Anderson v. Anderson, 94-CA-00870-SCT

• Decision Date: 10 April 1997
• Docket Number: No. 94-CA-00870-SCT,94-CA-00870-SCT
• Citation: 692 So.2d 65
• Parties: Susan ANDERSON v. John ANDERSON, Sr.
• Court: Mississippi Supreme Court

Page 65

692 So.2d 65

Susan ANDERSON v. John ANDERSON, Sr.

No. 94-CA-00870-SCT.

Supreme Court of Mississippi.

April 10, 1997.

William M. Bost, Jr., Vicksburg, for appellant.

Samuel D. Habeeb, J. Mack Varner, Varner Parker Sessums & Underwood, Vicksburg, for appellee.

Before SULLIVAN, P.J., and McRAE and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice:

STATEMENT OF THE CASE

This case comes before this Court from a modification of Susan Long Anderson and John Anderson's divorce decree to eliminate the payment of alimony and to reduce the payment of child support. This case was tried by the chancellor on John Anderson's motion to modify and reduce child support and eliminate alimony. John asserted that his income had decreased to the point that he could not continue to pay $1000 per month as child support and that because of Susan's post-divorce misconduct, he should be relieved of paying alimony. Susan admitted that she resides with a man but claims there was no evidence to indicate that she either received support from him or that she contributed to his support other than letting him share her home. She contended that there The chancellor modified the divorce decree by reducing the child support to $800 per month and eliminating the alimony payments. Aggrieved by the chancellor's decision, Susan appeals to this Court raising the following issues:

was insufficient change in circumstances to justify elimination of alimony and that to terminate alimony solely because she lived with a man to whom she was not married did not, of itself, justify the termination of support.

I. THE LOWER COURT ERRED IN TERMINATING THE ALIMONY PAYMENTS BECAUSE THE CHANCELLOR APPLIED AN ERRONEOUS LEGAL STANDARD AND THE PROOF DID NOT SUPPORT THE HUSBAND'S CLAIM OF MATERIAL CHANGE IN CIRCUMSTANCES THAT WOULD JUSTIFY THE ELIMINATION OF ALIMONY.

II. THE LOWER COURT ERRED IN REDUCING CHILD SUPPORT PAYABLE BY $200 PER MONTH.

III. THE LOWER COURT ERRED IN NOT AWARDING THE FORMER WIFE ATTORNEY'S FEES.

STATEMENT OF FACTS

Susan Long Anderson and John Anderson were divorced by decree dated April 10, 1991. They have two children of their marriage, John, Jr. (age 20) and Kyle (age 15). John has physical custody of John, Jr., who attends Florida State University, and Susan has physical custody of Kyle. John pays for John, Jr.'s tuition, room, board, and expenses at Florida State University.

John was ordered to pay $100,000 as a property settlement in the original divorce decree in this action. Forty thousand dollars of the property settlement was to be paid at the time of the divorce, and the balance of the payments to be paid over the next ten years. He also was to pay $37,655 in lump sum alimony, in yearly installments of $3,765.50 per year. John also deeded the marital home to Susan at the time of the divorce decree, which is located in Tallahassee, Florida.

Susan, at the time of the modification trial, was not employed. She had not been employed since the divorce. John had agreed to pay $1000 per month as periodic alimony "until wife dies or remarries." John suspended the payment of alimony from October, 1993 through January, 1994 and paid $500 to Susan in February and March, 1994. Shortly before the trial for modification, John paid Susan $5000 to catch up the alimony arrearage.

Susan admitted in requests for admissions that John Seward moved into her home in Orange Park, Florida, on April 15, 1992. Seward has been living continuously with Susan since April of 1992. Susan and Seward have taken trips together. Susan and Seward have taken several trips to Tallahassee; Susan's home in Orange Park is about 175 miles from Tallahassee. She and Seward would go almost every week staying a few days during the week and on week-ends for a period of about six months.

At the time Seward moved in with Susan in April of 1992, he had been working a forty hour week for the railroad. He quit working shortly thereafter because of an injury and has not worked since. He only started receiving disability checks for the injury in the amount of $1500 one month prior to the trial for modification. However, he had received income of $600 per month for sick leave benefits since April of 1992.

Susan claims that Seward does not contribute to her support in any way, and she does not contribute to his support in any way. Susan paid the house note and utility bills for the home in which she and Seward were living. She paid all of the expenses, and Seward did not pay her any rent. Seward would buy his groceries from time to time. He receives his mail at Susan's home. Seward and Susan exchange Christmas and birthday presents. Susan and Seward share the same bedroom and have sexual relations and have done so since they began living together in April of 1992.

Although Seward did not contribute to Susan's support, he provided labor to make improvements to the house in Tallahassee. However, he is "occupationally disabled," not Susan owns Florida tax certificates valued at $20,000, on which she paid is 18 percent. Depending on how she is paid, that could be as high as $300 per month. Susan stated that based on how she was paid in the past two years she would receive closer to $150 per month. Susan had rented the house in Tallahassee at one time for between $375 and $440.

permanently disabled. Seward was formally a conductor for a railroad, and Susan claimed that he is occupationally disabled such that he cannot connect trains.

The persons living in Susan's home, at the time of the trial, included Seward, Kyle (younger son of John and Susan), and Susan's twenty-four year old daughter from a previous marriage who works for a temporary agency and is not regularly employed. No one in the household contributes to its financial maintenance. Since March of 1994, Seward had done no carpentry work for Susan. Susan pays the house note, utilities, and all other expenses listed on her financial statement.

John Anderson lost his job at Cooper Lighting shortly after the divorce, and he had to accept employment with Continental Electric in Birmingham, Alabama, with a reduction in income of $15,000 per year. In October of 1993, because of financial problems at Continental Electric, John was told that he would have to take another reduction in salary down to $4000 a month. In February of 1994, his salary was increased by $500 per month. There is no anticipation of an increase in income back to the level of salary he was making at the time of the original divorce.

John showed an approximate monthly gross income of $7,589 with total adjustments to his gross income as $4,291. This leaves a net of $3, 297 per month. John has a total of $4,799 per month of expenses. The difference in the amount of money that John was making for Cooper in 1991 and what he is making with Continental Electric is a $29,000 per year change.

He also had a loan to what was then First National Bank of Vicksburg for approximately $300,000 to purchase tax certificates. The tax certificates were bought both in John's name and the First National Bank of Vicksburg. When the check would arrive, John would endorse it and send it to the bank. At the time of the trial for modification, there was $115,000 outstanding on the loan.

Susan has no other source of income other than what she receives from John each month. Susan put some of the $40,000 she received from John at the time of the divorce into tax certificates and some into the restoration of the rental house in Tallahassee. Susan went to a hairdresser school and went to a barber stylist school, and applied for jobs as a barber-stylist. She claims that she suffers from a form of rheumatoid arthritis and has been unable to obtain employment because of this. However, she was not under any kind of medical disability or receiving disability payments at the time of the trial.

Finding a material change in circumstances since the final divorce proceeding, the chancellor allowed the reduction of child support from $1000 per month to $800 per month. He also terminated the payment of periodic alimony of $1000 per month. Aggrieved of the chancellor's finding, Susan has perfected her appeal to this Court.

DISCUSSION OF THE ISSUES

I. THE LOWER COURT ERRED IN TERMINATING THE ALIMONY PAYMENTS BECAUSE THE CHANCELLOR APPLIED AN ERRONEOUS LEGAL STANDARD AND THE PROOF DID NOT SUPPORT THE HUSBAND'S CLAIM OF MATERIAL CHANGE IN CIRCUMSTANCES THAT WOULD JUSTIFY THE ELIMINATION OF ALIMONY.

This case came before the chancellor prior to this Court's decisions in Hammonds v. Hammonds, 641 So.2d 1211 (Miss.1994), and Ellis v. Ellis, 651 So.2d 1068 (Miss.1995). Therefore, the chancellor looked to this Court's earlier decisions for guidance. The chancellor terminated alimony based on Susan Anderson's cohabiting with a third party. The decision reached by the chancellor followed the past decisions by this Court in Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982) Susan Anderson complains to this Court that the chancellor applied an erroneous legal standard because the he did not apply the rule of law decided by this Court in Hammonds. This Court's decision in Hammonds v. Hammonds, 641 So.2d 1211 (Miss.1994), was rendered on August 18, 1994. ¹ The chancellor followed the well established line of cases dealing with modification of alimony when he rendered his decision on August 4, 1994.

; McHann v. McHann, 383 So.2d 823 (Miss.1980); McRae v. McRae, 381 So.2d 1052 (Miss.1980).

The standard of review in determining the weight of the evidence has been well established by this Court, and it will not "disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Ellis, 651 So.2d at 1071; Crow v. Crow, 622 So.2d 1226 (Miss.1993); Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990).

In Ales v. Ales, 650 So.2d 482 (Miss.1995), this Court reiterated its stance on the retroactive application of new...