Townsend v. Townsend, 2002-CA-02087-SCT.

• Decision Date: 13 November 2003
• Docket Number: No. 2002-CA-02087-SCT.,2002-CA-02087-SCT.
• Citation: 859 So.2d 370
• Parties: Shelby Michael TOWNSEND v. Cathy Rose Woods TOWNSEND (Kinningham).
• Court: Mississippi Supreme Court

859 So.2d 370

Shelby Michael TOWNSEND v. Cathy Rose Woods TOWNSEND (Kinningham).

No. 2002-CA-02087-SCT.

Supreme Court of Mississippi.

November 13, 2003.

Michael V. Ratliff, Hattiesburg, attorney for appellant.

William Lawrence Peebles, Eugene Love Fair, Hattiesburg, attorneys for appellee.

Before SMITH, P.J., EASLEY and GRAVES, JJ.

EASLEY, Justice, for the Court.

PROCEDURAL HISTORY OF THE CASE

¶ 1. This case involves a conflict in the written terms of a final divorce decree and the memorandum of understanding, incorporated by reference into the final divorce decree, concerning retirement benefits. The problem arises from the fact that in the memorandum the retirement benefits were written in terms of a property interest whereas in the final divorce decree they were written in terms of an alimony payment.

¶ 2. Cathy Rose Woods Townsend (Cathy) and Shelby Michael Townsend (Michael) were married in 1971. After more than twenty-five years of marriage, Cathy filed for divorce from Michael. On April 4, 1997, a final judgment of divorce was entered in the Chancery Court of Forrest County, Mississippi, the Honorable James H.C. Thomas, Jr. presiding. Cathy was granted a divorce from Michael on the grounds of uncondoned adultery, and the chancellor dismissed Michael's counterclaim. Two children were born during the marriage, both of which were emancipated, and accordingly no custody or child support was at issue.

¶ 3. Prior to the final judgment the chancellor entered a Memorandum Opinion on March 13, 1997. This memorandum was specifically incorporated into the April 4, 1997, final judgment of divorce. The memorandum does not contain the word "alimony." The form of the judgment was not signed by either Michael, Cathy or their respective counsel.

¶ 4. The payment of the retirement benefits to Cathy by Michael became an issue when Cathy remarried in 2002. On September 27, 2002, Michael filed a motion for modification of the final judgment of divorce. Michael based his motion for modification on the recent marriage of Cathy to Harry Thomas Kinningham, Jr. on May 27, 2002. In his motion, Michael requested that the chancery court modify their final judgment of divorce and eliminate the requirement that he pay alimony to Cathy, terminate his requirement to maintain Cathy as a beneficiary on a life insurance policy and require that Cathy return $2,000 in payments that she allegedly wrongfully received from him.

¶ 5. Chancellor Thomas was the chancellor that heard the divorce case, granted the final judgment of divorce containing the memorandum opinion, and also heard the motion for modification. On November 12, 2002, Chancellor Thomas denied the motion for modification. The chancellor ruled that the language of the memorandum was the correct finding and determination of equitable distribution of marital assets and that the language of the final divorce decree misstated the intent of the court and had "improper wording."

¶ 6. After careful review, this Court affirms the chancellor's ruling which denied the modification of the retirement benefits of the final divorce decree. Both Cathy and Michael raised the issue of continuing the life insurance coverage of Michael for Cathy's benefit, the chancellor did not specifically address that issue, and we find that this issue is not properly before this Court for appellate review.

ISSUES

I. Whether the chancery court erred in denying the motion to modify the final judgment of divorce.

II. Whether the chancery court in effect amended the final judgment of divorce in violation of Rule 60 of the Mississippi Rules of Civil Procedure.

LEGAL ANALYSIS

Standard of Review

¶ 7. "This Court will not disturb the chancellor's opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." McBride v. Jones, 803 So.2d 1168, 1169 (Miss.2002) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)). When reviewing a decision of a chancellor, this Court has only a limited standard of review. McNeil v. Hester, 753 So.2d 1057, 1063 (Miss.2000). This Court reviews the chancellor's decisions under an abuse of discretion standard. Id. This Court will not disturb the findings of a chancellor "unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard." Id. "The Court reviews questions of law, however, under a de novo standard." Stacy v. Ross, 798 So.2d 1275, 1277 (Miss.2001) (citing Zeman v. Stanford, 789 So.2d 798, 802 (Miss.2001)).

The Documents

A. The memorandum

¶ 8. The first page of the Memorandum Opinion clearly stated that the "[i]ssues presented are (1) grounds for divorce and (2) equitable distribution of property." (emphasis added). The memorandum then identified an agreed personal property settlement and next identified "[o]ther items of property" which included "United States Air Force (USAF) retirement benefits." The memorandum stated the following:

Clear and convincing evidence at trial showed plaintiff to have participated in the marriage as a contributing partner with Defendant, helping him through college during the first two years of the marriage thus enabling him to qualify and complete a career as a pilot in the USAF. Plaintiff did everything expected of a career service wife including the birth and rearing of two children as well as participating in other career enhancing activities. She is entitled to a substantial portion of the retirement thus created by that career, which the Court sets at $1,000.00 per month of the net retirement proceeds.

The memorandum further stated:

Plaintiff shall continue to be entitled to health benefits under CHAMPUS as appropriate under existing entitlements of retired military [dependents]. Since the retire[ment] benefits end at Defendant's death, he shall continue to maintain the life insurance currently in force described at trial as $500,000.00, with Plaintiff designated as beneficiary on one-half of the benefits and the children of the parties jointly designated as beneficiaries on one-half of the coverage.

(emphasis added).

¶ 9. The memorandum also stated the following in regard to the preparation of a judgment:

Counsel for Defendant [Michael] is directed to prepare the appropriate judgment in keeping with this opinion.

B. The final judgment of divorce

¶ 10. The April 1997 final judgment of divorce stated in pertinent part:

V.

During the course of the marriage, the parties accumulated certain real and personal property, including ... United States Air Force retirement benefits ...

* * *

VIII.

Mrs. Townsend is entitled to alimony of $1,000.00 per month payable from Mr. Townsend's military retirement benefits.

* * *

XIII.

Attached and incorporated into this Final judgment of Divorce as Exhibit "B" is the Memorandum Opinion issued on March 13, 1997.

C. The chancellor's ruling denying the motion for modification.

¶ 11. In the order denying a modification of the final judgment of divorce, the chancellor ruled that the language of the memorandum was the correct finding and determination of equitable distribution of marital assets and that the language of the final divorce decree misstated the intent of the court and had "improper wording." As stated previously, Chancellor Thomas presided over the divorce proceedings and Michael's motion. The chancellor ruled as follows:

The Final Judgment of Divorce, inter alia, granted Plaintiff alimony of $1,000.00 per month from Defendant's military retirement. Plaintiff remarried on May 27, 2002. The Final Judgment of divorce followed a trial of the matter and a Memorandum Opinion issued by the Court in which it was the finding of the Court that Plaintiff "... is entitled to a substantial portion of the retirement... which the Court sets as $1,000.00 per month of the net retirement proceeds," after finding Plaintiff contributed to Defendant's 20 year career as a pilot in the United States Air Force during a 25 year marriage.

Plaintiff contends the reference to alimony in the judgment is in error, and Defendant's position is that alimony terminates upon the spouse's remarriage and that the six month period provided under Rule 60(b)(6) of the MRCP to correct an error in a judgment has long since expired.

The Final Judgment of Divorce rendered on April 4, 1997 clearly incorporates the Memorandum Opinion of the Court issued on March 13, 1997 as a part of the Judgment. The Memorandum Opinion is the correct finding and determination of equitable distribution of marital assets between the parties and the Final Judgment of Divorce as prepared by counsel at the request of the Court misstates the intent of the Court. The Court must now accept responsibility for the improper wording being placed in the judgment in characterizing the nature of the $1,000.00 monthly award as alimony, rather that the intended property distribution, but by incorporating the Memorandum Opinion in the Final Judgment [o]f Divorce, the intended finding must prevail in reading the two documents together. The Motion for modification is denied.

(emphasis added).

I. Whether the chancery court erred in denying the motion to modify the final judgment of divorce.

II. Whether the chancery court in effect amended the final judgment of divorce in violation of Rule 60 of the Mississippi Rules of Civil Procedure.

¶ 12. Michael argues that the $1000 monthly retirement payment is periodic alimony which terminated upon the date of Cathy's remarriage. He asserts that the judgment labeled the payment of the retirement as "alimony" whereas the memorandum did not label the payment of the retirement as either alimony or as an equitable distribution of marital assets. He further argues that Cathy did not follow through with an appeal of the final judgment of divorce and therefore chose to forego any objection to the language contained in the judgment. In addition, he claims...