D'Avignon v. D'Avignon, 2004-CA-02215-COA.
| Decision Date | 01 August 2006 |
| Docket Number | No. 2004-CA-02215-COA.,2004-CA-02215-COA. |
| Parties | Pierre Louis D'AVIGNON, Appellant v. Karen D'AVIGNON, Appellee. |
| Court | Mississippi Court of Appeals |
Scott Watson Weatherly, Gulfport, attorney for appellant.
Edward F. Donovan, Biloxi, attorney for appellee.
Before KING, C.J., CHANDLER and ISHEE, JJ.
ISHEE, J., for the Court.
¶ 1. Seeking an increase in Louis D'Avignon's alimony obligations, Karen D'Avignon filed a complaint for modification of alimony in the Chancery Court of Harrison County. Louis also filed a motion for modification of alimony, requesting that his alimony obligations be reduced or terminated. The chancery court denied Louis's motion and awarded Karen an upward adjustment in alimony based on the provisions of the property settlement agreement. Aggrieved by the judgment, Louis appeals. Finding no error, we affirm.
FACTS
¶ 2. Karen and Louis D'Avignon were married on August 2, 1969 in Biloxi, Mississippi. Karen, who received an undergraduate degree in education from Mississippi State University, taught school in West Point, Mississippi, while Louis finished his fourth year of study at Mississippi State University. Louis received an undergraduate degree in accounting in December of 1970, and the following semester, he entered the business and finance masters program. In January of 1971, while Karen was in the education masters program, the parties' first child was born.
¶ 3. In May of 1971, Karen obtained her graduate degree in special education and began working with Starkville schools. After completing the masters program at Mississippi State University, on February 14, 1972, Louis began active duty with the United States Air Force. Louis's military career required the family to move on numerous occasions. Over the course of approximately nine years, the family relocated to Virginia, Germany, Maine, Colorado, Mississippi (while Louis was in Korea for an unaccompanied tour), and Florida.
¶ 4. When the parties moved to Virginia, Karen withdrew her two years of retirement from the Mississippi Public Employees Retirement System in order to assist with the expenses of the move. While in Virginia, Karen worked at the Cerebral Palsy Center and earned Virginia retirement credits while employed there. In August of 1973, Louis was transferred to Germany, and the family moved with him. Karen gave birth to their second child while in Germany. In 1976, Louis was transferred to Maine, and Karen withdrew her Virginia retirement to assist with moving expenses. The parties' third child was born in Maine.
¶ 5. In 1978, Louis received another transfer, and the family moved to Colorado. Louis was next sent to Korea for an unaccompanied tour, which lasted nearly a year and a half. During his Korean tour, Karen and the children moved to Gulfport, Mississippi. Karen began teaching school in Mississippi, at Harrison Central. The parties planned to move to Fort Walton Beach, Florida upon his return. Karen withdrew her retirement upon Louis's return for a family vacation to Disney World. Soon after their relocation to Florida however, Louis requested a divorce.
¶ 6. In December of 1981, an agreement was reached, and the parties divorced in Harrison County, Mississippi, on the grounds of irreconcilable differences. Pursuant to the terms of the child custody, child support, and property settlement agreement, Karen retained primary custody of the couple's three minor children, and Louis agreed to pay child support in the amount of $200 per child, per month. Louis's alimony obligations amounted to $500 per month for a ten-month period, which began in November of 1981. The agreement further provided that, beginning on September 15, 1982, Louis's alimony payments would be reduced to $200 per month. An escalation clause was also included in the agreement. It provided for annual adjustments of the child support and alimony obligations "commensurate with any percentage increase in the net earnings (gross earnings minus federal tax, state tax and social security) of the Husband." The escalations in payments were to begin in January of 1983. Louis earned $2,167.98 per month at the time of the divorce.
¶ 7. In 1996, Louis retired from the Air Force with the rank of lieutenant colonel. He then began working overseas in Saudi Arabia. In 1998, Louis returned to the United States and lived in New Mexico. He planned to return to Saudi Arabia in May of 2000. On March 9, 2000, Karen filed a complaint for modification of alimony. A temporary order was entered, which increased Karen's monthly alimony from $260 per month to $550 per month, and Louis returned to Saudi Arabia.
¶ 8. Louis resigned from his position in Saudi Arabia in the spring of 2003. Upon returning to the United States, he filed a motion seeking review and modification of alimony. Louis sought to have Karen's alimony reduced and/or terminated due to a substantial material change in circumstances. Louis asserted that his recent unemployment combined with Karen's income of approximately $75,000 per year constituted a material change. He further asserted that his sole source of income was his military retirement pay of $3,197 per month.
¶ 9. Karen requested an increase in alimony, asserting that she should be compensated for her years as a military wife and for her withdrawal of retirement funds to assist with the family's moves. She further contended that the ending of Louis's child support obligations and her need to replenish her retirement fund constituted a material change in circumstances sufficient to justify a modification. Moreover, although it was not included in her pleadings, Karen asserted during the hearing that she was entitled to a portion of Louis's military retirement, pursuant to the Uniformed Services Former Spouses Protection Act.
¶ 10. The chancery court entered an order denying Louis's request for modification of alimony on June 7, 2004. The court also denied Karen's request to receive a portion of Louis's military retirement on the grounds that her request was untimely, as it was filed eighteen years after the divorce. The court then looked to the plain language of the property settlement agreement, although neither party raised the issue, and found that it did not provide that the alimony to be paid by Louis was limited to a percentage of his net military earnings. The court noted that the property settlement agreement "only [specified] that the alimony and child support to be paid out of his military income [was] to be accomplished through the Air Force accounting office." From this reading of the property settlement agreement, the court determined that Karen was entitled to a percentage of Louis's total net earnings regardless of the source of the income. Because the annual increases in alimony paid by Louis were based solely upon his military pay, the court ordered Louis to provide Karen with an accounting showing his gross earnings from all sources from the date of his retirement. Based on Louis's gross earnings from all sources of income, the parties were to determine the proper amount of alimony payable to Karen, pursuant to the percentages provided in the property settlement agreement.
¶ 11. Seeking correction of a scrivener's error, Karen filed a motion for alternation, amendment, or correction of the chancery court's judgment on June 18, 2004. Louis filed a motion for clarification on August 27, 2004. He requested that the chancery court explain why Karen was entitled to a percentage of his total net earnings from the date of his retirement, when that date was three years prior to the date that Karen filed her request for modification.
¶ 12. The chancery court entered a judgment on October 8, 2004, correcting the scrivener's error and clarifying the June 7, 2004 order. The court stated that, although "a pure modification would be effective at best from the date of filing of the Petition," a property settlement agreement is a matter of contract. Consequently, the court reasoned that the increase in alimony was effective and due at the time specified in the escalation clause of the property settlement agreement. The court then reiterated that Karen was entitled to go back three years prior to the date of filing, as the statute of limitations for contractual matters is three years.
¶ 13. Aggrieved by the court's decision, Louis asserts the following issues for this Court's review: (1) the chancellor erred in not setting aside the May 2000 temporary order and not reducing alimony payments back to $260 per month or terminating them altogether, as the evidence showed there had been no substantial change in circumstances justifying the increase; (2) the chancellor abused his discretion in fashioning an award for Karen based on an escalation clause in the property settlement agreement which was not pled or argued by Louis at trial; (3) where Karen filed a motion for modification as opposed to a motion for contempt, the chancellor erred in going behind the date of filing in awarding relief; (4) the chancellor erred in ruling that the escalation clause was not limited solely to Louis's military pay, but rather applied to all sources of his income, as this clearly was not the intent of the parties.
STANDARD OF REVIEW
¶ 14. Our review of domestic relations matters is limited. Carrow v. Carrow, 741 So.2d 200, 202(¶ 9) (Miss.1999). The chancellor's findings of fact will not be disturbed on appeal if they are supported by substantial credible evidence. Pacheco v. Pacheco, 770 So.2d 1007, 1009(¶ 8) (Miss. Ct.App.2000) (citing Dunaway v. Busbin, 498 So.2d 1218, 1221 (Miss.1986)). We will not reverse the decision of a chancery court unless the chancellor abused his or her discretion, was manifestly in error, or applied an erroneous legal standard. Carrow, 741 So.2d at 202(¶ 9) (citing Turpin v. Turpin, 699 So.2d 560, 564(¶ 15) (Miss. 1997)).
ISSUES AND ANALYSIS
I. The...
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