Bonderer v. Robinson, 56541

• Decision Date: 15 October 1986
• Docket Number: No. 56541,56541
• Citation: 502 So.2d 314
• Parties: David Warren BONDERER v. Helen Dian ROBINSON.
• Court: Mississippi Supreme Court

Page 314

502 So.2d 314

David Warren BONDERER v. Helen Dian ROBINSON.

No. 56541.

Supreme Court of Mississippi.

Oct. 15, 1986.

Rehearing Denied Feb. 25, 1987.

Margaret P. Ellis, C.R. McRae, Pascagoula, for appellant.

Karl Wiesenburg, Pascagoula, for appellee.

Before HAWKINS, P.J., and DAN M. LEE and SULLIVAN, JJ.

DAN M. LEE, Justice, for the Court:

This case presents the familiar question of whether the chancellor below erred in denying modification of the ex-husband's alimony obligations.

David Warren Bonderer and Helen Dian Robinson were divorced in the Chancery Court of Jackson County by decree dated March 21, 1980 on the grounds of habitual cruel and inhuman treatment. This decree provided for custody of the two children and use and possession of the family residence as well as child support and alimony. The decree was affirmed by this Court on appeal without an opinion. Bonderer v. Bonderer, 395 So.2d 969 (Miss.1981).

Upon petition and cross-petition the chancellor on January 5, 1983 modified visitation and use and possession provisions of the original decree, also requiring Ms. Robinson to begin paying one-half of the mortgage payments and property taxes and insurance. On April 18, 1983, David Warren Bonderer petitioned for relief from his alimony obligations alleging that Ms. Robinson's involvement in illicit relationships amounted to a material and substantial change in circumstances. Bonderer amended his petition March 30, 1984, again seeking termination of alimony and also seeking to be free of all responsibility for mortgage payments, property taxes and insurance if the court would not order the residence to be put on the market for sale. Helen Dian Robinson answered and counterclaimed seeking modification of child support and exclusive use and possession of the former family residence. After a hearing, the court, by order dated November 2, 1984, denied Bonderer's requested relief from alimony obligations. The court terminated Ms. Robinson's exclusive use of the residence, and increased child support on a temporary basis until reconsideration in the April, 1985 term of court. Finally, the court required the parties to submit a proposal for a rehabilitative program to correct the deteriorated nature of the relationship between the parties and its effect on the children. The court decreed that a guardian ad litem would be appointed if the parties failed to submit the plan. From this decree, Bonderer appeals assigning the following errors:

I.

ALTHOUGH THE COURT FOUND THAT THE APPELLEE'S CONDUCT CONSTITUTED A MATERIAL CHANGE IN CIRCUMSTANCES, THE COURT ERRED IN FINDING THAT THE ALIMONY WAS LUMP SUM AND COULD NOT BE TERMINATED.

II.

THE COURT ERRED IN NOT GRANTING APPELLANT'S ATTORNEY'S FEES AND COSTS.

We hold that the chancellor erred in finding that the alimony was lump sum. However, since we find that the chancellor reached the correct result in attempting to end the seemingly perpetual litigation between these parties, we affirm.

FACTS

The facts weighing on this appeal are relatively simple. The decree granting the couple's divorce provided in part:

ORDERED, ADJUDGED AND DECREED that the defendant pay to the complainant the sum of $600.00 per month for three years; that the defendant pay to the complainant for the next succeeding three years thereafter the sum of $400.00 per month; that the defendant pay to the complainant for the next succeeding three years thereafter the sum of $300.00 per month; and for the final three year period next succeeding the sum of $100.00 per month.

Much of the testimony at the two-day hearing related to Ms. Robinson's sexual conduct. Suffice it to say there was ample uncontradicted testimony to support the chancellor's finding that

Mrs. Robinson has engaged in sexual relations with two or three men since the last hearing and such has occurred with regularity for an extended period of time with one of the men.

However, the chancellor was of the opinion that the alimony awarded in the original decree was lump sum, rather than periodic, and therefore not subject to modification. There was additional testimony concerning child support and testimony bearing on Ms. Robinson's continued exclusive use of the former family residence. Bonderer here does not question that part of the chancellor's decree increasing, at least temporarily, monthly child support payments. The chancellor noted that the purpose of awarding Ms. Robinson exclusive use and possession of the family residence had been accomplished. Ms. Robinson had completed training as contemplated by the original decree and at the time of the hearing she was employed as a school teacher. In terminating her exclusive use and possession, the chancellor ordered that either party could seek partition of the property after November 1, 1984 if the parties could not agree on disposal of the property. The chancellor relieved Bonderer from any responsibility for mortgage and insurance payments and taxes.

There was evidence introduced to attempt to show that the parties were using the children to get at each other, and this perhaps led the chancellor to order remedial measures to correct what the chancellor saw as a deteriorated relationship.

LAW

The chancellor erred by holding that the alimony was lump sum or in gross. In Sharplin v. Sharplin, 465 So.2d 1072, 1073 (Miss.1985), we stated that "unless the decree by clear and express language imports lump sum alimony, or alimony in gross" the award should be construed as periodic. (citing Wray v. Wray, 394 So.2d 1341, 1345 (Miss.1981) ). The alimony provision here was not clear and did not expressly import lump sum alimony although the parties seemingly treated it as such.

This does not end the discussion, however. We stated in Owen v. Gerity, 422 So.2d 284 (Miss.1982) that merely proving that an alimony recipient engaged...