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GAIL D. NICHOLSON
Jackson, MS - Divorce lawyer represented appellant with appealing the divorce decree.
In 2003, John, who worked at Prudential Financials, met Jane, who was an
entertainment manager for a casino and a part-time bartender. Theywere members of a band
in which he played bass, and she sang. They married on June 14, 2005, in Harrison County,
Mississippi, where they lived until their final separation. They had two sons, one born in
2005 and the other born in 2008.
¶3. At the time of the divorce, John, who has an MBA degree from Tulane University,
was working as a civilian programmer for the National Guard. He had been with the military
since 2004. Jane had several other jobs but obtained her real estate license in 2006. Since
then, her income from real estate sales was considerably more than John’s income. During
their marriage, John and Jane lived a comfortable life, although they said they were stressed
financially and even discussed divorce at times. John’s $3,687.58 per month earnings (after
taxes, medical insurance, and his mandatory PERS retirement contribution) were directly
deposited into a joint account to pay family bills. Jane maintained a separate business
account into which she deposited her monthly gross earnings, which averaged $11,363 as of
June 2018. She maintained another account to which she transferred $2,000 per month for
her estimated taxes. She or John made transfers from the business account to the family
account as needed to cover the family’s monthly bills.
¶4. When they purchased their home, John’s parents gifted them $45,000 for the down
payment, and Jane’s mother contributed $40,000 toward the home’s remodel. At the time
ofthe final judgement of divorce, John agreed with Jane’s valuation of the home at $220,000,
which the chancery court accepted.
¶5. After an incident on Mother’s Day in 2018, John left but returned home a few days
later, as he said, “for the sake of his boys.” He and Jane resumed family life, including
sexual relations, for a brief period of time thereafter. On May 26, 2018, Jane found a picture
of a woman named Stacey3
on John’s phone. Stacey and John had a sexual relationship prior
to John and Jane’s marriage. Earlier in 2018, John and Stacey had “friended” each other on
Facebook, and on at least one occasion, John met Stacey briefly in the parking lot of a Home
Depot. Jane confronted John about Stacey’s picture in his phone and accused him of having
an affair. John denied this and left for a week, but then he returned to the home. Jane said
she locked John out of the bedroom, and he slept in another room as he had frequently done
¶6. On June 4, 2018, Jane set up cameras in the bedroom and living room of the house to
secretly monitor and record John’s actions. Then she took the boys on an out-of-town trip
during which Jane watched and recorded John’s private activities. John did not know about
these cameras or that he was being recorded. In the divorce trial that eventually ensued, the
chancery court judge would not admit the recordings as evidence, but there was testimony
3 The last names of lay witnesses are not used to further protect the privacy of the
of what was captured on them.
¶7. On June 14, 2018, during Jane’s annual physical, Dr. John Mallett diagnosed her with
condyloma (genital warts caused by the HPV virus)4
and with genital herpes (caused by the
HSV2 herpes virus).5
In an affidavit, Dr. Mallett indicated that Jane will forever carry the
HSV2 virus. Jane did not tell John about her condition until after he moved out on June 20,
2018. According to John, in the interim Jane attempted to have sex with him. Jane denied
¶8. John lived in the home until June 20, 2018, when another incident occurred at their
home during his son’s birthday party. Again, John and Jane had an altercation that resulted
in Jane’s leaving with her sons and the other children who were guests. They went to a
friend’s home, and the police were called.
Court Proceedings and Testing
¶9. Jane filed for divorce in the Chancery Court of Harrison County on June 21, 2018,
claiming grounds of adultery and habitual cruel and inhuman treatment. On that same day,
she obtained a temporary restraining order (TRO) to keep John away from the home. John
moved into a pool house at his parents’ home. On July 6, 2018, the chancery court continued
the TRO and appointed a guardian ad litem to provide the court with information about the
In 2003, when she first began dating John, Jane’s medical records reflect that she
suffered from a mild dysplasia connected with HPV. She underwent a laser treatment for
this abnormal cervical thickening at that time. Thereafter, she had an abnormal pap smear
in 2006, but she had normal results thereafter through her last prior checkup in 2016.
She was initially treated with a topical medication, which did not work. She then
underwent laser surgery on August 10, 2018, to remove the warts.
children that the court could use to determine their best interest. The guardian ad litem
interviewed the parties and the children and filed her report on July 25, 2018. She found the
children to be well-behaved and adjusted and that they loved, and were loved by, both of
their parents. Later, on August 10, 2018, the chancery court entered a continuing temporary
order granting joint physical and legal custody to both parties, setting visitation, and ordering
the parties not to disseminate private information about medical issues.
¶10. When John learned of Jane’s sexual-disease diagnoses, he voluntarily underwent
testing and was found negative for the genital herpes virus (HSV2). The parties agreed that
there is no test for the HPV virus that causes genital warts; rather, a diagnosis is made from
the presentation of the warts themselves, which John has never had. On August 8, 2018,
contending that John did not take the correct test for herpes, Jane filed a motion for a Rule
35 examination ofJohn to determine if he was a carrier of the HSV2 virus. See M.R.C.P. 35.
John was tested again for HSV2, using the Titer’s test that Jane’s doctor had recommended.
John tested negative on August 7, 2018, and again tested negative for HSV2 on November
¶11. Jane propounded discovery on July 9, 2018, to which John failed to respond. After
Jane filed a motion to compel, the parties agreed to an order that required John to respond
by October 28, 2018. In responding to an interrogatory requesting the identification of his
potential witnesses and their expected testimony, John merely provided the names of sixtythree individuals. Jane filed another motion to compel.
¶12. On November 29, 2018, John filed a motion for review of the August 10, 2018
temporary order, noting the results of his testing. On December 5, 2018, John also filed a
motion for contempt. John attached an affidavit by Dr. Charles Guich, who said that “it is
scientifically conclusive that [John] does not have nor has he ever had HSV2 and could not
have infected anyone with HSV2.” In his contempt petition, John also raised an incident
where the children had gotten into the gun safe at the house, and he therefore sought custody
of them for their safety.
Jane’s Visit to Dr. Nicholas Conger
¶13. Meanwhile, Jane was referred by a doctor-friend to an infectious disease doctor,
Nicholas Conger, not for treatment, but “to discuss transmission properties of herpes virus
1 and 2 as well as VZV and condyloma.”6
In his notes on the December 26, 2018 visit, Dr.
Conger admitted that he did not have access to Jane’s medical records from Dr. Mallett. Dr.
Conger based his opinions solely on information provided by Jane. She told himthat she was
in her usual state of health until “out of the blue,” she was diagnosed with condyloma.7 She
said John had been unfaithful in the marriage, and the doctor opined that “the fact that she
never had any condyloma and then suddenly had condyloma is highly suggestive that her
husband did pass that along to her.” In a report he later prepared, Dr. Conger added “given
[Jane’s] history of normal pap smears throughout her life . . . and if [Jane] was monogamous
with her husband, the virus must have been transmitted to her via relations with her
VZV is a virus causing shingles, which is not at issue in this appeal.
7 Dr. Conger’s medical records provide that Jane told the doctor that she contracted
condyloma “two years ago.”
husband.” Notably, Jane failed to inform Dr. Conger that in her past, she did have abnormal
pap smears and was treated for an HPV-related condition.
Further Court Proceedings
¶14. On January 15, 2019, the chancery court heard Jane’s motion to compel answers to
discovery and John’s motion to review the August 10, 2018 temporary order. The court
reviewed Jane’s interrogatories question by question and ordered John to supplement his
answers. It also ordered John to pay Jane $1,000 in attorney’s fees. The chancery court
heard testimony from both John and Jane concerning several incidents relating to their
separation, their finances, and the needs of the children. On February 19, 2019, the chancery
court entered an order concerning child support, contributions by the parties for the
children’s medical and school-related expenses, payment of bills relating to marital assets,
and visitation. Deadlines for filing amended pleadings and for discovery were set and an
order, signed on March 26, 2019, set the divorce for trial on August 29, 2019.
¶15. John filed his formal answer to Jane’s divorce complaint on April 11, 2019. In the
answer, John counterclaimed for divorce, alleging grounds of adultery and habitual cruel and
inhuman treatment by Jane. On April 18, 2019, Jane filed a motion to strike John’s answer
as untimely, and a motion for sanctions for John’s discovery abuses in failing to supplement
his answers to interrogatories and in issuing numerous subpoenas. Although Jane filed the
motion for sanctions in April 2019, she did not present it for hearing until after all testimony
was taken at the trial, which was held August 26-30, 2019, and October 7 and 11, 2019.
After a hearing on the sanctions motion in October, the chancery court found that John and
had acted in bad faith and sanctioned each of them $2,500, for a total of $5,000.
¶16. In her case-in-chief at trial, Jane testified to the problems in the marriage, including
John’s excessive drinking and pornography use. She also testified about her diagnoses of
sexually transmitted diseases (STDs), and her belief that John had infected her. She called
John as an adverse witness, and he denied Jane’s allegations. Jane also called Stacey, and
she admitted to her developing relationship with John beginning in 2018, which she stated
only became sexual in July 2018. Jane also called Robert, a fellow soccer parent, who
testified that he had seen John at soccer games with a Polar cup. From the smell, Robert
concluded it contained alcohol, but Robert could not identify what kind of alcohol.
¶17. After Jane rested, John testified and then called Kathleen, a friend who had known
John for years. Kathleen testified that she had attended soccer games where John and the
boys were present and that she has never seen John with any alcohol. John called another
friend and soccer-dad, Mark, who also testified that John did not drink alcohol at soccer
games, although he had seen John with a Polar cup. Mark also testified that he was present
and witnessed the May 2018 altercation between John and Jane. Mark said both were
intoxicated that day.
¶18. On rebuttal, after testifying herself and calling John to testify again, Jane called her
boss, Cameron. He testified that he received a subpoena fromJohn that requested eight years
8 On April 23, 2019, a new attorney entered an appearance on behalf of John. The
sanctions were imposed on John’s first attorney.
of Jane’s income records. He said that it would have taken him sixty hours to respond and
that he is required to keep only three years of such records. He said he called John’s attorney
and they worked out a compromise of what Cameron then produced. Cameron also testified
that he had not seen Jane under the influence of alcohol at work, but he has seen her drink
to excess outside of work. In one instance in 2012 or 2014, he said that Jane had returned
from a Mardi Gras parade with the two boys in the car, and she clearly had had too much to
drink.9 She drove off the driveway and into a ditch. Cameron also testified that prior to that,
in 2003, Jane was ticketed for a DUI. Cameron also said that he often saw John at soccer
games and that John always had a Polar cup with him, but Cameron did not know if there
was any alcohol in it. Cameron testified that Jane was visibly more distraught as the divorce
has gone on but that the quality of her work has not suffered.
¶19. Notably, neither John nor Jane called any medical doctor or nurse to testify live or by
deposition about the genesis or transmission of Jane’s diagnosed STDs. The only medical
evidence in the record consisted of the medical records of the parties; the depositions of
Nurse Practitioner Kathleen Arnold, who treated John’s diabetes,10 and Dr. Wyble, who was
Jane’s Botox and cosmetic-surgery doctor; the affidavits of Dr. John Mallett and Dr. Gruich;
and Dr. Conger’s unsworn report.
Jane admitted this incident, which she called a “mistake” on her part. She said she
was not aware of the alcohol content of what she drank at the parade and that she safely
made it home.
10 Nurse Practitioner Arnold said that, for the most part, John has complied with the
things she has asked him to do for his health. She admitted that John has had some episodes
of either hyper- or hypo-glycemia, but he is currently stable with the pump he has.
Chancery Court’s Rulings
¶20. After considering the testimonyand evidence, the chancerycourt convened the parties
on December 2, 2019, to read its judgment, which was reduced to writing thereafter and
entered on February 3, 2020. John filed a motion for reconsideration, which the chancery
court heard on June 22, 2020. Thereafter, the chancery court issued a revised findings of fact
and opinion on July 6, 2020.
¶21. On August 4, 2020, John filed his notice of appeal. On appeal, John alleges that the
chancery court erred (1) in finding that John committed pre-separation adultery; (2) in its
finding that John transmitted an STD to Jane; (3) in its equitable distribution of certain
personal property of the parties; (4) in its determination of Jane’s income; (5) in denying
John’s request for alimony; (6) in not reducing the amount of child support ordered; and (7)
in its imposition of sanctions.
Standard of Review
¶22. “This Court will not disturb a chancellor’s judgment when it is supported by
substantial credible evidence unless the chancellor abused his discretion, was manifestly
wrong or clearly erroneous, or applied an erroneous legal standard.” Gilmer v. Gilmer, 297
So. 3d 324, 331 (¶13) (Miss. Ct. App. 2020) (quoting Branch v. Branch, 174 So. 3d 932, 937
(¶9) (Miss. Ct. App. 2015)). A chancery court’s ruling will be upheld if it is supported by
the credible evidence. Byrd v. Byrd, 100 So. 3d 443, 447 (¶5) (Miss. 2012). “[W]e review
the facts involved in rendering a divorce decree in a light most favorable to the appellee.”
Dickinson v. Dickinson, 293 So. 3d 322, 326 (¶5) (Miss. Ct. App. 2020). Issues of law are
reviewed de novo. Oswalt v. Oswalt, 981 So. 2d 993, 995 (¶5) (Miss. Ct. App. 2007).
¶23. “When this Court reviews a chancellor’s judgment of property division we ‘are to
review the judgment to ensure that the chancellor followed the appropriate standards and did
not abuse his discretion.’” Farris v. Farris, 202 So. 3d 223, 230 (¶27) (Miss. Ct. App. 2016)
(quoting McKnight v. McKnight, 951 So. 2d 594, 596 (¶6) (Miss. Ct. App. 2007)).
I. Whether the chancery court erred in its findings concerning John’s
alleged pre-and post-separation adultery.
¶24. John argues that the chancery court erroneously found that he committed preseparation adultery and that Jane’s proof of such did not meet the “clear and convincing”
standard required to establish pre-separation adultery. But the chancery court specifically
said that it did not grant Jane a divorce on the grounds of pre-separation adultery but upon
John’s admission of post-separation adultery. The court did not hold that John had
committed adultery prior to the separation. Accordingly, we find no merit to John’s
¶25. In its findings of fact, conclusions of law and final judgment of divorce, the chancery
court found that Jane had “proven, by clear and convincing evidence, her entitlement to a
divorce from John on the ground of adultery.” After John filed his motion for
reconsideration, the chancery court added to its opinion the following:
In his Motion for Reconsideration, John moved the Court to strike its finding
of pre-separation adultery. The Court, however, did not base its determination
that [Jane] had proven adultery on PRE-separation adultery. It found that Jane
had met her burden of establishing adultery with John’s admission to POSTseparation adultery. While the Court recounted evidence discussing the
possibility of pre-separation adultery, it did not state that this evidence was the
basis of its finding.
Nowhere did the chancery court hold that John committed adultery before the separation.
The court only said that the evidence “suggested” that John was engaging in a “romantic and
sexually motivated relationship” before the separation, not adultery.
¶26. “In Mississippi one seeking a divorce on the grounds of adulterous activitymust show
by clear and convincing evidence both an adulterous inclination [of the offending party] and
a reasonable opportunity to satisfy that inclination.” Williams v. Williams, 303 So. 3d 824,
831-32 (¶28) (Miss. Ct. App. 2020) (quoting Holden v. Frasher-Holden, 680 So. 2d 795, 798
(Miss. 1996)). The adulterymay occur before or after separation. Talbert v. Talbert, 759 So.
2d 1105, 1110-11 (¶16) (Miss. 1999). “Adultery may be shown by evidence or admissions,
and either is sufficient to support a decree of divorce.” Id. When a chancellor makes findings
of fact concerning adultery, this Court will not set aside those findings unless they are
manifestly wrong. Id.
¶27. John argues that Jane’s evidence of pre-separation adultery was not clear and
convincing. But this argument is irrelevant to the facts relied upon by the chancery court to
grant Jane the divorce. John ignores his own admission of post-separation adultery, which
was corroborated by Stacey, and which alone is sufficient proof to support the chancery
court’s finding of adultery. As we noted in Curtis v. Curtis, 796 So. 2d 1044, 1051 (¶31)
(Miss. Ct. App. 2001):
The [Mississippi] Supreme Court has noted that “nothing in our jurisprudence
requires that a ground for divorce, such as adultery, arise before separation.”
Talbert v. Talbert, 759 So. 2d 1105, 1110-111 (Miss. 1999). Though the
Talbert court stated the point somewhat conditionally, we have found no
authority to require that the adultery must precede the separation. It is only
necessary that it precede the divorce.
See also Dykes v. Dykes, 191 So. 3d 1287, 1291 (¶22) (Miss. Ct. App. 2016) (This Court has
held that “there is no requirement that the adultery precede the spouses’ separation.” (citing
Lister v. Lister, 981 So. 2d 340, 344 (¶29) (Miss. Ct. App. 2008)). Because the chancery
court made no finding of pre-separation adultery, and because there was sufficient proof of
post-separation adultery to meet the burden of proof and support the chancery court’s grant
of divorce to Jane, we find that the chancery court was not manifestly wrong in its finding
that Jane was entitled to a divorce on the ground of John’s adultery.
II. Whether the chancery court erred in its finding that John
transmitted an STD to Jane.
¶28. The chancery court found that John provided no evidence that Jane had engaged in
extramarital relations and that the circumstantial evidence Jane presented established that
John had infected her with a sexually transmitted disease (HPV). The chancery court said
that Jane had never been diagnosed with HPV prior to June 14, 2018, although fifteen years
prior, she had been treated for a mild cervical dysplasia. The court found that there was no
proof presented that these two medical occurrences were linked. Although it may be
possible, the chancery court said, due to the time frame, it is more reasonable to infer that
Jane was infected three weeks to eight months prior to June 14, 2018, especially since she
had had normal pap smears since 2008.
¶29. On appeal, John contends that Jane presented no expert testimony on the issue, and
that the chancery court’s finding was manifestly wrong. Consequently, John argues, he
should not be ordered to reimburse Jane for the $1,038.40 medical expense for her HPV
treatment, nor should the erroneous finding that he infected Jane be used in the chancery
court’s evaluation of the Ferguson factors, see infra note 17, when dividing marital assets.
A. Evidence in the Record
¶30. In this case, the evidence showed that on June 14, 2018, Jane was diagnosed with two
STDs: genital warts (condyloma), which is caused by the human papilloma virus (HPV), and
genital herpes that is caused by the HSV2 herpes virus. Although Jane’s swab test for genital
herpes by Dr. Mallett on June 14, 2018, was negative, the results of her blood test a month
later were positive for the genital herpes virus HSV2. During her treatment for the disease,
Jane learned from Dr. Conger that she was a carrier of the genital herpes virus, although she
denied ever having an outbreak. John was tested three times for genital herpes, and all test
results were negative. His doctor, Dr. Gruich, said in an affidavit that John did not have the
virus and could not have given it to Jane. Consequently, there was no proof that John had
genital herpes, and Jane ultimately withdrew her claim that John had given her genital
¶31. But Jane continued to contend that John had given her the genital warts (condyloma).
11 Despite this withdrawal, Jane admitted that she had told her mother and close
friends that she had herpes and that John gave it to her. Jane also conceded that when John
told others he did not have herpes but that she did, he was just responding to gossip that Jane
herself had initiated.
Jane’s medical records show that back in 2003 she was treated for a “low grade squamous
intraepethial lesion encompassing HPV, mild dysplasia, CIN1.” Thus, the records indicate
that she carried some HPV virus in 2003 and developed a condition as a result. Jane testified
that HPV in the cervix is not an STD, but HPV on the labia causing condyloma is an STD.
John objected to this medical opinion testimony from Jane. Citing no medical authority, the
chancery court took judicial notice of the fact that there are hundreds of strains of HPV
viruses and that some cause condyloma, and others cause dysplasia (abnormal cell buildup).
¶32. The only information on condyloma from a medical doctor in the record is one
paragraph in the unsworn report of Dr. Conger, the infectious disease doctor:
Condyloma acuminate (CA) from HPV, on the other hand, is always
transmitted through intimate contact, and generally manifests symptoms from
3 weeks to 8 months from initial exposure, with an average of 3 months. It
usually presents with genital warts; long term it can lead to cervical cancer.
Given [Jane’s] history of normal pap smears throughout her life and with the
diagnosis of CA made on June 14, 2018, this is entirely consistent with her
report that she stopped having sex with her husband on May 26, 2018.
Therefore, if [Jane] was monogamous with her husband and their sexual
relations ended in May, 2018 as described above, the virus must have been
transmitted to her via her relations with her husband, and he would have had
to have acquired it via relations with another outside of their marriage.
But Dr. Conger had not reviewed Jane’s past medical records, and he based his opinion
solely upon Jane’s representations to him, including a representation that her pap smears all
her life had been normal. Jane failed to tell Dr. Conger about her abnormal pap smears in
2003 and 2004 indicating HPV involvement and the treatment she received then. Even Dr.
Mallett’s records in 2009 noted that Jane had a history of abnormal pap smears, yet Jane told
Dr. Conger that all her pap smears had been normal. Not only was Dr. Conger’s opinion
based on incorrect and incomplete information, but his opinions were not given to a
reasonable degree of medical probability.
¶33. The parties and the court all agreed that there is no test for HPV. So John could not
be tested to confirm whether he had the HPV virus that caused Jane’s condyloma. But John
has never suffered from genital warts, and there was no other proof entered into the record
that he had or carried the HPV virus. The record is clear that John tested negative for genital
herpes (HSV2) several times, and the only person with that disease was Jane. In addition,
John’s sexual relations with Stacey, at least post-separation, were established, and Jane
admitted that the medical records Stacey provided showed that Stacey had no STDs. Despite
this information in the record, the chancery court still found that it was reasonable to infer
that John had transmitted the disease to Jane. We disagree and find the chancery court’s
ruling unsupported by the evidence and manifestly erroneous. In addition, the record reveals
that the foundation of the chancery court’s finding that John transmitted the genital warts to
Jane is not based on anymedical evidence presented, but instead on the court’s own improper
judicial notice of critical medical facts and on an improper shifting of the burden of proof.
B. Judicial Notice
¶34. Significantly, Jane failed to present any medical doctor to testify, either live or by
deposition, and opine that John had given Jane the disease. The only mention of the
transmission of Jane’s genital warts is found in Dr. Conger’s unsworn report, yet his opinion
was not grounded in accurate facts, as noted above. But on several occasions, the chancery
court took judicial notice of key “facts,” including the following:
1. The strains of HPV, its effects on the body, testing for viruses, and that the
body clears the HPV virus on its own:
I am going to take judicial notice of something, ok, that I think
is basically just as a female since we all have to go every year
and get PAP smears, I think we all have a general knowledge of
this, and I’ll take judicial notice of that, but that’s what a PAP
smear is doing is determining if there are abnormal cells that
would be a result of an HPV viral infection, of which there are
hundreds and hundreds. Ok. But, yet, you can test for HPV
like you can any virus such as the flu . . . . Like you can have the
flu and know, you have the flu for ten days or a week, and you
will test positive for the flu. But then once you are over the flu
infection, you will no longer test positive for the flu because
your body has cleared itself of the infection. That’s the way a
viral infection works. So that’s the end of the story. You can
have symptoms of a virus and have to be treated for those
symptoms but no longer be positive for the virus because your
body has flushed the infection. And I’ll just take judicial notice
of that. Now, what actually went on in this case, I don’t know.
But, you know, you don’t always have to, you know—doctors
can diagnose things like the flu, for example, and not even do a
swab. They’ll just say based on the symptoms, I’m going to
treat you for the flu.
2. The meaning of terms in Jane’s 2003 medical record, which diagnosed her
with “LSIL encompassing: HPV/mild dysplasia,” and that there are hundreds
of HPV virus strains causing different conditions:
Again, this is what I was trying to do, just looking at common
definitions, just even in the dictionary, which I think the Court
can do, and take judicial notice of dysplasia, for example. Just
the common definition of dysplasia is an abnormal development
or growth of tissues, organs or cells. And so that’s what we’re
looking for when we’re talking about precancerous cells. So
dysplasia is noted on the cervix. That’s where, you know, not
always, but in her situation that’s where the dysplasia was
found, and that’s what the laser ablation was done for.
Again, just taking judicial notice of the fact that there are
hundreds of strains of HPV that don’t all cause the same thing.
So some of the strains cause condyloma, which is genital warts.
Some of the strains cause dysplasia. It’s just—they do different
things. There are hundreds, hundreds.
Ultimately, the chancery court found that based on Dr. Mallett’s and Dr. Conger’s medical
records, “it is reasonable to infer Jane contracted vaginal condyloma . . . as a result of HPV
infection passed to her from John.” In his motion for reconsideration, John objected to the
chancery court’s taking judicial notice of facts pertaining to these infectious diseases without
medical testimony. We agree that the chancery court exceeded its judicial-notice authority.
¶35. Rule 201 of the Mississippi Rules of Evidence governs the material of which a court
may take judicial notice:
(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially
notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.
MRE 201(a)-(b). The Rule’s Advisory Committee Note explains the two types of
information that may be judicially noticed:
Subdivision (b) provides that only certain kinds of facts may be susceptible to
judicial notice. The first kind of fact that can be judicially noticed is one that
is commonly known in the jurisdiction in which the court sits. The judge
himself need not know the fact. Indeed, it is altogether irrelevant whether he
does. The test is whether the fact is common knowledge in the area. The use
of judicial notice for matters of common knowledge has long been practiced
in Mississippi. On what street the local department store is located is the kind
of commonly known fact of which a court may take judicial notice. The
second kind of fact susceptible to judicial notice is one readily ascertainable.
This would include such items as maps, census data, mortality tables, dates and
time, and history. See Ellis and Williams, Miss. Evid. § 12-2 and the cases
cited therein. See also Nicketta v. National Tea Co., 338 Ill. App. 159, 87 N. E.
2d 30 (1949), and Walls v. Mississippi State Bar, 437 So. 2d 30, 33 (Miss.
Subdivision (b) does not allow judicial notice to be used when the fact is a
dubious one or one in controversy.
MRE 201 advisory committee note (b).
¶36. The Encyclopedia of Mississippi Law echoes these parameters for taking judicial
notice, saying that Rule 201 only allows a trial court to take notice of “adjudicative facts”
that are “easily understood.” 4A Jeffrey Jackson et al., Encyclopedia of Mississippi Law
§ 33:13 (3d ed.) (updated Oct. 2021).
There are two paths by which a fact might travel to be judicially noticed. It
can either be generally known within the territorial jurisdiction of the trial
court or be capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.
Id. Thus, judicial notice could be taken of the county in which a city is located or that a
search warrant’s execution at 11:00 p.m. was not during daylight hours. Id.
¶37. Under Rule 201, “[a] court may look to any source it deems helpful and appropriate,
including official public documents, records and publications.” Riverview Dev. Co. LLC v.
Golding Dev. Co. LLC, 109 So. 3d 572, 576 (¶13) (Miss. Ct. App. 2013); see also Stokes v.
Kentucky, 275 S.W.3d 185, 189 (Ky. 2008) (The State was allowed to read into the record
the definition of “psychogenic” from a medical dictionary, and on appeal the Kentucky
Supreme Court said, “Specifically, judicial notice may be taken of the definitions of medical
terms from a medical dictionary.”). Id. But in this case, the chancery court cited no sources
for the facts of which it took judicial notice, not even the “dictionary” that it referred to.
¶38. While it may have been acceptable for the chancery court to take judicial notice that
HPV is a virus, which may be common knowledge, the chancery court exceeded its authority
when it determined the diseases that various strains of the HPV virus can cause and when it
found that it was unreasonable to think that a strain present in 2003 would cause genital warts
in 2018. These findings are not matters of common knowledge or readily determined without
dispute but require opinion testimony from a competent medical expert.
¶39. Moreover, the chancery court said that HPV can be tested for by a pap smear, drawing
the court’s own personal experience. However, “[w]hat a judge knows and what facts a
judge may judicially notice are not identical data banks. . . . It is not a distinction easy for a
judge to follow in application, but the doctrine is accepted that actual private knowledge by
the judge is not sufficient ground for taking judicial notice of a fact as a basis for a finding
or a final judgment. . . .” 1 McCormick on Evidence § 329 (5th ed. 1999).
¶40. In this case, the genesis of Jane’s genital warts was a controverted issue and should
not have been resolved by inferences drawn by improper judicial notice of medical facts.
C. Burden of Proof
¶41. In this case, Jane contended that John transmitted the genital warts to her; therefore,
she had the burden of proving this transmission. See Hinton v. McKee, 329 So. 2d 519, 521
(Miss. 1976) (“[T]he party whose case requires the proof of [a] fact has all along the burden
of proof.”); Harris v. Sims, 155 Miss. 207, 124 So. 325, 328 (1929) (holding that the party
having burden of proof must first give “competent and prima facie evidence of a fact” before
the burden shifts to the other party). Matters of medical causation are not appropriately
established by judicially noticed facts.12
¶42. In domestic-relations cases, medical evidence (either testimonial or documentary) is
always appropriate but not always necessary to support a chancery court’s findings on the
allegations of the transmission of diseases between the parties. For example, in Farris v.
Farris, 202 So. 3d 223, 232 (¶32) (Miss. Ct. App. 2016), we found that the evidence
supported a chancery court’s finding of a husband’s transmission of an STD because he
admitted exposure to the disease from his first wife. He testified that his first wife told him
she had herpes, but he himself was never tested. Id. However, he admitted that he never told
his second wife about his exposure until she contracted the disease. Id. In that case, there
was medical evidence that the second wife had herpes and an admission from the husband
that he never told her he had been exposed prior to their marriage was sufficient to support
the chancery court’s finding that he had probably transmitted the disease to her.
¶43. But in Moses v. Moses, 879 So. 2d 1043, 1048 (¶12) (Miss. Ct. App. 2004), we found
12 For example, in Fielder v. Bosshard, 590 F.2d 105, 110-11 (5th Cir. 1979), the
appellant challenged a jury verdict for loss of future earnings by saying that the plaintiff
would not live long enough to earn that much because only twenty percent of his liver
remained healthy. The Fifth Circuit Court of Appeals rejected appellant’s argument because
he had not presented any medical testimony on the issue and further said that “[c]ertainly the
loss, if any, in life expectancy occasioned by impairment in function in a portion[,] even a
large portion[,] of one’s liver is not a matter of common knowledge, let alone judicial
notice.” Id. (emphasis added).
that a wife presented no credible evidence to establish that her husband transmitted numerous
STDs to her. The only evidence the wife offered as to the source of her diseases was her own
testimony because the testimony of her doctor merely concerned treatment, not causation.
Id. at (¶11). The wife’s medical records showed that she had herpes before the marriage, but
she presented no proof that her husband also had herpes before they married. Id. at (¶12).
These medical facts contradicted her claim that he gave her the STD prior to the marriage.
Moreover, if her claim were true, then she married him knowing this information, which
could not support the ground of habitual cruel and inhuman treatment. Id.
¶44. In this case, the medical records of the parties showed that Jane had herpes and genital
warts and that John had neither disease. His medical testing showed he was not a carrier of
herpes. John vehemently denied having any STD exposure at any time. There was no sound
medical testimonyto establish that John transmitted the disease—onlyDr. Conger’s unsworn
report that was based solely on Jane’s information that was shown to be inaccurate and not
based on a review of the parties’ medical records. Thus, in this case, Jane did not meet her
burden of proof.
¶45. In addition, Jane’s medical records also showed that prior to the marriage, she had
been diagnosed with an HPV-related condition. Yet the chancery court, noting Jane’s HPV
diagnoses in 2003 and later in 2018, determined that “there was no proof presented that these
two medical occurrences were linked.” In other words, instead of placing the burden on
Jane to prove there was no link, the chancery court improperly placed the burden on John
to prove that the two occurrences were linked. The chancery court concluded that “it was
unreasonable to conclude that the HPV virus that caused Jane’s genital warts in 2018 was the
same HPV virus that caused her dysplasia in 2003.” But there was no medical record or
testimony to support this medical conclusion that the chancery court used to resolve the
disputed fact of how Jane contracted this disease.
¶46. In summary, we find that the evidence in the record did not support a finding that John
had transmitted genital warts to Jane. We further find that the chancery court improperly
took judicial notice of key medical facts and improperly placed the burden of proof on this
issue on John. We reverse the chancery court’s order that John reimburse Jane for the
$1,038.40 in medical expenses associated with her treatment for condyloma.
III. Whether the chancery court erred in its equitable distribution of
certain personal property of the parties.
¶47. John challenges the chancery court’s classification of his Prudential Life Insurance
policy, the court’s valuation of certain items of personal property, and the court’s overall
distribution of the parties’ marital assets and debts whereby John claims he received only
$37,942 of the parties’ assets valued at $223,201.
¶48. In equitably dividing the assets of divorcing parties, the chancery court must first
classify their assets as either marital or non-marital. Lageman v. Lageman, 313 So. 3d 1075,
1080 (¶8) (Miss. Ct. App. 2021); Hemsley v. Hemsley, 639 So. 2d 909, 914-15 (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 of the marriage.” Williams v. Williams, 303
So. 3d 824, 833 (¶33) (Miss. Ct. App. 2020); Marter v. Marter, 95 So. 3d 733, 737 (¶12)
(Miss. Ct. App. 2012) (explaining that assets that belong to one party prior to the marriage
are considered non-marital property and are not subject to equitable distribution). “The
burden is upon one claiming assets to be non-marital to demonstrate to the court their
non-marital character.” Lageman, 313 So. 3d at 1080 (¶8).
¶49. After classification of the assets, the chancery court must value and equitably divide
the property according to the guidelines set forth in Ferguson v. Ferguson, 639 So. 2d 921,
928 (Miss. 1994). “To equitablydivide property, the chancellor must: (1) classifythe parties’
assets as marital or separate, (2) value those assets, and (3) equitably divide the marital
assets. Williams, 303 So. 3d at 833 (¶33). An equitable division does not necessarily mean
an equal division. Id. at (¶34). “However, the Court will not hesitate to reverse if it finds the
chancellor’s decision is manifestly wrong, or that the court applied an erroneous legal
standard.” Bowen v. Bowen, 982 So. 2d 385, 394 (¶33) (Miss. 2008).
A. Classification of the Prudential Policy
¶50. In this case, John had two Prudential insurance policies. First, he had a $105,000
Prudential Life Insurance policy,ID number 8115764, which was issued on October 4, 1999,
prior to John and Jane’s marriage. John testified that he obtained this group life policy
through his employment at that time (Prudential Financials) and that his parents maintained
it after he left that employment because it was hard for him (a diabetic) to get life insurance.
His father was the named beneficiary on the policy, and the monthly premiums as ofJune 25,
2003 were $12.64. The cash value of this policy as of December 2018 was $1,276.89. The
chancerycourt correctlyfound that this $105,000 life insurance policyprocured byJohn prior
to the marriage and maintained throughout the marriage by his parents was not marital
¶51. In his Rule 8.05 financial statement, see UCCR 8.05, John reported that he had
another $100,000 Prudential Life Insurance Policy (V6010690) that named Jane and one of
the children as beneficiaries. He reported the cash value of this policy to be $42,856. John
testified that this policy was also obtained prior to his marriage when he was employed by
Prudential Financials. At the January 2019 hearing, John said that he intended this policy to
be used for his children’s education if needed.
¶52. John further testified both Prudential policies were maintained by his parents.
A. Let me explain something that has been tossed around. I cannot get
anymore life insurance being a type one diabetic. They don’t offer it.
Theywere given years and years before through work employment. So
my insurance amount, that’s what it is, unless I’m [in a] group policy.
Q. That would be all the more reason to maintain the ones you testified
that you have, correct?
A. I’m going to maintain them.
Q. And you’re going to maintain them with children as beneficiaries?
A. Yes. Children or parents, because my parents are the ones who have
kept those up.
¶53. At trial, John testified that marital assets were not used to pay the premium for the
$100,000 policy that he listed on his financial statement. He produced a bank statement from
a joint account he had with his mother that showed a draft of $145 per month for payment
of the Prudential Insurance policy premium. John said that his mother would transfer funds
into the account to maintain it, and the only debit on the account was for the $145 monthly
insurance premium. Jane presents no proof to dispute this arrangement.
¶54. Despite John’s testimony, which was not rebutted or contradicted by any other
evidence, the chancery court said:
In contrast to the other policy and accounts listed on John’s 8.05, there was no
supporting documentation in the form of statements or other exhibits to
corroborate the details of this policy, i.e. value, how payments were made, etc.
However, in her testimony, Jane referenced a whole life Prudential policy that
John claimed would pay for the boys’ college expenses. The Court therefore
deduces that this Prudential policy is the same one referenced on John’s 8.05
because it is listed on John’s 8.05 with a cash value, and the beneficiaries are
Jane and [one of the minor children13]. Without evidence to the contrary, the
Court presumes it was funded with marital funds and is therefore a marital
asset subject to division.
The chancery court proceeded to list the $100,000 policy with cash value of $42,856 as a
marital asset and assigned that value to John’s share of the marital assets. The chancery court
was clearly in error in this finding.
¶55. “For purposes of a divorce proceeding, marital property consists of ‘any and all
property acquired or accumulated during the marriage.’” Marter, 95 So. 3d at 737 (¶12).
“[I]fthe non-owning spouse claims a partial portion ofthe separate asset’s appreciation, most
courts require the non-owning spouse to prove that marital contributions were made to the
separate property asset and that it increased in value.” Deborah H. Bell, Mississippi Family
Law § 6.03[b] (3d ed. 2019).
¶56. In this case, the testimonyand documentaryproofin the record undisputedlyshow that
the two Prudential policies were purchased before the marriage, which would establish them
as part ofJohn’s separate estate going into the marriage. Jane presented no evidence that any
13 For privacy concerns, this phrase is substituted for the name of the minor child.
marital funds were used to pay the premiums on these accounts, which would be the proof
needed to convert either policy to marital property. Neither party listed payment for either
of these policies as a monthly expense on their Rule 8.05 financial statements. None of their
bank statements entered into the record (fromtheir joint account or Jane’s personal accounts)
reflected any payments made for a Prudential Life Insurance policy premium. The source
of premium payments is key on this issue, as the Mississippi Supreme Court said in Traxler
v. Traxler, 730 So. 2d 1098, 1100 (¶6) (Miss. 1998), where the husband’s life insurance
policy with a cash value was purchased by his mother and found by the chancery court not
to be a marital asset. On appeal, the Mississippi Supreme Court remanded the issue for a
determination of the account from which the premiums were paid. Id. at 1105 (¶39). Here,
Jane presented no evidence to rebut the testimony and documentary proof presented by John
that the premiums on the $100,000 policy were paid by his parents through a joint account
that his mother had with John. Therefore, because the premiums were not paid with marital
funds, the chancery court erred in classifying $100,000 policy as a marital asset. Given the
large amount of the cash value that the chancery court allocated to John as a result, this error
requires a remand of this case for the chancery court to re-compute the equitable division of
the parties’ actual marital assets, which we hold do not include the Prudential Insurance
B. Chancery Court’s Valuation of Personal Property
¶57. John also challenges the chancery court’s $30,000 valuation and allocation of the
parties’ personal property, include a Mahindra tractor, a 4-wheeler, furniture, appliances,
fishing gear, and tools.
¶58. “Property division should be based upon a determination of fair market value of the
assets, and these valuations should be the initial step before determining division.” Horn v.
Horn, 909 So. 2d 1151, 1164 (¶47) (Miss. Ct. App. 2005) (quoting Ferguson, 639 So. 2d at
928). “A chancerycourt’s findings on valuation maybe accomplished by adopting the values
cited in the parties’ 8.05 financial disclosures, in the testimony, or in other evidence.”
Marter, 95 So. 3d at 739 (¶20) (internal quotation marks omitted). “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, 313 So. 3d
at 1080 (¶8). However, when the record lacks any evidence of valuation of property, the
chancery court has no basis to move forward with any equitable distribution of it. King v.
King, 760 So. 2d 830, 836 (¶20) (Miss. Ct. App. 2000).
¶59. We have reversed cases where the chancery court has failed to value the marital
personal property assets. See Horn, 909 So. 2d at 1164 (¶48) (reversing property division
for failure to value assets when only evidence was couples’ conflicting statements of value);
Ward v. Ward, 825 So. 2d 713, 718 (¶15) (Miss. Ct. App. 2002) (failure to value ten horses,
saddles, tack, a mobile home, and vehicles); Wilson v. Wilson, 811 So. 2d 342, 346 (¶¶13-
14) (Miss. Ct. App. 2001) (reversing for failure to value front-end loader, trailer, and
¶60. In this case, John listed his 16-foot boat, a Honda 4-wheeler, a Mahindra tractor, a
golf cart, furniture, appliances, and computers as “other assets” on his Rule 8.05 financial
statement. However, he listed no value for these items. Jane testified that the tractor was not
marital property and belonged to her parents. Although the chancery court listed several of
these items in its findings, it gave no specific values for these items. Instead, relying on
Jane’s claim that John valued his fishing equipment at $20,000 (Jane testified that John had
said several of his rods cost a thousand to two thousand dollars each.) and Jane’s testimony
that she valued his tools between $15,000 and $16,000, the court set a value of $30,000 “for
the items listed” and allocated $30,000 to John for “personal property” in the court’s
division of the marital property. Yet the court assigned a $0 value to the personal property
that Jane kept.
¶61. Contrary to Jane’s testimony, John testified that the fishing equipment was not worth
more than $1,000,14
and although he removed personal items from the house under the
court’s supervision,15 he took no furniture or appliances from the house; he took only the
boat. The record is unclear who had the golf cart or the tractor. Jane did not testify nor
provide any documents pertaining to the value of any of the other items (furniture,
appliances, etc.) that John listed.
¶62. Although a chancery court may use the best information available to it in valuing
personal property, in this case, there was no information available to the chancery court to
14 John said, “I grew up fishing out front. Those sea reels and deep-sea reels $2,000?
Really? That’s nothing but a farce. Those reels aren’t worth half that.” He said the reels
were his father’s from the 1970s, 1980s, and 1990s.
15 The chancery court had allowed John to remove his personal items from the house,
ordered that the attorneys be present when he did so, and what he took was to be recorded.
Although the parties met at an appointed time, and John removed items, no list was ever
provided to the chancery court as to what items John took.
draw upon for the values of the parties’ marital personal property which included a boat, 4-
wheeler, golf cart, potentially the tractor, furniture, appliances and computer equipment.
Neither John nor Jane provided any values for these items on their Rule 8.05 financial
statements and neither testified to their value.16
¶63. We find that the chancery court was manifestly in error in its valuation and
distribution of this property. Without proper valuation of the parties’ marital personal
property, the chancery court’s division must be reversed. Again, $30,000 is a large amount
to assess a party without documentation of all the personal property listed. On remand, the
chancery court should request the parties to provide adequate evidence as to the values of
items they claim to be marital personal property and report who has possession of these
items. Moreover, the chancery court should include the value of each item in its equitable
division. “In cases where the chancellor failed to make findings on the fair market value of
the various assets prior to division, we have reversed and remanded for such findings because
‘it is impossible for this Court to perform its oversight responsibility in the absence of such
a valuation.’” Horn, 909 So. 2d at 1164 (¶47) (quoting Scott v. Scott, 835 So. 2d 82, 87 (¶13)
(Miss. Ct. App. 2002)).
C. Community Bank Debt
¶64. In the court’s original order granting the divorce and dividing the marital assets and
debts, the chancery court equally allocated an $18,000 debt owed by the parties to
16 If the chancery court included a value for the tractor in its $30,000 valuation of
“items listed,” it clearly erred in doing so because Jane testified, without any dispute from
John, that the tractor belonged to her stepmother.
CommunityBank and required each of them to pay $9,000. As its rationale for doing so, the
chancery court stated, “While John denied responsibility for the loan, Jane testified that it
was procured to pay off debts accrued by both parties.” After John filed his motion for
reconsideration and argued that the Community Bank debt was largely due to Jane’s
extravagant spending, the chancery court revised its allocation and required John to pay the
full $18,000 amount. The chancery court offered no reason for the change, merely stating,
“While there was significant testimony regarding Jane’s spending, she counters that the debt
represented a large conglomeration of both parties’ spending over the years and she should
not be assessed with a larger share.”
¶65. Debts are classified similarly to assets for purposes of equitable distribution. Debts
incurred by a spouse prior to the marriage are usually classified as separate frommarital debt.
Debts incurred for the benefit of both parties or the family are considered marital debt. Doyle
v. Doyle, 55 So. 3d 1097, 1108 (¶32) (Miss. Ct. App. 2010). Here, the chancery court
determined that the Community Bank debt was marital and initially divided it equally
between the parties. However, the chancery court later changed the allocation, giving no
rationale for the change. Nothing in the record supports the chancery court’s allocation of
the full debt to John. In fact, the record contradicts the chancery court’s own finding that the
debt was the result of both parties’ actions. Accordingly, on remand when revising its
equitable division of the marital assets and debts, the chancery court should equally divide
the Community Bank debt and allocate $9,000 to each party or give a reason for doing
D. Jane’s Share of John’s Annuity
¶66. John also challenges the chancerycourt’s allocation of his $28,539.24 New York Life
Variable Annuity. Jane’s only annuity was valued at $13,301.67, but the chancery court also
allocated to her all the equity in the home valued at $62,044.34. The combined total of these
items alone is $75,346.01. The chancerycourt allocated to John his PERS retirement account
of $22,745.69, a Roth IRA of $5,998.66, and a Stifel account of $13,674.11. This totaled
$42,418.46. Despite the shortfall to John, the chancery court’s initial order awarded Jane
sixty percent of John’s New York Life Variable annuity, valued at $28,539.24, presumably
in an effort to equalize the asset/debt share of the parties. After John filed his motion for
reconsideration, the chancery court increased Jane’s share of this annuity to seventy percent
but gave no explanation for doing so.
¶67. Because we are remanding this case for the chancery court to revise its equitable
division of the couple’s marital assets and debts, this allocation of John’s annuity will need
to be revisited, especially in light of the rulings of this Court. This includes our ruling that
the chancery court erroneously held that John transmitted an STD to Jane. In its analysis of
the Ferguson factors,17
the chancery court included findings that John intentionally harassed
and publicly humiliated Jane by the issuance of subpoenas and concluded that John sought
to sabotage Jane personally and professionally. As noted below in the discussion on
17 In equitably dividing marital property, the Mississippi Supreme Court outlined a
number of factors the chancery courts could consider in Ferguson v. Ferguson, 639 So. 2d
921, 928 (Miss. 1994). These include, but are not limited to, the contribution of the parties
to the accumulation of the property, the withdrawals made by any party from joint assets, the
values of the assets, tax consequences, and “any other factor which in equity should be
sanctions, we find that the evidence does not support such a finding. Yet, in its Ferguson
factor analysis, the chancery court found that “John’s behavior has potentially damaged
[Jane’s] reputation in the community as least temporarily.” There was no testimony from
anyone other than Jane about this alleged damage to her reputation. Even her employer
testified that the quality of her work had not suffered. On remand, the chancery court shall
reassess the evidence presented in accordance with this opinion and re-assess the Ferguson
factors to determine what, if any, percentage of John’s New York Life annuity to award to
IV. Whether the chancery court erred in its determination of the
income of the parties.
¶68. As of July 6, 2020, the chancery court found that Jane’s net monthly income was
$3,687.58.18 The chancery court accepted Jane’s claimed gross monthly income of $6,194
from salary and wages, as well as Jane’s reasons for the drop from the $11,363 per month she
was making in June 2018. Jane said that the stress of the litigation, John’s harassment and
humiliation of her by naming over sixty potential witnesses, and his issuance of numerous
subpoenas duces tecum were the reasons for her reduced income. The chancery court found
that John had “sought to sabotage Jane personally and professionally.” On appeal, John
challenges Jane’s claim of such a reduction in income from her employment that the
chancery court accepted, arguing that the court’s analysis is contrary to the evidence.
18 It is uncertain how the chancery court arrived at this figure because Jane reported
on her July 25, 2019 Rule 8.05 financial statement that her net monthly income was
¶69. Numerous findings of a chancerycourt in a divorce case (including child support19 and
attorney’s fees20) depend on as accurate a determination of the parties’ income as is possible.
In this case, Jane’s sole source of personal income was her employment with Cameron’s real
estate company. However, how the chancery court computed that income is unclear and
contradicted by some evidence presented.
¶70. In her July 25, 2018, Rule 8.05 financial statement, Jane reported a monthly gross
income of $11,363 from this employment. She testified that this figure was based on her
2017 tax return. Jane never produced her 2018 tax return, although she testified that she
made approximately $9,166 per month gross in that year. She also testified that she had not
set aside the $2,000 per month for taxes after June 2018. John then subpoenaed documents
fromCameron’s real estate company, Jane’s employer, to determine Jane’s income after June
2018. In response, Cameron provided checks paid to Jane from June 2018 through March
29, 2019, which were entered into evidence. Cameron’s records reflect that in the first three
months of 2019, Jane was paid $28,609, or an average of $9,536 gross each month. If the
$2,000 per month for taxes were subtracted, Jane’s adjusted gross income would be $7,536
per month, approximately $1,400 per month more than what the chancery court found.
¶71. It is clear from the records provided, including past tax returns through 2017, that
Jane’s monthly income ranged from a low of $11,296 in 2014 to a high of $14,554 in 2015.
19 The amount of child support is based on a percentage set by statute applied to a
party’s adjusted gross income. Miss. Code Ann. § 43-19-101(1).
20 See Drumright v. Drumright, 812 So. 2d 1021, 1032 (¶37) (Miss. Ct. App. 2001)
(disparity of the parties’ incomes warranted an award of attorney’s fees).
The records subpoenaed from her employer also show that Jane’s income can vary
significantly from month to month. For example, in January 2019, she was paid $4,265, but
in February and March of 2019, she made $11,436 and $12,908 respectively. Additionally,
her employer’s records show that from June 2018 through March 2019 (ten months), Jane
was paid $83,609.13. This averages to $8,360.91 per month, not $6,194.43 per month as
Jane claimed on her revised Rule 8.05 financial statement.
¶72. Because we are remanding this case to the chancery court for revision of the equitable
division of the parties’ marital assets, we decline to rule on whether the chancery court
correctly computed Jane’s income. On remand, the parties should be afforded the
opportunity to provide to the court not only their current Rule 8.05 financial statements, but
they should be allowed to obtain and present any evidence to establish the veracity of the
income and expense figures.
V. Whether the chancery court erred in denying John’s request for
¶73. “Awards of alimony are matters ‘within the discretion of the Chancellor.’” Oates v.
Oates, 291 So. 3d 803, 806 (¶3) (Miss. Ct. App. 2020) (quoting Powers v. Powers, 568 So.
2d 255, 257 (Miss. 1990)). “This appellate court will not reverse unless the Chancellor was
manifestly in error in his finding of fact and manifestly abused his discretion.” Id.
¶74. Marital fault for the divorce is not a bar to an award of alimony. Hammonds v.
Hammonds, 597 So. 2d 653, 655 (Miss. 1992). Instead, fault becomes one of a number of
factors the court may consider in determining if alimony is appropriate. Id.; see also Warren
v. Rhea, 318 So. 3d 1187, 1192 (¶24) (Miss. Ct. App. 2021) (citing Armstrong v. Armstrong,
618 So. 2d 1278, 1280 (Miss. 1993) (“The Supreme Court has established a number of
factors to guide courts in awarding alimony.”)).
¶75. In Thompson v. Thompson, 894 So. 2d 603, 609 (¶34) (Miss. Ct. App. 2004), this
Court articulated the general procedure for the chancery court to follow in determining
First, the chancellor is to classify the parties’ assets as marital or non-marital
based on the court's decision in Hemsley v. Hemsley, 639 So. 2d 909
(Miss.1994). Second, the chancellor is to value and equitably divide the
marital property employing the Ferguson factors as guidelines, in light of each
party’s non-marital property. However, “[p]roperty division should be based
upon a determination of fair market value of the assets, and these valuations
should be the initial step before determining division.” Ferguson, 639 So. 2d
at 929. Third, if the marital assets, after equitable division and in light of the
parties’ non-marital assets, will adequately provide for both parties, then “no
more need be done.” Finally, if an equitable division of marital property,
considered with each party’s non-marital assets, leaves a deficit for one party,
then alimony should be considered. Kilpatrick v. Kilpatrick, 732 So. 2d 876
¶76. Given that this case is being remanded for the chancery court to re-evaluate and
reform its equitable division of John and Jane’s marital assets and debts, the need, if any, for
alimony will also have to be re-assessed. Moreover, as noted above, on remand the chancery
court can re-assess the current incomes of both parties. Accordingly, we make no ruling on
John’s request for alimony and remand that issue for further consideration by the chancery
court after it makes its new equitable division of the parties’ assets and debts.
VI. Whether the chancery court erred in not reducing the amount of
¶77. John argues that the chancery court erred when it did not reduce the amount he was
required to pay in child support. John claims that pursuant to his and Jane’s custody
arrangement, which the court approved and incorporated in its orders, he has custody of his
boys thirteen nights of the month. Accordingly, John claims he is entitled to a downward
deviation from the $743.15 amount for two children set by Mississippi Code Annotated
section 43-19-101(1) (twenty percent of John’s net income of $3,715.74).
¶78. The Mississippi statutory child-support guidelines provide that noncustodial parents
should pay twenty percent of their adjusted gross income for two children. Miss. Code Ann.
§ 43-19-101(1) (Rev. 2015); Plummer v. Plummer, 235 So. 3d 195, 200 (¶22) (Miss. Ct.
App. 2017). Sanctioned reasons for deviations from the statutorily set guidelines are found
in Mississippi Code Annotated section 43-19-103 (Rev. 2015):
The rebuttable presumption as to the justness or appropriateness of an award
or modification of a child support award in this state, based upon the
guidelines established by Section 43-19-101, may be overcome by a judicial
or administrative body awarding or modifying the child support award by
making a written finding or specific finding on the record that the application
of the guidelines would be unjust or inappropriate in a particular case as
determined according to the following criteria:
. . . .
(g) the particular shared parental arrangement, such as where the noncustodial
parent spends a great deal of time with the children thereby reducing the
financial expenditures incurred by the custodial parent, or the refusal of the
noncustodial parent to become involved in the activities of the child, or giving
due consideration to the custodial parent's homemaking services.
(h) Total available assets of the obligee, obligor and the child.
. . . .
(j) Any other adjustment which is needed to achieve an equitable result which
may include, but not be limited to, a reasonable and necessary existing expense
Deviations from the guidelines must be supported by written findings of fact. Plummer, 235
So. 3d at 201 (¶26).
¶79. An example of a court-approved deviation because of the amount of time a parent
spent with his children is found in Gray v. Gray, 909 So. 2d 108 (Miss. Ct. App. 2005). In
that divorce case, the parties had four children. Id. at 110 (¶2). They separated in 2001, and
the divorce matter was tried in October 2003. Id. at (¶3). The chancery court ordered the
husband to pay child support of $160 per week or $640 per month, which exceeded the
statutory amount of twenty-four percent of his adjusted gross income. Id. at 114 (¶29). The
chancery court increased the monthly amount because the husband had visited the children
only three times since the parties separated. Id. The husband challenged this ruling on
appeal, and we affirmed the chancery court’s rationale and upward deviation. Id. We
reasoned, “[I]ndeed, it is logical that a parent will incur greater expense due to the
non-custodial parent’s failure to exercise visitation.” Id.
¶80. In Plummer, 235 So. 3d at 291 (¶26), we cited Gray in approving a downward
deviation in child support. There, the husband had not visited with his special-needs child.
Id. at (¶27). In a modification action, the chancery court reduced the husband’s child support
obligation by $100 for each month if he visited with his child for at least one week. Id. On
appeal, we found the chancery court’s action to be within its discretion. Id.
¶81. In the case at hand, the chancery court approved a custodial arrangement that afforded
John very liberal visitation, including extended weekends, so that he saw his boys every
week. The chancery court itself pointed out that John had the boys with him thirteen nights
of the month—41.9% of a 31-daymonth or 43% of a 30-daymonth. As John notes, if he had
the children two days more each month, then he would have been considered the primary
custodian. But the chancery court refused John’s request for a downward deviation for two
reasons: first, because John had requested the visitation schedule, and second, because a
downward deviation would be arbitrary and therefore potentially dangerous to the children.
We find that the chancery court’s reasoning was erroneous and not supported by the record.
¶82. It is clear that despite their personal animosity, John and Jane have supported and
encouraged each other’s relationship with their boys. Neither has stood in the way of the
other seeing, visiting, and interacting with them. Moreover, it appears that John was
exercising the visitation approved by the chancery court with no problems and with no
harmful effect on the children. Jane clearly took advantage of the time John had the children
by taking frequent trips with her friends. Importantly, both parties agreed to the visitation
schedule. Thus, the chancery court was manifestly in error to say that John alone had
requested this visitation. Moreover, such a reason to deny a deviation in child support
contradicts the statute, which specifically states that deviations should be considered “where
the noncustodial parent spends a great deal of time with the children thereby reducing the
financial expenditures incurred by the custodial parent.” Miss. Code Ann. § 43-19-103(g).
¶83. In addition, the chancery court failed to articulate why a deviation from the child
support obligations would be “arbitrary” in this case. “‘Arbitrary’ means fixed or done
capriciously or at pleasure. An act is arbitrary when it is done without adequately
determining principle; not done according to reason or judgment.” Attala Cnty. Bd. of Sup’rs
v. Miss. State Dep’t of Health, 867 So. 2d 1019, 1024 (¶18) (Miss. 2004). “We deem an act
arbitrary when it occurs not according to reason or judgment, but occurs based on the will
alone.” Carter v. Cleveland Sch. Dist., 118 So. 3d 673, 677 (¶17) (Miss. Ct. App. 2013).
Indeed, here there was a clear reason to consider deviation from the child support
guideline—the liberal visitation schedule itself. We said in Gray that it was logical that a
custodial parent will incur a greater expense if the non-custodial parent fails to visit. Gray,
909 So. 2d at 114 (¶30). Conversely, in this case, it is logical that John, as the non-custodial
parent, will incur greater expense due to his exercise of the agreed-upon visitation plan. It
is also logical that Jane will have less expenses feeding and caring for the children while they
are with John. Clearly, a downward deviation would not be “arbitrary” in this case.
¶84. Finally, there was no evidence in the record to support the chancery court’s finding
of possible harm to the children by reducing John’s child support obligation. Even the
chancery court itself did not cite any evidence of potential harm.
¶85. Jane argues that John’s request should be denied because he has failed to voluntarily
pay for the boys’ extra-curricular activities. But John was never ordered to pay for extracurricular expenses, only for medical-related or school expenses. There is no requirement
in the statute that conditions deviations on a non-custodial parent’s making additional
voluntary payments. Jane also argues that John has attempted to “bamboozle” the court into
believing that her income was higher. John’s income has never been in dispute, nor has the
fact that Jane (by her own admission) makes at least twice as much, if not more, than he does.
Because we find that John’s request for a downward deviation is meritorious, and because
the record does not support the chancery court’s reasons for denying it, we find that the
chancery court was manifestly wrong and abused its discretion in refusing John’s request.
We reverse the chancery court’s denial of John’s request and remand the matter for the
chancery court to grant it and set a reasonably lower amount.
VII. Whether the chancery court erred in its award of sanctions to Jane
during the discovery process.
¶86. During the proceedings, John and his attorney were twice sanctioned by the chancery
court for discovery abuses. The first was a $1,000 sanction that the court imposed on
February 19, 2019, because John had failed to comply with an agreed order entered on
October 17, 2018, to adequately supplement his interrogatory answers concerning the
proposed testimony of the sixty potential witnesses he listed. John does not challenge this
sanction in his appeal. But he does challenge the second $5,000 sanction that the chancery
court later imposed when it later ruled that John and his attorney had shown bad faith during
¶87. Rule 37 of the Mississippi Rules of Civil Procedure allows for the imposition of
expenses and sanctions by the trial court for discovery abuses. Mississippi Rule of Civil
Procedure 37(b)(2) also authorizes sanctions:
Sanctions by Court in Which Action Is Pending. If a party. . . fails to obey an
order to provide or permit discovery, including an order made under subsection
(a) of this rule, the court in which the action is pending may make such orders
in regard to the failure as are just, and . . .
(D) in lieu of any of the foregoing orders or in addition thereto,
an order treating as a contempt of court the failure to obey any
In lieu of any of the foregoing orders or in addition, thereto, the court shall
require the party failing to obey the order or the attorney advising him or both
to paythe reasonable expenses, including attorney’s fees, caused bythe failure,
unless the court finds that the failure was substantially justified or that other
circumstances make an award of expenses unjust.
¶88. “We review the trial court’s handling of a motion for sanctions for abuse of discretion.
‘This Court will reverse only where the trial court abused its discretion in imposing
sanctions, so long as correct legal standards were employed.’” Hodges v. Lucas, 904 So. 2d
1098, 1102 (¶14) (Miss. Ct. App. 2004) (quoting Leaf River Forest Prods. Inc. v. Deakle,
661 So. 2d 188, 196 (Miss. 1995)).
We begin with a determination of whether the trial court applied the correct
legal standard. Pierce [v. Heritage Props., 688 So. 2d 1385, 1386 (Miss.
1997)]. If so, then we consider whether the trial court’s “decision was one of
several reasonable ones which could have been made.” Id. We will affirm
“unless there is a definite and firm conviction that the trial court committed a
clear error of judgment in the conclusion it reached upon weighing of relevant
factors.” Id. (quoting Cooper v. State Farm Fire & Cas. Co., 568 So. 2d 687,
692 (Miss. 1990)).
Edwards v. Coca Cola Bottling Co. United Inc., 264 So. 3d 763, 768 (¶14) (Miss. 2019). “A
willful violation of a discovery rule occurs when there is a conscious or intentional failure
to comply with the rule’s requirements. A finding of willfulness may be based upon either
a willful, intentional, and bad faith attempt to conceal evidence or a gross indifference to
discovery obligations.” Eaton Corp. v. Frisby, 133 So. 3d 735, 748 (¶49) (Miss. 2013).
¶89. In this case, the chancery court imposed $5,000 in sanctions on John and his attorney
for three reasons: (1) because it considered the untimely filing of John’s answer without an
order from the court to be part of a “broader pattern of conduct,” (2) because John had failed
to properly answer discovery concerning his sixty-three named witnesses, and (3) because
John had issued “a broad swath of subpoenas duces tecum.” From these actions, the
chancery court concluded that it was “reasonable to infer that John was motivated by ill will
and a desire to alert as many people in the community as possible that the couple was
undergoing contentious divorce litigation.” Examining each of these, we find that the
chancery court’s basis for imposing sanctions was flawed or incorrect, and we are of the firm
conviction that the chancery court erred in imposing the sanctions.
A. Untimely Filing of Answer
¶90. From our review of the record, we hold that the chancery court abused its discretion
in considering John’s untimely filing of his answer to the complaint as part of a broader
pattern of conduct warranting sanctions for several reasons. First, Jane withdrew her motion
to strike John’s answer in toto and sought only an order striking certain “offensive”
references in it. Second, the chancery court found no merit to Jane’s claim that even these
certain portions of John’s answer should be stricken. Third, the chancery court itself found
that any error in John’s late filing to be harmless and explained how John’s attorney filed the
pleading without obtaining an order from the court:
The Court has reviewed the specific e-mails discussed by counsel. And upon
receipt of Mr. Hornsby’s correspondence and motion for leave to file his
client’s answer on April 11, 2019, the Court, through its staff attorney,
e-mailed Ms. Nicholson, copied Mr. Hornsby, and asked if she had an
objection to the entry of an order on Mr. Hornsby’s motion. Ms. Nicholson
responded that [John’s] answer was untimely under the rules but that she
would not object to a ten-day extension. She did question Mr. Hornsby’s
tardiness. So without further comment from the Court, Mr. Hornsby did file
his answer and counterclaim.
In summary, Jane withdrew her motion to strike John’s answer, and the chancery court
denied any modification to that motion. Consequently, there is no factual basis for the
chancery court to have considered any actions of John or his attorney concerning the filing
of John’s answer as part of a broader pattern of conduct of bad faith warranting sanctions.
B. John’s Answers to Discovery
¶91. Jane propounded discovery on July 9, 2018, which John failed to answer. After Jane
filed a motion to compel, the parties agreed to an order that required John to respond by
October 28, 2018. One interrogatory requested the identification of every individual whom
he expected to use as a witness and give a synopsis of each witness’s expected testimony.
John responded that he had not decided whom he would call as a witness. But he provided
the names of sixty-three individuals that he might call, some with phone numbers and some
no further information. On November 28, 2018, Jane filed another motion to compel which
was heard by the chancery court on January 15, 2019. The court reviewed each of John’s
answers, including the one on the identification of witnesses, and ordered him to answer
them more completely. Then, because this was Jane’s second motion to compel, the
chancery court ordered John to pay an attorney’s fee of $1,000. John does not appeal the
chancery court’s February 15, 2019 order concerning this ruling.
¶92. On April 12, 2019, John’s attorney supplemented his answers, providing some
additional information about the sixty-three witnesses, but also said that “the above
information is all the information that is currently in Defendant’s possession. Defendant is
working to accumulate the information requested herein and will do so as soon as possible.
The days of phone books and merely looking someone’s address up is no longer. The
Defendant is calling each possible witness to determine the testimony as requested and
gathering address information.” On April 18, 2019, without sending a good faith letter to
alert John of any inadequacies in his April 12, 2018 supplemental responses, Jane filed a
motion to strike John’s “Answer” and a motion for sanctions for, inter alia, the failure to
answer the interrogatories. The motion contained no specific information regarding how
John’s responses were inadequate; it merely said that John had been ordered to supplement
his responses and that “the defendant has materially failed to do so.” On May 21, 2019,
John’s new attorney further supplemented John’s answers, whittling the number of witnesses
down to thirty-three and providing a summary of the proposed testimony of each. At the
October 2019 hearing on the sanctions matter that was ultimately held post-trial, no mention
was made of John’s final supplementation, which was provided well before the August 29,
2019 trial date.
¶93. The chancery court used John’s failure to answer discovery to support its imposition
of $5,000 in additional sanctions. But after Jane filed her motion for sanctions in April, John
supplemented his answers in May. Jane made no claim that those answers were inadequate,
nor did she give John notice of any specific deficiencies in his supplementation as required
by Rule 1.10(c) of the Uniform ChanceryCourt Rules.21 Therefore, prior to the trial and the
belated hearing on Jane’s motion for sanctions, John had cured any deficiencies. Jane did
21 “No motion to compel shall be heard unless the moving party shall incorporate in
the motion a certificate that movant has conferred in good faith with the opposing attorney
in an effort to resolve the dispute and has been unable to do so. Motions to compel shall
quote verbatim each contested request, the specific objection to the request, the groundsfor
the objection and the reasons supporting the motion.” UCCR 1.10(c).
not present any evidence or argument that John’s delay in providing adequate answers
prejudiced her trial preparation in any way. See Edwards, 264 So. 3d at 769 (¶16) (Whether
a party’s trial preparation has been substantially prejudiced is a consideration when the court
is contemplating dismissal of an action for discovery violation.). Sanctions are not proper
when a party complies with a court’s order. See Laws v. Louisville Ladder Inc., 146 So. 3d
380, 386 (¶20) (Miss. Ct. App. 2014) (“The trial court herein erred by imposing sanctions,
since the record reflects that Laws complied, as required by Rule 45 and Mississippi Code
Annotated section 11-1-51, with the subpoena duces tecum.”). Here John ultimately
complied, reducing the number of witnesses and giving full and detailed information about
each, three months before trial. Neither the chancery court nor the dissenting opinion
acknowledge the adequacy of John’s May 21, 2019 supplemental responses except to say
they were untimely and filed a few days after the end of discovery. The discovery deadline
did not eliminate John’s obligation to supplement his discovery answers thereafter. Under
Mississippi Rule of Civil Procedure 26(f)(2), a party has a duty to amend his or her responses
to discovery even after the expiration of a discovery deadline. Knapp v. St. Dominic-Jackson
Mem’l Hosp., 89 So. 3d 561, 566 (¶18) (Miss. 2012).22 Considering the evidence in the
22 The dissent creates the impression that John gave other inadequate interrogatory
responses by partially quoting John’s response to a request that he provide a synopsis of his
claims against Jane. The dissent implies that John merely said, “[Jane] has spent marital
funds on luxury items such as diamond ring(s), [and a] high end trainer at over $250.00 per
month (results not present).” But there was more to John’s answer than this, as noted in the
chancery court’s order. Even there, the court only quoted part of John’s answer, saying that
John’s answer stated:
Plaintiff has spentmarital funds on luxury items such as diamond ring(s), high
end trainer at over $250.00 per month (results not present), luxury ‘girls’ trips
record, we find that the chancery court erred in considering John’s alleged failure to respond
to interrogatories as support for a finding of bad faith when it imposed additional sanctions.
C. Subpoenas Duces Tecum
¶94. Jane filed her first Rule 8.05 financial statement on or about July 25, 2018. She listed
her various monthly living expenses, including gas, electricity, telephone, church donations
($300), and realtor dues/cost ($500). She claimed a net monthly income after taxes of $7,673
and monthly expenses of $9,031.35, which included over $2,000 per month for such items
as her personal medical expenses ($650), entertainment ($300); incidental and
miscellaneous—extracurricular activities for the boys ($700), pet expenses ($415), and a
¶95. In March 2019, John issued subpoenas to Alliance Pest Control, Animal Hospital of
Orange Grove, Centerpoint Energy, Gulfport Water Department, Gulf Coast Association of
Realtors, Hilton Dental Clinic, Mississippi Power Company, Trinity Methodist Church, and
six of the parties’ financial banking institutions. Additional subpoenas were issued to Jane’s
employer, Cameron’s real estate company, Coast Electric Power, C-Spire, AT&T Mobile,
and an individual called K.J. John subpoenaed his own records fromCVS Pharmacy because
Jane had accused him of taking a herpes drug that started with the letters “VAL,” as well as
Jane’s pharmacy records because he claimed she had abused the prescription medication she
to Florida, New Orleans, various sites in Mississippi to ‘play ‘ tennis and
drink copious amounts of wine as provided in the information from Bayou
Bluff Tennis Club, plastic surgery for purely vain cosmetic reasons and
clothes and shoes. Plaintiff secretly kept a separate bank account for the
entirety of [the] marriage, and while [John] struggles to meet the bills,
Plaintiff was living high on [the] hog, specifically. . . .
had received for her various cosmetic procedures. John also subpoenaed records from
Bayou Bluff Tennis Club to reflect Jane’s expenditures for her membership and activities
there and Jane’s medical records from the doctors she had seen (Dr. Mallett, Dr. Conger, Dr.
Wyble, and Dr. Allen). In total, John had twenty-eight subpoenas issued between March and
July of 2019.23 Thereafter, Jane filed a revised Rule 8.05 financial statement on July 25,
¶96. From testimony at trial and argument during the hearing on the motion for sanctions,
the subpoenaed information established that Jane’s monthly church contribution prior to July
2018 was in fact $100, not $300. Moreover, the subpoena to the realtor association revealed
that their dues were $500 per year, not per month. Jane’s revised Rule 8.05 financial
statement showed reduced monthly church donations (now $100 per month), reduced pet
expenses (now $140 per month), and reduced realtor dues/costs (now $180 per month). She
also reduced her personal medical expenses to $300 and the pest control expense went down
from $65 per month to $60.
¶97. It is clear to this Court that John’s subpoenas played some part in Jane’s revision of
her Rule 8.05 financial statement. The chancery court, however, faulted John for their
issuance. The chancery court inferred a nefarious motive and intent on John’s part because
the chancery court determined that John could have obtained information on his own from
any account he held jointly with Jane or that he could have asked Jane in discovery to verify
her expenses. Moreover, the court found that John used only a small percentage of the
23 One subpoena to Dr. Pam Cutrer was a deposition subpoena. The record does not
reflect whether this deposition was taken.
documents subpoenaed at trial. We find that these reasons are unfounded. Just because a
party has a joint account and can obtain documents, in a trial setting a prudent attorneywould
subpoena information, even if only to verify the authenticity of the documents produced.
Moreover, because Jane filed a revised Rule 8.05 financial statement and voluntarily
corrected the inaccuracies, John did not have to use as many documents as he may have
received. The fact that he did not have to use them should not be held against him.
¶98. The chancery court said that because John could have verified the expenses on the
Rule 8.05 financial statement without involving third parties, “it is reasonable to infer that
[John] was motivated by ill will and a desire to alert as many people in the community as
possible that [he] was undergoing [a] contentious divorce.” But there is evidence to the
contrary that makes such an inference of ill will not reasonable. First, each subpoena had a
legitimate purpose: to verify the expenses Jane claimed, to secure medical records for the
medical assertions Jane made, to determine her income, or to obtain evidence of John’s
claims against Jane (e.g.,subpoenaing pharmacyrecords to establish his claimof prescription
abuse). Second, there is no requirement under our rules that a party must propound
interrogatories or requests for documents to the other party before issuing a subpoena. Third,
most of the subpoenas were issued to businesses (banks, an animal hospital, the water
department, the power company, a telephone company, medical offices, pharmacies, Jane’s
employer, etc.). Only two were issued to individuals—to K.J. and Nolan (Jane’s personal
trainer) whose expense Jane did not include on her Rule 8.05 financial statement. Although
Jane testified about her embarrassment over the issuance of these subpoenas, she presented
no other evidence or testimony to corroborate this alleged experience. Without discounting
her testimony, as the dissent believes we do, we find that the legitimate purposes of the
subpoenas outweigh Jane’s concerns. For example, her saying that she did not want to be
on the real estate commission’s radar is far outweighed by the legitimate need to verify the
fees that the commission charged. Moreover, Jane did not seek, nor did her attorney ever
file, any motion to quash the allegedly embarrassing subpoenas as was her right under
Mississippi Rule of Civil Procedure 45(d)(2)(c).24
¶99. Given the circumstances of this case, we find that the that the chancery court abused
its discretion in imposing the $5,000 in sanctions. Jane in fact withdrew her motion to strike
John’s untimely answer, and the chancery court denied Jane’s oral request for modification
of it at the hearing. Concerning the discovery responses, John had already been sanctioned
once for failing to adequately supplement his answers, and Jane did not specifically identify
where or how his final supplementation was still inadequate. Finally, there were justifiable
reasons for John’s subpoenas, and Jane took no action to quash them. The evidence does not
support a finding that John acted with ill will or bad faith in issuing them. Therefore, we
24 “The court, upon motion made promptly and in any event at or before the time
specified in the subpoena for compliance therewith, may (i) quash or modify the subpoena
if it is unreasonable or oppressive, or (ii) condition the denial of the motion upon the
advance by the person in whose behalf the subpoena is issued of the reasonable cost of
producing the books, papers, documents, or tangible things.” M.R.C.P. 45(d)(2)(c).
The dissent points out that Jane sought protective orders for five of the subpoenas
issued, document subpoenas to AT&T, C-Spire, Hancock Bank, Dr. Pam Cutrer, and a trial
subpoena to Dr. Wyble. Because the AT&T, C-Spire, and Hancock Bank subpoenas had
been issued after the discovery deadline and had not been served, the chancery court granted
Jane protective orders. The chancery court issued orders modifying the subpoenas to the
doctors. The chancery court’s actions showed that Jane could have sought relief from the
allegedly embarrassing subpoenas as well, but she did not.
reverse the chancery court’s order concerning the $5,000 in sanctions.
Outcome: In this divorce case, we affirm the chancery court’s opinion in part, reverse it in part,
and remand for further proceedings. We affirm the grant of divorce to Jane on the grounds
of adultery, but we reverse the chancery court’s finding that it was reasonable to conclude
that John transmitted an STD to Jane. We further reverse and remand the chancery court’s
opinion concerning its classification and equitable distribution of the parties’ marital assets
and debts. We further reverse the chancery court’s denial of John’s request for a downward
deviation from the statutory guideline setting the amount of child support and remand for the
chancery court to set a reasonable lower amount. Because John’s request for alimony
depends on an accurate assessment of the Jane’s income as well as a proper equitable
division of their assets and debts, we make no ruling on those issues and remand them to the
chancery court for further action. Finally, we reverse the chancery court’s order ofsanctions
and its order that John pay the $1,038.40 bill for Jane’s treatment for the condyloma, which
she failed to prove he caused.