Edward J. TANNER
v.
Karen E. TANNER.
Supreme Court of Mississippi.
James N. Randall, Jr., Gulfport, for appellant.
Kelly McKoin, Biloxi, for appellee.
Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.
PRATHER, Justice, for the Court:
A difficult financial decision is presented in this separate maintenance suit from the Chancery Court of Harrison County. Karen E. Tanner filed for separate maintenance for herself and four minor children from her husband Edward J. Tanner. From an award of separate maintenance the husband appeals charging that:
(1) The chancellor erred as a matter of law and fact in ordering appellant to pay an aggregate sum exceeding the appellant's net monthly salary, thereby denying appellant a reasonable standard of living.
(2) The chancellor was in error in ordering that the appellee use "reason and restraint" in utility usage, as such order lacked specificity, definiteness and certainty rendering the order void.
I.
Karen E. Tanner, age 28 years, and Edward J. Tanner, age 31 years, were married in 1974 and separated in 1985. Four children, ages 10, 9, 6 and 5 were born to this marriage. Mr. Tanner was manager of a fast food restaurant netting a salary of $1460.70 per month. Mrs. Tanner had brain surgery six years ago and suffers from grand mal seizures. Her daily medications include dilantin and phenobarbital. Taking care of the household and family was Mrs. Tanner's daily routine. However, she does not drive an automobile due to susceptibility to seizures and she depends on family and friends for transportation. Mr. Tanner left the family residence and secured a separate apartment. Both parties are of the Catholic faith.
The chancellor ordered the husband to pay the debts and obligations incurred during the marriage by contract, as follows:
Monthly
Name of Creditor Balance Payment
American Finance $1,395.00 $ 82.01
Household Finance 3,740.00 110.00
Firestone 226.15 24.00
*1064 Jackson Hospital 754.02 20.00
_________ _______
Subtotal $6,115.17 $236.01
Other Liability
Crescent Federal $5,886.55 $107.03
__________ _______
TOTAL $12,001.72 $343.04
Additionally, taxes and insurance on home were averaged and ordered to be paid by appellant as follows:
Taxes on Residence $ 6.00 Insurance on Residence $ 33.00
The chancellor then ordered the appellant to pay to appellee six hundred dollars: four hundred dollars for food, one hundred dollars for clothes, and one hundred dollars for transportation. Telephone and electric utilities were estimated and averaged to be as follows:
Telephone $ 30.00 Electric Utility $147.00
The order further stated:
Plaintiff shall be as economical as possible and use reason and restraint incurring bills to be paid by the Defendant and shall submit the bills or true copies thereof to him prior to payment. Fixed monthly bills are not to be submitted to the Defendant, nor is the use of the $600.00.
II.
Appeal here is taken only as to the amount awarded against appellant and a failure to state a specific and reasonable sum for utilities.
In Mississippi, following the decision in King v. King,
The jurisdiction of the chancery court to make an allowance to a wife living *1065 apart from her husband for her separate maintenance is to be exercised according to equitable principles, and the amount to be allowed in any case in which such allowance may be properly made must be determined according to the facts disclosed by the record in that particular case... .
In Brabham v. Brabham,
In Lowry v. Lowry,
This Court has the power to affirm, reverse, or modify the decree appealed from, or it may reverse in part and affirm in part, or remand for a new hearing, and where all the facts necessary to enable it to do justice are contained in the record, it may make such order with respect to alimony or allowance as the trial court should have made.
Id. at 856.
In Aldridge v. Aldridge,
Any test of the justice of such award must include not only the benefit to the wife but the resultant burden on the husband. Once it is determined, as by our acceptance of the chancellor's finding we have done, that the amount awarded is a sufficient benefit to the wife, there remains the duty of testing the extent of the correlative burden upon the husband.
In Nichols v. Nichols,
The right of a husband, denied a petition for divorce and ordered to pay separate maintenance, to lead a normal life with a reasonable standard of living was again considered by this Court in McKay v. McKay,
After making the payments required by the Court, appellant does not have left sufficient funds to maintain a decent standard of living and is entitled to a reduction in the amount that he is required to contribute towards the support of his wife.
Id. at 14.
In the case sub judice, it is clear that the chancellor recognized that a reconciliation would provide financially for the wife and children. Clearly the division of one income into two households subtracts from the needs of each, and such may force the father to return to the home. Nonetheless, courts have recognized that they are powerless to effect a reconciliation even where the wife desires such, as is the case here. In this event, the courts of this State have held that a reasonable standard of living must be afforded the husband. The desperate plight of this financial situation was explored by the counsel at trial. Bankruptcy had been discussed. Clearly, the award to the wife leaves the appellant in an unjust situation which requires reevaluation.
Therefore, this Court affirms the granting of separate maintenance to the wife together with the award of custody to her and visitation rights in the father as per the decree. However, the amount of the *1066 award of separate maintenance needs reevaluating and this Court remands this case to the chancery court for rehearing on the issue of the amount to provide for the wife and children and maintain a reasonable amount for appellant's living expenses.
AFFIRMED IN PART REMANDED IN PART.
PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, DAN M. LEE, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.
