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Cook v. Cook

Court of Appeals of Mississippi

March 25, 2014

JAY ALAN COOK, APPELLANT/CROSS-APPELLEE
v.
MERCEDES JOSEPHINE PERALTA COOK, APPELLEE/CROSS-APPELLANT

COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CHANCERY COURT. DATE OF JUDGMENT: 06/18/2012. TRIAL JUDGE: HON. DEBORAH J. GAMBRELL. TRIAL COURT GRANTED REQUEST FOR MODIFICATION OF PERIODIC-ALIMONY OBLIGATION.

DISPOSITION: AFFIRMED.

FOR APPELLANT: G. GERALD CRUTHIRD, PEGGY HIRSCHEY WILLIAMS.

FOR APPELLEE: JACK PARSONS, TADD PARSONS.

BEFORE GRIFFIS, P.J., ISHEE AND CARLTON, JJ. LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. GRIFFIS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 840

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

CARLTON, J.

¶1. A final judgment entered by the Pearl River County Chancery Court granted Jay and Mercedes Cook an irreconcilable-differences divorce and ordered Jay to pay Mercedes a monthly sum of $800 as periodic alimony. Following a hearing on Jay's second request to terminate or, in the alternative, to reduce or suspend his periodic-alimony payments due to a material change in circumstances and Mercedes's second request to increase the payments, the chancellor reduced the payments to $600 a month. Jay appeals and asserts that the chancellor erred by failing to apply the proper legal standard to the modification of Jay's alimony obligation. Mercedes cross-appeals and argues that the chancellor erred in finding Jay was entitled to a reduction in alimony when Jay was in contempt of court and did not come before the chancellor with clean hands. Finding no abuse of discretion and that the chancellor's findings are supported by substantial evidence in the record, we affirm.[1]

FACTS

¶2. Jay and Mercedes Cook married in March 1985 and separated in December 2000. They had no children from their marriage. The couple divorced pursuant to a final divorce decree rendered in Pearl River County Chancery Court on June 30, 2003. Jay was ordered to pay Mercedes $800 each month as periodic alimony for the period of time that Mercedes was determined to be eligible to receive Social Security disability benefits.

¶3. Jay remarried in November 2003 and began living with his current wife, Cynthia, and her two sons. Jay claims that after the national and local economy began to significantly decline in 2008, he fell behind in his alimony payments. The arrearages in these payments led Mercedes to file contempt proceedings against Jay in March 2009. Jay claims that he borrowed money from his family to make payments for the arrearages in the following amounts: $3,000 on September 24, 2009; $11,900 on October 22, 2009; and $4,000 on April 9, 2010. After the October 22, 2009 payment, Jay filed a complaint for modification of the divorce decree.

¶4. On March 25, 2010, the chancellor held proceedings on Jay's first request to terminate, reduce, or suspend the alimony payments and on Mercedes's request to increase the payments. Jay submitted his annual gross income since 2003: $50,290 for 2003; $58,686 for 2004; $67,274 for 2005; $58,010 for 2006; $49,112 for 2007; $44,800 for 2008; and $56,000 for 2009. After a hearing on the matter, the chancellor entered a judgment on April 21, 2010. Finding that no material change in circumstances had occurred to warrant a reduction, suspension, or termination of Jay's periodic-alimony payments and that no circumstances existed to justify an increase in the payments, the chancellor dismissed the parties' requests.

¶5. In his brief, Jay asserts that at the time of the chancellor's first ruling on his request, he made an approximate annual salary of $40,000 working for his family's business, Curtis Cook Enterprises Inc. (Curtis Cook). He states that at that time he also worked for Hollywood Casino, owned a commercial car-wash business, and had an approximate net monthly income of $3,600. Jay further asserts that during 2011 he lost his income from the family business and his commercial business and that he took a position with Dollar General as a manager at one of the company's stores, where he made approximately $40,000 a year.

Page 841

¶6. On May 16, 2012, a hearing began on Jay's second request for termination, or in the alternative, suspension or reduction of his monthly alimony obligation. Jay testified at the modification hearing that he lost his employment with Curtis Cook in July 2011, at which point he had earned $24,616 for 2011; that he left his employment with Dollar General in August 2011, at which point he had earned $18,249.66 for 2011; and that he took a position with Blakeney Construction LLC (Blakeney Construction), which required him to travel to construction sites in Minnesota and North Dakota and paid an average of $1,633.69 per week.

¶7. The chancellor also stated that further testimony by Jay " revealed that [Jay] had regular employment from January 1, 2012[,] until becoming employed . . . in early May 2012" as a manager in training with Quality Restaurant Concepts, doing business as Applebee's.[2] According to Jay's financial declaration, his monthly net income amounted to $1,785.88; his total assets were valued at $16,200; and his liabilities were valued at $61,225.25. In addition, Jay testified that he lost his car-wash business and his home to foreclosure.

¶8. Jay also testified at the hearing that he rents a home near his parents, who suffer from physical and mental infirmities, and acts as their primary caregiver. Jay further stated that since the previous modification hearing on March 25, 2010, he had not had any disposable or available income with which to satisfy his alimony payments and did not presently have the financial resources to pay his family's necessary monthly expenses.

¶9. Mercedes also provided testimony to show the following: she receives $1,127 each month in Social Security benefits due to disabilities existing at the time of the parties' divorce; she babysits her grandchildren and, in return, her son helps purchase tires and pay other expenses for her vehicle; she lives in subsidized housing because of her disability and barely has sufficient funds for herself; and she cannot work as a dental hygienist due to Hepatitis C ...


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