Hemsley v. Hemsley

• Citation: 639 So.2d 909
• Decision Date: 07 July 1994
• Docket Number: No. 92-CA-00423,92-CA-00423
• Parties: James Michael HEMSLEY, v. Elizabeth M. HEMSLEY.
• Court: United States State Supreme Court of Mississippi

Page 909

639 So.2d 909

James Michael HEMSLEY, v. Elizabeth M. HEMSLEY.

No. 92-CA-00423.

Supreme Court of Mississippi.

July 7, 1994.

William P. Featherston, Jr., Ridgeland, for appellant.

B. Ruth Johnson, Jackson, for appellee.

En Banc.

STATEMENT OF THE CASE

PITTMAN, Justice, for the Court:

Elizabeth M. Hemsley (Bitsy) filed a complaint for divorce against James M. Hemsley (Mike) on April 4, 1991, alleging as grounds for divorce, inter alia, irreconcilable differences pursuant to Miss.Code Ann. Sec. 93-5-2 (Supp.1992). On January 10, 1992, Mike and Bitsy filed a consent in writing, signed by both parties, for the court to resolve the questions of alimony and property rights, including the payment of attorney's fees and costs. The lower court awarded Bitsy $1,400.00 per month in permanent, periodic alimony, and 50% of Mike's military and civil service retirement benefits, and further ordered Mike to pay 50% of Bitsy's attorney's fees in the amount of $2,820.59. Feeling aggrieved, Mike filed this appeal assigning the following errors:

I. THE COURT ERRED BY AWARDING ALIMONY TO ELIZABETH M. HEMSLEY OR, IN THE ALTERNATIVE, IN AWARDING AN AMOUNT OF ALIMONY WHICH WAS MORE THAN JAMES MICHAEL HEMSLEY COULD AFFORD TO PAY.

II. THE COURT ERRED IN AWARDING FIFTY (50%) PERCENT OF JAMES MICHAEL HEMSLEY'S MILITARY RETIREMENT BENEFITS AND CIVIL SERVICE RETIREMENT BENEFITS TO ELIZABETH M. HEMSLEY.

III. THE COURT ERRED BY ORDERING JAMES MICHAEL HEMSLEY TO PAY ONE-HALF ( 1/2) OF ELIZABETH M. HEMSLEY'S ATTORNEY'S FEES WHEN ELIZABETH M. HEMSLEY HAD A SEPARATE ESTATE SUFFICIENT TO PAY HER ATTORNEY'S FEES.

STATEMENT OF FACTS

Bitsy and Mike were married on June 18, 1966, in Baltimore, Maryland. During their At the time of trial, Bitsy was 48 years old. During their marriage, Bitsy worked either part-time or full-time in order to help support the family. She had a high school education and was attending classes in business administration at Hinds Community College. At the time of trial, she was employed as a secretary. In 1990, Bitsy earned approximately $21,678.00, and in 1991, she earned $21,900.00. Bitsy estimated that both figures included $2,000 in overtime.

marriage, two children were born, James Michael Hemsley, Jr., born February 15, 1969, and Bonnie Jean Hemsley, born December 13, 1970. The couple lived in many different localities because Mike was a member of the Armed Forces. In 1983, the couple moved to Mississippi where they resided until their separation on April 4, 1991.

Bitsy testified that she has suffered from a heart condition for 21 years and needs medication, Lanoxin and Inderal, costing approximately $150.00 per month. The condition, arrhythmia, occurred as a result of her pregnancy with Bonnie in 1970. She also suffered from chronic sinus problems which required surgery four years prior to trial. She testified that she had to take Humibid to control her sinus problems. She further stated that she suffers from diverticulitis and chronic yeast infections. Finally, she testified that Mike exposed her to herpes. Although she has not tested positive for herpes, her doctor told her that it could occur at any time.

Mike was 47 years old at the time of trial and was a member of the Army until 1977. His only health complaint was an elevated cholesterol level which was being treated by medication. Mike obtained a bachelor's degree in engineering in 1966. He was an engineer officer with the Army from 1966 to 1977. While he was with the Army, Mike went to school at night and obtained a master's degree in harbor, coastal and ocean engineering. After leaving the Army, Mike took a job with his brother's engineering firm for a three year period. In 1980, he returned to the federal government as a civilian employee. Since that time, with the exception of a six-month period where he worked for the Department of the Army, Mike has worked either for the Corps of Engineers or for the National Oceanic and Atmospheric Administration. He was also a member of the Army Reserve. At the time of trial, he was working as a coastal/ocean engineer and his job title was Supervisory General Engineer.

Both Mike, Jr., and Bonnie were over the age of 21 years at the time of trial. Mike, Jr., lacked one or two years in obtaining a chemical engineering degree at Mississippi State University and Bonnie was contemplating law school. Mike and Bitsy both expressed a desire to help their children complete their education by providing financial support.

Mike and Bitsy separated on April 4, 1991. Bitsy filed a complaint for divorce alleging, inter alia, irreconcilable differences. Mike and Bitsy consented to a divorce on the ground of irreconcilable differences and requested that the lower court resolve the following issues:

(1) Custody, maintenance and college expenses of the minor child of the parties;

(2) Lump sum alimony;

(3) Periodic alimony;

(4) Settlement of any property rights, including but not limited to division of personalty and division of retirement benefits, both civil and military;

(5) Premium payment and maintenance of hospitalization, medical, dental, accident and health insurance policies;

(6) Maintenance of life insurance;

(7) Propriety and imposition of liens or other orders to secure payment of any award by Court;

(8) Payments of debts; and

(9) Payment of attorney's fees.

After reviewing the testimony of the parties and the financial information they provided, the lower court awarded Bitsy $1,400.00 per month in permanent, periodic alimony, 50% of Mike's military retirement, and 50% of Mike's civil service retirement as of the date of judgment. The lower court also awarded Bitsy 50% of her attorney's fees which amounted to $2,820.59. Finding no error in the chancellor's award of periodic

alimony, retirement benefits and attorney's fees, we affirm. Bracey v. Bracey, 408 So.2d 1387 (Miss.1982); Savell v. Savell, 290 So.2d 621 (Miss.1974); See Miss.Code Ann. Sec. 93-5-23." Colvin v. Colvin, 487 So.2d 840, 841 (Miss.1986).

LAW

I. THE COURT ERRED BY AWARDING ALIMONY TO ELIZABETH M. HEMSLEY OR, IN THE ALTERNATIVE, IN AWARDING AN AMOUNT OF ALIMONY WHICH WAS MORE THAN JAMES MICHAEL HEMSLEY COULD AFFORD TO PAY.

Mike contends that the lower court lacked the statutory authority to award periodic alimony, or in the alternative, that the amount of periodic alimony awarded was excessive. According to Mike, lump sum alimony is a division of property and would have been within the statutory authority of the lower court, whereas periodic alimony is considered spousal support and is not a division of property. Mike argues that periodic alimony is not specifically provided for in Sec. 93-5-2(3) and further that in Kergosien v. Kergosien, 471 So.2d 1206 (Miss.1985), this Court held that "[d]ivorce is a creature of statute; it is not a gift to be bestowed by the chancellor.... It is a statutory act and the statutes must be strictly followed as they are in derogation of the common law." Id. at 1210.

Mike also argues that his consent to allow the chancellor to decide the issue of periodic alimony does not confer subject matter jurisdiction upon the lower court. "It has been often said that the jurisdiction of courts is such a public matter that it cannot be affected by a private agreement, and that the jurisdiction of a court can therefore neither be acquired nor lost as a result of an agreement of the parties." 20 Am.Jur.2d Courts Sec. 139 (1965).

This Court, however, effectively dealt with this issue in Taylor v. Taylor, 392 So.2d 1145 (Miss.1981).

A scrutiny of Section 93-5-2 reveals that it does not literally use the word "alimony", but rather speaks in direct terms only to "sufficient provision by written agreement" for the maintenance of children of the marriage and "for the settlement of any property rights between the parties." ... It could be argued that the legislature did not intend any alimony in divorces based upon irreconcilable differences but only intended adequate provision for the minor children of the parties as well as an adjustment of property rights. In our opinion such construction upon the legislative intention would be strained and unrealistic because the question of alimony normally arises in a great majority of divorce suits, a factor of which the legislature was undoubtedly aware at the time the statute was passed. To so construe the legislature's intent would limit the application of the irreconcilable differences statute to the wealthy few with sufficient property for division between themselves for their maintenance without the necessity of considering alimony and its obligations. We are of the opinion the legislature did not intend this result and in its wisdom enacted the statute for the benefit of all the citizens, including those without property or sufficient wealth for a lump sum alimony settlement; for after all they, on occasion, also have irreconcilable differences to arise.

Id. at 1148. Thus, Mike's argument that the lower court did not have the authority to award periodic alimony is without merit.

In the alternative, Mike contends that the award of periodic alimony in the amount of $1,400.00 per month was excessive. In determining a reasonable award for alimony, the following factors should be considered:

(1) the health of the husband and his earning capacity;

(2) the health of the wife and her earning capacity;

(3) the entire sources of income of both parties;

(4) the reasonable needs of the wife;

(5) the reasonable needs of the child;

(6) the necessary living expenses of the husband;

(7) the estimated amount of income taxes the respective parties must pay on their incomes (8) the fact that the wife has the free use of the home, furnishings and automobile, and

(9) such other facts and circumstances bearing on the subject that might be shown by the evidence.

Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147, 153 (1955).

Bitsy introduced Exhibit 5, which indicated that her gross pay...