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In re Dissolution of Marriage of Lewis

Court of Appeals of Mississippi

March 20, 2018


          DATE OF JUDGMENT: 07/11/2016




         EN BANC

          WILSON, J.,

         ¶1. 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.


         ¶2. 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.[1] 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.

         ¶3. 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.

         ¶4. 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.

         ¶5. 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."

         ¶6. 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.

         ¶7. 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.

         ¶8. 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.

         ¶9. 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.

         ¶10. 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).

         ¶11. 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 appeal.


         ¶12. 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.

         I. Rule 41(b) Dismissal

         ¶13. 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 verdict." Id.

         ¶14. 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 (ΒΆ12) (Miss. 2000). "The ...

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