Dix v. Dix

941 So. 2d 913, 2006 WL 3199546
CourtCourt of Appeals of Mississippi
DecidedNovember 7, 2006
Docket2005-CA-00293-COA
StatusPublished
Cited by4 cases

This text of 941 So. 2d 913 (Dix v. Dix) 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
Dix v. Dix, 941 So. 2d 913, 2006 WL 3199546 (Mich. Ct. App. 2006).

Opinion

941 So.2d 913 (2006)

Brian R. DIX, Appellant
v.
Karen R. DIX, Appellee.

No. 2005-CA-00293-COA.

Court of Appeals of Mississippi.

November 7, 2006.

*914 Herbert J. Stelly, Gulfport, attorney for appellant.

Dean Holleman, Gulfport, attorney for appellee.

Before LEE, P.J., CHANDLER and ROBERTS, JJ.

CHANDLER, J., for the Court.

¶ 1. Dr. Brian ("Brian") Dix and Karen Dix ("Karen") were granted an irreconcilable differences divorce on June 1, 1998 in the Chancery Court of the First Judicial District of Harrison County, Mississippi. The couple agreed to a property settlement, alimony payments and child custody arrangements, which were incorporated into the final decree for divorce.

¶ 2. In 2004, Brian filed a motion for modification seeking to modify certain provisions of the divorce decree. Brian requested a modification by reduction or elimination of his obligation to pay Karen periodic alimony and requested that his child support obligation for his oldest child, now in college, be offset by his payments for college education. The trial court denied Brian's motion, finding that no material change in circumstances had arisen. Brian appeals, raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION TO TERMINATE PERIODIC ALIMONY
II. WHETHER THE TRIAL COURT ERRED IN DENYING BRIAN'S MOTION TO OFFSET CHILD SUPPORT PAYMENTS FROM THE SUPPORT OWED TO KAREN

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. Brian and Karen entered into an irreconcilable differences divorce on June 1, 1998 after fifteen years of marriage. The couple had four children together during the marriage. The provisions for periodic alimony, child support and insurance on Brian's life were agreed to by the parties and incorporated into a property settlement agreement.

¶ 5. The judgment of divorce ordered Brian to pay Karen $2,200 per month as periodic alimony. Brian was also required to maintain life insurance with Karen as a partial beneficiary for an amount equal to *915 the unpaid lump sum alimony. Karen was awarded paramount custody of the children, and a schedule was set for Brian to have regular visitation with the children. Brian agreed to pay child support totaling $2,800 per month ($700 per child) and to pay all of the children's health insurance, medical bills, private school tuition, and college education.

¶ 6. As part of the property settlement, Brian also agreed to pay Karen lump sum alimony of $360,000 payable at $2,500 per month for sixty months and thereafter $3,500 per month for sixty months. In addition, Karen received ownership of the $250,000 marital home and assumed the indebtedness of $151,000 for the property. Brian retained ownership interests in his medical practice, and each spouse retained their current automobiles.

¶ 7. At the time of the divorce, Brian was a successful anesthesiologist in Harrison County, Mississippi, and Karen was a stay-at-home mother to their four minor children. Karen has since returned to school, obtained her masters degree in nursing, and returned to the workforce as a nurse practitioner. Brian has since remarried, and has another child with his second wife. At the time of the trial, the four children were still residing with their mother, except for the oldest boy who was away at college.

¶ 8. Brian filed a complaint to modify the property settlement on January 21, 2004. Brian claimed that Karen's obtaining her nursing degree and going back to work constituted a material and substantial change in circumstances such that Brian should be relieved of providing any further periodic alimony payments. In a hearing on these matters, Brian claimed that a reduction in his income also qualified as a material change justifying elimination of periodic alimony.

¶ 9. In an amended complaint on August 30, 2004, Brian further requested a modification or termination of his child support obligations to his oldest child, Daniel, who was away at college and no longer residing full-time in Karen's home. Karen filed an answer and counterclaim requesting that child support be increased, making a general allegation of a change in circumstances.

¶ 10. Evidence was presented at trial in September 2004, consisting of the parties' financial declarations, tax returns, expense summaries, pay stubs, and Brian's credit card statements and summaries. Both Brian and Karen testified as to their present and past financial condition, expenses and income levels.

¶ 11. The trial court denied Brian's motion for modification of alimony and child support on January 13, 2005, and denied Karen's general request for an increase in child support. The court found that although a change in circumstances had occurred when Karen went back to work, it was not deemed to be a material or substantial change when comparing the parties' respective incomes and expenses. Aggrieved, Brian appeals, arguing that the trial court erred in denying his motion to modify the alimony and child support agreement. Brian claims that the chancellor applied an incorrect legal standard in his ruling.

STANDARD OF REVIEW

¶ 12. A chancellor's findings of fact will not be disturbed if substantial evidence supports those factual findings or unless the chancellor was manifestly wrong or clearly erroneous. Turpin v. Turpin, 699 So.2d 560, 564(¶ 14) (Miss.1997). As to matters of law, however, a different standard applies. In that case, our review is de novo, and if we determine that the chancellor applied an incorrect legal standard, *916 we must reverse. Morreale v. Morreale, 646 So.2d 1264, 1267 (Miss.1994). The court reviews all of the evidence in a light most favorable to the appellee. Rawson v. Buta, 609 So.2d 426, 429 (Miss. 1992).

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION TO TERMINATE PERIODIC ALIMONY

¶ 13. Brian argues that the trial court applied an incorrect legal standard in reviewing Brian's complaint for modification of the divorce decree. Brian contends that the trial court erred in holding his complaint of modification to a higher scrutiny than other motions for modification, which caused a faulty finding that there was no substantial and material change in circumstances sufficient to warrant a modification of periodic alimony.

¶ 14. The trial court cited Morris v. Morris, 541 So.2d 1040, 1043 (Miss.1989), in stating that modifications of provisions agreed upon by both of the parties require closer scrutiny upon a modification request compared to an award that had been actually litigated in court. Brian argues that modifications in such cases do not require heightened scrutiny. He relies on Section 93-5-2(2) of the Mississippi Code Annotated (Rev.2004), which states in relevant part:

If the parties provide by written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the judgment, and such judgment may be modified as other judgments for divorce.

(emphasis added).

¶ 15. While the chancellor used a heightened scrutiny to decide whether to modify the agreed order of divorce, the standard must still be met that a material change in circumstances occurred as a result of after-arising circumstances not reasonably anticipated at the time of agreement. Varner v. Varner, 666 So.2d 493, 497 (Miss.1995).

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941 So. 2d 913, 2006 WL 3199546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dix-v-dix-missctapp-2006.