Pullis v. Linzey, 1998-CA-01638-COA.

• Decision Date: 16 November 1999
• Docket Number: No. 1998-CA-01638-COA.,1998-CA-01638-COA.
• Citation: 753 So.2d 480
• Parties: David James PULLIS, Appellant, v. Deborah Sue LINZEY F/K/A Deborah Sue Pullis, Appellee.
• Court: Mississippi Court of Appeals

753 So.2d 480

David James PULLIS, Appellant, v. Deborah Sue LINZEY F/K/A Deborah Sue Pullis, Appellee.

No. 1998-CA-01638-COA.

Court of Appeals of Mississippi.

November 16, 1999.

Gary L. Roberts, Attorney for Appellant.

Billy Parlin, Ocean Springs, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., BRIDGES, LEE, AND PAYNE, JJ.

BRIDGES, J., for the Court:

¶ 1. David James Pullis petitioned the Chancery Court of Jackson County to reduce his monthly child support obligation paid to his former wife, Deborah Sue Linzey, for their seven year old daughter. After hearing testimony from several witnesses and reviewing financial documents of both parties, Chancellor Pat H. Watts, Jr. found no material change in circumstances occurred warranting a reduction in child support payments. Several months later, a motion was filed on David's behalf asking the chancellor to revisit the judgement entered against David. The chancellor heard arguments for the Motion to Reconsider and again denied David's request for a reduction in child support payments. David asserts that the chancellor committed reversible error alleging the following:

I. THE TRIAL COURT WAS MANIFESTLY WRONG BY FAILING TO DETERMINE THE APPELLANT PROVED A MATERIAL CHANGE IN CIRCUMSTANCES JUSTIFYING A REDUCTION IN CHILD SUPPORT PAYMENTS.

Finding no merit in this claim, we affirm.

FACTS

¶ 2. David James Pullis and Deborah Sue Linzey, formerly Deborah Sue Pullis, were divorced pursuant to a chancery court decree in June of 1995 after five years of marriage. One daughter, age seven, was born to the marriage. David left high school early and obtained his General Equivalency Diploma (GED). He has no other vocational, technical, academic skills or abilities.

¶ 3. After working as a deckhand, wheel house trainee and other various jobs, David ultimately became a tow boat captain for Gulf Coast Prestress. He worked for Gulf Coast Prestress for twenty-two years in that capacity. He holds a license to operate an uninspected towing vessel restricted to coastal and inland bays issued by the Department of Transportation Coast Guard. This license does not allow David to take passengers for hire or operate anything other than an uninspected towing vessel. David's responsibilities as captain included, but were not limited to, managing a crew of three or four, administering a duty roster and performing minimal electrical and mechanical work. The job required him to live on the boat about 240 days a year. David was sufficiently compensated for serving such hours, his 1995 and 1996 Federal Income Tax Returns showing annual income of $39,970 and $43,547 respectively.

¶ 4. On March 6, 1998 David spoke with his boss at Gulf Coast Prestress and told him that he "couldn't do it any more". David gave notice and voluntarily resigned his position with Gulf Coast Prestress. While admitting that he was not under the care of any medical or psychological professionals, David believed that his health was deteriorating under the stress of his work conditions. He cited weight loss, lack of sleep and marked increases in consumption of cigarettes and coffee as factors influencing his decision. David mentioned other reasons for leaving the job besides the health considerations including "no life, no wife, no family, no friends, no present girlfriends, no holidays" and other similar matters. David left his job as tow boat captain with Gulf Coast Prestress without first securing other employment. He remained out of work for approximately one month but was soon hired as a security guard at Grand Casino Biloxi making $7.50 an hour, working approximately 40 hours a week.

¶ 5. David owns free and clear of encumbrances, his home, valued at $90,000, and a Ford truck, valued at $11,000. He also has $64,000 invested in a 401k plan through Gulf Coast Prestress. As of the date of trial, he owed $16,300 to his parents and was repaying it on very flexible terms. David is required by the divorce decree to carry major medical insurance on the minor child and a life insurance policy on himself. After taxes, social security, and insurance payments, David listed his monthly income as $1, 104.66 against monthly expenses of $1, 648.04, including the $400 monthly child support payment. David believes that these circumstances represent a material change worthy of a reduction in child support payments. We disagree.

STANDARD OF REVIEW

¶ 6. Tedford v. Dempsey, 437 So.2d 410 (Miss.1983), involved an escalation clause in the separation agreement which the husband and wife made as a prerequisite to obtaining a divorce on the grounds of irreconcilable differences pursuant to § 93-5-2 of the Mississippi Code of 1972. In Tedford, the Mississippi Supreme Court noted that the primary duty of the court is to the child and not the parent. The supreme court wrote:

We are first and foremost concerned about the material well being of the ... children.... The legalistic arguments pro and con marshalled by counsel largely ignore this. All need be reminded that in cases such as this the best interests of the children are as always our touchstone.

Tedford, 437 So.2d at 417. It is therefore necessary that we consider the issue presented in light of the above quoted language. In addition, we look to any relevant statutory authority for guidance. Section 93-5-23 of the Mississippi Code of 1972 governs the modification of divorce decrees. It reads in part:

When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of the sum so allowed.... The court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require.

Miss.Code Ann. § 93-5-23 (Supp.1999).

¶ 7. Domestic relations matters are among the most difficult cases dealt with by our chancellors; therefore, the standard of review employed by this Court in these cases is very limited and abundantly clear. Chancellors are vested with broad discretion, and this Court will not disturb the chancellor's findings unless the court's actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997); Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994); Crow v. Crow, 622 So.2d 1226, 1228 (Miss.1993); Gregg v. Montgomery, 587 So.2d 928, 931 (Miss.1991). In regard to the specific issue of child support, a chancellor can modify an award of child support only if there is a material or substantial change in the circumstances of one of the parties. Bruce v. Bruce, 687 So.2d 1199, 1202 (Miss.1996) (citing Shipley v. Ferguson, 638 So.2d 1295, 1297 (Miss.1994); Morris v. Morris, 541 So.2d 1040, 1042-43 (Miss.1989)). David urges this Court to look at the record below and determine whether or not the chancellor's decision to deny modification of his child support obligation was based upon manifest error. "[A] trial court's finding of fact is manifestly wrong when `although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.'" McCoy v. McCoy, 611 So.2d 957, 960 (Miss.1992)(citing UHS-Qualicare v. Gulf Coast Com. Hosp., 525 So.2d 746, 755 (Miss.1987)).

DISCUSSION

¶ 8. The chancellor heard testimony from three witnesses and reviewed the financial records provided by both parties in this matter. David was questioned at trial about his financial condition. He owns his home and car free of mortgages, as well as an additional back lot attached to his property. David testified that he briefly investigated selling the additional lot for extra money. After examining the testimony and attached exhibits from the lower court trial and rehearing, we cannot say that the chancellor made a manifest error by ruling against David. The chancellor was in the best position to determine the credibility of the witnesses and their respective testimony and proof regarding the matter at issue. As is well-established, the chancellor is vested with assessment of witness credibility, and "the interpretation of evidence where it is capable of more than one reasonable interpretation...." Crow v. Crow, 622 So.2d 1226, 1229 (Miss.1993);(quoting Rainey v. Rainey, 205 So.2d 514, 515 (Miss.1967)). David left his job voluntarily. There was no medical evidence presented that would have warranted quitting his job as tow boat captain for health reasons. Rather, David believed that it was unnecessary to consult a doctor testifying at trial that "I pretty much knew on my own from the way that I was acting around my relatives, people I knew, that my personality wasn't normal anymore, and I wasn't going to wait until I had a heart attack to go see somebody. I knew that I needed to get away, and it wasn't going to take a doctor or a psychiatrist to tell me that, so I just figured it out pretty much."

¶ 9. Both parties argue extensively in their briefs about what would constitute an act of "bad faith" on an obligor's part in relation to reducing child support payments as defined in Parker v. Parker, 645 So.2d 1327, 1331 (Miss.1994). David is correct in that no direct...