Another Unsuccessful Attempt to Modify Periodic Alimony
April 25, 2016 § Leave a comment
Do after-acquired debt and other personal expenses justify downward modification or termination of alimony? That was the central question in the COA case, Hardin v. Grantham, decided March 1, 2016.
Robert Hardin was ordered in 1991 to pay periodic alimony in the sum of $750 a month to his ex-wife, Betty Grantham. In the 1991 judgment, the chancellor projected that Robert’s business could not sustain his then-$80,000 annual income, and based alimony on an assumed $40,000 annual income. In 2013, Robert filed a petition to modify or terminate the payments, claiming that there had been a material change in circumstances so that he could no longer afford to pay Betty.
At trial, Robert claimed that his business had declined, and his income with it. He reported income of $5,562 per month, personal expenses of $4,822 a month, which included the alimony, and business expenses of $8,351. The chancellor found Robert lacked candor and provided evasive and inconsistent answers to questions in his testimony. The chancellor declined to modify, and Robert appealed.
In her opinion for the court, Judge Carlton first spelled out the familiar rules that govern modification of alimony: the chancellor must (1) determine whether an unforeseeable and material change occurred since entry of the original alimony order; and (2) if so, then consider the Armstrong factors relative to the parties’ financial positions at the time of the original order, and (3) consider the ex-wife’s accustomed standard of living, less her own resources, and the husband’s ability to pay. If no (1), then no modification.
She then turned to the question whether the after-acquired expenses could be a basis to modify:
¶13. Despite Robert’s assertions, the Mississippi Supreme Court has previously rejected “the idea that alimony or child[-]support obligations should be reduced because of the obligor’s other financial commitments[.]” Yancey v. Yancey, 752 So. 2d 1006, 1010 (¶12) (Miss. 1999) (citing Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995)). See also N. Shelton Hand, Mississippi Divorce, Alimony, and Child Custody § 14–10 (6th ed. 2012) (“Obligations of child and[/]or spousal support are not generally to be considered as or equated with any other debt known to and collectible under the law. There is more to these obligations than mere debt.”).
¶14. In Varner, a husband argued that the chancellor should reduce his child-support and alimony obligations in light of his other financial obligations. Varner, 666 So. 2d at 497. After the parties’ divorce, the husband opened his own veterinary practice. Id. He also filed for bankruptcy, and he claimed that he had been forced to borrow money from friends and family to pay his child-support and alimony obligations. Id. at 495-97.
¶15. On appeal, the supreme court found no merit to the husband’s argument that his child support and alimony obligations should be modified. Id. at 497. In fact, the supreme court stated:
Personal bills cannot be used as a factor to reduce support payments. Furthermore, simply alleging, as does [the husband], that one is subsisting on borrowed funds does not show with the required particularity that he is unable to pay.
In this case, the chancellor properly found that there had been no material change in circumstances. [The husband’s] income apparently decreased between the time of his divorce and the hearing. However, that decrease was directly related to his decision to open a solo practice and a voluntary move which caused him to give up his supplemental income. [The husband] filed for bankruptcy on July 7, 1993, two weeks after the chancellor denied his request for modification. His bankruptcy petition was dismissed and the case closed on April 18, 1995.
A debtor is prohibited from discharging debt to a former spouse for alimony or support to a child in connection with a separation agreement. Furthermore, simply filing for bankruptcy does not rise to the level of a substantial change without a finding by the chancellor that the filing was made in good faith. The law is well-settled that, if an obligor, acting in bad faith, voluntarily worsens his financial position so that he cannot meet his obligations, he cannot obtain a modification of support. Id. (internal citations and quotation marks omitted).
¶16. Citing Mississippi precedent, including the supreme court’s holding in Varner, the chancellor here found no merit to Robert’s claim that his alimony payments should be modified or terminated because he had incurred other debts and financial obligations. Instead, the chancellor found that he must compare the parties’ relative positions at the time of the divorce with their positions at the time of the requested modification to determine whether an unforeseeable and material change occurred. In looking at the facts of the present litigation, the chancellor ultimately concluded that the only material postdivorce change occurred when Robert’s business became very successful and afforded him many opportunities and luxuries.
The COA affirmed.
We have recently dealt with other cases denying modification or termination of alimony here and here.
TPR Back in Effect
April 20, 2016 § 3 Comments
Governor Bryant signed HB 1240, which revised the statutes providing for termination of parental rights (TPR). You can read the full text of the bill here. The new law is in effect now.
You will recall that this revision in the law of TPR was made necessary by the MSSC’s decision in the May 21, 2013, case of Chism v. Bright, which in effect ruled that the old statute could not be used in a private (non-DHS) TPR case. A post on the case is here.
Reprise: Checklists
April 19, 2016 § Leave a comment
Reprise replays posts from the past that you might find useful today.
Checklists, Checklists, Checklists
August 12, 2014 § 10 Comments
You can skip over this post if you’ve been paying attention to this blog for any appreciable length of time.
For you newcomers and oblivious long-timers, you need to know and appreciate that proving many kinds of cases in chancery court is a matter of proving certain factors mandated from on high by our appellate courts. I’ve referred to it as “trial by checklist.”
If you don’t put on proof to support findings of fact by the chancellor, your case will fail, and you will have wasted your time, the court’s time, your client’s money. You will have lost your client’s case and embarrassed yourself personally, professionally, and, perhaps, financially.
I suggest you copy these checklists and have them handy at trial. Build your outline of the case around them. In your trial preparation design your discovery to make sure that you will have proof at trial to support findings on the factors applicable in your case. Subpoena the witnesses who will provide the proof you need. Present the evidence at trial that will support the judge’s findings.
If the judge fails to address the applicable factors in his or her findings of fact, file a timely R59 motion asking the judge to do that. But remember — and this is critically important — if you did not put the proof in the record at trial to support those findings, all the R59 motions in the world will not cure that defect.
Here is an updated list of links to the checklists I’ve posted:
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
And here are two checklists that will help you in probate matters:
Would a Podcast Help?
April 18, 2016 § Leave a comment
We’ve visited here before some ways to educate your clients about what to expect and how to perform in the courtroom.
Sometimes, though, as you speak of these things with your client you get the distinct impression that your words are not making contact with gray matter. The client fidgets, eyes are glazing over, he keeps interrupting with impertinent what-if questions, and the whole thing seems like a waste of time. Worse, even after going over these things with a seemingly receptive client, she performs in the courtroom like you’ve never met before. What else can you do?
Maybe a podcast would help.
You can provide your client with a link to a podcast where you repeat all the helpful guidance your client needs to be at his or her best in the courtroom. The beauty is that the client can listen to it at leisure– hopefully when he or she is more focused, can listen to it 100 times if desired, and it will provide a measure of comfort to address all those “what-if” questions. Most importantly, time spent by the client listening to podcasts is time not spent calling and emailing you.
Here’s a link I found to a podcast by a multi-state domestic litigation firm that you might find useful in coming up with your own.
R.I.P. Judge Dale
April 15, 2016 § Leave a comment
It was only because of travel out of the country, with sketchy internet service — and not by oversight — that I did not pay due respect to the passing of a major figure in Mississippi Chancery Court practice. Retired Chancellor Sebe Dale, of Columbia, died April 5, at age 94.
Here is the official MSSC announcement:
Retired Chancellor Sebe Dale Jr. died Tuesday, April 5, at his home in Columbia. He was 94.
A funeral service for Judge Dale is scheduled for 11 a.m. Friday, April 8, at First Baptist Church in Columbia. Visitation will begin at 9:30 a.m. – his usual time for starting court. Interment will be at Woodlawn Cemetery. Hathorn Funeral Home in Columbia is handling arrangements.
Judge Dale retired Dec. 31, 2010, after 42 years on the bench, 32 of that as chancellor of the 10th Chancery District. He was a Youth Court referee for 10 years before he was elected to the Chancery bench. The 10th Chancery District includes Forrest, Lamar, Marion, Pearl River and Perry counties.
Supreme Court Justice Dawn Beam remembered Chancellor Dale as a mentor. She followed him as 10th District Chancellor when he retired. “Judge Dale lived a life of service to his state and country in the military, as a lawyer, and then as a Chancery Judge. As a lawyer, he taught me respect for the court and love of the law. He retired from the bench just short of 90 years old. When I followed him as Chancellor, I constantly reflected on things he taught me. We have lost a humble servant and dear friend today, and Judge Dale is no doubt hearing the words ‘Well done.’ “
Court of Appeals Judge Eugene Fair of Hattiesburg served alongside Judge Dale as a Chancellor for the 10th Chancery and practiced law before him. “He is my hero. He was one of those people who teaches you how the job is done. He was a judge’s judge. If you want to be a good judge, you try to be like Sebe Dale.”
Judge Fair said Judge Dale was always available to the lawyers. “He was one of those people who went to his office every Saturday morning and probably on Sunday afternoons. If you needed to talk to him, you could find him.” Judge Dale had that same work ethic as a lawyer in private practice. Judge Fair recalled handling a child visitation dispute in which Judge Dale represented the other parent. “We called Mike Sullivan, who was chancellor, on Christmas Day because the daddy and mama were fighting over visitation. We showed up in court the 26th day of December, whatever year that was, and tried that case. He was always available.”
Tenth Chancery Court Administrator Lisa Martin Stringer worked for Judge Dale for 13 years, from the time she was a high school senior until he retired. Judge Dale gave prayerful consideration to the decisions he was called upon to make in family law disputes. “He worked very hard and the decisions didn’t come easy,” Stringer said. “He wanted to do what was right for those children….I always remember him making sure that he had the best interests of the children at heart. He prayed for guidance on how to best serve those children.” Stringer said that Judge Dale called termination of parental rights “the closest thing to a death sentence in Chancery Court. His happiest day in court was a day that he got to do an adoption. He got to create a family that day.”
The building where Judge Dale held court in Columbia, formerly known as the Chancery Court Annex, was renamed “The Sebe Dale, Jr. Chancery Court Building” in his honor in November 2010, shortly before he retired.
At the ceremony to rename the courthouse, Judge Dale said that he followed in the footsteps of his father and grandfather. His grandfather, John B. Dale, was president of the Marion County Board of Supervisors when the main courthouse was built in 1905. “He set a track for me and my father set a track for me. I’ve done my best to be true to it. Thank you so much,” he said at the ceremony.
Judge Dale was a member of the Mississippi Judicial College Board of Governors for 22 years, 18 of that as chairman. He was a member of the State Penitentiary board for eight years. He served as chairman of the Conference of Chancery Judges and of the Judicial Advisory Study Committee, and as president of the Marion County Bar Association.
Judge Dale was a graduate of Columbia public schools, Mississippi College and the University of Mississippi School of Law. He was admitted to the Mississippi Bar in 1948, and engaged in the private practice of law for 31 years. He was a recipient of numerous awards, including the Chief Justice Award, the Mississippi Bar Lifetime Achievement Award and the Mississippi State University Prelaw Society’s Distinguished Jurist Award.
He was a veteran of World War II, having served four years of active duty in the U.S. Army Air Corps. He was a reservist for 27 years, including service in the Judge Advocate General Corps. He retired at the rank of Colonel in 1981.
A POA No-No
April 14, 2016 § 2 Comments
An elderly couple shuffles into your office After exchange of pleasantries, the wife explains that the husband has been diagnosed with dementia, although he is still competent at this point. The two of them want the wife to have power of attorney (POA) so that the wife can execute deeds and other documents necessary to deal with husband’s business when he is no longer competent to do so. One thing she specifically mentions is that they would like to sell their home in the country and move into town.
You have your secretary draft a durable POA per MCA 87-3-101, et seq. using the forms in your computer, let them be executed, and send them on their way. Did you cover all the bases?
Look at MCA 89-1-29. The very last sentence, added in 2008, reads this way: “All powers of attorney authorizing any conveyance, mortgage, deed of trust or other incumbrance upon a homestead shall designate an attorney in fact other than a spouse and shall comply with the provisions of Chapter 3 of Title 87.” [Emphasis added] Chapter 3 of Title 87 includes all the statutes bearing on POA’s.
Since homestead was specifically mentioned (the home in the country), you should have explained that you must also do a POA for a child of theirs or some other trusted person for sale of the homestead. As for the non-homestead property, the wife as POA would legally still be able to convey it without participation of a third party. The proscription applies only to homestead.
A caveat: Senate Bill 2574, the “Mississippi Uniform Power of Attorney Act” has passed the Senate and gone on to the House. Unless and until it changes the law on this point, the current 89-1-29 controls.
Embarrassment is not an Adverse Effect
April 12, 2016 § 3 Comments
Brandi Spears and her then-husband, Ken Moreland, agreed in a 2012 PSA that Brandi would have physical custody of their child, and they would share joint legal custody. (Note that Brandi is the spelling in the style of the case, but Brandy is the spelling used throughout the opinion).
In 2013, Brandi sued Ken for modification, claiming that there had been a material change in circumstances in that Ken had failed to pay some of the child’s expenses as he agreed, and seeking sole legal custody, a change in the visitation schedule, an order for Ken to have a mental evaluation, and attorney’s fees.
The chancellor did modify the legal custody to award Brandi sole legal custody and other relief. From that ruling, and from the other relief, Ken appealed.
In its decision in Moreland v. Spears, handed down March 1, 2016, the COA, by Judge Griffis, recited the familiar rule that modification of custody requires a showing, by a preponderance of evidence, that there has been (1) a material, substantial change in circumstances since entry of the original custody order that has (2) had an adverse effect on the child, and (3) it is in the child’s best interest to change custody.
After analyzing the evidence of material change, the opinion turned to the proof of adverse effect:
¶12. Despite whether these instances constituted a material change in circumstances, it was incumbent upon Brandy to show these changes had an adverse effect on Lauren. Brandy’s only contention of an adverse effect was that some of Ken’s actions embarrassed Lauren and, as Lauren grew older, Brandy speculated that the extent of embarrassment would increase. Brandy, however, fails to show how embarrassment equates to an adverse effect. Lauren continued to performed well in school and received satisfactory marks in her progress reports. As such, we find that Brandy failed to prove any adverse effects on Lauren.
¶13. This Court has held far more egregious conduct did not warrant a change in custody when no adverse effect occurred. In Sudduth v. Mowdy, 991 So. 2d 1241, 1245 (¶14) (Miss. Ct. App. 2008), this Court found the minor child’s dental problems, the mother’s inappropriate relationships, and the allegations that the mother gave the child anti-psychotic drugs did not warrant a modification of custody from the mother to the father when the father failed to prove any adverse effects on the child.
¶14. Likewise, in Wikel v. Miller, 53 So. 3d 29, 35-36 (¶¶15, 17) (Miss. Ct. App. 2010), this Court affirmed the chancellor’s findings that the mother’s interference with the father’s visitation, the minor children’s behavioral problems requiring counseling, and the mother’s prior relationships did not warrant a modification in custody when the minor children excelled in school and showed no adverse effects. For these reasons, Brandy failed to demonstrate that Lauren suffered from adverse effects warranting a modification.
I might add that, in my experience, most teenagers spend the greater part of their teen years being embarrassed and mortified about one thing or another, so it’s a wise rule not to let something as serious as modification turn on that kind of spasm of emotion.
What isn’t There Can Make a Big Difference
April 11, 2016 § Leave a comment
Dee Myrick filed a Complaint for Divorce against her husband, John, in 2013. The complaint was based on the fault ground HCIT. At a temporary hearing, the chancellor ordered John to pay temporary alimony.
Later, the parties withdrew fault allegations and entered into a consent for divorce on the ground of irreconcilable differences. The contested issues submitted for adjudication were: “property division including allocation of debt”; attorney’s fees; and “division of all real property.” Alimony was not mentioned.
Following a trial and rehearing motions, the chancellor divided the marital estate and awarded Dee $600 a month in periodic alimony. John appealed the award of alimony.
In Myrick v. Myrick, decided February 23, 2016, the COA reversed on the issue of alimony and remanded. Judge Barnes wrote for the court:
¶17. Mississippi statutory law specifically lays out the procedure for a divorce on the ground of irreconcilable differences. Parties may consent to the divorce and submit to the trial court any unresolved issues:
If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment.
Miss. Code Ann. § 93-5-2(3) (Rev. 2013) (emphasis added). “Divorce in Mississippi is a creature of statute,” and the parties must strictly adhere to the statutory mandates of irreconcilable-differences divorce. Engel v. Engel, 920 So. 2d 505, 510 (¶17) (Miss. Ct.App. 2006) (quoting Massingill v. Massingill, 594 So. 2d 1173, 1175 (Miss. 1992)). “The language of [s]ection 93-5-2(3) is clear. A chancellor may decide contested issues in a divorce based upon irreconcilable differences. However, he is limited to the resolution of those issues specifically identified and personally agreed to in writing by the parties.” Wideman v. Wideman, 909 So. 2d 140, 146 (¶22) (Miss. Ct. App. 2005).
¶18. Dee initially petitioned the court for a divorce on the basis of habitual cruel and inhuman treatment, uncondoned adultery, or, in the alternative, irreconcilable differences. She requested “temporary relief” of a “reasonable sum” for monthly alimony. In November 2013, the chancellor issued a temporary order, ordering Ken to “contribute” $800 a month to Dee in lieu of the house payment.
¶19. In February 2014, Dee and Ken signed a consent agreement to an irreconcilable differences divorce. It listed matters the chancellor should decide as “property division, including allocation of debt”; attorney’s fees; and “division of all real property.” No mention was made of alimony. The chancellor granted Dee and Ken’s motion to dismiss fault grounds. The chancellor had, however, ordered the temporary relief of alimony when the divorce sought was based on fault grounds, rather than irreconcilable differences.
¶20. In Engel, this Court reversed the chancery court’s judgment in an irreconcilable differences-divorce case because the consent failed to comply with required statutory language, and the parties failed to set forth with specificity the issues to be decided by the court, even though the appellant suffered no prejudice. Engel, 920 So. 2d at 509 (¶¶14, 16). Here, the parties did not specify alimony as an issue to be decided by the chancellor; so he cannot now award it.
¶21. Ken cites to Wideman, 909 So. 2d 140, and Gordon v. Gordon, 126 So. 3d 922 (Miss. Ct. App. 2013), for support. In Wideman, this Court affirmed a chancellor’s refusal to consider an award of attorney’s fees in a divorce action where the parties did not include this issue in their consent agreement. Wideman, 909 So. 2d at 145-46 (¶22). Likewise, in Gordon, this Court affirmed the chancellor’s refusal to hear issues of child custody, support, and equitable distribution because the parties stated in their consent agreement the only issue the chancellor had to resolve was related to misappropriation of funds. Gordon, 126 So. 3d at 926 (¶12).
¶22. Dee argues, and the separate opinion agrees, that alimony is an integral part of “property division” analysis, and is therefore proper here, citing the Ferguson factor regarding “the extent to which distribution can eliminate future periodic payments.” Ferguson, 639 So. 2d at 925. However, in an irreconcilable-differences divorce, the statute is clear that the resolution of all issues must be specifically set forth in the consent agreement. The court’s award of periodic alimony was without authority and must be reversed.
The court remanded rather than render for Ken because the chancellor had originally ordered Ken to pay Dee lump-sum alimony “based on need.” The COA instructed that, on remand, the chancellor was to clarify whether the lump-sum alimony was part of property division, which could be reinstated, or was alimony, which could not.
It makes perfect sense that, if something is left out of a negotiated agreement such as a consent, it should be assumed that its omission came about as a result of negotiation. The statute requires that all contested issues be clearly set forth. If you leave something out, unless the other side agrees to let it in, you won’t be able to get it in.
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