The opinion of the court was delivered by: Southwick, J. , For The Court:
NANCILEE PEAKS ALEXANDER, APPELLANT v. DANIEL WAYNE ALEXANDER, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: MAY 21, 1996
TRIAL JUDGE: HON. HONORABLE JASON H. FLOYD, JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: MODIFICATION OF CHILD SUPPORT AND ALIMONY PAYMENTS
MOTION FOR REHEARING FILED: 12/15/97 CERTIORARI FILED:
The original opinion is withdrawn and the following is substituted. The motion for rehearing is granted.
Nancilee Peaks Alexander appeals from a judgment of the Chancery Court of Harrison County that granted a modification of the child support and alimony paid by her ex-husband, Daniel Wayne Alexander. Mrs. Alexander alleges that the chancellor committed these errors: (1) reducing the amount of the award of child support; (2) requiring the shared payment of all uncovered medical expenses and costs associated with the education of the minor children; (3) reducing the amount of periodic alimony; and (4) finding that there was a material and substantial change in the circumstances of Mr. Alexander to warrant a modification of the judgment of divorce. We find that the chancellor did not abuse his discretion and therefore affirm.
Nancilee Peaks Alexander and Daniel Wayne Alexander were granted a divorce on February 6, 1995. Mrs. Alexander was awarded custody of the two minor children subject to reasonable visitation by Mr. Alexander. At the time of the divorce, Mr. Alexander was employed as the chief financial officer of American Medical Response (AMR) in Gulfport. Mr. Alexander earned a base salary of $105,000, plus automobile expenses of $13,000 and a potential year-end bonus between $20,000 to $25,000. Under the terms of the divorce decree, Mr. Alexander was required to pay the following: $833.33 per month in child support, plus all insurance, educational, and uncovered medical expenses; periodic alimony in the amount of $500 per month; lump sum alimony of $30,000, payable in monthly installments; and $640 per month of the mortgage payment on the marital residence, which was awarded to Mrs. Alexander.
On February 21, 1996, Mr. Alexander filed a petition for citation for contempt against Mrs. Alexander, alleging that she failed to comply with the visitation order established by the chancery court. *fn1 Mr. Alexander alleged that Mrs. Alexander's conduct was adversely affecting the children and their relationship with him. Mr. Alexander subsequently filed an amended petition for citation for contempt and for modification. In the amended petition, Mr. Alexander asserted that there was a material and substantial change in circumstances, warranting a modification of the award of alimony and child support. Mr. Alexander alleged that the "the stresses of the death of his father, [a] criminal conviction, the divorce from his wife, the health and well being of his son, the stresses of [his] job, and the problems he suffered as a result of the conduct of [Mrs. Alexander]... impacted him to an extent that he had to resign from his position as chief financial officer... and... seek less stressful employment...." Consequently, Mr. Alexander resigned from his employment at American Medical Response and accepted a position with the Central Ambulance Company in Marietta, Georgia. Based on a starting salary of $40,000 per year with the possibility of a fifteen percent increase in salary after four months, Mr. Alexander contended that he was not able to financially comply with the original provisions in the divorce decree.
Mrs. Alexander answered the petition and admitted that she did not permit the scheduled visitation. However, Mrs. Alexander asserted that she was acting in the best interest of the child when she refused to allow the visitation because the child was ill. Furthermore, Mrs. Alexander filed a counter-complaint against Mr. Alexander, alleging that he failed to administer properly the child's required medication. Among other things, Mrs. Alexander requested that the chancery court modify the summer visitation schedule, correct a distribution of proceeds from a retirement plan, enjoin Mr. Alexander from any and all contact and harassment, direct the parties to consult a certified public accountant to resolve appropriate deductions, and find Mr. Alexander in willful contempt for his failure to pay for all debts incurred during the marriage.
Following a hearing, the chancellor entered a partial order and granted Mrs. Alexander's request for a modification of the summer visitation schedule and a correction of the retirement plan. The chancellor granted Mr. Alexander the tax deduction from the liquidation of the assets and ordered him to abide by the doctor's orders and the prescription instructions. The court also found that neither party was in contempt of court and the parties were responsible for their own attorney fees. Finally, the chancellor reserved ruling and took under advisement all matters relating to the modification of child support and alimony.
In his final opinion, the chancellor noted that the period of time between the divorce and the request for modification was suspicious. However, the chancellor found that Mr. Alexander did not act in bad faith and held that the change in jobs was not done to avoid the support obligations. The chancellor commented that Mr. Alexander's current annual salary of approximately $40,000 was more reflective of the salary he earned during the majority of the marriage. Although the chancellor concluded that Mr. Alexander made a conscious and voluntary decision to lower his income while aware of his financial responsibilities, the chancellor also found that the stress endured by Mr. Alexander may not have been anticipated with certainty at the time of the divorce. Additionally, the chancellor determined that Mrs. Alexander's refusal to cooperate and follow the dictates of the divorce decree contributed to Mr. Alexander's level of stress.
Relying on the child support award guidelines, the court reduced the amount of child support from $833.33 to $500 per month. The chancellor stated that he ordered an amount slightly higher than the dictates of the guidelines based upon the needs of the children and the total reduction in support. The court also required Mr. Alexander to continue paying all insurance costs; however, the court reduced his obligation to pay all of the costs of education. The chancellor determined that Mrs. Alexander should be responsible for one-half of the educational and uncovered medical expenses. Finally, due to Mr. Alexander's diminished earning capacity and an increase in Mrs. Alexander's potential earning capacity, the court temporarily reduced Mr. Alexander's periodic alimony obligation from $500 to $200 per month until he paid the ...