Who’s to Blame?
June 2, 2015 § Leave a comment
This is from a PSA entered into between Joe Bryant and his then-wife, Adella Jones:
[Adella] will receive as property settlement[] fifty percent (50%) of [Joe’s] disposable retirement from the Unites States Marine Corps/Army National Guard and fifty percent [50%] of [Joe’s] disposable retirement from the Veterans Administration which will be paid directly to [Adella] by the United States Marine Corps/Army National Guard and the Veterans Administration.
Joe retired from the VA on November 1, 2008, and from the military on June 30, 2010, and began receiving 100% of his retirement from both. He never paid any of the amounts received to Adella.
In October, 2010, Adella submitted her application for her retirement benefits, unaware whether Joe had retired, and she began receiving her one-half in January, 2011.
After Joe had filed a futile modification action, and she learned that he had begun receiving 100% of his retirement benefits for a time before she received any, Adella filed a contempt action against Joe.
Following a trial, the chancellor ruled that it was the military, and not Joe, that was required to make the payments, and, therefore, that he was not in contempt. The judge did award Adella a judgment against Joe for one-half of the retirement he had received in the interim in the amount of $46,433. Adella appealed.
On April 7, 2015, the COA affirmed in Jones v. Bryant. Judge Carlton’s for a unanimous court explained:
¶15. In the July 2, 2013 order granting Adella’s motion to dismiss [Joe’s pleading for modification], the chancellor found that “after reviewing the property settlement agreement, . . . the provisions regarding military retirement are clear and unambiguous and should not be modified.” The chancellor later entered a final judgment on August 8, 2013, further holding that “the property settlement agreement requires Adella’s portion of the retirement to be paid by the United States Marine Corps/Army National Guard and the Veterans Administration rather than by Joe,” and as a result, “Joe is not in willful and contumacious contempt of the agreement.” We find Adella presented no evidence to support her claims that Joe willfully or intentionally violated any court order. The record reflects that the plain language of the property-settlement agreement in this case provides that Adella’s portion of Joe’s military retirement pay would be paid directly to her by the Marine Corps/Army National Guard and Veterans Administration.
¶16. The Uniformed Services Former Spouses’ Protection Act (USFSPA) provides former spouses, who are awarded a portion of military retirement pay in a divorce, with “a mechanism to enforce retired pay as property award by direct payments from the member’s retired pay.” See Defense Finance and Accounting Service, Frequently Asked Questions, http://www.dfas.mil/garnishment/usfspa/faqs.html; 10 U.S.C. § 1408 (2012). [Footnote omitted] The former spouse must complete and provide the required applications, relevant court order, and supporting documentation, as required by statute and regulations, to the designated Defense Finance and Accounting Service, and the language in the property award must also comply. [Footnote omitted]
¶17. After our review of the record, we find substantial evidence exists in the record to support the chancellor’s final judgment determining Joe was not in willful and contumacious contempt of the property-settlement agreement or any other court order. Accordingly, we also find no error in the chancellor’s denial of attorney’s fees to Adella. See Henderson v. Henderson, 952 So. 2d 273, 280 (¶23) (Miss. Ct. App. 2006).
How can you avoid a similar result for your client?
- Any duty that you want to be enforceable later in favor of your client needs to spelled out. Here, it would have been simple to spell out that Joe had the duty to notify Adella in writing within a specified time of his retirement. For example, he could have been required to send her a copy of his application for benefits simultaneously with its submission to the agency.
- Whenever a contract requires third-party payments on behalf of A, specify that A will be responsible to make the agreed payments himself to B until the third party begins making them. For instance, “Joe will pay one-half of any retirement benefits received by him directly to Adella until such time as the [agency] begins withholding her 50% portion” or words to that effect.
- You might want to read that Department of Defense material and incorporate some of it verbatim in your PSA. Agencies understand their own jargon better than yours or the court’s.
- Is it in your client’s interest to spell out whether the retirement is being paid as property division on the one hand, or as alimony on the other? It might be; you need to consider it.
- Know and understand how the retirement system works. Read the interpretive material. Study the website. Draft your PSA from a position of knowledge, not guesswork.
No Change = No Modification
February 25, 2015 § Leave a comment
Nathan and Kathryn Robinson were married in January, 2004. At the time of the marriage, Kathryn was pregnant with the parties’ daughter, Bailey, who was born in July, 2004. During the pregnancy, Kathryn was diagnosed with Hodgkin’s lymphoma. Shortly thereafter, Nathan and Kathryn separated, and Kathryn moved in with her parents.
The couple were granted an irreconcilable differences divorce on May 3, 2005, and they agreed that Kathryn would have custody of Bailey.
Kathryn moved to her own place after the divorce. Over time, she developed neuropathy in her hands as a result of the chemotherapy she underwent for her lymphoma, which made it impossible for her to drive. She had to rely on her parents to help transport Bailey to and from school, which meant that the child often stayed overnight with her grandparents on school nights. She slept at Kathryn’s on weekends and during vacations.
In 2009, Nathan filed a modification action seeking custody of Bailey. He alleged that Kathryn’s health condition impaired her ability to care for Bailey, and that Kathryn had ceded her parental responsibility to her parents. Following a trial, the chancellor found that there had been no change in circumstances because Kathryn’s health condition existed at the time of the divorce, and that Kathryn had not abdicated her parental duties in favor of her parents. Nathan appealed.
In the case of Robinson v. Robinson, handed down February 10, 2015, the COA affirmed. The opinion by Judge Griffis agrees with the chancellor’s conclusion about the pre-existing condition, and recites the familiar rule that where the parties are aware of the condition at the time of the divorce, neither may try to use it later as a basis to modify. The court relied on the same principle to affirm the finding that Kathryn had not abandoned her role as a parent since both parties knew at the time of the divorce that she would have to have help from her parents with Bailey. The opinion distinguishes the case of McBride v. Cook, 858 So.2d 160 (Miss. App. 2003), in which the mother totally abdicated her parental role, which was unforeseen at the time of the original custody judgment.
As an attorney, you do not always know what all of the circumstances are that might affect a later proceeding. We don’t know from the COA case what the exact language was that effected the custody agreement in the divorce action. If you were Kathryn’s attorney at the time, wouldn’t it have made you look like a genius if you had spelled out specifically in the PSA what her health condition was at the time, and that she was going to have to rely on help from her parents, but that Nathan nonetheless agreed for her to have custody? What an airtight package that could have been.
I also wonder whether more emphasis on the neuropathy and its impact on continued custody, perhaps bolstered with some expert opinion testimony, might have tilted the result in Nathan’s direction. A good argument could be made that, although the Hodgkin’s was known at the time of the divorce, the complication of neuropathy was not, and it arguably has a direct detrimental effect on custody.
As the COA opinion pointed out, though, the record was clear that Kathryn had a pretty good track record of taking care of Bailey, even with her physical impairments, so the modification case was an uphill climb.
Trifling with Visitation is no Trifling Matter
February 2, 2015 § Leave a comment
Some of the most bothersome and galling matters with which family lawyers have to contend are problems with visitation. They can include outright denial of visitation, conflicts during exchanges, interference during visitation, refusal to return a child, and every other atrocity one can conjure up. Those calls on the weekend and in the evenings can wear one to a frazzle.
In the case of Ash v. Ash, 622 So.2d 1264 (Miss. 1993), the MSSC affirmed a chancellor’s modification of custody based on a mother’s obstinate refusal to allow visitation and non-compliance with court orders, which the court described as involving the attention of “two prior chancellors and six attorneys” in more than ten court proceedings before the modification judgment.
In the case of Strait v. Lorenz, handed down January 6, 2015, the COA affirmed a chancellor’s decision to modify custody based on Travis Strait’s long-standing denial of visitation to his ex-wife, Kristy Lorenz. The parties had agreed in their irreconcilable differences divorce that they would share joint legal custody of their daughter, Jane, and that Travis would have “primary physical custody.”
Following the divorce, Kristy filed five times for modification and/or contempt, alleging denial of and interference with visitation in most of the actions. Travis filed actions in California and Hawaii for TRO’s, both of which were vacated. The chancellor in Mississippi denied Travis’s efforts to dismiss for lack of jurisdiction or to remove the case from Mississippi based on forum non conveniens.
In her pleadings, Kristy charged that Travis had sexually abused Jane, so the chancellor appointed a GAL to investigate. The GAL’s report was unfavorable to Travis, and, on Kristy’s motion, the chancellor entered an emergency temporary order changing custody to Kristy until the final hearing.
The chancellor awarded Kristy custody and other relief, and Travis appealed.
On the issue of material change, Judge Griffis of the COA said this:
¶27. In Ash, the chancellor issued various visitation-related restraining orders, emergency orders, and modification orders over the course of five years. Id. at 1265. The non-custodial parent then filed another motion to change custody and find the custodial parent in contempt. Id. The chancellor granted the motion, finding a material change in circumstances had occurred. Id. In affirming the chancellor’s ruling, the supreme court found that the visitation dispute was tackled by “two prior chancellors and six attorneys, [and] more than ten court proceedings,” none of which resolved the issue. Id. at 1266.
¶28. The facts in this action are comparable to Ash. As in Ash, the chancellor here contemplated liberal visitation, which was deliberately denied. See id. Also, there was an “onslaught of pleadings . . . stemming from visitation problems,” none of which were resolved by the chancellor’s orders. Id. at 1265.
¶29. Travis admittedly ignored Kristy’s attempts to contact him and would not allow Jane to take Kristy’s phone calls. The chancellor encouraged communication between Kristy and Jane through email and mail, but Travis disabled Jane’s email account that Kristy had created for her and there was testimony that Jane did not receive cards mailed to her. We cannot find the chancellor erred in finding the repeated failure to comply with visitation order was a material change in circumstances, for which contempt orders would not resolve.
¶30. Travis argues that the lack of visitation was not a “change in circumstances,” but rather a foreseeable, continued animosity between the parties that existed from the time of divorce. We cannot find that the chancellor anticipated, at the time of the divorce decree, that Travis would continuously refuse to comply with the visitation orders. Also, we note that no a single act of denying visitation amounted to a material change in circumstances. Rather, as in Ellis [v. Ellis, 952 So.2d 982 (Miss App 2006)], it was the “continued violation of court orders pertaining to visitation and continued hindering of the visitation time” that amounted to a material change in circumstances. Ellis, 952 So. 2d at 990 (¶17) (emphasis in original). Given the severity of the denial of visitation, we cannot find the chancellor abused his discretion in finding the denial of visitation was a material change in circumstances.
So the key is the “severity of the denial of visitation” which, from the cases, must be long-standing and extreme, and most likely involve repeated violations of court orders.
You should note that the proof in Strait included testimony of a mental health professional that the father’s conduct did have an adverse effect on the child. The opinion did not say so, but it apparently is not enough merely to show alienation and interference with contact; rather, the proof must show that the alienating behavior did have an adverse effect on the child, and the testimony of a mental health professional is probably the best means of doing that. In Strait, Travis’s behavior was so adverse that the chancellor characterized his custodial environment as “poisonous.”
I agree that most visitation disputes are more vexing than dangerous, and more paltry than extreme. Yet, if more parents understood that interference with visitation could lead to modification of custody, I believe it would result in far fewer visitation disputes in court.
How You Draft the Judgment Can Screw up Your Case
December 2, 2014 § 3 Comments
Many chancellors, present company included, often direct attorneys to draft a judgment incorporating the court’s ruling.
As you can probably imagine, the quality of resulting judgments varies considerably. We sign them, however, unless they are egregiously flawed, in which case we send the lawyers scurrying back to their proverbial drawing boards.
Sometimes, though, a lawyer will catch the judge in a distracted or weak moment, and the judge signs a judgment that is — well — not suited to the task.
That is what apparently happened in the case of Weathers v. Guin, decided by the COA on November 18, 2014.
Scott Guin filed a complaint for custody modification against his ex, Regina Weathers, on June 4, 2013. On July 8, 2013, an order was entered awarding custody to Scott. The order did not cite what was the material change in circumstances upon which the modification was based. It did recite that both parties had appeared with counsel. It was approved as to form by attorneys for both parties.
Regina appealed, claiming that her attorney may have approved the order, but she never agreed to its terms. She also claimed that no hearing was held. Scott, on the other hand, represented that the court ruled after a one-day hearing, and the order was drafted by his attorney. He also said that the chancellor had made his ruling after interviewing both parties in chambers. Regina asked for a transcript of any proceedings, but there was none.
The COA reversed and remanded. Judge Irving, for the court:
¶17. “When considering a modification of child custody, the proper approach is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change.” Marter v. Marter, 914 So. 2d 743, 746 (¶5) (Miss. 2005) (quoting Sturgis v. Sturgis, 792 So. 2d 1020, 2025 (¶19) (Miss. Ct. App. 2001)). “In determining whether a material change of circumstances has occurred, a chancellor should look at ‘the overall circumstances in which a child lives.’” McDonald, 39 So. 3d at 880 (¶37). “[A] chancellor’s failure to make specific findings as to each individual Albright factors is reversible error.” Davidson v. Colt, 899 So. 2d 904, 911 (¶18) (Miss. Ct. App. 2005) (citing Powell v. Ayars, 792 So. 2d 240, 249 (¶18) (Miss. 2001)).
¶18. Generally, absent a record indicating otherwise, we assume that a chancery court’s order was based on adequate evidence. See Thompson v. Miss. Dep’t of Human Servs. ex rel. Surber, 856 So. 2d 739, 741 (¶8) (Miss. Ct. App. 2003). Additionally, an appellate court “will not reverse a [c]hancery [c]ourt’s factual findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence in the record supporting these findings.” Bryan v. Holzer, 589 So. 2d 648, 658 (Miss. 1991) (citing Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987)).
¶19. Here, the record reveals that in the modification order, the chancery court completely failed to identify a material change in circumstances warranting modification before finding that it was in Jacob’s best interest to grant Scott custody of Jacob. The order simply provides that “it is in the best interest of [Jacob] for [the chancery court] to award permanent physical and legal custody of [Jacob] to [Scott] with [Regina] having visitation as previously set out[.]” The remaining provisions of the order concern child support, financial obligations of Regina and Scott, and behavioral restrictions placed on Regina and Scott. Because the chancery court failed to identify a material change in circumstances warranting custody modification, the modification order is insufficient for us to determine the chancery court’s basis for the custody modification. Moreover, the chancery court failed to make specific findings as to each individual Albright factor. Accordingly, we reverse the modification order as to the custody modification and remand for further proceedings.
Of course, since the chancellor signed the order, he draws the criticism. But what was the lawyer who drafted it thinking? The moral of this aspect of the story is to load your order or judgment with every conceivable finding and recitation that you can justify based on what happened. That means a finding of a material change in circumstances with fact-finding as to what changed, and a finding of adverse effect with a description of what the effect was. It means particular Albright findings. And it means a conclusion as what is in the children’s best interest. There must also be a recitation of subject matter and personal jurisdiction and what kind of proceedings were held. If you don’t cram all that in, your client could wind up like Regina and Scott — a lot poorer and back at the starting blocks.
Another moral of this sad tale is that there are really only two bulletproof ways to arrive at a judgment in a case: One is to negotiate and arrive at an agreed judgment, signed by the attorneys and the parties; and Two, to have a hearing on the record and let the judge make a ruling. Other paths may appear to be beguilingly more convenient, quicker, less troublesome, and easy, but they are all fraught with peril.
A Primer on Termination of Alimony
November 3, 2014 § Leave a comment
The COA’s decision in McMinn v. McMinn decided October 28, 2014, includes a handy resume of the law applicable in termination of alimony cases. Since there has been so much turnover in this area of the law, I thought you might find this excerpt from Judge James’s opinion useful:
¶22. Keith argues that Sharon was receiving financial benefits from her then-boyfriend, Rooks. According to Keith, Sharon and Rooks entered into a de facto marriage and lived together from June 2011 to June 2012. Keith asserts that as a result of Sharon and Rooks’s cohabitation, alimony should be terminated.
¶23. Alimony may be terminated if the recipient spouse has entered cohabitation or a de facto marriage. Wallace v. Wallace, 12 So. 3d 572, 575 (¶14) (Miss. Ct. App. 2009). “[P]roof of cohabitation creates a presumption that a material change in circumstances has occurred.” Id. “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). In Byars, this Court held that evidence of a sexual relationship between the recipient spouse with another is not enough to terminate alimony. Byars, 850 So. 2d at 149 (¶5). However, alimony may be terminated if a payee purposefully avoids marriage to continue receipt of alimony payments. Pritchard v. Pritchard, 99 So. 3d 1174, 1179 (¶24) (Miss. Ct. App. 2012).
¶24. “There is indeed a general presumption that, where there is cohabitation, there is also mutual support.” Coggins v. Coggins, 132 So. 3d 636, 643 (¶27) (Miss. Ct. App. 2014). We have previously stated:
This presumption is based on two considerations. One is the difficulty a providing spouse faces in presenting direct evidence of mutual financial support between cohabiting parties. And the second consideration stems from the notion that parties who live in cohabitation can easily and purposely keep their condition of mutual financial support concealed from the paying spouse as well as from courts seeking only financial documentation before granting a modification. Id.
¶25. The recipient spouse has the burden of proving that there is no mutual support. Alexis v. Tarver, 879 So. 2d 1078, 1080 (¶8) (Miss. Ct. App. 2004). If the recipient spouse proves no support existed, then it is possible that the alimony payments can continue. Id.
¶26. At trial, it was established that Sharon had a sexual relationship with Rooks, regularly stayed overnight weekends and several days during the week, and went on vacations with him and his family. Sharon and Rooks testified that Sharon did not receive any financial help from him to pay her bills or contribute to her everyday expenses. Sharon also maintained a separate residence and stated that she and Rooks had no plans to marry. Keith testified that he observed Sharon’s car at Rooks’s house several times a week. The trial court stated that “[a] relationship accompanied by sexual activity, alone, does not rise to the level necessary to forfeit alimony.” In his brief, Keith enumerates certain behaviors such as overnight trips, Sharon’s visits to Rooks’s home, and gift exchanges. The course of conduct described, however, is similar to a normal, casual dating relationship.
¶27. “The chancellor’s findings of fact about cohabitation, de facto marriage, and mutual support are entitled to substantial deference when reviewed on appeal.” Coggins, 132 So.3d at 643 (¶29). The chancellor, as the trier of fact, found that alimony was properly awarded to Sharon. There is nothing in the record to indicate that the chancellor’s findings were manifestly wrong or there was an abuse of discretion. Accordingly, this issue is without merit.
These cases are extremely fact-intensive, and one chancellor (and the COA) may see it differently from another. They are within the trial court’s discretion, so lean heavily on your knowledge of your judge’s predilections and preferences.
Retirement and Modification of Alimony
October 16, 2014 § Leave a comment
Leo and Gracie Russell were divorced in 1978. Leo was ordered in the divorce to pay Gracie $2,500 a month in periodic alimony.
In 2006, Leo filed a petition to terminate or reduce his alimony obligation, which the chancellor dismissed without prejudice.
In 2011, Leo filed again to terminate or reduce alimony. In May, 2012, the chancellor reduced Leo’s obligation to $1,533, based on the fact that Gracie was receiving $947 a month in Social Security benefits based on Leo’s earnings. After hearing all of the evidence, the judge found that Leo had failed to prove a material change in circumstances or inability to meet his alimony obligation. Leo appealed.
The COA affirmed the chancellor’s ruling in Russell v. Russell, handed down October 7, 2014. Judge Carlton, writing for the majority, said this:
¶5. In his first assignment of error, Leo argues that the chancellor erred by denying his petition to terminate or modify his monthly alimony payments. Leo asserts that the chancellor erroneously found no material change in his circumstances and that his retirement and reduction of income were foreseeable at the time of the parties’ divorce.
¶6. With regard to our review of a chancellor’s award of alimony, this Court has previously stated:
An award of alimony, if allowed, should be reasonable in amount, commensurate with the wife’s accustomed standard of living, minus her own resources, and considering the ability of the husband to pay. The amount of an alimony award is largely within the discretion of the chancellor. Unless the chancellor is in manifest error and abused [his] discretion, we will not reverse.
Peterson v. Peterson, 129 So. 3d 255, 256-57 (¶5) (Miss. Ct. App. 2013) (internal citations and quotation marks omitted).
¶7. “The general rule has been that periodic alimony terminates upon death or remarriage.” Skinner v. Skinner, 509 So. 2d 867, 869 (Miss. 1987) (citing Wray v. Wray, 394 So. 2d 1341, 1344 (Miss. 1981)). When considering a party’s petition to modify or terminate an award of periodic alimony, a chancellor must first determine whether “an unforeseeable and material change in circumstances occurred since entry of the initial divorce decree.” Peterson, 129 So. 3d at 257 (¶7) (citing Holcombe v. Holcombe, 813 So. 2d 700, 703 (¶11) (Miss. 2002) (“The change in circumstance must not be anticipated by the parties at the time of the original decree.”). If no unforeseeable and material change has occurred, then a modification of the alimony award is improper. Id. However, where a substantial unanticipated change has occurred, the chancellor should consider the Armstrong factors to determine the proper amount of alimony. Id. at (¶8).
¶8. In the present case, Leo argues that his retirement and the resulting reduction in his income were unanticipated at the time the parties divorced in 1978. In his brief, Leo asserts the following:
[T]hough it may have been anticipated that at some time in the future [he] might retire and discontinue working, such an event is not an event that the [c]ourt can hold [him] to with respect to [the] same being a “foreseeable future event” that will preclude a termination of alimony or a reduction of alimony at the time of retirement.
¶9. In denying Leo’s petition to terminate or reduce his alimony payments, the chancellor found that retirement, by itself, proved insufficient to justify a modification. Although Leo had retired since the parties’ divorce, the chancellor found that Leo still possessed sufficient assets and income to satisfy his alimony obligation. The chancellor noted that Leo’s living expenses were approximately $10,000 a month and that Leo bought a new home about seven years earlier. Other than the remaining home payments, the chancellor found that Leo had finished paying all other significant debt.
¶10. The chancellor also noted that Leo’s other financial obligations resulting from the divorce, such as child support, had long since been fulfilled. In addition, the chancellor stated that Leo had received proper credit for the Social Security benefits Gracie received from his past employment earnings. Therefore, based on the evidence presented by the parties, the chancellor found that Leo failed to demonstrate a substantial and material change in his circumstances.
¶11. The chancellor also discussed whether any changes in Leo’s circumstances were unanticipated, stating, “There was no mention [made] at the time [of the parties’ divorce] . . . of what would transpire when one or the other party retired. Certainly it was foreseeable that [Leo] would retire, [but] it’s not mentioned.” As the record reflects, Leo retired in 2010 after turning seventy-five. Although he found that Leo’s retirement was a reasonably foreseeable event at the time the parties divorced, the chancellor still considered the Armstrong factors. Concluding his analysis, the chancellor stated:
There has been no substantial and material change. The fact that [Leo] is retired was foreseeable. And even if you do a—well, it’s impossible to do much of an analysis because we don’t have beginning information [for 1978,] . . . but if you do an analysis under Armstrong and you look at the assets and the income[s] of the parties, not only today but over the years, no reduction in alimony is warranted.
¶12. After reviewing the record and relevant caselaw, we find no abuse of discretion by the chancellor’s denial of Leo’s petition for modification of his alimony payments. See Peterson, 129 So. 3d at 256-57 (¶5). The chancellor found that no material change occurred and that Leo possessed sufficient financial resources to continue paying his monthly alimony obligation. The chancellor also found that no unanticipated event occurred since Leo’s retirement was reasonably foreseeable at the time of the parties’ divorce. Because the record contains substantial evidence to support the chancellor’s findings, we find no merit to this assignment of error.
The outcome should shock no one because retirement is always foreseeable. The real issue is what financial impact the retirement has on the ability to pay. And that latter statement is the unspoken, hidden issue in the question of foreseeability: isn’t it reasonably foreseeable that there will be a reduction in income resulting from retirement? That is something the cases just don’t seem to address in any meaningful way.
There was no baseline in this case for the judge to go back to in the 1978 judgment. The judge could not tell from the previous judgment what the parties’ situations were in 1978 compared to 2012 (34 years later). In my opinion, it’s always a good idea to include that kind of information in your PSA’s. This case illustrates one major reason why that is a good idea.
The chancellor’s action in reducing alimony to take into account the wife’s receipt of Social Security benefits is pretty much common practice when the benefits are based on the alimony-payer’s earning history. See, e.g., Spaudling v. Spaudling, 691 So.2d 435, 439 (Miss. 1997). I am not aware of any case law supporting a reduction or termination of alimony based on the ex-spouse’s receipt of Social Security due to that spouse’s earnings history.
No Judgment of Modification = No Modification
October 14, 2014 § Leave a comment
You’re going to have to read for yourself the MSSC’s decision in Shumake v. Shumake, handed down September 18, 2014. It’s a dizzying scenario involving a divorce judgment ordering payment of alimony, bankruptcy, petition to modify, contempt hearing, a temporary reduction of alimony, and subsequent contempt. The Special Chancellor ultimately found that ex-husband Leslie Shumake owed his ex-wife Katarina Shumake $58,550, plus interest, in alimony arrearage. Leslie appealed.
The case was first assigned to the COA. The court noted some confusion arising from language that the special chancellor had used in effecting a temporary reduction in alimony while bankruptcy payments were being made. In its November 23, 2013, opinion, the COA held, among other things, that on the unique facts of this case, it ” … would be fundamentally unfair to charge Leslie with a $58,550 arrearage …” and reversed and rendered that part of the judgment.
The COA granted cert and reversed the COA. Here’s what Justice King said for the unanimous court (Lamar not participating):
¶11. Originally, the chancellor ordered Leslie to pay Katarina $5,750 per month in periodic alimony. Leslie never met this obligation. Instead, he paid Katarina $650 per week in alimony. Katarina filed a contempt complaint asking the chancellor to require Leslie to comply with the divorce judgment. In response to Katarina’s contempt complaint, Leslie requested a modification, claiming that his extreme economic hardship had resulted in a substantial and material change in his circumstances. The chancellor then entered an order requiring Leslie to transfer his interest in the marital home to Katarina to cover part of the arrearage at that time. Leslie was to pay the remaining amount of the arrearage from cash. Of particular note, the chancellor did not modify the alimony or specifically address Leslie’s request for modification. Moreover, the order states that the chancellor “reserves the right to make a ruling regarding any arrearage and/or future arrearage . . . .”
¶12. According to the parties, the chancellor entered another order in November 2010 which required Leslie to pay Katarina $750 per week. This order is not in the record, although it was discussed at length at an April 2011 hearing, and the docket reflects that the chancellor entered an order at that time. At the hearing, Leslie argued that the November 2010 order temporarily modified the alimony. Katarina, on the other hand, maintained that Leslie was still required under the divorce judgment to pay $5,750 per month in alimony. Thus, Katarina claimed that Leslie owed $58,550 in arrears.
¶13. The [special] chancellor, who was not the chancellor who entered the divorce judgment or prior orders in the case, ultimately found that the previous chancellor never entered an order permanently modifying the original divorce judgment which required Leslie to pay $5,750 per month in alimony. Thus, the chancellor found that Leslie was in arrears for $58,550 to Katarina. The chancellor ordered that Leslie, upon completion of his bankruptcy payments, pay Katarina for the arrearage in monthly payments of $1,500.
¶14. After reviewing the record in today’s case and considering our law with respect to alimony modification, we cannot find that the chancellor abused his discretion. An alimony payment vests on the day it is due. Bowe [v. Bowe], 557 So. 2d [793] at 794 [(Miss. 1990)]. And a court order is required to modify alimony. Id. Because no order expressly modified Leslie’s alimony obligation, the [special] chancellor in today’s case did not abuse his discretion in ordering Leslie to pay the arrearage.
¶15. Further, the Court of Appeals’ statement that it would be “fundamentally unfair and unjust” to require Leslie to pay the arrearage is supported by neither our caselaw nor the chancellor’s order. The order considers – and provides some allowance for – Leslie’s bankruptcy by allowing him to pay the arrearage when the bankruptcy is complete. Our caselaw addressing the effect of bankruptcy on alimony payments is consistent with this approach. See Varner, 666 So. 2d at 497-98. Finally, the chancellor’s decision not to punish Leslie through contempt does not absolve Leslie’s arrearage. See Hand, Mississippi Divorce, Alimony, and Child Custody § 14-6 (“If the responding party is found to be in contempt and refuses or fails without justification to pay the arrearages as previously required by the court, he may be punished by civil or criminal sanctions, or both.”) (emphasis added). Put simply, Leslie’s alimony payments vested on the day they were due and the record does not support a finding that the vested payments were or should have been modified. The chancellor did not abuse his discretion in ordering Leslie to pay the arrearage. [Emphasis added]
There is a handful of lessons here:
- Never walk away from a case until you are sure that every order that should have been entered has gotten entered. You can not rely on opposing counsel to agree with you to the terms of a missing order so as to reconstruct it. Even if counsel opposite wants to “do the right thing,” memories fade with the passage of time, and two honest people can remember the same event in quite different ways.
- Without an order in which to rely, your client has no cover for his actions. That November order might have saved Leslie a lot of money because alimony payments become vested when they are due, and they can not be modified except by express order of the court.
- Note the language about bankruptcy. In ¶10, the court points out that bankruptcy does not in all cases rise to the level of substantial change in circumstances that would warrant modification.
Trying to Tie the Chancellor’s Hands
September 10, 2014 § 6 Comments
Lawyers frequently try to add language to PSA’s and agreed judgments to the effect that some event shall constitute a material change in circumstances warranting modification. In essence, it is an attempt to take that issue away from the judge — to tie her hands.
In the case of Frazier v. Frazier, 136 So.3d 1068 (Miss. App. 2013), the parties had agreed to language in a PSA that, if Paul Frazier lost his job, that would constitute a material change in circumstances justifying modification of his obligation. Judge Fair addressed the issue for the court:
¶ 14. The parties did concur in their pleadings and in the transcripts of hearings, which were made part of the record, that the property settlement provided that Paul’s loss of his job would be a “material change in circumstances” justifying, apparently in their minds, a possible modification in his contempt-enforceable obligations for monthly child support. Generally, for a modification of either ordered or contractual child support to be appropriate, there must have been an “unanticipated” change in circumstances of the paying parent that results in inability to honor his obligations toward his children, particularly those obligations he has voluntarily contracted to pay. See Evans v. Evans, 994 So.2d 765, 770 (¶¶ 16–17) (Miss.2008). However, contracts that anticipatorily mandate the effect of material changes in circumstances have been held unconscionable and void by the courts. See Houck v. Ousterhout, 861 So.2d 1000, 1001–02 (¶ 8) (Miss.2003).
In Frazier, the chancellor did not rely on the agreement, but rather made his own independent finding that Paul’s unemployment was a material change in circumstances. That saved the trial court’s ruling from reversal.
You can include language such as that in Frazier in your agreements if you like, but you have to understand, and should so advise your client, that the language is void; not voidable, but void. meaning that it is unenforceable. The proscription has been held to apply not only to child support, but also to alimony and child custody. You simply can’t pre-decide those issue — it’s for the judge to decide.
You Can Use Escalation Clauses Once Again
September 8, 2014 § Leave a comment
The landmark case of Tedford v. Dempsey, 437 So.2d 410 (Miss. 1983), is notable primarily as the case that firmly established the age of 21 as the ultimate age of emancipation in Mississippi.
Tedford is also the case that encouraged lawyers and judges to incorporate child support escalation clauses into their PSA’s and judgments. This is the specific language from the opinion:
More on Evidence of Prior Conduct in a Modification Case
September 2, 2014 § Leave a comment
As a rule, in a modification the chancellor is prohibited by the principle of res judicata from considering evidence of conduct that predates the judgment sought to be modified. It’s a concept that we have talked about here before.
The COA case of Summerlin v. Eldridge, handed down August 19, 2014, is the most recent case to deal with the issue.
In their divorce in May, 2011, Mike and Tamara Summerlin agreed to a custody arrangement under which Mike would have custody of daughter Madison, and Tamara would have custody of the two younger children, Haley and Grace.
In August, 2011, Tamara filed for modification, seeking custody of Madison, and, apparently, asking for MIke to have custody of Haley. An agreed judgment was entered changing custody of Madison from Mike to Tamara, and custody of Haley from Tamara to MIke.
After that the parties swapped salvoes of pleadings for contempt and modification, and, in February, 2012, the chancellor left custody as the parties had previously agreed. They subsequently agreed that Mike would regain custody of Madison. That left only custody of Grace as a contested issue.
The case came to trial, and the chancellor, in October, 2012, awarded custody of all three children to MIke.
Tamara appealed, arguing that the chancellor erred in considering conduct of hers that predated the August, 2011, order, which had been the last modification order entered before the final modification judgment resulting from the trial.
The COA found no error. Here’s what Judge Fair’s opinion stated:
¶8. Tamara argues the chancellor erred in allowing testimony concerning matters that occurred prior to the August 19, 2011 order. According to Lackey v. Fuller, 755 So. 2d 1083, 1086 (¶13) (Miss. 2000), this practice is not permissible because of the res judicata principle. Tamara is correct that res judicata prohibits the chancellor from considering circumstances that occurred prior to the decree being considered for modification. Id. However, in this instance, the order awarding the custody of Grace to Tamara was entered on May 24, 2011, and not on August 19, 2011. The August 19, 2011 order changes custody of Madison and Haley but does not mention Grace.
¶9. Furthermore, in denying Tamara’s motion to reconsider, the chancellor noted that the only “evidence of events predating the original divorce decree was considered as impeachment evidence to [Tamara’s] and Del’s testimony.” The chancellor found the facts distinguishable from those in Lackey. Our review of a chancellor’s decision to admit evidence falls under the familiar abuse-of-discretion standard. Id. at (¶10). In this instance, we find no abuse of discretion by the chancellor. This issue is without merit.
So, two points:
- In order for the bar of res judicata to operate, the four identities must be present. In this case, the prior modification judgment(s) did not create a bar as to testimony involving custody of Grace, because Grace was not part of the subject matter of the prior judgment(s). The bar does not exist from the date of the last order or judgment entered, but rather exists when the four identities come together in one order or judgment. In this case, the last order or judgment in which the four identities were present as to Grace was the divorce judgment, and the testimony at trial to which Tamara objected was post-divorce-judgment.
- The reason why the testimony is offered appears to make a difference. Here it was not considered substantively by the trial judge, but was only considered as impeachment of Tamara’s and her current husband’s testimony. The COA did not cite any case specifically so holding, but you may want to cite this decision to support such an argument next time you have this issue come up.
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