Checklists, Checklists, Checklists
August 12, 2014 § 11 Comments
You can skip over this post if you’ve been paying attention to this blog for any appreciable length of time.
For you newcomers and oblivious long-timers, you need to know and appreciate that proving many kinds of cases in chancery court is a matter of proving certain factors mandated from on high by our appellate courts. I’ve referred to it as “trial by checklist.”
If you don’t put on proof to support findings of fact by the chancellor, your case will fail, and you will have wasted your time, the court’s time, your client’s money. You will have lost your client’s case and embarrassed yourself personally, professionally, and, perhaps, financially.
I suggest you copy these checklists and have them handy at trial. Build your outline of the case around them. In your trial preparation design your discovery to make sure that you will have proof at trial to support findings on the factors applicable in your case. Subpoena the witnesses who will provide the proof you need. Present the evidence at trial that will support the judge’s findings.
If the judge fails to address the applicable factors in his or her findings of fact, file a timely R59 motion asking the judge to do that. But remember — and this is critically important — if you did not put the proof in the record at trial to support those findings, all the R59 motions in the world will not cure that defect.
Here is an updated list of links to the checklists I’ve posted:
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
And here are two checklists that will help you in probate matters:
Evidence of Pre-Divorce Conduct in a Modification
July 3, 2014 § 1 Comment
The chancellor granted Marquis Stevenson’s petition for modification of custody, taking the child from his ex-wife Tanisha Martin. Tanisha appealed. One assignment of error was the chancellor’s exclusion of evidence of Marquis’s past domestic violence.
The COA, in Martin v. Stevenson, decided February 11, 2014, found no error. Judge Carlton, for the majority, said this:
¶32. We review a trial judge’s decision of whether to admit or exclude evidence under an abuse-of-discretion standard of review. Rushing v. Rushing, 724 So. 2d 911, 914 (¶11) (Miss. 1998) (citations omitted). In Lackey v. Fuller, 755 So. 2d 1083, 1085 (¶¶6-7) (Miss. 2000), the parties obtained an irreconcilable-differences divorce, and the wife later asked for modification of the final judgment. At the hearing, the chancellor allowed into evidence testimony regarding the wife’s predivorce conduct. Id. at 1086 (¶11). In its discussion of
res judicata as it applies to divorce proceedings and child-custody issues, the Mississippi Supreme Court stated:
We begin with the principles of res judicata[,] which command that a final judgment preclude[s] thereafter all claims that were or reasonably may have been brought in the original action. The familiar rule that a judgment for alimony, custody[,] or support may be modified only upon a showing of a post-judgment material change of circumstances is a recognition of the force of res judicata in divorce actions.
Id. at (¶13) (citations omitted). The supreme court concluded that the wife’s predivorce conduct was res judicata and that the only evidence the chancellor should have admitted was evidence pertaining to post-judgment conduct. Id. at 1087 (¶18).
¶33. In the present case, the record shows that at the September 28, 2011 hearing, Tanisha’s attorney tried to question Marquis about charges that arose prior to the divorce proceeding. Upon the objection of Marquis’s attorney, the chancellor asked Tanisha’s attorney whether there had been any continuation of Marquis’s conduct since the divorce decree and stated: “[U]nless you can tie some current conduct to that past conduct, I’m going to have to sustain the objection.” Because Tanisha’s attorney could not provide any evidence
of domestic violence by Marquis since the divorce, the chancellor found the evidence not relevant and sustained the objection. The issue arose again during Tanisha’s testimony, and the chancellor again explained that he would sustain the objection as to any matters that occurred prior to the divorce decree but would allow testimony regarding any actions since that time.
¶34. Based on the record and applicable law, we find no abuse of discretion in the s past acts of domestic violence. At the hearing for modification of custody, Tanisha was only able to offer proof of acts that divorce. Tanisha failed to offer any evidence of current conduct occurring since the divorce. Because Tanisha failed to properly raise this claim for consideration in the original divorce decree, she is barred from raising the issue now. This assignment of error therefore lacks merit.
This is a fairly common situation in modification cases, and this case is a helpful guide to how the chancellor should address it.
This case is also an interesting wrinkle on application of the statutory principle that a history of domestic violence may be a basis to deny custody. A previous post on that subject is here.
When is Temporary Relief Available in Family Law Cases?
June 18, 2014 § 5 Comments
I have heard it said that chancery courts routinely grant temporary relief in any matters pending before them. Is that so? And in what matters is temporary relief available?
Let’s look at family law.
Anyone who has done any Mississippi family law knows that temporary relief is available in divorce cases. The authority of the chancery court to grant temporary relief in a divorce proceeding is found in MCA 93-5-17(2), which provides:
The chancellor in vacation may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.
Divorce is a creature of statute unknown in the common law; therefore, any relief obtainable in a divorce must have its source in a statute. Since this statute is part of the title dealing with divorce, and is a subsection of the statute that requires divorce hearings to be held in open court, I am confident in saying that this particular statute is not authority to grant temporary relief outside the context of a divorce.
Likewise, in cases of determination of parentage, MCA 93-11-65(10) creates a remedy:
Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic testing or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.
Notice that the latter statute does not not include custody among the relief provided. The COA has held that both natural parents have an equal right to custody of the child, regardless whether parentage has been finally determined. So, on the one hand, it would appear in a custody dispute between parents in a parentage case that the tug-of-war between them must continue unabated by temporary custody because there is no provision in the statute for temporary custody. The conundrum is exacerbated by the simple fact that support is customarily (always?) paid to the parent with custody, which is certainly logical, because we have to know where the child will be in order to know where to direct the support. If the court has no statutory authority to award custody in such a case, how can the court award child support?
It could be that the chancellor may simply order extra-statutory temporary relief in a given case based on equitable principles. In the parentage case, for example, the court could award temporary custody in order to get to the statutorily permissible temporary support award.
But would such an order stand? After all, we know that there is no appeal of right from a temporary or interlocutory order.
I think the distinction may lie in the nature of the review. If the merits of the order are attacked, then I think the appeal fails. If the power of the court to grant the temporary relief is attacked, then I think the appeal would have merit. An example of the latter is Martin v. Falcon, #2013-IA-1985-SCT (December 5, 2013), in which Justice Coleman vacated a temporary order granting grandparent visitation.
Is there even a right to a temporary hearing in a grandparent visitation case? I would argue in the negative, for two reasons: (1) the grandparent visitation statute has no provision whatsoever for temporary relief, and like divorce and parentage, it is a creature solely of statute; and (2) to grant temporary relief is to presume on the ultimate issue that the petitioner is entitled to such relief, which is not always so.
Of course, temporary relief is expressly available in injuntions, per MRCP 65, in the form of a TRO. A TRO does require the existence of an emergency or danger of irreparable harm if no relief is immediately granted. And the domestic violence statutes incorporate such relief.
Custody modification cases and third-party custody cases are somewhat more problematical. There are statutes dealing with custody, and its award and forms, but they do not specifically mention temporary relief. In this district, we do not allow temporary relief in a child-custody-modification case unless there is an emergency or it is clearly necessary to protect the best interest of a child until a final determination may be made. To do otherwise would peremptorily adjudicate the ultimate issue in the case.
When the chancellor acts in an emergency or other exigent situation to protect the child, her actions are based on Article 6, § 159 of the Mississippi Constitution, which gives chancery courts “full jurisdiction” over “All matters in equity,” and “Minor’s business.” Custody has long been recognized as being under the mantle of chancery jurisdiction, and, indeed, our cases speak in terms of the chancellor being the “superior guardian” and protector of the child’s best interest. I think as between the apparent form required by statute and the chancellor’s determination that action must be taken for the best interest of a child, the court will and should go with the best interest every time.
I would reconcile all of the foregoing by saying that I believe that, in the absence of exigent circumstances requiring immediate intervention the court should avoid temporary relief unless there is a statutory provision or rule expressly providing that relief. Your chancellor may see it differently, based on an entirely different rationale, but that is the way I view it.
This post addresses temporary relief in family law matters. Temporary relief in the many other types of cases within chancery jurisdiction is the subject of another post.
—————————
Thanks to Attorney George S. Whitten of Greenwood for supplying some of the material for this post.
Social Security and Reduction of Alimony
June 4, 2014 § 1 Comment
May a chancellor grant a downward modification of alimony based on the ex-wife’s post-divorce receipt of Social Security benefits that are derived from the ex-husband’s earnings record?
That was a key issue in the case of Cockrell v. Cockrell, handed down by the COA on May 25, 2014. In that case, the chancellor had found a material change in circumstances based on the husband’s serious deterioration in health, and reduced his alimony by $557 a month, which was the amount of the ex-wife’s Social Security benefits that she qualified for based on the ex-husband’s earnings record. The COA affirmed. Judge Fair’s opinion, for the majority, based its holding on the case of Spalding v. Spalding, 691 So.2d 435 (Miss. 1997).
In Spalding, the ex-wife had filed an action to enforce the alimony provisions of a foreign divorce judgment, and the trial judge allowed the ex-husband a credit for Social Security benefits received by the ex-wife based on the ex-husband’s earnings record. It’s not exactly the same scenario as that in Cockrell, but it’s close enough to decide the issue.
Here is how the Spalding court addressed the issue, beginning at page 438:
In ruling that the use of Social Security payments may be an alternative source of satisfying alimony obligations, the chancellor relied upon this Court’s earlier decisions of Mooneyham v. Mooneyham, 420 So.2d 1072 (Miss.1982), and Bradley v. Holmes, 561 So.2d 1034 (Miss.1990). In Mooneyham, this Court weighed decisions from a number of other jurisdictions and held that Social Security payments derivative from the child support payor should be credited against child support. The Court cited with approval the Georgia case of Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200 (1963), which stated the basic policy:
Social Security disability payments represent money which an employee has earned during his employment and also that which his employer had paid for his benefit into a common trust fund under the Social Security Act. 42 U.S.C. § 301, et seq. These payments are for the purpose of replacing income lost because of the employee’s inability to work upon becoming disabled. Thus, these payments substitute for income. Since the amount of alimony required to be paid is determined largely by income, we see no reason why, in discharging the obligation to pay the alimony, Social Security disability benefits should not be credited.
Mooneyham, 420 So.2d at 1074. This Court stated that the decisions considered from other jurisdictions “appear to be unanimous in holding the social security payments to the minor … should be credited on the amount of support ordered by the court.” Id. at 1073.
Eight years later, this Court followed the logic and holding of Mooneyham in deciding Bradley. Bradley held that a retired father’s child support commitment would be credited for Social Security payments the minor child was eligible to receive premised upon the father’s income record, even though the child’s mother chose to receive Social Security benefits based on the income history of the child’s retired stepfather. Bradley, 561 So.2d at 1035–36. This Court stated that “[e]quity suggests that child support obligations are to be off-set, not only to the extent of payments actually received under the Social Security Act, but also for payments the child was entitled to receive, based on the parent’s retirement.” Bradley, 561 So.2d at 1036 (citation omitted).
This Court’s holdings in Mooneyham and Bradley aligned Mississippi with the majority of jurisdictions which have examined this issue. See Pontbriand v. Pontbriand, 622 A.2d 482, 484 (R.I.1993), which stated that the “overwhelming majority of states that have considered this issue allow a credit for Social Security benefits paid to dependent children.”
The issue raised here on appeal has not been previously presented to this Court. However, in the cases of Frazier v. Frazier, 455 So.2d 883 (Ala.Civ.App.1984), and Brewer v. Brewer, 613 So.2d 1292 (Ala.Civ.App.1992), Alabama has considered this issue and extended the principle of derivative Social Security benefits satisfying child support obligations to cases involving alimony claims. In Frazier, the Alabama Court of Civil Appeals held that the trial court erred in not allowing Social Security benefits which the wife received and which were derived from her husband’s Social Security account as credit against his alimony arrearage. Frazier, 455 So.2d at 885. In discussing whether or not to extend derivative Social Security benefits *439 to alimony claims, the court in Frazier remarked:
[w]e cannot fathom any valid reason or reasonable logic as to why the rule of law in the Binns [v. Maddox, 57 Ala.App. 230, 327 So.2d 726 (1976)] and Bowden [v. Bowden, 426 So.2d 448 (1983) ] cases, supra, should not apply to periodic alimony as well as to child support. One of the obvious purposes of Social Security benefits is to partially replace income which is lost because of the retirement of an employee because of age or disability. The payments substitute for income.
Frazier, 455 So.2d at 885.
Appellant contends that the instant case can be distinguished from the Mooneyham case because it deals with retirement benefits rather than disability benefits. This Court, in Bradley, applied the Mooneyham rule to a situation dealing with derivative Social Security retirement benefits, evidently finding no reason to distinguish between Social Security benefits premised on retirement as opposed to disability.
Appellant asserts that Congress did not intend to permit Social Security payments to be an alternate source of income for the satisfaction of an alimony obligation. No cases were cited by Appellant to sustain this conclusion. This Court has held that it will not consider an assertion of error for which there is no authority cited. Armstrong v. Armstrong, 618 So.2d 1278, 1282 (Miss.1993); Smith v. Dorsey, 599 So.2d 529, 532 (Miss.1992); R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990).
Appellant insists that the decision of the chancellor to credit derivative Social Security benefits against alimony represented a downward modification of the alimony granted to Betty Spalding, asserting that William failed to meet his burden of proof regarding a material change in circumstances. This Court, in Mooneyham, applied derivative Social Security benefits as credit against child support obligations. Mooneyham, 420 So.2d at 1074–75. Here, we indicated that derivative Social Security payments credited against child support obligations are to be considered as substitute income. Mooneyham, 420 So.2d at 1074. The chancellor in the instant case applied that same logic to derivative Social Security benefits with respect to alimony, and treated the credit against alimony as an alternate source of income out of which alimony obligations are permitted be satisfied.
The chancellor arrived at the same conclusion as did the Alabama Court of Civil Appeals in Frazier, supra, i.e., no valid reason exists to treat derivative Social Security benefits differently with respect to alimony or child support. In the instant case, Betty Spalding’s Social Security benefits are derived in large part from William’s work history and income record. The monies paid into the Social Security fund by William and his employers for the duration of the marriage and the time following the divorce generated the source from which Betty Spalding’s benefits are paid.
The chancellor applied the holding in Mooneyham concerning derivative Social Security benefits as credit against child support obligations to analogous circumstances in an alimony claim. Ample evidence in support of his ruling is found in both Mississippi law and the law of our sister state of Alabama. The chancellor applied the correct legal standard, did not abuse his discretion, and did not commit manifest error. Accordingly, this assignment of error is without merit.
If this rule applies in modification and contempts, it should apply as well in original proceedings where an alimony obligation is being calculated. You might be able to come up with formulations based on the Social Security website calculators that a judge might find helpful in crafting an alimony provision.
Alimony is not Forever, but Almost
April 14, 2014 § Leave a comment
We’ve visited the issue of modification of alimony in a previous post dealing with the COA case of Peterson v. Peterson, decided last year.
Peterson highlighted how difficult it can be, once alimony is ordered by the court, to terminate or reduce it.
That’s because the competing equities on both sides can be pretty strong.
The latest case dealing with similar issues is Cook v. Cook, handed down by the COA on March 24, 2014.
Cook, as is true with all of these cases, is quite fact intensive. I’m not going to rehash all of those facts here, but when you read Judge Carlton’s opinion affirming the chancellor’s decision to grant a 25% reduction in alimony, note how the trial judge, and then Judge Carlton following the chancellor’s analysis, seesawed their way down the factors, first favoring modification, and then not favoring, and then back, and then forth. It’s fairly representive of the way the judge has to weigh these matters.
The best way to avoid having to modify alimony is to avoid it in the first place. That can be difficult when there is a great discrepancy in income and ability to establish a decent earning capacity. Don’t forget that as equitable distribution expands, the entitlement to alimony contracts. So, given significant resources, you can advise your client to give more — sometimes much more — in equitable distribution so as to eliminate the need for alimony. It’s a strategy I used successfully when I practiced, and had used against me, too.
Cook also highlights the boomerang effect your client can suffer in asking for modification. Based on the principle that the best defense is a good offense, your petition to modify can be met with a counterclaim for contempt and upward modification. If the alimony was rehabilitative, you might even stir up a counterclaim to convert it to permanent periodic alimony. Oster v. Oster, 876 So.2d 428, 430-431 (Miss. App. 2004).
Attorney’s Fees in a Modification Case
March 10, 2014 § Leave a comment
As a general proposition, I think most family lawyers would agree that it’s out of the ordinary for there to be an award of attorney’s fees in a modification case absent a companion claim for contempt.
But it’s not unheard of, and it does happen.
Take, for instance, the recent COA decision in Collins v. Collins, handed down February 25, 2014. In that case, the chancellor had awarded Myra Collins $4,234.74 in attorney’s fees after she prevailed in her quest to obtain an upward modification of separate maintenance. Her ex, Arthur, appealed, arguing that it was erroneous for the chancellor to award attorney’s fees in a modification case when there was no allegation of contempt, and there was no finding of her inability to pay.
Judge Griffis addressed the issue for the court:
¶16. In Labella v. Labella, 722 So. 2d 472, 475 (¶12) (Miss. 1998), the supreme court found that one of the parties “clearly established an inability to pay because she was unemployed at the time of trial and her only income was in the form of unemployment benefits.” The court noted that “[t]he general rule is that if a party is financially able to pay his attorney’[s] fees[,] he should do so, though this is a matter which is entrusted to chancellor’s sound discretion.” Id. at (¶13) (quoting Anderson v. Anderson, 692 So. 2d 65, 74 (Miss. 1997)). Also, in Hammett v. Woods, 602 So. 2d 825, 830 (Miss. 1992), the supreme court ruled that “[w]here the record shows an inability to pay and a disparity in the relative financial positions of the parties, we find no error” in awarding attorney fees. Here, the lower court found that “[Myra] has proven that she has an inability to pay and that [Arthur] has the much, much greater ability to pay attorney’s fees, and therefore an award of fees is appropriate in this modification proceeding.”
Does this open the door to an attorney’s fee award in every modification case? Probably not, for a couple of reasons. First, this is a separate maintenance case, and, if you think about it, separate maintenance is in effect an ongoing temporary divorce order. Since its purpose is to provide the wife with as close as possible to her reasonable standard of living without rendering the husband destitute, it stands to reason that her standard of living should not be further reduced by having to pay attorney’s fees to mantain that standard of living. To deny her attorney’s fees wouold defeat the purpose. Second, it has always been the law that, although an award of attorney’s fees is not favored in a modification case, it is appropriate where it would impose an unfair burden on the prevailing party, as where there is a clear inability to pay, or the lack of an award would impoverish children, etc.
This case is not an outlier. Rather, it demonstrates that the chancellor has considerable discretion both as to whether to award a fee, and as to its amount.
Don’t Overlook the Practicalities when Dealing with Visitation
January 29, 2014 § 1 Comment
When Wesley and Janet Jaggers got their irreconcilable differences divorce in April, 2004, Janet got custody, and Wesley got visitation.
Soon afterward, only three months after the divorce, they agreed to a modification judgment that included the following language:
[E]ach parent shall allow the children to attend and participate in the scheduled extra-curricular activities of each child, including baseball, speech therapy, etc., it being the intention of this paragraph that the children’s regular schedules be maintained so as to provide as great a degree [of] continuity as possible.
That language sets a lofty aspiration for the parties, and its spirit is certainly commendable. But it leaves some questions unanswered, such as: who does the scheduling; what are the limits on extra-curricular activities; who gets to determine what the children’s regular schedules are?
In time conflict arose between the parties over the fact that Janet scheduled baseball games, out-of-town tournaments, and other activities of the children during Wesley’s visitation time. Wesley petitioned the court for relief.
Wesley argued that Janet’s conduct violated his sacrosanct parental right to visitation without interference. Janet invoked the polestar best-interest-of-the-child principle. Immovable object meet irresistable force.
The chancellor fashioned a remedy he deemed to be in the best interest of the children, providing for Wesley to have make-up visitation if the children’s travel schedule interfered with his visitation. The chancellor relied heavily on the parties’ own language adopted in the agreed modification judgment. On appeal, the COA affirmed in Jaggers v. Magruder, handed down January 7, 2014, deferring to the chancellor’s considerable discretion in this area.
A few desultory thoughts:
- I wonder whether more attention to detail in that modification judgment might have produced a different result, or even avoided this litigation entirely. As a lawyer, you have a considerable body of experience to draw on when you draft language to solve a client’s legal problem. You know from experience what situations give rise to certain kinds of problems. Bring that experience to bear when advising your client.
- I think it’s a good idea to avoid aspirational language in agreed judgments and PSA’s. Language like “The parties agree that they will do all in their power to foster good feelings and to encourage love and devotion between parent and child” just seems to me to be a recipe for future litigation.
- Address the practicalities in every order or PSA dealing with visitation. Who is responsible to pick up and return? What times? Who may accompany or take the place of the visiting parent? Who decides about scheduling extra-curricular activities during visitation time? What are the conditions for make-up visitation? Yes, I know that the parties have to bring some good faith to the table, but you can ward off some bad behavior based on your experience. And I know, too, that no one can anticipate every conceivable problem, but I am not suggesting that you address every conceivable problem — only the ones you shuold reasonably anticipate you can avoid in advance based on your experience.
- The issue of the boundaries of the parents’ respective rights vis a vis visitation is one of the thorniest and most difficult to resolve for any chancellor. It’s as hard for a chancellor to resolve as it is for the lawyer to offer advice. That’s because of the competing equities that almost always have almost equal weight. I am glad that the appellate courts leave these issues largely in the discretion of the chancellor rather than conjuring up formulaic solutions that don’t fit the nuances in most situations.
- This case is yet another in which the chancellor did not accept or implement the recommendation of the GAL. Keep in mind that the chancellor is never bound by the GAL’s recommendations.
Fraud on the Court and MRCP 60(b)
January 28, 2014 § 1 Comment
What does it take to trigger relief from fraud on the court?
That’s the question I posed in a previous post dealing with the COA’s October 2, 2012, decision in the case of Rosemary Finch v. Stewart Finch.
The answer based on the COA decision was that one need merely suggest that a fraud on the court was committed, and the chancellor can take it from there. So that settles that, right? Well, not exactly. The MSSC granted cert and took another look.
In Finch v. Finch, handed down January 16, 2014, the high court affirmed the COA’s decision on the chancellor’s handling of the fraud-on-the-court issue, but remanded for further findings of fact by the trial court on other issues.
The MSSC decison, penned by Justice Pierce, is worth your time to read, because it sheds further light on the dimensions of fraud on the court, how it affects judgments, how the trial court should address it, and how you should deal with it.
What is most strking to me about this opinion, however, is how the court divided on the decision:
LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., KING AND COLEMAN, JJ.; CHANDLER, J., JOINS IN PART.
Four justices joined entirely in the opinion: Pierce, Lamar, Kitchens, and Chandler. Randolph added a fifth concurrence “in part and in result.” The dissent garnered five votes also: Dickinson, Waller, King, and Coleman. Chandler added a fifth vote, “in part.” Neither Justice Randolph nor Justice Chandler wrote an opinion explaining their concurrence or dissent in part, so we do not know enough to understand their rationales. Apparently, under the MSSC internal procedures, a tie vote goes in favor of the justice who wrote the original opinion. In his dissent, Justice Dickinson referred to this as a “plurality opinion.”
I found Justice Dickinson’s dissent to be forceful and persuasive. He questioned whether due process had been violated, and he found the proof of actual fraud lacking. He was not successful, though, in selling his opinion to a majority. So the law of Mississippi in cases involving fraud on the court remains as I described it in that previous post:
… all that was necessary in this case was to give the chancellor a suggestion that there may have been a fraud on the court, and she picked it up and ran with it. The chancellor has broad, equitable power when it comes to relief under MRCP 60(b), which the court can exercise on its own motion. In this particular case the problem was fraud, but 60(b) vests the court with the same equitable powers to address mistake, “or any other reason justifying relief from judgment …”
The Not-so-Illusory Agreement
January 16, 2014 § Leave a comment
It has long been the law in Mississippi that parties effect extra-judicial modifications at their peril, and that chancery courts are neither designed or equipped to enforce such agreements.
Only last September we read here about Donald Brewer and Penny Holliday, who had agreed to modify their divorce judgment vis a vis custody and support. They had lawyers incorporate their agreement into an agreed judgment, and they proceeded to conform to the agreement in nearly every respect for several years. Only problem is, no one ever saw to it that the agreed judgment was entered. Both Donald and Penny believed that it had been entered. When the parties had a falling out and wound up back in court, the chancellor refused to enforce the agreement, notwithstanding the course of compliance, and found Donald in contempt. The COA affirmed, as you can read in the previous post.
Donald in due course persuaded the MSSC to take another look, and in Brewer v. Holliday, decided by the MSSC on January 9, 2013, the high court reversed. Justice Dickinson’s opinion states, in part:
¶14. This Court has recognized that, at times, equity may “suggest ex post facto approval of extra-judicial adjustments in the manner and form in which support payments have been made.” [citation omitted] For instance, in Alexander v. Alexander, this Court held that equity required crediting a father for payments of child support made directly to the child – once the child moved in with him – instead of to the mother. [citation omitted] And in Varner v. Varner, we explained that “the father may receive credit for having paid child support where, in fact, he paid the support directly to or for the benefit of the child, where to hold otherwise would unjustly enrich the mother.” [citation omitted] Noncustodial parents pay child support to custodial parents for the benefit of the child, not the parent, [citation omitted] and that support belongs to the child, not the custodial parent. [citation omitted]
[Note: read the opinion at the link for the case citations. Copying and pasting numerous footnotes is too cumbersome for this blog]
The court went on to remand the case for the chancellor to consider the fact that the child resided with Donald, à la Varner, finding that the arrangement should have been taken into account by the judge at the original hearing.
There is no airtight rule against enforcement of extra-judicial modifications. Each case must be considered on its own merits, and the equities must be weighed. Here, the high court considered that it would be best for Donald’s equities to be taken into account, rather than closing the door on enforcement of the agreement. No doubt the parties’ ignorance of the fact that the judgment had never been entered, coupled with their compliance with it for a time, had persuasive weight in this particular case.
Seeking Relief from Alimony Can be a Travail
December 3, 2013 § 2 Comments
When their 33-year marriage ended in divorce in 2005, Richard Peterson was ordered to pay his ex-wife, Josephine, $2,500 a month in periodic alimony. At the time, Richard, who was then 58, intended to continue his employment with the US Army Corps of Engineers in Vicksburg until age 75.
But things began to fall apart for Richard, or, more accurately, Richard began to fall apart. Within five years of the divorce, he suffered a series of physical injuries that affected his ability to work. He fell and broke his patella, and had to have two knee surgeries. He also suffered multiple joint injuries, and developed degenerative arthritis in both hips, both knees, and his left shoulder. To add to his misery, he tore a bicep, developed spinal stenosis in his lower back, underwent a total hip replacement, and had rotator-cuff surgery. We don’t know what his job entailed, but there are NFL players who do not suffer that many physical catastrophes in an entire career. Richard was placed on disability retirement due to the combination of woes that caused him intense pain, forced him to use a cane to walk, and disabled him from further employment.
Richard filed a petition to modify the alimony in 2010, and after a trial, the chancellor ruled that he had proven a material change in circumstances justifying a downward modification, and she reduced the alimony from $2,500 to $1,800.
Richard appealed, complaining that the reduction was not enough, since it left him with a monthly deficit of nearly $1,000. Josephine cross-appealed, contending that the retirement was foreseeable.
The COA addressed both appeals in the case of Peterson v. Peterson, handed down November 19, 2013. On the issue of modification, Judge Maxwell’s opinion set out the law applicable to modification of alimony:
¶7. With respect to requests for modification of a previously ordered alimony award, chancellors are vested with general statutory authority to modify divorce decrees and make “new decrees as the case may require.” Miss. Code Ann. § 93-5-23 (Rev. 2013). Within this broad authority is the more specific power to increase, decrease, or terminate periodic alimony payments. Hubbard v. Hubbard, 656 So. 2d 124, 129 (Miss. 1995). When asked to modify periodic alimony awards, chancellors must first determine if an unforeseeable and material change in circumstances occurred since entry of the initial divorce decree. Holcombe v. Holcombe, 813 So. 2d 700, 703 (¶11) (Miss. 2002). If not, modification is not permitted.
¶8. However, if a substantial unanticipated change has in fact occurred, the chancellor should then consider the Armstrong [footnote omitted] factors to determine the appropriate amount of alimony. Holcombe, 813 So. 2d at 703 (¶12) (citing Armstrong, 618 So. 2d at 1280). In evaluating these factors when “deciding whether to modify periodic alimony,” chancellors should “compar[e] the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree.” Steiner v. Steiner, 788 So. 2d 771, 776 (¶16) (Miss. 2001) (citing Anderson v. Anderson, 692 So. 2d 65, 72 (Miss. 1997); Tilley v. Tilley, 610 So. 2d 348, 353-54 (Miss. 1992); Armstrong, 618 So. 2d at 1280). As with any alimony consideration, the chancellor must consider the wife’s accustomed standard of living, less her own resources, as well as the husband’s ability to pay. Gray, 562 So. 2d at 83.
The opinion goes on to evaluate the evidence, and concludes that Richard’s disability was, indeed, unforeseeable at the time of the divorce and the circumstances giving rise to it took place after the divorce. Josephine’s argument was that Richard had intended to retire at some point, so retirement was foreseeable and anticipated at the time of the divorce, and, therefore, modification should not lie. The COA pointed out that the case law did not support her argument:
¶12. We have previously held that a payor’s retirement due to unforeseeable health issues constituted a material change sufficient to modify an alimony award. See Broome v. Broome, 75 So. 3d 1132, 1140-41 (¶¶26-28) (Miss. Ct. App. 2011); Clower v. Clower, 988 So. 2d 441, 444-45 (¶9) (Miss. Ct. App. 2008) (holding that husband’s retirement due to health problems and loss of income constituted a material change in circumstance, justifying a reduction in alimony). Because there is record support that Richard’s later-arising injuries forced his retirement, the chancellor did not abuse her discretion in finding that a material, unanticipated change in Richard’s circumstances had occurred since the divorce.
As for the issue of alimony reduction, the opinion addressed it this way:
¶14. Permanent periodic alimony is “a substitute for the marital-support obligation.” Deborah H. Bell, Mississippi Family Law § 9.02[1] (2005). It arises from the duty of the husband to support his wife. McDonald v. McDonald, 683 So. 2d 929, 931 (Miss. 1996). “Consistent with Armstrong, a financially independent spouse may be required to support the financially dependent spouse in the manner in which the dependent spouse was supported during the marriage, subject to a material change in circumstances.” Rogillio v. Rogillio, 57 So. 3d 1246, 1250 (¶11) (Miss. 2011). But “alimony awards in excess [of] a spouse’s ability to pay are ‘per se unreasonable.’” Sheffield v. Sheffield, 55 So. 3d 1142, 1145 (¶9) (Miss. Ct. App. 2011) (quoting Yelverton v. Yelverton, 961 So. 2d 19, 28 (¶18) (Miss. 2007)).
¶15. Having found a material change, the chancellor correctly moved to the next step and considered the Armstrong factors, comparing the parties’ financial positions at the time of the modification request to their former positions when divorced. See Steiner, 788 So. 2d at 776 (¶16). But the chancellor did not make any findings about Richard’s ability to pay. And on appeal, Richard suggests that even after the $700 alimony reduction, he still endures a monthly deficit and is unable to pay the reduced award.
¶16. From our review, it is obvious the chancellor performed a detailed financial analysis of the parties’ incomes and expenses, health and earning capacities, needs, assets, and tax consequences, as required. However, considering these unchallenged figures, it is not apparent from the record that Richard was financially able to pay the reduced alimony obligation.
The court went on to do its own analysis of the financial proof, and found lacking any analysis of Richard’s ability to pay even the reduced sum. The opinion concluded:
¶26. Because “alimony awards in excess [of] a spouse’s ability to pay are ‘per se unreasonable,’” Sheffield, 55 So. 3d at 1145 (¶9), we remand for the chancellor to consider Richard’s ability to pay this amount, or any amount of alimony, while maintaining as normal a life as possible with a decent standard of living. See Brendel v. Brendel, 566 So. 2d 1269, 1272 (Miss. 1990).
So Richard turns once again to the trial court, slogging his way toward what he surely hopes will be a more satisfactory outcome.
Balancing the needs of one party against the resources of the other is a devilishly difficult task for a chancellor that requires deft juggling of many competing factors.
The Better Chancery Practice Blog 