author: CHAMBERLIN, JUSTICE, FOR THE COURT: COLEMAN, JUSTICE, SPECIALLY CONCURRING:

text:
    FORREST GENERAL HOSPITAL, J. Keith Thompson, Hattiesburg Clinic, Grif A. Leek and South Mississippi Emergency Physicians, P.A. v. Steven Dale UPTON
    Dr. Grif A. Leek, South Mississippi Emergency Physicians, P.A., Dr. J. Keith Thompson and Hattiesburg Clinic, P.A. v. Steven Dale Upton
    NO. 2016-IA-00452-SCT CONSOLIDATED WITH NO. 2016-IA-00455-SCT
    Supreme Court of Mississippi.
    April 19, 2018
    ATTORNEYS FOR APPELLANTS: WALTER W. DUKES, GULFPORT, JAMES K. DUKES, HATTIESBURG, DRURY S. HOLLAND, MICHAEL R. MOORE, PASCAGOULA, JOHN A. BANAHAN, PASCAGOULA, DAVID B. MILLER
    ATTORNEYS FOR APPELLEE: DREW M. MARTIN, CHUCK McRAE, JACKSON, CHRISTOPHER A. BAMBACH
    EN BANC.
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. This interlocutory appeal arises from the Hinds County Circuit Court's denial of a motion to transfer venue. Under Mississippi law, venue is determined at the time the lawsuit originally is filed. The resolution of this appeal hinges on the application of this principle to an issue of first impression for this Court: does an amended complaint, which names a new party to the suit, relate back to the time of filing of the original complaint for the purposes of determining venue? We find that it does not.

¶ 2. Thus, because the suit here was filed in Hinds County-naming only Forrest County defendants and the amended complaint does not relate back to the time of filing for the purposes of determining venue-the circuit court abused its discretion in denying the motion to transfer venue. We reverse the judgment of the circuit court and remand the case to be transferred to the Circuit Court Forrest County.

FACTS AND PROCEDURAL HISTORY

¶ 3. On March 16, 2014, Steven Upton "experienced severe pain and numbness in his left hand." Due to the pain, Upton went to the Emergency Department at Forrest General Hospital ("FGH"). FGH-according to Upton-administered a Doppler Ultrasound that revealed a "total blockage of blood flow to the tested area." After the test, Dr. Grif A. Leek, a physician employed by South Mississippi Emergency Physicians, P.A. ("SMEP"), met with Upton. Almost seven hours after Upton's original test, Dr. J. Keith Thompson, a physician employed by the Hattiesburg Clinic, P.A. ("HC"), operated on Upton's left hand to "relieve the blockage ... [and] restore blood flow." Also, Upton claimed that FGH failed to provide him with antibiotics or wraps after the surgery.

¶ 4. Upton was discharged from FGH and alleged that he returned on April 3, 2014, for a post-operative appointment with Thompson. Upton maintained that he was suffering from reperfusion syndrome upon his return to FGH. According to Upton, Thompson did not prescribe any medication and told Upton to return in one month.

¶ 5. Nine days later, Upton experienced "extreme pain" in his hand and sought treatment at the University of Mississippi Medical Center ("UMMC"). Upton stated that UMMC administered antibiotics and informed him that had he waited thirty days, as instructed by Thompson, it would have been necessary to amputate his hand. Upton also claimed that he suffered from a number of other medical conditions that were not discovered by FGH including: kidney failure, heart failure, and a pericardial cyst.

¶ 6. Upton was left-handed and employed previously as an electrician. He claimed that he was disabled permanently in his left hand and unable to resume his employment. Upton also maintained that he was suffering from kidney and liver damage due to UMMC having to "administer[ ] extremely potent antibiotics to combat the damage already done to his hand."

¶ 7. On June 18, 2015, Upton filed suit in the Hinds County Circuit Court. The complaint named Forrest County, Mississippi; FGH, Thompson; Leek; HC; and SMEP (collectively, "Forrest County defendants") as defendants. The complaint also named John and Jane Does #1-10. All of the named defendants were located and had acted in Forrest County. The complaint claimed that "venue is proper in Hinds County, Mississippi, pursuant to Miss. Code Ann. § 11-11-3 as the acts or omissions that serve as the basis of the Plaintiff's claims continued to occur and, additionally, were discovered in Hinds County, Mississippi." The complaint alleged five counts: negligence, gross negligence, respondeat superior, negligent infliction of emotional distress, and breach of fiduciary duty. Also, the complaint did not name UMMC as a defendant but stated that UMMC "promptly and properly treated to attempt to correct" Upton's kidney failure.

¶ 8. In response to Upton's complaint, Thompson and HC wrote Upton to explain that, pursuant to Mississippi Code Section 11-11-3(3) venue was proper only in Forrest County. On July 9, 2015, Upton responded: "we have recently discovered acts of medical malpractice which occurred in Hinds County. Therefore ... Hinds County is a proper venue."

¶ 9. On July 13, 2015, Upton filed his "First Amended Complaint." For the first time, Upton named UMMC and Dr. Sumona Smith as defendants. The amended complaint still named the Forrest County defendants and John and Jane Does # 1-10.

¶ 10. In the amended complaint, Upton claimed that "UMMC failed to properly monitor [Upton]." Upton claimed that UMMC performed only one check on his international normalized ratio throughout his ten-day hospitalization. Further, according to the amended complaint, Smith's decision that "there was no need for vascular intervention" resulted in no action being taken by UMMC for the first three days of Upton's hospitalization. Upton maintained that this "required the orthopedic surgeon to remove much more of the muscle and tissue within the hand than would have been necessary if the surgery had been ordered by Dr. Smith three ... days prior." Also, the amended complaint still mentioned UMMC's treatment of Upton's kidney failure but omitted the language that the treatment was done "promptly and properly."

¶ 11. Next, the defendants answered the amended complaint. Leek, SMEP and FGH filed motions to dismiss or, in the alternative, for severance and transfer to Forrest County. Forrest County, Mississippi, and UMMC also requested to be dismissed from the suit. Next, Thompson, Leek, HC, SMEP and FGH noticed a hearing on the motions to dismiss or transfer.

¶ 12. At the hearing, Thompson, Leek, HC and SMEP argued that all of the original causes of action alleged by Upton occurred in Forrest County. They noted that UMMC originally was not a party and that Upton had claimed that UMMC had "promptly and properly" treated Upton. Also, they argued that venue was improper under Section 11-11-3(3) and that any claims against UMMC were severable. FGH maintained that Mississippi Code Section 11-46-13(2) -the venue statute within the Mississippi Tort Claims Act ("MTCA")-applied to FGH and mandated that Forrest County was the sole venue for the suit.

¶ 13. In response, Upton stated that he originally had filed the claim under the

general venue statute[ ]... being that a substantial event occurred in Hinds County which is his treatment at UM[M]C, his discovery of what exactly happened to his left-hand and the seven or eight surgeries that had to happen to correct the errors of [FGH] in his treatment.

Concerning the arguments that Forrest County was the only proper venue, Upton noted that the amended complaint named UMMC and stated: "if you find that everybody has been joined correctly and that venue is correct under the venue statutes for one of the defendants, then it applies to all of them." Upton also represented that he had spoken to his experts concerning possible negligence on the part of UMMC before he had received Thompson's and HC's letter which suggested transfer of venue to Forrest County. Upton, though, maintained that he was unable immediately to add UMMC to the suit due to notice requirements under the MTCA. In closing, Upton advised the trial court that if it was to find that venue is not proper in Hinds County, then Upton would argue against severance of any of the defendants.

¶ 14. In rebuttal, Thompson and HC provided the court with their letter to Upton and argued that the suit could not be brought properly under the general venue statute given the medical defendants. FGH reiterated that the suit against it was subject to Section 11-46-13(2) under the MTCA. At the end of the hearing, UMMC informed the court that it would waive its right to trial in Hinds County due to the number of defendants from Forrest County.

¶ 15. The court entered an order denying the defendants' motion to transfer venue on March 15, 2016. It found that "venue of this action lies appropriately in either Hinds County or Forrest County" and that "the plaintiff's choice of Hinds County is appropriate." Pursuant to this Court's grant of interlocutory appeal, Thompson, Leek, HC, SMEP and FGH now appeal the trial court's denial of the motion to transfer.

STATEMENT OF THE ISSUES

¶ 16. Thompson, Leek, HC and SMEP raise three issues before us: (1) that venue is determined by the filing of the original complaint and not the amended complaint, (2) that Upton fraudulently joined UMMC to establish venue in Hinds County, and (3) that venue is proper only in Forrest County. FGH raises two issues: (1) venue is proper only in Forrest County and (2) the allegations against UMMC are unrelated to the claims against FGH.

¶ 17. Upon review of the briefs, we entered an order, directing the parties to provide simultaneous briefing on the following issues:

I. Whether the record before this Court, without the notice letters sent by Steven Upton to each defendant, is sufficient in order to determine on what date the statute of limitations would have tolled as to each defendant;
II. Whether the Appellants or the Appellee bore the burden of producing the necessary evidence to demonstrate when the statute of limitations would have tolled;
III. Whether Rule 21 of the Mississippi Rules of Civil Procedure governs the addition of UMMC to the suit, given the plain language of Rule 21 and this Court's precedent in Veal v. J.P. Morgan Tr. Co. , 955 So.2d 843 (Miss. 2007).

Thompson, Leek, HC, SMEP and FGH jointly filed a supplemental brief. Before answering the above issues, Upton urged this Court to address only the transfer-of-venue issue and argued that issues concerning the statute of limitation were not before the Court. We agree that statute-of-limitation issues are not before us and address only the denial of the motion to transfer venue.

¶ 18. Thus, the question before this Court is whether or not the trial court erred by refusing to transfer venue from Hinds County to Forrest County. Answering this question requires a two-part analysis. First, we must determine if venue in Hinds County was proper at the time of filing of the original complaint. Second, we must decide whether Upton's addition of the Hinds County defendants in his amended complaint related back to the time of filing of the original complaint for the purpose of determining venue. Ultimately, we find that the trial court abused its discretion by denying the motion to transfer venue to Forrest County.

STANDARD OF REVIEW

¶ 19. "[W]hen reviewing a trial court's ruling on a motion to change venue, this Court applies an abuse of discretion standard of review." Park on Lakeland Drive, Inc. v. Spence , 941 So.2d 203, 206 (Miss. 2006). Further, "[t]his Court applies the de novo standard of review when deciding issues of law." Wayne Gen. Hosp. v. Hayes , 868 So.2d 997, 1000 (Miss. 2004).

ANALYSIS

I. Venue

¶ 20. Thompson, Leek, HC and SMEP argue that venue is determined at the time of filing. Upton argues that if venue is good as to one defendant it is good as to all.

¶ 21. "Venue is a function of statute." Park on Lakeland Drive , 941 So.2d at 206 (citing Flight Line, Inc. v. Tanksley , 608 So.2d 1149, 1155 (Miss. 1992) ). " 'In venue disputes courts begin with the well-pleaded allegations of the complaint. These, of course, may be supplemented-and contested-by affidavits or other evidence in cognizable form.' " Mississippi Dep't of Human Servs. v. S.C. , 119 So.3d 1011, 1013 (Miss. 2013) (quoting Flight Line , 608 So.2d at 1155 ).

¶ 22. It is settled law that "[o]f right, the plaintiff selects among the permissible venues, and his choice must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue." Flight Line , 608 So.2d at 1155 (footnote omitted). "However, venue is a valuable right to the defendant as well and timely objections to improper venue must be honored." Park on Lakeland Drive , 941 So.2d at 207.

¶ 23. Several venue statutes are implicated in this suit. Subsection one of Mississippi's general venue statute provides for venue in general civil litigation. Miss. Code Ann. § 11-11-3(1) (Rev. 2004). Subsection three governs venue in suits brought against medical defendants. Miss. Code Ann. § 11-11-3(3). It provides:

(3) Notwithstanding subsection (1) of this section, any action against a licensed physician, osteopath, dentist, nurse, nurse-practitioner, physician assistant, psychologist, pharmacist, podiatrist, optometrist, chiropractor, institution for the aged or infirm, hospital or licensed pharmacy, including any legal entity which may be liable for their acts or omissions, for malpractice, negligence, error, omission, mistake, breach of standard of care or the unauthorized rendering of professional services shall be brought only in the county in which the alleged act or omission occurred.

Id. (emphasis added). Lastly, Section 11-46-13(2) governs the venue of a suit against the state or a political subdivision under the MTCA. Miss. Code Ann. § 11-46-13(2) (Rev. 2012). It reads:

(2) The venue for any suit filed under the provisions of this chapter against the state or its employees shall be in the county in which the act, omission or event on which the liability phase of the action is based, occurred or took place. The venue for all other suits filed under the provisions of this chapter shall be in the county or judicial district thereof in which the principal offices of the governing body of the political subdivision are located. The venue specified in this subsection shall control in all actions filed against governmental entities, notwithstanding that other defendants which are not governmental entities may be joined in the suit, and notwithstanding the provisions of any other venue statute that otherwise would apply.

Id.

¶ 24. Venue is determined at the time that the lawsuit is filed. Austin v. Wells , 919 So.2d 961, 964 (Miss. 2006). "[W]e have held that 'proper venue is determined at the time the lawsuit is originally filed, and subsequent dismissal of the defendant upon whom venue is based does not destroy proper venue.' " Id. (quoting Estate of Jones v. Quinn , 716 So.2d 624, 628 (Miss. 1998) ). Further, " '[i]n suits involving multiple defendants, where venue is good as to one defendant, it is good as to all defendants.' " Estate of Jones , 716 So.2d at 627 (quoting Blackledge v. Scott , 530 So.2d 1363, 1365 (Miss. 1988) ).

¶ 25. Also, Rule 82(c) addresses suits with multiple claims and parties. M.R.C.P. 82(c). It reads, in part: "Where several claims or parties have been properly joined, the suit may be brought in any county in which any one of the claims could properly have been brought ." M.R.C.P. 82(c) (emphasis added). In the next subsection, Rule 82 addresses improper venue: "When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein." M.R.C.P. 82(d) (emphasis added).

¶ 26. Here, venue was not proper in Hinds County at the time of filing. The initial complaint named only the Forrest County defendants and the John and Jane Does # 1-10. Concerning venue, the complaint pleaded:

[V]enue is proper in Hinds County, Mississippi, pursuant to Miss. Code Ann. § 11-11-3 as the acts or omissions that serve as the basis of the Plaintiff's claims continued to occur and, additionally, were discovered in Hinds County, Mississippi. The inadequate treatment by the Defendants commenced in Forrest County but continued to inflict damages upon the Plaintiff while in Hinds County, Specifically, the Plaintiff was forced to undergo extensive treatment, costs, and further pain and suffering in Hinds County as a result of the Defendants' continuing tortious actions against the Plaintiff.

Upton's complaint did not allege that any of the fictitious John or Jane Does resided or acted in Hinds County. Moreover, none of the named defendants in the original complaint was a resident of Hinds County. Also, the Forrest County defendants treated Upton only in Forrest County, not Hinds County.

¶ 27. It is undisputed that the Forrest County defendants did not commit any act within Hinds County to establish venue against them. When confronted by Thompson's and HC's letter requesting transfer of the suit to Forrest County, Upton responded: "[W]e have recently discovered acts of medical malpractice which occurred in Hinds County. Therefore, pursuant to Miss. Code Ann. § 11-11-3(3), Hinds County is a proper venue in this action[,] and we will soon be amending our complaint to reflect that finding." Given that the original complaint was filed almost a month before this letter, Upton seems to concede that venue was not established by the original complaint. He also conceded at the hearing that the basis for filing the suit in Hinds County initially was "under the general venue statute." Further, on appeal, Upton does not argue that the original complaint established venue. Instead, Upton argues that the amended complaint properly joined UMMC and relates back to the time of filing the suit. Regardless, the Forrest County defendants all resided and acted within Forrest County.

¶ 28. Thus, venue was improper in Hinds County when the suit was filed. Suits against HC, SMEP, Thompson and Leek all are governed by Section 11-11-3(3), which requires that they be sued "only in the county in which the alleged act or omission occurred." Miss. Code Ann. § 11-11-3(3) ; see Adams v. Baptist Mem'l Hosp.-DeSoto, Inc. , 965 So.2d 652, 656 (Miss. 2007) ("[T]he only proper venue for a suit against medical providers is the county in which the alleged act or omission occurred."). Likewise, FGH, a community hospital, shall be sued only "in the county or judicial district thereof in which the principal offices of the governing body of the political subdivision are located." Miss. Code Ann. § 11-46-13(2) ; see Wayne Gen. Hosp. v. Hayes , 868 So.2d 997, 1003-05 (Miss. 2004) (holding that venue for a community hospital under the MTCA is proper only in the county in which the principal offices of the hospital are located). No allegations in the record support a finding that venue in Hinds County was proper under the original complaint.

¶ 29. Explaining the decision to file the suit first in Hinds County against only Forrest County defendants and later add UMMC and Smith, Upton argued at the hearing that he could not immediately add UMMC or Smith to the complaint due to notice requirements under the MTCA. See Miss. Code Ann. § 11-46-11. This argument, though, only distracts from the issue at hand. It does not matter why Upton could or could not sue UMMC or Smith at the time of filing the complaint. The issue is that Upton commenced a suit against defendants in an improper venue. At the time of filing, venue was improper as to all defendants in the suit.

II. Relation Back to the Time of Filing

¶ 30. We now turn to the second issue in our analysis: whether Upton's addition of UMMC in the amended complaint relates back to the time of filing of the original suit for the purpose of determining venue. Upton argues that it does, but Thompson, Leek, HC, SMEP, and FGH contend that the original complaint should govern this Court's analysis.

¶ 31. Mississippi Rule of Civil Procedure 15(c), which governs Mississippi's relation-back doctrine, provides:

(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining the party's defense on the merits, and
(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. An amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.

M.R.C.P. 15(a), (c)(2). Rule 9(h) reads:

(h) Fictitious Parties. When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered the process and all pleadings and proceedings in the action may be amended by substituting the true name and giving proper notice to the opposing party.

M.R.C.P. 9(h). As noted above, Rule 82(d) states: "When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein." M.R.C.P. 82(d). Also, Rule 21 provides in part: "Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." M.R.C.P. 21. "Furthermore, this Court is bound to follow the plain and ordinary meanings of the Rules of Civil Procedure." Veal v. J.P. Morgan Tr. Co. , 955 So.2d 843, 845 (Miss. 2007).

¶ 32. Whether an addition of a party relates back under Mississippi Rule of Civil Procedure 15 for the determination of venue is an issue of first impression for this Court. "In a case of first impression Mississippi Courts look to other jurisdictions in determining the matter." Sheppard v. Mississippi State Highway Patrol , 693 So.2d 1326, 1329 (Miss. 1997).

¶ 33. The Alabama Supreme Court has determined that " '[l]ater amendments to the complaint to add parties or claims ... are not [to be] considered in determining whether venue is improper at the commencement of the action.' " Ex parte Hampton Ins. Agency , 85 So.3d 347, 352 (Ala. 2011) (alteration in original) (quoting Ex parte Lugo de Vega , 65 So.3d 886, 892 (Ala. 2010) ). In Hampton , Mary Patton filed suit in Hale County against Hampton Insurance Agency and fictitiously named "Defendants A, B, and C." Id. at 348. Hampton moved to dismiss the suit or transfer, arguing that Hale County constituted an improper venue. Id. at 349. It alleged that Hampton was a sole proprietorship with one office located in Tuscaloosa County. Id. In response, Patton amended her complaint to add additional counts and name Ginger Spencer, Acceptance Indemnity Insurance Company and Ashland General Agency, Inc.-all Hale County defendants. Id. The trial court denied the defendants' motion to transfer "based on its conclusion that venue in Hale County was proper at the time Patton originally filed her action against Hampton." Id. The defendants petitioned the Alabama Supreme Court for mandamus relief, requesting that the court direct the trial court to transfer the case to Tuscaloosa County. Id. at 348.

¶ 34. Granting the defendants's petition, the Hampton court first determined that venue was improper when the suit originally was filed against only Hampton. Id. at 350-51. In making this determination, the court noted the governing law: "As this [c]ourt has frequently held, proper venue for an action is determined at the commencement of the action. If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper." Id. at 351 (emphasis in original) (citations omitted). After determining that venue was improper at the time of filing, the court found that the addition of the later-named defendants did not relate back to the commencement date of the action. Id. at 352. One of the Hampton court's primary reasons for not allowing the amendments to relate back was that Patton added the parties after Hampton had sought to change venue. Id. at 353. Further, the Hampton court found Patton's claim that she was ignorant of the identity of the new parties "untenable." Id.

¶ 35. Much of the Hampton court's rationale applies directly to the facts at hand. The law that undergirded Hampton is similar to Mississippi law. As noted above, this Court "ha[s] held that 'proper venue is determined at the time the lawsuit is originally filed, and subsequent dismissal of the defendant upon whom venue is based does not destroy proper venue.' " Austin , 919 So.2d at 964.

¶ 36. The claims against UMMC in the second complaint did not arise "out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Upton disagrees and argues that "it is clear that the claims asserted in the amended pleading arose out of Mr. Upton's treatment at UMMC, which was described in the original complaint." The amended complaint, though, added two new defendants (UMMC and Smith) and described new conduct (delay in treatment) that was not mentioned or intimated in the original complaint.

¶ 37. The amended complaint's allegations concerning delay of treatment on the part of UMMC do not arise out of any "conduct, transaction, or occurrence" described in the original complaint. In fact, the original complaint's allegations are quite the opposite. The original complaint cites UMMC's "numerous procedures and treatments ... to save Mr. Upton's hand." The original complaint also notes that UMMC "promptly and properly" treated Upton's kidney failure. In contrast, the amended complaint for the first time referenced Smith's decision to delay treatment and omitted the reference to any "prompt[ ] and proper[ ]" treatment by UMMC. While the original complaint partially described Upton's treatment at UMMC, no allegations, claims or facts were pleaded against UMMC.

¶ 38. These facts are stronger than those in Hampton , as Upton did not attempt to add UMMC as a fictitious party under Rule 9(h). Clearly, Upton knew of UMMC and UMMC's treatment before the filing of the original complaint. See Davenport v. Hertz Equip. Rental Corp. , 187 So.3d 194, 202 (Miss. Ct. App. 2016) ("In summary, we find that Davenport failed to prove that he lacked knowledge of Hertz's identity prior to the filing of his original complaint, but even if he did, he failed the reasonable-diligence requirement to ascertain Hertz's identity.")

¶ 39. Also, the amendment to the complaint does not merely "chang[e] the party against whom a claim is asserted." See M.R.C.P. 15(c). Upton does not argue that this is the case, and a review of the original complaint shows that UMMC and Smith originally were not included as defendants. All of the claims made in Upton's original complaint remain against the same parties. The amended complaint simply added parties and claims against those parties.

¶ 40. Further, a plain-language interpretation of the ordinary meaning of the Mississippi Rules of Civil Procedure supports the conclusion that the addition of a party to a suit does not relate back under Rule 15 for the purposes of determining venue. The purpose of Rule 15's relation-back doctrine, when read in conjunction with all the rules, is not to remedy improper venue where the suit could have been filed in the correct venue in the first place. Upton could have filed his suit in Forrest County, where venue would have been proper against the Forrest County defendants. In fact, given the venue statutes discussed above, Rule 82 is clear that, at the time of filing, the only proper venue for the suit was in Forrest County, as Upton named only the Forrest County defendants.

¶ 41. In addition, Rule 21 governs the addition of parties to a suit and requires permission from the court anytime a party is added to a suit. See Veal , 955 So.2d at 845 ("Where, as here, the amendment sought is to add new defendants, Mississippi Rule of Civil Procedure 21 is applicable, and requires an order from the court to add a new defendant."). While we agree with Upton that the appellants have waived any objection under Rule 21 and Veal , this Court is not barred from considering Rule 21 in interpreting this issue of first impression under Rule 15. The fact that Rule 21 requires a court order to add an additional party to the suit lends credence to the interpretation that an amended complaint adding a party under Rule 15 does not relate back to the time of filing. Rule 15's relation-back doctrine is not intended to apply where a new defendant is brought into the suit in an attempt to perfect venue.

¶ 42. Other than his preferred choice of venue, Upton would have lost no rights by filing his suit against the Forrest County defendants in Forrest County . Moreover, Upton will lose no rights as a result of our conclusion. Upton can pursue the same claims after transfer to Forrest County.

¶ 43. Last, Upton alleges no mistake before this Court in failing to join UMMC. Instead, Upton ignored settled interpretations of this State's venue statutes, brought a medical claim and a MTCA claim under the "general venue statute" and-only after the initial filing-attempted to use Rule 15 later to perfect venue.

¶ 44. As the amendment of UMMC does not relate back to the date of the original filing, the trial court abused its discretion in denying the motions to transfer venue. Upton filed suit against the Forrest County defendants in Hinds County, an improper venue. We reverse the decision of the trial court and remand the case with instructions for the trial court to transfer the case to Forrest County.

CONCLUSION

¶ 45. At the commencement of the suit, Hinds County was the improper venue. Venue is determined as of the time the lawsuit originally is filed. The addition of UMMC and Smith does not relate back to the date of the filing of the original complaint for the purposes of determining venue. Thus, the trial court abused its discretion in denying the motion to transfer venue, as venue was proper only in Forrest County. We reverse the trial court's denial of the motion to transfer venue and remand the case to the trial court with instructions to transfer it to Forrest County.

¶ 46. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, MAXWELL, BEAM AND ISHEE, JJ., CONCUR. COLEMAN, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J.

COLEMAN, JUSTICE, SPECIALLY CONCURRING:

¶ 47. I concur with the result reached and the core reasoning employed by the majority. I write separately only to suggest respectfully that, in light of statutory changes, the Court should reexamine its continued adherence to and citation of the concept that where venue is proper as to one defendant it is proper to all. (Maj. Op. at ¶ 24). Venue is set by statute. At one point, the applicable venue statute indeed provided that when venue is proper as to one defendant it is proper to all. However, the Legislature amended the venue statute and removed the language. Accordingly, it is no longer the law in Mississippi, and the Court should stop treating it as though it were.

¶ 48. "The determination for proper venue is governed by statute." Miss. Crime Lab. v. Douglas , 70 So.3d 196, 202 (¶ 16) (Miss. 2011) ; see also Park on Lakeland Drive, Inc. v. Spence , 941 So.2d 203, 206 (¶ 8) (Miss. 2006) ("Venue is a function of statute.") (quoting Flight Line, Inc. v. Tanksley , 608 So.2d 1149, 1155 (Miss. 1992) ); Guice v. Miss. Life Ins. Co. , 836 So.2d 756, 759 (¶ 11) (Miss. 2003) ("The venue of a suit in equity in our state is governed entirely by statute."); Salts v. Gulf Life Ins. Co. , 743 So.2d 371, 373 (¶ 7) (Miss. 1999) ("Venue is therefore a function of statute.")

¶ 49. Mississippi Code Section 11-11-3 once read, in pertinent part, "Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found...." Miss. Code Ann. 11-11-3 (1984). In a 2002 special session, the Legislature amended Section 11-11-3 twice. As Section 11-11-3 went into effect on January 1, 2003, the above-quoted language from the 1984 version was amended to read, in pertinent part, "Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides...." Gone from the statute were the words "or any of them." The January 2003 version evinced a rejection by the Legislature that defendants not found in a county could be sued in a county where one other defendant could be found. In any event, the January 2003 version proved to be short-lived, as in a 2004 special session, the Legislature again amended Section 11-11-3, giving it the wording it retains today. Presently, Section 11-11-3(1) provides as follows:

(1)(a)(i) Civil 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.
(ii) Civil actions alleging a defective product may also be commenced in the county where the plaintiff obtained the product.
(b) If venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) of this subsection (1), a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled.

Miss. Code Ann. § 11-11-3 (Rev. 2004). The above recitation of the history of Section 11-11-3 since 1984 admittedly is tedious, but the point is that the Legislature chose to remove the old language which allowed multiple defendants to be sued in a county where any one defendant resided.

¶ 50. We appear to have grounded our pronouncement that "where venue is good as to one defendant, it is good as to all defendants," see, e.g., Wayne General Hospital v. Hayes , 868 So.2d 997, 1002 (¶ 23) (Miss. 2004), in the pre-2003 version of the venue statute. For example, in Hayes , the majority quoted the old Section 11-11-3 language including "or any of them may be found" before continuing to cite an earlier case for the proposition that where venue is good as to one defendant it is good as to all. Id. To be sure, the principle that all defendants may be sued in a county where one resides predates the 1984 version of Section 11-11-3, see Jefferson v. Magee , 205 So.2d 281, 284 (Miss. 1967), but so does the statutory language supporting the principle. See Miss. Code of 1930 § 495 (1940).

¶ 51. Venue is a function of statute. For decades, the venue statute provided that venue as to all defendants is proper where one of the defendants resides. However, as of 2003, the Legislature changed the statute and removed the language that so provided. I respectfully suggest that the Court should recognize the change in the statute and cease its reliance on the principle that where venue is proper as to one defendant, it is proper as to all, as the principle is no longer found in the general venue statute.

WALLER, C.J., JOINS THIS OPINION.

      Smith was dismissed by stipulation on October 28, 2015.

      Neither Forrest County, Mississippi, nor UMMC noticed its request for dismissal for hearing.

      We presume that Upton was referring to Mississippi Code Section 11-11-3(1). His argument concerning the general venue statute was prompted by the trial court's question: "So what was the basis of [the suit] being filed here initially?"

      This Court consolidated the two interlocutory petitions on appeal.

      Thompson's, Leek's, HC's and SMEP's argument that the suit should have been dismissed is procedurally barred on appeal. See Webb v. DeSoto Cty. , 843 So.2d 682, 685 (Miss. 2003) ("Failure to cite legal authority in support of an issue is a procedural bar on appeal.").

      Forrest County, Mississippi, and FGH are "political subdivsion[s]" under the MTCA. See Miss. Code Ann. §§ 41-13-10(c) (Rev. 2013), 11-46-1(i). Further, UMMC is within the definition of "[s]tate" under the MTCA. See Miss. Code Ann. § 11-46-1(j).

      Upton did not rely on the fictitious parties at all in pleading venue.

      We decline to address FGH's argument concerning its venue statute as venue was not proper against any defendant in Hinds County. Further, we do not answer the question of whether these claims could have been joined against these defendants had the claims all been raised in the original complaint against the Forrest County and Hinds County defendants, as the issue before us today is appropriately narrower.

      We also decline to address the issue of severance of the claims against UMMC, as UMMC expressly waived its right to venue in Hinds County, and Upton agreed to the transfer of the entire case if the trial court decided that transfer was merited. "Under Mississippi law, it is a 'basic premise that venue may be waived.' " Lewis v. Pagel , 233 So.3d 740, 747 (Miss. 2017) (quoting Belk v. State Dep't of Pub. Welfare , 473 So.2d 447, 451 (Miss. 1985) ). Also, Smith was dismissed from the suit by stipulation.


source: Caselaw Access Project

author: IRVING, P.J., FOR THE COURT:

license: Public Domain

text:
    Ralph Martin BILLINGSLEY, Appellant v. Amy Diane BILLINGSLEY, Appellee
    NO. 2015-CA-01134-COA
    Court of Appeals of Mississippi.
    May 9, 2017 Rehearing Denied January 9, 2018 Certiorari Denied April 19, 2018
    CARRIE A. JOURDAN, ATTORNEY FOR APPELLANT
    MARK G. WILLIAMSON, STARKVILLE, ATTORNEY FOR APPELLEE
    EN BANC.
   IRVING, P.J., FOR THE COURT:

¶ 1. Ralph Billingsley appeals the judgment of the Lowndes County Chancery Court dissolving the marriage between him and Amy Billingsley. He alleges that the chancery court committed numerous errors in the classification and division of the marital estate as well as in matters involving the payment of expenses for the parties' minor children and the establishment of the visitation schedule.

¶ 2. Finding error, we reverse in part, affirm in part, and remand for further proceedings.

FACTS

¶ 3. The parties were married on August 18, 1995, and separated on January 12, 2013; two children were born to the marriage. At the time of trial, Amy was forty-nine years old, and Ralph was sixty years old. Ralph was the primary breadwinner for the family. He had been a corporate executive, and at the time of trial was serving as county administrator for Lowndes County, Mississippi. Amy was a part-time massage therapist and a part-time adjunct faculty member at the Mississippi University for Women (MUW). Amy earned approximately $30,000 per year, and Ralph earned approximately $132,000 per year. In 1995, when the parties married, Amy was working full-time at Sanderson Plumbing Products (Sanderson) as an inside salesperson, and Ralph was also working there as a financial officer. Amy continued to work at Sanderson for one more year after the parties married, leaving in 1996, after having worked there for eight years. She took a job and a pay cut as a research analyst at MUW. During the marriage, Amy performed many household chores and provided for the children while at times working in a part-time capacity. Ralph remained in his same position at Sanderson Plumbing Products during the duration of the marriage.

¶ 4. In September 2012, Amy told Ralph that she had been involved in an extramarital affair. The couple did not separate until approximately January 12, 2013. Amy initially filed a complaint for divorce against Ralph on September 13, 2013, alleging grounds of habitual cruel and inhuman treatment and habitual drunkenness, or, in the alternative, irreconcilable differences. As part of her complaint, Amy requested that the chancellor grant her temporary relief, which the chancellor granted on February 27, 2014. Ralph answered the complaint, and, on September 4, 2014, filed a counter-complaint for divorce, alleging adultery, desertion, and habitual cruel and inhuman treatment, or, in the alternative, irreconcilable differences.

¶ 5. The trial was conducted on December 8-9, 2014. The court rendered its opinion on March 13, 2015, granting Ralph a divorce on the grounds of adultery, while denying Amy's petition for divorce. Per the parties' agreement, they were given joint legal custody of the children, and Amy was given physical custody, with visitation to Ralph. The rest of the judgment primarily addressed the division of the Billingsleys' property. Ralph then filed a motion with the court to reconsider and to clarify its decision with regard to the distribution of assets and certain provisions of visitation. The court denied Ralph's motion, leading to this appeal.

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

DISCUSSION

¶ 7. "[W]e will not disturb a chancellor's findings when supported by substantial evidence unless the chancellor's judgment was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Carambat v. Carambat , 72 So.3d 505, 510-11 (¶ 24) (Miss. 2011). "But when reviewing a chancellor's interpretation and application of the law, our standard of review is de novo." Bond v. Bond , 69 So.3d 771, 772 (¶ 3) (Miss. Ct. App. 2011). "To equitably divide property, the chancellor must: (1) classify the parties' assets as marital or separate, (2) value those assets, and (3) equitably divide the marital assets." Randolph v. Randolph , 199 So.3d 1282, 1285 (¶ 11) (Miss. Ct. App. 2016) (quoting Hemsley v. Hemsley , 639 So.2d 909, 914 (Miss.1994) ).

I. Ferguson Factors

¶ 8. Ralph argues that the chancellor misapplied several of the Ferguson factors and incorrectly designated the amount of weight given to each factor, resulting in a disproportionate distribution of the marital estate. His main argument focuses on the fact that Amy had an extramarital affair; therefore, he concludes that the total distribution should not have been in her favor. In response, Amy asserts that the chancellor used his discretion in dividing the couple's assets, and his decisions were supported by substantial evidence and therefore proper. She also notes that any errors made on the part of the chancellor were not material and do not require reversal, as they had no bearing on the outcome of the case.

¶ 9. Although Amy admitted to adultery, and the chancellor granted a divorce to Ralph on that ground, her misconduct was only one of several factors to be analyzed under Ferguson to determine the appropriate distribution of the marital assets. Ralph's assertion that Amy's adulterous misconduct should have predominated over all other factors is incorrect as this Court has previously stated that "chancellors should not view equitable distribution as a means to punish the offending spouse for marital misconduct. Rather, marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship." Bond , 69 So.3d at 773 (¶ 6). Amy's misconduct is one of many factors the chancellor used to determine the correct distribution of assets and, based on the chancellor's order, it appears that he did not take Amy's misconduct lightly, as he noted: "Mrs. Billingsley's infidelity caused the total collapse of the marriage." Accordingly, the chancellor gave appropriate consideration to Amy's adultery in ordering equitable distribution of the marital property.

¶ 10. With respect to the division of marital property, the Mississippi Supreme Court in Ferguson provided a nonexclusive list of factors for our chancery courts to consider in determining the proper division of the marital estate:

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.

Ferguson , 639 So.2d at 928. "In reviewing a chancellor's findings, we do not conduct a Ferguson analysis anew. Rather, we examine the chancellor's judgment and the record to ensure the chancellor applied the correct legal standard and did not commit an abuse of discretion." Bond , 69 So.3d at 773 (¶ 5). With respect to the chancellor's decisions, Ralph submits that the chancellor misapplied the specific factors listed below. We limit our discussion to only those factors Ralph alleges were misapplied. As a result of the misapplication, according to Ralph, the chancellor awarded Amy significantly more assets than she should have received. After reviewing the chancellor's opinion, we find that there was substantial evidence to support his findings; therefore, the chancellor did not abuse his discretion in conducting his Ferguson analysis, as discussed below.

1. Substantial contribution to the accumulation of the property

A. Direct or indirect economic contribution to the acquisition of the property

¶ 11. Ralph argues that his overall contributions should have been given greater weight, especially in light of Amy's admitted adultery. He acknowledges that "marital partners can be equal contributors whether or not they both are at work in the marketplace." Hemsley v. Hemsley , 639 So.2d 909, 915 (Miss. 1994). However, he notes that although Amy was the primary caregiver for the children, she was not the sole caregiver, as he was involved in the children's daily lives as well. The court stated that "the contributions and efforts of Mr. and Mrs. Billingsley, whether economic, domestic or otherwise are of equal value." Ralph disagrees, as he asserts that he provided much more economically to the marriage and was also involved domestically; therefore, this factor should have weighed heavily in his favor.

¶ 12. Amy reiterates the court's assertion that she provided the primary care for the children, tended to most of the domestic matters, and that for divorce purposes, her and Ralph's contributions and efforts, whether economic, domestic, or otherwise, are of equal value. In line with the chancellor's order, she argues that her contributions domestically and economically were viewed equally to Ralph's and the court did not abuse its discretion in finding that they contributed equally to the marriage. See Hemsley , 639 So.2d at 915.

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

¶ 13. Ralph asserts that the chancellor did not place enough weight on Amy's extramarital affair when dividing the marital property. Although he admits that he understands that the chancellor simply cannot punish Amy for causing the breakup of the marriage, he submits that she should not be rewarded at his expense.

¶ 14. Amy responds that she and Ralph were married for eighteen years, and during that time she was the primary caregiver to their children. One year after the parties married, Amy quit her job of eight years with Sanderson, taking a job and a pay cut as a research analyst at MUW. After their son was born in 1998, Ralph and Amy decided that Amy would no longer work and would stay at home. Amy was a stay-at-home mother for the next three years. After their daughter was born, Amy returned to work only on a part-time basis and continued taking care of their children. Amy worked part-time at Baptist Hospital in Columbus for the next five years. As the children were getting older and were involved in more activities, Amy needed more flexibility with her work schedule, so Ralph and she decided that she needed to take a part-time job as a massage therapist with a local spa. Amy has been working part-time at the spa since 2008. She argues that despite her infidelity, she was vital to the stability of the home environment throughout the marriage.

¶ 15. It appears from the chancellor's opinion that he weighed this factor in favor of Ralph because he stated that Amy's infidelity caused a "total collapse of [the] marriage."

C. Contribution to the education, training, or other accomplishment bearing on the earning power of the spouse accumulating the assets

¶ 16. Ralph states that he was forty-one years old and had worked at Sanderson for over nineteen years when he and Amy married. He had earned an accounting degree and his CPA license, and he was vice president of finance and chief financial officer at Sanderson prior to his marriage to Amy. He notes that he never received any additional degrees, certifications, or promotions after his marriage to Amy. The chancery court stated: "It does not appear to the [c]ourt that Mrs. Billingsley contributed to Mr. Billingsley's education, training, or accomplishments." He argues that Amy did not contribute to any of his education, training, or accomplishments, but he contributed extensively to her education, training, and accomplishments. Amy worked as a part-time professor at MUW as a result of the master's degree she obtained while married to Ralph. She also worked as a massage therapist as a result of the massage-therapist training and certification that she received while married to him. Thus, Ralph asserts that the chancellor should have weighed this factor more in his favor.

¶ 17. Amy responds that she quit her job of eight years at Sanderson to further Ralph's career. She argues that after Ralph went to work for Lowndes County, as the county administrator, and she began working part-time and was the primary caregiver to the children, Ralph was able to accept a position on the Board of Community Counseling for which he received $10,800 a year.

¶ 18. Despite Ralph's arguments to the contrary, the court stated that "during the last [eighteen] years, Mr. Billingsley was able to make some of his accomplishments because of Mrs. Billingsley's care of the home and children." Essentially, since much of Amy's time was spent at home with the children, the court found that this aided Ralph's accomplishments as he could spend more time away from home working. We find no error with the court's reasoning and decision with respect to this factor.

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

¶ 19. Ralph states that in November 2012, Amy withdrew $5,000 from their home-equity line of credit account. He alleges that this took place before the couple separated. He argues that if this had not been withdrawn from the account, it would have been a joint asset and would have been divided evenly. However, since Amy put the funds in her personal checking account, she was allowed to keep the entire balance. He contends that the court rewarded Amy and punished him by not addressing this joint asset. He requests that Amy be required to pay him $2,500.

¶ 20. Although Amy admits to withdrawing the money, she argues that there is no evidence in the record that she used the $5,000 for anything other than ordinary and reasonable living expenses. She asserts that since the use of the asset was for ordinary and reasonable living expenses during the separation, it was not dissipation. See Stribling v. Stribling , 906 So.2d 863, 872 (¶ 39) (Miss. Ct. App. 2005) (no dissipation where disabled husband cashed $26,000 certificate of deposit but used funds for living expenses while divorce was pending). The chancery court stated that the parties "did not agree to any property distributions," but did not make a specific finding as to whether the withdrawal of the $5,000 constituted dissipation. However, apparently Amy's testimony persuaded the court that no dissipation occurred because the court did not credit Ralph's portion of the marital estate with one-half of the amount withdrawn by Amy. Based on Amy's testimony, we cannot say that the court erred in not treating the withdrawal as dissipation of the marital estate.

3. The needs of the parties for financial security with due regard to the combination of assets, income, and earning capacity

¶ 21. As to the next disputed factor, the seventh factor in the Ferguson analysis, the court ruled that Ralph has a significantly greater earning capacity than Amy. Ralph concedes that that is a correct statement, but only over the next four years. He argues that he has four years left until he reaches Social Security retirement age whereas Amy has sixteen years left until she reaches Social Security retirement age. Ralph asserts that their age difference, combined with Amy's two undergraduate degrees, her master's degree, and her massage-therapy certification, gives her a significantly greater earning capacity going forward than he has. In addition, he notes that his earning-capacity advantage over the next four years is diminished by child support, the children's insurance, Amy's COBRA insurance, and debt service on additional debt. He submits that this factor should have weighed more in his favor, particularly with regard to the division of his retirement accounts.

¶ 22. Amy argues that Ralph makes $132,000 a year and will continue to make that amount or more for quite some time. He has considerable separate/nonmarital property, including income-producing land. She argues that she only makes $30,000 per year and that for the past fourteen years, the only jobs that she has had are part-time jobs. She asserts that working part-time was a mutual decision by Ralph and herself so she could devote her time primarily to raising their children. She states that she has no separate/nonmarital property. One spouse may be awarded a greater share of marital assets based on need, even though both spouses contributed equally to asset accumulation. "[T]he goals of equitable distribution are a fair division of marital property based on the facts of each case and termination of the legal relationship in a manner which each party may realize self-sufficiency." Seymour v. Seymour , 960 So.2d 513, 519 (¶ 15) (Miss. Ct. App. 2006) (quoting Ferguson , 639 So.2d at 929 (Miss. 1994) ). Although the chancellor stated that Ralph has substantially greater earning power than Amy, he also noted that she is underemployed and, with her education, "regardless of the distribution made by this [c]ourt, Mrs. Billingsley will have to seek more gainful employment." We find no error with the chancellor's decision in this regard.

II. Cadence IRA Calculation

¶ 23. Ralph argues that the chancellor incorrectly calculated the marital portion of the IRA. Amy responds that she understands Ralph's argument to be about the date of the valuation-identical to the PERS argument below. However, in his reply brief, Ralph asserts that he does not make an argument regarding the demarcation date with respect to this issue, but rather takes issue with a miscalculation on the part of the chancellor. The chancellor determined that Ralph's separate contribution to the Cadence IRA was $124,582.01 and that $247,216 was contributed to the Cadence IRA during the course of the marriage and that, at the time of the divorce, the value of the IRA was $751,024. The chancellor determined that Ralph's separate contribution constituted 33.5 percent of the total contributions to the IRA and designated that percentage as the nonmarital portion of the IRA. This calculation resulted in Ralph receiving $251,593.04 as his nonmarital portion of the IRA plus a marital portion of $249,715.50. We find that the chancellor erred because (1) the figure used by the chancellor for the marital contributions was incorrect; (2) the formula used to calculate Ralph's separate portion of the IRA failed to account for the continuing appreciation of Ralph's separate contribution; and (3) the calculation treated the appreciation of the marital portion of the IRA as if the total marital contributions had been made as of the date of the marriage, despite the fact that those contributions were made over a twelve-year period. Therefore, we reverse and remand this issue to the chancery court for a corrected calculation of Ralph's separate portion of the IRA.

¶ 24. The record reflects that, during the trial, Ralph submitted a spreadsheet that showed the amount of the appreciation on his separate contribution through December 31, 2012, the demarcation date that Ralph urged the chancellor to use in computing the marital portion of the IRA. As of that date, the marital contributions and the appreciation on the contributions totaled $247,216. As stated, the chancellor added Ralph's separate contribution of $124,582.01 to the $247,216 figure and divided the amount of Ralph's separate contribution by the sum of those two figures to arrive at the percentage of Ralph's contribution. The chancellor then multiplied that percentage times the total value of the IRA as of the date of the trial, rejecting the demarcation date urged by Ralph.

¶ 25. Ralph then filed a motion for reconsideration in which he accepted the demarcation date used by the chancellor-December 5, 2014-and extended his computation through that date. His spreadsheet then showed the total marital contributions plus appreciation to be $293.645.78, and his separate contribution plus appreciation to be $457,378.22. The chancellor denied Ralph's motion without explanation or a discussion of Ralph's added computations to comply with the demarcation date used by the chancellor. We find that the chancellor erred in doing so.

¶ 26. Our law is clear that the chancery court is required to determine the separate estate of each party, as well as the marital estate. Each party is entitled to that party's separate estate plus the appreciation associated with the investment of items in the separate estate, provided neither party has actively contributed to the appreciation during the course of the marriage. Wheat v. Wheat , 37 So.3d 632, 638 (¶ 20) (Miss. 2010). Therefore, we reverse and remand this issue to the chancery court with directions that it recompute the nonmarital portion of the Cadence IRA. On remand, the chancellor is not bound by Ralph's calculations if the court finds a mathematical error in the calculations, but the court must credit Ralph, as a part of his nonmarital portion of the IRA, all of the appreciation on his separate contribution of $124,582.01 through December 5, 2014. To do so, the chancellor must segregate the appreciation consistent with the appreciation shown on the investment statements that were introduced during trial. In this regard, we note that Amy did not object to any of Ralph's calculations as being inconsistent with the investment statements.

III. Citizens and Renasant Accounts

¶ 27. With respect to the Renasant Bank account, Ralph argues that during the marriage, he used this account as his personal checking account, so it should have been classified as his separate/nonmarital property. However, the court classified this asset as marital and divided it. Amy argues that there was no error with the court's disposition of that account. On the financial statements of the parties, Amy does not list the Renasant account as an asset at all; conversely, Ralph lists the account as his separate personal account, and his name is the only name on the account. Although the chancery court incorrectly referred to the account as a joint account, we cannot find error with the court treating it as marital property and dividing it between the parties as a marital asset because Ralph's testimony that he used it as his personal account throughout the course of the marriage does not necessarily make it his separate property. He did not testify that the money that was deposited into the account came from his separate estate.

¶ 28. The chancellor determined that the parties would retain their personal checking accounts. Ralph argues that the court incorrectly listed the Citizens account as his separate account and awarded the full amount to him. He asserts that the Citizens account was actually a joint account and its $100 balance should have been divided between him and Amy. Amy responds that giving Ralph the $100 instead of dividing it between them is immaterial and would not have changed anything. She alleges that in Ralph's Uniform Chancery Court Rule 8.05 financial statement, he listed the Citizens checking account in his name only and never testified differently. We find no error with the court's decision in this regard.

IV. Wells Fargo IRA

¶ 29. Ralph argues that the chancellor erred in classifying the Wells Fargo IRA as a marital asset. He alleges that the contributions to this IRA were made prior to the marriage and that no contributions were made during the marriage. Since this was separate property, he argues it should not have been listed as a marital asset subject to division and distribution.

¶ 30. Amy responds that, although the court listed the Wells Fargo IRA as a marital asset, the court awarded Ralph the entire amount; therefore, listing it under Ralph's separate/nonmarital property would have increased the value of his separate/nonmarital property the exact same amount and, therefore, the error is of no consequence.

¶ 31. Amy's analysis is incorrect. Ralph testified on direct and cross-examination that the IRA was his separate property. He also testified that he owned it before their marriage and had not contributed to it during the marriage. His assertions were not disputed at trial, nor were they disputed in Amy's appeals brief. In his order, the chancellor identified the IRA as "Ralph's Wells Fargo IRA" but treated it as a marital asset and allocated the entire balance to Ralph. However, since the court erred in classifying the IRA as a marital asset instead of part of Ralph's separate estate, that error affected the amount of the marital estate to be divided between the parties. Although the amount of the misclassified IRA-$12,890-is fairly small in comparison to the overall amount of the marital estate-$798,421-as determined by the chancellor, we find that this error requires that the case be reversed and remanded.

V. Valuation Date: PERS and Old West Point Road Property

¶ 32. Ralph argues that the chancellor erred on the valuation date for the PERS account and for the Old West Point Road property. He asserts that the court should have used the date of the separation as the date to determine the value of these marital assets, since Amy made no contribution to the marriage after the separation date. The court selected the trial date of December 8, 2014, as the point of demarcation for purposes of evaluating the marital estate. Amy argues that this was totally within the chancellor's discretion. We agree. "The law in Mississippi is that the date on which assets cease to be marital and become separate assets[,] what we refer to ... as the point of demarcation[,] can be either the date of separation (at the earliest) or the date of divorce (at the latest)." Randolph , 199 So.3d at 1285 (¶ 9) (internal quotations omitted). "Ultimately, however, the chancellor has the discretion to draw the line of demarcation." Id. We find that the chancellor did not abuse his discretion. This issue is therefore without merit.

VI. Additional Financial Awards

A. Health Insurance

¶ 33. Ralph argues that since Amy is receiving rather substantial child support and has the ability to earn a considerable income, she should be required to pay one-half of the medical and dental insurance premiums for the minor children. Amy asserts that although Ralph argues about the children's insurance award, he agreed to continue to pay for and provide the children's insurance. Even in the absence of Ralph's agreement to pay these amounts, we find no error in the court's ordering Ralph to be responsible for these expenses. This issue is without merit.

B. Life Insurance

¶ 34. Ralph requests that this Court clarify that the beneficiaries of the life insurance designated in the opinion and judgment of the chancery court include his son, Baxter, from a previous marriage. The chancellor's judgment only lists the couples' two children. Amy responds: "Ralph's son from another marriage is not an issue in this case." We agree. This issue is without merit.

C. Tax Exemptions for the Minor Children

¶ 35. The chancellor ordered that Amy would be allowed to claim the youngest child on her tax return, and Ralph would be allowed to claim the oldest child. Ralph argues that based on the property distribution favoring Amy, she should not be again rewarded with a tax exemption. Ralph further argues that if the exemptions were going to be split between him and Amy, he should have been allowed to claim the youngest child. Ralph cites no authority for his position. Therefore, we see no need to address this issue any further. Suffice it to say we find no abuse of discretion on the part of the chancellor in this regard.

D. Private-School Tuition/Meals

¶ 36. In its order, the court stated that because Amy was receiving rather substantial child support and had the ability to earn a considerable income, the parties should decide whether the children would attend private school in the future and who would be responsible for the private-school expenses after the close of the current school year. As to the then-current school year, which was the 2015/2016 school year, the court ordered that the parties split the school expenses equally between them. Ralph argues that the court should have ordered Amy to reimburse him for half of the school expenses for all years going forward. Since Ralph was not ordered by the court to pay any future school expenses for the children, we decline to address this issue.

E. COBRA Insurance Coverage

¶ 37. Ralph argues that the court incorrectly awarded Amy coverage under COBRA for twelve months and ordered him to pay for it. He asserts that because he received more debt and less cash than Amy, he should not have had to pay the cost of her insurance coverage. He submits that this was an obvious error, and this Court should order Amy to reimburse him the amount of the COBRA coverage. We decline his request, as we find that the chancellor did not abuse his discretion in ordering payment of twelve months of insurance coverage for Amy. This issue without merit.

VII. Visitation Schedule

¶ 38. The parties agreed on the custody of the children and the majority of the visitation. They agreed that they would share legal custody and Amy would have physical custody. Based on the record, it appears that the parties were to present an agreed order to the court consisting of their visitation agreement. In his order, the chancellor stated, "the [c]ourt received excerpts from e-mails of counsel for the parties containing their understanding of the agreement between the parties. The [c]ourt has attempted to follow the details set out in the e-mail excerpts ...." However, Ralph argues that the chancellor erred in not awarding him visitation with the children on any Easter Sunday. In addition, he argues that the weekly visitation schedule was not what they agreed to.

¶ 39. Amy argues that it was in the chancellor's discretion to allocate visitation arrangements absent an agreement by the parties. "Visitation is a matter within the chancellor's sound discretion. The chancellor is charged with fashioning a visitation schedule that is in the best interests of the children, and the chancellor's visitation decision is afforded great deference by this Court." Solangi v. Croney , 118 So.3d 173, 179 (¶ 25) (Miss. Ct. App. 2013). As evidenced by the statement in the chancellor's order, he attempted to provide a visitation schedule consistent with the information available to him. Moreover, if the visitation schedule set forth in the chancellor's order was not consistent with the parties' agreement, Ralph should have sought a modification on this issue in the chancery court. Having failed to do so, he cannot be heard to complain here. This issue is without merit.

VIII. 11th Street North House

¶ 40. At the time of trial, the 11th Street North property was valued at $200,000, with an outstanding debt of $203,511. The Old West Point Road property was valued at $300,000, with a mortgage balance of $121,000. Ralph had purchased the 11th Street North property in 1984, eleven years prior to his marriage to Amy. When he and Amy married, they used the 11th Street North property as their marital domicile. The chancellor found both properties to be marital property and subtracted the negative equity of the 11th Street North property from the positive equity in the Old West Point Road property to arrive at $175,489 of total equity.

He then gave each party half of that equity-$87,744.50 each.

¶ 41. Ralph argues that the chancellor did not give him credit for approximately $70,000 in equity which he had in the 11th Street North property at the time of his marriage to Amy. Ralph testified that in 1998, after being married to Amy for only three years, he and Amy had the 11th Street North property appraised and it was valued at $195,000, with an outstanding loan in the amount of $125,000. There is no evidence in the record, and no claim is made, that the property had appreciated in value by $70,000 during his first three years of marriage to Amy. However, in 1998, he and Amy took out a loan for $132,000, $125,00 of which they used to pay off the existing mortgage. According to Ralph, they got an additional $120,000 to make renovations to the master bedroom. In 2011, they took out a $150,000 home-equity loan against the 11th Street North property and used it as a down payment on the purchase of the Old West Point Road property.

¶ 42. At the time of trial, approximately three years after the purchase of the Old West Point Road property, the Old West Point Road property, as stated, was valued at $300,000, with an outstanding mortgage of only $121,000. As we understand Ralph's contention, the $179,000 equity in the Old West Point Road property was the result of the $150,000 down payment made with the proceeds from the home-equity loan taken out against the 11th Street North property. The problem with the chancellor's distribution of the equity stemming from the two homes is that it did not account for Ralph's preexisting equity in the 11th Street North property. While the evidence does not prove that in 1995, the year of Ralph's marriage to Amy, the equity in the 11th Street North property was $70,000, it is reasonable to deduce that it did not appreciate that much in value in the first three years after the marriage. We are mindful that the 11th Street North property became marital property and that the chancellor did not err in classifying it as such. However, the chancellor's splitting the equity in the Old West Point Road property equally between Ralph and Amy fails to take into consideration that a good portion of that equity emanated from the equity that Ralph had in the 11th Street North property before it became marital property. Since we are already reversing this case for other reasons, we direct the chancery court to reconsider whether the equity in the marital homes should be divided equally between Ralph and Amy in light of Ralph's initial nonmarital investment in the 11th Street North property.

¶ 43. Finally, Ralph also alleges that he paid all of the expenses associated with the 11th Street North home, beginning in 2014 and continuing until the home was sold in 2015. He argues that since it was a joint asset for equity distribution, it should have also been a joint asset for all expenses. He asserts that since Amy was given fifty percent of the equity in the homes, she should have had to pay fifty percent of the expenses he paid until the home was sold. Amy does not directly respond to Ralph's argument regarding the issue of expenses. Since we have already directed that the chancery court take a new look at the division of the equity in the homes, it may also look at this issue.

¶ 44. We affirm the chancellor's judgment in all aspects except as to the computation of Ralph's nonmarital portion of the Cadence IRA, the classification of the Wells Fargo IRA, and the division of the equity in the marital homes. While it would be a simple matter for this Court to do the recalculations, more than simple mathematics is involved. Had the court correctly classified and evaluated the marital estate, it may have awarded Amy a greater percentage of the marital estate to compensate for the reduction. As to these matters, we remand for further proceedings consistent with this opinion.

¶ 45. THE JUDGMENT OF THE CHANCERY COURT OF LOWNDES COUNTY IS AFFIRMED IN PART, AND REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED THREE-FOURTHS TO THE APPELLANT AND ONE-FOURTH TO THE APPELLEE.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      The chancellor calculated Ralph's separate property as follows: the Billingsley Farm, LLC, valued at $520,000, plus the separate portion of the Cadence Bank IRA of $251,593.04, for a total of $771,593.04.

      In Ferguson v. Ferguson , 639 So.2d 921, 928 (Miss. 1994), the Mississippi Supreme Court created an eight-factor test to be used by chancellors when dividing property in divorce actions.

      The record contains numerous references to different "checking accounts"; however, it is not clear in all instances which account is being addressed.