Clower v. Clower
| Docket Number: | 2007-CA-01481-COA Linked Case(s): 2007-CA-01481-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-12-2008 Opinion Author: Myers, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Modification of alimony - Attorney’s fees Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Chandler, Griffis, Barnes, Ishee, and Roberts, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 02-05-2007 Appealed from: Hinds County Chancery Court Judge: Patricia D. Wise Disposition: APPELLEE AWARDED MODIFICATION OF ALIMONY OBLIGATION, BUT ALSO FOUND TO BE IN CONTEMPT AND ORDERED TO PAY ATTORNEYS’ FEES. Case Number: 135,918R/1 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | IMOGENE MIX CLOWER |
KYLE B. AINSWORTH,
PAUL E. ROGERS |
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| Appellee: | JOSEPH LEWIS CLOWER | MONTI C. BISHOP | ||
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 alimony - Attorney’s fees |
| Summary of the Facts: | Imogene Clower and Joseph Clower obtained an irreconcilable differences divorce. The parties reached a property settlement agreement, part of which entitled Ms. Clower to periodic alimony payments. The parties returned to the chancery court when Mr. Clower petitioned for a modification, seeking to terminate or reduce his alimony obligations. Ms. Clower counterclaimed, seeking to have Mr. Clower held in contempt. Mr. Clower was granted a modification of his alimony obligations, which was made retroactive to the date he filed his motion. The modification lowered Mr. Clower’s alimony obligations and abrogated his obligation to provide health insurance, but it continued Mr. Clower’s obligation to maintain a life insurance policy with Ms. Clower as the beneficiary. Ms. Clower’s counterclaim was denied, and Mr. Clower was not held in contempt. On reconsideration, the chancellor found Mr. Clower in contempt for his failure to timely make an alimony payment and ordered him to pay Ms. Clower’s attorneys’ fees. Ms. Clower appeals. |
| Summary of Opinion Analysis: | Ms. Clower argues that the chancellor erred in finding that Mr. Clower was entitled to a modification of his alimony obligations because he failed to prove that a substantial change in circumstances occurred, and he did not have the ability to comply with the order. Periodic alimony can be modified by increasing, decreasing, or terminating the award due to a material change in circumstances. The material change must be one that was not reasonably anticipated at the time of the original decree. At the time of the parties’ divorce, Mr. Clower was earning over $100,000 a year and maintained a thriving golf supply business. Mr. Clower’s business failed, and he began to suffer medical problems. Mr. Clower sold his business, receiving installment payments totaling $15,600 for his interest, and retired. At the time of the hearing for modification, Mr. Clower was seventy-three years of age. Thus, it is clear that the modification was properly based upon an unforeseeable change in circumstances since entry of the original decree. Ms. Clower also argues that she was entitled to a greater sum of attorney’s fees than she was awarded because she submitted proof that she incurred $5,722.75 in attorneys’ fees and $950 in accounting fees during the litigation of this matter. A party requesting an award of attorneys’ fees in a domestic case must show an inability to pay. As the nature of the entire proceeding for modification centered upon Mr. Clower’s and Ms. Clower’s financial situations, the chancellor made the requisite findings regarding each party’s ability to pay the attorneys’ fees and did not abuse her discretion in awarding Ms. Clower $750 in partial attorneys’ fees. |
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