129 So. 3d 255
Miss. Ct. App.2013Background
- 2005 divorce; chancellor awarded Josephine $2,500 monthly alimony.
- Richard planned to work until age 75 but retired early at 64 due to health problems.
- Post-divorce health issues and injuries led to Richard's total disability and retirement.
- Richard petitioned for modification; January 3, 2012 order reduced alimony to $1,800.
- Josephine cross-appealed arguing retirement was foreseeable or the reduction insufficient.
- Court held retirement was an unanticipated, material change and remanded to assess Richard’s ability to pay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was retirement due to health an unforeseeable material change? | Josephine: retirement was foreseeable and should not justify modification. | Richard: health-based retirement after-divorce constitutes after-arising change. | Yes; unanticipated health retirement constitutes a material change justifying modification. |
| Did the chancellor properly assess Richard’s ability to pay after modification? | Richard argues he cannot pay the reduced alimony given deficits. | Chancellor analyzed incomes/expenses but did not explicitly address ongoing ability to pay. | Remand to evaluate Richard’s ability to pay, ensuring the award is within his means. |
Key Cases Cited
- Gray v. Gray, 562 So.2d 79 (Miss.1990) (amounts must consider both parties’ ability to pay)
- Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993) (Armstrong factors guide alimony amounts)
- Holcombe v. Holcombe, 813 So.2d 700 (Miss.2002) (unforeseeable, material change required for modification)
- Steiner v. Steiner, 788 So.2d 771 (Miss.2001) (compare positions at modification to divorce)
- Brendel v. Brendel, 566 So.2d 1269 (Miss.1990) (maintenance must be within reasonable living standards)
- Broome v. Broome, 75 So.3d 1132 (Miss.Ct.App.2011) (consider life-style and ability to pay when modifying alimony)
- Clower v. Clower, 988 So.2d 441 (Miss.Ct.App.2008) (health-related retirement supports modification)
- Rogillio v. Rogillio, 57 So.3d 1246 (Miss.2011) (Armstrong factors applied to determine amount)