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CHARLES WILLIAM TAYLOR v. JUANITA B. TAYLOR

OCTOBER 30, 1985

CHARLES WILLIAM TAYLOR
v.
JUANITA B. TAYLOR



BEFORE PATTERSON, C.J., PRATHER & SULLIVAN, JJ.

PATTERSON, CHIEF JUSTICE, FOR THE COURT:

This is an appeal from the Chancery Court of the First Judicial District of Hinds County dismissing a motion for modification of a divorce decree.

The material facts are not in dispute.

 On January 20, 1981, Juanita Taylor was granted a divorce from Charles Taylor on the grounds of irreconcilable differences. Two children were born of this marriage: a daughter, a married adult at the time of the divorce; and a son, Charles W. Taylor, II, who is emancipated but physically incapacitated and confined to a wheelchair. He resides with his father.

 The final divorce decree incorporated by reference a separation and property settlement agreement which contained, among other things, the following:

 1. That Charles Taylor did thereby convey to Juanita Taylor one-half of his undivided interest in and to all property and rights in Dixie Gas Company so that Juanita Taylor would thereafter own an undivided one-fourth interest in and

 to said Dixie Gas Company partnership.

 2. That: "It is further understood and agreed that Juanita Taylor shall receive at least the sum of $1,500.00 per month out of her share of the profits of Dixie Gas Company beginning with the month of January, 1981. Said Charles W. Taylor shall do all things necessary to see that all available profits shall be regularly distributed so that Juanita Taylor receives said sum."

 3. That Charles Taylor would have the exclusive use, benefit and control of the home of the parties situated in Hinds County, "for so long as Charles William Taylor, II, needs the use of said home because of his present physical disabilities."

 In March of 1983, Mr. Taylor filed a motion for modification alleging there had been a material change of facts and circumstances since the rendition of the final decree. He requested an award of a reasonable monthly sum for the support and maintenance of their disabled son who was residing with him, or, alternatively, a re-adjustment of the equities in the award of alimony being paid to Mrs. Taylor. The change in circumstances alleged that Taylor had relinquished all of his interest in Dixie Gas Company to his former wife and former business partner, and therefore had little or no income from any source. In answer to interrogatory questions Taylor stated the average sum of money expended monthly for the care of his son amounted to $2,305.03 while the money available for him through social security benefits totalled $504.00 per month plus hospital care expenses.

 In response to this motion respondent filed a motion for summary judgment. She contended the chancellor lacked jurisdiction to modify the decree regarding child support and alimony because the settlement agreement contained no provisions for them. The motion was overruled.

 On July 15, 1983, Mrs. Taylor filed a motion for judgment on the pleadings pursuant to Miss. R. Civ. P. 12 (c). The primary ground asserted was the motion for modification failed to state a cause of action upon which relief could be granted.

 The motion was sustained, while acknowledging that Charles W. Taylor, II was in need of medical attention and unable to support himself, the lower court held there was no provision for child support in the divorce decree inasmuch as both children were emancipated. The chancellor also found there was no alimony provision in the decree, and therefore modification was inappropriate.

 The issue of whether the court could order either party to contribute to the support and well being of their adult son was resolved negatively, the court recognizing "a strong moral duty for both husband and wife to help care for a needy child," but not a corresponding legal duty. The lower court, therefore, sustained Mrs. Taylor's Miss. R. Civ. P. 12 (c) Motion ...


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