Boykin v. Boykin, 07-CA-59612

• Decision Date: 27 June 1990
• Docket Number: No. 07-CA-59612,07-CA-59612
• Citation: 565 So.2d 1109
• Parties: Henry Wesley BOYKIN v. Betty R. BOYKIN.
• Court: Mississippi Supreme Court

Page 1109

565 So.2d 1109

Henry Wesley BOYKIN v. Betty R. BOYKIN.

No. 07-CA-59612.

Supreme Court of Mississippi.

June 27, 1990.

Jerry Campbell, Vicksburg, for appellant.

Mark W. Prewitt, Vicksburg, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and PITTMAN, JJ.

PRATHER, Justice, for the Court:

I. INTRODUCTION

Henry Wesley Boykin contends that the chancellor's award of alimony was "grossly excessive" and constitutes an abuse of discretion. This Court rejects Henry's contention, affirms the judgment in part, and remands in part for purposes of clarification.

A. Factual Background

Henry and Betty Boykin were married on February 14, 1975. Almost thirteen years later, on December 5, 1987, Betty filed for divorce. No children were born of the marriage.

A lengthy hearing was held, after which the chancellor granted the divorce on the undisputed grounds of adultery and habitual cruel and inhuman treatment.

Pursuant to the divorce decree, Betty was awarded: (1) monthly alimony of $700.00 until July, 2001, at which time the sum will be reduced to $550.00; (2) the home, furnishings, and 1986 Mercury automobile; (3) a lien on one-third of Henry's gross federal civil service retirement benefits; and (4) attorney's fees in the sum of $4,000.00. In addition, Betty was held responsible for: (1) payment of a $25,000.00 home mortgage; (2) a monthly car payment of $315.00; and (3) maintenance of the home's interior.

Henry was awarded all personal property that was in his immediate possession--including a 1987 pick-up truck, a restored '55 chevrolet, a "runabout" pleasure boat, a fourteen-foot fishing boat, a camper trailer, a 1976 bulldozer, a television, a videocassette recorder, and tools. In addition to his responsibilities delineated in the preceding paragraph, Henry must maintain the home exterior.

Henry appealed the terms of the divorce decree, and presents numerous issues for disposition.

B. The Issues

The issues presented by Henry have been paraphrased or consolidated for purposes of brevity and avoidance of undue repetition:

(1) Whether the amount and duration of the award of periodic alimony are excessive?

(2) Whether the award of the home and furnishings is excessive?

(3) Whether requiring Henry to maintain the home's exterior constitutes an abuse of discretion?

(4) Whether the award of a lien on one-third of Henry's retirement funds is "vague, misleading, and without basis?"

(5) Whether the award of $4,000.00 in attorney's fees is excessive?

Henry presented one other issue which is deemed moot. Henry asked: Whether requiring him to maintain the home's interior constitutes an abuse of discretion? The final decree requires Betty--not Henry--to maintain the interior; Henry must only maintain the exterior.

II. ANALYSIS

The analysis will consider the issues in the order in which they are listed in the preceding section.

A. Issue One

This subsection comprises two discussions regarding Henry's contention that the amount and duration of periodic alimony awarded are excessive.

1. The Amount

In support of his contention that the amount is excessive, Henry provides the following logic:

[Henry's] total expenses ... per year is [sic] $29,126.00, and the total income ... per year is $41,549.00. If you take his total expenses from his total income you are left with a balance of $12,413.00. Subtracting the ... award of ... $700.00 per month, [Henry] is left with a disposable income of $4,013.00. The take-home income of [Betty] is $10,400.00 per year. Her total expenses is [are] $13,956.00 per year. This leaves her with a negative difference of $3,556.00 per year. If you add in her alimony payments ... she is left with a disposable income of $5,000.00 per year.

... [Thus, Betty] has more disposable income than [Henry] ...

[And t]aking into consideration the award of the marital home ..., the furnishings ..., [and] the requirement that [Henry is] responsible for maintaining [the home's] exterior ..., the award of $700.00 per month ... is grossly excessive.

Basically, Betty counters that the chancellor's determination is supported by law and the facts contained in the record. This Court concurs with Betty's position.

In Brabham v. Brabham, factors which must be considered in determining alimony awards were delineated: (1) the parties' health, (2) the parties' income and earning capacity, (3) the parties' expenses vis-a-vis reasonable necessities, (4) the wife's free use of home, furnishings, and automobile, and (5) any other relevant facts and circumstances. 226 Miss. 165, 176-77, 84 So.2d 147, 153 (1955); see also McNally v McNally, 516 So.2d 499, 501 (Miss.1987); Skinner v. Skinner, 509 So.2d 867, 868 (Miss.1987). In making the determination, the chancellor is accorded broad discretion due to his "peculiar opportunity to sense the equities of the situation before him." Holleman v. Holleman, 527 So.2d 90, 94 (Miss.1988). Before this Court may reverse a chancellor's determination, a party must present sufficient evidence reflecting an abuse of discretion. Skinner, 509 So.2d at 869; Wood v. Wood, 495 So.2d 503, 507 (Miss.1986); Tutor v. Tutor, 494 So.2d 362, 364 (Miss.1986). Restated, the chancellor's determination must be reasonable and commensurate with the wife's accustomed standard of living--taking into account the wife's own resources and the husband's ability to pay. Wood, 495 So.2d at 506; Rainer v. Rainer, 393 So.2d 475, 478 (Miss.1981).

Applying case law to the case sub judice, the undisputed facts reveal that--at the time of the hearing--both parties were in good health. Henry was forty-eight years old, and Betty was forty-nine. Henry was a "deck hand" in his twenty-sixth year with the U.S. Army Corps of Engineers--earning an annual salary of $41,000.00. Betty was a purchasing agent in her eighth year with the Vicksburg Medical Center--earning an annual salary of $13,624. Henry attended high school through the tenth grade; Betty graduated high school. Betty is not receiving "free use" of the home or automobile; pursuant to the divorce decree, she is responsible for paying the notes on both. Henry, on the other hand, bears absolutely no responsibility for payment of the notes on the home and her automobile--although the chancellor's calculation of periodic alimony probably accounted for her having to meet these monthly expenses (i.e., $388.00 monthly for the home, and $315.00 monthly on the automobile). The record refers to "their" home which apparently means that the title is jointly held. Betty's payment of the monthly payment inures to improvement of his equity. In a nutshell, the terms of the decree place both parties in nearly identical financial positions. ¹

The chancellor's determination was well within his discretionary authority. At this point in time, the award seems fair; Henry's own testimony at the hearing supports this conclusion:

Question: Do you feel that [Betty] can support herself and [maintain] the standard of living that she had grown accustomed to with you without your help ...?

Henry: Not really.

. . . . .

Question: What do you feel you should pay your wife as alimony ...?

Henry: Well, as she stated [during testimony] ... she couldn't make it on ... the $550.00 [which Henry provided her each month during their separation]. Maybe $50.00 more a month, say $600.00 a month....

. . . . .

[S]he said sometimes she didn't have enough hardly to make it on.... I would even go to $650.00. I mean just because I know it is hard....

See Tutor, 494 So.2d at 363 ("Tutor himself acknowledges that the periodic monthly alimony payments awarded by the chancellor ... were equitable. [Thus, t]here is no merit to this assignment."). Henry additionally admits in his brief that the alimony will allow Betty to "maintain[ ] her same style of living." Appellant's Brief at 11. His primary grievance, therefore, seems to simply be that the award (allegedly) will provide Betty with slightly "more disposable income than [him]." See supra (foot)note 1 (Henry failed to substantiate the allegation that a disparity will result). Assuming, arguendo, that the alleged disparity will result, this clearly would not be sufficient to prove an abuse of discretion. And by admitting that he will be left with nearly $5,000.00 in "disposable" income Henry is conceding that he can afford the award. In the future, Henry may seek a modification if a change in economic circumstances or financial position transpires.

In sum, the chancellor's determination regarding periodic alimony is affirmed.

2. The Duration

Henry also contends that "an award of periodic alimony which terminates only upon death or remarriage of the wife" is excessive. The brief, however, is devoid of any substantiation or, more specifically, authoritative support. See MISS.SUP.CT. Rules 28(a) & (a)(6) ("The brief of the appellant ... shall contain the contentions ... with respect to the issues presented, and the reasons for those contentions, with citations to authorities, statutes and parts of the record relied on."); Read v. Southern Pine Elec. Power Ass'n, 515 So.2d 916 (Miss.1987) (case in which this Court declined to address issue presented by party who failed to cite authoritative support); Devereaux v. Devereaux, 493 So.2d 1310 (Miss.1986) (same); Nelson v. Clanton, 263 So.2d 787 (Miss.1972) (same). This notwithstanding, examination of applicable law leads this Court to conclude that Henry's contention is without merit.

The general rule dictates that periodic alimony terminates upon death or remarriage. Skinner, 509 So.2d at 869 (citing Wray v. Wray, 394 So.2d 1341, 1344 (Miss.1981)). This rule is subject to change on an ad hoc basis. Skinner, 509 So.2d at 869 (citing East v. East, 493 So.2d 927 (Miss.1986)). Thus, Henry's only remedy would have been to show that the chancellor should have deviated from the general rule in his case; no showing was made. See Tutor, 494 So.2d at 363 ("As to the assignment that a time limit should be fixed...