Weathersby v. Weathersby, 94-CA-00513-SCT

Decision Date15 May 1997
Docket NumberNo. 94-CA-00513-SCT,94-CA-00513-SCT
Citation693 So.2d 1348
PartiesSally Sayle WEATHERSBY v. John M. WEATHERSBY.
CourtMississippi Supreme Court

Dana J. Swan, Ralph E. Chapman, Chapman Lewis & Swan, Clarksdale, for Appellant.

Leland H. Jones, III, Greenwood, for Appellee.

Before DAN LEE, C.J., and PITTMAN and MILLS, JJ.

MILLS, Justice, for the Court:

The Chancery Court of Sunflower County on May 10, 1994, ordered Sally S. Weathersby (Sally) to convey her one-half interest in the marital home to her ex-husband, John M. Weathersby (John). The Chancellor also refused to reinstate alimony by John to Sally. On appeal, Sally assigns as error the following issues.

1. Whether the Chancellor erred in refusing to reinstate alimony by John Weathersby to Sally Weathersby after it had been terminated.

2. Whether the cohabitation clause in the divorce settlement providing for the termination of alimony was contrary to Mississippi law and void as a matter of public policy.

3. Whether the Chancellor erred in ordering Sally Weathersby to convey her one-half interest in the marital home to John Weathersby.

4. Whether the Chancellor erred in crediting voluntary payments made by John Weathersby towards the amount he owed in exchange for Sally Weathersby's interest in the home.

5. Whether the Chancellor erred in refusing to order an equitable distribution of marital assets.

FACTS

Sally S. Weathersby and John M. Weathersby, after 29 years of marriage, were divorced on March 8, 1990, based on irreconcilable differences. The divorce settlement agreement provided for a division of property as well as periodic alimony. The decree provided for property division as follows:

1. The parties own jointly a house and lot in Indianola, Mississippi, which was their marital residence. Wife will convey to Husband now her undivided one-half interest therein, for thirty percent of the present fair market value of said property as determined by appraisal. The method of appraisal shall be that each party shall select one appraiser, which two appraisers shall then select a third appraiser, with the parties to be bound by the fair market value figure finally arrived at by said three appraisers. Husband will pay to Wife as consideration for said conveyance beginning on the 15th day of the month immediately following the date of such conveyance, monthly over a period of five years at no interest, a figure equal to thirty percent of such appraised value.

As to periodic alimony, the settlement provided that John would pay to Sally $2,500 per month for ten years. A cohabitation clause in the settlement provided:

Wife will forfeit her right to said alimony and all other rights herein except as to said residence, by cohabitation without marriage with a member of the opposite sex, or by remarriage or death.

On October 11, 1991, in response to a joint petition alleging that Sally was cohabiting without marriage with another man, the court entered a Consent Order of Modification relieving John of his alimony obligations pursuant to the divorce settlement's cohabitation clause.

On July 23, 1993, John filed a Motion for Citation for Contempt requesting that Sally be required to convey to him her one-half interest in the marital residence. On December 15, 1993, Sally filed a Counterclaim seeking reinstatement of periodic alimony and an equitable division of marital assets. 1 After a hearing on April 4, 1994, the Chancellor ordered Sally to convey her one-half interest in the marital home to John, and refused to reinstate John's alimony obligations. In addition, the Chancellor found that John had made voluntary payments to Sally in excess of that which he owed her for her share in the marital home, thereby satisfying said debt. Finally, the Chancellor denied Sally's request for an equitable division of marital assets.

DISCUSSION OF THE LAW

1. Whether the Chancellor erred in refusing to reinstate alimony by John Weathersby to Sally Weathersby after it had been terminated.

Sally argues that the Chancellor erred in refusing to reinstate her alimony payments by John. She first apparently disputes that she ever lived in cohabitation with another man in violation of the divorce settlement, citing Cutrer v. State, 154 Miss. 80, 121 So. 106 (1929), for the proposition that evidence of sexual intercourse, without a showing of cohabitation, is insufficient to prove cohabitation. Sally overlooks the fact that she herself joined in the petition alleging that she was cohabiting with another man in violation of the agreement.

Sally also places much stock in the cases of Hammonds v. Hammonds, 641 So.2d 1211 (Miss.1994), and Hammonds v. Hammonds, 597 So.2d 653 (Miss.1992), for the propositions that cohabitation alone is not a complete bar to an ex-spouse's receiving alimony, and that approaches to alimony modification should be reasonable and flexible in the event of cohabitation by the recipient ex-spouse. These cases are easily distinguishable from the instant case. In these cases there was no clause incorporated into the divorce decree whereby the ex-wife would forfeit her right to alimony by cohabiting with another man.

Sally reiterates to this Court that periodic alimony is subject to modification upon proof of material changes in circumstances. Taylor

v. Taylor, 392 So.2d 1145, 1147 (Miss.1981). This applies to a divorce based upon irreconcilable differences. Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994). The thrust of Sally's argument is that the Chancellor erroneously denied Sally's counterclaim to reinstate alimony under the assumption that alimony may not be reinstated after it has been terminated. Sally quotes the Chancellor at trial:

BY THE COURT:

Can you change it, though, Mr. Chapman, after you have terminated it?

BY MR. CHAPMAN:

I think you can, your Honor, because it was modified once. What's to say it can't be modified again if the circumstances dictate.

BY THE COURT:

I will have to agree that it's somewhat odd that the word modification was used, but it was actually a termination. I'm just speaking. I know of no law that allows for further modification after it is terminated unless you can show me some.

The appellant provides no cases decided by this Court where alimony was reinstated after it was terminated.

The Chancellor in his order stated:

This Court finds that the joint petition of the parties and Decree terminating alimony for Defendant's cohabitation was a forfeiture of her right to future alimony by her repudiation of the right thereto and same cannot be reinstated.

The order cited McRae v. McRae, 381 So.2d 1052, 1055 (Miss.1980), where this Court affirmed the Chancellor's termination of alimony, finding that the ex-wife, by her admitted cohabitation with another man, "forfeited her right to alimony by her repudiation of the right thereto." It is significant in the instant case, that the alimony was terminated not only because of Sally's admitted cohabitation, but also pursuant to a clause in the divorce settlement freely agreed to by both parties, and upon a joint petition filed by both parties. Where the ex-spouse has cohabited with a member of the opposite sex in violation of a cohabitation clause in the divorce settlement reached by the parties, and alimony is then terminated in accordance with that clause, the Chancellor shall refuse to later reinstate alimony.

2. Whether the cohabitation clause in the divorce settlement providing for the termination of alimony was contrary to Mississippi law and void as a matter of public policy.

Sally argues that the cohabitation clause in the divorce settlement providing for the termination of alimony was contrary to Mississippi law and void as a matter of public policy in that it attempted to deprive the chancery court of authority to hear a plea for alimony modification. Indeed, this Court has held that "the parties may not by contract, court-approved or otherwise, deprive the court of authority to hear a plea for modification of periodic alimony." Bell v. Bell, 572 So.2d 841, 845 (Miss.1990). However, Sally's plea was not one for modification of alimony, but rather for reinstatement of alimony some 22 months after it had been forfeited by her. Certainly, had Sally moved for modification of the alimony prior to its termination, the cohabitation clause in the divorce settlement in no way would have prevented the Chancellor from considering such motion. The clause provided simply that Sally would forfeit her right to alimony upon her cohabitation without marriage with a member of the opposite sex.

This Court has stated its policy on enforcing divorce settlements as follows:

In property and financial matters between the divorcing spouses themselves, there is no question that, absent fraud or overreaching, the parties should be allowed broad latitude. When the parties have reached agreement and the chancery court has approved it, we ought to enforce it and take as dim a view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts.

Bell, 572 So.2d at 844 (citing Osborne v. Bullins, 549 So.2d 1337, 1339 (Miss.1989); Morris v. Morris, 541 So.2d 1040 (Miss.1989)). Sally has alleged no fraud, and her claim that she was overreached by John was dismissed by the Chancellor, which order this A cohabitation clause providing for the forfeiture of future alimony does not attempt to deprive the chancery court of its authority to hear pleas for the modification of alimony. The cohabitation clause in the instant settlement agreement was not contrary to law or void as against public policy.

Court previously affirmed. Weathersby v. Weathersby, 667 So.2d 30 (Miss.1996).

3. Whether the Chancellor erred in ordering Sally Weathersby to convey her one-half interest in the marital home to John Weathersby.

Regarding the marital home, the divorce settlement provided:

Wife will convey to Husband now her undivided one-half interest therein, for thirty percent of the...

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