The Effect of Harris v. Harris
August 21, 2019 § 1 Comment
Back in February, 2018, I posted about the MSSC’s ruling in Harris v. Harris, which overruled Spalding v. Spalding, regarding the impact of Social Security (SS) retirement benefits on alimony. Spalding had held that the alimony-paying party is entitled to a credit against alimony in the amount of the other party’s receipt of SS benefits derived from the alimony-paying party’s work record. Harris held that receipt of SS does not automatically trigger modification. Here is a link to my post.
In Alford v. Alford, a July 23, 2019, COA case about which I posted yesterday, Judge Greenlee wrote a specially concurring opinion raising some concerns about Harris and how it will be applied:
¶37. I concur with the majority. However, because I am concerned about the effect Harris v. Harris, 241 So. 3d 622 (Miss. 2018), may have in this case and other cases, I specially concur.
¶38. Our supreme court’s decision in Harris has the potential to greatly impact those in our population who are aging and under a court-ordered duty of support. For our citizens who earn their wages through compensation from work for others, there comes a time that many should at least consider retirement, if retirement is not required or decided for them. The litigants in this case, if not retired, are rapidly approaching retirement.
¶39. In such cases, the problem chancellors face is in reliably predicting the impact of retirement upon the earnings of the parties. Harris should not mean that once retirement occurs to one or both of the parties (although foreseeable at the time of the initial support order) that the parties are foreclosed from asking the court for a modification based on a material and substantial change in circumstances. See Plummer v. Plummer, 235 So. 3d 195, 199 (¶14) (Miss. Ct. App. 2017) (modification of alimony requires proof of a material and substantial change in circumstances since the date of the prior judgment). If the application of our law is to foreclose a litigant’s request for a modification of periodic alimony upon that party’s retirement, such could mean that in order to meet the amount required, that party must not retire. If that is the case, has our law not imposed a servitude upon a citizen until death? Retirement is a substantial change to an individual’s circumstances, and Harris should not be allowed to hinder such a change from being brought before the chancellor for consideration.
This is a conundrum I have never seen directly addressed by our appellate courts: retirement is reasonably foreseeable and even necessary at some age. Retirement almost always results in a downward shift in the retiree’s income. How does that foreseeability affect the right to request modification? I think Judge Greenlee makes a valid point.
No 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.
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).
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.
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