D'Avignon v. D'Avignon


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Docket Number: 2004-CA-02215-COA
Linked Case(s): 2004-CA-02215-COA

Court of Appeals: Opinion Link
Opinion Date: 08-01-2006
Opinion Author: Ishee, J.
Holding: Affirmed

Additional Case Information: Topic: Modification of alimony - Material change in circumstances - Escalation clause - M.R.C.P. 54(c) - Statute of limitations
Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Chandler and Griffis, JJ.
Dissenting Author : Southwick, J.
Dissent Joined By : Lee, P.J. Barnes and Roberts, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 10-08-2004
Appealed from: Harrison County Chancery Court
Judge: Carter Bise
Disposition: MODIFIED ALIMONY
Case Number: C2402-00-00204

  Party Name: Attorney Name:  
Appellant: Pierre Louis D'Avignon




SCOTT WATSON WEATHERLY



 

Appellee: Karen D'Avignon EDWARD F. DONOVAN  

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Topic: Modification of alimony - Material change in circumstances - Escalation clause - M.R.C.P. 54(c) - Statute of limitations

Summary of the Facts: Karen D’Avignon filed a complaint for modification of alimony asking for an increase in Louis D’Avignon’s alimony obligations. Louis also filed a motion for modification of alimony, requesting that his alimony obligations be reduced or terminated. The court denied Louis’s motion and awarded Karen an increase in alimony. Louis appeals.

Summary of Opinion Analysis: Issue 1: Material change in circumstances Louis argues that the chancellor erred in not reducing or terminating his alimony obligations, because Karen currently earns more than $75,000 per year; at the time of the divorce, she earned from $20,000 to $30,000 teaching school in Florida; Karen’s estate is far superior to his; and Louis quit his job in Saudi Arabia, where he earned $53,000 per year tax free. Regarding Louis’s voluntary reduction in income, he testified during trial that he had been offered a job (which he subsequently accepted) in San Antonio, Texas, with a salary of $60,000. As for Karen’s increased salary, the law of alimony does not contemplate penalizing an alimony recipient for being industrious and endeavoring to accomplish something. Thus, there was substantial evidence to support the chancellor’s finding that neither party demonstrated an unanticipated material change in circumstances warranting a modification. Issue 2: Escalation clause Louis argues that because the escalation clause in the alimony provision of the property settlement agreement was neither pled in Karen’s complaint, nor addressed during the trial, the chancellor erred in sua sponte converting Karen’s modification action into a contempt action. M.R.C.P. 54(c) provides that every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled by the proof and which is within the jurisdiction of the court to grant, even if the party has not demanded such relief in his pleadings. Karen included a prayer for general relief in her complaint for modification of alimony. Furthermore, Louis cannot reasonably argue that he was surprised by the chancellor’s ruling based on the alimony provision of the parties’ property settlement agreement, since Karen attached a copy of the property settlement agreement to her complaint for modification of alimony. In addition, Louis was not prejudiced by the judgment, as it affords him the opportunity to return to court with his financial information and to be heard by the chancellor before the adjustments to his alimony obligations are made. Louis also argues that it was the intent of both parties that the escalation clause would apply only to Louis’s military pay. The escalation clause plainly states that Louis’s alimony obligations will increase annually according to any increases in his net earnings. The provision does not state that the net earnings must be from a specific source. Therefore, the chancellor’s decision is supported by substantial evidence. Issue 3: Statute of limitations Louis argues that the chancery court erred in determining that the alimony increase should take effect three years prior to the filing of the petition for modification. The court granted relief based on contract principles, finding that Louis failed to perform under the terms of the escalation clause. It is a well-established principle in Mississippi that a true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character. Therefore, the court did not err in applying the three-year statute of limitations to this contract issue.


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