Oster v. Oster

876 So. 2d 428, 2004 Miss. App. LEXIS 377, 2004 WL 885659
CourtCourt of Appeals of Mississippi
DecidedApril 27, 2004
DocketNo. 2002-CA-01174-COA
StatusPublished

This text of 876 So. 2d 428 (Oster v. Oster) 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
Oster v. Oster, 876 So. 2d 428, 2004 Miss. App. LEXIS 377, 2004 WL 885659 (Mich. Ct. App. 2004).

Opinion

IRVING, J.,

for the Court.

¶ 1. This is an appeal by Jamie Oster from a judgment of the Chancery Court of Lincoln County awarding his former wife, Jan Oster, permanent periodic alimony in the amount of $500 per month. Jamie’s sole issue on appeal is that the chancellor erred in awarding permanent periodic alimony.

FACTS

¶ 2. Jamie and Jan were divorced in August 2001. The judgment of divorce ordered Jamie to pay rehabilitative alimony for a period of six months but contained a provision that, at the end of the six month period, the court would review Jamie’s financial situation to determine whether “to continue the rehabilitative alimony, make the rehabilitative alimony permanent, terminate the rehabilitative alimony or make adjustments in connection therewith.”

¶3. The review hearing was held in March 2002. At the beginning of the hearing, the chancellor stated the matter for resolution as follows:

This matter is before the Court on a six month review of the financial situation of Mr. Oster to determine whether or not rehabilitative alimony should be continued, whether or not that rehabilitative alimony should be converted to permanent alimony, or to make any other adjustments in connection therewith the Court deems appropriate, and to consider whether or not an extension in time is necessary for the payment of the attorney’s fees ordered by this Court.

¶ 4. During the hearing, both Jan and Jamie presented testimony of their respective financial conditions. Jamie testified that he was self employed as a yard maintenance worker and worked as an umpire during baseball season. He further testified that he had worked at a job in Louisiana since his last court appearance which was during the divorce proceedings. He testified that “the work was not hard or anything like that, but it was not my kind [430]*430of work. I was not accustomed to that kind of work.”

¶ 5. On cross-examination, Jamie claimed that he quit the job in Louisiana because it did not offer any benefits. He stated that during his three months of employment there, he was guaranteed ninety-one hours a week, at $10 per hour for the first forty hours and $15 an hour for any overtime.

¶ 6. Jamie produced what he called a financial statement but when he was asked the amount of his adjusted gross income, he was unable to state the amount, responding that “he could not say, but it was not very much.” He admitted that he had paid his court-ordered child support only one month. However, he had paid his daughter’s car note and insurance as ordered by the court. He further testified that he had given his daughter money and had helped her with the purchase of school items and the maintenance of her automobile. Jamie further testified that he had paid five out of the six house notes that he was ordered to pay. Finally, Jamie testified that he was not able to continue paying the house payments or any money to Jan.

¶ 7. Jan, as might be expected, testified that she needed support from Jamie by way of either alimony or payment for a place to live for herself and the two children. She testified that her income had not changed since she was in court during the divorce proceedings. She testified that her monthly income was $1,300 and that her monthly expenses were $1,400. She also testified that she owed two outstanding loans in the amount of $700 each. Jan further testified that Jamie had not made a house payment since December and that the house was in foreclosure. She concluded her testimony with an affirmation of her continuing need for support.

¶ 8. At the conclusion of the testimony, the chancellor found that the court had not given a lot of credibility to Jamie’s financial information. The chancellor stated that he did not “believe that it was any different this time.” The chancellor further remarked that he did not believe that there was “really a great difference in what [Jamie] testified to about his income [at the divorce hearing] and now.” As a result, the chancellor reasoned that, based upon the prior findings of the court, the alimony would continue, but it would be changed to permanent periodic alimony at $500 per month. The chancellor relieved Jamie of making the house payments, but ordered that Jamie’s obligation for the alimony payment would be retroactive to January when Jamie stopped making the house payments. Additional facts will be related during our discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. As noted in an earlier portion of this opinion, Jamie argues that the chancellor erred in ordering him to pay periodic alimony to his former spouse. He seeks a reversal and rendering of the chancellor’s decision.

¶ 10. Our standard of review of a chancellor’s award of alimony is very clear. Voda v. Voda, 731 So.2d 1152, 1154(¶7) (Miss.1999). Since the decision to award alimony, as well as the amount, is left to the discretion of the chancellor, we will not reverse unless the chancellor manifestly erred or abused his discretion. Id.

¶ 11. Similarly, the standard is the same for periodic and rehabilitative alimony. Id. at 1155(¶ 8). Rehabilitative alimony is simply a variation, an additional tool to be used in the chancellor’s discretion. Id. This type of alimony provides for a party who is trying to become self-supporting and prevents that party from be-[431]*431coining destitute while searching for a means of income. Id. It is for a fixed period, in contrast to periodic alimony which is for an indefinite period. Id.

¶ 12. Both Jan and Jamie properly advance that with any type alimony award, factors for the chancellor’s consideration are as follows: (1) the income and expenses of the parties, (2) the health and earning capacities of the parties, (3) the needs of each party, (4) the obligations and assets of each party, (5) the length of the marriage, (6) the presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide childcare, (7) the age of the parties, (8) the standard of living of the parties, both during the marriage and at the time of the support determination, (9) the tax consequences of the spousal support order, fault or misconduct of either party, (10) wasteful dissipation of assets by either party, or (12) any other factor deemed by the court to be just and equitable in connection with the setting of spousal support. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

¶ 13. Jan contends that the Armstrong factors were set out and followed by the chancellor in his opinion rendered in the divorce proceeding, and that, since Jamie did not provide a transcript of that proceeding with the record of this appeal, we have nothing to review. We agree that the absence of the transcript of the divorce proceedings prevents any review of the chancellor’s initial decision to grant rehabilitative alimony. However, that is not the decision which is the subject of this appeal. When the chancellor, in the judgment of divorce, ordered Jamie to pay rehabilitative alimony for six months and neither he nor Jan appealed, that judgment became final. A judgment of divorce is not temporary. The review provision was contained in the judgment of divorce, not in a separate temporary order. The consequences flowing from the finality of that judgment are binding on both Jamie and Jan. In that judgment, the chancellor determined that Jan should receive rehabilitative, not permanent periodic alimony.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Armstrong v. Armstrong
618 So. 2d 1278 (Mississippi Supreme Court, 1993)
Voda v. Voda
731 So. 2d 1152 (Mississippi Supreme Court, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
876 So. 2d 428, 2004 Miss. App. LEXIS 377, 2004 WL 885659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oster-v-oster-missctapp-2004.