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PAUL J. O'NEILL v. AVIS O'NEILL

JANUARY 28, 1987

PAUL J. O'NEILL
v.
AVIS O'NEILL



BEFORE ROY NOBLE LEE, P.J., AND PRATHER AND ANDERSON, JJ.

ANDERSON, JUSTICE, FOR THE COURT:

The question before the Court is whether the chancellor abused his discretion in granting appellee relief from certain obligations imposed by a former decree and placing these obligations upon the appellant. We find that there was no abuse of discretion and so we affirm.

This appeal arises from the chancellor's modification of a former decree of divorce between the parties that gave appellee custody of the parties' minor child and exclusive use and possession of the marital home and directed her to make the mortage payments.

 In September 1983, appellee and the child removed their residence to another state with permission of the court, but failed to petition the court to remove the requirement that she pay the mortgage notes. In the December 1984 modification decree, the chancellor' held that as a matter of equity the wife was relieved of the obligation to make mortgage payments due on the marital home after

 November 1, 1983. The chancellor further ruled that the appellant/husband was liable for the payments after November 1, 1983, since he had moved into the home in September - immediately after the wife's departure (without permission of the court) and has continually occupied the premises.

 The court also awarded $500 attorney's fees to appellee. It is from these rulings that appellant prosecutes this appeal.

 DISCUSSION OF LAW

 ASSIGNMENT OF ERROR NO. I: DID THE CHANCERY COURT HAVE POWER TO ADJUDGE THAT THE HUSBAND WAS RESPONSIBLE FOR PAYMENT OF MONTHLY MORTGAGE PAYMENTS AND OTHER AMOUNTS WHICH THE WIFE WAS OBLIGATED TO PAY UNDER THE DECREE OF FINAL DIVORCE.

 Appellant relies upon Rubisoff v. Rubisoff, 133 So. 2d 534 (Miss. 1961) in support of his claim that the obligation of appellee to make the mortgage payments had vested as an obligation by the appellee and as a benefit to appellant and the chancellor's application of equitable considerations was improper.

 In Rubisoff, the Court basically held that installments of alimony became fixed and vested when due as set out in the decree and the chancellor was in error in reducing the amount of past due installments. The case at bar is distinguished from Rubisoff in that we are not here concerned with alimony payments.

 Clearly payment of the mortgage notes by the appellee were intended to run as benefits to the child and not to the appellant. Moreover, Rubisoff went on to say that the rule announced in that case does not mean that the chancery court cannot adjust equities and claims against such judgments.

 Appellant also cites Hambrick v. Prestwood, 382 So. 2d 474, (Miss. 1980), wherein this Court held that past due installments of child support to the custodial parent become vested as they become due and cannot thereafter be reduced. Again, appellant cannot claim rights in the payment as child support, especially in light of the fact that he is the non-custodial parent.

 In Alexander v. Alexander, 494 So. 2d 365 (Miss. 1986), the appellant was directed in the final decree to pay child support to appellee for the benefit of their

 minor child. The child subsequently moved in with the appellant who ceased making child support payments to the appellee and made them directly to the child. Appellee then sought to hold appellant in contempt and require him to make back payments to her in view of the fact that appellant had failed to petition the ...


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