Ocean Springs Divorce Lawyer – You Must Read This Case!
There’s one case you MUST read if you are getting a divorce.
Heck, even if you are THINKING about a divorce, you MUST read this case.
The case is Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993). The weird numbers after the name of the case is how lawyers find the case in some books or on Westlaw.
Let me tell you the story of what happens in this divorce.
You need to know the background to figure out why the Mississippi Supreme Court ruled the way it ruled.
Ocean Springs Divorce Lawyer – The Armstrong Case Story
Nina Armstrong appeals from final judgment in a divorce ending her 21 year marriage.
She says the failure of the trial court to award her lump sum alimony and adequate, periodic alimony, a portion of her spouse’s pension plan and stock was wrong.
She also says the court’s refusal to award her attorney’s fees and require Mr. Armstrong to pay the second mortgage on the marital residence.
Stanley and Nina Armstrong, married in July of 1971 and, divorced in January of 1992.
They had two kids together, Natalie, age 14, and Allison, age 10. The parties separated in February 1991.
Nina’s subsequently filed divorce complaint and said Stanley committed adultery and sought custody of the children, child support, alimony, possession and title to the marital residence, furniture, and other personal property, as well as attorney’s fees.
Stanley answered, initially denying the divorce grounds charged in Nina’s complaint as well as her right to the requested relief. At trial, however, Stanley did not contest the divorce grounds and sufficient proof was received by the chancellor to sustain his decision that Nina should be granted a divorce because of Stanley’s adultery.
Nina was 18 and Stanley 17 years of age, when they married.
Stanley continued his education at Northwest Junior College and subsequently obtained employment with Dover Elevator Company where he has remained for more than 17 years.
Nina did not continue higher education but devoted her time and efforts toward making a home for the parties, rearing the children, and engaging in part-time work for various employers.
In 1990, Stanley received a gross income of $40,211.90. He received $38,427.48 from his employment with Dover and $1,784.42 from other part-time jobs. Stanley’s net take home pay for 1990 totaled $31,382.21.
Nina’s gross income at the time of trial was $1,163.00 per month received from employment by the resident physicist at the Baptist Hospital Medical Center. A total of $230.20 was deducted each month from Nina’s paycheck for income taxes, social security, hospitalization premium, and parking charges.
Stanley listed his monthly expenses, including his anticipated move to a new apartment, as $1,860.00. Nina listed the monthly expenses of herself and the two children as $2,140.19.
The parties are joint owners of a home, furniture, and furnishings in Southaven. The home is valued at approximately $57,000.00. Two secured instruments of indebtedness on the realty require payments of $223.12 and $70.00 per month, respectively. The parties’ total equity in the home is approximately $34,000.00.
Stanley has a vested pension plan with Dover and owns 26 shares of its stock. The parties were indebted to Sears and Visa in the total sum of $2,404.98.
Upon conclusion of trial proceedings, the court rendered its findings of facts and conclusions of law, which were merged into final judgment awarding Nina a divorce and custody of the two minor children, subject to Stanley’s reasonable rights of visitation.
Stanley was ordered to pay child support of $525.00 per month and to maintain hospitalization insurance for the two children. The parties were ordered to divide and pay equally all medical, dental, and optical expenses of the children not covered by insurance.
Nina was awarded use and possession of the marital home, furniture, and furnishings. Stanley was ordered to pay the Sears and Visa accounts. Stanley’s equity in the home was frozen at $16,500.00.
Nina was ordered to pay the two notes served by mortgages on the home. The trial court declined to award Nina periodic alimony, but ordered Stanley to pay Nina $175.00 per month for two years as “rehabilitative” alimony. No attorney’s fees were awarded.
Nina appeals to the Mississippi Supreme Court and says the trial court judge was wrong because:
(1) The trial court erred in failing to award her adequate periodic alimony;
(2) The trial court erred in refusing to award her lump sum alimony;
(3) The trial court erred in refusing to award her a portion of Stanley’s vested pension plan and stock;
(4) The trial court erred in requiring her to pay the second mortgage on the marital residence; and
(5) The trial court erred in refusing to award her reasonable attorney’s fees.
I listed all that because there’s no way in heck to understand why the Court does what it did in this case unless you know all of that.
So the Mississippi Supreme Court says, the following factors are to be considered by the chancery court judge in arriving at findings and entering judgment for alimony:
1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.
The Mississippi Supreme Court said, that the chancery courts are vested with broad authority to provide for the material needs of spouses incident to divorce.
The Court said there are several general forms of awards. The Mississippi Supreme Court recognized and approved several general types including, but not limited to:
(a) periodic alimony, sometimes called permanent or continuing alimony;
(b) lump sum alimony or alimony in gross;
(c) division of jointly accumulated property;
(d) award of equitable interest in property.
The Mississippi Supreme Court said Periodic alimony terminates automatically upon the death of the person paying it or the death or remarriage of the person getting the money. Periodic alimony may be modified by increasing, decreasing, or terminating the award, in the event of a material change of circumstances subsequent to the order awarding alimony, although self-help is what lawyers call “pretermitted;” that is, a change or modification may be made only upon order of the court.
Lump sum alimony may be payable in a single lump sum or fixed periodic installments.
Lump sum alimony is a final settlement between husband and wife and may not be changed or modified by either party, absent fraud.
Lump sum alimony vests in the person getting the money every month or week or however often when the final judgment making the award and becomes an obligation of the estate of the person paying the money dies if death occurs before payment.
When the Mississippi Supreme Court can’t tell from the trial judge’s order because of the way the order is worded whether the award is periodic or lump sum alimony, the Court will consider that the award is for periodic alimony.
Nevertheless, the Mississippi Supreme Court says it’s inquiry is directed to the substance of the provision and not the label.
Ocean Springs Divorce Lawyer – The Rule About Alimony
The Court said this about the trial judge’s order in Nina’s situation:
“The time-limited alimony award made by the trial court to Nina is a form of lump sum alimony. The puzzling issue in this case, however, is not the type of award, but the chancellor’s action in failing to make the alimony award periodic.”
“Nina, through no fault of her own, is departing a 21 year marriage with primary custodial responsibility for two minor children. She is embarking on a new course in life with little formal education and meager job experience to equip her for her journey.”
Under the facts of this case, equity requires more than the time-limited award. Nina is entitled to periodic alimony as a flexible means of protecting her needs as they arise during her unmarried status, if Stanley is financially able to assist her.”
So the Mississippi Supreme Court said, “We reverse the chancellor’s award of alimony to Nina for the limited period of two years and render an award of periodic alimony to Nina in the sum of $175.00 per month until she dies, remarries, or the award is modified or terminated pursuant to proper order of the trial court.”
What all of this legal mumbo jumbo really means is that you can’t just abandon your spouse and not pay for it.
Why?
Because you can’t leave a spouse with no money and think taxpayers have to pay for that person.
It’s YOUR responsibility.
The trial judge refused to make Nina’s husband pay for her attorney fees.
So the Mississippi Supreme Court said,
“We have said time and time again that an award of attorney’s fees in divorce cases is largely a matter entrusted to the sound discretion of the trial court. Absent an abuse of discretion, the chancellor’s decision in such matters will generally be upheld.
“In this case, the record shows that Nina was a part-time employee when the parties separated as a result of Stanley’s adulterous conduct. She had no separate funds or estate available to pay her attorney and was forced to borrow funds from her parents for this purpose.”
“During trial she testified without contradiction as follows: “My mother and daddy took the money from their savings to hire … my attorney so that we could come to this court.”
“A detailed statement of Nina’s attorney for professional fees in the total sum of $1,275.00 was offered and received in evidence during trial. This statement shows the attorney expended 17 hours on Nina’s case and charged $75.00 per hour for these services.
“The charges were reasonable, proven and undisputed. Under these circumstances, failure to award Nina the reasonable attorney’s fees incurred was an abuse of discretion.”
“We reverse the action of the trial court in refusing the award of such fees and render judgment awarding Nina $1,275.00 for attorney’s fees.”
So, Nina’s husband had to pay for attorney fees.
I know some of this post was legal mumbo jumbo, but you MUST read what I wrote dozens of times.
It is extremely important in figuring out what you get or don’t get from the trial court judge in case you need a divorce lawyer in Ocean Springs.