Lead Opinion
FACTS AND PROCEDURAL HISTORY
¶ 2. Michelle and Tracy married in 1992 and had twin girls, Ashton and Amanda, in 1996. They separated and divorced in 2012. The divorce decree granted Michelle physical custody of their daughters with joint legal custody and liberal visitation for Tracy. Tracy was ordered to pay child support of $770 per month to Michelle and to pay other specified expenses, including private school tuition. Tracy was also required to maintain health insurance for his daughters and pay two-thirds of their non-covered medical expenses. Finally, Tracy was ordered to pay Michelle $2,000 per month in permanent periodic alimony.
¶ 3. On September 16, 2014, Tracy filed a complaint to modify his child support and alimony obligations. He alleged that there had been material changes in circumstances since the divorce judgment was entered in that Amanda and Ashton had graduated from high school and moved out of Michelle's home, Amanda was cohabiting with her boyfriend, Ashton was attending community college on a softball scholarship, and Michelle's income had increased so that she could "support herself." Tracy asked the court to declare Amanda emancipated and to terminate his obligation to pay child support for her, to permit him to pay Ashton's child support directly to her, and to terminate or decrease his obligation to pay alimony to Michelle.
¶ 4. On January 29, 2015, the court held a hearing on the issues of emancipation and child support. Amanda testified that, over both of her parents' objections, she moved in with her boyfriend, Will, after she graduated from high school in May 2014. Will bought a car for her to use and began paying for her cell phone. Amanda was on scholarship at Jones County Junior College (JCJC) and was studying to be a nurse practitioner. However, she testified that she still relied on her mother for support. Her mother bought her clothes, bought her lunch or dinner two or three times a week, and gave her money for gas. Amanda also testified that she would need more help from her parents after she transferred to the University of Southern Mississippi.
¶ 5. Amanda testified she had a good relationship with her father until she told him that she planned to attend JCJC and did not want to play softball anymore. Tracy wanted her to play softball with her sister on a scholarship at Southwest Mississippi Community College, and they "had a big argument" about it. They argued again in May 2014 when Amanda told Tracy that she was moving in with Will, and they had visited only once since. However, Amanda testified that she loved her father and desired to have a relationship with him.
¶ 6. Michelle testified that she still bought Amanda meals and clothes and still gave her money for gas. Michelle also testified that she regularly gave Ashton cash or transferred money to her checking account. Ashton was on scholarship at Southwest but intended to transfer to JCJC and
¶ 7. Tracy testified that he wanted to mend his relationship with Amanda, but she had ignored his many phone calls, texts, and invitations. He testified that he visited with Ashton regularly, bought her meals, and gave her money for gas. He also testified that he was current on his child support and alimony obligations.
¶ 8. At the conclusion of the hearing, the chancellor (1) denied Tracy's request to declare Amanda emancipated; (2) declined to terminate Amanda's child support under Hambrick v. Prestwood ,
¶ 9. The next hearing in the case was held one year later on January 26, 2016. In the interim, Tracy's income decreased, and he was laid off of work on August 12, 2015. Tracy then unilaterally reduced his alimony payments, eventually stopped paying alimony altogether, and also fell behind on his child support payments. In response, Michelle served Tracy with a complaint for contempt. Michelle failed to file the complaint until the day of the hearing, but Tracy did not object to proceeding on the issue of contempt. Indeed, Tracy's attorney told the court that the issues of contempt and modification should "both be tried at the same time" because both involved "the same evidence," i.e., Tracy's ability to pay.
¶ 10. At the time of the parties' divorce, Tracy was employed by Weatherford Fishing and Rental as a fishing tool supervisor
¶ 11. Tracy testified that First Financial Bank had approved him for a $1,400,000 loan to build chicken houses and begin operations in the poultry business. In his deposition, he testified that he did not want to go back to work in the oil industry, that he preferred his work as a carpenter, and that he would not take a job in the oil industry if it was offered to him. He acknowledged that he had worked in the oil industry for twenty years and knew all along that was an "up and down" business.
¶ 12. Tracy also admitted that he received $49,276 when he cashed out his retirement account, but he did not use any of the money to pay child support or his alimony arrearage. Instead, he used the money to pay other debts, including a $19,731 loan on his camper, a $9,172 loan on his Polaris Ranger utility vehicle, and
¶ 13. As of January 2016, Michelle was employed as a secretary with a gross monthly income of $2,000 and net monthly income of $1,606.
¶ 14. At the conclusion of the hearing, the chancellor announced his ruling from the bench. He first observed that "the entire case ha[d] changed since the time [Tracy's motion to modify child support and alimony] was filed" in September 2014. Tracy's motion addressed Michelle's increased income and alleged ability to support herself and Amanda's cohabitation with her boyfriend. Tracy's loss of income and employment occurred months later. The chancellor also explained that because Tracy was behind on child support and alimony, the court first had to "resolve this issue of whether or not [Tracy was] in contempt" and "how [he could] purge himself." As the chancellor put it, Tracy had "to wash his hands" before he could obtain any modification.
¶ 15. The chancellor found that Tracy's total arrearage (alimony and child support) was $25,612.63. He then stated that he was "going to ... fashion a remedy" that he thought would be fair and equitable, although he "assure[d]," "guarantee[d]," and "promise[d]" the parties "that the Court of Appeals [would] reverse" it. The chancellor ruled that Tracy could purge himself of contempt by paying $12,800 of the arrearage at a rate of $500 per month, beginning February 1, 2016.
¶ 16. Tracy then hired a new lawyer and filed a "Motion for Reconsideration, Correction of Judgment, or, in the Alternative, a New Trial."
¶ 17. On May 9, 2016, the court entered a detailed "Revised and Amended Opinion of the Court." The court's revised opinion again found that Tracy was in contempt for not paying alimony and child support. The court emphasized Tracy's failure to use any of the $49,276 that he withdrew from his retirement account to pay down his arrearage. The court noted that Tracy used some of those funds to pay off a loan on his Polaris Ranger, which he still owned and valued at $13,000. The court further noted that Tracy had been approved for a $1,400,000 loan to start a poultry business. The court found that Tracy had funds available to pay alimony and child support "irrespective of any reduction in his salary" but "chose not to do so." Therefore, he was "in willful, contumacious contempt of court."
¶ 18. The court then ruled that Tracy could purge himself of contempt by paying Michelle (a) $13,000 of his arrearage by May 20, 2016, which he could do "by selling or pledging his unencumbered Polaris Ranger"; (b) the balance of the arrearage ($12,612.63) by August 1, 2016; and (c) attorney's fees of $2,500 for his contempt. The court further found that Tracy had "unclean hands" and was not entitled to any modification of alimony or child support until he purged himself of his contempt. Finally, the court found that Tracy was not entitled to a modification for the additional reason that there had "been no unanticipated substantial and material change in circumstances." On May 24, 2016, the court then entered an amended final judgment of contempt and modification, which summarized and implemented the rulings in the court's revised opinion.
¶ 19. Tracy again hired a new lawyer and filed a motion attacking the revised opinion and amended final judgment.
ANALYSIS
¶ 20. "When reviewing a decision of a chancellor, this Court applies a limited abuse of discretion standard of review." Mabus v. Mabus ,
I. The chancellor did not abuse his discretion by finding that Amanda was not emancipated.
¶ 21. Citing Mississippi Code Annotated section 93-11-65(8)(b)(iii) (Rev. 2013), Tracy argues that Amanda's cohabitation with her boyfriend required the chancellor to find that she was emancipated and terminate Tracy's obligation to pay child support for her. We disagree.
¶ 22. Section 93-11-65(8)(a) provides that unless the underlying child support judgment states otherwise, "emancipation shall occur when the child" turns twenty-one, marries, commences full-time military service, or is convicted of a felony and sentenced to a term of two or more years' incarceration.
¶ 23. Moreover, Amanda and Michelle both testified that Amanda is a full-time student, that she does not have a job, and that she still relies on Michelle's support to some extent. They also testified that her need for support would increase once she transferred to USM, which she subsequently did. We cannot say that the chancellor abused his discretion by not finding that Amanda was emancipated. See Andrews v. Williams ,
II. The chancellor did not abuse his discretion by declining to modify child support or by declining to modify or terminate alimony.
¶ 24. Tracy next argues that the chancellor erred by not reducing child support and by not terminating alimony based on his job loss and decreased income.
¶ 25. The chancellor ruled that Tracy had "unclean hands" and was "not entitled to any relief" due to his "willful, contumacious contempt of court"-in particular, his failure to pay any alimony from the $49,276 that he spent from his 401(k). While the chancellor's finding of contempt is supported by ample evidence, the chancellor erred to the extent that he found that Tracy's contempt barred his request for modification. Tracy certainly came into court with unclean hands because he was in arrears and failed to prove that he had paid Michelle all that he could. See Kincaid v. Kincaid ,
¶ 26. As an alternative basis for his ruling, the chancellor also addressed the merits of Tracy's request for modification. As to both alimony and child support, a modification requires proof of a material and substantial change in circumstances since the date of the prior judgment. See McEwen v. McEwen ,
¶ 28. Thus, there is evidence in the record to support the chancellor's finding that Tracy choose not to look for a new job in the oil industry. There is also evidence to support the chancellor's finding that Tracy chose to spend his savings on luxuries, his new home, and his new family rather than to meet his alimony and child support obligations.
III. The chancellor did not exceed his authority by entering a revised opinion and amended final judgment.
¶ 29. In his final issue on appeal, Tracy argues that the chancellor exceeded his authority under the Mississippi Rules of Civil Procedure by entering a revised opinion and amended final judgment. As discussed above, after the initial final judgment was entered (on February 10, 2016, nunc pro tunc January 26, 2016), Tracy
Not later than ten days after entry of judgment the court may on its own initiative order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.
M.R.C.P. 59(d). Specifically, Tracy argues that the chancellor effectively ordered a "new trial"-either sua sponte or "for a reason not stated in [Tracy's timely] motion" for a new trial.
¶ 30. We conclude that Tracy has misinterpreted the case's procedural history and the chancellor's rulings. Tracy's "Motion for Reconsideration" primarily sought to alter or amend the judgment in various respects-he sought to change the final judgment based on the evidence already presented, not a "new trial." In fact, the motion's prayer for relief did not even mention a "new trial." Rule 59(a)-(d) governs a motion for a new trial. However, Rule 59(e) governs a motion to alter or amend the judgment.
¶ 31. Rule 59(e) simply provides that "[a] motion to alter or amend the judgment shall be filed not later than ten days after entry of judgment." M.R.C.P. 59(e). Interpreting the nearly identical federal rule,
¶ 32. We conclude that these decisions are consistent with our Supreme Court's recognition of a trial court's "broad[ ] discretionary authority under Rule 59(e) to grant relief."
¶ 33. Tracy's filing of a timely motion to alter or amend the judgment under Rule 59(e) suspended the finality of the judgment and permitted the chancellor to consider the various issues in this case "de novo, if not ab initio."
CONCLUSION
¶ 34. The chancellor did not abuse his discretion or manifestly err in finding that Amanda was not emancipated or in denying Tracy's request to modify his alimony and child support obligations. Nor did the chancellor exceed his authority by entering a revised opinion and amended final judgment.
¶ 35. AFFIRMED.
LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON AND FAIR, JJ., CONCUR. GREENLEE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., WESTBROOKS AND TINDELL, JJ.
Notes
Fishing is the retrieval of drilling equipment and removal of junk and other obstructions from a well bore so that drilling operations can resume.
Tracy remarried shortly after his divorce from Michelle. He and his new wife were expecting a child any day as of the January 2016 hearing.
At the time of the parties' divorce, she had a gross monthly income of $1,041 and a net monthly income of $916.
On appeal, Tracy repeatedly emphasizes the chancellor's prediction "that the Court of Appeals [would] reverse" his ruling. However, Tracy ignores that the chancellor was referring to his partial forgiveness of Tracy's alimony and child support arrearage. See Tanner v. Roland ,
The court left in place Tracy's obligation to maintain health insurance for his daughters.
The motion was filed within ten days from the entry of the judgment and therefore tolled the time for appealing from the judgment. See M.R.A.P. 4(d) ; Woods v. Victory Mktg. LLC ,
The motion was filed within ten days of the court's amended final judgment and therefore tolled the time for appealing from the judgment. See M.R.A.P. 4(d) ; Charles v. Daley ,
Tracy misunderstands the amended final judgment entered against him. Tracy's brief on appeal repeatedly states that the chancellor's revised opinion "reinstated in toto" the original final judgment (entered February 10, 2016, nunc pro tunc January 26, 2016). Tracy's brief also assumes that he is entitled to the prospective downward modifications of child support and alimony granted in the original final judgment. However, as described above, the chancellor's revised opinion and amended final judgment both hold Tracy liable for the full amount of the arrearage and find that he is not entitled to any modification.
It is true, as the partial dissent points out, that Tracy contradicted himself at trial. However, the chancellor, as the finder of fact, was entitled to find Tracy's deposition testimony more credible than his trial testimony. See Henson v. City of Dundee ,
See, e.g. , De Marco v. De Marco ,
Federal Rule of Civil Procedure 59(e) differs from our Rule 59(e) only in that it permits the motion to be filed within twenty-eight days of entry of judgment. Decisions interpreting a parallel federal rule are "persuasive of what our construction of our rule ought to be." Brown v. Credit Ctr. Inc. ,
Concurrence in Part
¶ 36. I concur with majority's resolution of Issues I and III. However, I disagree with the majority's conclusion upholding the chancellor's denial of Tracy's request to modify his alimony and child support obligations. Therefore, I respectfully dissent.
¶ 37. In Mississippi, it is well established that "[a]limony and child support obligations are subject to modification only where there has been a material change in the circumstances of one or more of the parties." Yancey v. Yancey,
¶ 38. At the January 26, 2016 hearing, Tracy contended that a substantial and material change in circumstances had occurred because he had been laid off from his job in the oil industry on August 12, 2015, and Michelle was employed and fully capable of supporting herself. After the hearing, the chancellor issued a "Revised and Amended Opinion of the Court," denying Tracy's request for modification because Tracy had not shown a substantial and material change in circumstances since the divorce decree. The chancellor reasoned that: (1) Tracy's loss of employment was not unanticipated; (2) Tracy used his retirement on other things besides paying his alimony and child support obligations; and (3) Tracy had the ability to procure a business-related loan. The chancellor was manifestly in error in so ruling.
I. Tracy's Job
¶ 40. In denying Tracy's request for modification, the chancellor noted that Tracy testified that the oil industry "goes up and down" and "people get laid off." Therefore, the chancellor reasoned that Tracy's loss of employment was "not unanticipated" and that Tracy chose not to look for another job in the oil industry. However, the evidence in the record indicates that Tracy established an unanticipated, substantial, and material change in circumstances such that he was entitled to a modification.
¶ 41. Under Mississippi law, a petitioner seeking modification must clearly show "a substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought be modified." Gillespie v. Gillespie,
¶ 42. At the time of the divorce judgment, Tracy was employed by Weatherford Fishing and Rental, making a gross monthly income of $18,516, with a net monthly income of $13,054. However, at the January 26, 2016 hearing, Tracy testified that he had been laid off from his job at Weatherford in August 2015 because of industry-wide layoffs. He then found employment as a carpenter, making $2,880 a month, netting $2,319. Thus, Tracy's net income had drastically dropped since the divorce decree.
¶ 43. While the chancellor acknowledged in his written opinion that Tracy's financial situation had worsened since the original divorce decree, he reasoned that layoffs were to be expected and Tracy's loss of employment was not unanticipated. However, there is no indication from the record that the parties, at the time of the original decree, contemplated that layoffs would occur.
¶ 44. The chancellor, in finding that Tracy's unemployment was not unanticipated, relied on Tracy's testimony that the oil industry "goes up and down" and that he was not interested in being rehired in the oil industry. However, a review of the record indicates that, while Tracy acknowledged that work in the oil industry fluctuates, he also stated that, as of the time of the modification hearing, "[t]here is no one running at full capacity" and "most [oil companies] are running with a skeleton crew." The chancellor assumed that this showed that Tracy knew that layoffs occurred. It simply does not. It shows that since the time of the divorce decree, employment in the oil industry had declined. There is no indication that, at the time of the original decree, anyone knew or should have known that Tracy would be laid off.
¶ 45. During the modification hearing Tracy also testified that he spoke with friends at three different companies in the oil industry, which did not have work for him. He continued his testimony, explaining that if he was offered a job in the oil field, he would take it and that he "would take an oil field job." Therefore, the chancellor
¶ 46. This is not a case where a husband voluntarily quit his job in bad faith to avoid paying alimony. See Ballard v. Ballard ,
II. Tracy's Retirement Account
¶ 47. The chancellor acknowledged that Tracy's income had greatly been reduced since the original divorce decree. However, he reasoned that Tracy was not entitled to a modification because he chose to spend his retirement funds on other things besides his court-ordered obligations. Though bearing on the issue of Tracy's contempt of court, this prior practice of Tracy's does not preclude a finding that Tracy had suffered a material and substantial change in circumstances due to a loss of earnings.
¶ 48. Tracy's use of retirement funds for other obligations was properly considered in finding Tracy in contempt of court, as he did not honor his court-ordered obligations. Evans v. Evans,
III. Tracy's Poultry Business
¶ 49. The chancellor discusses Tracy's attempt to borrow $1.4 million to construct poultry houses in order to enter the business of raising poultry. It is clear that the chancellor considered this in finding that Tracy did not suffer a material change in circumstances. However, the chancellor was counting the chickens before they hatched. First, Tracy's ability to borrow money for the chicken houses would be a business loan to conduct a business. Second, his income from the prospective business is far too speculative to be considered at the present time.
¶ 50. The chancellor implicitly reasoned that because Tracy could obtain this loan, the loan proceeds should be considered as available for support obligations. This is simply not the case. Tracy testified that in order to begin the chicken business, he had to build four chicken houses. He further explained that the poultry company and a bank were in the process of approving
¶ 51. Next, as the majority points out, Tracy's income from the business remained uncertain. Tracy clearly testified that he did not know how much money he was expecting to make nor could he estimate or guess. Therefore, the chancellor ran afoul in considering it. The record lacks any indication whether or not the chicken-house loans would put Tracy in an equal or better financial position. It is simply speculative what will happen in the future and therefore was improperly considered by the chancellor. Hopefully, Tracy's chicken-house business will be successful. This Court has explained that:
[C]hancery courts retain continuous jurisdiction over final decrees providing for alimony, custody of children and child support, and may modify a former decree when the circumstances and conditions have changed after rendition of a former decree. Further, no decree of alimony or child support is ever truly a final judgment, but always subject to modification based upon a material change of circumstances.
Cockrell ,
¶ 52. In summary, the chancellor manifestly erred in denying Tracy's request for modification of the previously ordered child support and alimony. The testimony showed that Tracy had a material change in circumstances when he lost his job and was unable to procure another like-paying job. Tracy had gained employment as a carpenter, but with a reduced income. Further, the chancellor erred in considering Tracy's prior use of his retirement account in determining whether or not a material change in circumstances occurred. Finally, the chancellor erred in considering Tracy's ability to qualify for a business loan and prospective business income when considering whether he suffered a material change in circumstances. Neither the loan nor the business income has any bearing on his present ability to pay and, as such, cannot be considered. The case should be reversed and remanded for the chancellor to set a reduced amount of alimony. For these reasons, I respectfully dissent in part.
IRVING, P.J., WESTBROOKS AND TINDELL, JJ., JOIN THIS OPINION.
One commentator on family law has explained that child support may be reduced when a payor loses income, so long as the income reduction is involuntary, is not foreseeable, and impacts the payor's ability to meet reasonable needs. See Deborah H. Bell, Bell on Mississippi Family Law § 10.11[6][a], at 328 (1st ed. 2005).