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Voda v. Voda

January 21, 1999

JANIS VODA
v.
ANDREW B. VODA



The opinion of the court was delivered by: Mills, Justice

DATE OF JUDGMENT: 12/30/96

TRIAL JUDGE: HON. MICHAEL L. CARR, JR.

COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

AFFIRMED

EN BANC.

¶1. From a judgment of divorce in the Jackson County Chancery Court, Janis Voda appeals. She complains of the failure to properly weigh appropriate factors while refusing to grant lump sum alimony, periodic alimony, rehabilitative alimony, or attorney's fees. Although the chancellor failed to detail his consideration of the alimony factors in this case, we do not find this error fatal to the decision. Janis specifically raises the following issues:

"I. WHETHER THE LOWER COURT ERRED IN REFUSING TO AWARD JANIS VODA PERIODIC OR REHABILITATIVE ALIMONY

II. WHETHER THE LOWER COURT ERRED IN FAILING TO APPLY THE APPROPRIATE FACTORS TO DETERMINE WHETHER OR NOT TO AWARD LUMP SUM ALIMONY AND PERIODIC ALIMONY

III. WHETHER THE LOWER COURT IN MANIFEST ERROR IN DIVIDING THE PARTIES' RETIREMENT ASSETS

IV. WHETHER THE LOWER COURT IN ERROR WHEN IT DENIED JANIS VODA'S REQUEST FOR ATTORNEY'S FEES"

STATEMENT OF FACTS

¶2. Andy and Janis Voda were married on July 27, 1985, and finally separated in October 1994. Two children were born during the marriage: Britini, born September 29, 1987, and Garret born February 24, 1992. A divorce was granted to Janis on the ground of statutory adultery on October 7, 1996.

¶3. At the time of trial, Janis was 35 years old and held a Bachelor's degree in Polymer Science from the University of Southern Mississippi. She had worked at Ingalls Shipyard for $24,000 per year before Garret was born. Andy was working as a salesperson for Lokring, Inc. His salary consisted of a base of $35,000 per year, a $6,000 per year auto allowance, and a 2% sales commission. Janis estimates his total income is around $50,000. The couple owned two pieces of property. A lot and house were purchased in 1993 and Andy lived there during a previous separation. The couple paid $33,100 for the property. At trial, it had an outstanding debt of $28,833. The couple also owned a debt-free lot on Margie Moore Street purchased for $25,000.

¶4. Janis and Andy both have retirement accounts. At the time of trial, Janis's account contained $16,555.40 and Andy's account contained $48,251.41. Andy also noted that Janis took control of two brokerage accounts worth $3937.50 at separation. The couple had a joint bank account which contained $20,000. Janis took $10,000 out of this account and paid her parents for what she considered a loan to purchase the Margie Moore property.

¶5. At the time of separation, Andy was driving a 1991 Toyota with $7,300 equity. Janis was driving a 1983 Nissan Maxima station wagon which she did not insure and later wrecked. After the separation, Janis incurred $2,000 worth of credit card bills and $4,800 in attorney's fees. At trial, Andy was still liable for $1,300-$1,400 for family medical bills.

¶6. The chancellor (1) ordered Andy to pay $600 per month in child support, (2) ratified the agreement of the parties as to personal property, (3) ordered Andy to continue to provide health insurance for Janis for 18 months, (4) gave the Margie Moore property and the two stock brokerage accounts to Janis, (5) gave the Criswell Street property to Andy, (6) gave each party a deduction for a child on their income tax, (7) denied Janis's request for attorney's fees, (8) awarded each party their respective 401(k) plans, (9) ordered Andy to be responsible for the credit card debt, (10) and awarded each party one life insurance policy. On motion to reconsider, Andy agreed and was ordered to pay Janis $208 per month for 9 months so that she could purchase an automobile.

I. WHETHER THE LOWER COURT ERRED IN REFUSING TO AWARD JANIS VODA PERIODIC OR REHABILITATIVE ALIMONY

II. WHETHER THE LOWER COURT ERRED IN FAILING TO APPLY THE APPROPRIATE FACTORS TO DETERMINE WHETHER OR NOT TO AWARD LUMP SUM ALIMONY AND PERIODIC ALIMONY

¶7. Our standard of review for an award of alimony is very clear. Such

awards are left to the discretion of the chancellor. Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993)(citing McEachern v. McEachern, 605 So. 2d 809, 814 (Miss. 1992); Cherry v. Cherry, 593 So. 2d 13, 19 (Miss. 1991)). Unless the chancellor is in manifest error and abused his discretion, we will not reverse. Id. (citing Powers v. Powers, 568 So. 2d 255, 257 (Miss. 1990); Carpenter v. Carpenter, 519 So. 2d 891, 894-95 (Miss. 1988); McNally v. McNally, 516 So. 2d 499, 501 (Miss. 1987); Massey v. Massey, 475 So. 2d 802 (Miss. 1985); Hopton v. Hopton, 342 So.2d 1298, 1300 (Miss. 1977)).

¶8. The standard is the same for periodic and rehabilitative alimony. Rehabilitative alimony is simply a variation, an additional tool to be used in the chancellor's discretion. Hubbard v. Hubbard, 656 So. 2d 124, 130 (Miss. 1995). Rehabilitative alimony provides for a party who is trying to become self-supporting and prevents that party from becoming destitute while searching for a means of income. Id. Rehabilitative alimony is for a fixed period in contrast to periodic alimony which is for an indefinite period. Id.

ΒΆ9. Lump sum alimony is a final settlement between husband and wife which cannot be modified absent fraud. Armstrong, 618 So. 2d at 1281. Lump sum alimony may be paid all at ...


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