IN THE MATTER OF DISSOLUTION OF THE MARRIAGE OF KAREN CONWAY LEWIS AND ADAM ISAAC LEWIS: ADAM ISAAC LEWIS APPELLANT
KAREN CONWAY LEWIS APPELLEE
OF JUDGMENT: 07/11/2016
COUNTY CHANCERY COURT HON. CYNTHIA L. BREWER
MICHAEL J. MALOUF ROBERT EUGENE JONES II ATTORNEYS FOR
ROBERT WHITE JR. PAMELA GUREN BACH ATTORNEYS FOR APPELLEE
Adam Isaac Lewis alleges that his obligation to pay alimony
to his ex-wife Karen Conway Lewis should be terminated
because Karen is cohabiting or in a de facto marriage with
her longtime boyfriend. Adam's complaint to terminate
alimony proceeded to trial, and after Adam rested his case,
the chancellor found that he had not met his burden of proof
and dismissed his complaint pursuant to Mississippi Rule of
Civil Procedure 41(b). The chancellor also awarded Karen half
of the attorney's fees that she incurred defending the
case. Adam challenges both the dismissal of his complaint and
the award of attorney's fees to Karen. We affirm the
dismissal of Adam's complaint because the chancellor did
not clearly or manifestly err by finding that Adam failed to
meet his burden of proof. However, we reverse and render the
award of attorney's fees because it is clear that Karen
is financially able to pay her own attorney.
AND PROCEDURAL HISTORY
Adam and Karen were married in 1989 and were granted an
irreconcilable differences divorce in 2002. The final
judgment of divorce incorporated the parties' child
custody and property settlement agreement, which granted
Karen physical custody of the couple's four minor
children. The agreement provided that Adam would pay
Karen $15, 000 per month as "permanent periodic
alimony." The agreement stipulated that alimony was
"modifiable" and would terminate upon Karen's
remarriage or death or upon Adam's death. The agreement
further stated that alimony was based on Adam's
"projected business net income of $700, 000 per
year." In 2012, an agreed judgment was entered modifying
Adam's child support obligations and requiring Adam to
disclose his tax returns to Karen each year.
In 2015, Adam filed a complaint alleging that his obligation
to pay alimony should be terminated because "[Karen] has
substantial savings and/or other investments, is well
educated and fully capable of supporting herself, but refuses
to do so." The complaint further alleged that Adam's
alimony permitted Karen to "enjoy a life of leisure
without gainful employment, while being romantically involved
and living with another man all at [Adam's]
expense." Karen answered, denied Adam's allegations,
requested attorney's fees, and filed a counterclaim
alleging that Adam was in contempt because he had failed to
disclose his tax returns as required by the 2012 agreed
judgment. Karen later withdrew her counterclaim for contempt
after Adam disclosed his tax returns.
Adam's complaint for modification was tried on June 30,
2016. Adam testified that he originally agreed to pay Karen
alimony of $15, 000 per month because he wanted her to be
able to stay in the marital home, which carried a substantial
mortgage payment. However, Karen subsequently moved out of
the marital home and into a smaller house.
Adam testified that shortly after their divorce in 2002,
Karen began dating Steven Dobel. According to Adam, Karen and
Dobel had vacationed together on many occasions and even
bought a vacation home together in Maine in 2010 or 2011;
however, Karen sold her interest in the home after Adam
confronted her about it. Adam also testified that Dobel gave
Karen a diamond ring that she once wore on her ring finger;
however, it had been "several years" since Adam had
seen Karen wear the ring. Adam acknowledged that Karen and
Dobel own and live in their own homes and do not spend nights
at each other's houses; however, he alleged that they
spend their days together and even "take . . . nap[s] in
the same bed." Adam acknowledged that his testimony was
based primarily on what others had told him. Adam also
admitted that he had no evidence that Dobel financially
supported Karen or vice versa. Nonetheless, Adam claimed that
Karen and Dobel were in a "de facto marriage"
because they had held "themselves out as a couple for
the last fifteen years, " went on "trips with each
other, " and did not "date other people."
Adam testified that since his divorce from Karen, he had
married and divorced the same woman three times. He was
paying her alimony of $10, 000 per month for forty-eight
months and child support of $1, 000 per month for one child.
He also had a child by another woman, whom he paid child
support of $1, 200 per month.
Adam is a neurosurgeon. He acknowledged that he has earned at
least $700, 000 every year since he divorced Karen. He
reported income of $2, 209, 451 in 2012, $2, 514, 479 in
2013, and $1, 848, 930 in 2014, and he testified that his
income in 2015 was approximately $5, 000, 000. However, he
testified that only about $1, 000, 000 of his 2015 income was
from his medical practice, and the rest was from a sale of a
medical device company. Adam testified that he expects his
income to decrease in the future.
Karen has not worked outside the home since her first child
was born in 1990. Alimony is her only material source of
income. She owns a home valued at approximately $600, 000
with no mortgage. She also has a twenty-five percent interest
in three family vacation homes. She has checking and savings
accounts with a combined balance of $152, 277, investment
accounts with a combined balance of $24, 851, and a
retirement account with a balance of $54, 819.
Adam rested his case without presenting any testimony other
than his own. Karen then moved to dismiss his complaint
pursuant to Mississippi Rule of Civil Procedure 41(b),
arguing that Adam had failed to meet his burden of proving a
de facto marriage or cohabitation. The chancellor agreed that
Adam had failed to meet his burden of proof, commenting that
his evidence consisted of "assumptions and/or . . .
hearsay." Therefore, the chancellor granted Karen's
motion to dismiss.
Karen then proceeded on her request for attorney's fees.
She offered her attorney's affidavit and invoices showing
that she had incurred total attorney's fees of $27,
870.99, she had paid her attorney $15, 698.49 of that amount,
and her current balance due was $12, 172.50. The chancellor
found that Karen "is of a financial standing in the
court system that is not often seen and is capable of
providing some of her own defense costs, " so the
chancellor denied her request for the full amount of her
attorney's fees. However, the chancellor found that Karen
was "entitled to receive compensation for the
requirement that she come in and defend herself."
Therefore, the chancellor awarded Karen half of the
attorney's fees that she requested ($13, 935.50).
Adam filed a timely motion for reconsideration on all issues,
and Karen filed a timely motion for reconsideration of the
denial of half of her attorney's fees. The chancellor
denied both motions, and Adam filed a timely notice of
On appeal, Adam argues that the chancellor erred by granting
Karen's motion to dismiss because he met his burden of
proving cohabitation, a de facto marriage, or some other
material change in circumstances. Adam also argues that the
chancellor erred by awarding attorney's fees. We address
these issues in turn below.
Rule 41(b) Dismissal
In a bench trial, after the plaintiff "has completed the
presentation of his evidence, the defendant . . . may move
for a dismissal on the ground that upon the facts and the law
the plaintiff has shown no right to relief." M.R.C.P.
41(b). A motion for involuntary dismissal under Rule 41(b) is
different from a motion for a directed verdict, which is made
only in a jury trial. Ladner v. Stone Cty., 938
So.2d 270, 273 (¶9) (Miss. Ct. App. 2006). "This
distinction must be understood, because the standard of
review for a dismissal is different than that for a directed
In ruling on a Rule 41(b) motion to dismiss, "[t]he
judge must consider the evidence fairly, rather than
in the light most favorable to the plaintiff, " as would
be the case on a motion for a directed verdict or a motion
for summary judgment. Century 21 Deep S. Props. Ltd. v.
Corson, 612 So.2d 359, 369 (Miss. 1992) (emphasis
added). That is, the trial judge should give the
plaintiff's evidence only "such weight and
credibility as he would ascribe to it if he were making
findings of fact and rendering final judgment." Gray
v. Alumax Extrusions Inc., 477 So.2d 1355, 1356-57
(Miss. 1985). If the judge "would find for the
defendant" on the evidence presented, "the case
should be dismissed." Corson, 612 So.2d at 369.
"[T]he motion should be granted if the plaintiff has
failed to prove one or more essential elements of his claim
or if the quality of the proof offered is insufficient to
sustain the plaintiff's burden of proof." Buelow
v. Glidewell, 757 So.2d 216, 220 (¶12) (Miss.
2000). "The ...