East v. East
| Decision Date | 13 August 1986 |
| Docket Number | No. 55514,55514 |
| Parties | Jean Ann Smith EAST v. A.L. EAST, III. |
| Court | Mississippi Supreme Court |
Marjorie A. O'Connell, Steven D. Kittrell, Washington, D.C., Hugh C. Montgomery, Magruder, Montgomery, Brocato & Hosemann, Jackson, for appellant.
John H. Price, Jr., McKinley W. Deaver, Thomas, Price, Alston, Jones & Davis, Jackson, for appellee.
Before ROY NOBLE LEE and HAWKINS, P.JJ., and SULLIVAN, J.
Jean Ann East appeals from a decree of the chancery court of the First Judicial District of Hinds County reducing the monthly payments her former husband A.L. East obligated himself to make in their property settlement agreement, incorporated in their decree for divorce on irreconciliable differences, and also cancelling the employment contract between Mrs. East and the corporation in which Mr. East is the sole, or majority stockholder.
We find the agreement entered into between Mr. and Mrs. East not subject to modification. We further find the chancellor had no authority to settle any dispute between Mrs. East and the corporation without making it a party to the action, and reverse and render.
A.L. East, III, and Jean Ann Smith East married in 1950. He became a successful businessman in Jackson. In October, 1977, they separated. On March 28, 1979, there was a final decree of divorce between them on the ground of irreconcilable differences. On February 21, 1979, when each was represented by legal counsel, they executed an agreement entitled "Alimony and Property Settlement Agreement."
Pertinent portions of this agreement state:
WHEREAS, the parties hereto desire to define their respective obligations to each other, to enter into an Agreement under which their respective financial and property rights, alimony, and all other respective rights, remedies, privileges and obligations to each other, arising out of the marriage relation, or otherwise, shall be fully prescribed and bounded thereby; and
WHEREAS, the parties hereto have been fully, separately and independently apprised and advised of their respective legal rights, remedies, privileges, and obligations arising out of the marriage relation, or otherwise, by counsel of their own choice and selection, and each having, in addition thereto, made independent inquiry and investigation with respect to all of the same, and each having been fully informed of the other's assets, property, holdings, income and prospects; and
WHEREAS, the parties hereto each warrant and represent to the other that they, and each of them, fully understand all of the terms, covenants, conditions, provisions, and obligations encumbered upon each of them by virtue of this Agreement to be performed or contemplated by each of them hereto, and each believes the same to be fair, just, reasonable and to his respective individual best interest.
* * *
* * *
That, as alimony and as further consideration for the settlement of the claim of Wife to Husband's properties, Husband agrees to pay unto Wife the sum of Five Thousand and NO/100 Dollars, ($5,000.00), per month, payable on the fourth day of each and every month hereafter, said payment not to terminate upon the death of Husband, but shall constitute a charge against his Estate until the death of Wife, irrespective of her possible remarriage. It is the full intention of Husband that Wife shall receive as alimony and as a property settlement from him or his Estate the sum of Five Thousand and NO/100 Dollars, ($5,000.00), for each and every month hereafter until her death. Wife understands and agrees the aforesaid monthly payment of $5,000.00 shall be the only claim she shall have against the estate of the Husband and that by her acceptance thereof and agreement hereto Wife expressly waives any and all further claims to Husband's Estate.
That incident to the further support of Wife, she shall be granted an employment contract with East Ford, Inc., for public relations and other services to be performed by Wife, whereupon her salary shall be One Thousand and NO/100 Dollars ($1,000.00), per month, and Wife shall remain on all profit sharing and/or insurance benefit plants for medical, life or other insurance available to other employees, and all of the premiums therefor shall be paid by East Ford, Inc.; ... That the obligations of East Ford, Inc. shall be guaranteed by Husband by his signature to this Agreement, and in the event of any sale of said dealership or any change of the ownership thereof, this shall be a contractual agreement between East Ford, Inc. and Wife, and same shall be fully guaranteed as to terms and performance by Husband personally. That upon remarriage of Wife, the said vehicle which she is then operating shall become her property and the agreements contained in this paragraph shall thereupon cease, including the right to payment of the sum of One Thousand and NO/100 Dollars, ($1,000.00), per month, ...
* * *
* * *
That Husband, realizing the effects of inflation on the purchasing power of the aforesaid salary agreement, agrees that after two (2) years from the date of the first payment under this salary agreement, that the salary shall be raised at the rate of three per cent (3%) per annum. Wife understands and agrees that her annual income from East Ford, Inc., shall be as follows: First Year--$12,000 per year; Second Year--$12,000 per year; Third Year--$12,360 per year; Fourth Year--$12,730.08 per year; Fifth Year--$13,112.72 per year, etc...., said salary being paid monthly. That said raise in salary is to continue during the period of this Agreement, and shall apply only to the salary agreement with East Ford, Inc.
* * *
* * *
Both the legal and practical effects of this Agreement and each and every aspect of the financial status of the parties have been fully explained to both parties by their respective counsel, and they both acknowledge that it is a fair Agreement and that it is not the result of any fraud, duress, or undue influence exercised by either party upon the other or by any other person or persons upon either.
* * *
* * *
This Agreement shall not be invalidated or otherwise affected by reconciliation between the parties hereto, or a resumption of marital relations between them unless said reconciliation or said resumption be documented by a written statement, executed and acknowledged by the parties, with respect to said reconciliation and resumption, setting forth that they are cancelling this Agreement.
* * *
* * *
... And the parties agree, stipulate and consent that this Agreement may be incorporated into any Decree of Divorce.
entered in the action pending in the First Judicial District of Hinds County, Mississippi, with prior consent of said Court. 1
* * *
* * *
It is the specific intent of both parties that this Agreement shall be binding on ourselves, our heirs, executors, administrators, and assigns. [Emphasis added]
The agreement was attached to and incorporated as Exhibit A in a divorce decree, and the parties ordered to abide by its terms.
On August 9, 1982, East filed a complaint for modification of the decree, alleging a substantial change in their financial condition, his for the worse, and hers for the better.
The chancery court overruled a motion to dismiss under Rule 12(b) of the Mississippi Rules of Civil Procedure on December 10, 1982. Mrs. East answered the complaint, and following discovery the matter came on for hearing on July 28, 1983.
On August 26, 1983, the chancellor rendered an opinion that contrary to defense counsel's argument, the court was of the opinion it had the authority to modify the final decree and intended to do so.
The court then ruled that East's financial condition had deteriorated so much that it would be extremely difficult if not impossible for him to continue the $5,000 monthly payments. He accordingly reduced the payments to $4,000 per month.
As to the corporate agreement, the chancellor found Mrs. East had moved to New Orleans and was no longer of any benefit to East Ford, Inc., and this agreement was terminated. A final judgment was entered in accord with the chancellor's opinion. Costs were assessed to Mrs. East, and she has appealed.
It was clearly the intent of these parties, each represented by eminent legal counsel, to affix unalterably their mutual responsibilities for the remainder of their lives. Moreover, their agreement was approved by the chancellor and made a part of the divorce decree.
It was the obvious intent of the parties to create a non-modifiable agreement, and of the chancery court to approve and confirm it as part of a solemn court decree. The parties and the chancery judge intended to create a non-modifiable contract and court judgment.
If we hold this agreement solemnized by court decree could be modified by subsequent change in circumstances of the parties, then we must also say it is impossible to draft an agreement to pay the wife a sum certain until she dies which cannot be changed, up or down.
This case presents a troublesome question. Parties divorce, and as part of the decree the husband obligates himself to make future payments to his wife. Subsequent events make one or the other unhappy with the trade, and a petition is filed for modification of the final decree.
In pertinent part Miss.Code Ann. Sec. 93-5-23 states Sec. 93-5-23. Custody of children; alimony.
When a divorce shall be decreed from the bond of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders ... touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, ... The court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require....
We have consistently held that periodic (or "continuing") alimony is...
To continue reading
Request your trial
-
Bryant v. Bryant
...property settlement agreement is a contractual obligation." Harris v. Harris , 988 So. 2d 376, 378 (Miss. 2008) (citing East v. East , 493 So. 2d 927, 931-32 (Miss. 1986) ). Questions of law, such as contract interpretations, are reviewed de novo . Id. (citing Warwick v. Gautier Util. Dist.......
-
Hubbard v. Hubbard, 92-CA-01031-SCT
...of the court. Shearer v. Shearer, 540 So.2d 9, 12 (Miss.1989); McNally v. McNally, 516 So.2d 499, 502-03 (Miss.1987); East v. East, 493 So.2d 927, 931 (Miss.1986); Colvin v. Colvin, 487 So.2d 840, 841 (Miss.1986); Wray v. Wray, 394 So.2d 1341, 1344 (Miss.1981). Lump sum alimony differs in t......
-
Lewis v. Lewis
...marriage by divorce as of any other kind of negotiated settlement. Newell v. Hinton, 556 So.2d 1037, 1042 (Miss.1990); East v. East, 493 So.2d 927, 931-32 (Miss.1986). They are contracts, made by the parties, upon consideration acceptable to each of them, and the law will enforce them. East......
-
Armstrong v. Armstrong
...of the court. Shearer v. Shearer, 540 So.2d 9, 12 (Miss.1989); McNally v. McNally, 516 So.2d 499, 502-03 (Miss.1987); East v. East, 493 So.2d 927, 931 (Miss.1986); Colvin v. Colvin, 487 So.2d 840, 841 (Miss.1986); Wray v. Wray, 394 So.2d 1341, 1344 Lump sum alimony may be payable in a singl......