Tanner v. Tanner, 56584
| Decision Date | 18 December 1985 |
| Docket Number | No. 56584,56584 |
| Parties | Edward J. TANNER v. Karen E. TANNER. |
| Court | Mississippi Supreme Court |
James N. Randall, Jr., Gulfport, for appellant.
Kelly McKoin, Biloxi, for appellee.
Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.
A difficult financial decision is presented in this separate maintenance suit from the Chancery Court of Harrison County. Karen E. Tanner filed for separate maintenance for herself and four minor children from her husband Edward J. Tanner. From an award of separate maintenance the husband appeals charging that:
(1) The chancellor erred as a matter of law and fact in ordering appellant to pay an aggregate sum exceeding the appellant's net monthly salary, thereby denying appellant a reasonable standard of living.
(2) The chancellor was in error in ordering that the appellee use "reason and restraint" in utility usage, as such order lacked specificity, definiteness and certainty rendering the order void.
Karen E. Tanner, age 28 years, and Edward J. Tanner, age 31 years, were married in 1974 and separated in 1985. Four children, ages 10, 9, 6 and 5 were born to this marriage. Mr. Tanner was manager of a fast food restaurant netting a salary of $1460.70 per month. Mrs. Tanner had brain surgery six years ago and suffers from grand mal seizures. Her daily medications include dilantin and phenobarbital. Taking care of the household and family was Mrs. Tanner's daily routine. However, she does not drive an automobile due to susceptibility to seizures and she depends on family and friends for transportation. Mr. Tanner left the family residence and secured a separate apartment. Both parties are of the Catholic faith.
The chancellor ordered the husband to pay the debts and obligations incurred during the marriage by contract, as follows:
Monthly
Name of Creditor Balance Payment
----------------- ---------- -------
American Finance $1,395.00 $ 82.01
Household Finance 3,740.00 110.00
Firestone 226.15 24.00
Jackson Hospital 754.02 20.00
---------- -------
Subtotal $6,115.17 $236.01
Other Liability
--------------------------------------
Crescent Federal $5,886.55 $107.03
---------- -------
TOTAL $12,001.72 $343.04
Additionally, taxes and insurance on home were averaged and ordered to be paid by appellant as follows:
Taxes on Residence $ 6.00
Insurance on Residence $ 33.00
The chancellor then ordered the appellant to pay to appellee six hundred dollars: four hundred dollars for food, one hundred dollars for clothes, and one hundred dollars for transportation. Telephone and electric utilities were estimated and averaged to be as follows:
Telephone $ 30.00
Electric Utility $147.00
The order further stated:
Plaintiff shall be as economical as possible and use reason and restraint incurring bills to be paid by the Defendant and shall submit the bills or true copies thereof to him prior to payment. Fixed monthly bills are not to be submitted to the Defendant, nor is the use of the $600.00.
Appeal here is taken only as to the amount awarded against appellant and a failure to state a specific and reasonable sum for utilities.
In Mississippi, following the decision in King v. King, 246 Miss. 798, 152 So.2d 889, 891 (1963), a decree for separate maintenance and support is, in effect, a command to the husband to resume cohabitation with his wife or else provide for her until reconciliation. It was held in Serio v. Serio, 231 Miss. 147, 94 So.2d 799, (1957), that an allowance of separate maintenance and support vel non, and the amount to be awarded, are for the most part matters within the discretion of the chancellor. In Harrell v. Harrell, 231 So.2d 793, 796 (Miss.1970), such discretion was reaffirmed, with this Court adding that such decisions would not be set aside unless they were "against the overwhelming weight of the evidence." This same standard was applied by this Court as to the modification of an alimony decree in DeMarco v. DeMarco, 199 Miss. 165, 24 So.2d 358 (1946). In DeMarco this Court derived a principle from an earlier case, Lee v. Lee, 182 Miss. 684, 181 So. 912 (1938): "the chancellor's decision, on the facts, modifying alimony decree will not be set aside unless it is against the overwhelming weight of the evidence." 24 So.2d at 359. The similarity between cases in which alimony was awarded following the granting of a divorce and cases in which divorce was denied, or not petitioned for, but in which the chancellor ordered the payment of separate maintenance and support, was established by this Court in Owens v. Owens, 234 Miss. 261, 106 So.2d 59 (1958). It was held in Owens, supra, that "there is little difference between a suit for separate maintenance and a suit for alimony and substantially the same principles of law apply in fixing the amount." 106 So.2d at 62. It is evident on the basis of the foregoing opinions of this Court, that the chancellor is shown great deference with regard to the matters which are the subject of this appeal. However, such deference and discretion granted the chancellor is not wholly unrestrained, and certain equitable guidelines have emerged from decisions of this Court in cases dealing with alimony and separate maintenance and support. There is a presumption in such cases, expressed by this Court in Pickering v. Pickering, 51 So.2d 740, 741 (Miss.1951), that the chancellor has "taken into consideration all of the relevant factors affecting the question" in determining the appropriate amount of such payments. This principle was reiterated by this Court in Gardiner v. Gardiner, 230 Miss. 778, 93 So.2d 638, 641 (1957).
The jurisdiction of the chancery court to make an allowance to a wife living apart from her husband for her separate maintenance is to be exercised according to equitable principles, and the amount to be allowed in any case in which...
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Robinson v. Robinson, 07-58575
...bearing on the subject that might be shown by the evidence. Gray v. Gray, 484 So.2d 1032, 1033 (Miss.1986); Tanner v. Tanner, 481 So.2d 1063, 1065 (Miss.1985). John testified his annual rate of pay in 1987 would be $88,700.00 and that he has received consecutive raises for 18 years. His ass......
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Day v. Day, 56837
...maintenance until there may be a reconciliation. King v. King, 246 Miss. 798, 802, 152 So.2d 889, 890-91 (1963); Tanner v. Tanner, 481 So.2d 1063, 1064 (Miss.1985). And if the husband should, in good faith, offer to cohabit and treat the wife with conjugal kindness, the wife's right to sepa......
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Voda v. Voda, 97-CA-00247-SCT.
...Armstrong, 618 So.2d at 1280.) ¶ 11. We presume on appeal that the chancellor has taken all factors into consideration. Tanner v. Tanner, 481 So.2d 1063, 1064 (Miss.1985)(quoting Pickering v. Pickering, 51 So.2d 740, 741 (Miss. 1951) and citing Gardiner v. Gardiner, 230 Miss. 778, 93 So.2d ......
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Huseth v. Huseth
...that might be shown by the evidence.Robinson, 554 So.2d at 305 (citing Gray v. Gray, 484 So.2d 1032, 1033 (Miss.1986); Tanner v. Tanner, 481 So.2d 1063, 1065 (Miss.1985)). ¶ 20. Mike testified that his only source of income is his paycheck from Lakin Enterprises of $3,709.06 per month. Afte......