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Date: 03-20-2019

Case Style:

Stephen Demond Anderson Sr. v. Emmarie G. Flaggs Anderson

Case Number: 2017-CA-00608-COA

Judge: Anthony N. “Tony” Lawrence III

Court: COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Plaintiff's Attorney: DAVID M. SESSUMS

Defendant's Attorney: DAVID NEIL McCARTY

Description:





Stephen and Emmarie dated throughout high school and eventually married in 2007.
They had three children together—N.F., born in 2000, S.F., born in 2006, and A.F., born in
2008.1
¶4. The couple had a turbulent marriage from the beginning. At trial, Emmarie testified
that, during their first year of marriage, Stephen would have outbursts and “tear up things in
the house.” She also testified that he would “beat the hell out of [her]” two to three times a
week. Emmarie detailed numerous violent instances over the course of their marriage. For
example, around 2009, Stephen punched her in the face and caused her to temporarily lose
hearing in her right ear. Both Emmarie’s mother and the couple’s eldest son, N.F., testified
that they witnessed Stephen physically abuse Emmarie throughout the marriage.
¶5. When asked about her divorce filing in 2012, Emmarie explained that she and Stephen
later reconciled, so she did not pursue the divorce. As part of their reconciliation, the couple
1 The children’s names are initialed to protect their identities. 2
signed a notarized document, with Stephen promising he would get help. According to
Emmarie, Stephen never sought help, and their marriage kept suffering as a result. The
couple eventually separated in July 2016, and Stephen moved out of the marital home. In
October and November of 2016, Emmarie filed two restraining orders to protect herself and
the children from Stephen. The second restraining order remained in effect until the trial.
¶6. Emmarie admitted at trial that she committed adultery—once on October 30, 2015.
She also testified that Stephen had admitted to several affairs during the marriage. Stephen
denied Emmarie’s adultery allegations.
¶7. The court found Stephen guilty of habitual cruel and inhuman treatment. After an
analysis of the Ferguson2 factors, the court found that Emmarie and the children should
continue living in the marital home, with Stephen continuing to pay the mortgage. The court
specified that Stephen and Emmarie could sell the home when their youngest child reached
age 21 or was emancipated, with Emmarie receiving one-third equity and Stephen receiving
two-thirds equity. The chancellor also ordered that Emmarie be responsible for the upkeep,
maintenance, and utilities of the home. The court denied Emmarie’s request for alimony.
Finally, the court awarded Stephen and Emmarie joint legal custody and Emmarie physical
custody of the children. Stephen was ordered to pay $693.97 per month in child support.
Stephen appealed.
STANDARD OF REVIEW
2 Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994). 3
¶8. “When reviewing a decision of a chancellor, this Court applies a limited abuse of
discretion standard of review.” Mabus v. Mabus, 890 So. 2d 806, 810 (¶14) (Miss. 2003).
We “will not disturb the chancellor’s opinion when supported by substantial evidence unless
the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an
erroneous legal standard was applied.” Id. at 819 (¶53). However, “[a] chancellor’s
conclusions of law are reviewed de novo.” Lowrey v. Lowrey, 25 So. 3d 274, 285 (¶26)
(Miss. 2009).
DISCUSSION
I. Divorce
¶9. Stephen argues that because he proved that Emmarie committed adultery and
Emmarie’s adultery caused him to leave, he should have been granted a divorce on that
ground. Stephen further argues that Emmarie should not have been granted a divorce on
habitual cruel and inhuman treatment because she reconciled with him after her 2012 claim.
¶10. “There can be but one divorce granted. Where each party has requested a divorce and
offers proof sufficient to establish a basis for divorce, the chancellor must then determine
which of the parties will be granted a divorce.” Garriga v. Garriga, 770 So. 2d 978, 983-84
(¶23) (Miss. Ct. App. 2000) (citing Hyer v. Hyer, 636 So. 2d 381, 382 (Miss. 1994)). Here,
Stephen filed for divorce on the grounds of habitual cruel and inhuman treatment and
adultery. Emmarie counterclaimed on the same grounds.
¶11. In Sproles v. Sproles, 782 So. 2d 742, 746 (¶14) (Miss. 2001), the chancellor granted
4
the wife a divorce on the grounds of habitual drunkenness and habitual cruel and inhuman
treatment instead of granting the husband a divorce on the ground of adultery even though
his wife admitted at trial that she had committed adultery. Our supreme court affirmed the
chancellor, finding that “[t]here [was] ample proof that it was [the husband’s] conduct that
caused the dissolution of the marriage and that [the wife] was entitled to a divorce on the
grounds of cruel and inhuman treatment and habitual drunkenness.” Id. at 747 (¶20). In
Boutwell v. Boutwell, 829 So. 2d 1216, 1219 (¶¶40-43) (Miss. 2002), our supreme court dealt
with a nearly identical issue and relied on Sproles to affirm the chancellor’s grant of divorce
to the wife on the grounds of habitual cruel and inhuman treatment.
¶12. Here, Emmarie admitted that she committed adultery. However, the chancellor also
heard testimony from Emmarie, Emmarie’s mother, and Emmarie and Stephen’s son about
Stephen’s physical abuse upon Emmarie that started prior to and throughout the marriage.
Ultimately, the chancellor determined that it was Stephen’s continued course of physical
abuse upon Emmarie that caused the breakdown of the marriage. Finding the chancellor’s
decision was supported by substantial evidence, we affirm the chancery court’s grant of
divorce to Emmarie on the ground of habitual cruel and inhuman treatment.
II. Mortgage Payments
¶13. Stephen also argues that the chancellor erred in ordering him to continue paying the
mortgage. For his argument, he attempts to classify the mortgage payment as alimony, or in
the alternative, child support.
5
¶14. The court’s order made clear that Stephen’s mortgage payment was part of the
equitable distribution. In fact, the court explicitly stated that it was not awarding Emmarie
alimony. The court also listed the monthly amount for Stephen’s child-support obligation,
which was in no way tied to the mortgage payment.
¶15. Equitable distribution is “[t]he division of marital property by a court in a divorce
proceeding, under statutory guidelines that provide for a fair, but not necessarily equal,
allocation of property between the spouses.” Black’s Law Dictionary (10th ed. 2009). In
determining the equitable division of marital assets, the chancery court considered the
applicable factors in Ferguson.3 The chancellor noted that Stephen was the breadwinner of
the family and had always paid the mortgage on the marital home. The chancellor also noted
that, although Emmarie had contributed financially during some of the marriage, she
primarily stayed at home with the children. In awarding Emmarie use of the marital home,
the chancellor emphasized that Emmarie and the children had been living there and still
needed a place to live.
¶16. When dividing marital property, a chancery court may order continued joint ownership
of the marital home with possession by one spouse. See, e.g., Selman v. Selman, 722 So. 2d
547 (Miss. 1998). Generally, it is better to award the home to the custodial parent. Hankins
v. Hankins, 729 So. 2d 1283, 1287 (¶19) (Miss. 1999). Further, a chancellor may order one
spouse to pay the mortgage on the marital home until a child’s majority, at which point the
3 639 So. 2d at 928-29.
6
house may be sold and proceeds split. See Selman, 722 So. 2d at 552 (¶¶19-20). Here, the
court awarded the home to Emmarie, the custodial parent, and ordered Stephen to continue
paying the mortgage until the youngest child reached age 21 or was emancipated, at which
time he would receive two-thirds equity and she one-third equity. After review, we find no
abuse of discretion in the chancellor’s decision regarding property division.

Outcome: We find the chancellor did not manifestly err in her findings of fact or conclusions of
law regarding the grounds for divorce. We also find that the chancellor neither committed
manifest error nor abused her discretion in the manner or method in which she divided the
marital estate. Thus, we affirm.

Plaintiff's Experts:

Defendant's Experts:

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