andrea, Howard, and the Baylors, and a warranty deed was executed conveying the property to Andrea.

¶ 9. On February 28, 2007, Andrea and Howard took out a second mortgage on the home for $10,030 to pay some outstanding bills. On May 28, 2009, the property appraised for approximately $253,800. The chancellor found that the first mortgage had a remaining balance of $64,399.29, and the second mortgage had a remaining balance of $3,348.14, at the time of the divorce. Taking the 2009 appraisal value of $253,800, minus the balances of the first and second mortgages at the time of the divorce (totaling $67,747.43), the chancellor determined that the home had equity in the amount of $186,052.57, which was awarded to Andrea in full.

¶ 10. On April 13, 2010, Howard appealed, contending that he is entitled to one-half of the equity in the marital home. Other facts will be discussed as necessary.

DISCUSSION

¶ 11. Our scope of review in domestic-relations matters is limited. Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994). The appellate court “will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. (citing Bell v. Parker, 563 So.2d 594, 596-597 (Miss.1990)). “[0]n appeal[,] this Court is required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong.” Id. (citing Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990)).

I. Whether the chancery court erred in awarding Andrea the full amount of the equity from the marital home.

¶ 12. As previously noted, the chancellor awarded Andrea the full use, title, and possession of the marital home, along with the full amount of the equity in the home, which totaled $186,052.56. Howard argues that the chancellor’s award of the entire amount of the equity to Andrea was not supported by credible evidence.

¶ 13. “When attempting to equitably divide property at issue in a divorce, the chancellor should first classify the parties’ assets as marital or non-marital based on Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994).” Jenkins v. Jenkins, 67 So.3d 5, 9 (¶ 10) (Miss.Ct.App.2011). Our supreme court held in Hemsley that “[a]ssets acquired or accumulated during the course of a marriage are subject to equitable distribution unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Hemsley, 639 So.2d at 914. As such, “the chancellor may equitably divide only the property that is deemed marital property.” Jenkins, 67 So.3d at 9 (¶ 10). Non-marital property may become marital property as follows:

Property brought into the marriage by one partner and used by the family becomes a marital asset. Assets which are classified as non-marital, such as inheritances, may be converted into marital assets if they are commingles with marital property or utilized for domestic purposes, absent an agreement to the contrary. Commingled property is a combination of marital and non-marital property in which the non-marital property has lost its status as non-marital property by virtue of its being combined with the marital property.

Boutwell v. Boutwell, 829 So.2d 1216, 1221 (¶¶ 19-20) (Miss.2002) (internal citations omitted).

¶ 14. In this case, the chancellor found the following:

[Andrea’s] deposit of the money from the life insurance policy (a non-marital asset) into the joint account of the parties and then the use of the funds toward the purchase of the marital home constitutes commingling and use of the funds for familial purposes. The deposit of the life insurance proceeds into the joint account converted the funds from a non-marital asset to a marital asset. The “Bell” Home was [Andrea’s] grandmother’s and has always been in the “Bell” family[;] however[,] with [Howard] and [Andrea] and the family [living] in the “Bell” Home, making it the marital domicile, the property was commingled and is marital property subject to equitable distribution. The [c]ourt finds that the equity in the house is $186,052.57 and is a marital asset.

We find that the chancellor properly determined that the equity in the house is a marital asset under the family-use doctrine and due to the commingling of assets. See id.

¶ 15. “After classifying the parties’ assets as either marital or non-marital, the chancellor should then proceed to equitably divide the property using the factors set forth by the supreme court in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994).” Jenkins, 67 So.3d at 9 (¶ 11). The Ferguson factors 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; (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 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.

Ferguson, 639 So.2d at 928 (¶ 10).

¶ 16. In this case, the chancellor applied the Ferguson factors as follows:

(1) Substantial contribution to the accumulation of the property.
(a) Direct or indirect contribution to the acquisition of the property.
The testimony indicated that [Andrea] approached [Howard] with the idea of purchasing the “Bell” home. [Andrea] testified that she wanted to purchase the home so that it would remain in the family. The testimony indicated that both parties contributed money to a joint account[,] which was used to purchase materials and other items used on the house. There was testimony that [Howard] and [Andrea] performed labor involving work on the home.
(b) Contribution to the stability and harmony of the marital and family relationships as measured by quality and quantity of time spent on family duties and duration of the marriage.
The parties were married for ten (10) years before their separation. [Andrea] testified that once [Howard] “went on the road[,]” this caused a strain on them relationship.
(c) Contribution to the education, training!,] or other accomplishments] bearing on the earning power of the spouse accumulating the assets.
No evidence was offered regarding this issue.
(2) The degree to which each spouse has expended, withdrawn!,] or otherwise disposed of material assets and any prior distribution of such assets by agreement, decree[,] or otherwise.
No evidence was offered regarding this issue.
(3) The market value and the emotional value of the assets subject to distribution.
[Andrea] has strong emotional ties to the marital home[,] as it was the family “Bell” home of her paternal grandmother. The market value of the assets subject to distribution is $237,503.72.
(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.
[Andrea] has a Smith Barney retirement account that has a present value of $19,759.00. [Andrea] testified that this account was opened and the funds were accumulated prior to the marriage. [Andrea] has non-marital furniture in the amount of $1,480.00.
(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution.
The evidence reflects that the balance on the first mortgage on the marital home ... is $64,399.29. There is also a second mortgage on the marital home with a balance of $3,348.14. The balance owed on the 2005 Chevrolet Truck is $10,712.20. The balance owed on the 2007 29FKS travel trailer is $12,712.88. The parties also have other unpaid bills.
(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.
The parties do not have sufficient liquid assets to be utilized to eliminate the need for periodic alimony.
(7) The needs of the parties for financial security with due regard to the combination of assets, incomef,] and earning capacity.
Both parties are currently employed. [Andrea] is employed with the Louisiana Department of Corrections and [Howard] is employed with the State of Louisiana as a college welding instructor.
(8) Any other factor which in equity should be considered.
There are no other specific factors which warrant consideration.

¶ 17. After applying the Ferguson factors, the chancellor awarded Andrea the following assets:

Marital Home: $186,052.57 in equity
Marital Household Furnishings: $5,175.00
2002 Toyota Sequoia: $7,170.00
TSB Checking: $58.00
RHB Checking: $800.00
DOC-CU Savings: $800.00
State of LA Retirement: $24,000.00
Total: $224,050.57

¶ 18. Andrea was required to pay the following debts:

First Mortgage with Tensas State Bank: $64,399.29
Capital One: $2,307.04
HSBC: $186.80
Total: $66,893.13

¶ 19. Howard was awarded the following assets:

2005 Chevrolet Truck: $327.80 in equity
2007 Travel Trailer: $3,677.12 in equity
Social Security Benefits: Actual Value Unknown
TSB Checking: $875.21
TSB Savings: $43.52
401K: $7,279.50
Tools: $1,250.00
Total: $13,453.15

¶20. Howard was ordered to pay the following debts:

2005 Chevrolet Truck: $10,712.20
2007 Travel Trailer: $12,712.88
Jon Barry & Assoc.: $551.42
Second Mortgage with Tensas State
Bank: $3,348.14
Capital One: $2,765.65
Orchard Bank: $1,765.00
Total: $31,855.29

¶ 21. “Equitable distribution does not mean equal distribution.” Jenkins, 67 So.3d at 11 (¶ 13) (quoting Seymour v. Seymour, 960 So.2d 513, 519 (¶ 15) (Miss.Ct.App.2006)). “Mississippi is not a community property state; thus, the chancellor holds no obligation to divide the marital property equally.” Id. at 12 (¶ 15). Further, as this Court has previously noted: “No requirement exists dictating that [one spouse] must receive half of the equity in the marital home.” Id. at 11 (¶ 13). • Rather, “the goal as it pertains to equitable division is ‘a fair division of marital property based on the facts of each case.’ ” Id. (quoting Seymour, 960 So.2d at 519 (¶ 15)).

¶ 22. The record before us today shows credible evidence supporting the chancellor’s exercise of discretion in equitably dividing the parties’ marital property and awarding Andrea the entire amount of the equity from the marital home. We recognize “the limited standard of review that appellate courts utilize when reviewing a chancellor’s equitable division of the marital property.” Id. at 12 (¶ 15). This Court further recognizes that “appellate courts lack the authority to overrule a chancellor’s property division and distribution absent a finding of manifest error.” Id. After examining the equitable division of property as a whole, we find that the chancellor’s decision was supported by credible evidence. Therefore, we affirm the chancellor’s division of the marital property.

II. Whether the chancellor erred in considering Howard’s unvalued social security benefits as part of his equitable share.

¶ 23. Howard contends that the chancellor erred by including his social security benefits in the marital assets equitably distributed to Howard with a notation reading “actual value unknown.” He argues that “based in part on this unvalued asset, the chancellor proceeded to deprive Howard of any portion of the $186,000 of equity in the marital home.”

¶ 24. The chancellor found Howard’s future eligibility for social security benefits was a marital asset. The chancellor further noted that “the [c]ourt considers in its equitable distribution of assets that [Howard] will be eligible to receive social security benefits.” Finally, the chancellor found that “it [did] not have sufficient evidence to determine the value of [Howard’s] eligibility.”

¶ 25. After reviewing the record, we find that because there was no value assigned to his social security benefits and no specific monetary amount awarded, any error regarding the award of future eligibility of social security benefits would be harmless. We also note that while the chancellor included Howard’s future social security as a marital asset but failed to consider Andrea’s future social security benefits, this error was also harmless. See Traxler v. Traxler, 730 So.2d 1098, 1102-03 (¶ 23) (Miss.1998) (holding that a chancellor’s failure to discuss a wife’s social security benefits in equitably dividing the parties’ property was error, but the error was harmless because the “overall distribution was equitable.”). Finding no error, we affirm.

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

ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. BARNES, MAXWELL AND FAIR, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J., AND IRVING, P.J., NOT PARTICIPATING.