Cockrell v. Cockrell

139 So. 3d 766, 2014 WL 2180262, 2014 Miss. App. LEXIS 298
CourtCourt of Appeals of Mississippi
DecidedMay 27, 2014
DocketNo. 2013-CA-00031-COA
StatusPublished
Cited by3 cases

This text of 139 So. 3d 766 (Cockrell v. Cockrell) 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
Cockrell v. Cockrell, 139 So. 3d 766, 2014 WL 2180262, 2014 Miss. App. LEXIS 298 (Mich. Ct. App. 2014).

Opinion

FAIR, J.,

for the Court:

¶ 1. This appeal arises from alimony proceedings between Carl and Joyce Cock-[768]*768rell. Joyce filed a complaint in the Chancery Court of Oktibbeha County, seeking arrearages of alimony with pre-judgment interest, a finding of contempt, and attorney’s fees. Carl filed a counter-complaint for modification, to eliminate his alimony obligation. The chancellor adjudicated a material change in Carl’s circumstances and ordered a downward modification of alimony. Recognizing Joyce was receiving $557 in Social Security benefits based on Carl’s earnings, the chancellor reduced alimony from $750 to $193 a month. Carl was also ordered to pay the full arrearage of $10,500, with interest at five percent per annum. The chancellor found Carl in civil contempt and liable to Joyce for $2,000 in attorney’s fees. Aggrieved, Joyce asserts: (1) the chancellor erred in finding a material change in circumstances, and, alternatively, (2) the downward modification is barred by the doctrine of res judicata. Finding no error, we affirm the decision of the chancellor.

FACTS

¶ 2. Carl and Joyce divorced in 1989 after thirty-five years of marriage. Joyce was awarded $750 per month in periodic alimony. On November 22, 2004, the chancery court held a hearing on Carl’s petition for modification, reimbursement, and partition of real property. On April 11, 2005, the court issued a judgment dividing the real property and ordering Carl to continue his payment of $750 per month in alimony.

¶ 3. Carl made the periodic alimony payments from 1989 until July 2011, when he became ill. In September 2011, Carl was diagnosed with myelodysplastic syndrome and immediately began chemotherapy. On January 3, 2012, Joyce filed a complaint alleging that Carl had failed to pay alimony from July 2011 through December 2011, for a total arreage of $4,500. Joyce also requested that Carl be held in civil contempt and asked for attorney’s fees with post-judgment interest. Carl responded with a counter-complaint, requesting that the court modify his alimony obligation by terminating his monthly alimony payments. He claimed that his disease constituted a material change in circumstances since the original divorce decree.

¶ 4. The court held a hearing on September 17, 2012. Both Joyce and Carl testified. Joyce testified that she did not work during the marriage, nor had she worked since. She is seventy-seven years old. At some point after the divorce, Joyce began receiving monthly payments based on Carl’s past employment — $557 in Social Security and $449.31 in retirement. With Carl’s alimony payment of $750, Joyce had a total monthly income of $1,756.31. Joyce’s Rule 8.05 financial statement1 showed that her net monthly expenses totaled $1,710.63. She lives in a mortgage-free home and pays no rent. Joyce claimed that Carl’s failure to pay alimony forced her to borrow $4,000 from friends to pay her bills.

¶ 5. Carl was working at the time of the divorce but retired shortly after. He is now eighty years old and remarried to Sheila Cockrell. They own a home together. Sheila is currently employed as a registered nurse. Carl testified that, until recently, he was healthy and able to make his monthly alimony payment of $750; however, he stopped making his monthly alimony payments in July 2011 because he no longer had the resources to pay. Carl explained that, since his diagnosis, he has used all of his savings for medical expenses. He further testified that he has been unable to work due to his illness.

[769]*769¶ 6. At the hearing, Carl presented the court with a copy of his 2010 federal tax return, a Rule 8.05 financial statement, a copy of his medical receipts, and a copy of a medical treatment letter from one of his physicians. His 2010 tax return, filed jointly with Sheila, reflected a combined household adjusted gross income of $73,904. Carl’s Rule 8.05 financial statement showed that he received $689 in monthly retirement and $1,638 in Social Security payments, for a combined income of $2,327. Carl’s Rule 8.05 statement showed that his monthly expenses amounted to $4,074. He also testified that the expenses listed in his Rule 8.05 statement represented the combined expenses of both himself and Sheila and that Sheila contributes to making some of the payments. Carl listed medical expenses of $3,164 from January 29, 2012, to February 28, 2012. He testified that he receives Medicare and other health coverage from his previous employer, which has helped cover some of his costs. Carl also testified that he takes chemotherapy every twenty-eight days. With this treatment, Carl is expected to live an additional four to eight years.

¶ 7. The chancellor found that Carl’s diagnosis and medical expenses, along with Joyce’s receipt of some of his Social Security payments, constituted a material change in circumstances since the original divorce decree. The chancellor then considered the Armstrong2 factors, comparing the relative positions of Joyce and Carl at the time of the request for modification to their position at the time of the original decree. See Steiner v. Steiner, 788 So.2d 771, 776 (¶ 16) (Miss.2001).

¶ 8. Relying on the supreme court’s decision in Spalding v. Spalding, 691 So.2d 435 (Miss.1997), the chancellor denominated Carl’s Social Security , payments of $557 as income and credited that amount towards his alimony payment. As a result, Carl’s monthly alimony payments were reduced from $750 to $193. The chancellor also held that the modification was not retroactive, ruling that Joyce was entitled to $10,500 in past-due alimony, plus interest. In addition, Carl was held in civil contempt and ordered to pay Joyce’s attorney’s fees.

STANDARD OF REVIEW

¶9. “In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous or [applied] an erroneous legal standard[.]” Sanderson v. Sanderson, 824 [770]*770So.2d 623, 625-26 (¶ 8) (Miss.2002) (citation omitted).

¶ 10. Carl failed to file a responsive brief. See M.R.A.P. 28(c). As such, the appropriate standard of review comes from Chatman v. State, 761 So.2d 851, 854 (¶ 9) (Miss.2000) (internal citation omitted): “An appellee’s failure to file a brief on appeal is tantamount to confession of the errors alleged by the appellant. However, automatic reversal is not required if this Court can say with confidence that the case should be affirmed.”

DISCUSSION

1. Material Change in Circumstances

¶ 11. Joyce argues that Carl failed to meet his burden of proof to show a material change in circumstances for a modification of alimony.

¶ 12. A payor spouse’s alimony obligation may be modified or even terminated if the spouse is able to show a material change of circumstances has occurred since the original divorce decree. West v. West, 891 So.2d 203, 212 (¶21) (Miss.2004) (citation omitted). However, “the material change must be one that was not reasonably anticipated at the time of the original decree.” Clower v. Clower, 988 So.2d 441, 444 (¶ 7) (Miss.Ct.App.2008) (citing

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139 So. 3d 766, 2014 WL 2180262, 2014 Miss. App. LEXIS 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cockrell-v-cockrell-missctapp-2014.