IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-CA-01378-COA
JASON GILLENWATER APPELLANT
v.
WANDA LISA REDMOND F/K/A WANDA LISA APPELLEE GILLENWATER
DATE OF JUDGMENT: 12/02/2021 TRIAL JUDGE: HON. TANYA L. HASBROUCK COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: MARK V. KNIGHTEN ATTORNEY FOR APPELLEE: SUSAN WELDON CULPEPPER NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 04/04/2023 MOTION FOR REHEARING FILED:
BEFORE BARNES, C.J., McDONALD AND EMFINGER, JJ.
EMFINGER, J., FOR THE COURT:
¶1. On December 2, 2021, the Jackson County Chancery Court entered a final judgment
that modified the amount of Jason Gillenwater’s alimony obligation payable to his former
wife Wanda Redmond. Jason’s monthly alimony obligation was reduced after the
chancellor’s consideration of the testimony and evidence of in-kind and monetary support
Wanda received as a result of her cohabitation with her boyfriend, Allen Rouse. Aggrieved
by the chancery court’s decision to modify rather than terminate his monthly alimony
obligation based on Wanda’s cohabitation and mutual support, Jason appealed.
FACTS AND PROCEDURAL HISTORY
¶2. Jason and Wanda were divorced pursuant to a judgment styled “Findings of Fact, Conclusions of Law, Ruling, and Judgment of the Court” (divorce judgment) entered on June
14, 2018. The divorce judgment awarded Wanda permanent periodic alimony in the amount
of $700 per month. At the time of their divorce, Jason was a pipe welder making $8,759 per
month, and Wanda was a childcare provider making $534 per month. The parties had been
married for twenty-two years. Jason was 48, and Wanda was a 56-year-old cancer survivor.
¶3. On February 24, 2021, Jason filed a “Petition for Termination and/or modification of
alimony and Petition for Citation for Contempt”(petition).1 Jason alleged that there had been
a “material change in circumstances necessitating a modification and/or termination of
alimony.” Jason argued that since the date of his divorce from Wanda, he was laid off from
his employment and had not had a job as a pipe welder since September 23, 2020. Further,
Jason claimed, and the parties stipulated prior to trial, that Wanda had been cohabiting with
her boyfriend Rouse since January 2020. According to Jason, Rouse provided mutual
support and in-kind services that negated Wanda’s need for alimony.
¶4. The trial on Jason’s petition took place on September 16, 2021. Jason and Wanda
were the only two witnesses to testify. At the conclusion of the trial, the chancery court
requested that each party submit a “two-page letter brief” in support of their respective
positions.
¶5. The chancery court entered a final judgment on December 2, 2021. The court found
that Jason had not produced any records showing his income for the 2020 tax year, provided
no medical proof to show that he could not work or that he had any work limitation, and
1 The issue of alleged contempt contained in Jason’s petition was resolved prior to trial, and Jason withdrew that issue for the court’s consideration.
2 provided no proof that he had attempted to find other employment during any periods of
unemployment as a union pipe welder. As a result, the chancery court held that Jason did not
meet “his burden of proof establishing a material change of circumstances for which the
court should consider a reduction or termination of Jason’s permanent periodic alimony
obligation” based on his employment status.
¶6. As to Jason’s claim of Wanda’s cohabitation, Wanda admitted that she had been
cohabiting with Rouse but denied that he was providing any mutual support. The chancellor
found that because of the “presumption of cohabitation,” Wanda had the burden to establish
that there was no mutual support. The chancellor found that Wanda’s proof did not
overcome the presumption that a material change of circumstance had occurred as a result
of her cohabitation. Therefore, the chancellor proceeded to consider the Armstrong2 factors.
Although the chancery court did not terminate Jason’s alimony obligation as requested, the
court alternatively held that “the support from splitting certain living expenses and the in-
kind services [Wanda] receives from the cohabitation reduces, but does not eliminate her
financial need for alimony.” In turn, the chancery court held that “the alimony obligation of
Jason Gillenwater to Wanda Lisa Redmond f/k/a Wanda Gillenwater should be and [was]
modified to $400.00 per month beginning October 1, 2021.” Jason filed his notice of appeal
on December 16, 2021.
STANDARD OF REVIEW
¶7. “Our scope of review of an alimony award is familiar and well settled. Alimony
2 Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993).
3 awards are within the discretion of the chancellor, and his discretion will not be reversed on
appeal unless the chancellor was manifestly in error in his finding of fact and abused his
discretion.” Armstrong, 618 So. 2d at 1280 (citations omitted). “This Court will not disturb
a chancellor’s ruling if the findings of fact are supported by credible evidence in the record.”
Ethridge v. Ethridge, 648 So. 2d 1143,1146 (Miss. 1995).
ANALYSIS
¶8. Jason argues one issue on appeal. He claims that the chancery court erred in
modifying alimony rather than terminating his obligation on the basis of Wanda’s
cohabitation and the finding of mutual financial support and in-kind services.
¶9. “The purpose of permanent periodic alimony is to be a substitute for the marital-
support obligation.” Harris v. Harris, 241 So. 3d 622, 625 (¶8) (Miss. 2018) (citing Rogillio
v. Rogillio, 57 So. 3d 1246, 1250 (Miss. 2011)). “The award of permanent periodic alimony
arises from the duty of the financially independent spouse to support the financially
dependent spouse.” Id. Within their broad authority, chancellors have the “specific power
to increase, decrease, or terminate periodic alimony payments.” Easterling v. Easterling, 245
So. 3d 548, 550 (¶8) (Miss. Ct. App. 2018). This Court has held that “[w]hen considering
a party’s petition to modify or terminate an award of periodic alimony, a chancellor must first
determine whether ‘an unforeseeable and material change in circumstances occurred since
[the] entry of the initial divorce decree.’” Id. at 551 (¶9). The party seeking the modification
has the burden to prove that there has been such a change. McCraw v. McCraw, 759 So. 2d
519, 521 (¶4) (Miss. Ct. App. 2000). If the chancellor determines that there has been an
4 unanticipated and material change in circumstances, the chancellor should then consider the
Armstrong factors to determine the appropriate amount of alimony. Peterson v. Peterson,
129 So. 3d 255, 257 (¶8) (Miss. Ct. App. 2013). In Heiter v. Heiter ex. rel. Sheffield, 192 So.
3d 992, 996 (¶10) (Miss. 2016), the Mississippi Supreme Court explained:
In Scharwath, this Court officially adopted the Florida rule and held “that proof of cohabitation creates a presumption that a material change in circumstances has occurred.” Scharwath v.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-CA-01378-COA
JASON GILLENWATER APPELLANT
v.
WANDA LISA REDMOND F/K/A WANDA LISA APPELLEE GILLENWATER
DATE OF JUDGMENT: 12/02/2021 TRIAL JUDGE: HON. TANYA L. HASBROUCK COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: MARK V. KNIGHTEN ATTORNEY FOR APPELLEE: SUSAN WELDON CULPEPPER NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 04/04/2023 MOTION FOR REHEARING FILED:
BEFORE BARNES, C.J., McDONALD AND EMFINGER, JJ.
EMFINGER, J., FOR THE COURT:
¶1. On December 2, 2021, the Jackson County Chancery Court entered a final judgment
that modified the amount of Jason Gillenwater’s alimony obligation payable to his former
wife Wanda Redmond. Jason’s monthly alimony obligation was reduced after the
chancellor’s consideration of the testimony and evidence of in-kind and monetary support
Wanda received as a result of her cohabitation with her boyfriend, Allen Rouse. Aggrieved
by the chancery court’s decision to modify rather than terminate his monthly alimony
obligation based on Wanda’s cohabitation and mutual support, Jason appealed.
FACTS AND PROCEDURAL HISTORY
¶2. Jason and Wanda were divorced pursuant to a judgment styled “Findings of Fact, Conclusions of Law, Ruling, and Judgment of the Court” (divorce judgment) entered on June
14, 2018. The divorce judgment awarded Wanda permanent periodic alimony in the amount
of $700 per month. At the time of their divorce, Jason was a pipe welder making $8,759 per
month, and Wanda was a childcare provider making $534 per month. The parties had been
married for twenty-two years. Jason was 48, and Wanda was a 56-year-old cancer survivor.
¶3. On February 24, 2021, Jason filed a “Petition for Termination and/or modification of
alimony and Petition for Citation for Contempt”(petition).1 Jason alleged that there had been
a “material change in circumstances necessitating a modification and/or termination of
alimony.” Jason argued that since the date of his divorce from Wanda, he was laid off from
his employment and had not had a job as a pipe welder since September 23, 2020. Further,
Jason claimed, and the parties stipulated prior to trial, that Wanda had been cohabiting with
her boyfriend Rouse since January 2020. According to Jason, Rouse provided mutual
support and in-kind services that negated Wanda’s need for alimony.
¶4. The trial on Jason’s petition took place on September 16, 2021. Jason and Wanda
were the only two witnesses to testify. At the conclusion of the trial, the chancery court
requested that each party submit a “two-page letter brief” in support of their respective
positions.
¶5. The chancery court entered a final judgment on December 2, 2021. The court found
that Jason had not produced any records showing his income for the 2020 tax year, provided
no medical proof to show that he could not work or that he had any work limitation, and
1 The issue of alleged contempt contained in Jason’s petition was resolved prior to trial, and Jason withdrew that issue for the court’s consideration.
2 provided no proof that he had attempted to find other employment during any periods of
unemployment as a union pipe welder. As a result, the chancery court held that Jason did not
meet “his burden of proof establishing a material change of circumstances for which the
court should consider a reduction or termination of Jason’s permanent periodic alimony
obligation” based on his employment status.
¶6. As to Jason’s claim of Wanda’s cohabitation, Wanda admitted that she had been
cohabiting with Rouse but denied that he was providing any mutual support. The chancellor
found that because of the “presumption of cohabitation,” Wanda had the burden to establish
that there was no mutual support. The chancellor found that Wanda’s proof did not
overcome the presumption that a material change of circumstance had occurred as a result
of her cohabitation. Therefore, the chancellor proceeded to consider the Armstrong2 factors.
Although the chancery court did not terminate Jason’s alimony obligation as requested, the
court alternatively held that “the support from splitting certain living expenses and the in-
kind services [Wanda] receives from the cohabitation reduces, but does not eliminate her
financial need for alimony.” In turn, the chancery court held that “the alimony obligation of
Jason Gillenwater to Wanda Lisa Redmond f/k/a Wanda Gillenwater should be and [was]
modified to $400.00 per month beginning October 1, 2021.” Jason filed his notice of appeal
on December 16, 2021.
STANDARD OF REVIEW
¶7. “Our scope of review of an alimony award is familiar and well settled. Alimony
2 Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993).
3 awards are within the discretion of the chancellor, and his discretion will not be reversed on
appeal unless the chancellor was manifestly in error in his finding of fact and abused his
discretion.” Armstrong, 618 So. 2d at 1280 (citations omitted). “This Court will not disturb
a chancellor’s ruling if the findings of fact are supported by credible evidence in the record.”
Ethridge v. Ethridge, 648 So. 2d 1143,1146 (Miss. 1995).
ANALYSIS
¶8. Jason argues one issue on appeal. He claims that the chancery court erred in
modifying alimony rather than terminating his obligation on the basis of Wanda’s
cohabitation and the finding of mutual financial support and in-kind services.
¶9. “The purpose of permanent periodic alimony is to be a substitute for the marital-
support obligation.” Harris v. Harris, 241 So. 3d 622, 625 (¶8) (Miss. 2018) (citing Rogillio
v. Rogillio, 57 So. 3d 1246, 1250 (Miss. 2011)). “The award of permanent periodic alimony
arises from the duty of the financially independent spouse to support the financially
dependent spouse.” Id. Within their broad authority, chancellors have the “specific power
to increase, decrease, or terminate periodic alimony payments.” Easterling v. Easterling, 245
So. 3d 548, 550 (¶8) (Miss. Ct. App. 2018). This Court has held that “[w]hen considering
a party’s petition to modify or terminate an award of periodic alimony, a chancellor must first
determine whether ‘an unforeseeable and material change in circumstances occurred since
[the] entry of the initial divorce decree.’” Id. at 551 (¶9). The party seeking the modification
has the burden to prove that there has been such a change. McCraw v. McCraw, 759 So. 2d
519, 521 (¶4) (Miss. Ct. App. 2000). If the chancellor determines that there has been an
4 unanticipated and material change in circumstances, the chancellor should then consider the
Armstrong factors to determine the appropriate amount of alimony. Peterson v. Peterson,
129 So. 3d 255, 257 (¶8) (Miss. Ct. App. 2013). In Heiter v. Heiter ex. rel. Sheffield, 192 So.
3d 992, 996 (¶10) (Miss. 2016), the Mississippi Supreme Court explained:
In Scharwath, this Court officially adopted the Florida rule and held “that proof of cohabitation creates a presumption that a material change in circumstances has occurred.” Scharwath v. Scharwath, 702 So. 2d 1210, 1211 (Miss. 1997). This presumption shifts the burden to the recipient spouse to produce evidence contradicting mutual financial support. Id. However, the paying spouse still must show that the cohabitation results in “a situation of mutual support between the recipient spouse and another individual which alters the recipient spouse’s financial needs” before alimony can be modified. Id.
(Emphasis added).
¶10. In the case at hand, the parties stipulated that Wanda began cohabiting with Rouse in
January 2020. Due to the parties’ stipulation, the chancery court held that there was a
“presumption of cohabitation and [therefore] the burden [was] on Wanda to establish there
was no mutual financial support.” The chancery court further held that Wanda did not meet
that burden. More specifically, the chancery court held:
Under the circumstances of this case, Wanda and Allen splitting household expenses is some mutual support, and Allen’s work around the house also are services of monetary value. . . . As such, consideration of the Armstrong factors is necessary to determine whether the permanent periodic alimony obligation should be modified and comparison made of the relative positions of the parties at the time of the request for modification.
Jason’s sole argument on appeal stems from the chancery court’s analysis of the final prong
of the test and whether the mutual support altered Wanda’s financial needs.
¶11. The final judgment discussed all ten of the Armstrong factors as well as additional
5 factors “deemed by the court to be ‘just and equitable’ in connection with the setting of
spousal support.” After consideration of the Armstrong factors and comparing the relative
positions of the parties, the chancery court held that “the support from splitting certain living
expenses and the in-kind services [Wanda] receives from the cohabitation reduces, but does
not eliminate her financial need for alimony.” (Emphasis added).
¶12. In its analysis of the final Armstrong prong, the court reiterated the fact that there was
a “great disparity between the wage-earning capacity of Wanda and Jason” and Jason’s lack
of evidence to support his claim that he could not find similar or other work. The chancellor
also noted that while she acknowledged Wanda was cohabiting with Rouse and sharing
expenses, her expenses would be higher if she was required to pay certain utilities and
responsible for all upkeep and maintenance on the home. Finally, the chancellor
acknowledged the high mileage on Wanda’s vehicle and her expected need for a newer
vehicle in the near future. Wanda contends that she does not intend to marry Rouse and that
it would be a struggle for her to get by without the alimony payments from Jason.
Ultimately, the chancery court held that despite the mutual and in-kind support, Wanda still
had a need for alimony.
¶13. Similarly, in Heiter, 192 So. 3d at 997 (¶16), the Mississippi Supreme Court explained
that “[t]he chancellor followed this Court’s instruction in reviewing this matter on a case-by-
case basis. In doing so, the chancellor found sufficient evidence that Lindalyn’s needs were
not altered by the support provided by Curtis. The chancellor did not abuse her discretion
in failing to modify alimony . . . .” In the case at hand, without alimony from Jason, and
6 taking into consideration Rouse’s contribution to mutual support, Wanda would still be
struggling to cover her monthly expenses. “So long as there is substantial evidence in the
record that, if found credible by the chancellor, would provide support for the chancellor’s
decision, this Court may not intercede simply to substitute our collective opinion for that of
the chancellor.” Hall v. Hall, 134 So. 3d 822, 825 (¶8) (Miss. Ct. App. 2014). Given the
facts of this particular case, the chancery court did not abuse its discretion by not terminating
the periodic alimony but, instead, modifying the amount of Jason’s alimony obligation.
CONCLUSION
¶14. After reviewing the record, we find that the chancery court did not err in reducing
Jason’s alimony obligation rather than terminating it.
¶15. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, McDONALD, McCARTY AND SMITH, JJ., CONCUR. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. LAWRENCE, J., NOT PARTICIPATING.