Mississippi Court of Appeals affirms reduction in alimony and child support
Can an alimony award be modified in a Mississippi divorce?
In order to determine whether alimony can be modified following a divorce, you must first determine what type of alimony was awarded. Generally speaking, periodic alimony, just like rehabilitative, can be modified. Lump sum alimony, along with reimbursement, can not be modified. The reasoning for the latter is that lump sum and reimbursement alimony are akin to a property settlement. But what if you were awarded periodic alimony in your divorce. Can it be modified years following the divorce and if so, how long after the award? These issues were addressed in a case this week out of Wayne County, Mississippi.
In Austin v. Austin, the parties agreed to an irreconcilable divorce in 2001 after 18 years of marriage. Under the terms of the child custody and property settlement agreement, the wife was given custody of the three children and the husband agreed to pay $1,000 a month in child support, $30,400 on March 15th each year, and $15,200 on August 15 each year (essentially $4,800 a month in child support). He also agreed to pay alimony of $1,000 a month and 35% gross of all bonuses and other compensation with the exception of his monthly draw.
In February 2003, the husband filed his first petition for modification seeking a reduction in child support. The chancellor ruled against him as the evidence did not prove a reduction in income. He subsequently filed a second petition for modification of alimony and child support given he has lost his job and was making less money at his new job. In 2006, the chancellor terminated the original periodic alimony and replaced it with rehabilitative alimony in the amount of $650 per month for 2 years. The reduction was based upon the husband’s decrease in salary and the wife cohabitating with another man where she did not have to pay rent. Further, the trial court reduced the child support to only $1,370 per month. Of course, the wife appealed.
The wife first complained that the trial court lacked the authority to modify the property settlement agreement given it was an irreconcilable divorce in which the parties agreed to the property settlement agreement and the husband did not timely file his motion in accordance with the Mississippi Rules of Civil Procedure. The Court of Appeals dismissed this argument noting that in this instance the Mississippi Rules of Civil Procedure did not apply. Rather, Section 93-5-23 of the Mississippi Code controlled and gave the court the authority to make changes to the decree. Further,
“Mississippi case law holds that support agreements for divorces granted on the grounds of irreconcilable differences are subject to modification based upon a material change in circumstances with one or more of the parties which occurs a result of after-arising circumstances not reasonably anticipated at the time of the agreement.”
The wife also complained that the chancellor lacked the authority to make his ruling on the termination of the periodic alimony retroactive. However, according to the Court, “a chancellor has the discretionary authority to order the modification retroactive to the date on which the petition to modify was filed.” In this case, some two years before the trial court’s ruling.
What can be learned from this case? First, chancery courts have continuing jurisdiction to modify their previous orders concerning alimony, child custody, and child support. Second, certain alimony awards (periodic alimony in this case) can be terminated or modified by the chancellor upon a showing of “material change in circumstances which occurs as a result of after-arising circumstances not reasonably anticipated at the time of the agreement.” The husband losing his job and having a lower income at his new job coupled with the ex-wife living with another man where she did not have to pay rent were sufficient facts to meet the test for modification in this case. Third, if the test for modification is met, certain alimony awards can be modified and/or terminated whether it was originally agreed to by the parties or ordered by the court.
