261 So. 3d 157
Miss. Ct. App.2018Background
- John and Julie McAdams divorced in 2005; John was ordered to pay Julie $2,000/month in periodic alimony.
- In Feb 2017 John petitioned to terminate or reduce alimony, alleging Julie was cohabiting/in a de facto marriage with A.J. Raymond and that her finances had improved; he also sought reimbursement of recent payments.
- Julie counterclaimed for increased alimony and alleged contempt because John stopped direct payments after filing; trial testimony included both spouses and Raymond plus private-investigator surveillance reports.
- Investigators observed Julie’s and Raymond’s vehicles together frequently over a ~7-week period, but both maintained separate residences and finances and testified they do not live together full time.
- Chancellor denied termination and increase, initially reduced alimony for Julie’s Social Security but later rescinded that reduction, found John had “wrongfully” deposited two payments with the court, and awarded Julie $1,000 of $7,500 requested attorney’s fees.
- On appeal, the Court of Appeals affirmed the chancery court on all counts and awarded Julie $500 in appellate attorney’s fees.
Issues
| Issue | Plaintiff's Argument (John) | Defendant's Argument (Julie) | Held |
|---|---|---|---|
| Whether alimony should be terminated for cohabitation | Julie and Raymond spent many nights together; cohabitation presumption should apply, shifting burden to Julie | They maintain separate homes and finances; surveillance is not dispositive | Denied — evidence insufficient to establish cohabitation; chancellor’s finding not clearly erroneous |
| Whether alimony should be terminated for de facto marriage | Relationship facts (shared trips, help, gifts) show de facto marriage so payments should end | No shared finances, no intent to avoid remarriage, not structured as de facto marriage | Denied — facts closer to cases rejecting de facto marriage; chancellor’s finding affirmed |
| Whether alimony should be reduced due to changed finances | Julie’s net worth and Social Security improved; John’s finances worsened, so modification warranted | Julie’s improvement not an unanticipated change; Social Security from her earnings not automatic reduction | Denied — no unanticipated material change; Social Security from recipient’s own earnings not automatic reduction |
| Whether attorney’s fees for contempt were proper and amount | Award improper because only one payment was late; no clear willful contempt or fees itemized | Withholding was wrongful; contempt-based fees allowed though court may estimate reasonable amount | Affirmed — chancellor reasonably found contempt re: March payment and awarded $1,000; appellate fees of $500 awarded to Julie on cross-appeal |
Key Cases Cited
- Smith v. Smith, 545 So. 2d 725 (Miss. 1989) (appellate deference when chancellor makes no specific factual findings)
- Scharwath v. Scharwath, 702 So. 2d 1210 (Miss. 1997) (cohabitation creates presumption of changed circumstances affecting alimony)
- Hughes v. Hughes, 186 So. 3d 394 (Miss. Ct. App. 2016) (standards and deference for cohabitation and de facto marriage findings)
- Martin v. Martin, 751 So. 2d 1132 (Miss. Ct. App. 1999) (examples of de facto marriage terminating alimony)
- Harris v. Harris, 241 So. 3d 622 (Miss. 2018) (Social Security benefits from other spouse’s income do not trigger automatic alimony reduction)
- Gutierrez v. Gutierrez, 233 So. 3d 797 (Miss. 2017) (chancellor’s discretion on contempt findings; appellate review limited)
- Heisinger v. Riley, 243 So. 3d 248 (Miss. Ct. App. 2018) (attorney’s fees recoverable when enforcing court’s judgment for contempt; fees limited to contempt-related expense)
- McCraw v. McCraw, 759 So. 2d 519 (Miss. Ct. App. 2000) (burden to modify alimony: material, substantial, unanticipated change of circumstances)