269 So. 3d 230
Miss. Ct. App.2018Background
- Adam and Karen divorced in 2002; the divorce incorporated a settlement requiring Adam to pay Karen $15,000/month in permanent periodic alimony (modifiable; terminates on remarriage/death).
- By 2015 their four children were adults; Karen had not worked since 1990 and relied primarily on alimony; she owned a $600,000 mortgage-free house and minority interests in family vacation homes plus liquid assets and retirement funds.
- Adam alleged Karen was cohabiting or in a de facto marriage with longtime boyfriend Steven Dobel (long-term exclusive relationship, trips together, a ring, separate residences, no evidence of shared finances or nightly cohabitation) and sought termination of alimony; he presented only his own testimony, largely hearsay and circumstantial.
- At trial Adam rested after his testimony; Karen moved to dismiss under M.R.C.P. 41(b). The chancellor granted the dismissal, finding Adam failed to meet his burden, and awarded Karen half her attorney’s fees ($13,935.50).
- On appeal the Mississippi Supreme Court affirmed the dismissal (chancellor did not manifestly err in weighing credibility and finding insufficient proof of cohabitation or de facto marriage) but reversed the attorney’s fees award, holding Karen failed to show inability to pay.
Issues
| Issue | Plaintiff's Argument (Lewis) | Defendant's Argument (Conway Lewis) | Held |
|---|---|---|---|
| Whether Adam proved cohabitation or mutual financial support to justify terminating alimony | Karen and Dobel spend days together, travel, bought property together, wear ring — sufficient to show cohabitation/de facto marriage or mutual support | Karen and Dobel maintain separate homes and finances; no proof of mutual financial support or nightly cohabitation; Adam’s evidence was hearsay/assumptive | Affirmed: dismissal upheld — plaintiff failed to meet burden; chancellor entitled to weigh credibility and not view evidence in plaintiff’s favor |
| Whether Adam proved a de facto marriage (including purposeful avoidance of remarriage to preserve alimony) | Long-term exclusive relationship, circumstantial indicia (ring, trips, joint property purchase) supports inference of de facto marriage or intent to avoid remarriage | No admission or direct evidence that Karen avoided remarriage for alimony; separate residences and no shared finances; circumstantial evidence insufficient | Affirmed: no manifest error — evidence insufficient to establish de facto marriage under precedent (Martin distinguished) |
| Whether Adam must pay Karen’s attorney’s fees for defending the claim | N/A (Adam appealed fee award) | Karen sought fees; chancellor awarded half based on perceived partial inability to pay | Reversed and rendered: fee award vacated because Karen did not prove inability to pay and had significant assets and ongoing alimony income |
Key Cases Cited
- Century 21 Deep S. Props. Ltd. v. Corson, 612 So.2d 359 (Miss. 1992) (bench-trial Rule 41(b) standard: judge must consider evidence fairly, not necessarily in plaintiff’s favor)
- Gray v. Alumax Extrusions Inc., 477 So.2d 1355 (Miss. 1985) (bench ruling on dismissal treated as factual finding entitled to deference)
- Scharwath v. Scharwath, 702 So.2d 1210 (Miss. 1997) (cohabitation presumes material change in financial needs and shifts burden)
- Martin v. Martin, 751 So.2d 1132 (Miss. Ct. App. 1999) (de facto marriage where recipient admitted avoiding remarriage to preserve alimony and mutual in-kind/monetary support existed)
- Hughes v. Hughes, 186 So.3d 394 (Miss. Ct. App. 2016) (chancellor’s factual findings on de facto marriage/cohabitation reviewed for manifest or clear error)
- Burrus v. Burrus, 962 So.2d 618 (Miss. Ct. App. 2006) (deference to chancellor’s factual findings on domestic-relationship issues)
- McKee v. McKee, 382 So.2d 287 (Miss. 1980) (agreed alimony decrees modifiable only for clear, substantial, unanticipated material change)
- Armstrong v. Armstrong, 618 So.2d 1278 (Miss. 1993) (factors for determining alimony adjustments)
- Rhodes v. Rhodes, 52 So.3d 430 (Miss. Ct. App. 2011) (spouse seeking fee award must show inability to pay; payer’s greater ability alone is insufficient)
- Watson v. Watson, 724 So.2d 350 (Miss. 1998) (chancellor may not award attorney’s fees to a spouse who is financially able to pay)