The New HCIT
July 6, 2017 § Leave a comment
In case you hadn’t noticed, habitual cruel and inhuman treatment, the seventh ground for divorce in Mississippi, has undergone a change, effective July 1, 2017.
Here is how the language of § 93-5-1, MCA, now reads:
Seventh. Habitual Cruel and inhuman treatment, including spousal domestic abuse.
Spousal domestic abuse may be established through the reliable testimony of a single credible witness, who may be the injured party, and includes, but is not limited to:
That the injured party’s spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party, or that the injured party’s spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or
That the injured party’s spouse engaged in a pattern of behavior against the injured party of threats or intimidation, emotional or verbal abuse, forced isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking as defined in Section 97-3-107, if the pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.
How will this play out? We’ll have to see how the appellate courts interpret it, of course. But several thoughts come to mind:
- By removing the corroboration requirement and replacing it with the testimony of a single “reliable” witness, the statute essentially leaves it up to the chancellor to make a credibility determination as to that individual. Since determining the credibility of and the weight to be given a witness’s testimony is exclusively the province of the chancellor, it should be practically impossible to get the chancellor’s decision reversed on appeal.
- Some judges, I am sure, will be quite ready to give credibility to any person claiming to be the injured party. In those courts, the parties will be back to where we were up to the early 1980’s when chancellors had the latitude to conclude even where the proof was weak that the parties clearly needed a divorce, so it was granted.
- The statute went into effect July 1, 2017. I don’t know whether the new language can be amended into already-filed pleadings, or whether it applies only to complaints filed after July 1, or whether it applies only to conduct arising on or after July 1.
- I personally like the addition of “forced isolation” and emotional and sexual abuse rising above unkindness, rudeness, or incompatibility. That specific language opens up some areas that perhaps have been murky in our case law. Still, I wonder whether the courts will require proof of adverse effect on the injured party. Stay tuned.
Beyond the Scope of the Pleadings
July 5, 2017 § Leave a comment
It’s fundamental that, if you want relief, you have to ask for it (or pray for it, in chancery parlance). There are scads of cases on the point. The only two exceptions that I am certain of are: (1) where an issue is tried without objection and a motion to amend the pleadings to conform to the proof is timely made per MRCP 15; and (2) where the chancellor fashions ancillary relief in order to afford the relief requested.
In the recent COA case In the Matter of C.T.; Taylor v. Timmons, decided June 6, 2017, the chancellor modified visitation even though no one asked for that relief. The appellant argued that the modification was beyond the court’s authority, since no one had pled for it. The COA affirmed, with Judge Lee writing for the unanimous court:
¶16. Taylor argues that the chancellor’s modification was an abuse of discretion because neither party requested the modification or presented evidence that the visitation schedule was not working. However, the record is replete with evidence that the visitation schedule was not working. Though neither party petitioned the chancery court for modification of visitation, Taylor did file a petition for contempt, asserting that he was not getting visitation with the child. Taylor also testified extensively that he was unable to visit with the child. Timmons testified that she had not denied Taylor visitation, but that she had begged Taylor to visit with the child. The chancellor also noted that there was some confusion between the parties regarding the details of visitation under the agreed order. As such, there was a clear showing that the prior visitation order was not working, and the chancellor’s finding that a modification was necessary was supported by substantial evidence. Given the chancellor’s “broad discretion to determine the specific times for visitation,” the chancellor did not abuse his discretion in modifying the visitation schedule. Moreland v. Spears, 187 So. 3d 661, 666 (¶17) (Miss. Ct. App. 2016) (citation omitted). This issue is without merit.
No doubt the chancellor was being practical and was attempting to solve as many of these people’s conflicts as he could in one stab.
I don’t think one could argue convincingly, though, that the visitation modification was directly related to the relief sought. Take this case as support for the proposition that the appellate courts will generally defer to a chancellor acting as problem-solver. But be forewarned: there are cases going the other way.
Things We Think We Heard in Court
June 30, 2017 § 1 Comment
I try to jot down droll things that people say in the course of their testimony.
Here are two from just last week:
“It was her lies. That was the icing that broke the camel’s back.”
and
“I spend every penny on my children. It takes the cake to support them.”
My all-time favorite, reported here previously:
“Of course, you realize that the flip side of that coin is a two-edged sword.”
And a note that a defendant enclosed with his temporary alimony:
“I heard that your lawyer had a heart attack. I hope the little grease spot dies.”
That note was admitted into evidence along with several alimony checks with the entry “Fat cow extortion” on the memo line.
In a case I tried, a witness testified that the force of impact in a car crash was so great that her neighbor was “almost decapacitated.”
A woman testifying in a custody case repeatedly referred to her daughter as being “bi-polo.”
Pardon me for this one, but a woman earlier this week told the chancery clerks that she needed some papers “masturbated.” A clerk asked her if she meant notarized or certified. “No,” she said, “masturbated.”
And, finally, this actual exchange in my court:
Atty 1: Objection, irrelevant.
Court: How is that relevant?
Atty 2: I don’t know. I was just throwing up a Hail Mary hoping to hit something.
Court: Well, the pass is incomplete; call another play.
The Testamentary Contract
June 28, 2017 § Leave a comment
When is a contract really a will?
That was the question before the COA in the case of Estate of Greer: Oakes v. Ball, about which I posted a little over a year ago at the link. In that case, Greer had included this provision in a lease with the Nunnerys:
In the event of the death of the Lessor, this lease agreement shall not terminate, rather the rights and limitations of Lessor shall immediately be transferred to Linda Ball, who will also have the right to receive payments hereunder.
When the case went to trial, the chancellor concluded that the provision was merely a transfer of the Lessor’s interest, and was not testamentary.
On appeal, the COA reversed, holding that the provision was, indeed, testamentary in nature and, therefore, was unenforceable because it did not meet the requirements of a testamentary instrument such as subscription and being witnessed by two witnesses. The COA’s decision is at this link.
The MSSC granted cert., and on June 1, 2017, affirmed the COA. You can read the court’s opinion at this link; it includes so many footnotes that I simply do not have time to reformat to accommodate all of them.
The important point from this case is that, if the grantee’s right will vest only upon the death of the grantee, then the instrument is is testamentary and must meet the formal requirements of a will in order to enforceable according to its terms.
The court rejected the argument that Ball could validly enforce the contract as a third-party beneficiary.
Justices Kitchens, King, and Chamberlin would have distinguished the case from prior case law on the basis that this one involved a lease contract as opposed to a deed. They make several other compelling arguments that you might find helpful when dealing with similar issues.
Abandonment of the Marriage Redux
June 27, 2017 § 1 Comment
When a widow renounces a will that does not make provision for her or makes inadequate provision, the will proponent may assert abandonment or desertion of the marriage as a defense to the renunciation.
That is what happened in the case of Estes and Estes, Co-Executors of the Estate of Estes v. Estes. I previously posted about the case, in which the COA reversed the ruling of the chancellor that Sarah Estes had not abandoned or deserted her dying husband so as to bar her from renunciation. You can read my take on the case at this link. I made this statement in that post:
What bothers me somewhat here is that our law allows the chancellor, and the chancellor alone, to choose whom to believe and what weight to give testimony. Here, the facts were in dispute, and the chancellor gave more weight to Sarah’s side of the story, as was his prerogative.
Sarah filed a petition for cert, which the MSSC granted. In Estes and Estes, Co-Executors of the Estate of Estes v. Estes, handed down June 1, 2017, the MSSC reversed the COA, affirmed the chancellor, and remanded the case for further proceedings consistent with the court’s ruling. Chief Justice Waller wrote for a unanimous court, Maxwell not participating:
¶10. The standard of review on “findings of fact by a trial judge without a jury [is] manifest error, including whether the findings were the product of prejudice, bias, or fraud, or manifestly against the weight of the credible evidence.” Hale v. State Democratic Exec. Comm., 168 So. 3d 946, 951 (Miss. 2015) (quoting Young v. Stevens, 968 So. 2d 1260, 1263 (Miss. 2007)). This standard of review precludes the “scouring [of] every record before the Court for any and all information which might contradict a . . . court’s factual finding” since this would “amount to an inspection for errors that are far less conspicuous than those that are ‘unmistakable, clear, plain, or indisputable.’”Id. (quoting Black’s Law Dictionary 963
(6th ed. 1990)).
¶11. The Court of Appeals in Estes I directed the chancellor, on remand, to consider the “clear-abandonment standard” of Tillman v. Williams, 403 So. 2d 880 (Miss. 1981). Following the trial, the chancellor addressed the issue of clear desertion, finding that Estes had failed to meet the burden of proof. The following was included in the chancellor’s factual findings and judgment:
Critical to a determination of Sarah’s clear desertion and abandonment of the marriage and resultant estoppel from claiming a statutory right to an inheritance are the facts following Joe’s October hospitalization. According to Sarah, after Joe was discharged from the hospital, he began to act irrationally. He accused her of infidelity and the theft of groceries. On November 26, 2006, Sarah called Joe’s physician, Dr. Pinson, to seek advice on how to help Joe. Sarah then filed a complaint with the Lee County Sheriff’s Department that Joe was threatening her and acting irrationally. A deputy sheriff came to Joe’s residence and made a report. Joe’s irrational behavior is born [sic] out by his refusal to dress appropriately and by him discharging a gun from inside his house through an open window. The severity of Joe’s mental difficulties is perhaps best documented, however, by his tragic May 18, 2007 suicide.
Regardless of the date of separation, the chronology of events following the parties’ separation is not disputed. On January 30, 2007, Sarah files a commitment proceeding against Joe. She attaches a copy of the previously mentioned Sheriff’s report. The two examining physicians fail to find Joe a danger to himself or other[s], i.e., not in need of involuntary commitment. On February 2, 2007, Joe seeks a restraining order against Sarah. Sarah counters on March 7, 2007, by filing for divorce. Joe answers and files a Counter-Complaint on March 27, 2007. On March 26, 2007, the parties agree to a mutual restraining order. On March 29, 2007, a temporary order is entered directing Joe to allow Sarah to retrieve her personal property. Guided by the applicable law and applying that law to the facts and having observed the witnesses, the Court is of the opinion that those urging an estoppel have failed to prove that estoppel.
While the facts exist which show a non-traditional marriage, Joe knew when the parties married that Sarah had, on a daily basis, the responsibilities of attending to her grandchildren. Moreover, Joe’s behavior was at times bizarre and the Court cannot say that Sarah willfully left and had the intention of permanently separating from the marital relationship. Mere absence from home, without more, does not show willfulness.
The court would note that Sarah’s consultation with Dr. Pinson on November 26, 2006, creates an inference that Sarah was trying to get Joe help. Moreover, seeking to have Joe committed, on January 30, 2007, rather than filing for divorce is suggestive to the Court that Sarah was trying to get Joe help and that the marriage was not over. Efforts by a spouse to get a spouse professional help should not be used against that spouse. Finally, the Court notes that Joe filed a Petition to restrain Sarah on February 2, 2007, which may well have caused Sarah to seek a divorce almost a month later. (Citations omitted).
¶12. The Court of Appeals listed the following facts it found in “conflict” with the chancellor’s findings:
(1) Estes becomes ill; (2) Young slowly reduces the amount of time spent with Estes; (3) Young attempts to involuntarily commit Estes; (4) Estes seeks a restraining order against Young upon release from the commitment proceedings; (5) Young files for divorce and restraining orders; (6) Estes counterfiles for divorce; and, (7) Estes takes his own life after receipt of notice for a final hearing on the divorce proceedings.
Estes v. Estes (Estes II), 2016 WL 1564404, *4 (Miss. Ct. App. Apr. 19, 2016). The Court of Appeals then stated the “most glaring evidence of Young’s abandonment of the marriage was her petition for divorce,” citing Tillman as primary legal support. Id.
¶13. However, the Tillman case actually used the language “secure a divorce.” Tillman, 403 So. 2d at 881. In Tillman, this Court reversed the trial court’s judgment, finding that “[a] thorough review of the record reveals that not only was an abandonment uncertain, but there just was not any substantial evidence to show a desertion or abandonment.” Tillman, 403 So. 2d at 882. In fact, Tillman holds that the requirement for clear proof of abandonment must be strictly construed:
Our Legislature has not seen fit to enact any legislation on this abandonment question. It is, therefore, obvious that the statute has to be strictly construed unless there is a clear desertion and abandonment that sets up the estoppel. In Walker, the surviving wife had engaged in a marriage ceremony with another man, and her deceased husband also had married another. There was a clear abandonment of the marriage relationship. Id. (citing Walker v. Matthews, 191 Miss. 489, 3 So. 2d 820 (1941)).
¶14. In Rowell v. Rowell, the Court also focused on the legal status change and determined that the trial court had erred when it had found that the widow’s adulterous relationship was grounds to show abandonment or desertion. Rowell v. Rowell, 251 Miss. 472, 170 So. 2d 267, 271-72 (1964). Relying on an Alabama case, the Court stated, “[a]s long as the marriage relation continued in law, the rights of the wife continued under the [descent and distribution] statute.” Id. at 270 (citing Nolan v. Doss, 133 Ala. 259, 261-62, 31 So. 969, 969-70 (1902)). The Rowell Court found that an adulterous relationship was not sufficient evidence of abandonment or desertion and that no evidence was presented that showed a bigamous marriage, which may have been grounds for abandonment. Id. at 271. The Court again focused on the legal change that occurs when someone remarries. Williams v. Johnson, 148 Miss. 634, 114 So. 733 (1927) (finding that the adulterous conduct was not at issue but only
whether a bigamous marriage resulted).
¶15. Following the renunciation of a will that fails to include the spouse, the will proponent may raise abandonment and desertion as estoppel to the renunciation. Rowell, 251 Miss. at 477-78, 170 So. 2d at 268. Mississippi Code Section 91-5-25 allows the surviving spouse automatically to renounce the will, thus the burden to show evidence of clear abandonment or desertion is on the aggrieved party. Miss. Code Ann. § 91-5-25 (Rev. 2013).
¶16. As this case is close factually and there was no legal change of marital status, we cannot say the chancellor was manifestly wrong in granting Sarah Young a child’s share of Joe Estes’s estate.
This decision illustrates the principle that, if the chancellor’s decision correctly applies the law, and her findings of fact are supported by substantial evidence in the record, the decision should be, and most often is, affirmed on appeal, no matter how close the question or how eyebrow-raising the outcome.
There is much useful law here on the law of renunciation and its defense. This is actually an issue that arises from time to time in chancery, and you would do well to be ready for it.
Decision-Making in Joint Legal Custody
June 26, 2017 § 4 Comments
Jessica Timmons had a baby by Jason Taylor, and the two filed a joint pleading to establish paternity and all of the attendant relief. They agreed that Jessica would have physical custody, and that she and Jason would share joint legal custody.
They later had a falling out because Jessica wanted their child to attend a particular private school, and Jason did not agree. Their dispute would up before a chancellor, who ruled that Jessica had the right to make the call, since she was the physical custodian. Jason appealed.
In In the Matter of C.T.; Taylor v. Timmons, handed down June 6, 2017, the COA affirmed. Judge Lee wrote for a unanimous court:
¶7. Taylor argues that the chancellor erred when he found that although Timmons and Taylor shared joint legal custody, Timmons—as the custodial parent—was entitled to make decisions regarding where the child would attend school. At trial, the chancellor noted that Taylor felt strongly that the child should attend a certain private school. The chancellor also noted that Taylor was given input to voice his position, but that the ultimate decision in regard to where the child would attend school belonged to Timmons as the custodial parent. For support, Taylor cites Mississippi Code Annotated section 93-5-24(5)(e) (Rev. 2013), which states in relevant part:
“joint legal custody” means that the parents or parties share the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.
¶8. Taylor is correct that joint legal custody imparts shared decision-making rights relating to the child’s education. However, Taylor fails to note that section 93-5-24(5)(e) also provides that in cases of joint physical and legal custody, “unless allocated, apportioned or decreed, the parents or parties shall confer with one another in the exercise of decision making rights, responsibilities and authority.” (Emphasis added). Here, the chancellor allocated to Timmons the “discretion to make a determination about where the child goes to school.”
¶9. “Mississippi statutory law and jurisprudence recognize that the chancellor may indeed allocate decision-making and duties to each parent sharing joint legal custody.” Carpenter v. Lyles, 120 So. 3d 1031, 1037 (¶22) (Miss. Ct. App. 2013) (citing Goudelock v. Goudelock, 104 So. 3d 158, 165 (¶¶29-30) (Miss. Ct. App. 2012); Purviance v. Burgess, 980 So. 2d 308, 312-13 (¶¶18-20) (Miss. Ct. App. 2007)). “In cases where decision[-]making was apportioned, courts have determined that joint legal custody, including the communication required in support of such relationship, requires no moment-to-moment input or veto power over every large and small decision on child rearing . . . .” Id. Mississippi caselaw also recognizes that “the custodial parent may determine the child’s upbringing, including his education and health and dental care. Such discretion is inherent in custody. It is vested in the custodial [parent.]” Clements v. Young, 481 So. 2d 263, 267 (Miss. 1985); see also Ayers v. Ayers, 734 So. 2d 213, 217 (¶20) (Miss. Ct. App. 1999).
¶10. Here, the chancellor was well within his discretion to allocate this decision-making to one parent. Further, our caselaw favors the custodial parent having the discretion for such a decision. Accordingly, we do not find that the chancellor abused his discretion in allocating to Timmons the decision-making authority in regard to where the child attends school. Therefore, this issue is without merit.
No quarrel with that from me.
BUT … what to do when the parties share both legal and physical custody? In this district we require that one parent or the other have final decision-making authority. You can read a post about it here, if you care to.
When you are counselling your client about custody issues, it’s a good idea to acquaint her or him with the concept that, although all is hunky-dory between them today, things can change, and what seems so easy and agreeable now may be infested with considerable volatility and hostility later. It’s better to make the lines of authority clear now, while negotiations are under way, than to have to fight through months and even years of litigation and attorney’s fees later. No, it’s not a simple issue to negotiate through, but it’s well worth the trouble addressing it up front. If you take the easy way out and sell your client on a joint-legal and -physical arrangement that later winds up biting him or her, it’s going to leave a bitter taste in that client’s mouth.
Reprise: Making a Record
June 23, 2017 § Leave a comment
Reprise replays posts from the past that you may find useful today.
In Evidence
March 30, 2015 § Leave a comment
Have you ever stopped to ask yourself what the phrase “in evidence” means? We toss it around all the time. “Is that in evidence?” “Your honor, I object because that document is not in evidence.”
The phrase simply means that the judge or the jury can look at the document or hear the testimony, and can consider it in reaching a decision.
The meaning is simple, but the ramifications can be profound.
- If something is not in evidence, it is not part of the record. If it is not part of the record, the judge can not consider it.
- If you offered something into evidence and were denied, you must make the proffered evidence part of the record. If it was oral testimony, you must make an offer of proof (MRE 103(a)(2)). You can do this by requesting to make an “offer of proof,” or a “proffer.” The judge will then allow you to state on the record what the testimony would have been, or will allow you to do it in question-and-answer form (MRE 103(b)). If the ruling was one denying entry of a document in evidence, then you must ask that the document be marked for identification only, which request will always be granted. Remember that neither a proffer nor a document marked solely for identification may be considered by the judge in ruling on the merits; however, they are part of the record on appeal.
- Pleadings are not evidence. Just because you pled something does not mean it is proven.
- Never fail to put on proof based on your assumption that the judge will connect the dots and draw the conclusion favorable to your client. The judge might not. Or the judge might, but there will be inadequate evidence in the record to support the judge’s conclusions, which is the formula for reversal on appeal.
Make sure that every element or factor that you need to prove is supported by proof in evidence. A graphic illustrating this vital concept is here.
Social Security and its Impact on Alimony
June 22, 2017 § 1 Comment
Susan and Thomas Leon Harris were divorced from each other in 2011. Their property settlement agreement provided that Leon would pay Susan $2,755 monthly in periodic alimony. The only contingency recited in the agreement was that the alimony would cease at Susan’s remarriage or death.
At some point after the divorce, Susan filed for and began receiving Social Security retirement benefits in the amount of $1,035 per month. Susan’s benefit was based on Leon’s earnings record and was described as “derivative” of his benefit.
After Susan filed a pleading asking the court to review part of the agreement, Leon counterclaimed to reduce or terminate the alimony because Susan had begin drawing benefits off of his earnings record. Following a hearing, the chancellor ordered that Leon should pay Susan only $1,720 per month in alimony, since he was already receiving $1,035 based on his earnings record. Susan appealed.
In Harris v. Harris, decided May 16, 2017, the COA affirmed. Since the opinion addresses two issues of interest to chancery practitioners, I am including Judge Irving’s entire analysis:
¶6. Susan asserts that the chancellor erred in modifying the Agreement before requiring Leon to show a material change in circumstances. Susan asserts that the Agreement is a binding contract that is devoid of fraud, unconscionability, or any other factors which would render it an invalid contract; thus, the chancellor erred by disturbing the Agreement’s terms. She cites Peebles, in which this Court held that a property-settlement agreement—like any other contract—is “an agreement made between the parties [and] should ordinarily be enforced, and the court should take a dim view of efforts to modify or reform the parties’ settlement agreement.” Peebles v. Peebles, 153 So. 3d 728, 732 (¶17) (Miss. Ct. App. 2014) (quoting McFarland v. McFarland, 105 So. 3d 1111, 1119 (¶23) (Miss. 2013)). Susan also cites Lestrade, in which this Court held that property-settlement agreements “entered into by divorcing parties and incorporated into the divorce decree are not subject to modification, except in limited situations.” Lestrade v. Lestrade, 49 So. 3d 639, 642 (¶10) (Miss. Ct. App. 2010).
¶7. In support of her argument that the chancellor erred when he granted Leon credit for the Social Security benefits that she was receiving without first requiring Leon to show that a material change in circumstances had occurred since entering into the Agreement, Susan cites this Court’s decision in Cockrell, which provides:
A payor spouse’s alimony obligation may be modified or even terminated if the spouse is able to show a material change of circumstances has occurred since the original divorce decree. West v. West, 891 So. 2d 203, 212 (¶21) (Miss. 2004) (citation omitted). However, “the material change must be one that was not reasonably anticipated at the time of the original decree.” Clower v. Clower, 988 So. 2d 441, 444 (¶7) (Miss. Ct. App. 2008) (citing Holcombe v. Holcombe, 813 So. 2d 700, 703 (¶11) (Miss. 2002)). A material change in the income and expenses of both parties should be considered in determining any modification of periodic alimony. Austin v. Austin, 766 So. 2d 86, 90
(¶19) (Miss. Ct. App. 2000) (citing Armstrong [v. Armstrong], 618 So. 2d [1278,] 1280 [(Miss. 1993)]).
Cockrell v. Cockrell, 139 So. 3d 766, 770 (¶12) (Miss. Ct. App. 2014). Susan contends that Leon cannot show a material change in circumstances, as his health status has not changed, and he is still working as a bank president like he was at the time of the divorce. Susan
argues that even if her receipt of Social Security benefits constitutes a material change, Leon should have reasonably anticipated at the time of the divorce that she would begin collecting Social Security benefits in a few years, since Leon was sixty-one years old and Susan was sixty years old at that time. She also points out that at the time the two entered into the Agreement, Leon could have reasonably anticipated the need for a clause addressing Susan’s probable receipt of Social Security benefits in a few years.
¶8. In response, Leon submits that neither Peebles nor Lestrade is proper authority for this issue because both cases address modification of property division, not modification of alimony. Leon references this Court’s decision in Clower, which provides that “[p]eriodic alimony can be modified by increasing, decreasing, or terminating the award due to a material change in circumstances.” Clower, 988 So. 2d at 444 (¶7). Leon asserts that he was not required to show a material change in circumstances because he was not attempting to modify his alimony payment; rather, he maintains that he was only seeking clarification from the court as to how to make his alimony payment, because the Agreement is devoid of language specifying from which source those payments may be derived.
¶9. Leon cites Spalding v. Spalding, 691 So. 2d 435, 439 (Miss. 1997), in support of his argument that the chancellor was correct in finding that he should be credited for Susan’s receipt of the Social Security benefits derived from his work record. The facts of Spalding are similar to those in the matter at hand. In Spalding, the appellant insisted that “the decision of the chancellor to credit derivative Social Security benefits against alimony represented a downward modification of the alimony granted to [the appellant],” and asserted that “[the appellee] failed to meet his burden of proof regarding a material change in circumstances.” Id. The chancellor, in considering whether derivative Social Security benefits could be credited against alimony, relied on the Mississippi Supreme Court’s decision in Mooneyham v. Mooneyham, 420 So. 2d 1072, 1073-74 (Miss. 1982), wherein the court held that Social Security payments derivative from the child-support payor should be credited against the payor’s child-support obligation. Spalding, 691 So. 2d at 438 (citing Mooneyham, 420 So. 2d at 1073-74). The Mississippi Supreme Court in Spalding affirmed the chancellor’s application of Mooneyham, finding that, in light of Mooneyham’s holding that “Social Security payments derivative from the child[-]support payor should be credited against the child support,” it could not “fathom any valid reason or reasonable logic” as to why the rule of law would be any different with respect to periodic alimony rather than child support. Spalding, 691 So. 2d at 439 (citations omitted).
¶10. We agree with Leon that Spalding is dispositive of the issue presented. Therefore, we affirm the decision of the chancellor. The Agreement between Leon and Susan did not specify or qualify the source of income for payment of the alimony obligation. It simply required that Leon pay the amount to Susan. Crediting Social Security payments derivative from Leon against his alimony obligation, as set forth in the Agreement, is not a breach of the terms of that Agreement. As Leon points out, Susan is receiving the same amount of alimony that she is entitled to under the Agreement, and she would not be receiving the Social Security payments unhinged from Leon’s Social Security earnings record. Thus, we find that the chancellor did not abuse his discretion in failing to require Leon to show a material change in circumstances because Leon’s obligation to pay alimony in the amount set forth in the Agreement remains the same.
I agree that Spalding is dispositive for the reasons stated.
I wonder, though, at the statement in ¶8 that Leon argued that he “was not attempting to modify his alimony payment; rather, he maintains that he was only seeking clarification from the court as to how to make his alimony payment, because the Agreement is devoid of language specifying from which source those payments may be derived.” That does not seem to square with the very first sentence of Judge Irving’s opinion that “Thomas L. Harris (Leon) — alleging that a material change in circumstances had occurred since the judgment of divorce from his former spouse, Susan Harris — filed a complaint …” That sounds like modification language, not clarification language.
At any rate, I think both the chancellor and the COA were on the right track in this case. Spalding controls.
Pointer: It seems that older couples are getting divorced at a greater frequency. You would do well to explore the effect Social Security will have on the parties’ post-divorce standard of living. If Susan wants her retirement benefit excluded or to allow only partial credit, the agreement should say so.
The Better Chancery Practice Blog 