Taylor v. Taylor

• Decision Date: 21 January 1981
• Docket Number: No. 52031,52031
• Citation: 392 So.2d 1145
• Parties: Elizabeth N. TAYLOR v. O. B. TAYLOR, Jr.
• Court: Mississippi Supreme Court

Page 1145

392 So.2d 1145

Elizabeth N. TAYLOR v. O. B. TAYLOR, Jr.

No. 52031.

Supreme Court of Mississippi.

Jan. 21, 1981.

B. Stirling Tighe, Tighe, Ross & Robinson, Jackson, for appellant.

Joe R. Fancher, Jr., Powell & Fancher, Canton, for appellee.

En Banc.

PATTERSON, Chief Justice for the Court:

Elizabeth N. Taylor filed a petition in the Chancery Court of Madison County against O. B. Taylor, Jr. for modification of a divorce decree previously entered by that court. The Chancellor dismissed the petition on demurrer holding as a matter of law that the petitioner was not entitled to the modification sought. Aggrieved, Mrs. Taylor appeals.

She has filed three assignments of error but the primary question involved is whether or not the final divorce decree, involving property rights and alimony, is subject to modification.

The decree was rendered July 14, 1977, on the ground of irreconcilable differences. On July 8, 1977, the parties executed an instrument entitled "Separation, Alimony and Property Settlement Agreement." Among other things, it provided, "Husband and wife are each represented by counsel and now desire to settle and agree among themselves with reference to separation, alimony and property rights between them arising from said marriage." Alimony was stated as follows:

"... $2000 per month alimony until February 1981.

... $1000 per month alimony from February 3, 1981, and thereafter,

... the mortgage payments of $271.31 monthly on the condominium, as additional alimony,

... the premium on $30,000 life insurance policy on the husband of which the wife is beneficiary in additional alimony,

... the premium on $50,000 life insurance policy in an alimony trust for the wife is additional alimony."

The court held in its decree that the parties had made adequate provision for alimony and maintenance of the wife and the disposition of their properties. It was ordered that the agreement be incorporated into, and made a part of, the decree and each party was ordered to abide by its terms.

The Chancellor, in sustaining the demurrer, reasoned that a divorce decree which incorporates an agreement of the parties in settlement of property and alimony and which explicitly provides the agreement is a full and final settlement of all claims for alimony is not subject to modification as to the alimony alone. And, indeed, the agreement was and is between two mature and competent persons who were each represented by able counsel when the contract was drawn and which unquestionably does incorporate unambiguously an intention of finality. In part the agreement states:

"This agreement shall constitute a full and final settlement of any and all claims and demands of Elizabeth N. Taylor against O. B. Taylor, Jr., or by O. B. Taylor, Jr., against Elizabeth N. Taylor for alimony of any kind or nature and shall constitute a full and final settlement and adjustment of all property rights of the parties, including either party from any further demand against the other in any event."

As mentioned the divorce was obtained because of the irreconcilable differences existing between the parties. The authority for the divorce is found in Mississippi Code Annotated, Section 93-5-2 (Supp.1979) and follows in part:

"Divorce from the bonds of matrimony may be granted on the ground of irreconcilable differences, but only upon the joint bill of the husband and wife or a bill of complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process. No divorce shall be granted on the ground of irreconcilable differences unless the court shall find in its decree that the parties have made adequate and sufficient provision by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties. The agreement may be incorporated in the decree, and such decree may be modified as other decrees for divorce...." (emphasis added).

The issue presented is whether the legislature intended by the emphasized language above to carry into the statute on irreconcilable differences the right of modification of periodic payments of alimony as it has long existed by statute and case law in divorce decrees which were based upon other grounds. Unquestionably, alimony awards by the court or by an agreement incorporated into the decree of the court, if not lump sum, have long been subject to modification upon proof of material changes in circumstances subsequent to entry of the decree because of public policy. See Keller v. Keller, 230 So.2d 808 (Miss.1970); and Hughes v. Hughes, 221 Miss. 264, 72 So.2d 677 (1954), wherein the court approved that stated in Bunkley & Morse's Amis, Divorce and Separation in Mississippi, Section 209 (now Section 6.14), the following pertaining to consent decrees:

"Such a consent decree merely dispenses with the necessity of taking proof and making an allowance based thereon. And in all cases it is the decree of the court, rather than the contract of the parties, and may be enforced, modified, or revoked, in the same way as if it had been an adjudication based on testimony duly taken. There is much authority on the contrary, holding that a judgment by agreement or consent, is a mere record contract and that it may not be changed or modified by the court. That is the rule in other classes of cases; but the duty of the husband to support his wife is a matter in which the state has an interest, and the statute has accordingly authorized the court to change or modify any decree for continuous alimony, and to make new decrees from time to time as the necessities of the case may require. Such being true, the parties may not by contract or agreement deprive the court of that power, nor may the court itself renounce it. It is a continuing duty of the court as well as a continuing power. The whole question of the wife's alimony, and all its incidents is committed by the statute to the court, as a continuing power and duty; and it would be a strange proceeding, if the court, by adopting the agreement of the parties and incorporating it into the decree as its adjudication could thereby estop itself, or abdicate the duty, power and authority conferred on it by statute. Whatever may be the rule elsewhere the statute in this state is supreme; and every agreement in reference to alimony, to be incorporated in any decree of the court, is made subject to the power of the court to modify or revoke it, which is necessarily incorporated in every such agreement." (221 Miss. at 267, 268, 72 So.2d at 677, 678).

We again approved and affirmed that set forth above in Stone v. Stone, 385 So.2d 610 (Miss.1980), a suit involving both alimony and property.

Section 93-5-23 of Mississippi Code Annotated (Supp.1979) provides in pertinent 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 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 decree as the case may require...." (emphasis added).

We considered this section in McKee v. McKee, 382 So.2d 287 (Miss.1980), on petition for rehearing, and once again approved the principal of modification. Although McKee was not a case based upon a divorce for irreconcilable differences, it did concern a consent decree as to property, maintenance of children, and alimony for the wife in a final decree for divorce. In considering this section we held:

"It is apparent to this Court from the careful wording of this detailed and specific 'Final Decree of Divorce', dated February 25, 1972, that Curtiss McKee and Mary Griffin McKee intended to settle once and for all, all property questions and all alimony questions existing between them. They were being divorced each from the other, and it was certainly desirable that they settle once and for all, all differences between them. They both were mature and intelligent adults; both were advised by competent and experienced counsel. We held in In re Estate of Kennington, 204 So.2d 444 (Miss.1967), that such '(m) arital settlement agreements are not contrary to public policy.' ...

This simply means that each case must sit on its own bottom; each must be considered on its own merits; each must be decided on the facts and circumstances of that particular case.

While it is true that an agreed decree as to alimony is subject to review because of a material change of circumstances, careful consideration will always be given to the intent and purpose of the parties at the time the Final Decree of divorce is entered, and such a decree as to alimony, will not be modified unless the change in circumstances is clear and substantial." (382 So.2d at 288)

A scrutiny of Section 93-5-2 reveals that it does not literally use the word "alimony", but rather speaks in direct terms only to "sufficient provision by written agreement" for the maintenance of children of the marriage and "for the settlement of any property rights between the parties." Although this statute is silent regarding alimony, indicating the parties are not absolutely required to make provision for such in order to obtain a divorce on the grounds of irreconcilable differences, in this case the parties voluntarily chose to reach an agreement providing for periodic payments of alimony to the wife, thus bringing their Final Consent decree under the purview of the modification clause contained in Section 93-5-2. It could be argued that the legislature did not intend any alimony in...