Clower v. Clower

988 So. 2d 441, 2008 Miss. App. LEXIS 476, 2008 WL 3313021
CourtCourt of Appeals of Mississippi
DecidedAugust 12, 2008
DocketNo. 2007-CA-01481-COA
StatusPublished
Cited by5 cases

This text of 988 So. 2d 441 (Clower v. Clower) 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
Clower v. Clower, 988 So. 2d 441, 2008 Miss. App. LEXIS 476, 2008 WL 3313021 (Mich. Ct. App. 2008).

Opinion

MYERS, P.J.,

for the Court.

¶ 1. Imogene Mix Clower appeals the judgment of the Chancery Court of Hinds County in which Joseph Lewis Clower was granted a modification of his alimony obligation. Initially, Mr. Clower was not held to be in contempt, and Ms. Clower’s request for attorneys’ fees was denied. However, upon reconsideration, the chancellor partially awarded some attorneys’ fees that she had requested. Aggrieved, Ms. Clower also appeals the amount that she was awarded in attorneys’ fees. Finding no manifest error in the judgment of the chancellor, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1988, the Clowers obtained an irreconcilable differences divorce from the Chancery Court of Hinds County. The parties reached a property settlement agreement, part of which entitled Ms. Clower to periodic alimony payments. In April 2006, the parties returned to the chancery court when Mr. Clower petitioned for a modification, seeking to terminate or reduce his alimony obligations. [443]*443Ms. Clower counterclaimed, seeking to have Mr. Clower held in contempt.

¶ 3. Ultimately, 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. Ms. Clower sought reconsideration, as well as a ruling holding Mr. Clower in contempt. The motion for reconsideration was granted.

¶ 4. On reconsideration, the chancellor affirmed the prior ruling allowing the downward modification of the alimony obligations. However, 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. Ruling from the bench, the chancellor found that Mr. Clower discontinued alimony payments in April 2006, the month in which he filed for modification, and delayed payment of that month’s obligation until May 29, 2006. Based on this late payment, Mr. Clower was ordered to pay Ms. Clower’s attorneys’ fees in the amount of $750.

¶ 5. Ms. Clower appeals the chancellor’s judgment allowing Mr. Clower a downward alimony modification, presenting the following arguments: (1) Ms. Clower argues that modification was error because Mr. Clower maintained the ability to continue his originally ordered alimony payments; (2) Ms. Clower urges this Court to find that Mr. Clower was barred from receiving a modification under the doctrine of unclean hands; (3) Ms. Clower argues that modification was not appropriate because there did not exist a substantial change in circumstances that was not anticipated at the time of the original decree; (4) Ms. Clower argues that the chancellor erred in considering Mr. Clower’s obligations to his current wife and his subsequently incurred financial obligations when determining whether to reduce his alimony obligation; (5) Ms. Clower also argues that due to his financial decisions, Mr. Clower was not entitled to modification under Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993); and (6) Ms. Clower takes issue with the amount of the award for attorneys’ fees that she received on reconsideration. Since each of the first five issues essentially pertain to the propriety of the chancellor’s downward modification of the alimony obligation, we will discuss them together.

I. WHETHER THE ALIMONY AWARD MODIFICATION WAS ERROR.

¶ 6. 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: (1) a substantial change in circumstances occurred, and (2) he did not have the ability to comply with the order. Ms. Clower further contends that Mr. Clower came into court with unclean hands seeking such a modification. Ms. Clower argues that the chancery court failed to recognize that Mr. Clower created his own inability to comply with the original alimony order. We review decisions regarding alimony awards only for manifest error in the chancellor’s findings of fact or abuse of discretion. Holcombe v. Holcombe, 813 So.2d 700, 703(¶ 10) (Miss.2002). “Therefore, we will ‘not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or a clearly erroneous standard was applied.’ ” Yel-[444]*444verton v. Yelverton, 961 So.2d 19, 24(¶ 6) (Miss.2007) (citation omitted).

¶ 7. Periodic alimony can be modified by increasing, decreasing, or terminating the award due to a material change in circumstances. Holcombe, 813 So.2d at 703(¶ 11). The material change must be one that was not reasonably anticipated at the time of the original decree. Id. One of the factors utilized in initially calculating periodic alimony is the income and expenses of both parties. Wolfe v. Wolfe, 766 So.2d 128, 129(¶ 13) (Miss.Ct.App.2000) (quoting Hammonds v. Hammonds, 597 So.2d 653, 655 (Miss.1992)). A material change in this factor should be considered in determining any modification of periodic alimony. Austin v. Austin, 766 So.2d 86, 90(¶ 19) (Miss.Ct.App.2000) (citing Armstrong, 618 So.2d at 1280).

¶ 8. In granting modification, the chancellor found that Mr. Clower’s income had materially changed since the original decree handed down in 1988. 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. When Mr. Clower petitioned the chancery court for modification, the chancellor found that Mr. Clower did not have the ability to pay his original alimony obligations because he had received no income other than social security benefits since May 2006. The chancellor also noted that Mr. Clower put Ms. Clower on notice of this situation prior to the end of the payments he received from the sale of his business. On reconsideration, the chancellor did not change her previous award of downward modification, again finding that a material change in circumstances warranted the modification and reduction of the alimony obligation.

¶ 9. Ms. Clower argues that Mr. Clower’s worsened financial position was a product of his own doing; thus, he should not be entitled to a modification under Armstrong, 618 So.2d at 1280. The supreme court has established certain factors known as the Armstrong factors to be taken into consideration in determining whether to modify an obligation for periodic alimony. Anderson v. Anderson, 692 So.2d 65, 70 (Miss.1997). “The law is well-settled that, if an obligor, acting in bad faith, voluntarily worsens his financial position so that he cannot meet his obligations, he cannot obtain a modification of support.” Parker v. Parker, 645 So.2d 1327, 1331 (Miss.1994) (citations omitted). The chancellor did not find that Mr. Clower had created his own financial downturn in bad faith. At the hearings on the matter, the chancellor heard testimony and evaluated the financial position of Mr. Clower. The court considered that since the original decree, Mr. Clower had retired.

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Bluebook (online)
988 So. 2d 441, 2008 Miss. App. LEXIS 476, 2008 WL 3313021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clower-v-clower-missctapp-2008.