Cunningham v. Lanier, No. 90-CA-0726

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtDAN M. LEE; ROY NOBLE LEE; ROBERTSON; HAWKINS; ROBERTSON
Citation589 So.2d 133
PartiesDeborah Lanier CUNNINGHAM v. Douglas C. LANIER, Jr.
Decision Date06 November 1991
Docket NumberNo. 90-CA-0726

Page 133

589 So.2d 133
Deborah Lanier CUNNINGHAM
v.
Douglas C. LANIER, Jr.
No. 90-CA-0726.
Supreme Court of Mississippi.
Nov. 6, 1991.

Page 134

Richard W. Hamilton, Pascagoula, for appellant.

Ben F. Galloway, Owen Galloway & Clark, Gulfport, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and McRAE, JJ.

DAN M. LEE, Presiding Justice, for the Court:

This is an appeal from the Harrison County Chancery Court from a grant of summary judgment in favor of Douglas C. Lanier. Lanier sought discharge of his obligation to pay alimony to his ex-wife, Deborah Cunningham, who has remarried.

After a review of the record in this case, we find a dispute of a material fact concerning the intent of the parties in a property settlement agreement executed by them in 1985, to provide for either alimony in gross or periodic alimony. Consequently, we reverse and remand to the Harrison County Chancery Court for further proceedings.

FACTS

This is the second appeal of Cunningham v. Lanier before this Court. The first appeal is reported at Cunningham v. Lanier, 555 So.2d 685 (Miss.1989) (Justice Prather for the Court). This case has a substantial procedural history which we outline below.

Mrs. Deborah Lanier and Dr. Douglas C. Lanier, Jr., a physician, were divorced on the grounds of irreconcilable differences by Judgment of the Harrison County Chancery Court on September 26, 1985. The divorce ended a ten-year marriage, and there were two children from the marriage. Kelly Lanier, a daughter, was eight years old at the time of divorce (now 14), and a second daughter, Blair, was four years old (now 10). The couple agreed that Douglas would have primary custody of both girls with liberal visitation for the mother, Deborah. The couple reached a "CHILD CUSTODY AND PROPERTY SETTLEMENT AGREEMENT" which was incorporated into the Judgment of Divorce.

In the first Cunningham case, Douglas Lanier filed an action on April 15, 1987, to suspend alimony payments on the belief that his ex-wife had remarried. Deborah responded by filing a counterclaim. Then, Lanier filed a motion on May 28, 1987, for judgment on the pleadings pursuant to Miss.R.Civ.P. 12(c). On July 2, 1987, the trial judge treated the Rule 12(c) motion as one for summary judgment and submitted two interrogatories to Deborah. Deborah responded to the court's interrogatories in a letter and acknowledged that she had remarried to Alan James Cunningham on March 6, 1987. In this letter to the trial judge Deborah [hereinafter Cunningham] requested that she be allowed an additional fourteen days to produce and file counter-affidavits since the court announced that it was considering summary judgment and no such affidavits or other proof supporting her defenses and counterclaim were on record. According to the record, Cunningham's request for a hearing on the summary judgment was ignored, and the court entered summary judgment against her on July 30, 1987.

The sole issue on appeal in the first case was whether or not the court erred in not allowing sufficient time for Cunningham to present affidavits and other evidence pertinent to the opposition of a Rule 56 motion. This Court held that the trial judge erred in failing to grant Cunningham a reasonable time in which to oppose the summary judgment and that Cunningham's counterclaim must be addressed by the trial judge. "Because it failed to grant Cunningham a reasonable

Page 135

time to file opposing documents in the case sub judice, this Court is unable to conclude that the Chancery Court conducted a careful review of all pertinent evidence in a light most favorable to the nonmovant." Cunningham v. Lanier, 555 So.2d 685, 686 (Miss.1989) (emphasis in original). Therefore, this case was reversed and remanded to the Harrison County Chancery Court for compliance with the Mississippi Rules of Civil Procedure and fundamental standards of a fair opportunity to be heard.

Upon remand of the case by this Court on December 13, 1989, Lanier filed for summary judgment on April 20, 1990. A hearing on Lanier's motion was noticed and held approximately six (6) weeks later on May 30, 1990. However, the court took no action at this time and decided to postpone the hearing for two weeks.

The second hearing was held two weeks later on June 14, 1990, as scheduled. Cunningham's counsel appeared with two affidavits from his client and a motion for continuance. One of Cunningham's affidavits was in support of her motion for continuance. In this affidavit, Cunningham described testimony that was expected of Mr. Albert Necaise since Cunningham was unable to procure Necaise's attendance at the June 14, 1990, hearing, even though Necaise had allegedly been subpoenaed. Mr. Necaise represented Cunningham in her divorce action in 1985. The affidavit stated that if Necaise were present and able to testify, he would testify that Cunningham sold her property rights to Lanier for three hundred thousand dollars ($300,000.00) at the rate of $2500.00 per month for ten (10) years. 1

At the conclusion of the June 14th hearing, the court issued a bench ruling which granted Lanier's summary judgment. Without the consideration of any testimony, the court summarily concluded that the parties agreed in 1985 that Lanier was obligated to pay periodic alimony which terminates upon the marriage of the payee spouse.

Cunningham's counterclaim was also dismissed. "[T]he counterclaim should fall because of the failure to present defenses which the Court could consider." Since Cunningham's counsel did not file affidavits until the date of the hearing in violation of M.R.C.P. 56(c), 2 the trial judge refused to consider Cunningham's claim.

Aggrieved by the grant of summary judgment in Lanier's favor, Cunningham now appeals to this Court.

Standard of Review

We employ a de novo standard of review in reviewing a lower court's grant of a summary judgment motion. Short v. Columbus Rubber and Gasket Co., Inc., 535 So.2d 61, 63 (Miss.1988). Thus, we use the same standard that was used in the trial court. 10 Wright, Miller & Kane, Federal Practice and Procedure Sec. 2716 (1983 and Supp.1988). We must review all evidentiary matters before us in the record: affidavits, depositions, admissions, interrogatories, etc. The evidence must be viewed in the light most favorable to Cunningham, the nonmoving party, and she is to be given the benefit of every reasonable doubt. Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986); Dennis v. Searle, 457 So.2d 941, 944 (Miss.1984). The burden of demonstrating that no genuine issue of fact exists is on Lanier. Short v. Columbus Rubber and Gasket Co., 535 So.2d 61, 63-64 (Miss.1988). A motion for summary judgment lies only when there is no genuine issue of material fact, and the moving

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party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). The Court does not try issues on a Rule 56 motion; it only determines whether there are issues to be tried. In reaching this determination, the Court examines affidavits and other evidence to determine whether a triable issue exists, rather than with the purpose of resolving that issue. Comment, M.R.C.P. 56.
ANALYSIS

The property settlement which was incorporated into the Judgment of Divorce included the following provision on alimony:

ALIMONY

Douglas C. Lanier, Jr. agrees to pay Deborah Lanier periodic alimony in the sum of $2,500.00 per month for a period of ten (10) years beginning October 1, 1985. It is understood between the parties that said alimony payments for tax purposes shall be a deduction for Douglas C. Lanier, Jr., and income for Deborah Lanier.

Other key provisions in the property settlement included the following.

REAL PROPERTY SETTLEMENT: Deborah Lanier agreed to deed her interest in the homestead, relinquishing all claims in such homestead to Douglas Lanier.

PERSONAL PROPERTY: Deborah Lanier was allowed to withdraw any funds credited to her in the Douglas C. Lanier, Jr., M.D. Pension Plan. Deborah was also granted the dining room furniture, as well as some china and a silver service which had been gifts from her family.

BOAT: The parties agreed to sell the vessel, "The Rogue," and divide the remaining equity 50/50 after the mortgage on the vessel had been satisfied.

Further, Douglas agreed to loan Deborah $17,000.00 at five percent (5%) interest on the following terms:

LOAN

Douglas C. Lanier, Jr. agrees to make Deborah Lanier a loan as follows: $17,000.00 at five (5) percent payable for a period of ten years ($180.32 per month payback). Deborah Lanier agrees to execute a note payable to Douglas C. Lanier, Jr.

In the Judgment of Divorce, dated September 26, 1985, there was no general or specific reference to alimony. The court merely incorporated the property settlement agreement into the judgment as follows:

The Court finds that the parties have agreed to the disposition of their respective property rights. The agreement of the parties is set forth in the Child Custody and Property Settlement Agreement, attached hereto as Exhibit 'A', and the Court approves the Child Custody and Property Settlement Agreement attached hereto as Exhibit 'A' as if fully copied in words and figures herein.

Cunningham's defense is very simple. She alleges that she sold her interest in the residence, a large boat, various stocks, tax shelters, all household furnishings and furniture and all other assets acquired during her marriage to Lanier, for the sum of $300,000.00. According to Cunningham, she agreed to a payment schedule of $2500.00 per month for ten (10) years. [$2500.00 X 120 months (10 years) = $300,000.00]. Furthermore, she alleges that the $17,000.00 loan which Lanier made to her was to be used to purchase a replacement residence, and her repayment of this loan was to be over a corresponding period of ten (10) years. Specifically, Cunningham explains that her $180.32 monthly loan repayment was to be offset against Lanier's $2500.00 monthly...

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14 practice notes
  • Creekmore v. Creekmore, No. 92-CA-0498
    • United States
    • United States State Supreme Court of Mississippi
    • February 23, 1995
    ...alimony is associated with support and maintenance of the payee spouse and terminates upon remarriage of the payee. Cunningham v. Lanier, 589 So.2d 133, 136-37 (Miss.1991). It is, however, the language employed in the decree that is our "primary and ultimate referent." Bowe, 557 S......
  • Whittington v. Whittington, No. 07-CA-59434
    • United States
    • Mississippi Supreme Court
    • August 31, 1992
    ...life estate royalty interest," to those who have not yet rid their reason of the tyranny of labels. See Cunningham v. Lanier, 589 So.2d 133, 140 (Miss.1991) (Robertson, J., concurring); Thornhill, 523 So.2d at The parties could have shaped their rights so that the one-sixteenth ( 1/16)......
  • Great Southern Nat. Bank v. McCullough Environmental Services, Inc., No. 89-CA-0161
    • United States
    • United States State Supreme Court of Mississippi
    • January 8, 1992
    ...and its progeny. In short, summary judgment is appropriate when no triable issue of material fact exists. Cunningham v. Lanier, 589 So.2d 133, 134 2. Assignment of Contractual Rights: A General Overview (a) Assignee "Stands in Shoes" of Assignor Mississippi law permits an assignme......
  • Yazoo Properties v. Katz & Besthoff No. 284, Inc., No. 92-CA-00160
    • United States
    • United States State Supreme Court of Mississippi
    • October 13, 1994
    ...and the moving parties is entitled to judgment as a matter of law. Owen v. Pringle, 621 So.2d 668 (Miss.1993); Cunningham v. Lanier, 589 So.2d 133 In the case sub judice, we are concerned with the interpretation of a contract. Here, two separate provisions which, inter alia, provide remedie......
  • Request a trial to view additional results
14 cases
  • Creekmore v. Creekmore, No. 92-CA-0498
    • United States
    • United States State Supreme Court of Mississippi
    • February 23, 1995
    ...alimony is associated with support and maintenance of the payee spouse and terminates upon remarriage of the payee. Cunningham v. Lanier, 589 So.2d 133, 136-37 (Miss.1991). It is, however, the language employed in the decree that is our "primary and ultimate referent." Bowe, 557 S......
  • Whittington v. Whittington, No. 07-CA-59434
    • United States
    • Mississippi Supreme Court
    • August 31, 1992
    ...life estate royalty interest," to those who have not yet rid their reason of the tyranny of labels. See Cunningham v. Lanier, 589 So.2d 133, 140 (Miss.1991) (Robertson, J., concurring); Thornhill, 523 So.2d at The parties could have shaped their rights so that the one-sixteenth ( 1/16)......
  • Great Southern Nat. Bank v. McCullough Environmental Services, Inc., No. 89-CA-0161
    • United States
    • United States State Supreme Court of Mississippi
    • January 8, 1992
    ...and its progeny. In short, summary judgment is appropriate when no triable issue of material fact exists. Cunningham v. Lanier, 589 So.2d 133, 134 2. Assignment of Contractual Rights: A General Overview (a) Assignee "Stands in Shoes" of Assignor Mississippi law permits an assignme......
  • Yazoo Properties v. Katz & Besthoff No. 284, Inc., No. 92-CA-00160
    • United States
    • United States State Supreme Court of Mississippi
    • October 13, 1994
    ...and the moving parties is entitled to judgment as a matter of law. Owen v. Pringle, 621 So.2d 668 (Miss.1993); Cunningham v. Lanier, 589 So.2d 133 In the case sub judice, we are concerned with the interpretation of a contract. Here, two separate provisions which, inter alia, provide remedie......
  • Request a trial to view additional results

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