author: CARLTON, J., FOR THE COURT:

text:
    Julia Walker DAUENHAUER, Appellant v. Steven DAUENHAUER, Appellee
    NO. 2017-CA-00424-COA
    Court of Appeals of Mississippi.
    November 13, 2018
    ATTORNEY FOR APPELLANT: EDWARD GIBSON
    ATTORNEY FOR APPELLEE: CLEMENT S. BENVENUTTI
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. The Hancock County Chancery Court granted Steven and Julia Dauenhauer a divorce based the ground of irreconcilable differences. The chancellor also distributed the marital property and awarded Steven rehabilitative alimony.

¶ 2. Julia now appeals the chancellor's judgment, arguing that: (1) the chancellor erred in awarding Steven rehabilitative alimony; (2) the chancellor erred in determining the date of the end of the accumulation of marital assets; (3) the chancellor erred in his classification of Julia's retirement accounts as marital property; and (4) the chancellor erred in awarding attorney's fees to Steven. Finding error only with the portion of the chancellor's judgment ordering Julia to pay Steven's attorney's fees, we affirm in part and reverse and render in part.

FACTS

¶ 3. Julia and Steven first married in 1981. The marriage produced two children. In 2001, Julia and Steven obtained a divorce based on irreconcilable differences. The couple eventually reconciled and remarried in November 2003. At the time of their remarriage, Julia worked as a registered nurse at Hancock Medical Center and Steven worked as a recreation specialist at the Seabee Base in Gulfport, Mississippi.

¶ 4. During their second marriage, Julia returned to school and obtained a Bachelor of Science degree in Nursing in 2011 and a Master of Science degree in Nursing in 2012. Julia also obtained a nurse practitioner's license in 2013. In 2006, Steven changed career paths and became an associate pastor at a church. Steven was eventually laid off due to the church's financial difficulty, and in 2013 and part of 2014, he worked as an outside plant technician for AT & T. In 2014, Steven obtained employment as a school bus driver and character education teacher for the Hancock County School District.

¶ 5. Steven and Julia separated on April 30, 2015. At this time, both children had reached the age of adulthood. On May 1, 2015, Julia moved out of the marital home located at 919 Combel Street, Waveland, Mississippi and into a new home.

¶ 6. On August 12, 2015, Steven filed a complaint for separate maintenance, asserting that his income was insufficient to pay the normal and usual expenses of maintenance on the marital domicile. In his complaint, Steven claimed that Julia abandoned him and that he was without fault for the separation. Steven also requested attorney's fees, explaining that he lacked sufficient income to pay for his attorney.

¶ 7. On September 9, 2015, Julia filed her answer to Steven's complaint, denying that she abandoned Steven and alleging that Steven's actions and behavior significantly contributed to their separation. Julia asserted that Steven was "painfully underemployed by his own choice and that his refusal to work, among numerous other factors, substantially eroded the marital relationship and caused the separation of the parties." Julia also filed a counter complaint for divorce, asserting that she was without fault for the separation and seeking a divorce on the ground of habitual cruel and inhuman treatment, or, in the alternative, irreconcilable differences. Julia further requested that the marital home located at 919 Combel Street be placed on the market for sale or be refinanced by Steven in his name only, with the proceeds utilized first to pay for any current outstanding indebtedness and the net proceeds being equally divided by the parties.

¶ 8. The chancellor heard arguments from the parties regarding Steven's complaint for separate maintenance. The parties reached a temporary agreement as to separate maintenance and the marital property, and on September 11, 2015, the chancellor ratified an order of temporary relief memorializing the parties' agreement on the issues.

¶ 9. On January 28, 2016, Steven filed his answer to Julia's counter complaint for divorce. Steven moved to dismiss the complaint pursuant to Mississippi Rule of Civil Procedure 12(b)(6), alleging that Julia failed to state a claim against him upon which any relief may be granted. Steven also argued that Julia was without clean hands and therefore should not be granted any of the relief sought in her counter complaint for divorce.

¶ 10. The chancellor held a trial on the matter on May 12, 13, and 16, 2016. During the trial, Steven and Julia reached an agreement to withdraw the fault pleadings and consented to a divorce on the ground of irreconcilable differences. The parties reserved the following issues for the chancellor's determination: (1) Identify marital property and equitably divide the same; (2) Identify the marital debt and equitably divide the responsibility for paying same; (3) Determine the amount of award of attorney's fees from Julia to Steven, if any; and (4) Determine if Steven is entitled to an award of alimony of any kind or nature and award him the same if appropriate.

¶ 11. The trial then resumed. As the trial recessed for lunch, the chancellor observed that Steven failed to mention "the issue of spousal support" in any of Steven's pleadings. At the chancellor's suggestion, Steven's counsel made an ore tenus motion to amend his answer to Julia's counter complaint and request that Steven be granted spousal support of "whatever kind or nature the [c]ourt deems appropriate" and that Steven be awarded attorney's fees. The chancellor granted the ore tenus motion and requested the details of the motion be included in the consent to adjudicate.

¶ 12. After hearing testimony, the chancellor advised the parties that, "the date for determining equitable distribution, in my view, should be the date of the temporary order"-September 11, 2015. The chancellor also directed the parties to make post-trial submissions to aid in his consideration of the issues.

¶ 13. On December 2, 2016, the chancellor entered a judgment granting the divorce on the ground of irreconcilable differences. In his judgment, the chancellor applied the Ferguson factors and set forth his equitable division of the marital property. The chancellor then applied the Armstrong factors and ultimately awarded Steven rehabilitative alimony.

¶ 14. Over the next few months, Steven and Julia filed several motions requesting that the chancellor amend his judgment, which we discuss at length later in this opinion. The chancellor entered an amended judgment of divorce on February 24, 2017. Aggrieved, Julia filed a notice of appeal on March 24, 2017, wherein she stated that she is appealing from the final amended judgment entered on February 24, 2017 and the chancellor's February 24, 2017 order denying Julia's motion for amended judgment notwithstanding the verdict, or, in the alternative, for new trial. After Julia filed her notice of appeal, the chancellor addressed a pending motion filed by Steven and issued a second amended judgment of divorce on April 17, 2017.

DISCUSSION

I. Rehabilitative Alimony

¶ 15. Julia argues that the chancellor erred in awarding Steven rehabilitative alimony in the amount of $2,000 per month for 48 months, for a total of $96,000. Julia specifically argues that the chancellor erred in his application of the Armstrong factors and thus erroneously awarded Steven alimony. Julia maintains that the chancellor erred in his determination of Steven's monthly expenses, specifically Steven's monthly payments for the marital home. Julia also asserts that the chancellor awarded Steven $98,788.09 of the marital estate and awarded Julia $98.668.11; however, the chancellor assigned Julia $58,860.85 in debt but assigned Steven only $21,858.79. Julia claims that because Steven was not destitute, the record does not support an award of rehabilitative alimony. Julia also argues that Steven testified at trial that he chose to remain underemployed.

¶ 16. When reviewing an alimony award, we "will not disturb a chancellor's findings regarding the award ... unless there is manifest error." Larson v. Larson , 192 So.3d 1137, 1141 (¶ 11) (Miss. Ct. App. 2016). "Mississippi precedent establishes that the chancellor's award of alimony is a matter primarily within the discretion of the chancery court because of its peculiar opportunity to sense the equities of the situation before it." Serio v. Serio , 203 So.3d 24, 28 (¶ 10) (Miss. Ct. App. 2016) (internal quotation marks omitted).

¶ 17. Chancellors utilize the following factors set forth by the Mississippi Supreme Court when determining an award of alimony:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be "just and equitable" in connection with the setting of spousal support.

Branch v. Branch , 174 So.3d 932, 944 (¶ 49) (Miss. Ct. App. 2015) (quoting Armstrong v. Armstrong , 618 So.2d 1278, 1280 (Miss. 1993) ).

¶ 18. We recognize that "rehabilitative alimony provides for a party who is trying to become self-supporting and prevents that party from becoming destitute while searching for a means of income. Moreover, the primary purpose of rehabilitative alimony is to give the former spouse the opportunity to enter the work force." Id. at 944-45 (¶ 50) (internal quotation marks omitted).

¶ 19. At trial, the chancellor heard testimony regarding Julia's decision to return to school after the parties remarried. Julia earned her Bachelor of Science degree in Nursing in 2011 and a Master of Science degree in Nursing in 2012, and she later obtained a nurse practitioner's license in 2013. Julia's advanced degrees resulted in her salary increasing from $36,497 in 2011 to $106,435 in 2014.

¶ 20. Steven also testified that in 2006, he left his job as a recreation specialist, where he earned approximately $37,000, and became an associate pastor. Steven testified that in 2011, he earned $40,828 while he was employed as an associate pastor. Steven was eventually laid off due to the church's financial difficulty, and he worked as an outside plant technician for AT & T. In 2014, Steven obtained employment as a school bus driver and character education teacher for the Hancock County School District. Steven testified that his income for 2013 was $17,542 and his income for 2014 was $25,146.

¶ 21. Steven also testified that he possessed a bachelor's degree in professional aeronautics. He stated that while he did not currently possess a teaching license, he would have to go back to school for "probably ... a year or a year and a half" to become certified. Steven also testified that he possessed a commercial driver's license. During cross-examination, Julia's attorney asked Steven, "[Y]ou choose to remain underemployed, don't you?" Steven responded, "I choose to do what I'm doing, yes, sir."

¶ 22. In his December 2, 2016 judgment, the chancellor performed an equitable distribution of Steven and Julia's marital property. The chancellor then considered the Armstrong factors to determine whether an award of alimony was appropriate. In applying the Armstrong factors, the chancellor held as follows:

This is a relatively long term marriage and it is also the parties' second marriage.... [B]oth parties are in good health with the exception of Steven's hearing loss. Based on the equitable distribution analysis above, each party has a house and vehicles to maintain, as well as student loan debts to pay. Julia has a much higher earning capacity than she did at the beginning of the marriage, and currently earns significantly more than Steven. Julia's monthly income of $12,144.50 income greatly exceeds her monthly expenses, even after deducting her large voluntary contributions to her 401K. Conversely, Steven's expenses exceed his income by $898.89 and he has the additional need to pay for his teaching degree. Steven therefore needs to transition to a lifestyle and career that will be self supporting. For example, obtaining a teaching license and becoming a full time teacher.
In light of the [c]ourt's consideration of each of the parties' financial situation as discussed above, and giving particular weight to Julia's gross monthly income of $12,144.506, the [c]ourt awards Steven rehabilitative alimony in the amount of [$2,000.00] per month for a period of 48 months beginning [January 1, 2017]. This award is intended to provide Steven time to earn his teaching license and reenter the workforce with that degree, or alternatively to transition his costs of living to reflect his income.

¶ 23. On December 7, 2016, Steven filed a Rule 59 motion to correct the judgment. On December 15, 2016, Julia filed a motion to reconsider and/or correct the judgment of divorce. In her motion, Julia asserted that in the judgment for divorce, the chancellor recognized that Steven "chose to reduce his income during the marriage and ... notes that [Steven] is underemployed but [the chancellor] does not seem to consider these facts in property division or alimony award." Julia also argued that although the chancellor stated that the award of rehabilitative alimony is "intended to provide Steven time to earn his teaching license and re-enter the workforce with that degree[,]" Steven already possessed a college degree, so he had no need to obtain four more years of education. Rather, Julia argued, Steven "can obtain his teaching license in a one year time frame due to his existing degree." Julia maintained that this error in calculating the time needed for Steven to obtain a teaching license, "coupled with [Steven] voluntarily being underemployed[,] should cause this Court to reconsider the amount and length of the rehabilitative alimony award."

¶ 24. On February 24, 2017, the chancellor entered an order on Steven's motion to correct and Julia's motion to reconsider. In his order, the chancellor stated that

Julia's [m]otion to [r]econsider does not reference [Mississippi Rule of Civil Procedure] 59 and was filed on December 15, 2016, three (3) days after the ten day time frame imposed by [ Rule] 59(e). This [m]otion should therefore be considered under [Mississippi Rule of Civil Procedure] 60(b). The possible avenues for relief listed in Rule 60(b)(l) through (5) were not raised by Julia and otherwise do not apply. The [m]otion to [r]econsider should therefore only be granted if she can show "extraordinary and compelling" circumstances pursuant to [ Rule] 60(b)(6).

The chancellor also addressed Julia's specific request for the chancellor to reconsider its alimony award, explaining as follows:

In awarding Steven rehabilitative alimony, the [c]ourt gave significant weight to his need for both present and future financial security, that such could not be provided through the equitable distribution of marital assets and that both Julia's present earnings and her future earning capacity greatly exceed his. The [c]ourt also considered (1) the present income and expenses of each party, including their respective payment obligations on installment debt, credit cards and mortgage debt; and (2) Steven's work and earnings history, and more particularly his work history during the marriage and that his hearing disability resulted from his previous employment as an aircraft mechanic.
The [c]ourt acknowledges that Steven may be able to complete the educational and licensing requirements to become a teacher or to otherwise secure academic or vocational training to enter another field of employment in less than four years. However, the [c]ourt believes the four year period to be reasonable and necessary for Steven to not only complete the educational requirements or other training for a new occupation but to provide him the opportunity to refinance or otherwise reduce his financial burdens. As noted in the judgment, Steven's monthly expenses exceed his monthly income by $898.89. The award to Steven of $2,000.00 per month in rehabilitative alimony permits him to meet this monthly deficit and provides an additional $1,011.11 per month to assist him to transition to financial independence as a school teacher or in another occupation. In sum, the award of rehabilitative alimony to Steven is intended to allow him "... to become self-supporting without becoming destitute in the interim." Hubbard v. Hubbard , 656 So.2d 124, 130 (Miss. 1995).

On February 24, 2017, the chancellor entered an amended judgment of divorce and added this language to the judgment.

¶ 25. On March 6, 2017, ten days after the chancellor entered the amended judgment of divorce, Steven filed a Rule 59, or in the alternative, Rule 60, motion to correct or amend the amended judgment of divorce. On March 24, 2017, Julia filed a notice appealing the chancellor's final amended judgment of divorce and the chancellor's denial of her motion for amended judgment notwithstanding the verdict, or, in the alternative, for a new trial.

¶ 26. "Ordinarily, once a notice of appeal is filed, jurisdiction transfers from the trial court to the appellate court, thereby removing the trial court's authority to amend, modify, or reconsider its judgment." McNeese v. McNeese , 129 So.3d 125, 128 (¶ 7) (Miss. 2013).

¶ 27. The record reflects that Steven's Rule 59 motion was timely filed. We have long recognized that "[a] motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion." Woods v. Victory Mktg. LLC , 111 So.3d 1234, 1236 (¶ 7) (Miss. Ct. App. 2013). In Mallery v. Taylor , 792 So.2d 226, 228 (¶ 7) (Miss. 2001), the supreme court clarified as follows:

[F]iling [an appeal] prior to disposition of a Rule 59 motion is no longer a nullity. Instead, the appeal becomes effective when the Rule 59 motion is disposed of, and, under our rule, the single premature notice is also effective to bring forth issues raised and disposed of in the Rule 59 motion.

Id. In Darnell v. Darnell , 199 So.3d 695, 696 (¶ 4) (Miss. 2016), the supreme court again reiterated that "a notice of appeal only becomes effective when the Rule 59 motion is disposed of. Until disposal of the Rule 59 motion, there is no final appealable judgment." (internal citation omitted).

¶ 28. Less than a month after Julia filed her notice of appeal, the chancellor entered an April 17, 2017 order granting Steven's Rule 59, or, in the alternative, Rule 60 motion to correct or amend the amended judgment. The chancellor acknowledged that Julia had filed a notice of appeal, but he stated that "Steven's Rule 59 motion remains pending before the trial court." On April 17, 2017, the chancellor also entered a second-amended judgment of divorce. This second-amended judgment of divorce did not make any revisions to the chancellor's award of rehabilitative alimony.

¶ 29. We therefore find that Julia's notice of appeal only became effective once the chancellor entered the April 17, 2017 order granting Steven's Rule 59, or, in the alternative, Rule 60 motion to correct or amend the amended judgment.

¶ 30. Turning back to the merits of Julia's appeal, in Branch , 174 So.3d at 945 (¶ 52), this Court affirmed a chancellor's award of rehabilitative alimony to a spouse in the amount of $1,000 per month for seventy-two months, where "the chancellor specifically intended the alimony award to support Lauren until she found sustainable employment and became self-sufficient." Similarly, in McCarrell v. McCarrell , 19 So.3d 168, 171 (¶ 10) (Miss. Ct. App. 2009), we found that no error in the chancellor's award of rehabilitative alimony to a spouse in the monthly amount of $1,800 for a period of five years where the alimony "serves the purpose of helping [the spouse] become self-supporting and prevents [him] from becoming destitute while doing so."

¶ 31. Upon our review of the record, and keeping in mind that we "will not disturb a chancellor's findings regarding the [rehabilitative alimony] award ... unless there is manifest error," we affirm the chancellor's award of rehabilitative alimony to Steven in the amount of $2,000 per month for 48 months. Larson , 192 So.3d at 1141 (¶ 11).

II. Point of Demarcation

¶ 32. Julia argues that the chancellor erred in setting May 16, 2016, as the date to determined the end of the accumulation of marital assets. Julia maintains that the chancellor provided the parties with an earlier date at trial.

¶ 33. The supreme court has clarified 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)." Collins v. Collins , 112 So.3d 428, 431-32 (¶ 9) (Miss. 2013) (quoting Lowrey v. Lowrey , 25 So.3d 274, 285 (¶ 27) (Miss. 2009) ). The supreme court reiterated that "chancellors should indicate in the record what date they choose for the point of demarcation and why they choose it." Id. at 432-33 (¶ 13).

¶ 34. Here, the record reflects that at the end of the trial, the chancellor announced that "[t]he date for determining equitable distribution, in my view, should be the date of the temporary order[,]" which was September 11, 2015. However, in the December 2, 2016 judgment of divorce, the amended judgment of divorce, and the second amended judgment of divorce, the chancellor set forth that "[a]ll assets and debts at issue in this case were acquired by the parties prior to their separation in April 2015 with income earned during the marriage. Therefore, the [c]ourt finds that all assets and debts are deemed marital property and subject to the equitable distribution analysis below. The [c]ourt uses the date of trial [May 16, 2016] to mark the end of accumulation of assets."

¶ 35. We find that the chancellor was within his discretion to choose the date of the trial as the point of demarcation. See Williams v. Williams , 179 So.3d 1242, 1251 (¶ 25) (Miss. Ct. App. 2015).

III. Retirement Account as Marital Property

¶ 36. Julia next argues that the chancellor erred in classifying the following as marital property: (1) the money she withdrew from her PERS retirement account and (2) the contributions she made to her Empower 401K after the entry of the order for separate maintenance.

¶ 37. This Court employs a limited standard when reviewing a chancellor's division and distribution of property in a divorce. Phillips v. Phillips , 904 So.2d 999, 1001 (¶ 8) (Miss. 2004). "This 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 . Upon review, we examine the chancellor's application of the Ferguson factors. Id. In so doing, we do not conduct a new Ferguson analysis; rather, we "review[ ] the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion." Id.

¶ 38. Furthermore, "the party arguing to classify an asset as nonmarital property has the burden to demonstrate to the court the asset's nonmarital character." Wheat v. Wheat , 37 So.3d 632, 640 (¶ 26) (Miss. 2010). The supreme court explained that meeting this burden requires going "beyond a mere demonstration that the asset was acquired prior to marriage." Id.

¶ 39. Julia explains that the $56,484.90 "withdrawals from retirement" listed in the Schedule of Marital Assets represents a PERS retirement account in the amount of $46,732.68 and a Great-West Retirement Services account in the amount of $9,752.22. In his judgment, the chancellor included a footnote explaining that the "total of the funds Julia withdrew from her retirement accounts is also a marital asset subject to equitable distribution." However, Julia argues that she testified at trial that her PERS retirement was "originally acquired when [she] was divorced" from Steven the first time. Julia admitted at trial that contributions to the account had been made during their second marriage, but she now maintains that a portion of the total value of her PERS retirement account should be considered separate property.

¶ 40. At trial, the record shows that during cross examination, Steven's attorney questioned Julia about whether she provided a statement showing the value of the PERS account on the date of her 2003 marriage to Steven. Julia responded that she was not requested to produce such a document. Steven's attorney responded, "Well, ma'am, I definitely requested it in request of production documents, and you didn't produce them, and I'm going to go through that." The record shows that on her Rule 8.05 financial declaration, Julia attached a W-2 form indicating the value of the PERS account amounted to $46,732.68 when she cashed it out in 2015.

¶ 41. Regarding the $17,000 in her Empower 401K account, Julia asserts that the majority of the value of the Empower account constituted separate property. The chancellor's judgment reflects that he divided the assets in the Empower account equally between the parties. In so doing, the chancellor also provided that "Julia voluntarily contributes approximately twenty percent of her income from West Jefferson [Medical Center] to her 401K retirement account." Julia asserts that the three trial exhibits, including two of her pay stubs from April 2016, which the chancellor referenced as support for that amount, do not reflect contributions of twenty percent. Rather, Julia argues that her April 2016 pay stubs show that she only contributed fifteen percent of her monthly income to the account. Julia further submits that her contributions made to the account after the order for separate maintenance should be classified as separate property.

¶ 42. Steven argues, however, that Julia failed to produce a statement for the Empower account, despite being requested to do so in discovery. The trial testimony reflects that Steven's attorney asked Julia if she had a pension plan. Julia responded, "Yes, I do." Steven's attorney asked, "But you didn't put it on [your Rule 8.05 financial statement]?" Julia answered, "Correct." Julia testified, however, that she started accumulating funds in her Empower account in 2014.

¶ 43. Our review shows that the chancellor set forth the following findings with regard to Julia's retirement account and Empower account:

Julia voluntarily contributes approximately twenty percent of her income from West Jefferson to her 401K retirement account.
....
Prior to the separation, Julia purchased a home located at 209 Blue Heron Cove, Waveland, MS 39567, as well as a 2015 Mazda. When Julia purchased this home, she used $9,752.22 of her retirement funds from West Jefferson Medical Center to pay off the loan for the Honda Ridgeline. (See Exhibit 14, Page 10). Julia testified that she cashed in additional retirement savings in the amount of $46,732.68 and used these funds to purchase various items and appliances for her new home. (See Exhibit 14, page 8). Through post trial submissions, Julia has detailed how she spent $43,855.23 or this withdrawal.

¶ 44. The chancellor then performed a Ferguson analysis and found that "no non-marital property" existed. Under the factor of "the income and earning capacity of each party," the chancellor made the following determination regarding Julia's retirement accounts:

Both Steven and Julia have advanced degrees and therefore an ability to earn. However, because Steven has stated the desire to return to school to earn a teaching license, and Julia is currently working as a nurse practitioner, Julia's current earning capacity is much higher than Steven's. Julia also has the income and funds available to voluntarily contribute twenty percent (20%) of her income from West Jefferson to her retirement. This contribution is significantly more than required, and a much greater than Steven is saving towards his retirement through his PERS account.

¶ 45. Next, the chancellor set forth a schedule distributing the marital assets. Under Julia's assets, the chancellor listed the $56,484.90 from the withdrawals from retirement as well as $8,500, which constituted one-half of her Empower account. The chancellor awarded Steven one-half of Julia's Empower account, amounting to $8,500.

¶ 46. As stated, Julia bore the "the burden to demonstrate to the court [an] asset's nonmarital character[,]" which requires going "beyond a mere demonstration that the asset was acquired prior to marriage." Wheat , 37 So.3d at 640 (¶ 26). Julia admitted that she did not produce a statement for her Empower account in discovery, nor did she produce a statement showing the value of the PERS account on the date of her 2003 marriage to Steven. Therefore we cannot say that the chancellor abused his discretion in classifying as marital property the money Julia withdrew from her PERS retirement account and the contributions she made to her Empower 401K after the entry of the order for separate maintenance.

IV. Attorney's Fees

¶ 47. Julia also argues that the chancellor erred in awarding Steven attorney's fees. Julia maintains that during trial, her counsel stipulated to the reasonableness of the amount of Steven's attorney's fees, but not to the appropriateness of awarding fees. Julia asserts that the testimony at trial reflected that Steven had been paying for his attorney's fees without substantial hardship. Julia also argues that the entirety of the equitable distribution and rehabilitative alimony awarded to Steven leaves him with the ability to pay his attorney's fees.

¶ 48. "Attorney's fees may only be awarded to a party who has shown an inability to pay his or her own fees." Evans v. Evans , 75 So.3d 1083, 1089 (¶ 22) (Miss. Ct. App. 2011) (citing Voda v. Voda , 731 So.2d 1152, 1157 (¶ 29) (Miss. 1999) ). When awarding attorney's fees, a chancellor should make specific findings regarding the recipient's inability to pay. Evans , 75 So.3d at 1089 (¶ 22) (citing Hankins v. Hankins , 729 So.2d 1283, 1286 (¶ 13) (Miss. 1999) ). Although "reluctant to disturb a chancellor's discretionary determination [as to] whether or not to award attorney's fees ...," Mississippi appellate courts have done so when the record clearly establishes a party's financial ability to pay his or her own attorney's fees. Watson v. Watson , 724 So.2d 350, 356-57 (¶¶ 29-30) (Miss. 1998) (quoting Geiger v. Geiger , 530 So.2d 185, 187 (Miss. 1988) ); Jones v. Jones , 155 So.3d 856, 866 (¶¶ 37-38) (Miss. Ct. App. 2013) ; Duncan v. Duncan , 815 So.2d 480, 485 (¶¶ 17-18) (Miss. Ct. App. 2002).

¶ 49. In addressing the issues of Steven's attorney's fees, the chancellor found the following:

Steven has requested reimbursement for attorney's fees. The [c]ourt notes Steven's balances in his above enumerated retirement accounts and finds that Steven should not be required to liquidate those accounts in order to pay for his attorney's fees. The [c]ourt finds that Steven is unable to pay his attorney's fees and related costs and therefore awards him the same in the amount of $8,540.75 to be paid by Julia.

¶ 50. Steven testified at trial that he had already paid his attorney $3,250 and had agreed to pay his attorney $250 a month until the total balance of $8,540.75 was satisfied. On his financial declaration, Steven provided his monthly expenses, which included the monthly $250 payment to his attorney. Steven also set forth other monthly expenses, including the following less-than-essential expenses: $196.75 for entertainment, $255 for church donations, $66.67 for other charitable donations, and $55 in pet expenses. In awarding Steven rehabilitative alimony, the chancellor stated the following:

Steven's monthly expenses exceed his monthly income by $898.89. The award to Steven of $2,000 per month in rehabilitative alimony permits him to meet this monthly deficit[ ] and provides an additional $1,011.11 per month to assist him to transition to financial independence as a school teacher or in another occupation.

Thus, because Steven included the $250 a month in attorney's fees in his listed expenses, the $2,000 a month in rehabilitative alimony should presumably also cover the attorney's fees.

¶ 51. The chancellor's judgment itself is void of any specific factual findings that demonstrate Steven's inability to pay his attorney's fees. To the contrary, the record reflects not only that Steven has the ability to pay his attorney's fees, but also that he had in fact already paid $3,250 of the $8,540.75 balance. Where a party is able to pay his attorney's fees, including in situations where the money to pay attorney's fees has been borrowed, an award of attorney's fees is not appropriate. Meador v. Meador , 44 So.3d 411, 421 (¶¶ 40-42) (Miss. Ct. App. 2010). In the present case, we find that the chancellor abused his discretion by awarding $8,540.75 in attorney's fees to Steven. We therefore reverse and render the chancellor's judgment so as Julia is not required to pay Steven's attorney's fees in this regard.

¶ 52. Furthermore, on appeal, Steven filed a motion requesting that the appellate court award him attorney's fees in the amount of $10,602 that Steven incurred in replying to Julia's appeal. The supreme court entered an order passing Steven's motion for consideration with the merits of the appeal. "When allowed, this Court has generally granted attorney's fees in the amount of one-half of what was awarded in the chancery court." Esplin v. Esplin , 224 So.3d 102, 106 (¶ 13) (Miss. Ct. App. 2016). We determine an award of attorney's fees "based on necessity rather than entitlement." Id.

¶ 53. Because we find that the chancellor erred in determining that Steven was unable to pay his attorney's fees due to his limited financial resources, we therefore deny Steven's request for attorney's fees on appeal.

¶ 54. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      An order denying Julia's motion for an amended judgment notwithstanding the verdict, or, in the alternative, a new trial, does not appear in the record. The record does contain a February 24, 2017 order addressing Julia's motion to reconsider the judgment of divorce and Steven's motion to correct the judgment.

      This motion does not appear in the record.

      Prior to the supreme court's ruling in Mallery , the supreme court held that "[a] notice of appeal filed before the disposition of any of the above motions[,] including Rule 59(e) motions[,] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of a motion[.]" Bruce v. Bruce , 587 So.2d 898, 901 (Miss. 1991).

      Julia's counsel stipulated to the reasonableness of the amount of Steven's attorney's fees. Thus, an analysis of the McKee factors is unnecessary. See McKee v. McKee , 418 So.2d 764, 767 (Miss. 1982).


source: Caselaw Access Project

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

license: Public Domain

text:
    Rebecca Pate GLASS, Appellant v. CITY OF GULFPORT, Mississippi, Appellee
    NO. 2017-CA-00510-COA
    Court of Appeals of Mississippi.
    November 13, 2018
    ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY, Gulfport
    ATTORNEY FOR APPELLEE: JEFFREY S. BRUNI, Gulfport
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Rebecca Pate Glass appeals the circuit court's dismissal of her case for failure to prosecute pursuant to Mississippi Rule of Civil Procedure 41(d). We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 22, 2015, Glass filed a complaint in the Harrison County Circuit Court and asserted state- and federal-law claims related to the City of Gulfport's alleged negligent operation and maintenance of a drainage system. The City removed the case to federal court, which ultimately dismissed Glass's federal-law claims and remanded the case back to the circuit court on July 7, 2015.

¶ 3. On July 14, 2015, the City filed a motion to dismiss all remaining claims. Ten days later, on July 24, 2015, Glass filed a "Motion for [an] Extra Ten Days" to respond to the City's motion to dismiss. No order was ever entered on Glass's motion. It is undisputed that Glass never set her motion for a hearing and did not file her response within the requested ten days.

¶ 4. Approximately 550 days later, on February 1, 2017, the circuit clerk filed a clerk's motion to dismiss for want of prosecution. Notice of the motion was sent to both parties. Glass was advised that her case would be dismissed "unless within [t]hirty (30) [d]ays from the date of th[e] notice, action of record [wa]s taken or written application [wa]s made to the court and good cause shown why such case should not be dismissed."

¶ 5. On February 3, 2017, Glass filed a response to the clerk's motion to dismiss for want of prosecution and asserted the following:

1. The [c]lerk's [m]otion to [d]ismiss was filed on February 1, 2017.
2. There remains a pending [m]otion to [d]ismiss filed by [the] City ....
3. [Glass] wishes to proceed with this case and conduct discovery herein.
4. [Glass] would submit that good cause has been shown for this case to remain on the [c]ourt's docket.
5. This [r]esponse is brought in the interests of justice and not for purposes of delay.

Glass requested that her cause of action "remain active on the [c]ourt's docket."

¶ 6. The circuit court found Glass failed to show good cause for the matter to remain on its active docket. Therefore, the circuit court granted the clerk's motion and dismissed Glass's case without prejudice pursuant to Rule 41(d). Glass now appeals and argues the circuit court erroneously dismissed her case.

STANDARD OF REVIEW

¶ 7. "Any court of law or equity may exercise the power to dismiss for want of prosecution." Cucos, Inc. v. McDaniel , 938 So.2d 238, 240 (¶ 5) (Miss. 2006). "This power, inherent to the courts, is necessary as a means to the orderly expedition of justice and the court's control of its own docket." Id. (internal quotation marks omitted). "This Court will not disturb a [circuit] court's ruling on a dismissal for want of prosecution unless it finds an abuse of discretion." Id.

ANALYSIS

¶ 8. " Rule 41(d) allows the court to dismiss an action involuntarily for dismissal for want of prosecution as a penalty for dilatoriness." Guidry v. Pine Hills Country Club Inc. of Calhoun Cty. , 858 So.2d 196, 198 (¶ 8) (Miss. Ct. App. 2003). Pursuant to Rule 41(d)(1) :

In all civil actions wherein there has been no action of record during the preceding twelve months, the clerk of the court shall mail notice to the attorneys of record that such case will be dismissed by the court for want of prosecution unless within thirty days following said mailing, action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case. If action of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice.

¶ 9. "Because the consequence of Rule 41(d)(1) is dismissal, it is directed to plaintiffs in civil actions." Cascio v. Alfa Mut. Ins. Co. , 164 So.3d 452, 458 (¶ 26) (Miss. Ct. App. 2013). "For the case to remain on the docket, [the plaintiff] must either 'take action of record or show good cause as to why his claim should not be dismissed.' " Id. (quoting Pinson v. Grimes , 42 So.3d 650, 652 (¶ 8) (Miss. Ct. App. 2010) ).

¶ 10. "There are no Mississippi cases that precisely define the term 'action of record.' " Id. at 459 (¶ 29). But an action of record has been characterized as one that "advance[s] the case to judgment." Id. at (¶ 30). "Pleadings, discovery requests, and deposition notices are 'actions of record.' " M.R.C.P. 41(d) advisory committee's note.

¶ 11. Glass first asserts her response to the clerk's motion to dismiss is a "pleading" and a "written [m]otion requesting discovery," thereby constituting an action of record. We disagree.

¶ 12. Mississippi Rule of Civil Procedure 7(a) defines a "pleading" as follows:

a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who is not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.

Pursuant to Mississippi Rule of Civil Procedure 7(b)(1), a "motion ... shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought."

¶ 13. Here, Glass's response to the clerk's motion to dismiss is neither a "pleading" nor a " '[m]otion' requesting discovery," as defined and discussed in Rules 7(a) and 7(b)(1). The response, although in writing, is not in reply to the City's earlier pleading, does not state with particularity the grounds for discovery, and does not seek action by the City or relief from the circuit court. Instead, Glass's response is simply that - a response to the clerk's motion to dismiss, with nothing more than bare assertions, conclusory statements, and a request "to remain active on the [c]ourt's docket."

¶ 14. Additionally, Glass's response to the clerk's motion to dismiss does not "advance the case to judgment." Cascio , 164 So.3d at 459 (¶ 30). Indeed, the response fails to "move the case closer to a judgment on the merits." See Guidry , 858 So.2d at 199 (¶ 13) (finding that Guidry's "motion to remain on the active docket does nothing to move the case closer to a judgment on the merits.").

¶ 15. Glass claims that by "explaining to the [circuit court] that [the City's motion to dismiss] has not yet been ruled upon," this somehow advances the case to judgment, thereby constituting an action of record. But Glass fails to show what, if any, steps she took to bring the pending motion to the circuit court and/or opposing counsel's attention. Glass cannot sit by idly for over 550 days and then rely on a pending motion, of which she was aware, to prevent dismissal under Rule 41(d). Overall, we find Glass's response to the clerk's motion to dismiss, although filed of record, does not constitute an "action of record" for purposes of Rule 41(d).

¶ 16. Glass next asserts she showed good cause as to why her case should not be dismissed. However, in her response to the clerk's motion to dismiss, Glass offers no explanation for her failure to diligently pursue her case for over 550 days. Instead, Glass refers to the City's pending motion to dismiss. Interestingly, Glass fails to mention that following the City's motion to dismiss, she moved for an "extra ten days" to respond to the motion. The record reflects that Glass's motion for additional time was filed in July 2015, more than eighteen months before the clerk's motion to dismiss. At no time during that eighteen-month period did Glass request a hearing on her pending motion or pursue resolution of the motion. Moreover, Glass did not file a response to the City's motion within the requested ten days, nor at any time prior to or after the clerk's motion to dismiss. Additionally, despite Glass's "wish[ ] to proceed ... and conduct discovery," no discovery requests were ever propounded at any time during litigation.

¶ 17. As Glass failed to take action of record or show good cause, her case was properly dismissed without prejudice for the failure to prosecute pursuant to Rule 41(d).

¶ 18. AFFIRMED.

LEE, C.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., NOT PARTICIPATING.

      The motion was refiled July 15, 2015, because certain pages were electronically filed facing the wrong direction.

      A "responsive pleading" is defined as "[a] pleading that replies to an opponent's earlier pleading." Black's Law Dictionary (7th ed. 2000).


author: TINDELL, J., FOR THE COURT:

text:
    Kimberlee WILLIAMS, Appellant v. LIBERTY MUTUAL FIRE INSURANCE COMPANY or Liberty Mutual Group Inc., Appellee
    NO. 2017-CA-01019-COA
    Court of Appeals of Mississippi.
    November 20, 2018 Rehearing Denied March 5, 2019
    ATTORNEY FOR APPELLANT: DRAYTON D. BERKLEY
    ATTORNEY FOR APPELLEE: CLIFFORD KAVANAUGH BAILEY III, RIDGELAND.
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. On appeal, this Court is tasked with the interpretation and use of Tennessee law in a Mississippi court. Tennessee resident Kimberlee Williams seeks in Mississippi what she cannot legally obtain in Tennessee. Although Williams's appeal only concerns her insurer, Liberty Mutual, this controversy began in 2011 with an automobile accident in Tennessee between two Tennessee residents, Williams and Lindsey Stafford.

¶ 2. Williams alleged Stafford caused her damages. Stafford has $25,000 in liability insurance. Williams, on the other hand, has $100,000 in uninsured motorists (UM) coverage under her Liberty Mutual policy. Williams filed suit against Stafford and Liberty Mutual in the DeSoto County Circuit Court.

¶ 3. Williams argues that, due to Stafford's status as an underinsured motorist, Liberty Mutual is liable to her for damages under the UM provisions of her Liberty Mutual insurance policy. Liberty Mutual counters Williams's arguments with two points. First, Williams was unable to obtain personal jurisdiction over Stafford in Mississippi and, as such, allowed the statute of limitations in Tennessee to lapse. Thus, Williams no longer has a legal right to recover from Stafford in either Tennessee or Mississippi. Second, to trigger coverage for Williams under her Tennessee UM insurance rider, the policy terms require a legal right to recover against the underinsured driver. Thus, without a right to recover from Stafford, Liberty Mutual has no obligation to pay UM benefits to Williams.

¶ 4. The circuit court granted summary judgment to Liberty Mutual, agreeing with Liberty Mutual that without the legal entitlement to recover from Stafford, Williams is without the right to recover UM benefits from Liberty Mutual. Williams appealed. The overriding issue on appeal is whether under Tennessee law an insured can bring a direct action against one's own UM benefits carrier when the insured no longer has a viable legal claim against an underinsured driver. This Court affirms the circuit court's grant of summary judgment.

FACTS

¶ 5. Liberty Mutual issued an automobile policy to Williams providing $100,000 in UM bodily benefits per person. The policy was issued to Williams in Tennessee and included a Tennessee UM insurance rider. On December 15, 2011, Williams and Stafford were involved in an automobile accident in Tennessee. Both Williams and Stafford were Tennessee residents. On December 17, 2012, Williams filed suit against Stafford in the DeSoto County Circuit Court. Williams alleged Stafford negligently caused the accident and claimed that Stafford was a Mississippi resident.

¶ 6. One hundred and twenty days after filing suit, Williams had not yet served Stafford. However, on April 26, 2013, the circuit court granted Williams an additional 120 days to serve Stafford (until August 2013). In May 2013, Williams first served Stafford with the summons and complaint in Tennessee. Stafford appeared in the case and moved to dismiss for lack of personal jurisdiction. Stafford argued that she was a Tennessee resident and that the circuit court lacked personal jurisdiction over her. In September 2013, Williams amended her complaint to add Liberty Mutual, seeking to recover UM benefits, and asserted a bad faith extra-contractual claim. Liberty Mutual responded with a motion to dismiss based on the doctrine of forum non conveniens.

¶ 7. Stafford's motion to dismiss was set for September 9, 2013. Stafford appeared in the circuit court on an unrelated criminal matter on that day. At Stafford's appearance in the criminal matter, Williams served Stafford with process in Mississippi.

The hearing on Stafford's motion to dismiss was continued, and both Stafford's and Liberty Mutual's motions were heard on November 18, 2013. The circuit court granted both motions, dismissing the complaint against Stafford for lack of personal jurisdiction, and dismissing the complaint against Liberty Mutual without prejudice. The circuit court based Liberty Mutual's dismissal on forum non conveniens, subject to the stipulation that Liberty Mutual waive its statute-of-limitations defense if Williams refiled her action in another forum. Williams did not refile suit against Liberty Mutual or Stafford in Tennessee or another forum. She appealed the dismissals, and that appeal was determined by this Court.

¶ 8. Upon remand, Liberty Mutual filed a motion for summary judgment arguing that Williams's failure to serve Stafford prior to the running of the applicable one-year Tennessee statute of limitations precluded Williams from receiving UM benefits because, under Tennessee law and pursuant to the terms of the Liberty Mutual UM policy, Williams was no longer "legally entitled to recover" against Stafford. The circuit court granted Liberty Mutual's motion and issued summary judgment in favor of Liberty Mutual. The circuit court based its judgment on the application of the Tennessee UM statute, the Tennessee statute of limitations for personal injuries, and Tennessee case law. Tenn. Code Ann. §§ 28-3-104(a) (Supp. 1993) & 56-7-1201 (Supp. 1993); Winters v. Jones , 932 S.W.2d 464, 465 (Tenn. Ct. App. 1996) ; Gafford v. Caruthers , 91C-2709, 1994 WL 420917, at *2 (Tenn. Ct. App. Aug. 12, 1994). Williams appeals.

STANDARD OF REVIEW

¶ 9. We review grants or denials of summary judgment motions de novo. Estate of Hudson v. Yazoo City , 246 So.3d 872, 876 (¶ 29) (Miss. 2018). Whereas here, if there is no genuine issue of material fact, we consider only whether the moving party is entitled to summary judgment as a matter of law. See City of Magee v. Jones , 161 So.3d 1047, 1049 (¶¶ 6-7) (Miss. 2015).

ANALYSIS

¶ 10. Williams seeks to overturn the circuit court's dismissal, citing four grounds: (1) the circuit court misapprehended and misapplied the correct construction of Williams's uninsured motorist policy to determine that she was not legally entitled to recover insured motorist benefits; (2) the circuit court erred in finding that the expiration of the Tennessee statute of limitations barred any claim filed in Mississippi courts; (3) the circuit court erred in finding that Liberty Mutual had standing to raise the effect of the expiration of a Tennessee statute of limitations for Williams's claim against Stafford; and (4) the circuit court erred in granting summary judgment to Liberty Mutual.

I. CONFLICT OF LAWS

¶ 11. The material facts are agreed upon. Tennessee has the most significant relationship to the matter. Mississippi has no real interest in it. Williams contracted for her coverage with Liberty Mutual in Tennessee. The drivers of both vehicles, Williams and Stafford, were Tennessee residents. The accident occurred in Tennessee. Yet, Williams elected to file suit in Mississippi and created the illusion of a conflict when one does not exist.

¶ 12. Tennessee, like Mississippi, uses the "most significant relationship" approach of the Second Restatement of Conflict of Laws (1971) for choice-of-law analysis. Hataway v. McKinley , 830 S.W.2d 53, 60 (Tenn. 1992). "In an action for personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship ... to the occurrence and the parties ...." Id. (emphasis added). And, in Mississippi, "[c]hoice of law analysis arises only when there is a true conflict between the laws of two states, each having an interest in the litigation ." Zurich Am. Ins. Co. v. Goodwin , 920 So.2d 427, 432 (¶ 8) (Miss. 2006) (emphasis added).

¶ 13. Under either analysis, this is not a case where Mississippi, as the "forum state," has any real interest in the parties, the cause of action, or the interpretation of Tennessee's UM laws. The only contact the parties had with the State of Mississippi occurred when Williams, as plaintiff, chose to file suit in Mississippi. The choice-of-law principles of both Tennessee and Mississippi support the circuit court's application of Tennessee statutory interpretation and case law to Williams's cause of action.

II. TENNESSEE LAW

A. For Williams to recover UM benefits from Liberty Mutual, she must show that she is legally entitled to recover from Stafford.

¶ 14. The parties agree, and the precedent set by our Supreme Court dictates, that Tennessee substantive law applies to contract construction of the Liberty Mutual insurance policy issued in Tennessee. Thus, Tennessee law governs the determination of coverage under Williams's Liberty Mutual UM policy. O'Rourke v. Colonial Ins. Co. , 624 So.2d 84, 86-87 (Miss. 1993) ; Boardman v. United Services Auto. Ass'n , 470 So.2d 1024, 1031 (Miss. 1985).

¶ 15. At the time of the accident, Liberty Mutual insured Williams under a policy which provided uninsured/underinsured motorist benefits through a Tennessee UM rider. The relevant provisions of the UM policy provided:

UNINSURED MOTORISTS BODILY INJURY COVERAGE provides benefits up to the limits stated on your policy for damages of bodily injury, sickness or disease, including death, which you are legally entitled to recover from owners or operators of ... [a] motor vehicle for which the sum of all limits of liability available to the insured is less than the applicable limit of liability for this coverage ....

(Emphasis added).

¶ 16. Consistent with Tennessee law, the language of Liberty Mutual's UM rider tracks the language of Tennessee's UM statute, Tennessee Code Annotated section 56-7-1201(a), which provides:

Every automobile liability insurance policy delivered, issued for delivery or renewed in this state, covering liability arising out of the ownership, maintenance, or use of any motor vehicle ... shall include uninsured motorist coverage, subject to provisions filed with and approved by the commissioner, for the protection of persons insured under the policy who are legally entitled to recover compensatory damages from owners or operators of uninsured motor vehicles ....

(Emphasis added). This statute "sets out the procedures a party must follow in order to bring its uninsured motorist carrier into a case against a tortfeasor." Bates v. Greene , 544 S.W.3d 345, 350 (Tenn. Ct. App. 2017), appeal denied (Nov. 17, 2017).

¶ 17. Under the Tennessee UM act, "legal entitlement to recovery" means a legal liability that the courts will enforce as between litigants. Glover v. Tenn. Farmers Mut. Ins. Co. , 225 Tenn. 306, 468 S.W.2d 727, 729-30 (1971). The Tennessee Supreme Court stated, "[i]t is fundamental that the legal liability of one person to another can be ascertained only in an action brought against such person by the other in a court of competent jurisdiction." Id. (emphasis added).

¶ 18. Under Tennessee law, the intent and purpose of the uninsured motorist act is to provide some protection to the insured, "by making the insurance carrier stand as the insurer of the uninsured motorist," with two requirements: (1) the suit has to be brought against the uninsured motorist; and (2) the insurer is "bound by the judgment rendered in that suit, to the extent of its policy limits, where the insurer was afforded the statutory opportunity to defend the uninsured motorist." Glover , 468 S.W.2d at 730. The uninsured/underinsured motorist must have been found legally obligated to pay the plaintiff's damages before a claim against the insurer exists; without that finding, plaintiff has no claim. Prewitt v. Brown , 525 S.W.3d 616, 621 (Tenn. Ct. App. 2017).

¶ 19. Applying the Tennessee UM statute, and Tennessee case law interpreting that statute, to the language of Williams's UM policy, for Williams to recover UM benefits from Liberty Mutual, she must show some legal entitlement to recovery from Stafford.

B. The expiration of the Tennessee statute of limitations bars Williams's legal entitlement to recovery against Stafford.

¶ 20. The statute of limitations for personal injuries in Tennessee is one year from the date of injury. McCroskey v. Bryant Air Conditioning Co. , 524 S.W.2d 487, 491 (Tenn. 1975) (citing Albert v. Sherman , 167 Tenn. 133, 67 S.W.2d 140 (1934) ). Applying Tennessee's one-year statute of limitations to Williams's cause of action, December 17, 2012 was the last day that suit could properly be filed in Tennessee against Stafford. As delineated above, Williams made no effort to file suit against Stafford in Tennessee and, as shown in this Court's ruling on her prior appeal, Williams wholly failed to obtain sufficient personal jurisdiction over Stafford to maintain an action against Stafford in a Mississippi court. Therefore, Williams has no legal right to recover against Stafford in Tennessee or Mississippi.

¶ 21. In interpreting the Tennessee UM statute, Tennessee UM policy language, and the Tennessee personal injury statute of limitations, the Tennessee Court of Appeals has held on more than one occasion that "because the statute of limitations had run against the ... defendant, then the plaintiff could not maintain an action against her uninsured motorist carrier." Lane v. Montgomery , No. E2006-01643-COA-R3CV, 2007 WL 1860903, at *5 (Tenn. Ct. App. June 28, 2007) (quoting Lipscomb v. Doe , 32 S.W.3d 840, 848 n.7 (Tenn. 2000) ); Hooper v. State Farm Mutual Automobile Ins. Co. , 682 S.W.2d 505, 508 (Tenn. App. 1984). In a Tennessee case similar to Williams's case, Winters , 932 S.W.2d at 465-66, a car-accident plaintiff failed to obtain proper service upon the alleged wrongful driver within Tennessee's one-year statute of limitations for personal injury, thus barring any suit against that driver. The Tennessee court held therein that the plaintiff had no cause of action against her UM insurer "greater than her cause of action against [the] defendant" and granted summary judgment to the plaintiff's UM insurer. Id. at 465.

¶ 22. Allowing the Tennessee statute of limitations to lapse and being unable to obtain personal jurisdiction over Stafford in Mississippi, Williams should not be allowed to continue her suit against Liberty Mutual in Mississippi. Yet here, that is what Williams attempts to do. Williams filed her complaint in Mississippi on the last day her complaint could have been filed under Tennessee's one-year statute of limitations, December 17, 2012. The summons and complaint were served on Stafford on May 15, 2013, in Tennessee, but this service did not confer jurisdiction in Mississippi. Thereafter, Stafford was not personally served in Mississippi until September 9, 2013, and that service did not confer personal jurisdiction, under the Mississippi long-arm statute, over Stafford. Miss. Code Ann. § 13-3-57 (Supp. 2014). Thus, Williams allowed her cause of action against Stafford to lapse in Tennessee and fail in Mississippi. We believe Tennessee substantive law and the Tennessee UM statute require a more diligent effort on Williams's part to preserve her rights, and the rights of her insurer, against the tortfeasor. Winters , 932 S.W.2d at 465.

C. Liberty Mutual has standing to raise the statute of limitations defense applicable to Stafford.

¶ 23. Williams argues that the circuit court erred in finding that Liberty Mutual had standing to raise the effect of the expiration of a Tennessee statute of limitations for Williams's claim against Stafford. However, the only case cited by Williams in support of this point is Coleman v. American Manufacturers Mutual Ins. Co. , 930 F.Supp. 255 (N.D. Miss. 1996). In Coleman , the Northern District of Mississippi examined the "legally entitled to recover" policy language in Mississippi UM policies under the Mississippi UM statute. Coleman , 930 F.Supp. at 262. This disregards the agreed upon fact that Williams's UM policy was issued in Tennessee and contained a Tennessee UM rider. Thus, Coleman is inapplicable and our discussion above reflects the meaning of "legally entitled to recover" policy language in Tennessee UM policies under the Tennessee UM statute.

¶ 24. Addressing the merits of Williams's standing argument, we find this issue to be without merit. The doctrine of "standing" concerns "whether a particular litigant is entitled to have a court decide the merits of a dispute or of particular issues." Am. Civil Liberties Union of Tenn. v. Darnell , 195 S.W.3d 612, 619 (Tenn. 2006). This doctrine prevents courts from adjudicating "an action at the instance of one whose rights have not been invaded or infringed." Mayhew v. Wilder , 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001). "Persons whose rights or interests have not been affected have no standing and are, therefore, not entitled to judicial relief." State v. Harrison , 270 S.W.3d 21, 28 (Tenn. 2008).

¶ 25. Under Tennessee law, plaintiffs may not maintain a direct-action lawsuit against their uninsured motorist carrier where a statute of limitations has run against the uninsured motorist. Hooper , 682 S.W.2d at 506-08. Thus, Williams's standing argument is wholly without merit. Williams's suit is a direct action against her uninsured motorist carrier, Liberty Mutual. As discussed herein above, it is an action specifically proscribed under Tennessee law. Liberty Mutual's rights or interests are affected; Williams seeks damages from Liberty Mutual in a suit she could not maintain in Tennessee. Therefore, Liberty Mutual has standing and is, therefore, entitled to judicial relief. Id.

CONCLUSION

¶ 26. The relevant provisions of the UM policy provided UM benefits to Williams only in that amount to which she is legally entitled to recover. Tennessee law is clear on its holdings regarding the specific language of Williams's UM coverage. When the uninsured driver is known, the UM policy carrier has no obligation to pay benefits to its insured unless its insured has protected a legal right to recover from the uninsured driver. Here, the statute of limitations precludes any legal recovery from Stafford. Consequently, Williams lost her right to recovery from Stafford. Without a legal entitlement to recovery against Stafford, Tennessee law is clear that Williams is without an entitlement to recovery from Liberty Mutual for UM benefits. Thus, we find no error in the circuit court's judgment.

¶ 27. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      In Tennessee, as in Mississippi, the term "uninsured" motorist embraces the "underinsured" motorist as well. Dixie Ins. Co. v. State Farm Mut. Auto. Ins. Co. , 614 So.2d 918, 920 (Miss. 1992) ; Clark v. Shoaf , 302 S.W.3d 849, 856 (Tenn. Ct. App. 2008).

      See this Court's opinion in Williams v. Liberty Mutual , 187 So.3d 166 (Miss. Ct. App. 2015), for our analysis of Williams's prior appeal on the issue of personal jurisdiction and Stafford's residency/domicile. Stafford's dismissal was not based on a running of the statute of limitations.

      In Williams's prior appeal, this Court affirmed the circuit court's dismissal of Stafford for lack of personal jurisdiction but reversed and remanded Williams's case against Liberty Mutual. In summary of that appeal, this Court found that the language of the stipulation for Liberty Mutual to waive any statute-of-limitations defense complied with Mississippi's forum-non-conveniens (FNC) statute, Mississippi Code Annotated section 11-11-3(4)(b) (Supp. 2014). But, the effect of the dismissal left Williams without an alternative forum and thus did not meet the FNC statute's demands.

      The accident occurred on December 15, 2011. One year from that date, December 15, 2012, fell on a Saturday which gave Williams until Monday, December 17, 2012 to file suit against Stafford. See Williams v. Liberty Mut. Fire Ins. Co. , 187 So.3d 166, 173 (¶¶ 29, 31) (Miss. Ct. App. 2015).


author: WESTBROOKS, J., FOR THE COURT:

text:
    Marsha P. NELSON, Appellant v. James A. NELSON, Appellee
    NO. 2016-CA-01801-COA
    Court of Appeals of Mississippi.
    November 20, 2018
    ATTORNEYS FOR APPELLANT: SHANNON MICHELLE JONES, ASHLEY D. JONES
    ATTORNEY FOR APPELLEE: NITA LOUISE CHASE, Biloxi
    BEFORE IRVING, P.J., WESTBROOKS AND TINDELL, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Marsha P. Nelson appeals the November 22, 2016 judgment and the December 9, 2016 "qualifying court order" of the Chancery Court of Harrison County. Finding no error in the chancery court's ruling after a review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. James A. Nelson and Marsha married on August 4, 1991. During their marriage, they had two daughters-Jasha and Jada. Around November 2008, the parties separated, and on April 6, 2010, their divorce was granted on the ground of irreconcilable differences. The court also approved a property settlement agreement for both James and Marsha. Less than a year later, the parties began filing motions, petitions, and complaints against each other for various reasons due to monetary issues arising from the property settlement agreement.

¶ 3. On February 25, 2011, Marsha filed a motion for modification or clarification of judgment of the divorce and property settlement agreement. Marsha alleged that she filed her motion because James refused to cooperate in establishing the correct percentage of the retirement funds that she was to receive. After various attempts to obtain service on James, Marsha succeeded in obtaining a Rule 81 summons on him in August 2011. This motion is what seemingly triggered the litigation battle between James and Marsha that lasted from 2011 through 2016.

¶ 4. On November 4, 2011, James responded with an answer and affirmative defenses. He also filed a counterclaim alleging that Marsha had failed and refused to comply with the court's April 6, 2010 judgment. James averred that Marsha should be held in willful, wanton, and contumacious contempt for her refusal to provide him with one of the Lladros figurines and a stereo stand; failure to pay any of the expenses associated with the parties'

business; failure to return the approximate sum of four thousand dollars ($4,000) from the business account she used for her own personal use; failure to disclose the status of the parties' joint 2009 federal and state tax refund; failure to pay the outstanding 2009 tax liability, plus penalties, if any; failure to equally share any tax refund for 2009, plus interest; and failure to compensate him two thousand five hundred fifty dollars ($2,550) representing his equity in the sale of one of their rental homes, as well as one-half (1/2) of the amount he would have received if the Martin Luther King Blvd. property were sold at the time of an offer.

¶ 5. In an attempt to resolve the issues filed by the parties, several conferences and hearings were held in November 2011, August 2012, November 2012, March 2013, August 2013, November 2013, April 2014, April 2015, and September 2016. During these proceedings, several of the issues from both parties were resolved-including what percentage of James's retirement was to be paid to Marsha. A bifurcated trial was held to adjudicate the remaining unresolved issues-the first part in December 2014 and the second part in October 2015.

¶ 6. On November 22, 2016, the chancery court entered a judgment of modification and contempt. The following applicable excerpts are from the chancellor's findings:

During the trial, Marsha withdrew $5,150 from the business account for personal use. Because of the withdrawals, James was awarded $2,575-half of the money Marsha withdrew. James also paid a total of $12,150.86 in expenses for Nelson's Philly Cheese Steak, and the chancellor ordered Marsha to pay $6,075.43 for her half of those expenses. The chancellor ordered that both Thrift Savings Plans should be equally split. As a result, James was awarded $13,073.54. James was also awarded $1,547.22 for the half of the 2009 state and federal tax refund that he did not receive from Marsha.

¶ 7. The qualifying order issued by the chancellor on December 9, 2016, accomplished the split of the retirement savings of $13,073.54 ordered on June 29, 2016. James was also awarded retroactive child support in the amount of $7,530 for the period of February 2013 to November 2013; and $3,135 for overpayment of child support for October 2012 to November 2013. The court also awarded James $12,000 in attorney's fees. James was also granted control over the distribution of money in Jasha's college fund until the month of her college graduation. Marsha was awarded $3,657.26 in business expenses that she incurred and $19,441 for the division of military benefits both she and James had accrued from 2011-2013.

¶ 8. Marsha now asserts that the chancery court erred in the calculation of child support, in awarding James $13,073.54 from her thrift savings plan, and in awarding James the $12,000 in attorney's fees. Marsha timely appeals.

STANDARD OF REVIEW

¶ 9. This Court has a limited standard of review in domestic-relations cases, and "under the standard of review utilized to review a chancellor's findings of fact, particularly in the areas of divorce, alimony and child support, this Court will not overturn the chancellor's decision on appeal unless his findings were manifestly wrong."

Ilsley v. Ilsley , 160 So.3d 1177, 1181 (¶ 9) (Miss. Ct. App. 2014). Furthermore, "[t]he distribution of marital assets in a divorce will be affirmed 'if it is supported by substantial credible evidence.' " Id. "The chancellor must have been manifestly wrong or clearly erroneous, or have applied an erroneous legal standard for the findings to be overturned." Williams v. Williams , 224 So.3d 1282, 1284 (¶ 5) (Miss. Ct. App. 2017). "For questions of law, our standard of review is de novo." Id.

DISCUSSION

I. Whether the chancery court erred in awarding James retroactive child support and reimbursement of child support.

¶ 10. Marsha asserts that the chancery court erred in its calculations of child support in awarding James $7,530 in retroactive child support and $3,135 in overpayment of child support. She asserts that the child support repayment should go directly to Jasha and that the court should not have awarded overpayment of child support since James did not specifically request it in his motion. We disagree.

¶ 11. Pursuant to the judgment of the divorce, James was to pay $570 in child support per month for both children. In October 2012, Jasha moved in with James, and he continued to pay child support for both children. James filed a complaint for modification in February 2013, requesting relief for retroactive child support and mentioning overpayment throughout the proceedings, specifically in August 2013, December 2014, and October 2015. The temporary order entered in November 2013 called for both James and Marsha to pay Jasha directly in the amount of $753 because she was leaving for college. However, evidence was presented to the court that showed Jasha had not gone to college yet, and that between October 2012 and November 2013 Jasha was living with James and he was financially supporting her.

¶ 12. A trial court may award retroactive child support dating back to the time in which the motion for modification is filed. See Lawrence v. Lawrence , 574 So.2d 1376, 1384 (Miss. 1991). But, Marsha asserts that the monetary amount due should be paid directly to Jasha and not James. The chancellor weighed the evidence and testimony that Jasha was living with and being taken care of by James from October 2012 to November 2013. The chancellor decided that the temporary order should be changed to a permanent order that called for James to be paid directly. This Court has previously held that

the chancellor, being the only one to hear the testimony of the witnesses and observe their demeanor, is in the best position to judge their credibility. Moreover, since the chancellor is best able to determine the credibility of the witness' testimony, it is not [an appellate court's] province to undermine the chancellor's authority by replacing the chancellor's judgment with our own.

LeBlanc v. Andrews , 931 So.2d 683, 688-89 (¶ 17) (Miss. Ct. App. 2006) (citations and internal quotation marks omitted).

¶ 13. Therefore, we find that the issue regarding retroactive payment is meritless. Marsha also argues that James is not entitled to overpayment of child support because he did not request it in his motion. "Mississippi is a 'notice pleading' state." Bluewater Logistics LLC v. Williford , 55 So.3d 148, 157 (¶ 35) (Miss. 2011). "Under Rule 8, a complaint need only contain 'a short and plain statement of the claim showing that the pleader is entitled to relief,' and 'a demand' for judgment." Id. at 157-58 (¶ 35). "No technical forms of pleading or motions are required." Id. at 158 (¶ 35).

¶ 14. James's overpayment was mentioned specifically in August 2013, December 2014, and October 2015. At the August 2013 conference, the chancellor decided that James was entitled to some repayment, specifically six percent of what he overpaid. During the trial in December 2014, the chancellor stated that James should get fifty percent of what he paid in child support at the time that Jasha moved in with him. Also during that time, in section twenty of the judgment of modification and contempt, Marsha agreed that James should either be paid the entire amount that he overpaid or he should be given a credit in the amount that he overpaid. Likewise, in October 2015, Marsha testified at trial that the amount that James should receive from overpaying may be fourteen percent but she was not sure if he should get fifty percent. Therefore, in making the final determination, the chancellor took into account all of the claims from both parties and decided that James should be repaid for paying child support for two children when one of those children lived with him.

¶ 15. Accordingly, the chancery court was not manifestly wrong in awarding James retroactive child support. This issue is meritless.

II. Whether the chancery court erred in awarding James $13,073.54 from Marsha's thrift savings plan.

¶ 16. Marsha asserts the chancery court erred in awarding James money from her thrift savings plan because the award unjustly enriched James. Marsha argues that James waived the division of the thrift savings plan in their property settlement agreement.

¶ 17. During the hearing in November 2012, the chancellor noted that both James and Marsha had a thrift savings plan at the time of their divorce. James disclosed the amount in his thrift saving plan on his Rule 8.05 financial statement filed in 2009. Marsha, however, did not submit the amount in her thrift savings plan-even though James filed a motion to compel requesting "any and all [of Marsha's] supporting documentation required by Rule 8.05." During the conference on the motion held November 15, 2012, the chancellor ordered Marsha to answer the discovery "totally, completely, and honestly."

¶ 18. James also testified that he knew of Marsha's thrift savings plan; however, he argues that he did not knowingly and voluntarily waive the money in Marsha's thrift savings plan, because the amount of Marsha's thrift savings plan was not disclosed. Marsha admitted that she did not disclose the amount of her plan in the divorce-even though the amount was requested when they disclosed their Rule 8.05 financial statements to the court. James also asserted that his waiver of the division of the thrift savings plan was neither knowing nor voluntary, because Marsha omitted the amount in her plan before they signed the property settlement agreement. The Mississippi Supreme Court has held that "the intentional filing of a substantially false Rule 8.05 financial statement is misconduct that rises above mere nondisclosure of material facts to an adverse party." Trim v. Trim , 33 So.3d 471, 478 (¶ 16) (Miss. 2010).

¶ 19. Marsha maintains that James knew that she did not disclose the amount of her thrift savings plan before he signed the property settlement agreement. But, James informed the chancellor that he would not have agreed to give Marsha part of his retirement income had he known the amount of Marsha's thrift savings plan. Moreover, James filed a motion to compel to order Marsha to provide full and complete responses. The chancellor also noted that Marsha was given ample opportunities to disclose the amount of her thrift savings plan and did not. The chancellor also found that Marsha never had any intentions of disclosing the thrift savings plan because she was not required to do so. "The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts." Id. at 479 (¶ 20). The chancellor found that clear and convincing evidence demonstrated that Marsha intentionally had filed a false Rule 8.05 financial statement that did not include the value of her thrift savings plan. As a result, the chancellor found that Marsha's omission amounted to willful and contumacious contempt.

¶ 20. Accordingly, we find that the chancery court did not err in awarding James $13,073.54 from Marsha's thrift savings plan and find that the property settlement agreement was subject to modification on this issue.

III. Whether the chancery court erred in awarding James attorney's fees.

¶ 21. The record reflects that the chancery court awarded James $12,000 of the $24,000 he sought from Marsha in attorney's fees. Marsha asserts that the court erroneously awarded James attorney's fees.

¶ 22. The chancellor found Marsha in contempt for failing to cooperate in the sale of the MLK property, withdrawing funds from the jointly owned business account for her own personal use, and intentionally failing to disclose her thrift savings plan in her Rule 8.05 financial statement. The chancellor noted that James actually hired an attorney to determine whether Marsha's actions were willful and "contumacious" contempt. "In contempt actions, attorney's fees are awarded to make the plaintiff whole." Vincent v. Rickman , 167 So.3d 245, 249 (¶ 14) (Miss. Ct. App. 2015). "When a party is held in contempt for violating a valid judgment of the court, then attorney's fees should be awarded to the party that has been forced to seek the court's enforcement of its own judgment." Id. at 249-50 (¶ 14). Moreover, "[t]his Court will affirm the factual findings of the chancellor in civil-contempt cases unless manifest error is present." Id. at 250 (¶ 14).

¶ 23. After review of the record, we find no error in the court's award of attorney's fees to James. "Absent [an] abuse of discretion, the chancery court's decision in such matters will generally be upheld." Ilsley , 160 So.3d at 1183-84 (¶ 19). The chancellor also calculated the attorney's fees using the factors set out in McKee v. McKee , 418 So.2d 764, 767 (Miss. 1982). Accordingly, this issue is meritless.

¶ 24. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND TINDELL, JJ., CONCUR. WILSON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      This order is substantively a "Qualified Domestic Relations Order."

      To protect the identity of the minor child, we have chosen to refer to her as "Jada."

      M.R.C.P. 81.

      The November 2016 order also referenced the other judgments of the court issued in December 2015 and June 2016.

      Uniform Chancery Court Rule 8.05.


text:
    John Anthony MANSOUR, George Mansour Jr. and Michael Mansour, Appellants v. Gene G. STOCK, Appellee
    NO. 2017-CA-00283-COA
    Court of Appeals of Mississippi.
    November 20, 2018
    ATTORNEY FOR APPELLANTS: PHILIP MANSOUR JR., GREENVILLE.
    ATTORNEY FOR APPELLEE: JAMES MORTIMER CREWS III, CANTON.
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. John Anthony Mansour, George Mansour Jr., and Michael Mansour filed an action for trespass against Gene Stock (Stock), requesting actual and punitive damages for their injuries. In return, Stock filed a counterclaim asserting that the Mansours had caused injury to his hardwood timber and also sought damages. The Washington County Chancery Court found that the Mansours did not meet their burden of proof, dismissed their claim, and found that Stock did not put on evidence to substantiate his claims. Aggrieved, the Mansours appeal. Finding no error, we affirm.

FACTS

¶ 2. Together, brothers John Anthony Mansour, George Mansour Jr., and Michael Mansour own an eighty-acre tract of land in Washington County, Mississippi. The land was purchased for recreational purposes, specifically to hunt birds, waterfowl, and deer. Portions of the land are submerged in water for most of the year, and as a result, the land was designated as a natural wetland preserve by the federal government. The land is surrounded by 1,800 acres owned by Stock and his family.

¶ 3. During the 2014-15 waterfowl hunting season, the Mansours discovered that a two-to-four-foot-wide ditch had been created on their land, and two pipes had been removed. The two-to-four-foot-wide ditch started on the Mansours' land and extended to the Stock land. The ditch breached the natural levee surrounding the Mansours' land and caused the water on the land to escape. The loss of the water prevented the Mansours from using the land for waterfowl hunting during the 2014-15 hunting season. Although the Mansours did not witness anyone creating the ditch or removing the pipes, they asserted that Stock or someone at the direction of Stock was responsible.

¶ 4. At trial, the Mansour brothers testified, along with Stock, Robert "Walker" Stock, William Thomas McKinley, and several expert witnesses. The Mansours called Walker, Stock's uncle, to testify. Walker testified that Stock had directed him to clear a line of roughly twenty to thirty feet around the property line that separated the Stock and Mansour properties on the Stock side. During his deposition, Walker stated that he was careful to stay away from the Mansour property. At trial, Stock admitted to instructing Walker to clear a roadway approximately twenty feet in width around the perimeter of the land with the intent of creating an identifiable boundary line to prevent trespassing by both parties, but he maintained the clearing was done solely on his property. There was no other evidence presented that there was any other work done on or near the Mansours' land at the instruction of Stock.

¶ 5. In addition to the ditch, the Mansours asserted that the removal of two pipes contributed to the drainage of water off their property. The Mansours maintain that one of the pipes is on their property and that the other is on Stock's property. However, at trial, Stock and his expert surveyor, Melvin Cannatella, testified that both pipes are located on the Stock property, and no evidence other than George Mansour's testimony was submitted to rebut Stock's claim. George Mansour testified that Stock's father gave him permission to place the pipes on Stock's land, but Stock was unaware of this arrangement and found it suspicious considering his family and the Mansours had recently been in easement litigation.

¶ 6. The Mansours also introduced evidence that Stock intended to install a game fence around their property to prevent deer hunting on their land. Stock admitted that he considered installing a game fence, however, after investigating the legality of it changed his mind. In response to their claims, Stock filed a counterclaim asserting that George Mansour and another unidentified individual entered onto his property and damaged his hardwood timber by causing water to escape from the Mansours' land and become trapped among his timber, causing the value to diminish. However, he did not present any evidence at trial to support his assertions.

¶ 7. After considering all of the evidence, the chancery court found that the Mansours offered no proof that they actually saw the water draining off their land or witnessed Stock, or someone under the direction of Stock, digging the ditch in question. The Mansours simply asked the court to infer that Stock had invaded their land, but the chancery court found that even with Stock's admissions surrounding removal of the pipes, his actions did not suffice the cause of action against him. Ultimately, the chancery court found that the Mansours did not meet their burden of proof by a preponderance of the evidence to show that Stock or anyone under the instruction of Stock committed trespass and subsequently did not award damages, actual or punitive. Additionally, the chancellor dismissed Stock's counterclaim because he put forth no proof to substantiate his claims. Aggrieved, the Mansours appeal.

STANDARD OF REVIEW

¶ 8. "This Court has a limited standard of review in appeals from the chancery court." Jones v. Graphia , 95 So.3d 751, 753 (¶ 6) (Miss. Ct. App. 2012). "The standard of review of a chancellor's decision is abuse of discretion." Id. "An appellate court will not disturb the factual findings of a chancellor when supported by substantial evidence unless we can say with reasonable certainty that the chancellor abused [her] discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard." Id. "However, on questions of law, appellate courts employ a de novo standard of review." Id.

DISCUSSION

I. Whether the trial court erred in finding that the Mansours failed to establish sufficient proof of Stock's trespass and resulting damages.

¶ 9. The Mansours assert that circumstantial evidence is sufficient to prove that Stock trespassed onto their land and as a result deprived them of the enjoyment and use of the land for the 2014-15 waterfowl season. This Court has held that "[l]iability for trespass requires proof of: (1) interference with the right of exclusive possession of one's land and (2) an invasion that is the direct result of some act committed by the defendant." Gaw v. Seldon , 85 So.3d 312, 318 (¶ 23) (Miss. Ct. App. 2012) (internal quotation mark omitted). Furthermore, "because trespass is an intentional tort, there must be proof that the trespasser intended to enter upon the particular piece of land in question." Id.

¶ 10. Here, the Mansours claim that the entry onto their land and removal of the pipes constituted a trespass. Although Stock admitted to removing the pipes, Stock, through his own testimony and that of an expert surveyor, diminished their claim by showing that the pipes were on his property and that it was within his rights as a landowner to remove them. As for the ditch, Stock put forth evidence that his trackhoe-bucket shovel was only capable of cutting ditches in six-feet widths; therefore, it would have been impossible for him to have created the two-to-four-foot ditch that the Mansours asserted caused the drainage. This evidence was not rebutted. Accordingly, we find that there was substantial evidence to support the chancery court's finding that the Mansours did not meet their burden of proof, therefore, this issue is meritless.

II. Whether the trial court erred in failing to find that Stock's actions were intentional, malicious, and grossly negligent.

¶ 11. In addition to asserting that circumstantial evidence is sufficient to show trespass, the Mansours maintain that Stock's actions were intentional, malicious, and grossly negligent and consequently provide the basis for their punitive damages claim. The Mississippi Supreme Court has held that, "[p]unitive damages may be awarded as punishment for trespass where the proof shows the trespass was willful, grossly negligent or wanton." R & S Dev. Inc. v. Wilson , 534 So.2d 1008, 1013 (Miss. 1988). However, the supreme court also held that "punitive damages are not recoverable absent an award of actual damages" and, in the case at hand, the Mansours have not proved that Stock trespassed onto their land to receive actual damages nor have they proved that his actions were intentional, malicious, and grossly negligent to receive punitive damages. Prescott v. Leaf River Forest Prod. Inc. 740 So.2d 301, 312 (¶ 25) (Miss. 1999). Accordingly, this issue is without merit.

CONCLUSION

¶ 12. After review of the record, we do not find that the chancery court abused its discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Therefore, we affirm the chancery court's decision.

¶ 13. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND TINDELL, JJ., CONCUR.

      There is a history between the families regarding boundary lines and the usage of land, including one previously addressed by this Court. See Ganier v. Mansour , 766 So.2d 3 (Miss. Ct. App. 2000).

      Walker testified that he recalled, after giving his deposition, that he did remove one pipe but was unclear at the time of the deposition whether it was a beaver dam or a pipe.