Wallace v. Wallace, No. 2008-CA-00501-COA.

• Court: Court of Appeals of Mississippi
• Citation: 12 So.3d 572
• Docket Number: No. 2008-CA-00501-COA.
• Parties: James Alton WALLACE, Appellant v. Donna WALLACE, Appellee.
• Decision Date: 30 June 2009

12 So.3d 572

James Alton WALLACE, Appellant v. Donna WALLACE, Appellee.

No. 2008-CA-00501-COA.

Court of Appeals of Mississippi.

June 30, 2009.

Edwin L. Bean, McComb, Attorney for Appellant.

Durwood Jewell Breeland, Brookhaven, Attorney for Appellee.

Before MYERS, P.J., GRIFFIS and ISHEE, JJ.

ISHEE, J., for the Court.

¶ 1. Following a divorce in 2002, James Wallace filed a motion to modify his alimony payments in light of his ex-wife's cohabitation with another man. The Chancery Court of Lincoln County denied James's motion. The chancery court found that although Donna Wallace had cohabited with Terrance Hogan for a year, she was able to rebut the presumption of mutual financial support. Aggrieved by the chancery court's ruling, James timely appealed. He argues that the chancery court erred when it found that Donna successfully rebutted the presumption of mutual support, and he asks that his alimony payments be terminated.

¶ 2. We find that the chancellor erred in finding that Donna successfully overcame the presumption of mutual economic support between her and Terrance. Accordingly, we reverse the decision of the chancery court and render judgment terminating James's alimony payments. We remand this case to the chancery court on the issue of whether the termination is effective upon the date that James filed his petition.

FACTS AND PROCEDURAL HISTORY

¶ 3. In a decree of divorce entered on March 18, 2002, the Chancery Court of Lincoln County granted a divorce to James and Donna. The chancery court ordered James to pay Donna lump-sum alimony of forty percent of his annuity payments that he was to receive in 2004, 2009, 2014, and 2019. Additionally, the chancery court ordered James to pay permanent periodic alimony in the amount of $700 per month.

¶ 4. Upon learning that Donna had begun cohabiting with another man, James filed a motion to modify his alimony payments. In the motion, James asked the chancery court to terminate his alimony obligations because Donna and Terrance were living together and supporting each other financially. Donna admitted that she and Terrance had been living together since December 2006, but she denied James's allegation of mutual financial support.

¶ 5. The chancery court held a hearing on the matter of modification of alimony on December 11, 2007. Only two witnesses testified — Donna and James. Donna said that she and Terrance met in an online gaming room in September 2006. He moved to Bogue Chitto, Mississippi in December 2006 and began living in the former marital home with Donna. According to Donna, she and Terrance agreed to an arrangement where he would take care of any yard work or outside work and any repairs on or around the house in exchange for Donna providing him a place to stay. Donna said she made this arrangement because she was unable to do a number of things around the house.

¶ 6. Since Terrance began living with Donna, he had done the following work around the house: fixed the plumbing to allow the bathtub to drain, fixed a leaky toilet, dug up and cleaned pipes to fix an overflowing washing machine, cleared the hedges — a project that was still ongoing at the time of trial, tore down an old barn, cut down a dead tree that hung over the house, built a burn pit, cleaned the flower beds, treated the concrete in the pump house to keep out moisture, built steps to get into a metal building, built a picnic table, built a flower bed around a metal building, and installed light fixtures in three rooms. Additionally, he regularly mowed the grass and cleaned the yard. Donna testified that she had been quoted a price of $100 to mow her yard, which would work out to $200 per month if she had to pay someone to mow it twice a month. Donna also said that Terrance was going to paint the house and replace the shingles on her house once she had the money to buy the necessary supplies.

¶ 7. When Terrance left Wisconsin and came to Mississippi, he did not have a job, and he did not find a job until March 2007. However, Donna said that he brought money with him from Wisconsin and that she did not support him financially while he was unemployed. Terrance continued working from March until August or September 2007, at which point he again became unemployed. At the time of trial, Terrance was working one day a week, making $80 per month at Donna's son-in-law's mother's antique store, but he was in search of employment. Donna also worked the same shift at the antique store, making $80 a month.

¶ 8. Donna admitted that she and Terrance had sexual relations about once every two weeks, but she denied that they were in any type of relationship. As the chancellor pointed out in his bench ruling, there was no evidence that the parties shared a bedroom. Donna testified that Terrance would have moved to Louisiana to stay with a friend, but he agreed to stay with her after her health deteriorated. They would occasionally go grocery shopping together, but they would pay for their own groceries and cook their separate meals. Besides the groceries in the refrigerator, they kept their groceries separate. They had only been to two social functions together in the year that Terrance had been in Mississippi. Once, Terrance came with Donna to her daughter's birthday party at a restaurant. Another time, they went to a Fourth of July barbecue together in Kentwood, Louisiana. Donna did not buy Terrance a birthday present or a Christmas present.

¶ 9. Donna further testified that she received financial support from her daughter, Martha Guy ("Marty"). Since June 2007, after James filed the motion to terminate alimony, he had not paid Donna any alimony, so Marty has been paying Donna's bills for her. Donna's only other source of income was the $80 per month from the antique shop and $126 per month in food stamps.

¶ 10. Besides Donna, James called no other witnesses in support of his motion. Donna's attorney called James to testify during her case. James testified that he had no evidence concerning Donna's financial situation, and he could not dispute any of the testimony given by Donna.

¶ 11. On December 27, 2007, the chancery court dismissed James's motion. In its order, the chancery court found that Donna and Terrance had been living together since December 2006 through the time of trial. Nevertheless, the chancery court found that Donna had successfully rebutted any presumption that she and Terrance financially supported each other and that James had failed to prove that a de facto marriage existed between Donna and Terrance. Lastly, the chancery court ordered James to pay Donna $4,900, representing the seven months of payments he failed to make while this case was pending in the chancery court. James timely appeals from the chancery court's order.

STANDARD OF REVIEW

¶ 12. "This Court will not `disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.'" Burrus v. Burrus, 962 So.2d 618, 621(¶ 15) (Miss.Ct.App.2006) (quoting Crow v. Crow, 622 So.2d 1226, 1228 (Miss.1993)).

DISCUSSION

¶ 13. James cites only one alleged point of error. He admits that the chancellor applied the correct law, but he claims that the chancellor misapplied the facts in reaching the conclusion that there was no mutual support between Donna and Terrance. James did not contest the chancellor's finding that he failed to prove that a de facto marriage existed between Donna and Terrance. Our review is, therefore, limited to whether it was error for the chancellor to find that Donna overcame the presumption of mutual financial support that arose due to her cohabitation with Terrance.

¶ 14. "Periodic alimony may be terminated based on cohabitation or a de facto marriage." Id...