McNally v. McNally

• Decision Date: 09 December 1987
• Docket Number: No. 56771,56771
• Citation: 516 So.2d 499
• Parties: Cecile McNALLY v. Leo F. McNALLY, Jr.
• Court: Mississippi Supreme Court

Page 499

516 So.2d 499

56 USLW 2379

Cecile McNALLY v. Leo F. McNALLY, Jr.

No. 56771.

Supreme Court of Mississippi.

Dec. 9, 1987.

Joseph R. Meadows, Graves, Riley & Meadows, Gulfport, for appellant.

James N. Randall, Jr., Gulfport, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and GRIFFIN, JJ.

ROBERTSON, Justice, for the court:

Today's case presents a question arising with increasing frequency: one spouse in a new marriage attends professional or graduate school while the other earns the couple's keep. After graduation but before the marriage begins to reap the economic benefits of this professional training, the parties get divorced.

On occasion at the time of the divorce the professionally trained spouse is sufficiently impecunious that no alimony should be awarded. In such cases, we direct that the Chancery Court generally should retain jurisdiction of the alimony feature of the case and pursuant thereto entertain subsequent application for award of alimony.

II.

A.

Leo F. McNally, Jr., and Cecile McNally were married on May 29, 1976, in Gulfport, Mississippi. Of this marriage there has been born one child, Jamie McNally, a female, born on February 11, 1982. The McNallys permanently separated in June of 1984. Cecile McNally is the Appellant here, while Leo is the Appellee.

At the time the McNallys married, Leo had completed his bachelor's degree at the University of Southern Mississippi, and Cecile had received her associate's degree in nursing from Jefferson Davis Junior College and was employed as a nurse. Leo enlisted in the military, as the couple had planned, and soon after their wedding, the McNallys moved to Oklahoma for Leo to begin his military service. From Oklahoma they were transferred to Texas, where they remained until Leo was discharged in 1979. The couple then moved to Memphis, where Leo hoped to enroll in dental school. When Leo was unable to gain admission to the dental school, the McNallys moved to Oxford, Mississippi, and Leo took courses at the University of Mississippi in an effort to raise his grade point average. He was successful, and in 1980, the couple relocated to Jackson and purchased a home. Leo then began his studies at the University of Mississippi Dental School.

In 1981, Cecile unexpectedly became pregnant. The McNallys had not planned to have children immediately. During the early months of her pregnancy, Cecile developed complications and was hospitalized. On the day she was admitted to the hospital, Leo visited her and told her that he was going hunting. When she explained the seriousness of her condition, he stated that he was under a lot of pressure and had not been hunting in some time. Cecile was in the hospital for three days, and Leo did not return from his hunting trip until the day after she was discharged.

In that same year, Leo became involved in an adulterous relationship. There appears in the record correspondence from his partner which indicates that this relationship continued during Cecile's pregnancy. Shortly after Cecile was discharged from the hospital, Leo expressed to her his concern about their finances and the added expense of having a baby. He suggested an abortion. Cecile was not receptive to this suggestion, and within a few weeks of this conversation, Leo moved out. Cecile received no financial support from Leo during the time that he was gone. Leo subsequently returned home, although the record does not indicate the precise date. The couple obtained marital counseling, during which Cecile forgave Leo's adultery. On February 11, 1982, Jamie was born.

After graduating from dental school, Leo obtained employment on the Mississippi Gulf Coast. In anticipation of their move to Gulfport, Cecile resigned from her $1,500.00 per month job in Jackson and accepted employment in Gulfport at $1,000.00 per month. A few weeks after Cecile had submitted her resignation, Leo told her he wanted a divorce. Because the position from which she had resigned had already been filled, Cecile found it necessary to move to Gulfport and accept the lower paying job which she had been offered there.

B.

On July 30, 1984, Leo F. McNally, Jr., commenced the present proceeding by filing his complaint in the Chancery Court of the First Judicial District of Harrison County, Mississippi. In this complaint Leo, acting individually, sought a divorce on the ground of irreconcilable differences. Cecile filed an answer and counterclaimed for divorce on the ground of habitual cruel and inhuman treatment. In her complaint she asked for custody of the child, child support and alimony. Leo then filed an amended complaint alleging habitual cruel and inhuman treatment, and subsequently he filed yet another complaint in which he requested alimony and certain other relief.

On September 24, 1984, the Chancery Court entered a temporary judgment placing custody of the minor child, Jamie, with Cecile and ordering that Leo pay $200.00 per month in child support. The temporary judgment also ordered that Leo pay $500.00 per month by way of temporary alimony.

After a hearing on the merits, the Chancery Court on May 9, 1985, entered final judgment granting Cecile a divorce on the ground of habitual cruel and inhuman treatment. Cecile was given custody of Jamie, and Leo was ordered to pay $300.00 per month child support. He was also given reasonable visitation.

In addition, Leo was ordered to maintain medical and hospitalization insurance on the child; to pay half of all medical, orthodontic, dental and eye care expenses for the child which were not covered by the insured; and to assume all outstanding debts incurred during the marriage and prior to the date of separation, except for the note on the couple's 1984 Toyota Tercel. Cecile was given the use, possession and control of that automobile and ordered to make the monthly payments on it. The judgment contains no order regarding the house which the couple owned, but there is some indication in the record that the house was taken by foreclosure. Significantly, the judgment denied Cecile's request for either periodic or lump sum alimony.

Cecile brings this appeal, arguing that the financial aspects of the judgment for divorce are wholly inadequate.

III.

Cecile's principal complaint on appeal is the Chancery Court's failure to award periodic alimony. On this point the Court below stated:

The Court is of the opinion that to award alimony, either lump sum or continuing, to Mrs. McNally in addition to child support and the responsibility for the debts of the marriage would be unduly burdensome on Mr. McNally. Therefore, the prayer for alimony, both lump sum and continuing, must be denied.

Incident to a judgment for divorce, a chancery court has authority to award alimony after considering, weighing and balancing familiar factors: (1) the health and earning capacity of the husband, (2) the health and earning capacity of the wife, (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 free use of the home, furnishing and automobile, and (9) such other facts and circumstances bearing on the subject that might be shown on the evidence. Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147 (1955).

The Chancery Court's decision on alimony will not be disturbed on appeal unless it be found against the overwhelming weight of the evidence or manifestly in error. Harrell v. Harrell, 231 So.2d 793 (Miss.1970). In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen oppressive, unjust or grossly inadequate so as to evidence an abuse of discretion. Martin v. Martin, 271 So.2d 391 (Miss.1972).

The record in the case at bar indicates that Cecile's total income during the eight year period of the marriage was between $135,000.00 and $140,000.00. Because Leo was in dental school from 1980 until 1984, his total income during the marriage was approximately $65,000.00.

At the time of trial neither party was earning a monthly income adequate to pay his or her expenses. Leo's monthly net income was approximately $1,050.00, and his monthly expenses appeared to total more than $2,000.00, leaving a net short fall of approximately $1,000.00 per month. Cecile's monthly net income was approximately $900.00. Her monthly expenses, less the $300.00 which she was awarded for child support, were approximately $1,100.00, leaving a net short fall of approximately $200.00 per month. Neither party's financial position is enviable.

At the time of trial, May, 1985, Leo quite apparently was unable to pay alimony, although his inability to pay alimony appears to be exceeded only by Cecile's need for alimony....