Weeks v. Weeks
| Docket Number: | 2006-CA-01287-COA Linked Case(s): 2006-CA-01287-SCT ; 2006-CA-01287-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-01-2008 Opinion Author: IRVING, J. Holding: Affirmed in Part, Reversed and Remanded in Part |
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| Additional Case Information: |
Topic: Divorce - Health insurance - Life insurance - Child support - Retroactive modification - M.R.C.P. 52 - Modification of alimony - Attorney’s fees Judge(s) Concurring: LEE AND MYERS, P.JJ., CHANDLER, ROBERTS AND CARLTON, JJ. Non Participating Judge(s): ISHEE, J. Dissenting Author : GRIFFIS, J., with separate written opinion. Dissent Joined By : KING, C.J.; BARNES, J. Concur in Part, Dissent in Part 1: Barnes, J., concurs with regard to issues I, II, III, IV and V, and joins the dissent with regard to issue VI. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 06-22-2006 Appealed from: Harrison County Chancery Court Judge: Carter Bise Disposition: PETITIONS FOR CONTEMPT, MODIFICATION OF CHILD SUPPORT AND ALIMONY, AND MOTIONS FOR ATTORNEY’S FEES DENIED Case Number: 99-00753 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | DEBORAH WEEKS |
JOHN ROBERT WHITE,
PAMELA GUREN BACH |
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| Appellee: | ROLAND WEEKS | HENRY LAIRD |
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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 - Health insurance - Life insurance - Child support - Retroactive modification - M.R.C.P. 52 - Modification of alimony - Attorney’s fees |
| Summary of the Facts: | Deborah Weeks was granted a divorce from Roland Weeks in 2001. Deborah received her proceeds from the division of the marital estate in 2003. In an earlier appeal, the Court of Appeals upheld the chancellor’s division of assets and remanded the case for the chancellor to award periodic alimony to Deborah. The Court also ordered the chancellor to consider whether Roland should be required to pay for Deborah’s medical insurance as part of alimony and whether Deborah was entitled to an award of attorney’s fees. The chancellor entered a judgment awarding Deborah three thousand dollars per month as periodic alimony. Roland was also ordered to pay $516 per month for Deborah’s health insurance premium and to maintain life insurance policies on himself in the amount of three hundred thousand dollars each, with Deborah and their daughter named as irrevocable beneficiaries. The chancellor held that Deborah should be awarded twenty-five thousand dollars in attorney’s fees, subject to a credit for seventy-five hundred dollars that Roland had previously paid. The chancellor’s judgment also addressed Deborah’s petition for modification of custody and child support, which was based on events that occurred following the first appeal. The parties agreed that they would have joint legal custody of their daughter and that Deborah would have primary physical custody. The chancellor found that Roland’s monthly child support obligation by statute was $1,890 and that he would also be responsible for all college expenses. Deborah appeals. |
| Summary of Opinion Analysis: | Issue 1: Health insurance Deborah argues that the chancellor’s order requiring Roland to pay a fixed amount of $516 per month for her health insurance is in error, because Roland should be responsible for payment of any increases in the amount of her premium. The chancellor’s judgment after remand stated that “Roland will pay this [$516 monthly for insurance premiums] for [Deborah] as a part of his alimony obligation in addition to those sums previously designated as periodic alimony.” Thus, the chancellor intended for Roland to pay Deborah $516 each month for her insurance premiums. Any ambiguity was resolved when the chancellor emphatically stated that he intended for Roland to pay only $516 per month for Deborah’s health insurance premiums. Issue 2: Life insurance Deborah argues that Roland did not comply with the judgment after remand because he has not provided her with proof that he has maintained a life insurance policy in the amount of three hundred thousand dollars, with her as an irrevocable beneficiary. It is undisputed that the court’s order did not require that Roland provide proof of coverage to Deborah. It is impossible for Roland to be held in contempt for something he was never ordered to do in the first place. Furthermore, the Mississippi Rules of Civil Procedure allow Deborah to compel production of the requisite documents. To date, she has not done so. Issue 3: Child support Deborah argues that Roland should have been held in contempt for failing to meet his child support obligations. In the judgment after remand, the chancellor found that Roland’s statutory amount of child support equaled $1,890 per month. Because Roland’s income exceeded fifty thousand dollars per year, the chancellor also found that it was appropriate to deviate from the statutory amount and require Roland to pay for 100% of the college expenses of his child. However, the chancellor did not award these educational expenses in addition to the statutory amount but, instead, allowed Roland to subtract any amounts he expended for the college education from the statutorily-required $1,890 per month. The chancellor’s order makes it virtually impossible for Roland to be held in contempt, even if Deborah were to receive no child support payments at all. According to Roland’s own testimony, he estimated what his costs for his daughter’s education would be and gave Deborah what was left over during the summer months. Payments toward education are seldom used to offset child support as they do not diminish the child’s need for food, clothing and shelter. The record shows that the daughter lives with Deborah when she is home from school during the summer and various weekends throughout the school year. Thus, the structure of the chancellor’s child support order is in error, and this issue is reversed and remanded. Issue 4: Retroactive modification Deborah argues that the chancellor abused his discretion by denying a retroactive modification of child support, because the couple’s daughter was under the age of twenty-one at the time Deborah filed for modification of child support. To obtain a modification in child support payments, there must be a substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought to be modified. The chancellor did not specifically list the factors he considered to determine whether a substantial change in circumstances existed, and his order does not state that the basis of that decision was the daughter’s age at the time of the hearing. Additionally, Deborah did not request findings of fact and conclusions of law, as was her option under M.R.C.P. 52. Issue 5: Modification of alimony Deborah argues that the chancellor erred when he refused to modify the previous award of three thousand dollars per month in alimony, because the chancellor’s denial was based on his incorrect factual determinations regarding her health, ability to work, and ability to make substantial withdrawals from a 401(k) savings plan. The material change is relative only to the after-arising circumstances of the parties to the original decree and must also be one that could not have been anticipated by the parties at the time of the original decree. With the extensive testimony concerning Deborah’s medical problems and the state of her health before the judgment after remand was entered, the increased expenses due to the progression of these problems was not in any way unforeseeable by the parties. With regard to her inability to work, Deborah argues that the chancellor’s reliance on a finding by the Social Security Administration that she was not disabled was an abuse of discretion. Deborah is correct that the chancellor misconstrued the evidence regarding her social security claim. The evidence shows only that the Social Security Administration determined Deborah was not disabled under its rules as of December 31, 1984. The statement had no bearing on her ability to work at the time of the chancellor’s order. However, this does not change the chancellor’s finding that Deborah did not produce any proof of her inability to work. She produced evidence of the various medical problems that she has experienced, but she did not show proof that those problems had created an inability to work. With regard to the 401(k), the chancellor also found that, even though Deborah wished to save the money in the 401(k) for retirement, testimony proved that she could withdraw $6,366.67 per month from the account without penalty. Following the judgment on remand, Deborah learned that the withdrawal mentioned in the order is not an option for her because she is not an active employee with the company. There is no evidence presented as to why she did not inquire about her ability to withdraw the money before the entry of the judgment after remand. It is not clear that this information is a result of circumstances which occurred after the judgment after remand, or whether it is a fact that should have been reasonably anticipated by the parties at the time the judgment was entered. Therefore, the chancellor did not abuse his discretion. Issue 6: Attorney’s fees Deborah argues that the chancellor abused his discretion by denying her request for attorney’s fees for her appeal and the other proceedings following the remand. If a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate. Essentially, the chancellor’s ruling on attorney’s fees was an extension of his initial ruling after remand. He made it clear in his initial ruling that, after 2003 and the division of the marital estate, Deborah had sufficient funds with which to pay her attorney. Additionally, he found in his judgment that Deborah is now the owner of net assets worth over one million dollars. Under such circumstances, the chancellor did not abuse his discretion when he declined to grant Deborah an award for additional attorney’s fees. |
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