Lee Miller v. Debra Miller
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-01542-COA
LEE MILLER
APPELLANT
v.
DEBRA MILLER
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEE
9/11/2002
HON. DENISE OWENS
HINDS COUNTY CHANCERY COURT
JOHN R. REEVES
SHARON PATTERSON THIBODEAUX
CIVIL - DOMESTIC RELATIONS
DEBRA MILLER AWARDED A DIVORCE
FROM LEE MILLER BASED ON
UNCONDONED ADULTERY; LUMP SUM
ALIMONY AWARDED
AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 05/25/2004
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
EN BANC.
SOUTHWICK, P.J., FOR THE COURT:
¶1.
The parties to this appeal were divorced by a judgment of the Hinds County Chancery Court.
On appeal, the husband argues that lump sum alimony was improperly awarded. We agree. Yet we
also find that some of the considerations that led to this award might instead justify periodic
alimony. We reverse and remand for further proceedings.
¶2.
Lee and Debra Miller were married in 1979. In 2000, Mrs. Miller filed for a divorce based
on uncondoned adultery. A trial was held in 2001. The transcript reveals several omissions in the
evidence. There were comments at the beginning of the evidentiary hearing that the attorneys had
believed that they were going to settle the suit without the need for presenting evidence. Once the
attorneys scrambled to try the case, there was a missing financial statement from the husband, and
no appraisal and pay-off amount on loans on the marital home. A recess was taken during the
hearing so that the husband could quickly prepare a financial statement.
¶3.
There was testimony that a financial institution would within a few days provide a 1999
appraisal on the home and the payoff of the loans. Though the final judgment in this case was not
entered until four months after the evidentiary hearing, there is no indication that the latter
documents were ever received by the chancellor and considered.
¶4.
The chancellor granted the divorce based on uncondoned adultery. The couple's only child
was an adult and no provision for him was needed. There was division of property, including some
unimproved land that was ordered sold and the proceeds divided. Of particular concern on this
appeal, Mr. Miller was ordered to pay as lump sum alimony the second mortgage payments on the
home. Both spouses indicated that there was about $55,000 in debt secured by two mortgages on
the home. Mrs. Miller's financial statement alleged that monthly payments on the two notes were
about $888. The husband asserted that the house was worth about $100,000, while the wife alleged
that it was worth $79,000. She also alleged that an appraisal made of the house's value two years
earlier had stated a value of about $82,000. This is the appraisal that was supposed to be received
within a few days of the hearing, but which was never referenced in later rulings.
¶5.
The chancellor may have assumed that the balance on the second mortgage was close to the
$22,000 that Mr. Miller's lawyer said had been borrowed two years earlier. Without an appraisal,
the chancellor guessed that the value of the home was somewhere between the $100,000 and the
$79,000 suggested by the parties.
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¶6.
The chancellor stated that she was awarding lump sum alimony as an "equalizer" between
the parties. Since Mrs. Miller had tried to reconcile with her husband on several occasions, and it
was Mr. Miller's adultery that was the cause of the divorce, it would be "unfair to leave her in . . .
an unequal position." There were not any findings in the record to support the alimony award. On
November 18, 2003, we entered an order to have the chancellor make the findings required to
support such an award, which were identified in Cheatham v. Cheatham, 537 So. 2d 435, 438 (Miss.
1988). The chancellor complied by making these findings on January 5, 2004:
As to the first factor in Cheatham, the parties do not have substantial wealth.
Although Mrs. Miller employed her husband in a second job during their marriage, he did
not use this money to accumulate any wealth. Mr. Miller used the money as he deemed
appropriate.
As to the second factor, the parties were married over twenty years. In our society,
that is considered a lengthy marriage. During the marriage, Mr. Miller was primarily
responsible for the support of the family.
As to the third factor, Mrs. Miller does not have a separate estate of significant
value.
The fourth factor set forth in Cheatham, concerns whether the receiving spouse
would lack financial security if she did not receive lump sum alimony. Mrs. Miller
expressed her desire to remain in the marital home. Mr. Miller stipulated that Mrs. Miller
was entitled to the use, possession, and ownership of the marital residence. Mrs. Miller's
income is such that she would lack financial security if she were obligated to pay the first
and second mortgages on the marital residence.
The record also reflects that Mr. Miller's monthly gross income is approximately
$2,200.00. This amount is almost twice the amount Mrs. Miller receives as income on a
monthly basis.
Mr. Miller was found at fault in the dissolution of the marriage. The Mississippi
Supreme Court recognized in [Hammonds v. Hammonds], 597 So. 2d 653 (Miss. 1992),
that fault was a factor to be considered in an award of alimony.
Based on the above findings this Court awarded Debra Miller lump sum alimony
payable as the second mortgage on the marital residence in order that she could remain in
her residence.
¶7.
We have had the benefit of supplemental briefs from the parties on these findings.
DISCUSSION
¶8.
We examine the chancellor's findings for consistency with the Supreme Court's identification
of four factors that are to be considered in making an award of lump sum alimony. Separately or
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jointly these factors do not provide much assistance unless the fundamental consideration is kept in
focus, which is whether after equitable distribution an "equalizer" is needed.
¶9.
Lump sum alimony is a hybrid divorce concept, providing support as does other alimony but
also making an unalterable distribution of property as does equitable distribution. These are the
factors:
(1) Substantial contribution to accumulation of total wealth of the payor either by
quitting a job to become a housewife, or by assisting in the spouse's business.
(2) A long marriage.
(3) Where the recipient spouse has no separate income or the separate estate is
meager by comparison.
(4) Without a lump sum award the receiving spouse would lack any financial
security.
Cheatham v. Cheatham, 537 So. 2d 435, 438 (Miss. 1988).
¶10.
Both in these supplemental findings and in her original bench ruling, the chancellor
improperly injected the issue of fault for the divorce. True, fault is a consideration in awarding
periodic alimony. Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994). Perhaps the rationale
is that a greater amount in support of the recipient spouse and more penalty to the paying spouse is
appropriate when fault for the marital breakup is laid at the feet of the payor. Fault has not been
identified as a factor in lump sum alimony, nor should it be. When lump sum alimony is paid as an
"equalizer," it is because the property distribution has left one spouse's assets out of balance to the
other in such a way as to be inequitable. See N. SHELTON HAND, JR., MISSISSIPPI DIVORCE,
ALIMONY & CHILD CUSTODY § 11-1 (2002), at 340 ("lump sum alimony may be ordered as a
substitute for the allocation of property, per se, where the court finds either that there is no property
or that the division of the property is difficult to achieve" in an equitable manner.) Fault is not a
factor under Cheatham, and neither is it one of the factors identified for equitable distribution.
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Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). Fault should not be weighed when
lump sum alimony is awarded for purposes of balancing property distribution.
¶11.
Besides relying on fault, the chancellor also erred in giving weight to the fact that Mrs.
Miller had little separate estate absent lump sum alimony. She has the marital home, which is the
only significant asset of the marriage. Since Mr. Miller has received no property distribution, it was
error to require him to equalize the distribution through lump sum alimony.
¶12.
The evidence also does not support the chancellor's finding that Mr. Miller's monthly gross
income is "almost twice the amount Mrs. Miller receives." Already mentioned has been the poorly
presented financial information. What there was, though, was disputed. Mr. Miller's financial
statement, quickly-prepared during a recess of the hearing, claimed his gross monthly income in
2001 was about $2,000. The income tax form indicating his income for 2000 showed that he made
a gross amount of $31,000, or $2,600 per month. Mrs. Miller did not present any tax information,
but claimed that she was then earning $10.50 per hour, or about $1,800 monthly before taxes. Her
financial statement alleged that she was making $1,500 per month, and a net of $1,230 after taxes.
An unresolved dispute existed on whether Mr. Miller was earning unreported money by doing
occasional house painting.
¶13.
We have previously held that lump sum alimony could be paid on a monthly basis for an
extended period of time and not lose its classification. Murray v. Murray, 98-CA-00471-COA
(Miss. Ct. App. May 4, 1999), aff'd in part, rev'd in part, 754 So.2d 1200 (Miss. 2000) (Supreme
Court only considered issue of what part of the decree was subject to statutory damages and did not
question our ruling on the classifying of this alimony). The excerpts from that opinion quoted
below, including the effect of classifying payments, are relevant for our purposes. It was written
by Judge Billy Bridges for the Court, on a panel with Judges Tom Coleman and Tyree Irving. Much
of it is discussed in HAND, MISSISSIPPI DIVORCE § 11-1, at 341-42.
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The chancellor is afforded wide discretion in alimony cases, and this discretion will
not be reversed on appeal unless the chancellor was manifestly in error in his finding of
fact and abused his discretion. Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss.
1993). The supreme court has held that periodic alimony is subject to modification and
ceases upon the wife's remarriage or upon the husband's death. McDonald v. McDonald,
683 So. 2d 929, 931 (Miss. 1996). Lump sum alimony, however, constitutes a fixed
liability which is not subject to modification. Id.
The rule of law providing for the modification of periodic alimony awards
arises from the nature of alimony itself, which is based upon the inherently
changing financial ability of the husband to support his wife in a manner to
which she is accustomed. As a result, the Chancellors of this state have the
authority to modify periodic alimony awards upon a finding of a substantial
change in circumstances, regardless of any intent expressed by the parties.
In the case of lump sum alimony, however, said alimony is not considered
to be in the nature of continuing support, but rather a property transfer
which is vested in the recipient spouse at the time said alimony is awarded.
As such, considerations of the payor spouse's financial circumstances are
irrelevant, given that an order for lump sum alimony provides the recipient
spouse with a vested right to receive said payments. The fact that payments
of lump sum alimony are often paid in installments may give said payments
a superficial similarity to payments of periodic alimony, but said fact does
not change the vested, non-modifiable nature thereof.
Id. (citations omitted).
In this case, the provision at issue reads as follows:
The Husband agrees to pay to the Wife as a form of lump sum alimony the
sum of Two Thousand Dollars ($2,000.00) per month for a period of fifteen
(15) years, beginning March 1, 1994, and continuing on or about the first
date of each and every month thereafter for a total of 180 months; provided
further, however, that if the Wife should remarry at any time during said
fifteen (15) year period of time, the Husband will then be allowed to reduce
the lump sum installment payments by One Thousand Dollars ($1,000.00)
per month over and during the balance of the remaining years. It is further
understood and agreed by and between the parties that said payments
cannot be increased and/or extended by the Wife under any circumstances,
and if the Wife should die at any time within the next fifteen (15) years,
said payments shall cease and terminate and shall not be payable to her
estate. It is further understood and agreed by and between the parties that
said payments shall be treated as income to the Wife and shall, therefore,
be deductible to the Husband for income tax purposes.
Dr. Murray argues that, although the language in the provision clearly states lump sum, this
is really rehabilitative alimony. Rehabilitative alimony has been defined as modifiable, for
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a fixed period of time, and vesting as it accrues. Hubbard v. Hubbard, 656 So. 2d 124, 129
(Miss. 1995). The court in Hubbard also stated that "While both rehabilitative periodic
alimony and lump sum alimony which is not paid all at once can share the same
characteristics of being a certain amount of money paid over a definite period of time, they
are distinguishable in their modifiability, respective purposes, and by the intent for which
the chancellor grants them." Id.
The chancellor determined that this provision is lump sum alimony and quoted, "[a]
fixed and certain sum of money which is due and payable over a definite period of time is
clearly alimony in gross, or lump sum alimony, and not periodic alimony." Hubbard v.
Hubbard, 656 So. 2d 124, 130 (Miss. 1995); Holleman v. Holleman, 527 So. 2d 90, 92
(Miss. 1988); Wray v. Wray, 394 So. 2d 1341, 1345 (Miss 1981). The chancellor found
that the express language of the judgment provided for lump sum alimony, not periodic
alimony. The chancellor further found that the alimony award followed negotiations by
Dr. Murray and Sara and was incorporated into the final divorce decree specifically as
lump sum alimony and therefore not modifiable. It is this Court's opinion that although
there may be certain characteristics of rehabilitative alimony in this provision, the clear
language of this judgement provides that the alimony is intended by the parties to be lump
sum alimony, not periodic alimony or rehabilitative alimony.
In McDonald, the supreme court stated, "When possible, it would be advisable for
parties and judges to pattern their alimony agreements and decrees for non-modifiable
lump sum alimony according to established precedent of this Court." McDonald, 683 So.
2d at 932. "Simple draftsmanship on the part of attorneys in their preparation of divorce
decrees can clearly differentiate between the two types of awards, and thereby obviate the
necessity of courts having to pass upon this question." Wray, 394 So. 2d at 1345.
Accordingly, the chancellor is affirmed in his finding that the payments set at
$2,000 per month for a fifteen year period constituted lump sum alimony and cannot be
modified.
Murray, 98-CA-00471-COA (¶¶ 8-12) (Miss. Ct. App. May 4, 1999).
¶14.
We have already concluded that the fact-finding did not support the lump sum alimony
award. We now turn to whether there at least was some evidence to support the decision, even if
not reflected in the findings. Chancellors too often are forced by the parties' evidence to make
decisions on unreliable information. This was such a case. We do not know what either spouse was
making, as the evidence was insubstantial. We do not know the pay-off amount of the mortgages.
We do not know the appraised value of the home. The information about the home allegedly was
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being prepared for sending to the parties within days of the hearing, but it has never been mentioned
in any rulings. A decision still had to be made.
¶15.
Even so, operating with the evidence available, there was error. Lump sum alimony was
ostensibly used here to equalize equitable distribution, but the distribution was already in favor of
the recipient spouse. It is not modifiable, which is part of the danger of it. No equalizer was
appropriate in this case from the former husband to his former wife.
¶16.
Though lump sum alimony was inappropriate on these facts, Mrs. Miller had requested
alimony in her complaint for divorce. The financial needs of the wife, the fault of the husband, and
the somewhat disparate incomes might justify periodic alimony. We reverse and remand for
consideration of periodic alimony. An added advantage of a remand is that there will be an
opportunity to rectify the omissions in the evidence.
¶17. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS
AFFIRMED EXCEPT AS TO THE AWARD OF LUMP SUM ALIMONY; THIS AWARD
OF ALIMONY IS REVERSED AND THE CAUSE IS REMANDED FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION. EACH PARTY IS ASSESSED ONE-HALF OF THE
COSTS OF THE APPEAL.
KING, C.J., LEE, IRVING, MYERS AND GRIFFIS, JJ., CONCUR. BRIDGES, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY THOMAS AND
CHANDLER, JJ.
BRIDGES, P.J., DISSENTING:
¶18.
On the issue of whether there was sufficient evidence to support an award of lump sum
alimony I concur with the majority in its holding that lump sum alimony was inappropriate.
However, I respectfully dissent from the majority in its belief this matter should, yet again, be
remanded to the lower court for a third consideration by the chancellor. Rather, I believe equity and
evidence in the record supports rendering this matter settled. The record does not support an award
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of alimony for Debra and the time of the trial court should not be wasted re-reconsidering the assets
of the Millers.
¶19.
The majority in its opinion highlights incompleteness in the record regarding the financial
positing and earning capacity of the parties as its reason for remand. It is true the specifics of the
Millers’s income, mortgage and home appraisal were not known precisely. However, the estimates
given by both parties were sufficient for me to understand this is no extraordinary case of dividing
wealth and that these people have barely enough assets to divide between them much less consider
an additional award of alimony.
¶20.
In determining whether to make an award of periodic alimony, the following factors must
be considered: (1) the health of the husband and his earning capacity; (2) the health of the wife and
her earning capacity; (3) the entire sources of income and expenses of both parties; (4) the
reasonable needs of the wife; (5) the reasonable needs of the child; (6) the necessary living expenses
of the husband; (7) the estimated amount of income taxes the respective parties must pay on their
incomes; (8) the fact that the wife has the free use of the home, furnishings and automobile; (9) the
length of the marriage; (10) the presence or absence of minor children in the home; (11) the standard
of living of the parties, both during the marriage and at the time of the support determination; (12)
fault or misconduct; (13) wasteful dissipation of assets; (14) the obligations and assets of each party;
(15) the age of the parties; (16) the tax consequences of the spousal support order; and (17) such
other facts and circumstances bearing on the subject that might be shown by the evidence. Hemsley
v. Hemsley, 639 So. 2d 909, 912 (Miss. 1994); Armstrong v. Armstrong, 618 So. 2d 1278, 1280
(Miss. 1993); Hammonds v. Hammonds, 597 So. 2d 653, 655 (Miss. 1992); Brabham v. Brabham,
226 Miss. 165, 84 So. 2d 147, 153 (1955).
¶21.
As stated by the majority, the chancellor’s decision to award lump sum alimony is based on
the fault of Lee and the chancellor's desire to remedy inequities between the parties financially. It
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is my belief that the financial positions of the parties will not merit periodic alimony payments upon
review by the chancellor. The equity in the home, approximately $22,000, was given to Debra and
everything else of value was divided equally. The only other asset of real value in the marital estate
was a piece of property they divided equally valued at approximately $12,000. Neither Lee nor
Debra earned an above average yearly salary, earning $31,600 and $21,600 respectively. It is my
opinion that awarding Debra the additional $22,000, representing equity in the home, more than
made up for the financial inequality the chancellor was attempting to repair.
¶22.
The majority did not consider the second issue before this court:
WHETHER THE COURT ERRED IN SHIFTING THE BURDEN OF PERSUASION FROM THE
PLAINTIFF TO THE DEFENDANT.
¶23.
Lee claims, "Debra had the burden of persuasion which obligated her to produce evidence
justifying her demand for alimony." Lee also argues, "[e]ven though Debra filed the complaint and
had the burden of persuasion, the court shifted the burden of persuasion to Lee, the defendant."
¶24.
The authority cited by Lee in this case, Ackerman v. Choctaw County, 128 So. 757, 758
(Miss. 1930), has no application or relation to the domestic relations matter before this Court.
"When the plaintiff has made out a prima facie case, the burden is shifted to the defendant to proceed
with proof on his part (1) to refute the proof that the plaintiff has presented, and (2) to introduce on
his part in chief the testimony on those issues, if any, as to which the defendant himself has the
burden of proof, for example, a counterclaim." Bridges & Shelson, Griffith Mississippi Chancery
Practice § 576 (2000 Ed.). Although in this case Lee filed no answer or counterclaim, it appears that
the chancellor was giving Lee an opportunity to refute the proof presented by Debra. Such action
by the chancellor was not a shifting of the burden.
¶25.
In the present case, the information presented by the parties was simply of the "he said, she
said" variety. Lee failed to appear for the hearing on October 1, 2001, nor did he file an answer.
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Lee did not present any evidence and only chose to defend the testimony and/or evidence presented
by Debra. Lee cannot ignore the testimony and evidence produced by Debra. Rather, he must
produce something in rebuttal to the proof presented by Debra so that the chancellor can understand
the issues and how they affect both parties.
¶26.
The chancellor concluded in her opinion "it's my obligation to try to resolve all the issues
fairly and equitably with the evidence that I have before me, and that's what I did." We do not find
in the record any action where the chancellor shifted the burden of proof.
¶27.
THOMAS AND CHANDLER, JJ., JOIN THIS SEPARATE WRITTEN OPINION.
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