Gregg v. Montgomery
| Decision Date | 16 October 1991 |
| Docket Number | No. 90-CA-0869,90-CA-0869 |
| Citation | 587 So.2d 928 |
| Parties | Donnie B. GREGG v. Betty Charlotte Gregg MONTGOMERY. |
| Court | Mississippi Supreme Court |
Martin A. Kilpatrick, Greenville, for appellant.
Richard A. Oakes, Burgoon & Oakes, Greenwood, for appellee.
Before HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.
The chancery court of Washington county rendered judgment against Donnie B. Gregg for child support arrearage in the amount of $2,019.57, but denied alimony in arrears finding that the former wife released Gregg from alimony payments with a written release. Donnie has appealed, and his former wife, Charlotte, has cross-appealed for denial of alimony in arrears, modification in child support payments and attorney's fees.
We find that the alimony in arrears should be awarded to Charlotte and reverse. We remand as to attorney's fees for further determination by the chancery court. Otherwise, we affirm on her cross-appeal and the direct appeal.
Donnie and Charlotte married August 29, 1970. They have two children, Eric Garner, born August 26, 1979 and Jessica Dianne, born August 14, 1985.
On March 3, 1986, they secured judgment of divorce from the chancery court of Washington County on the no-fault ground of irreconcilable differences. A separation, child custody, support, and property settlement agreement was submitted to the court pursuant to Miss.Code Ann. Sec. 93-5-2 (Supp.1986). It was approved by the chancellor and attached to the judgment as exhibit A. The agreement provided in pertinent part:
Paragraph 4--Husband agrees to pay unto Wife the sum of $300.00 per month for the support and maintenance of the said minor children, said support to be due and payable in two installments of $150.00 each due and payable on the 1st and 15th of each and every month, commencing on December 15, 1985, and to continue thereafter until further Order of an appropriate court or until the legal emancipation of the children herein involved;
Paragraph 5--Husband agrees to maintain in full force and effect a policy of medical insurance affording benefits to the minor children herein involved. Husband agrees to be responsible for one-half ( 1/2) of all medical, dental, visual or drug expenses incurred by or on behalf of said minor children which are not covered by said insurance policy.
Paragraph 8--Husband and Wife agree that they should each bear one-half ( 1/2) of the total cost of a private school education for the minor children herein involved for grades 1 through 12;
Paragraph 9--The parties hereto agree that Wife shall be entitled to declare the minor children herein involved as dependents for income tax purposes;
Paragraph 10--Husband agrees to pay unto Wife the sum of $100.00 per month as alimony, said sum to be due and payable on or before the 15th day of each and every month, commencing on December 15, 1985, until Wife's death or her remarriage;
At the time of the divorce and for several months thereafter Donnie was earning $300.00 to $325.00 every two weeks in a part-time job as a carpenter. His income had been higher when the divorce action began. In August, 1986, Donnie became a member of the Leland Police Department. His adjusted gross income in 1986 was $8,134.48. It steadily rose, in 1989 reaching $21,000. In July, 1990, his net pay was $933.04 a month. He also received a monthly disability check of $280.00 for a service-related injury sustained in the Vietnam war, making his monthly adjusted gross income in July, 1990, $1,213.04.
Charlotte was earning $4.00 an hour at the time of the divorce. She earned $1,065.00 a month in July of 1990.
From March to December, 1986, Donnie failed to make a total of $1,270.00 in child support payments. From December, 1986, on, Donnie met his child support obligation. He also failed to pay one-half of the children's medical expenses from 1986 to 1988, which amounted to $196.15 and private school expenses of $105.25. Donnie maintained insurance coverage for the children, paying $54.77 every two weeks. This amount has increased from the initial payment of approximately $40.00 in 1986.
Donnie never made any of the $100.00 per month alimony payments to Charlotte. When Charlotte attempted to discuss the alimony payments with Donnie over the phone, "he got very angry ... and came over to [her] house and threatened [her] and told [her] that [she] would never get a penny[;] he would skip the country...." Charlotte never sought legal action against Donnie "because every time [she] would confront him about any arrearage" he would get angry and threaten her, which would upset the kids. Charlotte thought it was easier to do nothing than be threatened and upset the kids. Donnie admitted that there were arguments about alimony payments after the divorce.
Donnie claims that he has "never been held to [the alimony]," saying he thought the alimony would only be necessary if Charlotte was in financial distress. Donnie stated:
... when [he] read the final divorce decree that [Charlotte] had filed, before [he] signed it, she explained to [him] that her lawyer advised her to put it [alimony provision] in there in case something come up to where she was unable to work or something like that and needed some more money.
On cross-examination Donnie conceded that he understood the property settlement agreement and that no one made him sign it.
In May, 1988, Donnie and his new wife, Lynda, wanted to buy a mobile home. They were unable to obtain financing for the home because of the $100 a month alimony Donnie had to pay to his former wife, Charlotte. They asked Charlotte if she would write a letter stating that she waived Donnie's obligation to pay the alimony.
The letter stated in full This is to verify that Donnie Gregg pays $300 a month child support and provides medical insurance for his two children. He does not pay me the $100.00 alimony as I have not held him to this obligation.
(signed) Charlotte Gregg May 22, 1988
Charlotte testified she did not intend to waive the alimony, but was doing Donnie a favor so they could buy the mobile home. Donnie claimed that Charlotte's letter released him from his alimony obligation, but admitted that the sole purpose of the letter was to obtain financing for the mobile home.
Charlotte remarried on April 15, 1989, terminating Donnie's obligation to pay alimony. The testimony established that unpaid and overdue alimony payments with interest amounted to $4,568.74. This included all alimony payments due from the date the chancellor ordered payments to begin until Charlotte's remarriage April 15, 1989.
On March 27, 1990, Donnie filed his motion to modify the amount of his child support payment based upon an alleged change in the circumstances of the parties. Charlotte filed a counterclaim seeking recovery of child support arrearage and past due alimony. She also sought to modify the amount of child support payments as well as requesting an issuance of a contempt citation against Donnie for failure to comply with the court-ordered settlement agreement.
The chancellor denied requests for a change in child support because the material change in circumstances had occurred since the date of the divorce decree. He also denied Charlotte recovery of alimony in arrears because the May 22, 1988, letter evidenced an intent to waive alimony payments. The chancellor further denied Charlotte attorney's fees, but did award her past due child support of $2,019.57.
Donnie has appealed this judgment. Charlotte has cross-appealed.
In appeals from chancery court, the Court's scope of review is limited: "This court will not reverse a chancery court's findings of fact where they are supported by substantial credible evidence in the record." Caldwell v. Caldwell, 579 So.2d 543, 547 (Miss.1991); Clark v. Myrick, 523 So.2d 79, 80 (Miss.1988).
More specifically, in cases involving alimony and child support, the Court has held that it "is a matter within the discretion of the chancellor and that this appellate court will not reverse unless the chancellor was manifestly in error in his finding of fact and manifestly abused his discretion." Powers v. Powers, 568 So.2d 255, 258 (Miss.1990); Carpenter v. Carpenter, 519 So.2d 891, 894-895 (Miss.1988).
Donnie's first assigned error presents the question of whether he should have been ordered to pay any arrears when he was financially unable to comply with the decree.
Miss.Code Ann Sec. 93-5-2 (Supp.1990) governs modifications of divorce decrees issued on the ground of irreconcilable differences. Lawrence v. Lawrence, 574 So.2d 1376, 1380 (Miss.1991); Morris v. Morris, 541 So.2d 1040, 1042-43 (Miss.1989). After the agreement has become incorporated into the judgment, it may be modified as other judgments for divorce as set forth in Miss.Code Ann. Sec. 93-5-23. Miss.Code Ann. Sec. 93-5-2 (Supp.1990). Once the provisions of Sec. 93-5-2 have been met, "the custody, support, alimony and property settlement agreement becomes a part of the final decree for all legal intents and purposes." Lawrence, 574 So.2d at 1380, citing Switzer v. Switzer, 460 So.2d 843, 845 (Miss.1984).
In order to justify changing or modifying the divorce decree, "there must have been a material or substantial change in the circumstances of one or more of the interested parties: the father, the mother, and the child or children, arising subsequent to the entry of the decree to be modified." Lawrence, 574 So.2d at 1380; Morris, 541 So.2d at 1042-43; Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983).
Donnie cites Kincaid v. Kincaid, 213 Miss. 451, 57 So.2d 263 (1952), to support the proposition that he was financially unable to comply with the divorce decree. In Kincaid, the Court quoted Amis on Divorce and Separation in Mississippi, Section 206, in holding that:
... a husband may not ask for modification of the original decree without showing that he has performed...
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