Kelley v. Kelley
| Docket Number: | 2005-CA-01678-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-10-2007 Opinion Author: MYERS, P.J. Holding: Affirmed in Part, Reversed and Rendered in Part |
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| Additional Case Information: |
Topic: Modification of property settlement agreement - Attorney’s fees Judge(s) Concurring: King, C.J., Lee, P.J., Chandler, Griffis, Barnes, Ishee, Roberts and Carlton, JJ. Concur in Part, Dissent in Part 1: Irving, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 01-14-2005 Appealed from: Harrison County Chancery Court Judge: Jim Persons Disposition: MODIFIED DIVORCE DECREE AND AWARDED ATTORNEYS FEES Case Number: C2401-00-02573(1) |
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| Party Name: | Attorney Name: | |||
| Appellant: | MICHAEL KELLEY |
DAMON SCOTT GIBSON |
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| Appellee: | ROBERTA C. KELLEY | THOMAS WRIGHT TEEL |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Modification of property settlement agreement - Attorney’s fees |
| Summary of the Facts: | When Michael Kelley and Roberta Kelley Comeaux divorced, they entered into a property settlement agreement in which the parties agreed to retain joint title to the former marital home that the parties built with Kelley bearing financial responsibility for the mortgage note. Comeaux was granted exclusive use and possession of the home until the parties’ youngest child became emancipated or until Comeaux remarried. Upon the occurrence of either of these conditions, the parties agreed to allow one to purchase the other’s remaining interest in the home or to sell the house and divide the resulting equity equally. Later, Kelley sought modification of his child support obligations, basing his petition on his reduction in income. Comeaux moved the court to find Kelley in contempt and for other relief, and counterclaimed, seeking modification of the divorce decree. During the pendency of this litigation, Comeaux remarried, therefore ripening the provision of the settlement agreement that allowed the parties to purchase each other’s interest or to place the house on the market for an equal division of the equity. The chancellor modified Kelley’s child support obligations due to a material change in circumstances of his losing his previous employment and denied Comeaux’s request to find Kelley in contempt. The chancellor granted Comeaux’s request for modification of the property settlement agreement, and ordered Kelley to repair the former marital home in preparation for an appraisal for resale. The chancellor also awarded title of a corvette to Comeaux, deeming the vehicle abandoned. Additionally, the chancellor granted Comeaux’s request for attorney’s fees. Kelley appeals. |
| Summary of Opinion Analysis: | Issue 1: Modification of property settlement agreement Kelley argues that the chancellor exceeded his authority in modifying the divorce decree and ordering Kelley’s specific performance to repair the damage to the former marital home and that the chancellor’s award of the title to the corvette to Comeaux was inconsistent with the parties’ divorce settlement agreement. Property settlement agreements entered into by divorcing parties and incorporated into the divorce decree fixed and final, and may not be modified absent fraud or contractual provision allowing modification, or when there has been a mutual mistake of fact occurring in the drafting of the instrument. In this case, neither party asserts fraud or that an error occurred in the drafting of the property settlement agreement. Therefore, the chancellor had no authority to reform the parties’ settlement agreement ordering Kelley to make repairs to the former marital home and awarding title of the corvette automobile to Comeaux. Issue 2: Attorney’s fees Kelley argues that the chancellor erred in awarding Comeaux attorney’s fees because Comeaux did not show her requisite inability to pay. Attorney’s fees are not generally awarded unless the party requesting the fees has established an inability to pay. Ample testimony was presented at the hearings on the contempt and modification matters establishing that Comeaux was without ability to pay. Testimony and exhibits were presented showing the court that Comeaux earned a significant amount less than Kelley, she was without financial ability to pay her attorney, she had begun selling her furniture, she did not own any assets of worth and she had filed for bankruptcy. Therefore, the chancellor did not err in awarding attorney’s fees to Comeaux. |
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