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Peterson v. Peterson

Court of Appeals of Mississippi

November 19, 2013

Richard Ward PETERSON, Appellant/Cross-Appellee
v.
Josephine C. PETERSON, Appellee/Cross-Appellant.

Page 256

Clifford C. Whitney III, J. Mack Varner, Vicksburg, attorneys for appellant.

Mel J. Breeden Jr., Jackson, attorney for appellee.

Before IRVING, P.J., ISHEE, MAXWELL and FAIR, JJ.

MAXWELL, J.

¶ 1. Five years after Richard Peterson's divorce from his wife Josephine, health problems forced his retirement. Because his income had substantially decreased, he sought a reduction of his alimony obligation. And the chancellor granted a modification, reducing his periodic alimony from $2,500 to $1,800 per month. On appeal, Josephine insists any downward modification of alimony was inappropriate because Richard's retirement was anticipated. However, Richard counters, arguing that not only were his disabling injuries and resulting retirement unforseen, but also the $700 reduction was simply not enough.

¶ 2. We agree with the chancellor that Richard's unanticipated, health-based retirement was an after-arising, material change in circumstances. So an alimony modification and reduction was appropriate. But it is not apparent that the chancellor considered Richard's ability to pay the decreased award, since the unchallenged figures representing each party's income and expenses show Richard suffers an almost $1,000 monthly deficit after paying alimony. Thus, we must remand for the chancellor to consider Richard's ability to pay this amount, or any amount of alimony, while maintaining as normal a life as possible with a decent standard of living.

Facts and Procedural History

¶ 3. On July 21, 2005, Richard and Josephine's thirty-three-year marriage ended in divorce. The chancellor found there were irreconcilable differences between the couple and ordered Richard to pay Josephine $2,500 in monthly periodic alimony. At the time of the 2005 divorce, Richard (then fifty-eight years of age) worked full time as a civilian engineer with the Army Corps of Engineers in Vicksburg, Mississippi. According to Richard, he planned to work until he reached at least age seventy-five. But unexpected health problems forced him to retire at the age of sixty-four. (Richard's doctor, Dr. Paul Pierce, testified at trial that Richard was totally and permanently disabled.) As a result, on October 19, 2010, Richard petitioned to reduce or terminate his alimony obligation.

¶ 4. On January 3, 2012, the chancellor entered an order decreasing Richard's monthly alimony obligation from $2,500 to $1,800. Richard appealed, arguing the reduction was not enough. And Josephine cross-appealed, insisting Richard's retirement was foreseeable, so the alimony obligation should not have been modified, or alternatively, that the reduced obligation should be affirmed.

Standard of Review

¶ 5. An award of " [a]limony, if allowed, should be reasonable in amount, commensurate with the wife's accustomed standard of living, minus her own resources, and considering the ability of the

Page 257

husband to pay. " Gray v. Gray, 562 So.2d 79, 83 (Miss.1990) (emphasis added). " The amount of an alimony award is largely within the discretion of the chancellor[.]" Magee v. Magee, 754 So.2d 1275, 1279 (¶ 7) (Miss.Ct.App.1999). Unless the chancellor is in manifest error and abused her discretion, we will not reverse. 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)).

Discussion

I. Chancellor's Decision to Reduce Alimony ...


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