Jennifer Nicole Simmons Lowrey v. Ryan Simmons , 186 So. 3d 907 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-00817-COA
JENNIFER NICOLE SIMMONS LOWREY APPELLANT
v.
RYAN SIMMONS APPELLEE
DATE OF JUDGMENT: 06/11/2014
TRIAL JUDGE: HON. JOHN ANDREW HATCHER
COURT FROM WHICH APPEALED: MONROE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: DANNY L. LOWREY
ATTORNEY FOR APPELLEE: STEPHEN TRAVIS BAILEY
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: TERMINATED APPELLEE’S OBLIGATION
TO PAY CHILD SUPPORT EXPENSES AND
UPHELD AWARD OF ALIMONY TO
APPELLANT
DISPOSITION: REVERSED AND REMANDED ON DIRECT
APPEAL, AND AFFIRMED ON CROSS-
APPEAL - 09/29/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., MAXWELL AND WILSON, JJ.
WILSON, J., FOR THE COURT:
¶1. Jennifer Nicole Simmons Lowrey appeals the judgment of the Monroe County
Chancery Court terminating her ex-husband’s child support payments, including his
obligation to pay college expenses, and challenges the chancellor’s manner of appointment
and utilization of a guardian ad litem (GAL). Ryan Simmons cross-appeals the chancellor’s
decision not to terminate his alimony obligations to Jennifer retroactive to the date of her
remarriage. We reverse the chancellor’s termination of child-support payments, including
college expenses, and remand for further proceedings consistent with the opinion. We
otherwise affirm the judgment below.
FACTS AND PROCEDURAL HISTORY
¶2. Jennifer and Ryan divorced in December 2008, settling all issues of property, support,
and custody in a court-approved settlement agreement. Pursuant to the agreement, Jennifer
and Ryan were to share joint legal custody of their daughter, Jilanna, then thirteen years old.
Jennifer was given primary physical custody of Jilanna, but Ryan had specific visitation
rights, including every other weekend, alternating holidays, and four weeks during Jilanna’s
summer vacation. Ryan agreed to pay Jennifer $450 per month in child support until Jilanna
graduated from college or, if she did not attend college, when she reached twenty-one years
of age or was otherwise emancipated by the chancery court. Ryan also agreed to pay all of
Jilanna’s extracurricular fees and expenses; the costs of Jilanna’s school clothing, not to
exceed $500 per year; the costs of an automobile for Jilanna when she obtained her driver’s
license, including insurance, maintenance, and taxes; and college expenses, excluding
sorority fees. Finally, Ryan agreed to pay Jennifer alimony of $900 per month.
¶3. On March 23, 2012, Ryan filed a complaint in the chancery court, seeking to have the
alimony provisions of the settlement agreement declared void and to have alimony payments
terminated retroactively from the date of Jennifer’s remarriage in 2010. Ryan also sought
to have Jennifer cited for contempt for failure to comply with the joint custody provisions of
the settlement, including his visitation rights. Finally, Ryan sought to terminate or reduce
2
his future child support obligations, including college expenses, and reduce his past child
support payments. This request was based on Jilanna’s alleged refusal to have any contact
with him or, in the alternative, his own reduction in income. Jennifer answered Ryan’s
complaint and filed a counterclaim, seeking to have Ryan cited for contempt for failure to
pay child support and alimony.
¶4. The chancellor appointed a GAL “to investigate the facts and circumstances related
to any alleged refusals to visit with [Ryan] by [Jilanna] and as to the issues of the erosion of
the parent/child relationship.” After interviewing the parties and Jilanna and reviewing
relevant documents, the GAL issued his report. The GAL found no legal basis to recommend
termination or modification of child support payments. However, he did recommend a
modification of college expenses to be paid by Ryan based upon the “complete atrophy” of
the father-daughter relationship. The GAL found that Ryan, as the father, “had a greater
responsibility in nurturing their relationship and [was] therefore . . . greater, though not
solely, at fault.” However, the GAL also noted that Jilanna now “refer[red] to her step-father
as her dad” and sometimes used his last name, Lowrey, rather than Simmons. Based on these
findings, the GAL recommended that Ryan’s obligation be reduced to one-half of all college
expenses not covered by financial aid. The GAL further recommended that Ryan and Jilanna
attend counseling to attempt to rebuild their relationship, and if Jilanna refused or failed to
attend counseling, Ryan’s obligation for college expenses should be terminated in full.
¶5. In January 2014, after a four-day trial, the chancellor entered a judgment resolving
Ryan’s claims and Jennifer’s counterclaim. The chancellor found Ryan in contempt for his
3
failure to pay various expenses, child support, alimony, and previously ordered attorney’s
fees. He ordered Ryan to pay certain sums to Jennifer to purge himself of contempt. The
chancellor also suspended, but did not fully terminate, Ryan’s obligations to pay child
support and college expenses. The chancellor set a review hearing for May 14, 2014, at
which time these obligations would be terminated “unless,” in the interim, “there [was] a
substantial and material change in the circumstances,” i.e., “a reconciliation between [Ryan]
and [Jilanna].”
¶6. The chancellor also found Jennifer in contempt for her failure to discuss decisions
regarding Jilanna with Ryan. However, the chancellor found that no punishment was
warranted due to “mitigating factors,” namely, Jennifer’s prolonged hospitalization in 2010
and 2011 due to lung disease and a double lung transplant and her continued illness and life
expectancy of four years. During Jennifer’s hospitalization, the chancellor noted, Ryan
“made no effort whatsoever, to have Jilanna . . . live with him or even visit,” even though
“they were living near each other.” “[I]nstead, . . . Jilanna stayed with her step-father, all of
which constituted inexcusable parental neglect by [Ryan] in the [chancellor’s] eyes.”
¶7. Following the May 14, 2014 review hearing, the chancellor entered a final judgment,
reaffirming much of the judgment from January 2014. However, the chancellor noted that
since the original judgment, Jilanna had made no effort to reconcile with Ryan; thus, the
chancellor terminated Ryan’s future obligations to pay child support and college expenses.
The chancellor subsequently entered a final corrected judgment on June 11, 2014. Jennifer
timely appealed this judgment, and Ryan filed a notice of cross-appeal from the same.
4
Jennifer’s appeal challenges the chancellor’s (1) appointment of the GAL and failure to state
reasons for not following his recommendations and (2) termination of Ryan’s obligation to
pay child support and college expenses. Ryan’s cross-appeal challenges the chancellor’s
ruling that his alimony payments did not terminate upon Jennifer’s remarriage.
STANDARD OF REVIEW
¶8. “We employ a limited standard of review on appeals from chancery court.” Legacy
Hall of Fame Inc. v. Transp. Trailer Serv. Inc., 139 So. 3d 105, 107 (¶9) (Miss. Ct. App.
2014) (citing Miller v. Pannell, 815 So. 2d 1117, 1119 (¶9) (Miss. 2002)). This appeal
involves questions of both law and fact. “We . . . will not disturb the factual findings of a
chancellor when supported by substantial evidence unless we can say with reasonable
certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous
or applied an erroneous legal standard.” Biglane v. Under The Hill Corp., 949 So. 2d 9,
13-14 (¶17) (Miss. 2007) (quotation marks and brackets omitted). “We use a de novo
standard when analyzing questions of law.” Id. at 14 (¶17).
ANALYSIS
I. Appointment of the Guardian ad Litem
¶9. In her first issue, Jennifer argues that the chancellor’s appointment of the GAL was
reversible error because the chancellor’s order did not properly outline the role of the GAL
as required by the Supreme Court in S.G. v. D.C., 13 So. 3d 269, 281 (¶¶48-49) (Miss. 2009).
In S.G., the Supreme Court encouraged chancellors
to set forth clearly the reasons an appointment has been made and the role the
guardian ad litem is expected to play in the proceedings. To avoid potential
5
problems regarding confidential communications and other expectations,
chancellors should make clear: (1) the relationship between the guardian ad
litem and the children, incompetent, or other ward of the court; (2) the role the
guardian ad litem will play in the trial; and (3) the expectations the trial judge
has for the guardian ad litem. The role a chancellor expects a guardian ad
litem to play should be set forth clearly in the written order of appointment.
Doing so will make the guardian ad litem’s relationships and general
responsibilities clear to each of the parties (including those wards old enough
to comprehend), the attorneys, the court, and to the guardian ad litem.
Id. at (¶48). In S.G., the chancellor did not clearly define the purpose or role of the GAL.
In the original order, the chancellor in S.G. wrote, “[T]he parties are ordered to cooperate
fully with the appointed [GAL] and to promptly execute and deliver any and all
authorizations necessary for the [GAL] to communicate with counselors, physicians, forensic
professionals and others regarding the minor children.” Id. at (¶51). There were no other
instructions to the parties, the attorneys, or the GAL. Furthermore, the chancellor seemed
to view the role of the GAL as a special master at times and an attorney for the minor
children at others. Id. at (¶50). Although the Supreme Court ultimately reversed the
chancellor for other reasons, it took the opportunity to “encourage chancellors to define
clearly the role and responsibility of the [GAL],” emphasizing that “[c]hancellors should not
(as happened in this case) appoint a [GAL] to serve in the dual role of advisor to the court
and lawyer for the child.” Id. at (¶55).
¶10. Jennifer argues that the chancellor’s appointment of the GAL in the present case failed
to comply with the requirements of S.G., leading to confusion about the GAL’s role. The
relevant order here read: “The Court finds that a [GAL] should be appointed in this cause to
investigate the facts and circumstances related to any alleged refusals to visit with [Ryan] by
6
[Jilanna] and as to the issues of the erosion of the parent/child relationship.” Jennifer
presents nothing to suggest that any questions arose about the GAL’s role prior to this appeal.
There is no evidence that any party, including Jilanna, had any trouble understanding the
GAL’s role. Moreover, through her counsel, Jennifer approved the language of the order.
The order clearly defines the GAL’s role as that of an investigator of the contested
allegations underlying Ryan’s complaint, not a representative of or advocate for any
particular party or nonparty. There should have been no confusion, and as best we can tell
there was none. This issue is without merit.
II. Recommendations of the Guardian ad Litem
¶11. Jennifer next argues that the chancellor erred by not following the GAL’s
recommendations.1 Jennifer asserts that the chancellor misstated the GAL’s
recommendations and erroneously believed that he was following those recommendations.
Jennifer further argues that because the chancellor was not following the GAL’s
recommendations, he was obligated to explain why he had rejected the them. Jennifer relies
on Floyd v. Floyd, 949 So. 2d 26, 29 (¶8) (Miss. 2007), in support of her argument. In Floyd,
the Supreme Court stated, “if the court rejects the recommendations of the guardian, the
court’s findings must include its reasons for rejecting the guardian’s recommendations.” Id.
However, Jennifer fails to note the context of the Court’s statement. The Court wrote:
1
Jennifer also claims an that the GAL performed an inadequate investigation, but
presents no authority to support her assertion beyond a restatement of his findings and
performance. “The law is well established in Mississippi that this Court is not required to
address any issue that is not supported by reasons and authority.” Varvaris v. Perreault, 813
So. 2d 750, 753 (¶6) (Miss. Ct. App. 2001) (citing Hoops v. State, 681 So. 2d 521, 535
(Miss. 1996)). Therefore, this issue is waived for failure to cite authority.
7
[A] chancellor shall at least include a summary review of the recommendations
of the guardian in the court’s findings of fact when the appointment of a
guardian is required by law. . . . While a chancellor is in no way bound by a
guardian’s recommendations, a summary of these recommendations in addition
to his reasons for not adopting the recommendations is required in the
chancellor’s findings of fact and conclusions of law.
Id. (emphasis added).
¶12. The appointment of a GAL is mandatory where there are allegations of abuse or
neglect of a minor or where there is a contested termination of parental rights. See Miss.
Code Ann. § 93-5-23 (Supp. 2014); Miss. Code Ann. § 93-15-107(1) (Rev. 2013). Where
the appointment of a GAL is discretionary, there is no requirement that the chancellor state
his reasons for deviating from the GAL’s recommendations. Porter v. Porter, 23 So. 3d 438,
449 (¶28) (Miss. 2009); Tanner v. Tanner, 956 So. 2d 1106, 1109 (¶13) (Miss. Ct. App.
2007). Moreover, “there is no requirement that the chancellor defer to the findings of the
[GAL].” S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (¶17) (Miss. 2000).
¶13. There was no allegation of abuse or neglect in the present case. Nor was this an action
to terminate parental rights. Thus, the chancellor was under no obligation to appoint a GAL.
Because the chancellor’s appointment of the GAL was discretionary, he was not obligated
to detail his reasons for diverting from the GAL’s recommendations. Furthermore, in his
order, the chancellor did discuss the recommendations of the GAL. Although the chancellor
did not follow the GAL’s recommendations, chancellors are never required to adopt the
GAL’s recommendations. Id. (“[T]here is no requirement that the chancellor defer to the
findings of the [GAL]. . . . Such a rule would intrude on the authority of the chancellor to
make findings of fact and to apply the law to those facts.”).
8
III. Modification of the Court-Approved Property Settlement Agreement
¶14. The court-approved settlement agreement between Jennifer and Ryan required Ryan
to pay Jennifer $450 per month in child support until Jilanna graduated from college or,
should she choose not to attend college, until she turned twenty-one, married, or was
otherwise emancipated by the court. In addition, Ryan was required to, inter alia, pay
expenses related to Jilanna’s schooling and various extracurricular activities, provide medical
insurance and pay medical expenses, pay certain automobile-related expenses, and maintain
a $500,000 life insurance policy for Jilanna’s benefit. Finally, Ryan agreed to pay for
Jilanna’s college expenses, so long as she attended school in Mississippi and maintained a
minimum GPA.
¶15. In the June 2014 corrected final judgment, the chancellor ordered Ryan to pay Jennifer
unpaid child support and other previously owed expenses for the benefit of Jilanna.
However, the chancellor terminated Ryan’s obligation to pay “all further child support,
maintenance, and support obligations,” including college expenses, because of Jilanna’s
“failure to reconcile” with her father. On appeal, Jennifer challenges this aspect of the
judgment, arguing that the chancellor’s decision to terminate Ryan’s obligations was
manifest error, an abuse of discretion, and a result of the application of an erroneous legal
standard. Discussion of this issue requires further background on the relationship between
Ryan and Jilanna and the course of the proceedings below.
¶16. Jilanna was thirteen years old when her parents divorced in 2008. The chancellor
found that the initial breakdown in her relationship with her father resulted from an incident
9
in 2009, when Jilanna was in eighth grade, when her father reasonably and justifiably
disciplined her while she was staying with him during a period of visitation. The chancellor
found that Jilanna “shunned” her father after this incident and that her “clearly visible deep-
seated antipathy . . . toward [her father] . . . stems from that date.” Although Jennifer and
Jilanna denied this, the chancellor’s findings regarding the initial cause of the estrangement
are supported by substantial evidence.
¶17. However, the chancellor also found that in the period that followed Ryan
“exacerbated” the “alienation between [him] and [Jilanna] . . . by not insisting upon his
visitation” and making little effort to contact his daughter. The chancellor rejected Ryan’s
claim that Jennifer had caused the alienation between Ryan and Jilanna. Rather, the
chancellor found “that the erosion of the parent/child relationship was proximately caused
by a bare preponderance of the evidence by . . . Ryan and the balance caused by . . . Jilanna.”
¶18. In particular, the chancellor found that Ryan was guilty of “inexcusable parental
neglect” from approximately November 2010 to March 2011 when Jennifer was hospitalized
in North Carolina, suffering from serious lung disease while awaiting and then undergoing
a double lung transplant surgery. During this period, the chancellor found, Ryan “made no
effort whatsoever to have Jilanna . . . live with him or even visit when they were living near
each other, but instead, when [Jennifer] was hospitalized, Jilanna stayed with her stepfather,
all of which constituted inexcusable parental neglect in the [chancellor’s] eyes.” Jilanna was
fifteen years old at this point, living with her stepfather in Tupelo, while Ryan lived a short
drive away in Amory. These findings are also supported by substantial evidence. In
10
addition, Ryan remarried in October 2010, but he did not invite Jilanna to the wedding or
even tell her that he was getting married. Ryan’s new wife was twenty-five years old and
brought a son, Ryan’s new stepson, to the marriage.
¶19. Ryan admitted that he had little or no communication with Jilanna from 2009 until
March 2012, when he says he sent her some text messages and invited her to his house or to
dinner. According to Ryan, Jilanna “rejected” him at this point and told him he “wasn’t her
father” anymore. On March 23, 2012, Ryan filed the instant complaint seeking to terminate
his obligations to pay child support, college expenses, and alimony.
¶20. The chancellor also found that although Ryan was the proximate and primary cause
of the erosion of his relationship with his daughter, “Jilanna . . . herself has exacerbated this
erosion by her own deep-seated antipathy toward [Ryan].” The chancellor found that, despite
the court’s urging, Jilanna had spurned Ryan’s efforts during the course of this litigation to
pursue joint counseling and reconciliation. The chancellor also observed that “Jilanna . . .
was grinning broadly when she testified she would be less likely to see [Ryan]” once she
began attending college. In addition, Jilanna has at times publicly used her stepfather’s last
name and referred to him as “Daddy,” and she stated on the record that she would allow him
to adopt her. Based on this evidence, the chancellor concluded “that Jilanna is delighted to
have nothing further to do with [Ryan] except receive monetary benefits he is obligated to
pay.” The chancellor further found that “the more recent periods of failure to reconcile have
been proximately caused by the actions and inactions of Jilanna.” The chancellor concluded
that Jilanna was “nearly an adult, with the ability to make some adult decisions, and she
11
cannot have it both ways,” i.e., refuse to reconcile with her father while continuing to insist
on his financial support. The chancellor’s factual findings were part of the January 2014
judgment and were reaffirmed in the final judgment. Though disputed by Jennifer and
Jilanna, all findings of fact are supported by substantial evidence.
¶21. The chancellor found that the erosion of the parent-child relationship and failure to
reconcile was a “substantial and material change in circumstances” warranting the
termination, effective May 31, 2014, of Ryan’s obligations to pay for Jilanna’s support and
college expenses absent a reconciliation between the two. He set a May 14, 2014 review
hearing to determine whether any such reconciliation had occurred. At the review hearing,
Jennifer was the only witness and testified that to her knowledge neither Ryan nor Jilanna
had reached out to the other since the court’s prior ruling. The chancellor then explained that
he had delayed entering a final judgment in order to give Jilanna one final opportunity “to
mend this fence, and she has not availed herself of it.” Therefore, “[t]he last part of this
erosion of a family relationship was Jilanna’s responsibility and that’s where [her] 49 percent
[fault] came in, and she just reaffirmed it.” Accordingly, the chancellor entered a final
judgment terminating Ryan’s obligations to pay support and child expenses.
¶22. By the time the final judgment was entered, Jilanna was a student at Mississippi State
University. By all accounts she is, as the chancellor found, “an exemplary student.” She was
the valedictorian of her high school class, participated in a number of extracurricular
activities, earned a partial scholarship to Mississippi State, and continued to excel
academically in college. Thus, there was no issue of her qualifications or aptitude for
12
college. See Pass v. Pass, 238 Miss. 449, 458, 118 So. 2d 769, 773 (1960) (holding that a
financially able, non-custodial parent has a duty to provide funds for college if the “child is
worthy of and qualified for a college education and shows an aptitude therefor”).
¶23. Under Mississippi law, a child generally will not forfeit support from a non-custodial
parent unless his or her actions toward the parent are “clear and extreme.” See Caldwell v.
Caldwell, 579 So. 2d 543, 548 (Miss. 1991). However, where the child is college-aged, a
“lesser finding” that the child’s actions have caused a deteriorated relationship with the
parent is sufficient to justify termination of support obligations, including obligations to pay
for college. Stasny v. Wages, 116 So. 3d 195, 197-98 (¶11) (Miss. Ct. App. 2013). Under
Hambrick v. Prestwood, 382 So. 2d 474, 477 (Miss. 1980), a parent’s duty to support and pay
college expenses of a college-aged child “is dependent, not only on the child’s aptitude and
qualifications for college, but on whether the child’s behavior toward, and relationship with
the father, makes the child worthy of the additional effort and financial burden that will be
placed on him.” Although Hambrick involved court-ordered support and college expenses,
we have since applied its holding to cases, such as this one, involving obligations to which
a parent has agreed as part of a comprehensive and voluntary divorce settlement. See Stasny,
116 So. 3d at 198, 199 (¶¶14-15, 17); but see Markofski v. Holzhauer, 799 So. 2d 162, 170
(¶38) (Miss. Ct. App. 2001) (McMillin, C.J., joined by Southwick, P.J., and Thomas and Lee,
JJ., concurring in part and dissenting in part) (criticizing the extension of Hambrick’s holding
to an obligation voluntarily undertaken as part of a contractual divorce settlement).
¶24. In this case, the chancellor did not cite Hambrick or any of its progeny as the basis for
13
his ruling. Instead, he cited a “substantial and material change in circumstances”—the
erosion of the parent-child relationship and failure to reconcile—as his reason for terminating
Ryan’s obligations. Nevertheless, the chancellor’s decision appears to track the underlying
rationale of the Hambrick line of cases, and Ryan has defended it on that basis in this appeal.
Cf. Finch v. Finch, 137 So. 3d 227, 231, 237-38 (¶¶5, 35) (Miss. 2014) (chancellor found
son’s “animosity toward his father” was a “material change in circumstances” justifying
termination of father’s obligation to pay educational expenses; Supreme Court affirmed
under Hambrick). Therefore, we will apply the applicable Hambrick standard.
¶25. Although the Hambrick standard is by no means a bright-line rule, it has never been
applied to terminate a parent’s support obligations in a case such as this, where the chancellor
has found, with substantial support in the record, that the parent is the primary cause of the
erosion of the parent-child relationship—indeed, that the parent is guilty of “inexcusable
parental neglect”—and the child’s essential fault is in failing to respond to a neglectful,
absentee parent’s belated efforts at reconciliation. For example, in Hambrick, the daughter
had no contact with her father for six or seven years, she acknowledged that her dislike of
him bordered on hatred, there was a strong inference that the mother was partially to blame
for her animosity, and “[t]here [was] nothing in this record that would justify [the daughter’s]
attitude toward her father.” Hambrick, 382 So. 2d at 477 (emphasis added). In contrast, in
Polk v. Polk, 589 So. 2d 123, 131 (Miss. 1991), the Supreme Court applied Hambrick and
reversed a chancellor’s decision not to order the father to pay the daughter’s college
expenses because “the problems [between them] appear[ed] to be partly [the father’s] fault”
14
and the father “seem[ed] to have abandoned [the daughter], either emotionally or
financially.” (Emphasis added). In light of the father’s partial fault and prior abandonment
of the child, the Court remanded the issue for further consideration, even though the
daughter’s conduct toward her father was egregious. She had written letters to her father’s
family that accused him of immoral acts and stated that he would “rot in hell” and that she
would no longer acknowledge him as her father, and she had attempted to persuade local
newspapers to publish her accusations, which the Court found “disturbing.” See id. at 130-
31; id. at 131-32 (Lee, C.J., dissenting) (“[T]he attitude and actions of Kawanis [Polk]
toward her father . . . have been much more egregious than that in Hambrick.”).
¶26. Thus, under Hambrick and Polk, a father is not entitled to full relief from otherwise
valid obligations to pay for the support and college expenses of his child—here, obligations
that he voluntarily accepted as one component of a comprehensive divorce settlement—based
on an estrangement that is in large measure of his own making. Here, as the chancellor
found, Ryan neglected his child beginning in at least 2010 and continuing into 2012. This
abandonment included an especially “inexcusable” period of neglect when her mother was
hospitalized for months, hundreds of miles away, with a life-threatening illness. During this
difficult time in his daughter’s life, Ryan lived nearby but never so much as visited her. To
be sure, in 2012, near the time he filed the instant complaint, Ryan did attempt to reconcile
with Jilanna; and the chancellor found that Jilanna, not Ryan, bears primary responsibility
for their failure to reconcile. We do not question these findings, and we emphasize that we
accept all of the chancellor’s findings of fact, which are supported by substantial evidence.
15
However, we hold that Hambrick does not apply to the facts found by the chancellor. Where
a father’s own neglect is the proximate cause of the erosion of his relationship with his child,
the child’s resistance to belated efforts to reconcile will not relieve the father of obligations
of support and to pay college expenses that he voluntarily assumed as part and parcel of his
own comprehensive divorce settlement. Accordingly, the part of the judgment suspending
and terminating Ryan’s support obligations, including his obligation to pay college expenses,
is reversed, and the case is remanded for further proceedings consistent with this opinion.2
IV. Alimony
¶27. In his cross-appeal, Ryan argues that the chancellor erred in determining that his
alimony payments to Jennifer did not terminate upon her remarriage. Ryan claims that the
alimony provision in the parties’ settlement agreement is ambiguous and, due to this
ambiguity, must be interpreted as providing for periodic alimony terminable upon Jennifer’s
remarriage. The chancellor, however, found that the alimony provision — which “was not
imposed upon [Ryan] but agreed to by [him]” — was an unambiguous, valid, and enforceable
provision for a “hybrid” form alimony.
¶28. Ryan and Jennifer’s divorce became final on December 29, 2008, and Jennifer
remarried on July 26, 2010. The alimony portion of their settlement agreement provides:
Husband shall pay unto Wife periodic alimony in an amount no less than
[$900] per month . . . and shall continue . . . until such time as the Wife’s
2
Ryan made an alternative request for a reduction in his various support obligations
based on his alleged decrease in income since the time of his divorce. The chancellor
“denie[d]” this request as a matter of form only because he granted Ryan’s broader request
for a full termination of his obligations. As such, the chancellor may consider this separate,
more limited request on remand, if it is supported by the evidence under applicable law.
16
remarriage, the death of the Wife, the death of the Husband or until further
Order of this Court. Regardless of whether Wife shall remarry, Husband shall
in any event pay alimony in the amount of [$900] per month . . . through the
period ending November 10, 2013, in which event the alimony which is
received by Wife following her marriage shall be in the nature of lump sum
alimony, payable in monthly installments.
¶29. Mississippi law recognizes four types of alimony, West v. West, 891 So. 2d 203, 212
(¶20) (Miss. 2004), only two of which are relevant here: periodic and lump sum. In general,
periodic alimony is paid monthly and has no fixed termination date but terminates only at the
death of the payor or remarriage of the recipient. Id. at (¶21). Periodic alimony generally
is awarded based upon the needs of the recipient and thus may be modified or terminated if
there is a material change of circumstances. Id. Lump sum alimony, in contrast, is a fixed
and irrevocable amount that can be paid in either a single lump sum or periodic installments.
Id. at (¶22). “A specific period of time for which payments are to run and a fixed sum of
money are two characteristics of lump sum alimony.” Id. Because lump sum alimony is
irrevocable and vests immediately, it cannot be modified based on a change in circumstances,
id. at (¶23), and becomes an obligation of the payor spouse’s estate in the event of his or her
death, In re Estate of Hodges, 807 So. 2d 438, 443 (¶17) (Miss. 2002).
¶30. Although a court order imposing alimony must, in general, clearly identify what type
of alimony is being awarded and adhere to its traditional characteristics, our “Supreme Court
has not required consensual support agreements to follow the same terms as for court-
imposed alimony.” Elliot v. Rogers, 775 So. 2d 1285, 1289 (¶15) (Miss. Ct. App. 2000).
Rather, the Supreme Court has emphasized divorcing parties’ freedom and “broad latitude”
to settle the financial aspects of their separation by contract as they see fit:
17
In property and financial matters between the divorcing spouses themselves,
there is no question that, absent fraud or overreaching, the parties should be
allowed broad latitude. When the parties have reached agreement and the
chancery court has approved it, we ought to enforce it and take as dim a view
of efforts to modify it, as we ordinarily do when persons seek relief from their
improvident contracts.
Weathersby v. Weathersby, 693 So. 2d 1348, 1351 (Miss. 1997) (quoting Bell v. Bell, 572 So.
2d 841, 844 (Miss. 1990)). Therefore, “the parties can go further in their financial
agreements at the time of divorce than a chancellor may impose by order.” Elliott, 775 So.
2d at 1289 (¶16).
¶31. For example, in East v. East, 493 So. 2d 927 (Miss. 1986), the Court addressed a
settlement agreement containing the following alimony provision:
That, as alimony and as further consideration for the settlement of the claim
of Wife to Husband’s properties, Husband agrees to pay unto Wife the sum of
[$5,000] per month, . . . said payment not to terminate upon the death of
Husband, but shall constitute a charge against his Estate until the death of
Wife, irrespective of her possible remarriage. It is the full intention of
Husband that Wife shall receive as alimony and as a property settlement from
him or his Estate the sum of [$5,000] for each and every month hereafter until
her death . . . .
Id. at 929. The Court held that the provision was enforceable as either “property settlement
or lump sum alimony,” notwithstanding that it lacked lump sum alimony’s traditional
characteristics of a fixed sum payable within a fixed period of time. Id. at 931. Accordingly,
the Court enforced the provision as written. Id.
¶32. In Elliot, 775 So. 2d at 1287-88 (¶9), this Court considered another “hybrid” alimony
provision of a property settlement agreement, which provided in relevant part:
Husband shall pay to Wife . . . the sum of $4,000 per month, unless Wife shall
die or remarry. . . . Said payments shall be deductible to Husband and taxable
18
to Wife. In the event of Husband’s death . . . Husband’s heirs and
representatives shall be bound to make said payments until the earlier of
Wife’s death, remarriage or the expiration of said 120 month period.
The Court noted that the agreement, which was prepared by “quite capable attorneys,” did
not fit neatly into any accepted alimony category, as it had elements of both lump sum and
periodic alimony. Id. at 1288. Though the chancellor in Elliot had determined the agreement
to be periodic alimony, this Court noted that periodic alimony cannot have a fixed
termination date, and the agreement terminated after 120 months. Id. However, this Court
declined to apply a specific label to the agreement, noting only that it was not “traditional
periodic alimony.” Id. at 1290 (¶19). We ultimately held “that the payments in this case,
agreed as to amount and duration and which do not neatly fit within any alimony category,
are within the broad latitude that divorcing couples have to resolve their affairs.” Id. at 1289-
90 (¶19). Because the provision’s terms and the parties’ intent were clear, we enforced it as
written. See id. at (¶¶18-21).
¶33. As in Elliot and East, the alimony provision in this case does not strictly adhere to the
traditional characteristics of either periodic or lump sum alimony. In fact, the parties
somewhat inartfully attempted to provide for both types, calling for periodic alimony at the
outset and then lump sum alimony if the wife ever remarried. However, as applied to the
present issue, the terms of the agreement and the parties’ intent at the time of their divorce
are perfectly clear: “Regardless of whether [Jennifer] shall remarry, [Ryan] shall in any
event pay alimony in the amount of [$900] per month . . . through the period ending
November 10, 2013.” (Emphasis added). Lest there be any doubt, the agreement then further
19
describes how the payments that Jennifer would receive “following her marriage” should be
characterized. The parties’ agreement thus makes clear that payments would not terminate
upon Jennifer’s remarriage but would continue until the date specified. Based on applicable
Supreme Court “precedents” and basic “equity,” “we desire to enforce the agreement of the
parties reached at the time of the divorce.” Elliot, 775 So. 2d at 1289 (¶18). When, as in this
case, the parties have entered into a voluntary settlement agreement and obtained court
approval, we will “enforce it” as written and “take . . . a dim view” of post hoc “efforts to
modify it.” Weathersby, 693 So. 2d at 1351. We agree with the chancellor that the alimony
provision and the parties intent is unambiguous as it relates to this issue and, as such, it
should be enforced as written regardless of its proper label. Elliot, 775 So. 2d at 1290 (¶20).
CONCLUSION
¶34. We find no error in the chancellor’s appointment or utilization of the GAL or the
chancellor’s denial of Ryan’s request to terminate his alimony obligation retroactive to the
date of Jennifer’s remarriage. We reverse and remand for further proceedings consistent with
this opinion only with respect to the suspension and eventual termination of Ryan’s
obligations to pay for Jilanna’s support, including her college expenses.3
3
Jennifer filed her opening brief on November 17, 2014. On February 20, 2015,
Ryan filed his brief and also filed a motion to strike Jennifer’s brief, arguing that Jennifer’s
record citations were inadequate and that two statements in her brief were inflammatory and
unsupported by the record. Jennifer filed a timely response to the motion to strike in which
she argued that her record citations were adequate and the two challenged statements were
fair and appropriate. On March 3, 2015, the Supreme Court entered an order finding that
the motion should be passed for consideration with the merits of the appeal. Ryan’s motion
is denied. Jennifer’s record citations are adequate. Further, the two specific statements to
which Ryan objects played no role in our decision and would have been disregarded anyway
to the extent they lack support in the record. See Touchstone v. Touchstone, 682 So. 2d 374,
20
¶35. THE JUDGMENT OF THE MONROE COUNTY CHANCERY COURT IS
REVERSED AND REMANDED ON DIRECT APPEAL AND AFFIRMED ON
CROSS-APPEAL. THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL AND
FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE
WRITTEN OPINION. IRVING, P.J., CONCURS IN PART AND DISSENTS IN
PART WITHOUT SEPARATE WRITTEN OPINION.
380 (Miss. 1996) (“This Court will consider only those matters that actually appear in the
record and does not rely on mere assertions in briefs.”).
21