Roy Donald Duncan v. Helen Lynn Duncan
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CA-00109-COA
ROY DONALD DUNCAN
v.
HELEN LYNN DUNCAN
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEE
07/20/1999
HON. WILLIAM H. MYERS
JACKSON COUNTY CHANCERY COURT
JOSEPH R. MEADOWS
WILLIAM T. REED
CIVIL - DOMESTIC RELATIONS
DIVORCE GRANTED; ALIMONY, PROPERTY
DISTRIBUTION AND ATTORNEY FEES ORDERED
REVERSED AND REMANDED - 04/30/2002
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
5/21/2002
BEFORE McMILLIN, C.J., BRIDGES, AND IRVING, JJ.
McMILLIN, C.J., FOR THE COURT:
¶1. Helen Duncan was granted a divorce from her husband, Roy Duncan, on the ground of uncondoned
adultery. After determining that Mrs. Duncan was entitled to a divorce on that statutory ground, the
chancellor proceeded to the necessary financial considerations involved in the dissolution of a marriage. Dr.
Duncan, dissatisfied with the financial terms of the divorce judgment, has appealed to this Court claiming
that the chancellor abused his discretion by being unduly generous to Mrs. Duncan. We find that the issues
raised by Dr. Duncan in this appeal have merit and, for that reason, we reverse the judgment of divorce
solely as it relates to financial matters and remand for further proceedings consistent with the terms of this
opinion.
I.
Facts
¶2. Dr. and Mrs. Duncan were married in 1966. In the early years of the marriage, Mrs. Duncan worked as
a school teacher while her husband was enrolled in medical school. Mrs. Duncan continued to teach until
the couple adopted a child, after which she devoted her attention to managing the family until the time the
parties separated in 1997. She then obtained re-certification as a secondary school teacher and found
employment in that field earning approximately $1,180 per month, net after taxes and other required
deductions. All the children of the parties were emancipated at the time of the divorce proceeding. The
evidence showed that Dr. Duncan was a private medical practitioner whose clinic had, for several years,
averaged a net operating income in the range of $11,000 per month after deduction of business expenses
associated with the clinic operation but before consideration of Dr. Duncan's personal income tax liability.
¶3. The parties owned a residence having an appraised value of $420,000. There were two outstanding
mortgage loans on the house, one having a balance of approximately $150,000 and the other having a
balance of approximately $3,000. Upkeep and maintenance on the home was estimated in the range of $1,
000 per month, and insurance and taxes came to approximately $500 per month.
¶4. Dr. Duncan had a retirement fund with a balance of $675,070 at the time of separation that had grown
in value to approximately $800,000 at the time of trial. Mrs. Duncan had various retirement and savings
accounts having an aggregate value of approximately $59,000.
¶5. The chancellor awarded Mrs. Duncan periodic alimony of $4,910 per month. In addition, she received
exclusive use and possession of the marital home and Dr. Duncan was ordered to pay one half of all
mortgage payments, taxes, insurance, and upkeep on the home. Mrs. Duncan received title to substantially
all of the contents of the home except for several items listed in the judgment.
¶6. After originally ordering Dr. Duncan to provide health insurance coverage for Mrs. Duncan, the
chancellor subsequently amended his decision when it was pointed out that Mrs. Duncan had other
insurance coverage available. Under the amended judgment, Dr. Duncan was given the option of canceling
the coverage he was then providing for Mrs. Duncan on the condition that he assume responsibility for any
health costs not covered by Mrs. Duncan's insurance that would have been covered by the policy provided
by Dr. Duncan. Additionally, the judgment ordered that, if at any time in the future Mrs. Duncan should lose
her health insurance coverage, Dr. Duncan would be responsible for re-instituting coverage equivalent to
that in effect at the time of divorce or, in the event such insurance could not be obtained, he was ordered to
assume responsibility for all of Mrs. Duncan's medical bills.
II.
Periodic Alimony
¶7. Dr. Duncan contends on appeal that, when considered in their totality, the sum of his monthly obligations
to his former wife are excessive to the extent that they demonstrate a manifest abuse of discretion on the
part of the chancellor. In reviewing an award of alimony, this Court must recognize that the chancellor has
substantial discretion in fashioning relief and our authority to disturb such an award must be based on the
conclusion that the chancellor has abused that broad discretion. Wells v. Wells, 800 So. 2d 1239, 1243
(¶8) (Miss. Ct. App. 2001). The Mississippi Supreme Court has, to some extent, placed some limits on the
chancellor's discretion in this field by itemizing a list of twelve factors that the chancellor must consider in
determining whether periodic alimony is appropriate and, if so, what amounts are appropriate. Hammonds
v. Hammonds, 597 So. 2d 653, 655 (Miss. 1992).
¶8. We do not think that the chancellor erred in his determination that periodic alimony was appropriate
since, even after the chancellor's efforts to equitably divide the assets accumulated during the marriage,
there does not appear to be any chance that Mrs. Duncan can become economically self-sufficient in the
sense of being able to maintain a standard of living reasonably commensurate with that the couple enjoyed
during the course of their lengthy marriage.
¶9. Nevertheless, we do note that, besides the fixed periodic sum of $4,910 per month, the chancellor
further ordered Dr. Duncan to pay debts and expenses associated with the former marital dwelling that
would, from the proof, total somewhere in the range of $1,300 per month. Additionally, Dr. Duncan was
saddled by the chancellor with an open-ended permanent obligation regarding Mrs. Duncan's future health
needs that would appear from the proof to increase his monthly obligation by a minimum of $500 per month
up to a maximum impossible to calculate. Depending upon future events, many of which are beyond Dr.
Duncan's control, his duty under the judgment has no upper limits since it is an obligation to pay Mrs.
Duncan's future medical expenses no matter what they might be.
¶10. The proof showed that Dr. Duncan, at the age of fifty-five years, was beginning to experience some
health problems that he felt would tend to limit his ability to expand his income beyond that already achieved
in his medical career. There was nothing in the record countering this evidence suggesting his prospects for
improved income from his practice were likely. With that in mind, we find it appropriate to assess the
reasonableness of the chancellor's awards in the nature of periodic support for Mrs. Duncan on the
assumption that Dr. Duncan's income will remain at approximately $11,000 per month before his individual
income tax liability is considered.
¶11. The chancellor's finding regarding the recurring expenses of the parties consisted of a reference to
financial disclosure forms each party had filed in the records of the case. The chancellor made no explicit
finding that he considered these reported expenses reasonable; however, in this appeal, Dr. Duncan makes
no claim that Mrs. Duncan's expenses are exorbitant or unreasonable, except to suggest that it is not
practical for her to remain in the family dwelling when it could be sold and she could use her share of the
proceeds to obtain more suitable living accommodations.
¶12. When taken in the aggregate, Dr. Duncan's monthly obligation under the divorce judgment can
reasonably be expected to reach approximately $6,700 per month. Even this figure does not take into
account the expense to Dr. Duncan of maintaining life insurance coverage on himself with Mrs. Duncan as
the beneficiary, nor does it take into consideration Dr. Duncan's contingent, but potentially devastating,
obligations regarding Mrs. Duncan's future health care costs.
¶13. Even when the fact of Dr. Duncan's contribution to the failure of this marriage is considered, we
conclude that a periodic alimony award that, in combination, commits him to pay out $6,700 of his
anticipated monthly pre-tax income of $11,000 is excessive. The problem is compounded when his
potentially unlimited obligation regarding Mrs. Duncan's future medical expenses is considered. This Court
recently considered a similar situation and determined that, though it was within the discretion of the
chancellor to require a divorcing spouse to provide health insurance for the other, an open-ended provision
requiring the same spouse to pay all health costs not covered by the insurance amounted to a prospective
modification of the amount of alimony that did not take into account the elements of evidence necessary to
obtain such a modification, the primary factor required by law but omitted from such an arrangement being
the need for a determination of the obligated spouse's ability to meet the new and higher support amount.
Tillman v. Tillman, 791 So. 2d 285, 288 (¶10) (Miss. Ct. App. 2001).
¶14. Thus, we conclude that the various periodic obligations of support imposed on Dr. Duncan, when
considered in their totality, are so excessive as to prevent Dr. Duncan from reasonably providing for his
own future reasonable living expenses and, thus, amount to an abuse of discretion. Tilley v. Tilley, 610 So.
2d 348, 353-54 (Miss. 1992). We further find that any provision regarding provision of health care
extending beyond the creation of an obligation to provide health insurance under terms where the costs of
coverage are known and can, therefore, be assessed as to reasonableness is an abuse of discretion as an
attempt to provide for future automatic modifications of the level of support without regard to the necessary
factors that must support a bid to modify alimony. Tillman v. Tillman, 791 So. 2d 285, 288 (¶10) (Miss.
Ct. App. 2001).
III.
The Equitable Division of Marital Assets
¶15. The chancellor essentially made an even division of all assets accumulated by the parties during the
marriage (except for the provisions he made as to the marital domicile). Taking into account the duration of
the marriage and the fact that Mrs. Duncan contributed to the marriage both as the primary financial support
during the early days of Dr. Duncan's schooling and that she contributed to the family by devoting herself to
the upbringing of the children and to the operation of the household, we cannot necessarily conclude that
this equal division of assets was so unfair as to constitute an abuse of discretion. Chamblee v. Chamblee,
637 So. 2d 850, 863-64 (Miss. 1994).
¶16. Nevertheless, the Mississippi Supreme Court has observed that the entire range of awards regarding
finances must, in the final analysis, be considered in order to arrive at the determination that the chancellor's
judgment is fair and equitable to both parties. Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994).
The court has further said that, as a practical matter, as one obligation increases, the ability of the obligor to
meet some other obligation necessarily recedes. Id. Because we conclude that it is necessary to reverse and
remand for consideration of a more equitable level of periodic alimony and because any changes in that
award will have an impact on other aspects of the chancellor's decision, we conclude that it would be
proper to simply vacate all aspects of the judgment relating to financial matters and remand for
consideration of a financial award that will equitably provide for Mrs. Duncan while not being so harsh as to
Dr. Duncan as to substantially limit his ability to continue in a reasonably financially-secure circumstance.
IV.
Attorneys Fees
¶17. The chancellor awarded Mrs. Duncan $5,000 in attorney's fees without any finding that she was
unable to defray her costs of representation from her own assets. This is one of the fundamental
prerequisites of an award of attorneys fees in a divorce action. Harrell v. Harrell, 231 So. 2d 793, 797
(Miss. 1970). The evidence demonstrates Mrs. Duncan's access to fairly substantial sums of cash in the
form of savings and checking balances and there is no proof indicating that these funds are otherwise
committed so as to impose a substantial hardship on her were she required to pay her own cost of
representation from assets available to her immediately upon the conclusion of this proceeding.
¶18. In that light, we conclude that the award of attorney's fees was an abuse of discretion and we reverse
that award. This ruling is not intended to affect, in any way, the chancellor's authority to consider attorney's
fees on remand should the proper situation for their award be shown by the evidence to exist.
¶19. THE JUDGMENT OF THE CHANCERY COURT OF JACKSON COUNTY IS
REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLEE.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, CHANDLER
AND BRANTLEY, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.
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