IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2022-CA-00183-COA
JESSY N. SMITH APPELLANT
v.
CHRISTOPHER R. SMITH APPELLEE
DATE OF JUDGMENT: 02/08/2022 TRIAL JUDGE: HON. LAWRENCE PRIMEAUX COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: MATTHEW ALLEN BALDRIDGE ATTORNEY FOR APPELLEE: KATHRYN RAE McNAIR NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 02/13/2024 MOTION FOR REHEARING FILED:
BEFORE WILSON, P.J., McDONALD AND LAWRENCE, JJ.
WILSON, P.J., FOR THE COURT:
¶1. In this divorce case, Jessy Smith appeals from the final judgment awarding custody
of her two children to her ex-husband, Christopher Smith (“Smitty”), and dividing the marital
estate. Jessy argues that the chancellor erred by granting custody to Smitty, by awarding her
too little visitation, and by finding that businesses that Smitty started during the marriage
were Smitty’s separate property. We conclude that the chancellor did not err or abuse his
discretion in awarding custody or visitation but erred by classifying one business as Smitty’s
separate property. Therefore, we affirm in part, reverse in part, and remand the case for
further proceedings consistent with this opinion. FACTS AND PROCEDURAL HISTORY
¶2. Smitty and Jessy married in 2007. They had two children during their marriage, a boy
born in 2012 and a girl born in 2015. During the marriage, Smitty owned and operated two
businesses, which are discussed below. Jessy primarily worked as a nurse at Anderson
Regional Medical Center in Meridian. The parties agree that they “separated” around
September 1, 2019, although both continued to live in the marital home. In October 2019,
Jessy filed a complaint for divorce based on alleged habitual cruel and inhuman treatment
or, in the alternative, irreconcilable differences. Smitty filed a counterclaim for divorce
based on adultery or, in the alternative, irreconcilable differences. Jessy moved out of the
marital home around November 1, 2019, and began a romantic relationship with another man
about one month later.
Child Custody and Visitation
¶3. Following a temporary hearing, the chancellor granted the parties temporary joint
legal and physical custody of the children. At trial, the parties submitted hundreds of text
messages between the two of them from before their separation and during the temporary
joint custody period. The chancellor found that “[a]s with every other married couple with
children, the text messages show agreements and disagreements, conflict and consensus,
discussion and dictation, and affection and loathing.” However, the chancellor also noted
that the text messages “illustrate . . . how both parties failed utterly in the exercise of
temporary joint legal custody.”
¶4. During trial, Jessy accused Smitty of being controlling and manipulative and failing
2 to be attentive to the children’s needs. Jessy also testified that Smitty threatened to take the
children away from her if she divorced him. Smitty claimed that Jessy was selfish and not
devoted to the children, stating, among other things, that she gave up some of her custodial
time with the children and did not attend their school activities or sports events.
¶5. The chancellor determined from the testimony and evidence that Jessy initially “took
primary responsibility for the day-to-day care of the children while Smitty worked hard to
develop his business.” However, “[i]n 2018, Jessy began working out at a gym and taking
more time away from the children to devote time to herself and outside interests, leaving
Smitty to be [children’s] primary caretaker up to the time of separation.”
¶6. While both parties complained that joint custody was difficult, the chancellor found
“that both parents love and are devoted to their children,” and this was “a case in which there
are two fit parents, each jockeying for advantage over the other.” The chancellor also found
that Jessy made “unsubstantiated and untrue allegations” that “undercut [her] credibility and
[made] the court question how many other of her assertions [were] untrue or exaggerated.”
¶7. The chancellor found that a majority of the Albright factors were neutral.1 With
respect to the “home, school, and community record” factor, the chancellor found that it
would be in the children’s best interest to remain in the marital home because they had grown
up there, and a number of their relatives lived nearby.
¶8. The chancellor noted that he “considered joint physical custody and would have liked
to see it.” However, the chancellor ultimately determined that neither joint legal custody nor
1 Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).
3 joint physical custody was workable between Jessy and Smitty. The chancellor found that
Smitty strongly opposed joint custody and that the temporary joint custody arrangement had
not worked well.
¶9. In 2022, the chancellor entered a final judgment, awarding physical and legal custody
to Smitty. Jessy was awarded visitation the first, third, and fifth weekends of each month;
two Wednesday evenings per month; holidays; and the month of July each summer.
Property Division
¶10. Prior to his marriage to Jessy, Smitty’s father conveyed a parcel of land to Smitty.
The property was located near land owned by several of Smitty’s relatives, and Smitty
planned to build a home there. In 2006, Smitty obtained construction loans for the property
in his name. In 2008, after the parties were married, they executed a warranty deed making
Jessy and Smitty joint tenants with rights of survivorship.
¶11. In 1995, Smitty formed a landscaping business, now known as Horticulture Services
LLC. Smitty continued operating the business throughout the parties’ marriage. In 2010,
Smitty purchased property to start a second business, Midway RV and Boat Storage LLC,
which he also operated throughout the marriage.
¶12. In the final judgment, the chancellor assessed a single valuation for “both existing
businesses together.” Jessy urged the chancellor to use an income-based approach, but the
chancellor found that an asset-based approach was more appropriate because it excluded
goodwill and because the evidence was insufficient to establish an income-based valuation.
The chancellor further noted that he did not use the values Jessy provided because she valued
4 items based on their cost rather than their fair market value.
¶13. The chancellor found that both Horticulture Services and Midway were Smitty’s
separate property and thus were not subject to equitable division. In determining that the
businesses were Smitty’s separate property, the chancellor noted that Jessy did not work in
or help build either business and that she was not obligated on any business loans. The
chancellor further indicated that Smitty kept the businesses’ banking separate from his
personal accounts. There was also testimony that Smitty sometimes used one business’s
accounts for the other business’s expenses or for personal and family expenses. However,
the chancellor found “no evidence of commingling that would justify classifying the
businesses as marital.”
¶14. After applying the Ferguson factors,2 the chancellor determined Smitty was entitled
to the exclusive use, ownership, and possession of the marital home, with Jessy to be paid
for her share of the equity.
Procedural History
¶15. In March 2021, the chancellor granted Smitty a divorce based on Jessy’s admitted and
uncondoned adultery.3 After a five-day trial in August and December 2021, the chancellor
issued an opinion and judgment granting physical and legal custody of the parties’ two
children to Smitty, granting visitation to Jessy, and dividing the marital estate. Jessy filed
2 Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994). 3 Jessy admitted that she committed adultery both before and after the parties separated. She admitted to having an affair beginning in 2017. She testified that she began a romantic relationship with her current husband about one month after she moved out of the marital home. Jessy married her current husband in September 2021.
5 a motion to alter or amend the judgment or for a new trial, which was denied in relevant part,
and a notice of appeal.
ANALYSIS
¶16. On appeal, Jessy argues that the chancellor erred (1) by granting Smitty physical and
legal custody; (2) by refusing to grant joint legal custody; (3) by granting her inadequate
visitation; (4) in finding that Smitty’s businesses were his separate property; (5) by assessing
a combined value for Smitty’s two businesses; (6) by using an asset-based approach to value
the businesses; and (7) by denying her motion to alter or amend the judgment or for a new
trial.
I. Custody
¶17. Jessy argues the chancellor erred by granting Smitty physical and legal custody of
their children and by refusing to grant joint legal custody. Specifically, Jessy argues the
chancellor abused his discretion in finding that two Albright factors—the “stability of home
environment and employment of each parent” and the “willingness and capacity to provide
primary child care,” Albright, 437 So. 2d at 1005—did not favor her. Jessy also argues the
chancellor erred in finding that the children’s “home, school and community record” (id.)
favored Smitty.
¶18. “A chancellor’s custody decision will be reversed only if it was manifestly wrong or
clearly erroneous, or if the chancellor applied an erroneous legal standard.” Smith v. Smith,
97 So. 3d 43, 46 (¶7) (Miss. 2012). “[T]his Court cannot reweigh the evidence and must
defer to the chancellor’s findings of the facts, so long as they are supported by substantial
6 evidence.” Hall v. Hall, 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014). “[T]he issue is
not whether this Court ‘agrees with the chancellor’s ruling,’ but only whether ‘the
chancellor’s ruling is supported by credible evidence.’” Sanders v. Sanders, 281 So. 3d
1043, 1049-50 (¶21) (Miss. Ct. App. 2019) (quoting Hammers v. Hammers, 890 So. 2d 944,
950 (¶14) (Miss. Ct. App. 2004)).
¶19. “[T]he polestar consideration in child custody cases is the best interest and welfare
of the child.” Albright, 437 So. 2d at 1005. In determining what custodial arrangement is
in a child’s best interest, the chancellor should consider the totality of the relevant
circumstances, including the following factors: (1) age, health, and sex of the child; (2)
“continuity of care prior to the separation”; (3) “parenting skills” of the respective parents;
(4) the parents’ “willingness and capacity to provide primary child care”; (5) the parents’
respective employments and employment responsibilities; (6) “physical and mental health
and age of the parents”; (7) “emotional ties of parent and child”; (8) the “moral fitness” of
the parents; (9) “the home, school and community record of the child”; (10) the “preference”
of a child who is at least twelve years old; (11) “stability of home environment and
employment of each parent”; and (12) any “other factors relevant to the parent-child
relationship.” Id.
A. Stability of Home Environment and Employment
¶20. Under this factor, the chancellor found that Smitty was living “in the former marital
residence where he ha[d] lived for the past 14 years” and that “his employment [was] stable.”
The chancellor found that “Jessy ha[d] lived at” three addresses—two in Collinsville and one
7 in Vossburg—since the parties separated and that “[h]er employment ha[d] been stable,
although she did recently change jobs.” The chancellor did not state that this factor favored
either party.4 On appeal, Jessy argues that the chancellor “abused [his] discretion and
ignored relevant testimony” by finding that this “factor did not favor [her].” However, Jessy
does little to elaborate on this argument, and substantial evidence supports the chancellor’s
findings.5 The chancellor did not err or abuse his discretion in applying this factor.
B. Willingness and Capacity to Provide Primary Childcare and Employment Responsibilities
¶21. The chancellor found that both Jessy and Smitty had “proven their willingness and
capacity to provide care for the children” and “to spend time with . . . and devote attention
to the children outside of work time.” The chancellor also found that each party’s
employment was “flexible enough” to “deal with emergencies, special events, and activities
of the children.” The chancellor did not state that these factors favored either party. On
appeal, Jessy argues that the chancellor did not give sufficient weight to her testimony that
she could set her work schedule so that she could be home with the children more than
Smitty. Jessy also argues that the chancellor failed to “mention[] . . . how much [she] has
4 “The chancellor must address each Albright factor that is applicable to the case, but the chancellor need not decide that each factor favors one parent or the other.” Riley v. Heisinger, 302 So. 3d 1243, 1255 (¶46) (Miss. Ct. App. 2020) (citation omitted). 5 Later in her brief, Jessy argues that the chancellor “misstated the facts” when he found that Jessy had lived at a home that her new husband owned in Vossburg, which was about fifty miles away from the children’s school in Collinsville. However, Jessy herself testified that both children had bedrooms at the Vossburg home, that they spent the night in Vossburg “[p]robably once a week,” including some school nights, and that she and her family all stayed in Vossburg during the trial. Based on Jessy’s own testimony, the chancellor did not clearly err by stating that Jessy “ha[d] lived at” the Vossburg address.
8 been able to stay at home after marrying [her new husband].” However, Smitty testified that
as the owner of his own businesses, he also has a flexible work schedule and is never
required to travel for work. Substantial evidence supports the chancellor’s findings, and the
chancellor did not abuse his discretion in considering these factors.
C. Home, School, and Community Record
¶22. Under this Albright factor, the chancellor noted that Smitty lived in the former family
home “where the children ha[d] grown up.” The home was “located in close proximity to
other Smith relatives,” including cousins, aunts, uncles, and grandparents.6 The extended
Smith family socialized and ate meals together frequently. The chancellor also noted that
“[t]he children ha[d] been active in,” and “ha[d] grown up” in, a local church that they
continued to regularly attend with Smitty. The children attended a nearby elementary school,
“which has a reputation for excellence.”7 The chancellor found that the marital home and
its surrounding environment were “a comfortable, secure place where [the children] ha[d]
lived exclusively until the separation.” The chancellor found that “it would not be in [the
children’s] best interest to uproot them from there,” stating that this Albright factor was
“key” in his analysis.
6 Jessy emphasized that her new husband’s family also lived nearby. However, the chancellor noted that Jessy herself first met her new husband in December 2019, less than two years before trial. According to Jessy, she first introduced her children to her new husband “in the fall of 2020.” Even then, she introduced him only as “a friend that was helping around the house.” 7 The chancellor acknowledged that Jessy resided nearby “in the neighborhood of the [children’s] school.” The chancellor noted that “Jessy ha[d] moved on to another church in Clarke County.”
9 ¶23. On appeal, Jessy argues that the chancellor should have treated this factor as “neutral
at best.” However, substantial evidence supports the chancellor’s findings, and we cannot
say that the chancellor abused his discretion by giving weight to the circumstances that he
considered under this factor. Accordingly, this issue is without merit.
D. Failure to Award Joint Physical and Legal Custody
¶24. Finally, Jessy argues that even if she is not entitled to sole physical custody, the
chancellor at least should have awarded the parties joint physical and legal custody. In his
ruling, the chancellor addressed this issue, stating in part:
The court has considered joint physical custody and would have liked to see it in this case, but Smitty strongly opposes it and Jessy agrees that it did not work on a temporary basis. Each party blames the other. . . .
Likewise, the court has considered joint legal custody, but joint legal custody requires parental consultation and agreement on all major decisions affecting the children tantamount to the level of consultation and agreement one would expect in an intact nuclear family. Rutledge v. Rutledge, 487 So. 2d 218, 219 (Miss. 1986). This court gave the parties in the temporary order an opportunity to prove that they could consult with each other and reach agreement on major issues for the best interest of the children and to learn productive ways to approach those kinds of issues, but they failed. Both admit that the joint custody arrangement has not worked.
¶25. Jessy argues that the chancellor gave too much weight to Smitty’s opposition to joint
custody. Jessy argues that the chancellor has discretion to award joint custody so long as “the
parents are capable of sharing joint custody cooperatively.” Crider v. Crider, 904 So. 2d
142, 147 (¶13) (Miss. 2005) (emphasis added). And she argues that she and Smitty are
“capable” of cooperating, even if they have struggled to do so in the past.
¶26. At trial, Jessy answered in the affirmative when her attorney asked her whether she
10 “would go to the extent of allowing for joint custody if it was in the best interest of her
children.” At the same time, however, Jessy insisted that joint custody was not in the
children’s best interest. Moreover, Jessy testified on direct examination, “Given that [Smitty]
does not co-parent well with me, no, [joint custody] is not practical.” (Emphasis added). As
the chancellor noted, Jessy and Smitty each repeatedly blamed the other for their difficulties
co-parenting. In the final judgment, the chancellor also found Jessy in contempt for sending
Smitty harassing text messages during the period they shared joint custody under the
temporary order. Jessy also testified, “I don’t trust [Smitty] at all, even in little things . . . .”
¶27. As the chancellor noted in his opinion, our Supreme Court has stated,
The essence of joint custody is that both parents share responsibility and authority with respect to the children. This involves parental consultation and agreement on all major decisions affecting the children. The decision making process thus approximates that of an intact nuclear family. Parents with joint custody make joint decisions on all matters having a significant impact on their children’s lives.
Rutledge, 487 So. 2d at 219 (quoting David J. Miller, Joint Custody, 13 Family L.Q. 345, 360
(1979)). Moreover, in Crider, the Supreme Court stated, “To be sure, unless the parents are
capable of sharing joint custody cooperatively, it is incumbent upon a chancellor not to award
joint custody. This is for the chancellor to determine as he or she is in the best position to
evaluate the credibility, sincerity, capabilities and intentions of the parties.” Crider, 904 So.
2d at 147 (¶13) (emphasis added). Here, the chancellor personally observed the parties and
their demeanor and found that an award of joint physical or legal custody would not be in the
children’s best interest. Id. at 144 (¶6) (“[T]he polestar consideration in all cases dealing
with child custody and visitation is the best interest and welfare of the child.”). Given the
11 parties’ history, testimony, and demonstrated difficulties co-parenting, we cannot say that the
chancellor’s finding was an abuse of discretion.
II. Visitation
¶27. Jessy next argues the chancellor granted her inadequate visitation. “Visitation is a
matter within the chancellor’s sound discretion.” Thomas v. Thomas, 281 So. 3d 1191, 1204
(¶41) (Miss. Ct. App. 2019) (quoting Carson v. Butler, 168 So. 3d 1085, 1088 (¶14) (Miss.
Ct. App. 2013)). “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.” Id. “In general, visitation with the noncustodial parent should be
liberal rather than restricted.” Id. “Standard visitation includes two weekends a month until
Sunday afternoon and at least five weeks of summer visitation, plus some holiday visitation.
Awarding less is an abuse of discretion unless there is concrete proof of actual harm to a
child.” Michael v. Smith, 237 So. 3d 183, 190 (¶26) (Miss. Ct. App. 2018) (quotation marks,
citations, and brackets omitted).
¶28. In this case, the chancellor awarded Jessy the first, third, and fifth weekends of each
month from 6 p.m. Friday until 6 p.m. Sunday; two Wednesday evenings per month from 5
p.m. to 7:30 p.m.; typical holiday visitation; Spring Break every other year; and summer
visitation “for the month of July, during which Smitty shall have one weekend visitation.”
¶29. On appeal, Jessy suggests a series of additional visitation times that the chancellor
could have granted, and she argues that “there is no reason why” the chancellor did not do
so. Jessy cites no authority for this argument other than quoting this Court’s observation that
12 “[t]he point of Albright is to identify the custody arrangement that would be in the child’s
best interest—not to determine what is in either parent’s best interest or which parent is the
better person.” Vassar v. Vassar, 228 So. 3d 367, 375 (¶26) (Miss. Ct. App. 2017).
¶30. The visitation that the chancellor granted here is essentially the “[s]tandard visitation”
that this Court outlined in Michael, 237 So. 3d at 190 (¶26). The “month of July” is slightly
less than the “five weeks of summer visitation” mentioned in Michael, but this minor
difference is offset by the chancellor’s award of visitation during “fifth weekends” and
evening visitation two Wednesdays per month. In Marshall v. Harris, 981 So. 2d 345 (Miss.
Ct. App. 2008), we affirmed a similar award of summer visitation for the month of July,
explaining that our case law does “not mandate a five-week summer visitation,” and a
“chancellor has discretion to fashion a visitation order to suit the child’s best interest.” Id.
at 350 (¶23); accord Strange v. Strange, 43 So. 3d 1169, 1172 (¶¶8-10) (Miss. Ct. App.
2010). Similarly, although we are sympathetic to Jessy’s desire for additional court-ordered
visitation, we cannot say that the chancellor’s decision was an abuse of discretion.8
III. Smitty’s Businesses
A. Classification of the Businesses
¶31. Jessy argues that the chancellor’s equitable division of the marital estate must be
reversed because the chancellor misclassified Smitty’s two businesses, Horticulture Services
and Midway, as Smitty’s separate property.
8 We note that Smitty testified at trial that he “would be comfortable if [Jessy] had [visitation] for eight to ten days” per month, and the court’s visitation schedule provides that “Jessy may visit at all other reasonable times and places as agreed to by the parties.”
13 ¶32. The first step in dividing the marital estate is classifying the parties’ assets as marital
or separate. Pearson v. Pearson, 761 So. 2d 157, 162 (¶15) (Miss. 2000). Marital property
is defined as “any and all property acquired or accumulated during the marriage.” Hemsley
v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). “Assets acquired or accumulated during the
course of a marriage are subject to equitable division unless it can be shown by proof that
such assets are attributable to one of the parties’ separate estates prior to the marriage or
outside the marriage.” Id. at 914.
¶33. “A business interest owned prior to marriage is the separate property of the owning
spouse, at least to the extent of its value at the time of the marriage.” Dean v. Dean, 304 So.
3d 156, 166 (¶36) (Miss. Ct. App. 2020) (quoting Kimbrough v. Kimbrough, 76 So. 3d 715,
720 (¶22) (Miss. Ct. App. 2011)). “Appreciation of a separate business interest, which
occurs during the marriage and is attributable to the efforts of either spouse, is marital
property.” Id. (emphasis added) (quoting Kimbrough, 76 So. 3d at 720 (¶22)). “If the
appreciation was caused by other forces, such as inflation or third-party efforts, then the
entire asset remains separate.” Deborah H. Bell, Mississippi Family Law § 8.03[3][b], at 241
(3d ed. 2020). “The burden of proof is on the non-owning spouse to show both the
appreciation in value of the separate business interest and that such appreciation was
attributable to the efforts of either spouse.” Dean, 304 So. 3d at 166 (¶36) (quoting
Kimbrough, 76 So. 3d at 720 (¶22)).
¶34. Although Smitty formed Horticulture Services LLC in 2008, the chancellor found that
the limited liability company was formed “to provide a more advantageous tax and legal
14 structure” for the landscaping business that Smitty started in 1995, long before the marriage.
Substantial evidence supports the chancellor’s finding. Therefore, the value of this business
at the time of the marriage was Smitty’s separate property, and Jessy bore the “burden of
proof . . . to show both the appreciation in value of the [business] and that such appreciation
was attributable to the efforts of either” Smitty or her. Id. (emphasis omitted).
¶35. On appeal, Jessy asserts that Horticulture Services’ value “increased significantly
during the marriage.” However, Jessy offered no proof at trial of this alleged increase in
value or its cause. See Touchstone v. Touchstone, 682 So. 2d 374, 380 (Miss. 1996) (“This
Court will consider only those matters that actually appear in the record and does not rely on
mere assertions in briefs.”). Therefore, the chancellor did not err by finding Jessy failed to
prove that any part of Horticulture Services is marital property. Dean, 304 So. 3d at 167
(¶38) (holding that the chancellor did not err by finding that husband’s business interest
acquired prior to marriage was husband’s separate property because wife failed to prove that
its value appreciated during the marriage due to the efforts of either party).
¶36. However, Midway presents a different issue because Smitty started it during the
marriage in 2010. Midway operates on a 3.22-acre parcel of land in Meridian that Smitty
purchased in his own name in 2010. To acquire the property, Smitty took out loans from a
bank, his father, and other relatives. Later, Smitty repaid his father by borrowing $100,000
on a line of credit that was secured by the marital residence. Midway offers storage for RVs
and boats in two large buildings. The property also has an office building and other smaller
buildings. Initially, Jessy operated a “boutique” clothing and gifts store, “Bloom,” on the
15 property. Jessy testified that she also helped with the rest of Midway’s business as needed.
However, Bloom was not profitable and closed around 2017. After Bloom closed, Midway
leased that part of the property to Al’s Garden and Gift, a nursery and floral/gift shop.
During this proceeding, the entire property was appraised at $659,000, and the chancellor
found that the net equity in the property was $367,993.
¶37. As this Court recently explained,
[m]arital property is defined as any and all property acquired or accumulated during the marriage. . . . The law presumes that all property acquired or accumulated during marriage is marital property. The party claiming that [an] asset is separate, nonmarital property has the burden of proof and must overcome the presumption that the asset is marital property.
Cannon v. Cannon, 375 So. 3d 697, 710 (¶43) (Miss. Ct. App. 2023) (citations and quotation
marks omitted).
¶38. In the present case, Smitty failed to meet his burden to prove that Midway and the
associated real property are not marital assets. There is no dispute that Smitty acquired the
property and started the business during the marriage. In addition, he operated the business
during the marriage for more than eight years before the parties separated. Jessy assisted
with the business at times, though the significance of her assistance is disputed. Smitty also
admitted that he contributed personal funds (i.e., marital property) to the business, and he
took out a line of credit on the marital home to pay off debt that he used to start the business.
During the parties’ marriage, Smitty accumulated equity in Midway with a value of at least
$367,993. However, Smitty failed to prove that he accumulated this equity without using
marital funds or his own efforts during the marriage. Accordingly, Smitty failed to prove that
16 the business and property are not marital assets, and the chancellor erred by classifying them
as Smitty’s separate property.
¶39. On appeal, Smitty argues that Jessy is not entitled to any of the equity in Midway or
the property because she had little involvement in Midway’s day-to-day business. However,
“[w]e assume for divorce purposes that the contributions and efforts of the marital partners,
whether economic, domestic or otherwise are of equal value.” Hemsley, 639 So. 2d at 915.
Therefore, the fact that Jessy may have played a minor role in Midway’s operations does not
mean that the business is not a marital asset. More important, Smitty points us to no evidence
in the record to show that he accumulated his equity in Midway with separate assets or due
to factors other than his own efforts. Therefore, Midway and the associated real property
should have been classified as marital assets. On remand, the chancellor must make a new
equitable distribution of the marital estate that includes these assets.
B. Valuation of the Businesses
¶40. Jessy next argues the chancellor erred by assessing a joint value on Horticulture
Services and Midway and by using an asset-based approach to value the businesses.
¶41. After a chancellor classifies assets as marital or separate property, the next step is for
the chancellor to value those assets. Brown v. Brown, 350 So. 3d 1169, 1178 (¶30) (Miss.
Ct. App. 2022). The chancellor seeks to determine the “market value” of the assets.
Ferguson, 639 So. 2d at 929. “Three methods of valuation may be used to determine the
market value of a business for this purpose: ‘(1) an asset-based approach, in which assets and
liabilities are evaluated, (2) a market-based approach, in which the market is surveyed for
17 similar sales, or (3) an income-based approach, in which a value is placed on earning
potential.’” Dean, 304 So. 3d at 163 (¶21) (quoting Lacoste v. Lacoste, 197 So. 3d 897, 907
(¶34) (Miss. Ct. App. 2016)).
¶42. “The bottom line is one must arrive at the ‘fair market value’ or that price at which
property would change hands between a willing buyer and a willing seller when the former
is not under any compulsion to buy and the latter is not under any compulsion to sell.” Id.
(brackets and ellipsis omitted). “[T]he chancellor should require that the parties utilize a
reliable method of valuation and support it with adequate proof, or prove valuation through
expert testimony.” Chism v. Chism, 285 So. 3d 656, 665 (¶28) (Miss Ct. App. 2019).
However, “findings on valuation do not require expert testimony and may be accomplished
by adopting the values cited in the parties’ [Uniform Chancery Court Rule] 8.05 financial
disclosures, in the testimony, or in other evidence.” Lacoste, 197 So. 3d at 908 (¶35)
(quoting Jenkins v. Jenkins, 67 So. 3d 5, 13 (¶19) (Miss. Ct. App. 2011)). “If a party fails
to provide accurate or sufficient information or cooperate in the valuation of an asset, the
chancellor is entitled to proceed on the best information available to him or her.” Lageman
v. Lageman, 313 So. 3d 1075, 1080 (¶8) (Miss. Ct. App. 2021). “[T]he fair market value of
a business is a question for the trier of fact,” and “we defer to the chancellor’s findings of
fact when supported by the evidence and not manifestly wrong.” Cox v. Cox, 61 So. 3d 927,
936 (¶29) (Miss. Ct. App. 2011).
¶43. The chancellor found Jessy’s suggestion to use an income-based approach
“problematic” and decided to use an asset-based approach to determine the value of the
18 businesses. The chancellor explained:
[T]he Mississippi Supreme Court has emphasized that valuation of a business must not include goodwill, and it must be based on the business’s fair market value. Fair market value without goodwill is the value of the assets. Second, the income approach uses goodwill as a key component of its analysis. Third, the income approach requires projection of future income applying factors and formulae beyond the expertise of this court, and requiring data not in this record. The court finds that using the asset approach to valuation is most appropriate in this case, and it can be accomplished with the data in the record.
The chancellor then went on to list the assets of both Horticulture Services and
Midway—without specifying which assets belonged to which business—and their value,
with a total value of $425,893.
¶44. In determining the values of the businesses’ assets, the chancellor did not use Jessy’s
values because Jessy used the items’ original costs as shown on a “tax return depreciation
schedule.” The chancellor reasoned that “[c]ost is not fair market value.” For the most part,
the chancellor accepted Smitty’s valuations of the businesses’ trucks, equipment, and other
personal property. Smitty testified that his valuations were based on his own assessments of
the items’ fair market values. By far, the most valuable asset of either business was
Midway’s real property, which was valued by a court-appointed real estate appraiser. Neither
party takes issue with the appraiser’s valuation.
¶45. Under the circumstances, we cannot say the chancellor erred or abused his discretion
by using an asset-based approach. See Dean, 304 So. 3d at 163 (¶21) (explaining that an
asset-based approach is a permissible valuation method). Nor can we say that the chancellor
otherwise erred or abused his discretion in valuing the businesses’ various assets.
¶46. However, as discussed above, the chancellor erred in finding that Midway and its real
19 property were Smitty’s separate property. Because Midway and the real property are marital
assets subject to equitable distribution, the chancellor must determine a value for them.
Brown, 350 So. 3d at 1184 (¶44). These marital assets may not be lumped together with
Horticulture Services, which was properly classified as Smitty’s separate property.
Therefore, on remand, the chancellor must determine Midway’s fair market value and then
include it in the equitable distribution of the marital estate.9
CONCLUSION
¶47. The chancellor did not commit any legal error or abuse his discretion in awarding
custody to Smitty and visitation to Jessy. However, the chancellor did err by classifying
Midway as Smitty’s separate property and by not assigning a value to Midway as part of the
equitable distribution of the marital estate. Therefore, the judgment of the chancery court is
affirmed with respect to child custody and visitation and reversed with respect to the
equitable distribution of the marital estate. The case is remanded for a new equitable
distribution of the marital estate, including Midway and the associated real property.
¶48. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.10
BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.
9 As noted above, Jessy also argues that the chancellor erred by denying her motion to alter or amend the judgment or for a new trial. However, her argument on this issue simply incorporates her arguments on her other issues, which we have already addressed above. Therefore, this issue requires no additional discussion. 10 Smitty filed a motion for appellate attorney’s fees in this Court. However, Smitty’s motion cites no legal authority for an award of such fees. Therefore, the motion is denied.