IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01658-COA CHARLES D. EASTERLING APPELLANT

v. LAJUANA EASTERLING APPELLEE DATE OF JUDGMENT: 08/08/2016 TRIAL JUDGE: HON. SUSAN RHEA SHELDON COURT FROM W HICH APPEALED: PERRY COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: PHILLIP LLOYD LONDEREE ATTORNEY FOR APPELLEE: S. CHRISTOPHER FARRIS NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED: 02/20/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. This case considers the chancellor’s denial of a m otion to reconsider a judgm ent that granted a m o dif

ication of alim ony pay m ents. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Charles D. Easterling and Lajuana Easterling had been m arried f o r thirty -seven y ears when they were divorced on January 23, 2013. They entered into a property -settlem ent
agreem ent that stipulated the term s of their divorce. Am ong the term s, Charles was required

to pay m onthly pe r i o d i c a l i m ony in the am o unt of $ 2,500 to Lajuana; Lajuana retained
p o s s e s s ion of the m arital h om e; and Charles was obligated to pay the m onthly note o n t h e hom e.¶3. Prior to and a t the tim e of the divorce, Charles worked as a tool pusher f or Ensco, an of f -shore oi l-drilling contractor. Af ter the divorce, Charles rem a rried, and he now has an adopted d a

ughter and two stepchildren who reside in his hom e . However, Charles testif ied that due to circum stances in the oil industry b ey ond his control, he was term i nated f rom Ensco in 2015. Charles t estif ied that he was without a r egular incom e . H e s aid that he had

attem pted to f ind other em

ploy m ent in t he oil industry , but to n o avail. He f urther testif

ied that he picked up odd jobs when available. ¶4. On August 13, 2 0 1 5 , C h a r l e s f i l e d a c o m

plaint f or m odif ication of his alim ony obligation. A hearing was held with both Charles and Lajuana in attendance on Decem ber 2, 2 015. There was no record or written order of the proceedings. But each party agreed that the court tem

p orarily reduced Charles’s alim ony obligation to $600 per m o nth. F r o m t h a t date u ntil the f

i nal judgm ent, C harles paid the reduced am ount of alim ony and ceased

m onthly pay

m ents on the hom e-equity line of credit, which f orced Lajuana to begin pay ing the interest on the m ortgage. ¶5. A trial was held on May 10, 2016. The chancellor f ound that Charles’s term ination f rom Ensco was a n unanticipated, unf oreseen loss of e m

ploy m e nt bey ond h i s c o n trol that resulted i n a substantial m ate rial c hange in circum stances. Theref ore, the chancellor then

a n a l y zed t he Armstrong f actors and granted Charles a perm anent reduction of his alim ony pay m ents to $1,500 per m onth. ¶6. Charles t h e n f

i l e d a mo t i o n to reconsider a nd asked the chancellor to com pletely elim inate his alim ony

obligation. The m otion was denied, and Charles has appealed.

2ANALYSIS

¶7. C h a r l e s a r g u e s t h a t t h e c o mp l ete loss of his incom e justif ies either the tota l elim ination o f his alim ony obligation, or a greater d ecrease in his alim o ny obligation than the chancellor granted. Charles claim s that his f inances are so im m ediately f inite that at this rate, within f o ur y e ars, he will be sixty -f ive y ears old and destitute, m aking c o m pliance with the judgm ent thereaf

ter im possible. ¶8. W h en requesting m o d i fi cation of a previously ordered alim ony award, chancellors are vested w ith general statutory authority to m odif y divorce decrees a nd m ake “new decrees as the case m ay r e quire.” M iss. Code Ann. § 93-5-23 (Rev. 2013). W ithin this broad authority is the m ore specif

ic p ower t o increase, decreas e , o r term inate periodic alim ony pay m ents. Hubbard v. Hubbard , 656 S o. 2 d 124, 129 (Miss

. 1 9 9 5 )

. “Unless t he chancellor is in

m anif est error and abused h er d iscretion, we will not reverse.” P eterson v. Peterson , 129 So. 3d 255, 257 (¶5) (Miss. C t

. App. 2013) (citing Armstrong v. A rmstrong , 618 So. 2d 1278, 1280 (Miss. 1993)). “In the case of a claim ed inadequacy or outright denial of alim ony , we will interf ere only where the decision is seen as so o ppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Armstrong , 618 So. 2d at 1280. ¶9. W h en considering a party ’s p e t i t i o n t o mo d i f y or term inate an award o f periodic alim ony , a chancellor m

ust f irst determ ine whether “an unf oreseeable and m aterial change in circum stances o ccurred since entry of the i nitial divorce decree.” Peterson , 129 So. 3d at 257 ( ¶7) (citing Holcombe v. Holcombe , 813 So. 2 d 700, 703 (¶11) (Miss. 2002)). “The change in circu ms t a n c e m ust not be anticipated by the parties at the tim e of the original

3decree.” Holcombe , 813 So. 2d at 703 ( ¶11). If no unf oreseeable and m aterial change has occurred, then a m odif

i cation o f the alim ony award is im proper. Peterson , 129 So. 3d at 257 (¶7). ¶10. Once “a substantial unanticipated change has in f act occurred, the c hancellor should then consider t he Armstrong f actors to d eterm ine the appropriate am ount of a lim o ny .” Id.

at (¶8) (f o o tnote om itted) (citing Holcombe , 813 So. 2d at 703 (¶12)). W hen a naly zing these f actors and “deciding whether to m odif y periodic alim ony ,” chancellors should “com par[ e] the relative positions of

the parties at the tim e of

the request f

or m o dif ication in relation to their p ositions at the tim e of the divo r c e decree.” Steiner v. Steiner , 788 So. 2d 771, 776 (¶16) (Miss. 2001) ( citations o m itted). As in a ll alim ony -m o dif ication cases, “[ a]lim ony , if allowed, should be r easonable in am o u n t , c o m m e n s u r a t e w i t h t h e w i fe ’ s accustom ed standard of living, m inus her own resources, and considering t he ability of the husband t o pay .” Gray

v. G ray , 562 So. 2d 79, 8 3 (Miss. 1990). “ [ A]lim ony awards in excess [ of ] a spouse’s ability

to pay are ‘

per se unreasonable

. ’ ” S h e f field v. Sheffield , 55 So. 3d 1142, 1 145 (¶9) (Miss. Ct. App. 2011) (quoting Y elverton v. Y

elverton , 961 So. 2d 19, 28 (¶18) (Miss. 2007)). ¶11. Here, t he chancellor’s f inal judgm ent f

ound that Charles’s “decrease in incom e f rom his loss o f em

ploy m ent was not anticipated at the tim e of the divorce and is a m a t erial change in circum stances[ , but]

. . . the loss of em ploy m ent does n ot jus t i f

y a t erm ination of alim ony [ .]” Af

ter w hich, the chancellor considered t he Armstrong f actors t o determ ine the
proper am ount of

alim ony . S

ee Holcombe , 813 So. 2d at 703-04 (¶12). ¶12. “Personal b ills cannot be u s e d a s a f a c t o r to reduce support pay m ents.” Hardin v.

4Grantham , 201 So. 3 d 511, 515 ( ¶15) (Miss. Ct. App. 2 016). Since the divorce, C harles has

acquired a new hom e a n d l a n d , and has rem arried and a dopted one child and has two stepchildren. T he l aw is clear that the c laim of the divorced wif e under a n alim ony award

on the ex-husband’s earnings t akes precedence over that of a second wif e. D e M arco v. De
Marco , 199 Miss. 165, 167, 24 S o. 2d 3 58, 359 (1946). T he obligations to the f i rst wif e also take precedence over any obligations the ex-husband m ay have as the result of children with his new w if

e. James v. J

ames , 724 So. 2d 1098, 1104 (¶ 22) (Miss. Ct. App. 1 998). As a result, C harles’s post-divorce personal bills a nd rem arriage cannot b e u s e d a s f actors to reduce his support pay

m ents. See Hardin , 201 So. 3d at 515 (¶15). ¶13. Further, the c hancellor considered the Armstrong f actors and concluded that Charles had not m i ssed any pay

m ents on his m onthly f

inancial obligations s ince the divorce. Despite having been f

i red and claim ing t h a t h e was in f inancial j eopardy b ecause of his alim ony obligation, all of his d ebts w ere current and there was n o risk o f f oreclosure o r repossession

at the tim e of the hearing. Charles argues that he was current on a ll of h is debts only because he took on additional credit-card debt through cash a d vances in o rder to m ake the pay m ents. However, “sim

ply alleging, a s does [ Charles], that one is subsisting o n borrowed f unds does

not show with the required particularity that h e is unable to pay .” Varner v. Varner , 666 So. 2d 493, 497 (Miss. 1995). ¶14. At the tim e of trial, Charles held m ore than $ 400,000 in s t ocks and an a nnuity , along with r eal property , v ehicles, and other assets. Here h e argues t hat h e will run out of m oney within f o ur y ears i f he is f

orced to p ay $1,500 a m onth i n alim ony , $120 a m o nth in m ortgage

5pay

m ents— including retroactive pay m ents on e a ch—and his reported $ 7,574.56 i n m onthly
expenses. If this were the case, at that rate without any other incom e, Charles would be rendered destitute regardless of the court-required support pay m ents. ¶15. At the hearing, Charles could m ake his obli g a t o r y a l i mo ny pay m ents t o Lajuana, whose living expenses a nd needs have rem ained unchanged since the d ivorce. The suprem e court has held: [ i]n property and f

inancial m atters between the divorcing spouses them selves, there is no question that, absent f raud or o verreaching, the parties s h o u ld be allowed broad latitude. W hen t he parties have reached [ an] agreem e nt and the chancery court h as approved it, we ought to enf o rce i t a nd take as dim a view of e f f orts to m o dif

y it, as we ordinarily do when persons seek relief f rom their im p rovident contracts.
W eathersby v. W

eathersby , 693 S o. 2d 1348, 1351 (Miss. 1997) ( quoting Bell v
. Bell , 572 So. 2d 841, 844 (Miss. 1990)). ¶16. “[ T]he chancellor has substantial discretion in r e a c h i n g a decision that [ she] f inds equitable and f

air to both parties.” Seale v. Seale , 863 So. 2d 996, 999 (¶14) ( Miss. Ct. App. 2004). The chancellor determ ined that Lajuana had been substantially dependent upon both her disability pay

m ents and t he a lim ony pay m ents f rom Charles since the divorce to m eet her

m onthly living expenses. Her f inancial situation has not changed. A s a result of Charles’s

m aterial c h a n g e i n circum s t ances, the chancellor concluded that a $1,000 reduction in his alim ony o bligation was warranted. W e f ind the chancellor’s reduction in the a m ount of the alim ony was neither m anif est error nor an a

buse of discretion. The chancellor’s j udgm ent is af f irm ed. ¶17. AFFIRMED

. 6LEE, C . J . , I R V I N G , P . J . , B A R

N E S , C A R L T O N , F A I R, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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