Austin v. Austin
| Docket Number: | 2006-CA-00766-COA Linked Case(s): 2006-CA-00766-SCT2006-CA-00766-COA2006-CT-00766-SCT |
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| Oral Argument: | 08-31-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-23-2007 Opinion Author: CARLTON, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Time bar - M.R.C.P. 60 - Section 93-5-23 - Res judicata - Modification of alimony - Material change in circumstances - Retroactive application Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 03-31-2006 Appealed from: WAYNE COUNTY CHANCERY COURT Judge: Franklin C. McKenzie, Jr. Disposition: MODIFICATION OF ALIMONY AND CHILD SUPPORT GRANTED Case Number: 2001-0088 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | PATRICIA ANN JACKSON AUSTIN |
THOMAS T. BUCHANAN
MARCUS DOUGLAS EVANS |
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| Appellee: | JOHN THOMAS AUSTIN | DAVID M. RATCLIFF |
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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: | Divorce: Irreconcilable differences - Time bar - M.R.C.P. 60 - Section 93-5-23 - Res judicata - Modification of alimony - Material change in circumstances - Retroactive application |
| Summary of the Facts: | Patricia Austin and John Austin were granted a divorce on the ground of irreconcilable differences. The final decree of divorce was approved and incorporated a child custody and property settlement agreement. Under the terms of the agreement, Patricia was given physical custody of the three children and John agreed to pay child support in the amount of $1,000 per month before the seventh of each month, $30,400 on March fifteenth of every year, and $15,200 on August fifteenth of every year. As to alimony, John agreed to pay periodic alimony in the amount of $1,000 each month and thirty-five percent of all gross bonuses or other compensation, excluding his monthly draw which, at the time, was approximately $4,400 per month. A couple of years later, Patricia filed a motion for contempt and a motion for wage withholding order. John filed a petition for modification of custody and child support and complaint for contempt. The court held John in civil contempt for failure to pay child support and denied John’s petition for modification and motion for contempt. In 2004, John filed a second petition for modification. The court terminated the periodic alimony in the original decree and replaced it with periodic rehabilitative alimony in the amount of $650 per month for a period of two years from the date of the hearing on May 4, 2005, and reduced child support to $1,370 per month. Patricia appeals. |
| Summary of Opinion Analysis: | Patricia argues that John’s motion was filed forty-one days after the earlier decree, and thus time-barred under M.R.A.P. 4(a) and M.R.C.P. 52(b), 59(b), and 60(b). John argues that the court had the authority to modify the original decree under sections 93-5-2(2) and 93-5-23 regardless of whether a reopening under Rule 60(b) was proper. Section 93-5-23 provides that a chancellor, on petition of one of the parties to a divorce, may change the decree, and make from time to time such new decrees as the case may require. As the rules of civil procedure apply only to the extent that divorce statutes do not, Patricia’s strict reliance on rules of appellate procedure and civil procedure is misplaced. Therefore, the trial court acted within its authority in holding the modification proceeding. Patricia also argues that the two orders entered by the court concern the same subject matter, cause of action, parties, and quality or character of person against whom the claim was made, and thus the second order was barred by principles of res judicata. Chancery courts retain continuous jurisdiction over final decrees providing for alimony, custody of children and child support, and may modify a former decree when the circumstances and conditions have changed after rendition of a former decree. Further, no decree of alimony or child support is ever truly a final judgment, but always subject to modification based upon a material change of circumstances. John was terminated from his position as a result of which his salary dramatically decreased. As this change in circumstances occurred after the original decree, the doctrine of res judicata does not act as a bar to the modification. Patricia also argues that the chancellor erred in finding a material change of circumstances warranting a reduction in child support and alimony obligations. The trial court considered the significant reduction in income that John had suffered since the time of divorce and granted the downward modification of child support and alimony in large part based upon this evidence. This modification was also based on Patricia’s receipt of support from another man in the form of housing. The parties’ agreement, which was incorporated into the divorce decree, was based upon the income John made at the time. When John was terminated from this job, the parties’ agreement could no longer be given its intended effect. Therefore, the court did not err in finding that a material change in circumstances had occurred which warranted a modification of the original divorce decree. Patricia argues that the chancellor erred in ordering the retroactive application of the modification of alimony, because the order is in direct conflict with the provisions of M.R.C.P. 60. The chancellor had the authority to modify based on John’s petition irrespective of the earlier Rule 60 motion for relief. Furthermore, precedent holds that when awarding a downward modification of alimony, a chancellor has the discretionary authority to order the modification retroactive to the date on which the petition to modify was filed. |
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