Tillman v. Tillman

791 So. 2d 285, 2001 WL 828022
CourtCourt of Appeals of Mississippi
DecidedJuly 24, 2001
Docket1999-CA-01456-COA
StatusPublished
Cited by4 cases

This text of 791 So. 2d 285 (Tillman v. Tillman) 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
Tillman v. Tillman, 791 So. 2d 285, 2001 WL 828022 (Mich. Ct. App. 2001).

Opinion

791 So.2d 285 (2001)

Shirley TILLMAN, Appellant,
v.
Wallace TILLMAN, Appellee.

No. 1999-CA-01456-COA.

Court of Appeals of Mississippi.

July 24, 2001.

*286 Gary L. Roberts, Gautier, Attorney for Appellant.

Michael L. Fondren, Pascagoula, Attorney for Appellee.

Before McMILLIN, C.J., IRVING, and CHANDLER, JJ.

McMILLIN, C.J., for the Court:

¶ 1. This is an appeal from an order of the Chancery Court of Jackson County modifying the terms of an earlier divorce judgment relating to the provision of health care to the divorcing wife. We affirm the decision of the chancellor for reasons we will proceed to state.

¶ 2. When Wallace and Shirley Tillman were divorced in January 1997, the divorce judgment ordered that Mr. Tillman continue to provide health insurance coverage for Mrs. Tillman and that he be responsible for one-half of Mrs. Tillman's medical expenses not covered by insurance. However, in March 1998, Mr. Tillman sought to have this provision modified, alleging that Mrs. Tillman was not providing him with *287 sufficient information to determine whether her extensive medical bills were reasonable and necessary. He further contended that Mrs. Tillman was abusing narcotic substances by obtaining multiple prescriptions from different doctors, the result being a substantial expense to him not based on legitimate health care concerns. He urged that this constituted grounds to modify his obligation.

¶ 3. The chancellor, after a hearing on the petition, made no finding of fact that Mrs. Tillman's medical expenses were unreasonable or unnecessary as alleged by Mr. Tillman. Neither did he find that Mrs. Tillman was wrongfully abusing prescription narcotic drugs to Mr. Tillman's financial detriment. However, the chancellor did find that Mrs. Tillman had consistently incurred substantial medical costs since the time of the divorce and that this was causing financial problems for Mr. Tillman.

¶ 4. Though no allegations regarding difficulties with providing health insurance to Mrs. Tillman were raised in the pleadings, there was evidence presented at the hearing that Mrs. Tillman had been covered by health insurance guaranteed to her under federal COBRA regulations, but that the period of COBRA coverage was about to expire and there was uncertainty as to whether Mrs. Tillman could obtain some alternate form of coverage and what that coverage, if available, might cost.

¶ 5. Indicating that he was "struggling with finding an equitable resolution to this situation," the chancellor modified the original judgment to provide that Mr. Tillman's obligation regarding health care costs not covered by insurance would be reduced from 50% to 25%, with a monthly cap on such costs of $250. Taking into consideration the impending end of Mrs. Tillman's COBRA health insurance coverage, the chancellor further ordered that, once that coverage expired, Mr. Tillman's obligation, rather than directly providing insurance coverage, would be to pay to Mrs. Tillman the amount he had previously been paying for her COBRA coverage— approximately $360 per month—plus the previously-announced 25% of non-covered medical bills subject to the $250 monthly cap. Thus, under the chancellor's modified judgment, Mr. Tillman's minimum monthly obligation regarding Mrs. Tillman's health care would be $360 per month for those months when Mrs. Tillman had no medical expenses not covered by insurance and his maximum monthly obligation would be $610.

¶ 6. Mrs. Tillman has appealed to this Court from that decision, arguing the single proposition that the chancellor erred at the outset because there was no evidence of a post-divorce material change in circumstance that would justify modifying the original judgment. Mr. Tillman counters that argument by suggesting that the evidence of Mrs. Tillman's substantial postdivorce medical costs was, in itself, proof of a material change in circumstance that would warrant modification. He also argues that the impending loss of COBRA coverage, which he contends will inevitably cause a substantial increase in Mrs. Tillman's non-covered medical expenses, was not foreseeable at the time of divorce and is, thus, an independent basis to find a material change in circumstance warranting modification of the original judgment.

I.

Discussion

¶ 7. Both parties base their arguments before this Court on the question of whether or not the chancellor had a legally recognized basis to modify the earlier judgment; i.e., whether there had been a post-judgment material change in circumstance. *288 Taylor v. Taylor, 392 So.2d 1145, 1147 (Miss.1981). It is the view of this Court, however, that the issue before us is one more fundamental than that. It goes, not to the chancellor's authority to modify his original divorce judgment, but to the propriety of originally imposing such an open-ended obligation insofar as the initial judgment obligated Mr. Tillman to pay one-half of any future medical expenses for Mrs. Tillman not covered by available insurance.

¶ 8. Divorce, including the power of the chancellor to make provision for support and maintenance of divorcing spouses, is a creature of statute. Massingill v. Massingill, 594 So.2d 1173, 1175 (Miss.1992). Any financial provisions relating to the dissolution of a marriage, in order to be legally binding on the parties, must have as their basis some foundation in statute. In Mississippi the chancellor's authority in this case is derived from Section 93-5-23 of the Mississippi Code, which allows the chancellor, incident to granting a divorce, to "make all orders ... touching the maintenance and alimony of the wife...." Miss.Code Ann. § 93-5-23 (Supp.2000). Case law interpreting this statutory authority has evolved to the point where there are now essentially three recognized forms of post-divorce spousal support. They are lump sum alimony, periodic alimony, and rehabilitative alimony. Hubbard v. Hubbard, 656 So.2d 124, 129-31 (Miss.1995). There appears to be no problem with the chancellor's order that Mr. Tillman continue to provide medical insurance for Mrs. Tillman, since prior decisions of the Mississippi Supreme Court and this Court have condoned such requirements in varying forms. See, e.g., Ferguson v. Ferguson, 639 So.2d 921, 936 (Miss.1994); Driste v. Driste, 738 So.2d 763, 766 (Miss.Ct.App.1998).

¶ 9. We conclude that the courts have approved such payments on the theory that, due to the relatively fixed and determinable cost of such an obligation, it could be deemed in the nature of alimony. In Voda v. Voda, for example, the supreme court sanctioned a requirement that Mr. Voda provide health insurance coverage for Mrs. Voda for eighteen months on the theory that the requirement could be classed as a form of rehabilitative alimony. Voda v. Voda, 731 So.2d 1152, 1157 (Miss. 1999).

¶ 10. However, none of the decisions in cases discovered by this Court included a provision that the former spouse pay, in addition to the premium, some part of future medical expenses when such expenses are, at the time of the judgment, unknown and unknowable. It is apparent that a support obligation that has the potential to vary without limit from month to month would, in each instance, constitute a modification of the support obligation. Future support in the form of alimony may only be modified by the chancellor. Elliott v. Rogers, 775 So.2d 1285, 1288 (¶ 10) (Miss.2000).

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Bluebook (online)
791 So. 2d 285, 2001 WL 828022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tillman-v-tillman-missctapp-2001.