Shaeffer v. Shaeffer

• Decision Date: 18 April 1979
• Docket Number: No. 51114,51114
• Citation: 370 So.2d 240
• Parties: Betty W. SHAEFFER v. George W. SHAEFFER.
• Court: Mississippi Supreme Court

Page 240

370 So.2d 240

Betty W. SHAEFFER v. George W. SHAEFFER.

No. 51114.

Supreme Court of Mississippi.

April 18, 1979.

Warren & Jones, Peggy A. Jones, Holly Springs, for appellant.

Michael L. Kemp, Holly Springs, for appellee.

Before ROBERTSON, WALKER and LEE, JJ.

WALKER, Justice, for the Court:

This is an appeal by Betty W. Shaeffer from a decree of the Chancery Court of Marshall County modifying a former divorce decree relative to alimony and child support.

George W. Shaeffer and Betty W. Shaeffer were married on July 30, 1966, and lived together for over ten years until they separated on September 20, 1976. One child, Scott Michael, was born of this marriage. Mrs. Shaeffer had another son from a previous marriage.

On September 27, 1976, Betty W. Shaeffer filed her original bill for divorce and other relief in the Chancery Court of Marshall County. Process was had upon the defendant, George W. Shaeffer, in January, 1977. Mr. Shaeffer did not contest the proceedings and was in West Virginia at the time the divorce was heard.

In the decree of January 26, 1977, Mrs. Shaeffer was awarded a divorce, permanent custody of the minor child, exclusive use and occupancy of the residence of the parties, exclusive use of all household furnishings, furniture and fixtures, together with all yard tools, including lawnmowers and all other personal property located on the premises, $300.00 per month alimony and $300.00 per month child support. It was further ordered that beginning February 1, 1977, a lien was to be impressed on the house and two lots to secure payment of alimony and child support. Mr. Shaeffer was also ordered to pay all medical and dental bills of the child, all taxes, fire insurance and exterior repairs to the home. Mrs. Shaeffer was awarded use of a 1968 Chrysler automobile. Mr. Shaeffer was ordered to pay Mrs. Shaeffer $250.00 for attorney's fees. This decree was not appealed.

In October, 1977, after having remarried, Mr. Shaeffer filed a petition seeking modification of the original divorce decree, alleging that there had been such a material change in the circumstances of the parties as to require modification of the alimony payments and child support payments.

The cause was heard in regular term on August 4, 1978, with testimony being given by both appellant and appellee. A decree was rendered reducing Mr. Shaeffer's alimony payments from $300.00 to $150.00 and his child support payments from $300.00 to $200.00, although there was no proof of a material or substantial change in circumstances.

The issue before us is whether the chancellor erred in reducing the alimony and child support from that ordered in the original decree.

Mississippi Code Annotated section 93-5-23 (1972) provides:

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 any allowance to be made to her, and may, if need be, require sureties 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. However, where proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each.

In Williams v. Williams, 127 Miss. 627, 635, 90 So. 330, 331 (1921), the Court, on construing the language of section 93-5-23, held that the statute "does not authorize the court to set aside a decree rendered at a former term and render another in lieu thereof, but only to change or modify the terms of a former decree in accordance with the after-arising circumstances of the parties."

To justify changing or modifying the original decree there must be a material or substantial change in the circumstances of the parties. Spradling v. Spradling, 362 So.2d 620 (Miss.1978); Savell v. Savell, 290 So.2d 621 (Miss.1974). The material or substantial change is relative to only the after-arising circumstances of the parties following the original decree.

The chancellor's decision to reduce the amount of Mr. Shaeffer's alimony and child support payments was not founded on a material or substantial change in the after-arising circumstances of the parties. The chancellor felt that he had allowed too much alimony and child support in the first instance. This was error and the cause must be reversed for that reason.

The appellee contends, however, that the chancellor...