Yancey v. Yancey, 97-CA-00305-SCT.

• Decision Date: 16 December 1999
• Docket Number: No. 97-CA-00305-SCT.,97-CA-00305-SCT.
• Citation: 752 So.2d 1006
• Parties: James Moss YANCEY v. Mary-Anne Duguzman YANCEY.
• Court: Mississippi Supreme Court

752 So.2d 1006

James Moss YANCEY v. Mary-Anne Duguzman YANCEY.

No. 97-CA-00305-SCT.

Supreme Court of Mississippi.

December 16, 1999.

Prentiss Grant, Brandon, Attorney for Appellant.

William R. Wright, Stacey P. Stracener, Jackson, Attorneys for Appellant.

EN BANC.

PRATHER, Chief Justice, for the Court:

INTRODUCTION

¶ 1. James Moss Yancey, Jr. ("Yancey") appeals a February 10, 1997 order of the Madison County Chancery Court denying the relief sought in his motion to modify his alimony and disability insurance obligations to his former wife and holding him in contempt for not complying with the terms of the September 19, 1994 divorce decree, as well as an additional order entered on September 15, 1995. We affirm the chancellor's ruling on all issues.

STATEMENT OF THE CASE

¶ 2. On September 19, 1994, Mary-Anne Yancey ("Mary-Anne") was granted a divorce from Yancey in the Madison County Chancery Court on grounds of adultery. Yancey was ordered to pay his former wife $450 per month in periodic alimony, as well as $300 per month in child support for the benefit of their minor son, Brian James Yancey. He was further ordered to maintain health and hospital insurance for the child at a cost of $129.77 per month. By order dated September 19, 1995, he was also required to obtain life and disability insurance on himself with the child as beneficiary.

¶ 3. Yancey filed a Motion for Modification and Contempt on October 28, 1996. He asserted that the diminution in income arising from the loss of his job in May, 1996, as well as his indebtedness to the Internal Revenue Service and the State Tax Commission, amounted to a substantial change in circumstances warranting a reduction in his monthly support obligations. He further sought to have Mary-Anne held in contempt of court for allegedly refusing to turn over some 700 slides and photographs to him.

¶ 4. Mary-Anne Yancey filed her "Response to Defendant's Motion for Modification and Contempt and Motion to Hold Defendant in Contempt" on January 29, 1997. She answered in her response that she had complied with the court order. In her own motion for contempt, she asserted that Yancey was $1,940 in arrears in alimony payments, had failed to transfer a $2,000 certificate of deposit to her, had failed to make payments on the parties' van, and had not procured disability insurance as also required by the earlier court orders.

¶ 5. The chancellor found that all of the necessary slides had been transferred and that Mary-Anne was not in contempt. He did not grant Yancey the relief he sought and instead, found him in contempt for failing to pay alimony and child support and to maintain life and disability insurance. Yancey was ordered to continue child support payments in the amount of $300 per month and $450 per month in alimony payments. He was allowed a prospective credit of $64 per month against the alimony obligation, arising from a loan which the parties made during their marriage to another couple and which, the chancellor determined, was marital property that should have been addressed in the original proceedings. Because of Yancey's dire financial circumstances, the chancellor also suspended the payments on the arrearage owed until for six months until August, 1997¹ and ruled that no interest would be charged on the amounts in arrears. The chancellor found Yancey to be in contempt and awarded Mary-Anne attorney fees on that basis.

¶ 6. Aggrieved by the chancellor's order, Yancey now asks this Court to consider:

I. WHETHER THE CHANCELLOR ERRED IN NOT MODIFYING JIM YANCEY'S ALIMONY AND DISABILITY INSURANCE;

II. WHETHER THE CHANCELLOR ERRED IN DISMISSING JIM YANCEY'S MOTION TO MODIFY PURSUANT TO RULE 41(B) AT THE CONCLUSION OF HIS CASE;

III. WHETHER THE CHANCELLOR ERRED IN HOLDING JIM YANCEY IN CONTEMPT WHEN THE MOTION FOR CONTEMPT

WAS NOT PROPERLY NOTICED, NOT TIMELY FILED, NO HEARING WAS HAD ON SAME AND JIM YANCEY WAS NOT PROVIDED THE OPPORTUNITY TO PROVIDE EVIDENCE OF PRESENT INABILITY TO PAY IN DEFENSE TO THE CONTEMPT;

IV. WHETHER THE CHANCELLOR ERRED IN HOLDING THAT THE REPAYMENT OF THE LOAN TO MARY ANNE YANCEY BY EVAN AND SHARON HANSON, WHICH WAS NOT DISPOSED OF IN THE ORIGINAL DIVORCE DECREE WAS A MARITAL ASSET WITHOUT PROOF OF SAME;

V. WHETHER THE CHANCELLOR ERRED IN REFUSING TO GIVE JIM A RETROSPECTIVE CREDIT FOR LOAN PAYMENTS MARY ANNE RECEIVED (OF WHAT THE CHANCELLOR FOUND TO BE A MARITAL ASSET) AND ONLY ALLOWING A PROSPECTIVE CREDIT; AND

VI. WHETHER THE CHANCELLOR ERRED IN AWARDING MARY ANNE ATTORNEY'S FEES WHEN THERE WAS NO HEARING ON HER MOTION FOR CONTEMPT AND NO EVIDENCE OF HER INABILITY TO PAY HER ATTORNEY'S FEES.

STATEMENT OF THE FACTS

¶ 7. James Yancey worked as a children's therapist at Weems Mental Health Center ("Weems") from August, 1994 until April, 1996. After his first year, he received a ten percent raise, earning $26,400 per year or approximately $2,200 per month. Yancey resigned from Weems effective April 30, 1996, due to a disagreement he had with his supervisor. Yancey testified that, since his decision to leave Weems, he had been unable to find other work in his profession. He testified that he had applied for at least sixty positions and had turned down no offers. At the time of the hearing, Yancey referred to a Financial Statement not entered into evidence and stated that he was currently making between $500 and $800 per month, averaging around $650 per month. Yancey testified that his new wife had been ill and was unable to work as the result of complications during her recent pregnancy, and that he would accordingly have to assume a greater share of the household expenses. The record indicates that Yancey had been behind in his alimony since September, 1996, with a total arrearage of over $ 2,900.

LAW

I. WHETHER THE CHANCELLOR ERRED IN NOT MODIFYING JIM YANCEY'S ALIMONY AND DISABILITY INSURANCE.

¶ 8. In his first assignment of error, Jim Yancey contends that the chancellor erred in not modifying either his $450 alimony obligation or the requirement of the divorce decree that he maintain disability insurance coverage. Yancey argues that, absent any evidence that his loss of income was due to bad faith on his part, his departure from Weems and inability to find a new job, along with his new wife's illness and inability to work, constitute material changes in circumstances warranting a reduction in alimony payments. As an aside, he also complains that Mary-Anne is capable of earning enough to support herself and should not expect him to support her while she returned to school.²

¶ 9. Alimony and child support obligations are subject to modification only where there has been a material change in the circumstances of one or more of the parties. Anderson v. Anderson, 692 So.2d 65, 70 (Miss.1997); Varner v. Varner, 666 So.2d 493, 497 (Miss.1995). The change must be the result of an after-arising circumstance not reasonably anticipated at the time the decree was entered. Anderson, 692 So.2d at 70; Varner, 666 So.2d at 497.

¶ 10. Contrary to Yancey's arguments, there is no strict rule of law that a modification shall be granted where the payor spouse's reduction in or loss of income is not the result of a bad faith action on his part. Yancey cites Varner as helpful authority, but this Court in Varner found that the decrease in Dr. Varner's income was due to his voluntary decision to open a solo practice. We accordingly held that there was no change in circumstances warranting a modification of his child support and alimony obligations. Varner, 666 So.2d at 497. Moreover, the discussion of bad faith actions in Varner arose in the context of Dr. Varner's bankruptcy filing, rather than in the context of the reduction in income resulting from the changes in his veterinary practice. Id. See also Mullen v. Mullen, 246 So.2d 923, 924 (Miss.1971)

.

¶ 11. Yancey also cites Parker v. Parker, 645 So.2d 1327 (Miss.1994), in which this Court did make a finding that no bad faith was shown where the obligor spouse was fired from his teaching job after charges of misconduct were raised against him. There, this Court rejected the ex-wife's argument that Parker had acted in bad faith by committing an act which would lead him to be fired from his job, finding that there was no evidence of bad faith in the record, and allowed a modification of his child support obligations. Parker, 645 So.2d at 1330-31. While the presence or absence of good faith does constitute a relevant factor in the present context, the absence of bad faith is not dispositive. Instead, Yancey must demonstrate that the chancellor abused his discretion in finding that no material change of circumstances was present in the present case.

¶ 12. Unlike in Parker, Yancey was not fired nor did he present any real evidence that his job was in jeopardy. The record supports the chancellor's finding that Yancey's departure from his job was fully voluntary, and it does appear that a man with Yancey's educational background and professional experience should have been able to secure employment yielding more than $650 to $750 per month. Yancey further contends that his new wife's pregnancyrelated illness and her inability to work further qualify as a change in circumstances warranting a reduction in his alimony obligations. He further argues that the fact that Paula Yancey can no longer support him, is, in and of itself, justification for the modification he seeks. However, in Varner, this Court expressly rejected the idea that alimony or child support obligations should be reduced because of the obligor's other financial commitments, stating that "[p]ersonal bills cannot be used as a factor to reduce support payments." Id. at 497 (citing Gregg v. Montgomery, 587 So.2d 928, 932 (Miss.1991)).

¶ 13. For these reasons, this Court concludes that the chancellor did not abuse his discretion in failing to find a material change in circumstances, and this point of error is without merit.

II. WHET

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