Ferguson v. Ferguson

For the Court:

I. INTRODUCTION

At issue in this domestic relations case is the division of marital property (both personal and real), alimony (both periodic and lump-sum), and future interests in retirement/pension plans. This Court has been in a transitory state regarding the division of marital assets. Our prior law adhered to a system of returning property to the spouse in whom title was held (separate property method); however, recent opinions have eroded adherence to that method of division. This Court has “long recognized that, incident to a divorce, the chancery court has authority, where the equities so suggest, to order a fair division of property accumulated through the joint contributions and efforts of the parties.” Brown v. Brown, 574 So.2d 688, 690 (Miss.1990); Brendel v. Brendel, 566 So.2d 1269, 1273 (Miss.1990); Jones v. Jones, 532 So.2d 574, 580-581 (Miss.1988); Clark v. Clark, 293 So.2d 447, 450 (Miss.1974). With this opinion, this Court adopts guidelines for application of the equitable distribution method of division of marital assets.

Billy Ferguson, Sr., (Billy), appeals from a final judgment of divorce entered on November 12,1991, by the Chancery Court of Newton County awarding a divorce to Linda Ferguson, (Linda), on the ground of adultery and denying Billy’s counterclaim for divorce filed on the basis of habitual cruel and inhuman treatment. The Court affirms the granting of a divorce to the wife, together with custody and support of the minor child. With adoption of guidelines to aid chancellors in division of marital property under the equitable property division method, this Court reverses the award of marital assets and remands to the chancery court to reevaluate the marital division in light of these guidelines.

II. MARITAL PROPERTY DIVISION

A. Historical Background

States have devised various methods to divide marital assets at divorce, and approaches have usually followed one of three systems. According to Stephen J. Brake, Equitable Distribution vs. Fixed Rules: Marital Property Reform and the Uniform Marital Property Act, 23 B.C.L.Rev., 761, 762 (1982), the separate property system, the equitable distribution system, and a system of fixed rules (community property) are the three systems reflected in American jurisprudence. Id. (citing Foster and Freed, Divorce, note 6, at 4060-51). According to Foster and Freed, Mississippi, Florida, South Carolina, Virginia, and West Virginia previously followed the separate property system, which was a system that merely determined title to the assets and returned that property to the title-holding spouse.

Our separate property system at times resulted in unjust distributions, especially involving cases of a traditional family where most property was titled in the husband, leaving a traditional housewife and mother with nothing but a claim for alimony, which often proved unenforceable. In a family where both spouses worked, but the husband’s resources were devoted to investments while the wife’s earnings were devoted to paying the family expenses or vice versa, the same unfair results ensued.

The flaw of the separate property system, however, is not merely that it will occasionally ignore the financial contributions of the non-titleholding spouse. The system ... is also unable to take account of a spouse’s non-financial contribution. In the case of many traditional housewives such non-financial contributions are often considerable. Thus, to allow a system of property division to ignore non-financial contributions is to create a likelihood of unjust division of property.

See Brake, supra at 765.

The non-monetary contributions of a traditional housewife have been acknowledged by this Court, and to some extent, case law has helped lessen the unfairness to a traditional housewife in the division of marital property. The mechanism applied by this Court to prevent unfair division is the resulting trust. Jones v. Jones, 532 So.2d 574, 582 (Miss.1988) (Prather, J., concurring).

Also, this Court has allowed lump sum alimony as an adjustment to property division to prevent unfair division. Reeves v. Reeves, 410 So.2d 1300, 1303 (Miss.1982); Clark v. Clark, 293 So.2d 447, 449 (Miss.1974); Jenkins v. Jenkins, 278 So.2d 446, 449 (Miss.1973). The lump sum award has been described as a method of dividing property under the guise of alimony. Stephen J. Brake, supra at 766. See also, H. Clark, Domestic Relations, § 14.8 at 450 (1976). In Bowe v. Bowe, 557 So.2d 793, 794 (Miss.1990), this Court acknowledged that a chancellor had the authority and discretion to divide the marital assets by awarding periodic or lump sum alimony, or both, or by dividing the personal property, or awarding the exclusive use and possession of the homestead. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). The full development of our jurisprudence in this arena culminated in Draper v. Draper, 627 So.2d 302, 305 (Miss.1993), in which this Court abandoned the prohibition against the chancery court’s divestment of title to real property, which was the last vestige of the separate property method of distribution of marital assets.

Thus, through an evolution of case law, this Court has abandoned the title theory method of distribution of marital assets and evolved into an equitable distribution system.

B. Chancery Court Authority

Courts have acknowledged that the power and authority of the chancery court to award alimony and child support have been historically derived from the legal duty of the husband to support the family. As to division of marital assets, it is the broad inherent equity powers of the chancery court that give it the authority to act. General equity principles of fairness undergird this authority. That duty was codified in Miss. Code Ann. § 93-5-23 (Supp.1993) as follows:

When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife or husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of sum so allowed.

However, where proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each. (Emphasis added)

Of particular significance is the verbiage “any allowance ... to him or her.”

Additionally, the statutory authority granted to the chancery court to award divorce on no-faulf grounds and to approve the parties’ agreement regarding marital property division or to make such division, on submission of that issue to the court by the parties, further undergirds the inherent equitable power of the chancery courts to address this issue of division of marital assets. The development of equitable doctrines is not foreclosed by these statutes. Under Draper, chancellors are empowered to address realty assets and to divest title, including that of the family home. In Draper, this Court said:

It is well-established by this Court that the chancery court has the authority to order an equitable division of property that was accumulated through the joint efforts and contributions of the parties. Brown v. Brown, 574 So.2d 688, 690 (Miss.1990). However, there is no automatic right to an equal division of jointly-accumulated property, but rather, the division is left to the discretion of the court. Id. at 691.

Id. at 305. In addition to the development of family law within our jurisprudence, there has been the advent of federal legislation into regulation of military and employee pension plans which has opened yet another arena in which state equity courts are empowered to address future interests and apply state law to pension plans, military retirement, and railroad retirement. Bowe, supra. This Court, therefore, holds that the chancery court is within its authority and power to equitably divide marital assets at divorce.

C. Vesting of Rights

The Court needs to address vesting in conjunction with the divesting of title to realty or personalty. This Court has held that a vested interest in a military retirement pension plan is a marital asset; however, “the spouse has no vested right in the serviceman’s military retirement pension.” South ern v. Glenn, 568 So.2d 281, 283 n. 1 (Miss.1990); Bowe v. Bowe, 557 So.2d 793, 795 (Miss.1990). As to the division of marital assets, this Court stated in Brown, 574 So.2d at 691 (citations omitted), that marital assets are not a source of vested rights. This Court stated:

The matter rather is committed to the discretion and conscience of the Court, having in mind all of the equities and other relevant facts and circumstances, (citations omitted) ... the term “vested” [ ] has no hard edged definition, no fixed and invariable legal meaning. “Vested” means different things in different contexts. (Citations omitted) ... vesting is quite different from a rule of discretion which allows a chancery court, incident to a divorce, to consider the relevant facts and circumstances and, where it is equitable and just to recognize a party’s contributions to the accumulation of jointly held assets, to decree an equitable division.

Brown, 574 So.2d at 691. This Court adheres to the above principle that no right to property vests by virtue of the marriage relationship alone prior to entry of a judgment or decree granting equitable or other distribution pursuant to dissolution of the marriage. Thus the rights of alienation and the laws of descent and distribution are not affected by our recognition of marital assets. For the Court’s definition of “marital assets,” see Hemsley v. Hemsley, decided July 7, 1994, 639 So.2d 909.

D. Guidelines

This Court has previously promulgated guidelines in the awarding of periodic alimony. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993); Hammonds v. Hammonds, 597 So.2d 653, 655 (Miss.1992). Guidelines for lump sum alimony were specifically addressed in Tilley v. Tilley, 610 So.2d 348, 351-52 (Miss.1992) and in Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988). Given the development of domestic relations law, this Court recognizes the need for guidelines to aid chancellors in their adjudication of marital property division. Therefore, this Court directs the chancery courts to evaluate the division of marital assets by the following guidelines and to support their decisions with findings of fact and conclusions of law for purposes of appellate review. Although this listing is not exclusive, this Court suggests the chancery courts consider the following guidelines, where applicable, when attempting to effect an equitable division of marital property:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:

a. Direct or indirect economic contribution to the acquisition of the property;

b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and

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

2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.

3. The market value and the emotional value of the assets subject to distribution.

4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;

5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;

6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;

7. The needs of the parties for financial security with due regal’d to the combination of assets, income and earning capacity; and,

8. Any other factor which in equity should be considered.

This Court cannot contemplate every situation that may present itself in future cases; therefore, the Court will address other questions as they arise, taking into consideration that fairness is the prevailing guideline in marital division. For example, inter-spousal gifts are hot a part of this factual situation. Chancellors will have to determine for this Court’s review whether an inter-spousal gift is a highly personal one or whether some type of property, i.e., stocks and bonds, may require something beyond a gift analysis. LaRue, 172 W.Va. 158, 304 S.E.2d at 335-36 (Neely, J., concurring).

There are some observations which need to be made in regard to division of marital assets. Initially, this Court notes that existing law regarding periodic alimony and child support is not altered. Upon dissolution of a marriage, the chancery court has the discretion to award periodic and/or lump sum alimony, divide real and personal property, including the divesting of title, and may consider awarding future interests to be received by each spouse. Additionally, homemaker contributions are not to be measured by a mechanical formula, but on the contribution to the economic and emotional well-being of the family unit. LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312, 322 (1983); 41 ALR 4th 445.

Some courts have held that equitable distribution of property has as its goal not only a fair division based upon the facts of the case, but also an attempt to finalize the division of assets and conclude the parties’ legal relationship, leaving them each in a self-sufficient state, where the facts and circumstances permit total dissolution.

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. Therefore, expert testimony may be essential to establish valuation sufficient to equitably divide property, particularly when the assets are as diverse as those at issue in the instant case. All property division, lump sum or periodic alimony payment, and mutual obligations for child support should be considered together. “Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede.” LaRue, 172 W.Va. 158, 304 S.E.2d at 334 (Neely, J., concurring). Thus, the chancellor may divide marital assets, real and personal, as well as award periodic and/or lump sum alimony, as equity demands. To aid appellate review, findings of fact by the chancellor, together with the legal conclusions drawn from those findings, are required.

In the final analysis, all awards should be considered together to determine that they are equitable and fair. The Court now turns to the case before us for application of these principles.

Ill FACTS

Linda Ferguson, age 44, and Billy Cleveland Ferguson, Sr., age 48, were married on April 15, 1967, and separated on May 13, 1991. Two children were born of this marriage. When the complaint for divorce was filed on May 21, 1991, the parties’ daughter, Tamatha Ferguson, was 23 years of age and emancipated. Their son, Billy Cleveland Ferguson, Jr. (Bubba), was 14 years old and resided in the home with his parents in Chunky, Newton County, Mississippi.

During their 24 years of marriage, Linda worked both as a homemaker and as a cosmetologist/beautician. Billy, employed by South Central Bell as a cable repair technician for 24 years, installed and maintained local telephone service in the Chunky, Mississippi, area.

On May 21,1991, Linda filed for divorce on the grounds of adultery and requested permanent custody of Bubba. Billy denied the adultery charge and counterclaimed for divorce based on habitual cruel and inhuman treatment. Billy also sought custody of his son, alleging that Bubba had expressed a desire to live with his father, and arguing that the court should respect the wishes of the child. No allegations were made that Linda was not a fit, suitable or proper parent to have custody of the child.

The chancellor denied Billy’s request for divorce and awarded Linda: (1) a divorce on the ground of adultery; (2) custody of Bubba and $300.00 a month in child support; (3) the marital home and its contents together with four acres of land comprising the homestead, title to the marital home to be divested from Billy and vested in Linda, debt free; (k.) one-half interest in Billy’s pension plan, stock ownership plan, and savings and security plan; (5) periodic alimony in the amount of $400.00 per month and lump sum alimony in the sum of $30,000.00 to be paid at the rate of $10,000.00 annually beginning on January 1, 1992; (6) attorney fees in the amount of $5,000.00; (7) health insurance through Bell South for as long “as the law allows,” and (8) a lien on any and all property owned by Billy to secure the payments ordered by the chancellor.

The “Judgment of Divorce and Related Relief,” entered November 12, 1991, specifically acknowledged that both parties had requested the Court to make an equitable division of marital property. Billy appeals all adjudications of the Court.

IV. ANALYSIS

Our scope of review in domestic relations matters is limited. “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erx-oneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990).

In other words, “[o]n appeal this Court is required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong.” Newsom v. Neivsom, 557 So.2d 511, 514 (Miss.1990). This is particularly true “in the areas of divorce and child support.” Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989).

A. Adultery Statement, Tape Recording, and Deposition

Billy claims the chancellor erred in finding evidence sufficient to award a divorce to Linda on the grounds of his adultery. Billy also contends: (1) the sworn statement of his paramour was hearsay, improperly authenticated, and not produced during discovery; (2) the admission of a tape recording of conversations between Billy and the paramour was error because the recording violated federal law proscribing interspousal wire tapping and was not properly identified; and (3) the deposition should not have been admitted because it pertained to an incident that occurred nine years before trial and was irrelevant. The Court addresses these alleged evidentiary errors.

In establishing the charge of adultery, Linda Ferguson presented the sworn statement of the paramour, a tape recording of conversations between the paramour and Billy, and the direct testimony of the paramour which, if true, clearly established, via direct evidence, an adulterous relationship between Billy and the paramour. In the paramour’s initial courtroom testimony, she denied having sexual relations with Billy Ferguson. The following day, at which time she was represented by counsel, Linda’s lawyer asked if she desired to change her testimony from the testimony she had given under oath the previous day. The paramour responded affirmatively. She admitted that the testimony she had given the day before was false and testified that her prior written statement was correct.

Billy also assails the admissibility of the sworn prior statement of the paramour on the grounds of improper identification, non-production during discovery, hearsay, and lack of opportunity of Billy’s lawyer to cross-examine the paramour. The only contemporaneous objection made to the statement by trial counsel was a hearsay objection. Therefore, other objections have been waived. Marshall v. Marshall, 205 So.2d 644, 646 (Miss.1968).

The paramour’s sworn statement was properly admitted as a prior inconsistent statement pursuant to M.R.E. Rule 613(b). In the case sub judice, the paramour testified at trial, her prior statement was inconsistent with her testimony, her prior statement was given under the oath, and Billy’s attorney was given a fair opportunity to question her concerning her prior sworn and inconsistent statement. The statement was admissible only for impeachment, but the error was cured, however, because the paramour recanted, admitted the error and testified that the statement was true. Thus, the admission of the statement as substantive evidence, while error, was harmless.

During the paramour’s testimony, it was established she had made two tape recordings of her conversations with Billy Ferguson. Following her testimony that she was well aware the recording device had been attached to her telephone, defense counsel stated that, in that event, he had no objection to the legality of the tape recording. Any previous objection that may have been made was clearly withdrawn.

The same observation holds true for appellant’s objection to the tape recording on discovery grounds. That objection, likewise, was withdrawn after defense counsel reviewed the wording of his interrogatories, especially number 27, which only required Linda, not a third party, to provide a description of the nature of each telephone conversation she recorded between her husband and any other person.

Finally, the deposition suggesting sexual misconduct years earlier was not presented as evidence of Billy’s adultery, but was proffered and admitted as being relevant to the issues of child custody and moral unfitness. This deposition was admitted pursuant to Rule 32(a)(3)(D), M.R.C.P. which states that the deposition of a witness may be used if the court finds “that the party offering the deposition has been unable to procure the attendance of the witness by subpoena.”

The charge of adultery was properly established by clear and convincing evidence, and this assignment is without merit. Dillon v. Dillon, 498 So.2d 328, 329 (Miss.1986).

B. Habitual Cruel and Inhuman Treatment

Billy contends the chancellor erred in denying him a divorce on the grounds of habitual cruel and inhuman treatment. He also complains that he was not permitted to question Linda pertaining to her alleged acts of adultery.

Billy’s attempt to introduce testimony of alleged adultery committed by Linda was properly excluded by the chancellor because Billy failed to plead adultery as a part of the cruelty ground. Duncan v. Duncan, 417 So.2d 908, 910 (Miss.1982); Seymore v. Greater Mississippi Life Ins. Co., 362 So.2d 611, 614 (Miss.1978).

The standard applicable to a divorce sought on the ground of habitual cruel and inhuman treatment is found in Wilson v. Wilson, 547 So.2d 803, 805 (Miss.1989), where we stated:

In years gone by, this Court consistently held that habitual cruel and inhuman treatment could be established only by a continuing course of conduct on the part of the offending spouse which was so unkind, unfeeling or brutal as to endanger, or put one in reasonable apprehension of danger to life, limb or health, and further, that such course of conduct must be habitual, that is, done so often, or continued so long that it may reasonably be said a permanent condition.

See also Haralson v. Haralson, 483 So.2d 378, 379 (Miss.1986); Stennis v. Stennis, 464 So.2d 1161, 1162 (1985); Gallaspy v. Gallaspy, 459 So.2d 283, 285 (Miss.1984); Marble v. Marble, 457 So.2d 1342, 1343 (Miss.1984).

Billy’s proof in the case at bar falls short of that required by our decisions. No proof was offered, establishing that Linda had a habit of assaultive behavior or conduct which Billy reasonably feared or which had an adverse effect on his health. The chancellor properly denied Billy Ferguson a divorce from Linda on the ground of habitual cruel and inhuman treatment.

C. Child Custody

In his counterclaim for divorce, Billy „ requested custody of the minor child solely on the ground it was the preference of the child to live with him. Billy made no allegations that Linda was unfit. Linda, on the other hand, stated in her complaint that Billy was neither a fit, suitable, nor proper person to have permanent custody.

Bubba, the parties’ 14 year old minor son, testified during trial he would prefer to live with his father. Billy contends that since the child had reached his twelfth birthday, our statutory law granted to him the privilege of choosing the parent with whom he wanted to live.

Miss.Code Ann. § 93-11-65 reads, in its pertinent parts, as follows:

Provided, however, that if the Court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, and that it would be to the best interest and welfare of the children, then any such child who shall have reached his twelfth birthday shall have the privilege of choosing the parent with whom he shall live.

In Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), this Court reaffirmed “the rule that the polestar consideration in child custody cases is the best interest and welfare of the child.” After application of the various evidentiary factors contained in Albright, including the moral fitness oí the parties, the chancellor held “that it would be in the best interest of Billy Cleveland Ferguson, Jr. that the permanent custody ... be awarded to ... Linda Carr Ferguson.”

Billy contends that he and Bubba had a good relationship and that he spent more time with Bubba than did his mother. Billy claims the relationship between Linda and Bubba had deteriorated, that she yelled at Bubba and made derogatory comments, and that she quit cooking and washing clothes for the child and his father.

There was proof, on the other hand, that Billy had (1) encouraged the child to ignore and disobey his mother; (2) allowed the impressionable fourteen year old to chew tobacco and dip snuff; (3) allowed the child to ride a four-wheeler without adult supervision; (¡¡,) purchased for his minor son, and allowed him to carry and shoot, unsupervised by an adult, a .357 magnum pistol; (5) kept his supply of pornographic movies in the child’s bedroom; (6) told Bubba that he would buy Bubba a truck if Bubba stayed with him after the divorce; (7) belittled his wife in the boy’s presence and encouraged his son to do the same. Bubba testified that if he had to live with his mother he would give her a chance to correct their problems but if he lived with his dad he could not give his mother a chance to correct any problems with her. The latter testimony strongly suggests the boy’s relationship with his mother would seriously deteriorate if he were allowed to live with his father.

One of the prerequisites for invocation of § 93-11-65 is that both parents be fit. See Polk v. Polk, 589 So.2d 123, 130 (Miss.1991). The chancellor found, as a fact, that Billy Ferguson was morally unfit to be a parent and awarded custody to Linda. We do not find this to be an abuse of judicial discretion.

The chancellor did not, under the facts of this case, abuse his judicial discretion in conducting his own interrogation of the child, who was subject to recross by the defendant’s attorney. This finding is affirmed.

D. Child Support

Linda testified that, if the chancellor awarded her custody of Bubba, she was requesting that the court award her $350.00 a month in child support. The chancellor awarded child support to Linda in the amount of $300.00 a month. Billy claims the amount is excessive and that the chancellor was manifestly wrong, partly because there was no testimony from Linda as to what the child’s basic, necessary living expenses were. Moreover, Billy submits the amount of child support awarded to Linda was in excess of 14% of his adjusted gross income, well above the statutory guidelines for one child set forth in Miss.Code Ann. § 43-19-101 (Supp. 1993).

In Smith, this Court addressed a similar complaint:

While the statutory guidelines are relevant and may be considered by a chancellor as an aid in determining child support awards, we have held that the specific need or support required is to be determined by a chancellor “at a time real, on a scene certain, and with a knowledge special to the actual circumstances and to the individual child or children.” Thurman v. Thurman, 559 So.2d 1014, 1018 (Miss. 1990). See also Jellenc v. Jellenc, 567 So.2d 847 (Miss.1990).

614 So.2d 394, 397 (Miss.1993).

Although Billy argues to the contrary, there is testimony from Linda in the record concerning the child’s basic needs and necessary living expenses for food, supplies, monthly utility bills, and the amount required monthly for clothes.

The chancellor followed the criteria found in Tedford v. Dempsey, 437 So.2d 410, 422 (Miss.1983). The award of child support is a matter within the discretion of the chancellor and will not be reversed unless the chancellor was manifestly in error in his fact-findings and manifestly abused his judicial discretion.

Our review of the record persuades us that Billy will be able to support himself as well as pay child support to Linda in the amount of $300.00 a month for the support of his teenage son. Accordingly, we find the Chancellor was not manifestly in error and did not abuse his judicial discretion in awarding child support.

E. Equitable Division of Husband’s Bell South Pension Plan, Stock, and Savings and Security Plan

In her complaint, Linda requested an adjudication that she was entitled to “one-half of all retirement benefits, profit sharing plan or other deferred compensation or stocks or bonds and pension plans to which the Defendant may be entitled, including, but not limited to, Bell South Corporation’s Savings and Security Plan.”

Billy Ferguson had a vested pension with Bell South, the total value of which was $800.45 as of October 24, 1991. As part of the equitable division of all marital property, the chancellor held Linda “shall be entitled to and be awarded fifty percent (50%) of the interest in the pension,” valued at $400.20 as of October 24, 1991. A Qualified Domestic Relations Order (QDRO) was entered purporting to assign an interest pursuant to the Internal Revenue Code. 26 U.S.C.A. 414(p)(ll). The QDRO states that Linda' will receive her portion of the pension when Billy reaches the earliest retirement age under the plan. See also 26 U.S.C.A. 414(p)(4)(A)(B). Under the present order, and after the approval of the QDRO by the pension plan administrator, the value of Linda’s portion, as of October 24, 1991, is determined and separated in an accounting procedure. But all future increases by the employer to the plan will inure to Billy’s benefit.

Billy also owned approximately 85 shares of stock in Bell South Corporation valued at $34,120.90. This stock would be available to Billy only at the time he left his employment with Bell South either via retirement or termination. The chancellor awarded Linda ownership of one-half of Billy’s Bell South stock. Of course, Linda will receive the stock no sooner than it would become available to Billy, pursuant to the Retirement Equity Act (REA). 26 U.S.C.A. 414(p)(4)(A)(B). Again, any increases to this plan after October 24, 1991, will inure to Billy’s benefit.

Finally, Billy participated in a Bell South Savings and Security Plan which in 1989 contained $32,843.00. Billy admitted during his testimony that he had withdrawn $15,-000.00 from the savings plan in September of 1990 and another $15,000.00 in the first part of 1991, and had spent all of it. The paramour testified that Billy told her that Billy had placed this money where it could not be found. The chancellor found her testimony to be trustworthy. As of August 31, 1991, there was a balance of only $677.89 remaining in Billy’s Bell South Savings and Security Plan. As part of an equitable division of marital assets, the chancellor awarded Linda one-half of the residue of the Savings and Security Plan, which division would amount to $338.96. Any and all increases to this plan after October 24, 1991, will belong solely to Billy and Linda will receive her part of the funds no sooner than Billy would be entitled to the same funds. 26 U.S.C.A. 414(p)(4)(A)(B).

Billy claims that the chancellor erred in awarding Linda one-half interest in his Bell South vested pension plan, one-half interest in his Bell South employee stock ownership plan, and one-half interest in his Bell South Corporation Savings and Security Plan. Billy contends that he owned all the interest in the pension plan, stock, and savings, and that it was his separate property. On appeal, Billy claims Linda in no way contributed to the acquisition of this property, and nothing was ever issued in her name.

This Court is remanding for the chancellor to re-evaluate this award in light of the foregoing guidelines. However, the record clearly indicates that Billy, by and through his trial attorney, stated to the chancellor that “what we would like for the Court to do ... is determine what Mr. Ferguson’s — the joint assets truly are, divide them in half or thereabouts, and make division of the property in that manner.” This Court concludes that the chancellor had the authority to order a fair division of the Bell South benefits because they were marital assets accumulated through the joint contributions and efforts of the parties during the duration of this twenty-four year marriage. A spouse who has made a material contribution toward the acquisition of an asset titled in the name of the other spouse may claim an equitable interest in such jointly accumulated property. Draper, 627 So.2d at 305-06; Jones v. Jones, 532 So.2d 574, 580-81 (Miss.1988).

Although contributions of domestic services are not made directly to a retirement fund, they are nonetheless valid material contributions which indirectly contribute to any number of marital assets, thereby making such assets jointly acquired. And, it must be remembered, the goal of the chancellor in a divorce case is to do equity.

When a couple has been married for twenty-four years, yet the only retirement benefits accumulated throughout the marriage are titled in the name of only one spouse, is it equitable to find only one spouse entitled to financial security upon retirement when both have benefitted from the employer funded plan along the way? When one spouse has contributed directly to the fund, by virtue of his/her labor, while the other has contributed indirectly, by virtue of domestic services and/or earned income which both parties have enjoyed rather than invested, the spouse without retirement funds in his/ her own name could instead have been working outside the home and/or investing his/her wages in preparation for his/her own retirement. When separate plans for each spouse are not in existence, it is only equitable to allow both parties to reap the benefits of the one existing retirement plan, to which both parties have materially contributed in some fashion.

Since Linda made material contributions as both a homemaker and a wage earner, she is equitably entitled to some portion of the couple’s jointly acquired retirement funds. This Court therefore remands for review the award of approximately $17,000.00 in pension, stock, and security plans. A remand to the chancery court is made to reconsider this award in light of this discussion.

F. Equitable Division of Marital Home Realty, Farm Equipment, Cattle Operation Mobile Home Park

Billy contends the chancellor lacked the authority to order him to convey, free of all encumbrances, his one-half interest in the jointly owned four acres on which the marital home was situated. Billy argues that Linda did not seek ownership; rather, she only sought permanent, exclusive use and possession of the residence together with all its contents.

“We have long recognized that, incident to a divorce, the Chancery Court has authority, where the equities so suggest, to order a fair division of property accumulated through the joint contributions and efforts of the parties.” Brown v. Brown, 574 So.2d 688, 690 (Miss.1990). In Draper, 627 So.2d at 305, this Court held that the chancery court has authority to effect the divesting of title to real estate to achieve an equitable distribution of marital assets. This is a matter committed to the discretion and conscience of the court, having in mind all of the equities and other relevant facts and circumstances. Bowe v. Bowe, 557 So.2d 793, 794 (Miss.1990). Moreover, the Chancery Court “has the authority to order an equitable division of jointly accumulated property and in doing so to look behind the formal state of title.” Johnson v. Johnson, 550 So.2d 416, 420 (Miss.1989).

“A spouse who has made a material contribution toward the acquisition of property which is titled in the name of the other may claim an equitable interest in such jointly accumulated property incident to a divorce proceeding.” Jones v. Jones, 532 So.2d 574, 580 (Miss.1988) (citing Watts v. Watts, 466 So.2d 889 (Miss.1985); Chrismond v. Chrismond, 211 Miss. 746, 52 So.2d 624 (1951)). See also Brendely. Brendel, 566 So.2d 1269, 1273 (Miss.1990), where this court affirmed the lower court’s decision ordering a husband to convey to his wife one-half interest in a home titled only in the husband’s name.

This Court pointed out in Jones that recent cases had wrestled with the definition of “contribution” within the context of the acquisition of assets. Nevertheless, we said that “[i]f ‘contribution’ toward the acquisition of assets is proven by a divorcing party, then the court has the authority to divide these ‘jointly’ accumulated assets.” Jones, 532 So.2d at 580.

In this case, the property was not titled solely in Billy’s name, but titled to both Billy and Linda. Moreover, -both parties requested, inter alia, an equitable division of the parties’ jointly accumulated property. Although it is true that Linda requested in her complaint “the permanent exclusive use and possession” of the marital home together with its contents minus Billy’s personal items, it is also noted that she sought a division of the marital assets.

This Court holds that under existing case law the chancellor was within his authority to order Billy to effect a transfer of title to Linda to the marital home and the surrounding four acres to accomplish an equitable division. Linda, we note, was divested of her undivided one-half interest in the adjoining 33 acres of jointly owned and accumulated real property, which was awarded to Billy. It is noted that Billy was also granted ownership of all farm equipment, a leasehold interest on farm property, a cattle operation, and his 100 shares of stock in a mobile home park. Nonetheless, this issue is remanded for consideration together with the other assets subject to equitable division, such division to be guided by the factors promulgated today.

G. Marital Home Debt Free

The chancellor ordered Billy to convey to Linda the marital home and four surrounding acres of land free and clear of any liens. There were two mortgages on the marital home and the 37 acres of land. One was to Home Federal Savings & Loan Association with an approximate balance of $14,-000.00 and monthly payments of $522.00. The other, a second mortgage, is to Eastover Bank for Savings where the balance was approximately $4,000.00 with monthly payments of $96.05.

Billy argues that Linda did not request that the marital home be conveyed to her debt free; rather, she merely asked that he “pay” the mortgage payments. He also denies that he has the resources to pay off the two loans. Billy says it is inequitable to order him to convey the property to Linda debt free because, inter alia, he is not “a wealthy man with unlimited resources who can easily pay off a debt.”

Linda requested “permanent exclusive use and possession” of the marital home. The combined mortgage notes on the marital home and its four acres plus the other 33 acres of real estate are $618.05. Linda requested periodic alimony in the amount of $2,200.00 if she were awarded the home and had to make the payments or, alternatively, $1,200.00 a month if she were required to move out of the house. She was awarded periodic alimony in the amount of $400.00 a month plus title to the marital home and four acres of land, free of liens. Billy received 33 acres of land, 2 tractors, 3 trucks, an interest in a cattle business, 10% interest in a mobile home park, and a leasehold interest in some farm property. This Court directs review of all marital divisions. However, the record did not establish with clarity the value of Billy’s interest in the cattle operation or his part-interest in the mobile home park. Such value should be established especially to explain the award of $30,000 lump sum alimony hereinafter discussed.

H. Periodic and Lump Sum Alimony

Billy contends that the chancellor abused his judicial discretion in awarding periodic, continuing, or permanent alimony in the sum of $400.00 a month and lump sum alimony in the amount of $30,000.00, the latter to be paid in increments of $10,000.00 on January 1st of each year, beginning January 1,1992. According to Billy, the awards were excessive, and the chancellor failed to take into consideration the reasonable needs of the wife as well as the right of the husband to lead as normal a life as reasonably possible with a decent standard of living. Billy also complains the chancellor erred in ordering him to provide Linda with health and hospitalization insurance through his employer for “as long as the law allows.”

Linda’s Income and Expense Statement reflected that she earned a gross monthly income of $820.00 per month. Lindá estimated a 10 to 15% reduction in pay due to the required taxes. Her only other assets were a 1988 Oldsmobile, her undivided one-half interest in the marital home, its contents, and thirty seven (37) acres of real property acquired during the marriage and jointly held. The latter consisted of the marital home and four acres of land purchased in 1972 from Billy’s father, ten (10) adjoining acres purchased from Billy’s mother in 1974, and twenty-three (23) adjoining acres purchased in 1979, all purchased for $400.00 an acre.

Billy’s Income and Expense Statement reflected that he earned a gross monthly income of $3,030.00 per month; with a net take-home pay of $2,063.00 a month after taxes. Other monthly deductions included $33.00 for union dues, $43.00 for a savings plan, $322.00 paid to the credit union for payment on a loan, and $28.00 a month for savings bonds. Health insurance for Billy and his dependents was paid by Bell South. Other than his undivided one-half interest in his real property, Billy owned two (2) tractors and three (3) pickup trucks. There was some testimony concerning his interest in the cattle business and his 10% interest in a mobile home park which Billy admitted had value.

The chancellor stated on the record that he tended to believe the testimony of the paramour that Billy had withdrawn $30,000.00 from his Bell South Savings and Security Plan and put it where nobody could get to it or find it. He awarded this amount to Linda as lump sum alimony to be paid in three installments. Just as in Tutor v. Tutor, 494 So.2d 362 (Miss.1986), Linda worked and contributed to Billy’s financial status, but had no assets of her own; her separate estate pales in comparison to Billy’s. This award of lump sum alimony may have been made by the chancellor to give Linda financial security. See also Cheatham v. Cheatham, 537 So.2d 435, 437-38 (Miss.1988). An explanation of the basis of this award will help this Court determine whether the distribution represents an abuse of discretion or a division supported by the record. Therefore, a remand is warranted on this issue.

Our review of the record shows an insufficient valuation of the cattle operation and the 100 shares of stock in the mobile home park and leasehold interest in the farm property. The value of the thirty-three (33) acres of real estate with a value of at least $400.00 an acre was awarded to Billy together with his leasehold interest in farm property, his interest as a partner in the cattle operation, and his 10% interest in the Chunky Square Mobile Home Park is unknown, and therefore, review by this Court is not available. A reevaluation by the chancellor on remand is warranted.

Finally, the chancellor was not manifestly wrong in ordering Billy to maintain insurance on Linda under the Bell South COBRA plan for as long as the law allowed. Linda is eligible for COBRA coverage for thirty-six (36) months from the time of her divorce from Billy. 29 U.S.C.S. 1162(2)(A)(iv) (1993) and 29 U.S.C.S. 1163(3) (1993).

I. Attorney Fees

The chancellor awarded Linda attorney fees in the amount of $5,000.00. Billy claims the award of this fee, under the cir-cumstanees, was an abuse of the chancellor’s discretion because there was no proof as to the financial ability of Billy to pay an attorney fees. Linda had no savings from which she could pay a fee.

The question of attorney fees in a divorce action is a matter largely entrusted to the sound discretion of the trial court. Smith v. Smith, 614 So.2d 394, 398 (Miss.1993); Kergosien v. Kergosien, 471 So.2d 1206, 1207 (Miss.1985). “If a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate.” Martin v. Martin, 566 So.2d 704, 707 (Miss.1990). See also Jones v. Starr, 586 So.2d 788, 792 (Miss.1991) (“Generally, it is true that, unless the party can establish inability to pay, attorney’s fees should not be awarded by the court.”). The criteria to be utilized in determining attorney fees are found in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).

Linda’s lawyer testified, among other things, that he had been engaged in the general practice of law since 1973 and had been paid $1,000.00 to date by his client. Cobb asked the court for $9,100.00 in fees to include the prosecution of the ease during the two day trial. Linda had no cash funds from which the fee could be paid.

We are “reluctant to disturb a chancellor’s discretionary determination whether or not to award attorney fees and of the amount of [any] award.” Geiger v. Geiger, 530 So.2d 185, 187 (Miss.1988). Considering the record as a whole, with respect to the work performed by Cobb and the financial position of the parties (including the testimony of Billy’s hiding assets), this Court cannot say that an award of $5000.00 for services performed both prior to and during the two day trial was unreasonable or an abuse of the chancellor’s judicial discretion. The attorney fee for these past services is affirmed.

J. The Property Lien

In her complaint for divorce, Linda requested that the court “impress a lien against the husband’s interest in the real property/personal property to insure the proper payments as set forth herein.” As this case is being remanded for a proper determination of property division pursuant to the guidelines set forth today, the lien imposed by the chancellor is also remanded.

K. Manifest Error

Billy’s final proposition is simply a restatement and summary of all the previous errors alleged.

V. CONCLUSION

In light of the pronouncement of these guidelines for the equitable distribution method of division of marital assets, this Court reverses the issues relating to marital property division and remands for determination of value of all assets and further consideration of division in light of the principles established herein. The granting of a divorce to Linda, together with child custody and support awards, and the award of attorney fees are affirmed. The child support award may be re-considered in conjunction with alimony and property division.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

SULLIVAN, PITTMAN, BANKS, JAMES L. ROBERTS, Jr., and SMITH, JJ., concur.

HAWKINS, C.J., concurs in part and dissents in part with separate written opinion.

DAN M. LEE, P.J., concurs in part, dissents in part with separate written opinion joined by McRAE, J.

McRAE, J., concurs in part, dissents in part with separate written opinion joined by DAN M. LEE, P.J.

. Windham v. Windham, 218 Miss. 547, 554, 67 So.2d 467, 472 (1953) (chancery court did not have authority to transfer title to real estate); McCraney v. McCraney, 208 Miss. 105, 107, 43 So.2d 872, 873 (1950) (same). See also Jones v. Jones, 532 So.2d 574, 582 (Miss.1988) (Prather, J., concurring).

. The persistent attempts made to put a monetary value on a homemaker's contribution are likely to undervalue the magnitude of such contributions. See Hauserman, Homemakers and Divorce: Problems of the Invisible Occupations. Family L.Q. (1982). Nonetheless, estimates of replacement loss are made as high as $40,000 per year. Discussion with Sanford N. Katz, Professor of Law, Boston College Law School (March 25, 1982). [Footnote in original text].

.South Carolina judicially created a "special equity doctrine” by holding that "where a spouse has made 'marital contributions’ of industry and labor during marriage to acquisition of property, a special equity or equitable interest favoring that party can be found.” Parrott v. Patrott, 278 S.C. 60, 292 S.E.2d 182 (1982). Florida preceded South Carolina with this action. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). West Virginia adopted equitable distribution method in LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312 (1983), 41 ALR 4th 445. Virginia also recognizes equitable distribution. Williams v. Williams, 4 Va.App. 19, 354 S.E.2d 64 (1987).

. While the issue can be simply stated, it is impossible to give a precise definition to the phrase "equitable distribution.” Basically, the doctrine refers to the authority of the courts to award property legally owned by one spouse to the other spouse, and recognizes that a nonworking spouse's efforts contribute to the acquisition of the marital estate. Divorce-Equitable Distribution, 41 ALR 4th 481, 484. Under the equitable distribution system, the marriage is viewed as a partnership with both spouses contributing to the marital estate in the manner which they have chosen.

. Other statutes require the contribution of both parents toward support of their children. Miss. Code Ann. § 93-13-1 (1972).

. At trial Billy had stated he was willing to give Linda one-half of this stock.

. The QDRO should also specify that the ex-wife is to be treated as the participant’s "surviving spouse” in order to insure that the ex-wife’s rights to the various retirement funds will not terminate at participant’s death. 26 U.S.C.