Jones v. Jones

• Decision Date: 05 April 2005
• Docket Number: No. 2003-CA-01927-COA.,2003-CA-01927-COA.
• Citation: 917 So.2d 95
• Parties: William Lambuth JONES, Appellant v. Jacqueline Kuhrtz JONES, Appellee.
• Court: Mississippi Supreme Court

917 So.2d 95 William Lambuth JONES, Appellant
v.
Jacqueline Kuhrtz JONES, Appellee. No. 2003-CA-01927-COA. Court of Appeals of Mississippi. April 5, 2005. Rehearing Denied June 28, 2005.

Page 96

COPYRIGHT MATERIAL OMITTED

Page 97

Janice T. Jackson, Jackson, attorney for appellant.

James Emory Price, Corinth, attorney for appellee.

Before KING, C.J., CHANDLER and ISHEE, JJ.

CHANDLER, J., for the Court.

¶ 1. Bill Jones and Jackie Jones are a divorced couple who jointly own their former marital home. At the time of the divorce, the home was in need of substantial maintenance, and those maintenance needs continue. When Bill learned that the homeowners' insurance policy would not be renewed if the premises were not cleaned up to an acceptable condition, he filed a petition to sell the property and divide the proceeds, or alternatively, to compel Jackie to buy Bill's interest in the property. Jackie counter-claimed and requested that Bill contribute to the cost of maintaining the home. The Hinds County Chancery Court denied the relief Bill requested and ordered Bill to pay one hundred percent of all past, present, and future maintenance costs on the former marital home. The chancellor also ordered Bill to pay Jackie's attorney's fees. Bill appeals, raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN DENYING BILL'S REQUEST TO PARTITION THE FORMER MARITAL PROPERTY

II. WHETHER THE TRIAL COURT ERRED IN GRANTING JACKIE'S REQUEST TO MODIFY ALIMONY

III. WHETHER THE TRIAL COURT ERRED IN ORDERING BILL TO PAY ONE HUNDRED PERCENT OF THE PAST, PRESENT, AND FUTURE MAINTENANCE ON THE FORMER MARITAL HOME

IV. WHETHER THE CHANCELLOR ERRED IN HOLDING THAT THE AWARD OF ALIMONY COULD BE MODIFIED TO THE EXTENT THAT BILL IS LIABLE FOR ALL PAST AND FUTURE MAINTENANCE

Page 98

WHEN BILL CLAIMS TO HAVE BEEN TAKEN BY SURPRISE

V. WHETHER THE TRIAL COURT ERRED IN GRANTING ATTORNEY'S FEES TO JACKIE

¶ 2. Finding reversible error, we reverse and remand in part and reverse and render in part.

FACTS

¶ 3. William Lambuth (Bill) Jones and Jacqueline Kuhrtz (Jackie) Jones were divorced in May 1986. Bill and Jackie had two children together. These children were emancipated in 1996 and 1999, respectively. Under the terms of the marital dissolution agreement, Jackie was awarded "exclusive use and possession of the former marital residence." The agreement stipulated that the property would remain jointly owned by both Jackie and Bill. Bill was required to pay all mortgage payments, taxes, and insurance for the residence, but he was not obligated to contribute to the maintenance of the home. At the time of the divorce, the residence needed substantial repairs, and it continues to need repairs.

¶ 4. After the divorce, the parties continued to engage in litigation. Bill sometimes fell behind in child support, alimony, and medical expense obligations. On July 28, 1992, the chancery court ordered that the mortgage, taxes, and insurance on the former marital home would be shared equally by Bill and Jackie, beginning on October 1, 1992. On November 17, 1994, the chancery court held that the housing agreement between the parties was in the nature of alimony. In that order, the court declared Bill to be in arrears in child support in the amount of $15,695.51 and Bill was ordered to pay that arrearage within thirty days. Jackie was also awarded attorney's fees. No further action was taken on this order. In 1996, the parties disputed the issue of insurance coverage on the house, and the court ruled that Bill was required to provide hazard insurance on the house, but not content coverage.

¶ 5. After the 1996 order, Bill's financial situation improved dramatically. In 1998, Bill's mother passed away, and Bill received a substantial inheritance. Bill inherited a farm, free of any mortgages, which Bill estimated to be worth about $320,000. Bill's annual income also increased substantially. His adjusted gross income was $22,457 in 2001, and it increased to $91,308 in 2003. In the meantime, Jackie claimed that she continued to experience financial trouble due to Bill's failure to make child support payments. When Bill paid his child support arrearage, Jackie testified that the majority of these payments went to pay her former attorney.¹ Jackie alleged that she started living off her credit cards in order to sustain herself due to Bill's non-payment of child support. She accrued $32,000 in credit card debt, which she consolidated in 2001 and for which she was paying $690 per month at the time of trial, with the debt to be fully repaid some time in 2005.

¶ 6. In September, 2002, Bill filed a "Complaint for Modification of Prior Orders of the Court, and to Terminate Joint Ownership of Real Property." This motion was filed when Bill became aware that the City of Clinton had found the house to be a safety and health hazard, that the property had become uninsurable, and that the homeowner's insurance had been cancelled. In this complaint, Bill requested that the former marital residence be partitioned and sold or, in the alternative, that Jackie be required to pay Bill's interest in that residence.

Page 99

¶ 7. On April 15, 2003, Jackie filed a counter-claim. She cited three events that she claimed constituted a material change in circumstances. First, Bill's financial situation dramatically improved. Second, the monthly mortgage had been paid in full. Third, the former marital home needed additional substantial repairs which Jackie was unable to afford on her own. She requested that Bill pay her "a monthly amount sufficient to allow her to repair and maintain the former marital residence" and she also requested attorney's fees.

¶ 8. The Hinds County Chancery Court denied Bill's requests for relief and granted Jackie's counter-claim. Bill was obligated to pay one-half of the comprehensive insurance premiums on the house, including content coverage, and divide equally with Jackie the payment of real property taxes. This award was held to be in the nature of alimony. Bill was ordered to pay one hundred percent of all past, present, and future maintenance on the former marital residence, and $4,625 for Jackie's attorney's fees.

ANALYSIS

¶ 9. In domestic relations matters, this Court will not disturb a chancellor's findings "unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard." Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994) (citing McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994)).

¶ 10. The following factors are to be considered by the chancellor in arriving at the findings and entering the judgment for alimony: (1) the income and expenses of the parties; (2) the health and earning capacities of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence or absence of minor children in the home; (7) the age of the parties; (8) the standard of living of the parties; (9) the tax consequences of the spousal support order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party and (12) any other factor deemed by the court to be "just and equitable" in connection with the setting of spousal support. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). "The chancellor is required to consider the Armstrong factors, but if he fails to make an on-the-record analysis of them all, it is not fatal." Curtis v. Curtis, 796 So.2d 1044, 1051-52(¶ 34) (Miss.Ct.App.2001) (citing Selman v. Selman, 722 So.2d 547, 554 (¶32) (Miss.1998)).

¶ 11. Alimony associated with the maintenance and support of a former spouse is in the nature of periodic alimony. Cunningham v. Lanier, 589 So.2d 133, 136-37 (Miss.1991). Periodic alimony may be modified subsequent to the decree awarding alimony only in the event of a material change of circumstances. West v. West, 891 So.2d 203, 212 (¶21) (Miss.2004) (citing Taylor v. Taylor, 392 So.2d 1145, 1147 (Miss.1981)). "The change must occur as a result of after-arising circumstances not reasonably anticipated at the time of the agreement." Varner v. Varner, 666 So.2d 493, 497 (Miss.1995).

Not only must the chancellor consider the Armstrong factors in initially determining whether to award alimony and the amount of the award, but the chancellor should also consider the Armstrong factors in deciding whether to modify periodic alimony, comparing the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree.

James v. James, 724 So.2d 1098, 1102(¶ 14) (Miss.Ct.App.1998). See also Steiner v.

Page 100

Steiner, 788 So.2d 771, 776 (¶ 16) (Miss.2001); Anderson v. Anderson, 692 So.2d 65, 72 (Miss.1997).

I. WHETHER THE TRIAL COURT ERRED IN DENYING BILL'S REQUEST TO PARTITION THE FORMER MARITAL PROPERTY

¶ 12. Both parties agree that the former marital home was in disrepair at the time of the divorce. It later became apparent to Bill that the condition of the home was in such poor shape that it was considered a health and safety hazard. In 1998, the City of Clinton sent a letter notifying Bill and Jackie that the condition of the garage was not acceptable to the City Standards, because rubbish was spilling out of it. At trial, the homeowner's insurance agent testified that Alfa Insurance Company did not intend to renew the homeowner's policy as early as...