McHann v. McHann, 51895

• Decision Date: 14 May 1980
• Docket Number: No. 51895,51895
• Parties: Patricia Ellen G. McHANN v. Bobby Leon McHANN.
• Court: Mississippi Supreme Court

Page 823

383 So.2d 823

Patricia Ellen G. McHANN v. Bobby Leon McHANN.

No. 51895.

Supreme Court of Mississippi.

May 14, 1980.

Jean D. Muirhead, Jackson, for appellant.

Young, Scanlon & Sessums, Robert R. Marshall, Jackson, for appellee.

Before PATTERSON, P. J., and SUGG and BOWLING, JJ.

SUGG, Justice, for the Court:

This appeal is from a decree of the Chancery Court of the First Judicial District of Hinds County dismissing appellant's petition to cite appellee for contempt and modifying the alimony provisions of a final decree of divorce by terminating all future obligations of appellee to pay alimony to appellant.

Patricia Ellen G. McHann, appellant, and Bobby Leon McHann, appellee, were married on January 4, 1963. Appellant was granted a divorce from appellee on April 2, 1974. The final decree of divorce incorporated a property settlement agreement of the parties. Under the property settlement agreement appellee conveyed the house and lot jointly owned by the parties in Edwards, Mississippi, to appellant, conveyed appellant an automobile, paid appellant a lump sum alimony of $6200, agreed to pay appellant alimony of $3600 annually, agreed to pay $22 per month on appellant's medical insurance, and agreed to make appellant beneficiary in a $125,000 decreasing term life insurance policy which could never be reduced below $30,000.

Appellant filed a petition to cite appellee for contempt on September 13, 1977, and alleged that appellee had paid only $900 of the $3600 alimony payment due on April 2, 1977, and that appellee had failed to pay the premium due on the decreasing term life insurance policy for the months of June, July and August, 1977. On October 10, 1977, appellee filed his petition to modify the alimony and other support provisions of the divorce decree. Appellee alleged that appellant had engaged in adulterous affairs with numerous men since the divorce and prayed that he be released from all future obligation to pay alimony. The causes were consolidated for trial and hearings were held on April 3, 1979 and June 12, 1979. Appellant filed a motion to amend her petition to cite appellee for contempt to include the alimony payments due in 1978 and 1979, and for additional insurance premiums on the decreasing term life insurance in the amount of $562.95.

Appellant assigns three errors which present four issues as follows: (1) Did the court err in dismissing the petition to cite appellee for contempt? (2) Were the 1978 and 1979 alimony payments vested in appellant? (3) Did the court err in modifying the final decree by relieving appellee of all future obligation to pay alimony or other financial support to appellant? (4) Did the lower court err in not awarding appellant attorney's fees?

I.

In her petition to cite appellee for contempt, the appellant claimed appellee had paid only $900 on the alimony payment due in April, 1977, leaving a balance of $2700 plus three months premium on the decreasing term life insurance policy.

Appellee testified that, following the divorce, he paid appellant, as an advance on alimony, a sum in excess of $4,700 consisting of house payments, bills for electric service to appellant's home, automobile insurance, taxes, and for fungus treatment and for plastic installed in the home deeded to appellant. Appellee claimed that he had overpaid the amount due appellant in excess of $1,900 at the time appellant filed her petition to cite him for contempt. Appellant denied that the payments were made as an advance on alimony and contended that they were made voluntarily. The court, in the final decree, held that appellee was entitled to credit for the payments and had paid appellant an amount in excess of that required to be paid under the terms of the final decree of divorce. The chancellor made this finding based on conflicting testimony, and under the well established rule that we do not reverse a chancellor for finding of fact unless his findings are clearly against the weight of the evidence, we affirm and hold that the petition for citation for contempt was properly dismissed.

II.

The next question is whether the 1978 and 1979 alimony payments were vested in appellant, thereby depriving the chancery court of the authority to relieve appellee of these payments.

In Lee v. Lee, 182 Miss. 684, 181 So. 912 (1938) appellee was granted a divorce from appellant, his wife. The decree provided for alimony on a monthly basis which began at $60 and was reduced to $45 a month by the terms of the decree. After making all payments due by the terms of the decree, appellee filed a petition asking the court to reduce the monthly alimony payments from $45 to $25. After a hearing the trial court reduced the payments from $45 to $25 per month from the time of filing the petition. Appellant filed a petition to cite appellee for contempt for failure to pay the $45 per month required by the original decree. The two petitions were consolidated and tried together. The trial court dismissed the contempt proceeding and granted the prayer of appellee's petition, reducing the amount of monthly payments to $25. One of appellant's arguments on the appeal was that she had a vested right in the $45 per month alimony allowed her by the original decree and appellee was in default $20 per month because he had only paid $25 per month following the filing of his petition for modification. Appellant argued that the vested right could not be taken away because of the clean hands doctrine. On appeal, the decree of the...