Hockaday v. Hockaday, 92-CA-00458

• Decision Date: 20 October 1994
• Docket Number: No. 92-CA-00458,92-CA-00458
• Citation: 644 So.2d 446
• Parties: Perry Jones HOCKADAY v. Karleen Barnes HOCKADAY.
• Court: Mississippi Supreme Court

Page 446

644 So.2d 446

Perry Jones HOCKADAY v. Karleen Barnes HOCKADAY.

No. 92-CA-00458.

Supreme Court of Mississippi.

Oct. 20, 1994.

Jack Parsons and Rebecca C. Taylor, Parsons & Taylor, Wiggins, for appellant.

Dean Holleman and J. Boyce Holleman, Gulfport, for appellee.

Before PRATHER, P.J., and SULLIVAN and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

Perry Jones Hockaday, hereinafter Perry, and Karleen Barnes Hockaday, hereinafter Karleen, were married on March 1, 1961. Perry and Karleen were divorced in the Chancery Court of Jackson County, Mississippi, in a final judgment dated July 28, 1988. On March 18, 1991, seeking to reduce or terminate Karleen's periodic alimony and asserting a material and substantial change in circumstances, Perry filed a Petition to Modify the Decree. In his original ruling dated September 30, 1991, the chancellor denied any reduction in the periodic alimony. Following Perry's Motion to Reconsider, the chancellor temporarily reduced the periodic alimony payments by $250.00 per month until such time as the lump sum alimony was paid in full. Thereafter the original periodic alimony amount of $2,250.00 per month was to be reinstated. Perry now appeals, arguing that the lower court erred in failing to permanently terminate or reduce the periodic alimony payments required of him in an amount commensurate with the change of circumstances shown since the rendition of the divorce. Finding the chancellor was not manifestly wrong in refusing to permanently reduce or terminate Karleen's periodic alimony, we affirm.

FACTS

Perry, a general surgeon in Jackson County, Mississippi, and Karleen were married on March 1, 1961. Two children were born of the union, both of whom were emancipated at the time of the divorce. Karleen was granted a divorce on the grounds of adultery in a partial judgment of divorce dated September 15, 1987. A complete judgment of divorce was entered on July 28, 1988. In that judgment the chancellor required Perry to pay Karleen periodic alimony in the amount of $2,250.00 per month. Karleen was also awarded lump sum alimony in the amount of $130,000.00, payable as follows:

The sum of $30,000.00 to be due and payable on August 20, 1988, with the balance of $100,000.00 payable in the sum of $20,000.00 per year for a period of five (5) years, beginning on June 30, 1989, and to be due and payable on or before the 30th day of June of each year, until paid in full.

Perry was required to provide Karleen with hospitalization, health and dental insurance. Karleen was given exclusive use and possession of the marital home until such time as she remarries or dies. Karleen was also awarded attorney's fees of $7,500.00. By agreement of the parties and order of the court all jointly owned stock was equally divided. Perry was taxed with all court costs.

On March 18, 1991, Perry filed a petition to modify the divorce decree and reduce or terminate the periodic alimony award. Perry asserted a substantial and material change of circumstances warranted a modification.

The testimony at the hearing centered around the income, debts and living expenses of the parties. At the time of the divorce Karleen was not employed and had not worked since before the marriage when she was employed as a nurse. At the time Perry filed the petition to modify, Karleen was working at Charter Academy in Mobile, Alabama. Her 1990 tax return reflects that she earned $24,584 from her employment at Charter Academy. At the time of the hearing, Karleen's hours had been reduced and she was working only 24 hours per week at $12.60 per hour. Karleen's 1990 tax return showed a total income of $59,180.00. This figure included $24,584.00 in wages, $27,000.00 in periodic alimony, $5,498.00 in interest, $1,0901.00 in dividends, $110.00 in net gain from the sale of real property and $87.00 in other income. The $20,000.00 in lump sum alimony was not included in this figure. Karleen testified that she had about $80,000.00 in the bank which included the lump sum alimony. She was saving this money and reinvesting the interest for her retirement. There was no testimony on Karleen's living expenses.

Most of Perry's testimony centered around issues that do not concern us on this appeal. The testimony concerning Perry's income and expenses is somewhat confusing. Perry's adjusted gross income has increased each year since the divorce. He offered into evidence what he said was an accurate representation of his income and expenses. Perry testified as to this financial statement while Karleen objected to some of its obvious inaccuracies.

Perry's financial statement shows his adjusted gross income (AGI) for 1989 and 1990 to be $137,818.00 and $155,720.00 respectively. These figures do not include his KEOGH contributions of $18,052.00 and $17,028.00 for those same years. The approximately $27,000.00 in periodic alimony that he paid has also been deducted before arriving at this figure.

DISCUSSION

As has been stated and restated by this Court, a chancellor's findings will not be disturbed on appeal unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Mount v. Mount, 624 So.2d 1001, 1004 (Miss.1993); Faries v. Faries, 607 So.2d 1204, 1208 (Miss.1992); Tinnin v. First United Bank of Miss., 570 So.2d 1193, 1194 (Miss.1990). This standard in especially applicable to issues arising out of a divorce. Mount, 624 So.2d at 1004; Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992).

A modification of periodic alimony may be made by the chancery court when there has been a material change in circumstances arising subsequent to the original decree. Armstrong v. Armstrong, 618 So.2d 1278, 1281 (Miss.1993); 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).

Perry cites Nichols v. Nichols, 254 So.2d 726, 727 (Miss.1971), wherein this Court stated:

In determining the amount of alimony to be awarded, consideration must be given to the rights of the husband to lead as normal a life as reasonably possible with a decent standard of living. The general rule is that 'the wife is entitled to a reasonable allowance of alimony, commensurate with her accustomed standard of living and the ability of the husband to pay * * *.' Hibner v. Hibner, 217 Miss. 611, 617; 64 So.2d 756, 758 (1953).

The Nichols court reversed the lower court's decision not to modify the alimony award. In that case it was indeed an increase in the wife's income that led to the decision that there should have been a modification of alimony. However, Nichols differs from the case at bar. There, the husband was paying such a large portion of his income in alimony that it resulted in the wife having a much greater standard of living than did he.

Perry argues that this case means that "once the lower court determines a sufficient amount for the wife, it has the duty to test the extent of the burden upon the husband." This is not an accurate interpretation of Nichols. The Court did not necessarily look at the burden upon the husband but in the disparity of the standards of living. The argument fails either way that Nichols is interpreted. There is no real burden on Perry and his standard of living is still significantly greater than Karleen's.

At the time of the divorce Karleen was not employed. Since that time she had begun working at Charter Academy of Mobile. In 1989 she earned $10,420 from that position and in 1990 she earned $24,584.00. Karleen testified that she earned 12.60 per hour but that her hours had been reduced to 24 per week. From this testimony it can be presumed that Karleen's income from working has also been reduced.

In Spradling v. Spradling, 362 So.2d 620 (Miss.1978), this Court held that when making a determination concerning the modification of alimony a chancellor should consider a substantial increase in earnings by one party subsequent to the decree. See also Bracey v. Bracey, 408 So.2d 1387, 1389 (Miss.1982). The Spradling Court went on to say that the increase in the husband's earnings must also be considered. In reversing the chancellor's reduction of alimony where the wife got a temporary teaching position after the rendition of the divorce decree the Court stated:

The modified decree penalizes appellant for being industrious and endeavoring to accomplish something rather than depend on appellee regardless of future circumstances. We do not think the law of alimony contemplates such a penalty.

... Realizing that every case is different, we hold in this case that considering only the new employment by appellant, whether temporary or permanent, this does not rise to a substantial change of circumstances sufficient to modify the alimony payments.

Spradling, 362 So.2d at 624.

It was difficult to determine from Perry's exhibits, testimony or brief his true income and expenses. According to Perry's tax returns his adjusted gross income for 1989 and 1990 was $137,818.00 and $155,720.00 respectively. The periodic alimony paid and his KEOGH contributions are already deducted before gaining this figure. Karleen's adjusted gross income for those same years was $43,041.00 and $59,108 respectively. Karleen's AGI did not include the $20,000.00 in lump sum alimony that she received each of those years.

In his financial statement Perry takes his AGI and then deducts his income taxes, the $20,000.00 lump sum amount and an apparently arbitrary $4,000.00 in interest to arrive at what he terms as his total income available for living expenses and other obligations. He stated this amount was $77,213.00 in 1989 and $87,228.00. Perry contends that these amounts were not enough to cover his debts and living expenses for those years. A close look at Perry's financial statement does not support that contention. Perry...