Austin v. Austin

981 So. 2d 1000, 2007 WL 3076870
CourtCourt of Appeals of Mississippi
DecidedOctober 23, 2007
Docket2006-CA-00766-COA
StatusPublished
Cited by13 cases

This text of 981 So. 2d 1000 (Austin v. Austin) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Austin v. Austin, 981 So. 2d 1000, 2007 WL 3076870 (Mich. Ct. App. 2007).

Opinion

981 So.2d 1000 (2007)

Patricia Ann Jackson AUSTIN, Appellant
v.
John Thomas AUSTIN, Appellee.

No. 2006-CA-00766-COA.

Court of Appeals of Mississippi.

October 23, 2007.
Rehearing Denied February 19, 2008.

*1002 Thomas T. Buchanan, Laurel, Marcus Douglas Evans, attorneys for appellant.

David M. Ratcliff, Laurel, attorney for appellee.

Before KING, C.J., CHANDLER and CARLTON, JJ.

CARLTON, J., for the Court.

¶ 1. This case comes before the Court from the April 3, 2006, order of the Chancery Court of Wayne County granting the downward modification of the ex-husband's child support and alimony obligations. We find no error and affirm.

FACTS

¶ 2. Patricia Austin and John Austin were married on February 4, 1983. Three children were born into the marriage: Alecia,[1] born on June 14, 1984; Andrew, born on June 20, 1989; and John Allen, born on January 3, 1991. On December 12, 2001, the parties 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 ("agreement") of the parties. 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. The final decree of divorce was executed on February 20, 2002, to be effective from and after December 12, 2001.

¶ 3. On February 26, 2003, a hearing was held on several motions. Patricia filed a motion for contempt and a motion for wage withholding order.[2] John filed a petition for modification and complaint for contempt. John requested a modification of custody and child support. He alleged that John Allen preferred to live with him and requested a downward modification of his child support obligations to reflect the proposed custody change.[3] John also alleged that he was unable to pay child support. In support of this contention, John argued that he expected a decrease in income for the tax year 2003, specifically, that he expected a decrease in the bonus he was to receive in March — one month after the hearing. The evidence adduced at the February 2003 hearing showed that John's income at the time of divorce in December 2001 was approximately $299,000. His W-2 form for the year 2002 indicated that his income for that year was approximately $317,000.

¶ 4. On June 6, 2003, the court entered an opinion and order holding John in civil contempt for failure to pay child support. John's petition for modification was denied as the trial court found that his income had increased since the time of divorce and he thus failed to prove an unanticipated material change in circumstances. John's motion for contempt was also denied for reasons not relevant to this appeal.

*1003 ¶ 5. On July 17, 2003, John filed a motion to extend the time for filing his notice of appeal and to reopen pursuant to Rule 60 of the Mississippi Rules of Civil Procedure on the basis of newly discovered evidence. In this motion, John claimed that he discovered on July 9, 2003, that his August bonus for the year 2003 would net him only $2,829 — roughly $15,000 less than his August 2002 bonus. The court entered an order sustaining John's motion to reopen and Patricia timely filed a motion to reconsider which was denied. On January 23, 2004, John filed a second petition for modification. In this petition, John claimed that he had been fired from his job on September 29, 2003, and now makes substantially less. He asserted that his firing constituted a material change in circumstances sufficient to justify a downward modification of his financial obligations under the original divorce decree. After a series of postponements, the trial was ultimately held on May 4, 2005.

¶ 6. On April 3, 2006, the trial court entered its opinion and order which, among other things, 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 timely filed a notice of appeal and seeks relief from the April 3, 2006, order and enforcement of the June 6, 2003, order.

STANDARD OF REVIEW

¶ 7. "In reviewing a decision by a chancellor, this Court will uphold findings of fact as long as the record reflects that they are supported by substantial, credible evidence." Lane v. Lane, 850 So.2d 122, 125(7) (Miss.2002). We will not reverse a chancellor's findings on the issues of alimony and child support unless we first find that the chancellor abused his discretion or was manifestly wrong. Id.

DISCUSSION

¶ 8. Mississippi divorce actions are primarily controlled by the provisions of Mississippi Code Annotated section 93-5-1 (Rev.2004); Crowe v. Crowe, 641 So.2d 1100, 1103-04 (Miss.1994). The Mississippi Rules of Civil Procedure govern to the extent that the divorce statutes are silent or not inconsistent. M.R.C.P. 81(a)(9); see also Rawson v. Buta, 609 So.2d 426, 430 (Miss.1992). Our divorce statutes provide for the modification of support agreements for divorces granted on the ground of irreconcilable differences.

¶ 9. Section 93-5-23 of the Mississippi Code provides:

When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders . . . touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of the sum so allowed. . . . The court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require.

Miss.Code Ann. § 93-5-23 (Supp.2006) (emphasis added). Section 93-5-2 provides that in divorces granted on the ground of irreconcilable differences, the parties may execute a written agreement for child custody and maintenance and that such agreement may be incorporated by the court into the judgment which "may be modified as other judgments for divorce." Miss.Code Ann. § 93-5-2(2) (Rev.2004).

¶ 10. In accordance with the above-cited statutes, Mississippi case law holds that *1004 support agreements for divorces granted on the ground of irreconcilable differences are subject to modification based upon a material change in circumstances with one or more of the parties which occurs as a result of after-arising circumstances not reasonably anticipated at the time of the agreement. Varner v. Varner, 666 So.2d 493, 497 (Miss.1995) (citing Thurman v. Thurman, 559 So.2d 1014, 1017 (Miss. 1990)); Taylor v. Taylor, 392 So.2d 1145, 1148-49 (Miss.1981).

I. Procedural Bar

¶ 11.

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Cite This Page — Counsel Stack

Bluebook (online)
981 So. 2d 1000, 2007 WL 3076870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-austin-missctapp-2007.