Austin v. Austin, No. 1999-CA-01070-COA.

• Decision Date: 15 August 2000
• Docket Number: No. 1999-CA-01070-COA.
• Citation: 766 So.2d 86
• Parties: William D. AUSTIN, Appellant, v. Betty H. AUSTIN, Appellee.
• Court: Mississippi Court of Appeals

766 So.2d 86

William D. AUSTIN, Appellant, v. Betty H. AUSTIN, Appellee.

No. 1999-CA-01070-COA.

Court of Appeals of Mississippi.

August 15, 2000.

Willard L. McIlwain, Jr., Greenville, Attorney for Appellant.

William R. Striebeck, Greenville, Attorney for Appellee.

BEFORE McMILLIN, C.J., LEE, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. William D. Austin appeals a decree ordering that he increase his periodic alimony obligation, pay lump sum alimony of $10,000 and that he pay half of the attorney fees incurred by his former wife, Betty H. Austin. This decree was the result of alimony modification proceedings which William initiated. William raises the following assignments of error on appeal

I. WHETHER THE LOWER COURT ERRED BY AWARDING LUMP SUM ALIMONY.

II. WHETHER THE LOWER COURT ERRED IN AWARDING ATTORNEY FEES TO BETTY H. AUSTIN.

III. WHETHER THE LOWER COURT ERRED IN FINDING THAT THERE HAD BEEN A MATERIAL CHANGE IN CIRCUMSTANCES TO WARRANT A MODIFICATION OF PERIODIC ALIMONY.

¶ 2. Finding error in the first assignment and no error in the second and third assignments, we affirm in part and reverse and remand in part.

FACTS

¶ 3. William and Betty Austin were divorced in 1975. On June 15, 1998, William filed a motion to modify the final decree of divorce, seeking to have his alimony obligations lowered or discontinued as a result of his retirement from employment as a doctor. Betty counterclaimed for an increase in alimony due to the significant increase in William's personal estate value since the divorce. She also requested an award of attorney fees and expenses.

¶ 4. Finding that material circumstances had changed as well as a substantial disparity between the party's standard of living, the trial court ordered the alimony benefits to be increased from $500 per month to $1,000 per month and ordered William to pay half of the attorney fees and expenses that Betty had incurred. The trial court further ordered a lump sum payment of alimony in the amount of $10,000 so that Betty could pay off a debt owed on her car.

¶ 5. William argues that the trial court erred in awarding partial attorney fees to Betty when the evidence showed that she had in excess of $30,000 in the bank from which she could pay her attorney. He further argues that the trial court erred in increasing his alimony obligations in light of the fact that he has retired from employment and has no earned income. Finally, he argues that the trial court improperly attempted to rewrite the divorce decree, which was entered some twenty-four years ago, by awarding lump sum alimony.

¶ 6. In response, Betty argues that the trial court acted within its discretion in awarding attorney fees and was correct in increasing the alimony obligations of William because the evidence showed that a material change in circumstances had occurred. In addition she argues that the trial court was correct in awarding her the $10,000 even though it was for the wrong reason. She asserts that since the right result was reached, even though for the wrong reason, the trial court's judgment should be affirmed.

STANDARD OF REVIEW

¶ 7. In cases involving an alimony dispute, this Court will not overrule a lower court's decision "unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). See also Ferguson v. Ferguson, 639 So.2d 921, 921 (Miss.1994)

; Crowe v. Crowe, 641 So.2d 1100, 1102 (Miss.1994); Tilley v. Tilley, 610 So.2d 348, 351 (Miss. 1992); Faries v. Faries, 607 So.2d 1204, 1208 (Miss.1992); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989). Great deference is given to the chancellor because he is in a better position to determine what action would be fair and equitable in the situation than the appeals court. Tilley, 610 So.2d at 351. See also Holleman v. Holleman, 527 So.2d 90, 94 (Miss.1988); Wood v. Wood, 495 So.2d 503 (Miss.1986).

¶ 8. Furthermore, the Mississippi Supreme Court has firmly established that:

As with alimony, the determination of attorney's fees is largely in the discretion of the chancellor. Smith v. Smith, 614 So.2d 394, 398 (Miss.1993). This Court is "reluctant to disturb a chancellor's discretionary determination whether or not to award attorney's fees and of the amount of [any] award." Ferguson v. Ferguson, 639 So.2d 921, 937 (Miss. 1994) (quoting Geiger v. Geiger, 530 So.2d 185, 187 (Miss.1988)).

Anderson v. Anderson, 692 So.2d 65, 73 (Miss.1997).

ANALYSIS

I. WHETHER THE LOWER COURT ERRED BY AWARDING LUMP SUM ALIMONY.

¶ 9. William argues that the $10,000 lump sum alimony reward was an attempt to rewrite the divorce decree entered twenty-four years ago, pointing out that lump sum alimony is only available at the time of the divorce and cannot be modified on a later date. Betty argues that the lump sum alimony was correctly granted, although for the wrong reason. She asserts that while the award was mistakenly labeled a "lump sum" award, the award produced the equitable result, equaling the amount of the increased periodic alimony from the date of the counter-claim to the date of the trial.

¶ 10. Lump sum alimony is not a form of "continuing support, but rather a property transfer which is vested in the recipient spouse at the time said alimony is awarded." McDonald v. McDonald, 683 So.2d 929, 931 (Miss.1996), (citing Jenkins v. Jenkins, 278 So.2d 446 (Miss.1973)). Furthermore, lump sum alimony "is a final settlement between the husband and wife and may not be changed or modified by either party, absent fraud." McDonald, 683 So.2d at 931 (citing Wray v. Wray, 394 So.2d 1341 (Miss.1981)). See also Bowe v. Bowe, 557 So.2d 793, 794 (Miss.1990)

; Butler v. Hinson, 386 So.2d 716 (Miss.1980). "The fact that payments of lump sum alimony are often paid in installments may give said payments a superficial similarity to payments of periodic alimony, but said fact does not change the vested, nonmodifiable nature thereof." McDonald, 683 So.2d at 931.

¶ 11. It has been clearly established that lump sum alimony is a final settlement at the time of the divorce which is not subject to modification. In the case sub judice, although Betty asks this Court to reconsider and restate the award, the chancellor erroneously awarded lump sum alimony. We reverse and render on this issue.

II. WHETHER THE LOWER COURT ERRED IN AWARDING ATTORNEY FEES TO BETTY H. AUSTIN.

¶ 12. William argues that the order to pay half of the attorney fees incurred by Betty (totaling $1,787.94) was an abuse of discretion by the lower court because Betty did not show that she was unable to pay the fees. Betty argues that the award of half of the attorney fees was correctly ordered due to her limited financial means.

¶ 13. At the time of the proceedings Betty reported a monthly income of $1,631.50. This income comprised of the following resources: $429.50, which she drew from her retirement account, $702.00, from her Social Security check, and $500 periodic alimony. The $30,000 that William claims Betty has access to is made up of $14,800 in her retirement savings plan, $12,000 in her checking account and $11,000 in her savings account. The checking account balance was obtained by Betty from a cancer policy which continually reimburses her for her cancer medicines and chemotherapy treatments. The savings account balance is money Betty has set aside to finance her funeral and burial.

¶ 14. Alternatively, while William has recently retired, the evidence provided establish that his personal worth is well in excess of $1,000,000. William has ownership in several properties and business ventures and his IRA account alone has a value of $827,537.

¶ 15. It is a general rule of law that where "a party is financially able to pay her attorney, an award of attorney's fees is not appropriate." Smith, 614 So.2d at 398 (citing Martin v. Martin, 566 So.2d 704, 707 (Miss.1990)). However, if the evidence presented shows an inability to pay the fees and a disparity in the relative financial positions of the parties, no error will be found. Powers v. Powers, 568 So.2d 255, 257 (Miss.1990). See also Creekmore v. Creekmore, 651 So.2d 513 (Miss.1995)

; Dunn v. Dunn, 609 So.2d 1277, 1287 (Miss. 1992).

¶ 16. In addressing this issue, the chancery court correctly analyzed Betty's financial situation to be one that is unable to support the litigation process at hand. Finding no error in the lower court's judgment, we hold that this assignment of error is without merit.

III. WHETHER THE LOWER COURT ERRED IN FINDING THAT THERE HAD BEEN A MATERIAL CHANGE IN CIRCUMSTANCES TO WARRANT A MODIFICATION OF PERIODIC ALIMONY?

¶ 17. Since the divorce in 1975, William enjoyed a successful medical practice (ear, nose and throat) and established a large estate made up of financial, business and property investments. William retired in 1998. For the first several years after the divorce, Betty was a stay-at-home mom, raising the four children from the marriage. After the children had grown, she worked as a nurse. In 1992, Betty was diagnosed with breast cancer. Despite surgical removal of her breast, this cancer has reoccurred, and Betty is presently undergoing monthly IV chemotherapy. Her medical condition not only forced Betty to retire, but caused her financial needs to increase. Betty presented expert testimony involving economic inflation which established that the $500 per month alimony she was awarded in 1975 has a present day value of $162. This testimony went on to show that in order to have the same monetary value as the $500 per month alimony had in 1975, the alimony would have to be raised to $1,562.50 per month.

¶ 18. In consideration of these material changes of the circumstances, the lower court increased the periodic alimony payments from $500 per month to $1,000 per month. William argues that the material change in circumstances, mainly his retirement, should have resulted in a reduction or...