Justus v. Justus
| Decision Date | 10 February 2009 |
| Docket Number | No. 2007-CA-01119-COA.,2007-CA-01119-COA. |
| Citation | 3 So.3d 141 |
| Parties | Robert Stafford JUSTUS, Sr., Appellant v. Brenda Lott JUSTUS, Appellee. |
| Court | Mississippi Court of Appeals |
William B. Jacob, Joseph A. Kieronski Jr., Daniel P. Self Jr., Meridian, attorneys for appellant.
Robert D. Jones, Meridian, Henry Palmer, attorneys for appellee.
EN BANC.
LEE, P.J., for the Court.
PROCEDURAL HISTORY
¶ 1. Robert Justus Sr. (Dr. Justus) and Brenda Lott Justus (Ms. Justus) were granted a divorce based on irreconcilable differences on April 30, 1991. Ms. Justus was awarded alimony in the amount of $3,250 per month. On March 24, 1998, an order was entered by the trial court reducing the alimony to $2,900 per month, reflecting an agreement of the parties. In February 2005, Dr. Justus filed a complaint in the Lauderdale County Chancery Court for modification of the prior decree and requested, among other things, that the chancellor reduce or eliminate the alimony.
¶ 2. A trial was held, and on May 30, 2007, the chancellor entered an opinion and ordered that the alimony should remain at $2,900 per month. Dr. Justus now appeals the decision of the chancellor, asserting the following issues: (1) the chancellor erred in failing to find a material change in circumstances justifying the reduction or elimination of the alimony; and (2) the chancellor applied an erroneous legal standard to the application of the Armstrong factors. Finding no error, we affirm.
FACTS
¶ 3. Dr. Justus and Ms. Justus divorced after sixteen years of marriage. When the couple divorced, Dr. Justus was thirty-eight years old, and Ms. Justus was thirty-nine. Three children were born of the marriage. At the time of the request for modification of the alimony, Dr. Justus and Ms. Justus were fifty-four and fifty-five years old, respectively. Both parties are healthy and working to their maximum earning capacity.
¶ 4. Dr. Justus and his current wife, Mary Beth, have one child together, who was twelve years old at the time of the order denying modification of the alimony. Mary Beth also has two children from a previous marriage. Dr. Justus operates a periodontal practice in Meridian, Mississippi. The business's income has varied from year to year. At the time of the divorce, Ms. Justus produced expert testimony from a certified public accountant projecting Dr. Justus's future income at the Meridian office to range between $240,000 and $300,000. However, from 1998 until the request for modification of alimony in February 2005, the income from the periodontal office ranged from approximately $66,000 to $207,000 a year, making his average income $137,000 a year. Dr. Justus attributed the decline in his practice to increased competition in Meridian and fewer referrals of new patients. Dr. Justus owns the building where his clinic is located and rents out the other office spaces. The monthly rental income from the building is $4,000.
¶ 5. Dr. Justus also practices at the Cumberland Dental Clinic in Tuscaloosa, Alabama. He usually travels to the clinic one day a week. He has worked with the Tuscaloosa clinic since 2000 and receives a percentage of the funds collected for his services. He estimates his gross annual income from this clinic is $50,000. In 2001, he became a reserve officer with the Mississippi Air National Guard Medical Unit.
¶ 6. The lowest adjusted gross income reported by Dr. Justus and Mary Beth was $174,951 in 1999, and the highest adjusted gross income reported was $318,563 in 2001. A capital gain from the sale of stock increased the couple's adjusted gross income in 2001. At the time of the request for modification of alimony, Dr. Justus's average monthly income from his salary, building rental, and the Air National Guard was $18,584. This made his annual income at the time of the request for modification of the alimony approximately $223,008.
¶ 7. Dr. Justus pays the housing and colleges expenses for his and Ms. Justus's twenty-year-old daughter, Audrey. He also contributes to the college and living expenses of his two stepsons. The two stepsons each receive a $12,000 annual salary from Dr. Justus's periodontal office for various dental and "handyman" work around the office. Dr. Justus pays his mother a salary of $7,920 per year to do various chores around his office. He estimates that the total paid out per month to family members from his office is $3,000. Dr. Justus and Mary Beth's daughter attends private school. Dr. Justus estimates his monthly expenses for this child to be approximately $1,185.
¶ 8. At the time of the divorce, Ms. Justus did not work outside the home. She cared for the couple's three minor children and received sole custody of the children at the time of the divorce. She was awarded $1,800 a month in child support to be paid until the oldest child reached the age of majority or became emancipated. The couple's two oldest children, Stafford and Jarrod, were emancipated pursuant to the settlement agreement in March 1998. At the time of the settlement agreement, the youngest child, Audrey, was twenty years old and attending college. In March 1998, Ms. Justus went to work as a part-time teacher at Lamar Elementary School. She worked as a full-time teacher for the 1998 through 1999 school year. In 1998, she earned $10,361, and in 1999, she earned $20,692.
¶ 9. In 1999, Ms. Justus sold the former marital home, which was awarded to her in the divorce, and moved to Collierville, Tennessee. She realized approximately $85,000 in equity from the sale of the home, which was used toward the purchase of her home in Collierville. Dr. Justus paid the monthly note of $1,036.44 on the home until it was sold. The sale of the home eliminated Dr. Justus's requirement to pay Ms. Justus's mortgage. Ms. Justus makes the payment on the Collierville home; thus, her expenses have increased.
¶ 10. After moving to Collierville, Ms. Justus began working as a teacher in Memphis. At the time of the hearing, she was still working as a teacher in Memphis and earning extra income from tutoring and teaching summer school. Her annual base salary is $45,688, and she receives a two percent annual raise. Her gross monthly income from salary is $3,807. She also receives $2,900 in alimony and $775 in child support per month. Therefore, her total monthly income is $7,482. After deductions, the resulting net income is $5,879. She has also established a savings account and retirement accounts. She estimates that her monthly expenses are approximately $4,937.
¶ 11. Pursuant to the settlement agreement in 1998, Ms. Justus received as her sole property a certificate of deposit (CD) in the amount of $25,000 and the remaining funds in the approximate amount of $12,000 derived from a previous CD. The CDs were intended for the children's education and were frozen by the divorce decree. In March 1998, the two oldest children were emancipated but not attending college. Ms. Justus acquired these funds, but she had no record of how they were spent. According to her testimony, she spent $12,000 to pay off a debt owed by the couple's oldest son, Stafford. She testified that the remainder of the $25,000 was given to Stafford when he moved out of state. As for the $12,000, Ms. Justus testified that she paid approximately $6,000 of this amount on attorney's fees after one of her sons was arrested, and she expended the remainder of the $12,000 on other expenses for this son. Although there was no documentation of the distribution of these funds, the chancellor found that Ms. Justus no longer had any of the money from the CDs.
STANDARD OF REVIEW
¶ 12. This Court will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of law, or manifest error. Andrews v. Williams, 723 So.2d 1175, 1177 (¶ 7) (Miss. Ct.App.1998). Thus, if we find substantial evidence in the record to support the chancellor's findings, we will not reverse. Wilbourne v. Wilbourne, 748 So.2d 184, 186 (¶ 3) (Miss.Ct.App.1999). "The Court reviews questions of law, however, under a de novo standard." Stacy v. Ross, 798 So.2d 1275, 1278 (¶ 13) (Miss.2001).
DISCUSSION
¶ 13. Dr. Justus argues that the chancellor erred in denying his request for a reduction or termination of the alimony. He argues that both his and Ms. Justus's financial situations have changed such that a modification is warranted.
¶ 14. "Alimony awards by the court or by an agreement incorporated into the decree of the court, if not lump sum, have long been subject to modification upon proof of material change in circumstances subsequent to entry of the decree because of public policy." Anderson v. Anderson, 692 So.2d 65, 70 (Miss.1997) (quoting Taylor v. Taylor, 392 So.2d 1145, 1147 (Miss.1981)). The material change in circumstances must not be one that is anticipated by the parties at the time of the original decree. Id. In determining an award or modification of alimony, the chancellor must consider the factors set out in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). Parker v. Parker, 934 So.2d 359, 361 (¶ 5) (Miss.Ct.App. 2006). The Armstrong factors are:
(1) the income and expenses of the parties; (2) the health and earning capacity 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 and absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide child care; (7) the age of the parties; (8) the standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) any fault or misconduct; (11) wasteful dissipation of the assets by either party; (12) any other factor deemed by the court to be "just and equitable" in connection with the setting of...
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