Seeking Relief from Alimony Can be a Travail
December 3, 2013 § 2 Comments
When their 33-year marriage ended in divorce in 2005, Richard Peterson was ordered to pay his ex-wife, Josephine, $2,500 a month in periodic alimony. At the time, Richard, who was then 58, intended to continue his employment with the US Army Corps of Engineers in Vicksburg until age 75.
But things began to fall apart for Richard, or, more accurately, Richard began to fall apart. Within five years of the divorce, he suffered a series of physical injuries that affected his ability to work. He fell and broke his patella, and had to have two knee surgeries. He also suffered multiple joint injuries, and developed degenerative arthritis in both hips, both knees, and his left shoulder. To add to his misery, he tore a bicep, developed spinal stenosis in his lower back, underwent a total hip replacement, and had rotator-cuff surgery. We don’t know what his job entailed, but there are NFL players who do not suffer that many physical catastrophes in an entire career. Richard was placed on disability retirement due to the combination of woes that caused him intense pain, forced him to use a cane to walk, and disabled him from further employment.
Richard filed a petition to modify the alimony in 2010, and after a trial, the chancellor ruled that he had proven a material change in circumstances justifying a downward modification, and she reduced the alimony from $2,500 to $1,800.
Richard appealed, complaining that the reduction was not enough, since it left him with a monthly deficit of nearly $1,000. Josephine cross-appealed, contending that the retirement was foreseeable.
The COA addressed both appeals in the case of Peterson v. Peterson, handed down November 19, 2013. On the issue of modification, Judge Maxwell’s opinion set out the law applicable to modification of alimony:
¶7. With respect to requests for modification of a previously ordered alimony award, chancellors are vested with general statutory authority to modify divorce decrees and make “new decrees as the case may require.” Miss. Code Ann. § 93-5-23 (Rev. 2013). Within this broad authority is the more specific power to increase, decrease, or terminate periodic alimony payments. Hubbard v. Hubbard, 656 So. 2d 124, 129 (Miss. 1995). When asked to modify periodic alimony awards, chancellors must first determine if an unforeseeable and material change in circumstances occurred since entry of the initial divorce decree. Holcombe v. Holcombe, 813 So. 2d 700, 703 (¶11) (Miss. 2002). If not, modification is not permitted.
¶8. However, if a substantial unanticipated change has in fact occurred, the chancellor should then consider the Armstrong [footnote omitted] factors to determine the appropriate amount of alimony. Holcombe, 813 So. 2d at 703 (¶12) (citing Armstrong, 618 So. 2d at 1280). In evaluating these factors when “deciding whether to modify periodic alimony,” chancellors should “compar[e] the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree.” Steiner v. Steiner, 788 So. 2d 771, 776 (¶16) (Miss. 2001) (citing Anderson v. Anderson, 692 So. 2d 65, 72 (Miss. 1997); Tilley v. Tilley, 610 So. 2d 348, 353-54 (Miss. 1992); Armstrong, 618 So. 2d at 1280). As with any alimony consideration, the chancellor must consider the wife’s accustomed standard of living, less her own resources, as well as the husband’s ability to pay. Gray, 562 So. 2d at 83.
The opinion goes on to evaluate the evidence, and concludes that Richard’s disability was, indeed, unforeseeable at the time of the divorce and the circumstances giving rise to it took place after the divorce. Josephine’s argument was that Richard had intended to retire at some point, so retirement was foreseeable and anticipated at the time of the divorce, and, therefore, modification should not lie. The COA pointed out that the case law did not support her argument:
¶12. We have previously held that a payor’s retirement due to unforeseeable health issues constituted a material change sufficient to modify an alimony award. See Broome v. Broome, 75 So. 3d 1132, 1140-41 (¶¶26-28) (Miss. Ct. App. 2011); Clower v. Clower, 988 So. 2d 441, 444-45 (¶9) (Miss. Ct. App. 2008) (holding that husband’s retirement due to health problems and loss of income constituted a material change in circumstance, justifying a reduction in alimony). Because there is record support that Richard’s later-arising injuries forced his retirement, the chancellor did not abuse her discretion in finding that a material, unanticipated change in Richard’s circumstances had occurred since the divorce.
As for the issue of alimony reduction, the opinion addressed it this way:
¶14. Permanent periodic alimony is “a substitute for the marital-support obligation.” Deborah H. Bell, Mississippi Family Law § 9.02 (2005). It arises from the duty of the husband to support his wife. McDonald v. McDonald, 683 So. 2d 929, 931 (Miss. 1996). “Consistent with Armstrong, a financially independent spouse may be required to support the financially dependent spouse in the manner in which the dependent spouse was supported during the marriage, subject to a material change in circumstances.” Rogillio v. Rogillio, 57 So. 3d 1246, 1250 (¶11) (Miss. 2011). But “alimony awards in excess [of] a spouse’s ability to pay are ‘per se unreasonable.’” Sheffield v. Sheffield, 55 So. 3d 1142, 1145 (¶9) (Miss. Ct. App. 2011) (quoting Yelverton v. Yelverton, 961 So. 2d 19, 28 (¶18) (Miss. 2007)).
¶15. Having found a material change, the chancellor correctly moved to the next step and considered the Armstrong factors, comparing the parties’ financial positions at the time of the modification request to their former positions when divorced. See Steiner, 788 So. 2d at 776 (¶16). But the chancellor did not make any findings about Richard’s ability to pay. And on appeal, Richard suggests that even after the $700 alimony reduction, he still endures a monthly deficit and is unable to pay the reduced award.
¶16. From our review, it is obvious the chancellor performed a detailed financial analysis of the parties’ incomes and expenses, health and earning capacities, needs, assets, and tax consequences, as required. However, considering these unchallenged figures, it is not apparent from the record that Richard was financially able to pay the reduced alimony obligation.
The court went on to do its own analysis of the financial proof, and found lacking any analysis of Richard’s ability to pay even the reduced sum. The opinion concluded:
¶26. Because “alimony awards in excess [of] a spouse’s ability to pay are ‘per se unreasonable,’” Sheffield, 55 So. 3d at 1145 (¶9), we remand for the chancellor to consider Richard’s ability to pay this amount, or any amount of alimony, while maintaining as normal a life as possible with a decent standard of living. See Brendel v. Brendel, 566 So. 2d 1269, 1272 (Miss. 1990).
So Richard turns once again to the trial court, slogging his way toward what he surely hopes will be a more satisfactory outcome.
Balancing the needs of one party against the resources of the other is a devilishly difficult task for a chancellor that requires deft juggling of many competing factors.