Before Thomas, P.j., Coleman, And Hinkebein, JJ.
The opinion of the court was delivered by: Coleman, J.,
DATE OF JUDGMENT: 01/21/97
TRIAL JUDGE: HON. J. N. RANDALL JR.
COURT FROM WHICH APPEALED: HANCOCK COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: ALIMONY AWARD REDUCED
DISPOSITION: AFFIRMED - 12/18/98
¶1. In its judgment granting the appellant and appellee a divorce on the grounds of irreconcilable differences rendered on May 20, 1993, the Chancery Court of Hancock County ordered the appellant, Luke L. James to pay his wife, Frances C. James, the appellee, "the sum of $1,500.00 per month as periodic alimony beginning March 1, 1993 . . . ." More than two years later, Mr. James filed a petition for modification in which he "request[ed] that the Court terminate his alimony obligation or in the alternative reduce it to $250.00 per month." Pursuant to a hearing on Mr. James's petition for modification, the chancellor entered a judgment nunc pro tunc on January 21, 1997, in which he reduced Mr. James's alimony payment from $1,500 per month to $1, 300 per month beginning November 1, 1996. Mr. James's only issue in this appeal is the following, which we quote verbatim from the statement of issues contained in his brief:
THE TRIAL COURT ERRED IN NOT ALLOWING THE PLAINTIFF A GREATER REDUCTION IN HIS ALIMONY OBLIGATION BASED UPON THE SUBSTANTIAL WEIGHT OF THE EVIDENCE.
We affirm the judgment nunc pro tunc of the Chancery Court of Hancock County.
¶2. Mr. James and Mrs. James married on June 23, 1961. When they separated in July of 1991, the Jameses were living in Venezuela, where Mr. James was employed by Diamond Offshore Management Co. According to Mr. James's W-2 for 1993, the year in which the chancery court granted the Jameses their divorce, Mr. James's total compensation was $113,992.98. Included in this sum were his employer's payment of Mr. James's housing, utilities, and automobile expenses as "benefits" totaling $38,687. However, Mr. James's federal income tax return for 1993 indicated that he received a foreign earned income deduction of $79,126. That deduction combined with other deductions and credits resulted in Mr. James's paying no federal income tax for the year 1993. He paid state income tax to Mississippi in the amount of $3,655 and other tax in the amount of $18,816 to Venezuela. In 1993, Ms. James reported earnings paid by Bill's Dollar Stores, Inc., in the amount of $2,378; thus, Ms. James did not pay tax on her income to the United States or to Mississippi.
¶3. After the chancery court granted the Jameses their divorce on May 20, 1993, Mr. James continued to work in Venezuela and later in Vietnam, where he continued to receive income exceeding $100,000 annually and to enjoy a foreign earned income deduction. However, in 1996 his employer transferred Mr. James to Houston, Texas, where he began working in the domestic division of his employer. With Mr. James's transfer to Houston came a marked reduction in his income. According to his employer's statement of income, Mr. James earned $6,697.43 per month, or $80,369.16 annually. Mr. James's transfer to the domestic division of Diamond Offshore and his return to Houston resulted in his loss of the foreign earned income deduction. Mr. James married a second time and had a new daughter by 1996. After the divorce, Ms. James returned to her former employment as a store manager, only now she worked for Dollar Tree Stores, Inc. According to Ms. James's W-2 form for 1995, Dollar Tree Stores paid her $22,954.87 in that year.
II. POST-DIVORCE LITIGATION
¶4. The record contains the chancellor's bench opinion which he rendered on March 1, 1993, precedent to his entry of the judgment of divorce dated May 20, 1993. In his bench opinion, the chancellor opined, "Should Mr. James . . . change jobs or come back from Venezuela and take a stateside job earning substantially less, then a motion to modify any periodic alimony certainly would be appropriate." Mr. James filed a petition for modification on October 10, 1995, in which he requested the chancery court to "terminate his alimony obligation or in the alternative reduce it to $250.00 per month." Mr. James based his request on "a material change in circumstances that has adversely affected [his] ability to meet his monthly obligation of $1,500.00 as alimony . . . ." Mr. James included in his material change in circumstances the following facts: (1) his remarriage, to which his seven-month-old daughter had been born, (2) his loss of "a substantial amount of fringe benefits [including] housing paid for, automobile paid for, [and] no tax liability," (3) his base salary of $80,000 "from which he will be required to pay all of his housing expenses, taxes, [and] automobile expenses . . . .," and Ms. James's "making a substantial salary that she was not making at the time of the divorce" because she was "presently employed as a manager of a store." Ms. James responded to her former husband's petition for modification by filing her response to it, in which she generally denied her husband's allegations. She also filed a "counter-complaint," in which she counterclaimed for her attorney's fees.
¶5. Mr. and Ms. James were the only witnesses who testified during the hearing which the chancery court conducted on Mr. James's petition for modification and Ms. James's response and "counter-complaint." Mr. James introduced into evidence the deposition of his certified public accountant regarding Mr. James's personal income and tax liabilities for the years 1993, when the Jameses were divorced, through 1996, the year in which the chancery court heard this case. We reserve further review of their testimony for our analysis and resolution of Mr. James's issue which he presents to us in this case.
¶6. Pursuant to its hearing on the merits of the Jameses' pleadings, the chancellor entered a judgment nunc pro tunc in which he found that Mr. James's "1996 projected gross income [was] $68,053.00" and that Mr. James would "have to pay $8,402.00 in state and federal income tax for a net income of $59,651.00 or $4,970.91 per month." About Ms. James's income the chancellor found that she had "a gross monthly income of $2,000.00 and approximate net disposable income of $1,500.00." Based upon his findings of respective income for Mr. and Ms. James, the chancellor concluded that there had been a material and substantial change in their circumstances and then adjudicated as follows:
The net income of the petitioner, Luke L. James, as determined in the original hearing has remained approximately the same. However, he no longer has the benefits that he had while he was working overseas such as housing, utilities and a provided automobile. The respondent, Frances C. James, has had an increase in her monthly income of $667.00 per month or approximately a 45% increase. Therefore, the Court finds that the previous judgment entered in the cause should be modified by decreasing [Mr. James's] monthly alimony payments from $1,500.00 per month to $1,300.00 per month beginning November 1, 1996 and on the first day of each month thereafter until further order of the Court.
¶7. The chancellor also found that Mr. James was "in arrears in the payment of his alimony in the amount of $6,000.00," and thus found Mr. James to be "in civil contempt of this Court" and awarded unto Ms. James a judgment in the amount of $6,000. The chancellor further ordered that Mr. James pay alimony to his former wife at the new rate ...