156 So. 3d 900
Miss. Ct. App.2013Background
- Divorce decree (Feb 20, 2009) ordered Leslie Shumake to pay Katarina $5,750/month in periodic alimony. Leslie immediately paid a reduced amount ($650/week).
- Leslie filed bankruptcy (Chapter 13) on Feb 19, 2009 and sought modification of alimony, claiming inability to pay; multiple chancery-court proceedings followed (2009–2012).
- Chancellor repeatedly allowed reduced weekly payments (effectively $650/week, later $750/week beginning Sept 2010) and delayed final resolution; hearing held Apr 27, 2011; final order entered Apr 12, 2012.
- April 2012 judgment: temporary alimony $3,250/month until bankruptcy plan completion, then $4,225/month thereafter; ordered Leslie to pay $58,550 arrearage and reimburse daughter Rachel $13,361.50 from an MPACT account, with those payments suspended until bankruptcy plan completion.
- Leslie appealed, challenging calculation of income/expenses, future alimony increase, arrearage amount, MPACT reimbursement, and delay in the court’s ruling.
Issues
| Issue | Plaintiff's Argument (Leslie) | Defendant's Argument (Katarina) | Held |
|---|---|---|---|
| Modification of periodic alimony amount | Bankruptcy and changed finances make original/already-modified amounts unaffordable; requested further reduction to $350/week | Chancellor should not reduce permanently to such a low amount; alimony may be adjusted but based on earning capacity | Affirmed: Chancellor did not err reducing to $3,250/mo while in plan and increasing to $4,225/mo after; increase tied to disposable income post-bankruptcy and within chancellor's discretion |
| Authority to set future increased alimony (upon plan completion) | Error: court lacked knowledge of future circumstances when ordering higher post-bankruptcy alimony | Increase reasonable because bankruptcy payments would cease and disposable income would rise | Held: No error—increase justified by present earning capacity and future reduction of bankruptcy obligations |
| Arrearage ($58,550) | Court wrongly computed arrearage as if $5,750/mo always owed; prior orders effectively allowed reduced payments so arrearage should not be that sum | Arrearage should be based on original decree unless formally reduced; November 2010 order was temporary | Held: Reversed and rendered—$58,550 arrearage vacated because court had effectively allowed and later approved reduced payments ($650→$750/week), making large arrearage unjust |
| MPACT account reimbursement ($13,361.50 to Rachel) | Error: Rachel had no ownership rights; Leslie had authority to cancel account and used funds to repay his mother | Katarina sought reimbursement to daughter for funds removed | Held: Reversed and rendered—no basis in record to order reimbursement to adult daughter who lacked ownership rights in the account |
| Delay in issuing order (~1 year after hearing) | Prejudiced because judge could not recall testimony/exhibits after long delay | No authority shown that delay caused prejudice; court retained record and memory | Held: Procedurally barred and, on merits, no showing of actual prejudice; issue without merit |
Key Cases Cited
- Lowrey v. Lowrey, 25 So.3d 274 (Miss. 2009) (standard that chancellor’s factual findings are not disturbed unless manifestly wrong)
- Sanderson v. Sanderson, 824 So.2d 623 (Miss. 2002) (same)
- Dogan v. Dogan, 98 So.3d 1115 (Miss. Ct. App. 2012) (chancellor’s discretion in awarding alimony)
- George v. George, 22 So.3d 424 (Miss. Ct. App. 2009) (alimony award left to chancellor’s discretion)
- Holcombe v. Holcombe, 813 So.2d 700 (Miss. 2002) (authority to modify alimony upon substantial change in circumstances)
- McDonald v. McDonald, 683 So.2d 929 (Miss. 1996) (modification standard discussion)
- Ivison v. Ivison, 762 So.2d 329 (Miss. 2000) (change must not be anticipated at time of decree)
- Varner v. Varner, 666 So.2d 493 (Miss. 1995) (bankruptcy alone does not constitute substantial change absent good-faith finding)
- Edmonds v. Edmonds, 935 So.2d 980 (Miss. 2006) (procedural bar for arguments not properly preserved)