MSSC Clarifies the Relationship Between Alimony and Social Security Benefits

June 8, 2020 § Leave a comment

Before 2018, the rule in Mississippi was that an alimony payor was entitled to a dollar-for dollar credit against an alimony obligation for derivative Social Security (SS) retirement benefits received by the payee ex-spouse. Spalding v. Spalding, 691 So.2d 435 (Miss. 1997).

Note: Derivative benefits are those derived from the payor’s SS entitlement, as where the payee elects to base benefits on the spouse’s earning record instead of his or her own, so as to receive a greater benefit.

That changed with the case of Harris v. Harris, 241 So.3d 622, 628 (Miss. 2018), which overruled Spalding and held that derivative SS benefits do not trigger an automatic modification of alimony, but that the trial court must “weigh all the circumstances of both parties and find that an unforeseen change in circumstances occurred to modify alimony.”

Then, in Alford v. Alford, decided July 23, 2019, the COA reversed and remanded a chancellor’s award of alimony because it did not take into account Linda Alford’s inevitable receipt of derivative SS benefits in its initial determination of alimony. The COA remanded the case to the trial court, but Linda filed a petition for certiorari with the MSSC.

The MSSC granted cert., and in Alford v. Alford, decided June 4, 2020, the court reversed the COA in part. At ¶2, the court’s opinion states:

“We granted certiorari because this Court has not answered whether a chancellor should consider Social Security benefits when considering initial alimony awards. We find that consideration of derivative Social Security benefits should be reserved for alimony modification proceedings.”

Justice Kitchens wrote for the unanimous court:

¶14. The Court of Appeals held that the chancellor should have considered Linda Alford’s near-future reception of derivative Social Security benefits when it made her initial alimony award because “Harris specifically holds that derivative Social Security benefits will not justify a subsequent modification of alimony if the benefits were anticipated or foreseeable at the time of the divorce.” Alford, 2019 WL 3297142, at *6 (citing Harris, 241 So. 3d at 628-29).

¶15. Linda Alford argues that the Court of Appeals erred in its interpretation of Harris. According to her, Harris concerned “whether the other financial circumstances of the parties had materially changed so as to warrant a modification of alimony, when coupled with the advent of Social Security benefits” and did not concern whether derivative Social Security benefits were foreseeable. This Court agrees. Harris did not hold that the future receipt of derivative Social Security benefits is a foreseeable circumstance that would not allow a subsequent modification of alimony; rather, Harris said that when an alimony recipient acquires derivative Social security benefits, the alimony payor may seek a downward modification of his or her alimony payments after the chancery court considers the totality of the parties’ circumstances, not merely the receipt of derivative Social Security benefits. Harris, 241 So. 3d at 628. We find that Harris requires the chancellor to examine the impact the reception of derivative Social Security benefits causes and not the reception alone. We find also that it is the unpredictable impact that stymies foreseeability at the time of the initial alimony award. Thus, we hold that the Court of Appeals interpreted Harris incorrectly. [My emphasis]

¶16. At the time of the Alfords’ divorce, the law regarding derivative Social Security benefits provided that the spouse paying alimony was entitled to an automatic credit toward his alimony obligation “because the amount was based on his income.” Harris, 241 So. 3d at 626 (citing Spalding, 691 So. 2d at 439). In 2018, this Court overruled Spalding “to the extent that it holds an alimony reduction to be automatic for Social Security benefits derived from the alimony-paying spouse’s income.” Id. at 624. The issue in Harris involved a modification of a property settlement agreement, and this Court held that

Social Security benefits derived from the other spouse’s income do not constitute a special circumstance triggering an automatic reduction in alimony. When a spouse receives Social Security benefits derived from the other spouse’s income, the trial court must weigh all the circumstances of both parties and find that an unforeseen material change in circumstances occurred to modify alimony. Harris, 241 So. 3d at 628.

¶17. Harris did not say that derivative Social Security benefits can never be a basis for modifying an alimony award, only that the reception of derivative Social Security benefits does not “trigger[] an automatic reduction in alimony.” Id. The Court in Harris said that when a person receives derivative Social Security benefits, there can be a later modification of alimony as long as the chancellor “weigh[s] all the circumstances of both parties and find[s] that an unforeseen material change in circumstances occurred to modify alimony.” Id. If we were to agree with the Court of Appeals that “derivative Social Security benefits will not justify a subsequent modification of alimony if the benefits were anticipated or foreseeable at the time of the divorce[,]” Alford, 2019 WL 3297142, at *6 (citing Harris, 241 So. 3d at 628-29), one would not be able to seek a modification under Harris because it is foreseeable that most Americans will receive Social Security benefits at some point in their lives.

¶18. The Court of Appeals found that it was “clearly foreseeable” that Linda Alford would receive derivative Social Security benefits “in the near future” and it was the reception of those benefits that would not justify a later modification according to Harris. Alford, 2019 WL 3297142, at *6. While it may be foreseeable that a litigant will receive Social Security benefits, the impact of the benefits on both parties cannot be anticipated or foreseen. The chancellor must consider such benefits in conjunction with “all the circumstances of both parties” in order to determine whether there is an “unforeseen material change in circumstances” that justifies modifying alimony. Harris, 241 So. 3d at 628. It also may be said that it is clearly foreseeable that a person will get older and/or a person’s health will decline; yet courts have determined that these foreseeable events sometimes can create unanticipated, unforeseeable material changes in circumstances that justify the modification of alimony. See Broome v. Broome, 75 So. 3d 1132, 1141 (Miss. Ct. App. 2011) (“The chancellor found T.C.’s standard of living dramatically decreased over the years since the divorce decree due to his poor health and advanced age.”); Makamson v. Makamson, 928 So. 2d 218, 221 (Miss. Ct. App. 2006) (“These are specific findings that the increased costs, length of time before treatment was to begin and the stroke were not anticipated in the property settlement agreement.”). Contra Weeks v. Weeks, 29 So. 3d 80, 90-91 (Miss. Ct. App. 2009) (“With the extensive testimony concerning Deborah’s medical problems and the state of her health before the judgment after remand was entered, we cannot say that the increased expenses due to the progression of these problems was in any way unforeseeable by the parties.”).

¶19. In Harris, this Court considered the South Carolina case Serowski v. Serowski in deciding whether a modification of alimony “due to the start of Social Security benefits” was automatic or “require[d] a showing of a material or substantial change in circumstances[.]” Harris, 241 So. 3d at 628 (citing Serowski v. Serowski, 672 S.E. 2d 589, 593 (S.C. Ct. App. 2009)). In Serowski, the court did not find that the spouse’s reception of Social Security benefits was a foreseeability that would not allow a modification of alimony. Serowski, 672 S.E. 2d at 593 (“[T]he court found Wife’s increase in income due to her receipt of social security and annuity benefits had improved her ability to meet her needs.”). Instead, the court upheld a modification of alimony by considering the impact the Social Security benefits had on the wife’s income in conjunction with the increase in the wife’s net worth and the husband’s decline in health. Id. at 593-94 (“[T]he court properly considered both parties’ economic circumstances in reaching its finding.” (citing Eubank v. Eubank, 555 S.E. 2d 413, 417 (S.C. Ct. App. 2001))).

¶20. Similarly, this Court determines that Harris does not hold that the mere reception of derivative Social Security benefits is a foreseeable circumstance that would preclude a subsequent modification of alimony. Harris, 241 So. 2d at 628. In Harris we reversed and remanded, not because it was foreseeable that a person would receive derivative Social Security benefits, but because the trial court had failed to perform the proper analysis and determine whether all of the circumstances, including the impact the reception of derivative Social Security benefits had on both parties, constituted an unforeseen material change in circumstances. Id. at 628-29. Merely receiving derivative Social Security benefits alone is not enough to allow a modification of alimony because there must be judicial consideration of its impact on the parties, a factor that is not foreseeable at the time of the divorce. See Ivison v. Ivison, 762 So. 2d 329, 334 (Miss. 2000) (“An award of alimony can only be modified where it is shown that there has been a material change in the circumstances of one or both of the parties.” (citing Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995))); Tingle v. Tingle, 573 So. 2d 1389, 1391 (Miss. 1990) (“This change, moreover, must also be one that could not have been anticipated by the parties at the time of the original decree.” (citing Morris v. Morris, 541 So. 2d 1040, 1043 (Miss. 1989); Trunzler v. Trunzler, 431 So. 2d 1115, 1116 (Miss. 1983))).

¶21. We clarify our holding in Harris: when an alimony payor seeks an alimony modification based on the payee’s receipt of derivative Social Security benefits, the trial court must consider whether the impact of the derivative Social Security benefits on the parties constitutes a “material or substantial change in the circumstances[,]” Tingle, 573 So. 2d at 1391 (citing Clark v. Myrick, 523 So. 2d 79, 82 (Miss. 1988); Shaeffer v. Shaeffer, 370 So. 2d 240, 242 (Miss. 1979)), that arose after the original judgment and “could not have been anticipated by the parties at the time of the original decree[,]” Morris, 541 So. 2d at 1043; Trunzler, 431 So. 2d at 1116, and whether the change in circumstances calls for an alteration of alimony under the factors governing alimony awards from Armstrong, 618 So. 2d at 1280. See Steiner v. Steiner, 788 So. 2d 771, 776 (Miss. 2001) (“The chancellor must consider what has become known as the Armstrong factors in initially determining whether to award alimony, the amount of the award, and in deciding whether to modify periodic alimony, comparing 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.” (citing Tilley v. Tilley, 610 So. 2d 348, 353-54 (Miss. 1992))).

That foreseeability aspect has puzzled me through the years. Your unclaimed SS benefits stop accruing when you reach 70, so 99.9% of people claim their benefits before then. You can’t get much more foreseeable than that. I think the bold language in Alford, above, clarifies that it is not the claiming of benefits that is unforeseeable; rather it is the economic impact that is unforeseeable and opens the gate to modification.

I don’t generally post about a case that is subject to a motion for rehearing, but with this blog winding down and this case being important to practitioners, I decided to go ahead with it. Besides, it’s a unanimous decision, and in my opinion it’s unlikely (and unforeseeable) that rehearing would be granted.

The Requirement of Particularity in an Order or Judgment

May 6, 2020 § Leave a comment

It’s fundamental that, in order for an order or judgment to be enforceable, it must be complete on its face, and the obligation imposed must be specified. It can not require reference to extraneous information to determine the obligation. For example, an order that the obligor pay 14% of his adjusted gross income is unenforceable since it requires that we determine from extraneous sources what 14% of his income might have been.

The principle was brought to the fore in the COA’s decision reversing a chancellor’s adjudication of contempt in Lindsay v. Lindsay and Pickering, handed down April 7, 2020. Judge Lawrence wrote for the majority:

¶23. “Civil contempt orders enforce a private party’s rights or compel compliance with a court’s order.” Hanshaw v. Hanshaw, 55 So. 3d 143, 147 (¶13) (Miss. 2011). “Failure to comply with a court order is prima facie evidence of contempt.” Evans v. Evans, 75 So. 3d 1083, 1087 (¶14) (Miss. Ct. App. 2011). “Before a party may be held in contempt for failure to comply with a judgment, ‘the judgment must be complete within itself[,] leaving open no matter or description or designation out of which contention may arise as to meaning.’” Davis v. Davis, 829 So. 2d 712, 714 (¶9) (Miss. Ct. App. 2002) (quoting Wing v. Wing, 549 So. 2d 944, 947 (Miss. 1989)). “A contempt citation is proper only when the contemner has wilfully and deliberately ignored the order of the court.” Lewis v. Pagel, 172 So. 3d 162, 178 (¶39) (Miss. 2015) (quoting Gaiennie v. McMillin, 138 So. 3d 131, 136 (¶13) (Miss. 2014)). Further, “[t]his Court will not reverse a contempt citation where the chancellor’s findings are supported by substantial credible evidence.” Witters v. Witters, 864 So. 2d 999, 1004 (¶18) (Miss. Ct. App. 2004) (citing Varner v. Varner, 666 So. 2d 493, 496 (Miss. 1995)).

¶24. “A defendant may avoid a judgment of contempt by establishing that he is without the present ability to discharge his obligations. However, if the contemnor raises inability to pay as a defense, the burden is on him to show this with particularity, not just in general terms.” Varner, 666 So. 2d at 496 (citation omitted).

¶25. Here, the trial court held Bruce in contempt of the October 13, 2016 written temporary order entered nunc pro tunc to June 13, 2014. At the June 13, 2014 hearing, the court examined Bruce’s Rule 8.05 financial statement and heard testimony from both Bruce and Paula. At the close of the hearing, Judge Steckler indicated his ruling was not complete, stating, “But I want to meet again with both attorneys early next week and go over it and then we’ll finish this order.” He continued “[B]etween now . . . and the time that I enter another order, he is to continue to pay everything that he’s paying now.” (Emphasis added). His bench ruling made no mention of the exact amount of child support, the exact amount of spousal support, home mortgage notes, house maintenance for the pool or yard, or any other specific amount for a specific obligation that Bruce was to pay.

¶26. What Bruce was actually paying at the time of June 13, 2014 hearing is unclear from the record. His Rule 8.05 financial statement from that hearing shows he was paying over $14,000 per month in expenses despite only having $10,260.76 in net income. Further, his Rule 8.05 financial statement does not mention any amount of child support or spousal support, both of which he was later held in contempt for not paying. The vague nature of the
temporary order continued with the new chancery judge’s equally vague ruling—the October 3, 2016 written order—that Bruce “continue to pay an[y] and all debts, obligations and expenses he was paying prior to June 13, 2014.” The specific amounts for what specific obligations that Bruce was required to pay and for which he was held in contempt for not paying were not “complete within the judgment.” In other words, Bruce was held in contempt and incarcerated for not paying obligations that were never specifically set forth within the four corners of the oral ruling on June 13, 2014, or the written temporary order entered by a different judge on October 3, 2016. The written order simply used similar language given by Judge Steckler from the June 13, 2014 hearing. If we looked only to the temporary orders, it would be impossible to know what exactly Bruce had been ordered to pay and in what amounts. The orders are vague and confusing. At the second contempt proceeding on October 19, 2017, before he was ordered to be incarcerated, Bruce said as much when he argued pro se to the court the following:

My point, I guess, is that it’s certainly not willful. There’s a lack of money. Additionally, I think there was definitely confusion over this to this day, but there certainly was confusion through the different meetings, conferences . . . and hearings and no written order by Judge Steckler.

¶27. Simply put, the language in the oral order from the bench and the written order entered over two years later never mention any specific type of obligation or in what amount that obligation is to be paid. In fact, the words child support, spousal support, home mortgage, and lawn or pool maintenance, or any specific monetary amounts for any of those obligations, are never mentioned in either orders. At the June 13, 2014 hearing, the court simply said to “pay everything that he’s paying now[,]” and the October 3, 2017 written order simply stated, “[P]ay any and . . . all debts, obligations, and expenses he was paying prior to June 13, 2014.” This Court has made clear that the “judgment must be complete within itself[,] . . . leaving open no matter or description or designation out of which contention may arise as to meaning.” Davis, 829 So. 2d at 714 (¶9) (quoting Wing, 549 So. 2d at 947). The meaning of the oral order from the bench on June 13, 2014, and the written order trying to reduce to writing that oral order was not clear and certainly not “complete” within itself. Orders from courts, whether oral or written, should not be so vague as to prevent a reasonable person from understanding its clear legal effect or the potential for contempt in failing to abide by its terms. Those terms should be clearly defined within the four corners of the order in an effort to cause “contention [that] may arise as to meaning.” Id. The temporary orders in this case were overly vague, ambiguous, and unclear as to exactly what was required to be paid. Therefore, the order of contempt against Bruce in the amount of $105,470.67 is hereby reversed.

Lawyers have presented PSA’s and agreed orders with flaws similar to that spelled out above, and I have sent them back to the drawing board, although I do confess to signing off on a few when the lawyers whined enough to wear down my resistance. I did  point out, however, that if it came back before me for enforcement, the obligation would clearly be unenforceable for the same reasons set out in Lindsay.

Air Alimony

April 28, 2020 § Leave a comment

Most of the cases that come stumbling through my court involve people living literally on the brink of financial catastrophe. Minimal income and maximal debt.

That was the situation of Morgan and Melanie Ewing when they appeared before the chancellor in 2015. The chancellor proceeded through equitable distribution and, notwithstanding their financial straits, ordered Morgan to pay Melanie child support and alimony. Morgan appealed, and the COA reversed and remanded to require Ferguson findings, which necessitated a review of the other financial awards as well.

On remand the chancellor at first rendered an order making Ferguson findings and reinstating the original awards. Morgan filed what must have been a R59 motion (the COA refers to it as “a motion for reconsideration, a motion to set aside the judgment …”), which the chancellor granted, setting the matter for a full hearing. Following the hearing, the chancellor entered his judgment essentially identical to what he had done before. Unhappy with the outcome, Morgan again appealed.

In Ewing v. Ewing, decided April 7, 2020, the COA affirmed. We looked at the decision on the issue of attorney’s fees in a previous post. Here is how Judge Barnes addressed the issue of alimony:

¶9. In the prior appeal, this Court “affirmed as to the finding of a need for periodic alimony” but remanded for reconsideration of the amount in light of Morgan’s standard of living. Ewing, 203 So. 3d at 715-16 (¶¶29-30). On remand, the chancery court upheld the award of periodic alimony, concluding that “the award of $500.00 per month in periodic alimony is proper after analyzing Morgan’s other financial obligations and his ability to maintain a decent standard of living.” The chancery court specifically determined that even after Morgan paid child support, alimony, and the monthly installment for attorney’s fees, he “would still net $1,629.52 each month based upon his current income, which is sufficient considering Melanie has [four] children living with her and he only has himself.” [Fn 5] Morgan argues that the chancery court’s award of permanent periodic alimony to Melanie “was
unreasonable in light of [his] inability to pay and the income of Melanie.”

[Fn 5] Although Morgan notes the chancery court’s error in the order regarding the number of children (i.e., four versus five children), we agree with Melanie that because child support was not calculated based on five minor children, this is simply a scrivener’s error that has no substantive effect on either party. While not affecting our analysis of this issue, we have noted a minor discrepancy in the court’s calculation of Morgan’s net monthly income, which we will address further when we address the award of attorney’s fees.

¶10. As with other domestic-relation matters, a chancery court’s award of alimony is discretionary and will not be reversed on appeal absent a determination that the court’s findings of fact were manifestly in error and an abuse of discretion. Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). “A chancellor’s decision to award permanent alimony must consider both need and ability to pay.” Rogillio v. Rogillio, 57 So. 3d 1246, 1252 (¶24)
(Miss. 2011). “In making that decision, the chancellor considers, in relevant part, the reasonable net income and expenses of both spouses.” Id. (citing Box v. Box, 622 So. 2d 284, 288 (Miss. 1993)). “Alimony is considered only after the marital property has been equitably divided and the chancellor determines one spouse has suffered a deficit.” Castle v. Castle, 266 So. 3d 1042, 1053 (¶43) (Miss. Ct. App. 2018) (quoting Lauro v. Lauro, 847 So. 2d 843, 848 (¶13) (Miss. 2003)), cert. denied, 267 So. 3d 278 (Miss. 2019).

¶11. Arguing that the chancery court failed to “balance [Melanie’s] needs with [his] inability to pay” in awarding periodic alimony, Morgan contends that Melanie “received over $44,000.00 in assets, [had] no debts, had all of her expenses paid for several years under the temporary order, and currently is a homeowner with over $44,000.00 in separate equity in her home over and above the property division.” In contrast, Morgan states that he has a negative estate with approximately $50,000 in debt. He also claims Melanie now earns more than he does.

¶12. Morgan argues that the chancery court was required to examine the financial positions of the parties both at the time of trial and the time of remand, citing Yelverton v. Yelverton, 26 So. 3d 1053 (Miss. 2010). Specifically, Morgan claims that while the chancery court addressed his financial position at the time of remand, the court failed to consider Melanie’s current financial position. His main point of contention is that Melanie’s salary had
increased since 2015, and she now earns more in net monthly income than he does. In Yelverton, the chancery court issued a seventeen-page judgment without a hearing and upheld awards of alimony and child support. Id. at 1056 (¶6). The chancellor “based his decision on testimony and exhibits received at the hearings conducted prior to the original 2004 judgment.” Id. The appellant claimed the court should have held an evidentiary hearing to consider changes occurring since its original 2004 judgment. Id. at (¶10). The Mississippi Supreme Court agreed and reversed and remanded with instructions to the court to “conduct an evidentiary hearing” in order to determine the following: (1) the value of marital assets no later than the date of divorce and based on evidence presented at the remand hearing; (2) “the amount of periodic alimony and child support due up until the time of the
remand hearing” based on circumstances up until the remand hearing; and (3) “the amount of periodic alimony and child support going forward from the time of the remand hearing, which shall be determined based on the circumstances existing at the time of the remand hearing.” Id. at 1057 (¶13).

¶13. Unlike Yelverton, the chancery court in this case determined that the periodic alimony award of $500 was appropriate after conducting an evidentiary hearing and considering the parties’ incomes and expenses at trial and up to remand. The chancery court noted in its order that Melanie’s net monthly income, as of February 18, 2015, was $851.70, while her net expenses were $2,830.00, and that she “lost approximately $2,000 per month simply
paying her bills.” Morgan’s monthly net income, as of February 2015, was $2,579.35, while his net expenses were $2,329.39 before the child-support payment.

¶14. With regard to the parties’ finances up to remand, the chancery court’s order admittedly failed to mention Melanie’s more recent Rule 8.05 financial declaration dated June 2018, which showed her net monthly income had increased to $2,991.32.6 However, the chancery court found that both parties “essentially live paycheck to paycheck with their current living expenses.” (Emphasis added). This finding is supported by the evidence. Melanie’s combined total expenses from her 2018 Rule 8.05 financial declaration were $3,840.53, still leaving her with a significant deficit. Furthermore, although Melanie’s salary and wages significantly increased to $3,114 in 2018, she still earns less than Morgan. According to his financial declarations, Morgan’s salary and wages increased from $3,620 in 2015 to $4,752.80 in 2018.

¶15. Accordingly, we do not find that the court’s award of periodic alimony was manifestly in error or an abuse of discretion, and we affirm on this issue.

This case illustrates what a chancellor can do when both parties live “paycheck to paycheck,” and how the COA is likely to view it, even when the alimony will have to be conjured up from thin air, or seem to. It seems to me that the appellate courts could go either way in a close case such as this (as the chancellor could, as well), the tipping point being one party’s greater — even slightly greater — need. When you try one of these quite typical scenarios, think about that tipping point. Give your chancellor the evidence she needs to tip the case your client’s way.


High Income, Large Marital Estate, Equitable Distribution, and Alimony

February 26, 2020 § Leave a comment

I don’t know about other chancellors, but one of the most difficult tasks for me is to figure out whether there is truly a disparity requiring alimony after equitable distribution.

In the recent COA case, Descher v. Descher, decided January 14, 2019, the chancellor ordered Jeffrey Descher to pay his ex, April, $7,500 a month in periodic alimony, even though her equitable distribution, lump-sum alimony, and even child support, were substantial. The COA affirmed. Judge Lawrence’s majority opinion on the issue is chock-full of helpful authority and rationale, so here it is:

¶25. Finally, Jeff argues that the chancellor erred by awarding April permanent periodic alimony. “Alimony is considered only after the marital property has been equitably divided and the chancellor determines one spouse has suffered a deficit.” Castle v. Castle, 266 So. 3d 1042, 1053 (¶43) (Miss. Ct. App. 2018) (quoting Lauro v. Lauro, 847 So. 2d 843, 848 (¶13) (Miss. 2003)), cert. denied, 267 So. 3d 278 (Miss. 2019). This Court is bound to “consider the totality of the chancellor’s awards upon the divorced parties, including the benefit to the payee spouse and the concomitant burden placed on the payor spouse.” Id. (internal quotation marks omitted) (quoting Arrington v. Arrington, 80 So. 3d 160, 167 (¶23) (Miss. Ct. App. 2012)). “Our scope of review of an alimony award is familiar and well settled. Alimony awards are within the discretion of the chancellor, and his discretion will not be reversed on appeal unless the chancellor was manifestly in error in his finding of fact and abused his discretion.” Coggins, 132 So. 3d at 640 (¶8) (quoting Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993)).

¶26. Permanent periodic alimony serves an important purpose as a “substitute for the marital-support obligation.” Rogillio v. Rogillio, 57 So. 3d 1246, 1250 (¶11) (Miss. 2011). More specifically,

[t]he award of permanent periodic alimony arises from the duty of the husband to support his wife. We have also said that the husband is required to support his wife in a manner to which she has become accustomed, to the extent of his ability to pay. To update our language: Consistent with Armstrong, a financially independent spouse may be required to support the financially dependent spouse in a manner in which the dependent spouse was supported during the marriage, subject to a material change in circumstances.

Castle, 266 So. 3d at 1053 (¶43) (emphasis altered) (quoting Rogillio, 57 So. 3d at 1250 (¶11)). This duty, however, is not absolute. A spouse that seeks alimony must have “a deficit with respect to having sufficient resources and assets to meet his or her needs and living expenses.” Jackson v. Jackson, 114 So. 3d 768, 777 (¶22) (Miss. Ct. App. 2013) (emphasis added).

¶27. Without a periodic alimony award, April would have been forced to draw on her lump-sum award for the rest of her life. [Fn 9] That is not a “sufficient resource” that Jackson anticipated. Id. April still worked for the Descher corporation at the time of trial. The most money she ever earned was when she worked for the Descher corporation. According to her Rule 8.05 statement, when April worked at the Descher corporation, she earned $3,024.00 before taxes. After taxes, April earned $2,491.25. She listed $12,784.82 in total personal monthly expenses. In addition, her children’s expenses were listed as $3,402.33 each month. Because she received the home and her vehicle free and clear of any debt, April no longer has a mortgage payment or a car note in her monthly expenses. That means April’s personal monthly expenses, after the chancellor’s judgment, was $7,199.50. Jeff, on the other hand, was able to attend what McDonald’s calls “Hamburger University” and as a result qualified
to own and manage McDonald’s restaurants. The businesses he now owns are free and clear of any interest April held. Those businesses bring in over thirty-one million dollars per year in gross revenue. While the lump-sum alimony award was $856,794.98, which is certainly a large sum to most people, it does nothing to cure the fact that there is still a “significant income disparity” between Jeff’s and April’s incomes from the businesses, which were portions of the marital property. Jeff earns over $71,000 per month after taxes. April earns $2,491.25 per month after taxes if she is even still employed with the Descher business conglomerate. The lump-sum alimony award did not address this obvious income disparity.

[Fn 9] The dissent argues that the chancellor did not consider April’s $856,794.98 lump-sum alimony award as part of her “resources and assets” available to meet her expenses. Post at (¶46). The chancellor, however, specifically stated that “[i]n view of the significant income disparity following the equitable distribution of the marital estate, the lack of April having any meaningful potential future earnings potential, the length of the marriage, the parties’ accustomed standard of living, and the [c]ourt finding that it would be inequitable to require April to live exclusively off of the moneys she is to receive as the lump-sum alimony portion of the equitable distribution of the marital assets . . . this [c]ourt finds that April is entitled to an award of periodic alimony.” That indicates the chancellor did in fact consider the lump-sum alimony award as an asset.

¶28. The question now becomes whether $7,500 per month in permanent periodic alimony is excessive. Excessive awards of alimony by the chancellor have been overturned by this Court before. In Cosentino v. Cosentino, 912 So. 2d 1130 (Miss. Ct. App. 2005) (Cosentino I), this Court held that the wife was not entitled to $7,000 in permanent periodic alimony. Id. at 1131 (¶1). This Court reversed and remanded the case to the chancery court for a proper Ferguson and Armstrong analysis. [Fn 10] Id. at 1133 (¶12). When Douglas Cosentino again appealed the chancellor’s decision after remand, we reversed and rendered judgment for failure to justify the permanent periodic alimony award when the wife had received $2,615,815 as part of the marital estate. Cosentino v. Cosentino, 986 So. 2d 1065, 1066 (¶¶1-3) (Miss. Ct. App. 2008) (Cosentino II). The instant case is distinguishable from our decisions in Cosentino I and Cosentino II.

[Fn 10] Ferguson v. Ferguson, 639 So. 2d 921, 926 (Miss. 1994) (finding that awards of alimony are appropriate if after dividing the marital property there is still inequity between the two parties); Armstrong v. Armstrong, 618 So. 2d 1278, 1280-81 (Miss. 1993) (noting the twelve factors necessary for a chancellor to consider when entering a judgment for alimony).

¶29. In Cosentino II, we found that the chancellor’s failure “to provide any justification for the alimony award” was error. Id. at 1068 (¶8). Since “[t]he chancellor did not articulate any reason why Phyllis [Cosentino] needed more than the $2,615,815 that she was awarded,” this Court found that there was no evidence of a reasonable need for additional alimony. Id. at (¶9). Here, however, the record supports the chancellor’s finding that additional, permanent periodic alimony was necessary. The chancellor noted in his amended judgment that “April’s equitable distribution share of the marital estate [was] non-income producing” and that “even under the best of circumstances [any potential investment income] is not assured and pales in total insignificance when compared to the income historically received by Jeff.” The chancellor continued:

In view of the significant income disparity following the equitable distribution of the marital estate, the lack of April having any meaningful future earning[] potential, the length of the marriage, the parties’ accustomed standard of living, and the [c]ourt finding that it would be inequitable to require April to live exclusively off the moneys she is to receive as the lump-sum alimony portion of the equitable distribution of marital assets while Jeff receives $65,913.33 in monthly gross income [Fn 11] from his share of the marital estate, the [c]ourt finds that April is entitled to an award of periodic alimony.

(Emphasis added). The chancellor was not manifestly wrong in making this factual determination and did not abuse his discretion in addressing this obvious disparity.

[Fn 11] This figure is taken from Jeff’s Rule 8.05 statement and is not the recalculated, adjusted after-tax income that the chancellor found to be $71,377.66 per month. It is not clear why the chancellor resorted to $65,913.33 for purposes of this paragraph when he found the correct figure to be $71,377.66. Be that as it may, either figure (the one used by the chancellor in this paragraph or the corrected, recalculated figure as determined by the chancellor) showed a vast disparity in income between the parties from the marital businesses.

¶30. This Court’s recent holding in Castle is more analogous to the instant facts. When distributing the marital property in Castle, the chancellor found that the husband was at a greater benefit than the wife. Castle, 266 So. 3d at 1048 (¶22). To make the parties equitable the chancellor awarded the wife a “equalization payment” of $584,608.41. Id. On top of that, the chancellor also awarded lump-sum alimony in the amount of $1,600,00.00 and $6,500.00 a month in permanent periodic alimony. Id. This Court upheld the full award because “it [was] not difficult to understand how the chancellor recognized a deficit between [the husband] and [the wife] in their projected future ability to continue living in the style to which they became accustomed.” Id. at 1054 (¶47) (emphasis added).

¶31. The same can be said in this case. The chancellor specifically stated that the share of marital property awarded to April was non-income producing. More importantly, the record indicates that thirteen of the fourteen McDonald’s restaurants that Jeff owns were acquired during the marriage. Jeff admitted this in the following testimony:

Q. All of the entities described on Exhibit C — excuse me, 30, on Plaintiff’s Exhibit 30 that’s admitted into evidence, starting with No. 1 through No. 7 were acquired during your marriage to April?

A. That’s correct.

“The law presumes that all property acquired or accumulated during marriage is marital property.” Id. at 1049 (¶28) (quoting Stroh v. Stroh, 221 So. 3d 399, 409 (¶27) (Miss. Ct. App. 2017)). “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 the marriage.” Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994). “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.” Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994). Truly, “the issues of property division and alimony are intertwined.” Ali v. Ali, 232 So. 3d 770, 774 (¶8) (Miss. Ct. App. 2017) (internal quotation marks omitted) (citing McKissack v. McKissack, 45 So. 3d 716, 723 (¶41) (Miss. Ct. App. 2010)).

¶32. If this Court were to agree with Jeff and reverse on the permanent-periodic alimony award, April would be forced to live off the lump-sum alimony award and potentially run the risk of eventually running out of funds from the lump-sum payment, while Jeff would continue to earn an estimated $71,377.67 in after-tax income each month. As the chancellor noted in his judgment,

April and the children are entitled to maintain their accustomed standard of living and the [c]ourt has attempted from the record before it not to go beyond what it believes is necessary [to] assure their accustomed standard of living. The [c]ourt further notes that Jeff’s income permits him to pay these sums and to continue his accustomed standard of living.

Every month of every year until he sells his interest in the businesses or dies, Jeff will make income from the thirteen McDonald’s restaurants and other businesses acquired during the marriage. April will make nothing. While Jeff draws income permanently, April would be forced to live on the dwindling lump-sum alimony if the chancellor had not awarded permanent periodic alimony.

¶33. The dissent complains that “Jeff’s substantial income is not, by itself, a sufficient basis for the chancery court’s award of $7,500 per month in permanent alimony.” Post at (¶48). Jeff’s “substantial income,” however, is part of, and derived from, the businesses acquired and formed during the marriage as part of the marital estate. The chancellor noted this fact in his findings of fact, and the parties agreed that it was true. Despite the fact that those assets and businesses were acquired during the course of the marriage, Jeff never associated April’s name with any of those assets or businesses. As a result of the divorce, April received $7,500 per month to alleviate the “significant income disparity” that the chancellor found to exist. The award of permanent periodic alimony was not based solely on April’s expenses or Jeff’s substantial income. The chancellor’s findings of fact with regard to the permanent periodic alimony are clearly articulated based on the evidence presented and are in accordance with the correct legal standards.

¶34. Finally, the dissent argues the chancellor abused his discretion in not considering April’s assets acquired after the divorce when he awarded her $7,500 per month in permanent periodic alimony. A review of Jeff’s income versus his monthly expenses indicates Jeff’s monthly income after taxes was $71,377.67. Jeff listed his Rule 8.05 monthly expenses at $24,829.11. At trial, Jeff admitted that $10,000 of that $24,928.11 in monthly expenses was actually paid by one of the Descher corporations he owned. Therefore, his actual out-of-pocket monthly expenses is $14,829.11. After his taxes and monthly expenses are paid, Jeff still has $56,548.56 left over each and every month as a result of the income produced by the businesses created during the marriage. The chancellor ordered Jeff to pay $7,500 a month in child support and $7,500 a month in permanent periodic alimony. After Jeff pays that court-ordered child support and alimony, as well as his monthly expenses, Jeff still has $41,548.56 left over each and every month. On the contrary, April has personal monthly expenses in the amount of $7,199.50 and presently collects $7,500 in alimony. Therefore, Jeff has $41,548.56 left over while April has $300.50 left over each month from the businesses that were part of the marital estate. [Fn 12] The chancellor attempted to lessen this disparity by his award of permanent periodic alimony coupled with the lump-sum alimony and the division of the marital estate. That finding by the chancellor is supported by the record and does not appear excessive or to be an abuse of discretion. Therefore, the order of alimony is affirmed.

12 This figure does not include the children’s expenses or the child support payment of $7,500 that Jeff was ordered to make each month. Further, this figure would not include any other expenses that April does not have if she is still employed by the Descher corporation.

Judge Jack Wilson wrote the dissent, joined by Judge Cory Wilson.

If You Want it You Have to Ask for It

February 3, 2020 § 2 Comments

Back in the day, when I was a mere tadpole of a lawyer, chancellors had broad powers to effect equitable relief. At the end of every pleading were words to the effect: “And she prays for such other and general relief as this honorable court deems mete and right in the premises,” or simply “And she prays for general relief.” Those magic words often evoked unpled-for remedies fashioned by the judge to meet and resolve the problem presented by the evidence. Lawyers (called Solicitors back in those smoke-filled days of yore) foresaw that and were not surprised or blindsided by it. It was the way chancery court business was done.

The MRCP came along in 1982 and made chancery much more like law courts, and the fact that fewer and fewer appellate judges have much chancery experience has accelerated the process. General relief is now no more than a will-o-the-wisp.

That’s the hard lesson that Cheryl Burrell learned in the chancellor’s denial of alimony and use of the former marital residence in her divorce from her adulterous husband, Geoffrey. The lesson was driven home by the COA when it affirmed in Burrell v. Burrell, decided January 7, 2020. Judge Westbrooks wrote the opinion:

¶15. Geoffrey argues that because Cheryl never requested equal or disproportionate distribution of the marital estate, permanent alimony, or spousal support in her pleadings, the court could not grant the relief. Geoffrey, however, did plead for an equitable distribution of the marital estate, which the court granted. Geoffrey further argues that the court did not err in refusing to perform an Armstrong or Cheatham analysis because neither was necessary in light of Cheryl’s non-inclusive pleading.

¶16. In Moore v. Moore, 363 So. 2d 286, 287 (Miss. 1978), the Mississippi Supreme Court rejected Mrs. Moore’s argument for reversal of a chancellor’s decree that did not include an award for permanent alimony. The Supreme Court noted that although Mrs. Moore had been
granted temporary alimony, she had “made no averment pertaining to or prayer for permanent or temporary alimony.” Id. Citing Horton v. Horton, 269 So. 2d 347 (Miss. 1972), the Mississippi Supreme Court held that “the chancellor has considerable discretion in allowing or not allowing permanent alimony, and his beneficence in granting her temporary alimony not sought in her pleadings cannot be reversible error as to her.” Moore, 363 So. 2d at 287.

¶17. Like Mrs. Moore, the record before us does not reflect any request by Cheryl, ore tenus or written, for permanent alimony or spousal support. Even Cheryl’s own pleading for reconsideration does not list alimony or spousal support as one of the issues at trial. Notwithstanding the omission, the court did grant Cheryl temporary spousal support in its temporary order. However, as its name suggests, the court’s grant of spousal support was temporary and does not entitle Cheryl to continued support.

¶18. Cheryl never requested leave to amend her complaint to include a request for alimony or spousal support. No such leave was granted, and no amendment was ever made. Thus, Cheryl was not entitled to permanent alimony or spousal support. Accordingly, we find no error with the chancery court’s decision to deny reconsideration of the award to Cheryl.

A few points:

  • If you don’t ask for it in your pleadings, you won’t get it unless you put on evidence to support that relief at trial without a sustained objection from the other side, and then follow up with a R15 motion to conform the pleadings to the proof.
  • By asking for equitable distribution himself, Geoffrey opened that door to Cheryl because when the chancellor awards Geoffrey his portion something has to be done with what is left.
  • So, what would happen if Geoffrey had asked for an award of alimony? Would that give Cheryl a vehicle to ride toward alimony for herself? No, alimony is a zero-sum game. The prayer for alimony is for the sole benefit of the pleader.
  • Although Cheryl argued that she moved ore tenus at trial for alimony, there was nothing in the record to indicate that she had. Always be aware that the most important thing you can do at trial is to make a record. I have tried cases that I knew had no chance of success with a particular chancellor, but carefully loaded up my record to win on appeal.
  • If you’re new at this, I urge you to create or steal some form divorce pleadings that ask for every conceivable form of relief: divorce; equitable distribution; alimony, lump-sum, periodic, and rehabilitative; custody; and so on. You can add or delete as necessary, but you will have everything you need as a starting point. Sometimes your client will say, “But I don’t want alimony; it will only make him mad.” You will answer, “If it’s in there we can always not pursue it or even take it out later, but if it’s not in there and you decide at trial that you want it, it may become impossible, so we’d better leave it in. Besides, we’re not in this to make him happy. We’re trying to see that you come through it okay.”

The Effect of Harris v. Harris

August 21, 2019 § 1 Comment

Back in February, 2018, I posted about the MSSC’s ruling in Harris v. Harris, which overruled Spalding v. Spalding, regarding the impact of Social Security (SS) retirement benefits on alimony. Spalding had held that the alimony-paying party is entitled to a credit against alimony in the amount of the other party’s receipt of SS benefits derived from the alimony-paying party’s work record. Harris held that receipt of SS does not automatically trigger modification. Here is a link to my post.

In Alford v. Alford, a July 23, 2019, COA case about which I posted yesterday, Judge Greenlee wrote a specially concurring opinion raising some concerns about Harris and how it will be applied:

¶37. I concur with the majority. However, because I am concerned about the effect Harris v. Harris, 241 So. 3d 622 (Miss. 2018), may have in this case and other cases, I specially concur.

¶38. Our supreme court’s decision in Harris has the potential to greatly impact those in our population who are aging and under a court-ordered duty of support. For our citizens who earn their wages through compensation from work for others, there comes a time that many should at least consider retirement, if retirement is not required or decided for them. The litigants in this case, if not retired, are rapidly approaching retirement.

¶39. In such cases, the problem chancellors face is in reliably predicting the impact of retirement upon the earnings of the parties. Harris should not mean that once retirement occurs to one or both of the parties (although foreseeable at the time of the initial support order) that the parties are foreclosed from asking the court for a modification based on a material and substantial change in circumstances. See Plummer v. Plummer, 235 So. 3d 195, 199 (¶14) (Miss. Ct. App. 2017) (modification of alimony requires proof of a material and substantial change in circumstances since the date of the prior judgment). If the application of our law is to foreclose a litigant’s request for a modification of periodic alimony upon that party’s retirement, such could mean that in order to meet the amount required, that party must not retire. If that is the case, has our law not imposed a servitude upon a citizen until death? Retirement is a substantial change to an individual’s circumstances, and Harris should not be allowed to hinder such a change from being brought before the chancellor for consideration.

This is a conundrum I have never seen directly addressed by our appellate courts: retirement is reasonably foreseeable and even necessary at some age. Retirement almost always results in a downward shift in the retiree’s income. How does that foreseeability affect the right to request modification? I think Judge Greenlee makes a valid point.

No Alimony for You

January 14, 2019 § Leave a comment

Robert Culumber was granted a divorce from his wife, Toni, on the grounds of habitual cruel and inhuman treatment and habitual drunkenness. They had separated after only 13 months together. The chancellor found that Toni was not entitled to alimony. Toni appealed both the granting of the divorce and the denial of alimony.

In the case of Culumber v. Culumber, handed down December 4, 2018, the COA affirmed on all issues. Chief Judge Lee wrote for the unanimous court (Tindell not participating) on the alimony issue:

¶28. Finally, Toni argues that in the event that the divorce was properly granted, then the chancery court improperly denied Toni’s request for rehabilitative alimony. Toni alleges that even though the marriage was short, she is entitled to rehabilitative alimony payments because Robert paid all the bills and expenses in the marriage and that she needs assistance to become self supporting after the marriage.

¶29. We first note that alimony is considered only if after equitable division, one party is left with a deficit. Carney v. Carney, 201 So. 3d 432, 440 (¶28) (Miss. 2016). “The decision of whether to award alimony, and if so, what amount, is left to the chancellor’s discretion.” Hearn v. Hearn, 191 So. 3d 129, 132 (¶10) (Miss. Ct. App. 2016). When determining whether to award alimony, the chancellor is to consider the Armstrong factors:

(1) the income and expenses of the parties; (2) the health and earning capacities of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care; (7) the age of the parties; (8) the standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; or (12) any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Larson v. Larson, 192 So. 3d 1137, 1142 (¶12) (Miss. Ct. App. 2016) (citing Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993)).

¶30. In regard to the type of alimony Toni argues she is entitled to, we note that rehabilitative alimony is “an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim.” Serio v. Serio, 203 So. 3d 24, 30 (¶17) (Miss. Ct. App. 2016) (quoting Lauro v. Lauro, 847 So. 2d 843, 849 (¶15) (Miss. 2003)). It is “awarded to parties who have put their career on hold while taking care of the marital home.” Id. “Rehabilitative alimony allows the party to get back into the working world in order to become self-sufficient.” Id.

¶31. The chancellor stated that there was no basis for alimony. Toni alleges that the chancellor placed too much emphasis on the length of the marriage and did not properly consider the other factors. The record indicates otherwise. As the chancellor noted, Toni was not working at all when she came into the marriage. Additionally, she brought approximately $30,000 of debt into the marriage which Robert paid off in full. It is true, as the chancellor noted, that the marriage was very short—barely one year. The parties had no children. Per the chancellor’s findings, Toni was “actually better off by virtue of the marriage in terms of her education, having her student loan paid off and other things to help her further her career, rather than lose it.” Career wise, Toni was relatively young—being in her late thirties, while Robert was approaching retirement—being in his late fifties. In December 2013, Toni became employed, making around $38,000, and this employment continued at the time of trial. Robert paid all of the bills and expenses during the short-term marriage and assumed responsibility for all marital debt. Toni received payment for her
equitable share of marital assets in the amount of $13,442.00. As we now affirm, the chancellor found Toni at fault in the marriage on grounds of habitual cruel and inhuman treatment and habitual drunkenness. We do not find that the chancellor abused his discretion in denying Toni an award of rehabilitative alimony. This issue is without merit.

This is not a particularly noteworthy case, except that it illustrates how a chancellor, and the COA on review, may view rehabilitative (and other forms of) alimony in light of the Armstrong factors given a set of facts such as these.

Further on the Tax Treatment of Alimony

October 31, 2018 § Leave a comment

A couple of days ago I posted about the big change in tax treatment of alimony coming after December 31, 2018.

Here are some points brought to my attention that correct and fine-tune that post:

  • I said that there must be a judgment pre-dating the demarcation date. Other tax experts believe that a binding agreement for alimony to be treated for taxes as it currently exists will satisfy the law. The key is that the agreement must on its face be binding. To me that means either a PSA or a consent with alimony as an agreed issue presented to the court for approval or some other proceeding to make it binding.
  • I also said that modification would result in making the pre-demarcation-date-alimony non-deductible and non-taxable. A more accurate statement is that modification may, in some cases, change the tax treatment. It’s too complicated for me to elaborate on here, but you need to get some competent guidance before jumping into any alimony modification post December 31, 2018.

Those are the tweaks. Here are two of my own observations:

  • Don’t expect judges to be familiar with all of the nuances of these changes. Be prepared to offer expert testimony or stipulations that cover these points.
  • Get some competent tax advice so that you can properly and accurately advise your clients. That disclaimer in your retainer agreements and PSA’s about tax advice does not relieve you of the obligation to be able to advise your clients about basics such as tax treatment of alimony and the pitfalls of modification because that’s not really tax advice — it’s divorce advice.

Thanks to the lawyer who called this to my attention.

Tax Treatment of Alimony is Changing Soon

October 29, 2018 § 2 Comments

Effective after December 31, 2018, alimony will no longer be deductible by the payor, and will no longer be income to the payee. That’s per the “Tax Cuts and Jobs Act” passed by Congress earlier this year.

The law refers to “divorce agreements executed” after December 31, 2018, which would seem to indicate that if you have a PSA executed by the parties on December 29, 2018, the payments would maintain their deductible/income character, but at least one tax expert whom I asked said that the law requires a judgment or decree either adjudicating alimony as a contested issue or incorporating an agreement.

Also, any judgment modifying alimony after the cutoff date will cause the alimony to lose its deductible/income character.

So here are some ramifications for Mississippi practitioners:

  • If you’ve been dragging out that divorce case and the current alimony treatment is important to your client, you’d better get moving; you’ve only got two months left until the change.
  • You need to think twice about modification, especially if you represent the payor. Even a slight modification of alimony after the cutoff date will cause it no longer to be deductible.
  • The parties will no longer be able to agree to deductibility or non-deductibility, or taxability or non-taxability. All alimony is non-deductible and non-taxable, no matter what the parties agree.
  • It will no longer make any sense to craft hybrid alimony provisions because taxability is no longer a factor.
  • The court is required to consider the tax consequences under the Armstrong factors. Keep that in mind as you prepare your witness list. You might want to prepare a stipulation for the court as to taxability of alimony.
  • I think this will: (a) make alimony more difficult to negotiate, and (b) have a depressing effect on amounts of alimony awarded and agreed.
  • I believe this also applies to separate maintenance, but that’s my opinion.

It’s not too soon to sit down with a tax specialist who can advise you of the consequences of this change. This has drastic strategic consequences for divorce lawyers and their clients.


Doing Away with Alimony: Two Routes

April 10, 2018 § 4 Comments

Adam Lewis filed a complaint to terminate alimony against his ex-wife, Karen. Adam contended that Karen was cohabiting or in a de facto marriage with her boyfriend, Dobel, since the parties’ 2002 divorce. There was a lot at stake, since the parties’ divorce agreement provided that Adam would pay Karen $15,000 a month in periodic alimony.

Following a trial, the chancellor dismissed Adam’s case per MRCP 41(d). Adam appealed. The COA affirmed the dismissal in In the Matter of the Dissolution of the Marriage of Lewis, decided March 20, 2018. You can read the facts as developed at trial for yourself. Here is how Judge Wilson addressed Adam’s arguments on cohabitation and de facto marriage:

A. Cohabitation

¶17. “Modification of alimony may occur upon the existence of a situation of mutual support between the recipient spouse and another individual which alters the recipient spouse’s financial needs.” Scharwath v. Scharwath, 702 So. 2d 1210, 1211 (¶6) (Miss. 1997). “[C]ohabitation creates a presumption that a material change in circumstances has occurred. This presumption will shift the burden to the recipient spouse to come forward with evidence suggesting that there is no mutual support . . . .” Id. at (¶7) (citation omitted).

¶18. In the present case, Adam did not prove cohabitation and failed to prove any mutual financial support. Adam admitted that Karen and Dobel maintain separate homes and do not spend the night at each other’s homes. Adam also admitted that he had subpoenaed Karen’s financial records but had found no evidence that Dobel financially supported Karen or vice versa. On this record, the chancellor did not clearly or manifestly err by finding that Adam failed to meet his burden of proving cohabitation or mutual financial support.

B. De Facto Marriage

¶19. “In the absence of cohabitation, alimony can be terminated based on proof of what has been termed a ‘de facto marriage.’” Hughes, 186 So. 3d at 400 (¶18). “A de facto marriage may be proven in two ways.” Id. “First, a chancellor may find a de facto marriage if the alimony recipient is deliberately avoiding remarriage merely to continue receiving alimony.” Id. (citing Martin v. Martin, 751 So. 2d 1132, 1136 (¶16) (Miss. Ct. App. 1999)). “Second, a de facto marriage can be found . . . if the alimony recipient and another person have ‘so fashioned their relationship, to include their physical living arrangements and financial affairs, that they could reasonably be considered as having entered into a de facto marriage.’”
Id. (quoting Pope v. Pope, 803 So. 2d 499, 504 (¶12) (Miss. Ct. App. 2002)).

¶20. In Martin, Ben and Linda’s divorce judgment required Ben to pay Linda periodic alimony. Martin, 751 So. 2d at 1133 (¶3). After the divorce, Linda became involved in a long-term relationship with Norm Anderson. Id. at (¶5). Linda wore a diamond engagement ring that Anderson gave her, and the couple consistently told friends that they planned to marry “next year.” Id. Moreover, on cross-examination, Linda “admitted . . . that she and Anderson had not married because she need[ed] the financial support provided by the alimony received from [Ben].” Id. Linda and Anderson maintained separate residences, but Anderson’s was a “small . . . efficiency apartment,” while Linda’s was a “luxurious home.” Id. at 1133, 1136 (¶¶6, 15). Anderson had a key to Linda’s home, spent the night at her home a few times each month, ate meals at her home regularly, ran errands for her, and did yard work and other household chores. Id. at 1133 (¶6). In addition, Linda had written Anderson checks totaling over $11,000 over a three-year period. Id. Anderson also provided Linda with substantial discounts on clothes and cosmetics from the store where he worked. Id. Based on this evidence, the chancellor found that Linda and Anderson had entered into a “de facto marriage” and terminated Ben’s alimony obligations. Id. at 1134-35 (¶¶10, 14).

¶21. On appeal, this Court affirmed the chancellor’s finding that Linda had “structured her relationship with Anderson in an attempt to circumvent the appearance of cohabitation so as to continue her alimony.” Id. at (¶16). We did so based on Linda’s admission under oath “that she and Anderson had not married because she need[ed] the financial support provided by [her] alimony.” Id. We held that when “an alimony recipient spouse purposefully avoids marriage merely to continue receiving alimony, equity should not require the paying spouse to endure supporting such misconduct.” Id.

¶22. In contrast, in Hughes, supra, the chancellor found that the alimony payor failed to prove that his ex-wife, Mariel, had entered into a “de facto marriage” with her boyfriend, Darrell. Hughes, 186 So. 3d at 396 (¶3). Mariel and Darrell had been in an exclusive dating relationship for four years, and Mariel wore a diamond ring that Darrell had given her. Id. at 398-99 (¶¶11, 13). They maintained separate residences, but they spent the night at each other’s homes once a week or more. Id. at 398 (¶11). They also traveled and vacationed together, and Darrell had exhibited one of his Corvettes at the National Corvette Museum with a plaque stating that the car was on loan from “Darrell Hill & Mariel Hughes.” Id. at
399 (¶13). Mariel and Darrell denied that they had discussed marriage or planned to get married. Id. at (¶14). However, there was testimony that Mariel once “said that marrying Darrel would ‘mess things up’ in some unspecified way.” Id. at 401 (¶22).

¶23. On those facts, we affirmed the chancellor’s finding that the alimony payor failed to prove the existence of a de facto marriage. We concluded that Martin was distinguishable because there was no outright admission or other clear evidence that Mariel “was avoiding remarriage solely to continue her alimony payments.” Id. at 401 (¶22). In addition, the evidence was, at best, conflicting as to whether Mariel and Darrell had “so fashioned their relationship, to include their physical living arrangements and financial affairs, that they could reasonably be considered as having entered into a de facto marriage.” Id. at 403 (¶26) (quoting Pope, 803 So. 2d at 504 (¶12)). They were in a long-term, exclusive relationship, she wore a diamond ring that he gave her, they traveled together frequently, and they spent the night together regularly. However, they maintained separate homes and had no access to one another’s financial accounts. Id. at 402-03 (¶26). Therefore, there was evidence to
support the chancellor’s finding that the long-term, exclusive relationship was not a scheme to avoid remarriage to continue alimony payments or a de facto marriage. Id. We emphasized, as we had in a prior case, that “[t]he most important distinction” in our precedents on de facto marriage “is the finding of the chancellor.” Id. at 403 (¶26) (quoting Burrus, 962 So. 2d at 621 (¶15)). “We will not reverse a chancellor’s findings regarding the existence or nonexistence of a de facto marriage unless they are manifestly or clearly erroneous.” Id.

¶24. We reach the same conclusion in the present case. Karen and Dobel obviously are in a long-term, serious relationship. However, unlike Martin, there is no outright admission or any other clear or direct evidence that Karen is avoiding remarriage just to continue receiving alimony. Adam testified that he believes that is what Karen is doing. However, Adam did not call Karen or Dobel as an adverse witness. In addition, although Adam apparently deposed Karen prior to trial, he did not seek to introduce any part of her deposition into evidence. See M.R.C.P. 32(a)(2) (“The deposition of a party . . . may be used [at trial] by an adverse party for any purpose.”); Fred’s Stores of Tenn. Inc. v. Pratt, 67 So. 3d 820, 827-28 (¶¶39-44) (Miss. Ct. App. 2011) (Maxwell, J., concurring in part and in result) (explaining that a plaintiff may introduce a defendant’s deposition during the plaintiff’s case in chief). Moreover, as in Hughes, Karen and Dobel maintain separate residences and separate finances. As noted above, Adam admitted that he had found no evidence that Dobel supports Karen financially or vice versa. Therefore, as in Hughes, we cannot say that the chancellor manifestly or clearly erred by finding that Adam failed to prove a de facto marriage.

¶25. To reiterate, a trial judge’s ruling on a Rule 41(b) motion to dismiss “is, for purposes of appeal, treated like any other finding of fact. In other words, [her] decision will not be disturbed on appeal unless it was manifestly wrong.” Gray, 477 So. 2d at 1357. On such a motion, the trial judge is entitled to weigh the credibility of the plaintiff’s evidence as if “making findings of fact and rendering final judgment.” Id. at 1356-57. Thus, to the extent that Adam offered circumstantial evidence that could have permitted an inference of a de facto marriage, the chancellor was “not required to look at the evidence in the light most favorable to [Adam],” nor was she required to give him “the benefit of all favorable inferences.” Mitchell v. Rawls, 493 So. 2d 361, 362 (Miss. 1986) (quoting Davis v. Clement, 468 So. 2d 58, 61 (Miss. 1985)). The chancellor was entitled to judge the credibility of the evidence and make findings of fact. And we will reverse her decision only if she would have been “obliged to find for [Adam] if [Adam’s] evidence were all the evidence offered in the case.” Corson, 612 So. 2d at 369. Adam’s evidence was not so compelling as to oblige the chancellor to find in his favor. Therefore, we affirm.

Voilà, a textbook statement of the law on modification of alimony.

Some observations:

  • Cohabitation and de facto marriage are the two main avenues to termination of alimony.
  • Mutual support is the key characteristic of cohabitation. That will require financial proof. Discovery and use of subpoenas duces tecum are what it will take to develop your proof.
  • As far as de facto marriage is concerned, try to get an admission of avoiding marriage to preserve alimony. Friends may provide admissions of the principals against interest. Living and financial arrangements are crucial evidence. As with cohabitation, commingled finances and mutual support may create circumstantial evidence.

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