IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 98-CA-00471-COA

DONALD SCOTT MURRAY APPELLANT

v.

SARA BAILEY MURRAY APPELLEE

DATE OF JUDGMENT: 03/09/1998

TRIAL JUDGE: HON. PAT WISE

COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT

ATTORNEYS FOR APPELLANT: JAMES D. BELL

MELISSA C. PATTERSON

EDUARDO ALBERTO FLECHAS

ATTORNEYS FOR APPELLEE: LESLIE R. BROWN

REX FOSTER

MARK A. CHINN

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

TRIAL COURT DISPOSITION: DENIAL OF APPELLANT'S MOTION FOR

MODIFICATION OF ALIMONY AND CHILD SUPPORT

PAYMENTS.

DISPOSITION: AFFIRMED: 5/4/99

MOTION FOR REHEARING FILED:

CERTIORARI FILED: 7/6/99

MANDATE ISSUED: 5/25/99

BEFORE BRIDGES, P.J., COLEMAN, AND IRVING, JJ.

BRIDGES, P.J., FOR THE COURT:

¶1. Dr. Donald Scott Murray (Dr. Murray) appeals to this court from a judgment of the Chancery Court of

the First Judicial District of Hinds County, Mississippi which denied his motion for modification to reduce

child support and alimony payments and granted Sara Bailey Murray's (Sara) motion for attorney's fees.

Aggrieved by the chancellor's ruling, Dr. Murray argues that the chancellor erred in (1) failing to reduce his
alimony and child support payments based upon his eighty percent reduction in income, (2) failing to label

the alimony payments to Sara Murray as rehabilitative periodic alimony, and (3) granting attorney's fees to

Sara Murray. Finding no merit to the issues raised, we affirm.

FACTS

¶2. Dr. Murray and Sara were married on May 31, 1980, in Jackson, Hinds County, Mississippi. The

parties were granted a divorce, based on irreconcilable differences, on March 28, 1994. The terms of the

child custody agreement were incorporated into the final judgement and specified that Sara would have

primary physical custody of their four minor children with liberal visitation rights in favor of Dr. Murray.

Additionally, Dr. Murray was ordered to pay $4,000 per month in child support and $2,000 per month

lump sum alimony. The judgment further ordered Dr. Murray to pay the following: one-half of the medical,

doctor, and dental expenses not covered by insurance; life insurance in the amount of $350,000; private

school tuition; $10,000 in lump sum alimony; and a $150,000 retirement account for Sara.

¶3. On February 13, 1996, Dr. Murray filed a complaint to modify the original judgement of divorce, and

Sara counterclaimed for sanction for contempt. The chancery court determined that the lump sum alimony

provision could not be modified. The court also found that there had been a substantial and material change

in circumstances since the entry of the judgment of March, 1994. The chancellor noted that Dr. Murray had

a reduction in income and had lost his River Oaks contract. Subsequently, the chancery court modified the

child support payments to $2,736 per month.

¶4. On February 13, 1997, Dr. Murray filed a second motion for modification of the final judgment of

divorce asking the court to reduce his child support and alimony payments. Sara filed a counter-motion

asking the court to increase child support payments and to award attorney's fees. The chancery court

determined that the alimony was lump sum alimony and cannot be modified. After reviewing additional

financial information, the court also found that there was not a substantial material change in circumstances

since Dr. Murray's first petition for modification in March1996. Subsequently, the chancery court also

denied modification of the child support payments. Additionally, the court determined that Sara did not have

the ability to pay her attorney's fees. The court therefore ordered Dr. Murray to pay part of Sara's attorneys

fees in the amount of $9,000. Feeling aggrieved, Dr. Murray has filed this appeal, and Sara has requested

that this Court award her double costs for having to defend a frivolous action.

ARGUMENT AND DISCUSSION OF LAW

I. WHETHER THE CHANCELLOR ERRED IN FAILING TO REDUCE DR. MURRAY'S

ALIMONY AND CHILD SUPPORT PAYMENTS BASED UPON HIS EIGHTY PERCENT

REDUCTION IN INCOME.

II. WHETHER THE CHANCELLOR ERRED IN FAILING TO LABEL THE ALIMONY

PAYMENTS TO SARA MURRAY AS REHABILITATIVE ALIMONY.

¶5. Since these issues are so closely related, we will discuss them together.

¶6. Dr. Murray appeals arguing that there has been a substantial, material change that warrants a reduction

in his alimony and child support payments. Dr. Murray contends that between March 1996 and February

1997, his income declined causing his tax and support obligations to exceed his actual income. Dr. Murray

argues that his reduction in income was not voluntary or in bad faith. Sara contends that Dr. Murray's
reduction in income was voluntary and did not constitute a material change in circumstances.

Did the chancellor err by failing to label Dr. Murray's alimony payments as rehabilitative

alimony and by failing to reduce those payments?

¶7. Dr. Murray argues that the alimony decree should be labeled rehabilitative alimony rather than lump sum

because the provision has characteristics of both periodic and lump sum alimony. Specifically, Dr. Murray

contends that the alimony provision meets the qualifications of rehabilitative alimony because it has the

following characteristics: in part, it is affected by remarriage; it ends upon the death of Sara; it is tax

deductible to Dr. Murray; it does not vest until it accrues; and it does not specifically state that the

"husband" cannot modify the award. Dr. Murray further argues that his reduction in income is a substantial

change in circumstance that warrants a reduction in his alimony payments.

¶8. The chancellor is afforded wide discretion in alimony cases, and this discretion will not be reversed on

appeal unless the chancellor was manifestly in error in his finding of fact and abused his discretion.

Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). The supreme court has held that periodic

alimony is subject to modification and ceases upon the wife's remarriage or upon the husband's death.

McDonald v. McDonald, 683 So. 2d 929, 931 (Miss. 1996). Lump sum alimony, however, constitutes a

fixed liability which is not subject to modification. Id.

The rule of law providing for the modification of periodic alimony awards arises from the nature of

alimony itself, which is based upon the inherently changing financial ability of the husband to support

his wife in a manner to which she is accustomed. As a result, the Chancellors of this state have the

authority to modify periodic alimony awards upon a finding of a substantial change in circumstances,

regardless of any intent expressed by the parties.

In the case of lump sum alimony, however, said alimony is not considered to be in the nature of

continuing support, but rather a property transfer which is vested in the recipient spouse at the time

said alimony is awarded. As such, considerations of the payor spouse's financial circumstances are

irrelevant, given that an order for lump sum alimony provides the recipient spouse with a vested right

to receive said payments. The fact that payments of lump sum alimony are often paid in installments

may give said payments a superficial similarity to payments of periodic alimony, but said fact does not

change the vested, non-modifiable nature thereof.

Id. (citations omitted).

¶9. In this case, the provision at issue reads as follows:

The Husband agrees to pay to the Wife as a form of lump sum alimony the sum of Two Thousand

Dollars ($2,000.00) per month for a period of fifteen (15) years, beginning March 1, 1994, and

continuing on or about the first date of each and every month thereafter for a total of 180 months;

provided further, however, that if the Wife should remarry at any time during said fifteen (15) year

period of time, the Husband will then be allowed to reduce the lump sum installment payments by One

Thousand Dollars ($1,000.00) per month over and during the balance of the remaining years. It is

further understood and agreed by and between the parties that said payments cannot be increased

and/or extended by the Wife under any circumstances, and if the Wife should die at any time within

the next fifteen (15) years, said payments shall cease and terminate and shall not be payable to her
estate. It is further understood and agreed by and between the parties that said payments shall be

treated as income to the Wife and shall, therefore, be deductible to the Husband for income tax

purposes.

Dr. Murray argues that, although the language in the provision clearly states lump sum, this is really

rehabilitative alimony. Rehabilitative alimony has been defined as modifiable, for a fixed period of time, and

vesting as it accrues. Hubbard v. Hubbard, 656 So. 2d 124, 129 (Miss. 1995). The court in Hubbard

also stated that "While both rehabilitative periodic alimony and lump sum alimony which is not paid all at

once can share the same characteristics of being a certain amount of money paid over a definite period of

time, they are distinguishable in their modifiability, respective purposes, and by the intent for which the

chancellor grants them." Id.

¶10. The chancellor determined that this provision is lump sum alimony and quoted, "[a] fixed and certain

sum of money which is due and payable over a definite period of time is clearly alimony in gross, or lump

sum alimony, and not periodic alimony." Hubbard v. Hubbard, 656 So. 2d 124, 130 (Miss. 1995);

Holleman v. Holleman, 527 So. 2d 90, 92 (Miss. 1988); Wray v. Wray, 394 So. 2d 1341, 1345 (Miss

1981). The chancellor found that the express language of the judgment provided for lump sum alimony, not

periodic alimony. The chancellor further found that the alimony award followed negotiations by Dr. Murray

and Sara and was incorporated into the final divorce decree specifically as lump sum alimony and therefore

not modifiable. It is this Court's opinion that although there may be certain characteristics of rehabilitative

alimony in this provision, the clear language of this judgement provides that the alimony is intended by the

parties to be lump sum alimony, not periodic alimony or rehabilitative alimony.

¶11. In McDonald, the supreme court stated, "When possible, it would be advisable for parties and judges

to pattern their alimony agreements and decrees for non-modifiable lump sum alimony according to

established precedent of this Court." McDonald, 683 So. 2d at 932. "Simple draftsmanship on the part of

attorneys in their preparation of divorce decrees can clearly differentiate between the two types of awards,

and thereby obviate the necessity of courts having to pass upon this question." Wray, 394 So. 2d at 1345.

¶12. Accordingly, the chancellor is affirmed in his finding that the payments set at $2,000 per month for a

fifteen year period constituted lump sum alimony and cannot be modified. The chancellor did not err by not

ordering a reduction in Dr. Murray's alimony payments. Accordingly, there is no merit to this issue.

Did the chancellor err in failing to reduce Dr. Murray's child support payments?

¶13. Dr. Murray argues that there have been substantial, material changes in his financial situation since the

reduction of his child support payments in 1996 that warrant a further reduction in those payments.

Specifically, Dr. Murray contends that between March 1996 and February 1997, his tax and support

obligations exceeded his income. Dr. Murray further argues that after taxes, required support, and farm

losses, he has nothing to live on.

¶14. In order to justify the modification of the child support provisions of a divorce decree, the moving

party must show that there has been a material or substantial change in the circumstances of one of the

parties. Shipley v. Ferguson, 638 So. 2d 1295, 1298 (Miss. 1994); McEachern v. McEachern, 605 So.

2d 809, 813 (Miss. 1992). The chancellor is afforded broad discretion in the modification of child support,

and we will reverse "only when he is manifestly wrong in his finding of facts or has abused his discretion."

Bruce v. Bruce, 687 So. 2d 1199, 1202 (Miss. 1996).
¶15. In this case, after reviewing Dr. Murray's additional financial information, the chancellor determined

that there had not been a material change in circumstances since the first petition for modification in March

1996. The chancellor found that Dr. Murray was still a practicing member of the medical profession and

that his financial situation was still solid. The chancellor also noted that just eighteen months earlier, the court

had reduced Dr. Murray's payments to $2,736 per month and a further reduction was not supported by the

evidence. The record shows that there is substantial evidence to support the findings made by the

chancellor. After reviewing Dr. Murray's financial condition, an accountant testified that Dr. Murray's

professional income decreased from $401,000 in 1994 to $112,000 in 1997. The accountant also testified

that Dr. Murray sold $65,330 in assets, withdrew $30,000 from his retirement account, and has only his

retirement account to pay for living expenses. The accountant noted that early withdrawal from his

retirement account would require Dr. Murray to pay additional taxes. However, the record further shows

after the modification in March 1996, Dr. Murray leased a Ford Explorer valued at $29,000, bought a

Ford truck for $35,657, represented on an application to purchase the truck that his gross income was

$200,000, and bought equipment, cattle, and horses for his farm.

¶16. After weighing all evidence, the chancellor found that there was not a substantial or material change in

circumstances, and the chancery court denied Dr. Murray's petition for modification. We are satisfied that

the chancellor had substantial evidence to support her findings, and the chancery court did not err by failing

to reduce the child support payments. Accordingly, there is no merit to this issue.

III. WHETHER THE CHANCELLOR ERRED IN GRANTING ATTORNEY'S FEES TO

SARA MURRAY.

¶17. The award of attorney fees in a divorce case is left to the sound discretion of the chancellor, assuming

he follows the appropriate guidelines. Spalding v. Spalding, 691 So. 2d 435, 439 (Miss. 1997). Before

such fees can be awarded, as well as the amount of such fees, the court should consider "the relative

financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and

novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the

management of the cause, the time and labor required, the usual and customary charge in the community,

and the preclusion of other employment of the attorney due to the acceptance of the case." McKee v.

McKee, 418 So. 2d 764, 767 (Miss. 1982). Furthermore, it must be shown that the party requesting

attorney's fees has no ability to pay her own attorney's fees. Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss.

1992). On appeal, we will not disturb the chancellor's decision regarding attorney fees, unless the

chancellor abused his discretion or is manifestly wrong. Sarver v. Sarver, 687 So. 2d 749, 755 (Miss.

1997).

¶18. Dr. Murray argues that Sara has sufficient assets and income to pay reasonable attorney's fees. Dr.

Murray contends that Sara offered no proof that she was unable to pay, and the chancellor committed

manifest error by granting attorney's fees. We are reluctant to disturb a chancellor's discretionary

determination whether to award attorney's fees and the amount of any award. In this case, the chancellor

determined that Sara was entitled to partial attorney's fees in the amount of $9,000. The record shows that

the chancellor considered the McKee factors by finding the amount to be reasonable and necessary based

on the complexity of the case, the amount of work, and the billing activities. McKee, 418 So. 2d at 767.

The chancellor also determined that Mrs. Murray was unable to pay attorney's fees and should not be

required to withdraw money from an IRA set aside for retirement in order to pay those fees. The record

also shows that Sara testified that she was unable to pay attorney's fees and could not pay those fees
without withdrawing money from her IRA account. Considering the record, we cannot say that the

chancellor abused his discretion by awarding Sara partial attorney's fees. Accordingly, we find no merit to

this issue.

IV. MS. MURRAY SHOULD BE AWARDED DOUBLE COSTS FOR HAVING TO DEFEND

THE FRIVOLOUS ACTION OF HAVING THE COURT CONSIDER WHETHER LUMP SUM

ALIMONY MAY BE MODIFIED.

¶19. Sara argues that the chancery court in two separate orders expressed that lump sum alimony may not

be modified, and Dr. Murray is attempting to harass her by asking the court to modify the alimony

payments. Sara contends that this is a frivolous appeal, and she should be allowed double costs for

defending this appeal as allowed under Rule 38 of the Mississippi Rules of Appellate Procedure. M.R.A.P.

38.

¶20. Sanctions are warranted under Rule 11 in the Mississippi Rules of Civil Procedure when "the pleading

or motion is (1) frivolous or (2) is filed for the purpose of harassment or delay." M.R.C.P. 11(b). The

Mississippi Supreme Court has held that "a pleading or motion is frivolous within the meaning of Rule 11

only when, objectively speaking, the pleader or movant has no hope of success." Tricon Metals &

Services, Inc. v. Topp, 537 So. 2d 1331, 1335 (Miss. 1989). The Mississippi Supreme Court has also

held that "'where a plaintiff has a viable claim, the complaint cannot be deemed as filed for the purpose of

harassment.'" Stringer v. Lucas, 608 So. 2d 1351, 1359 (Miss. 1992)(quoting Bean v. Broussard, 587

So. 2d 908, 913 (Miss. 1991)). The fact that a case is weak does not necessarily mean that it is frivolous

or filed to harass. Nichols v. Munn, 565 So. 2d 1132, 1137 (Miss. 1990); Brown v. Hartford Insurance

Co., 606 So. 2d 122,127 (Miss. 1992).

¶21. Under the facts in this case, the appellant has a viable claim concerning the type of alimony awarded in

the final judgment of divorce. Although Sara contends that Dr. Murray is attempting to harass her by filing a

frivolous appeal, it is the opinion of this Court that the appellant's appeal is not frivolous and the appellee

should not be awarded double costs.

¶22. THE JUDGMENT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY

CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE

APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., COLEMAN, DIAZ, IRVING, LEE,

PAYNE, AND THOMAS, JJ., CONCUR.