IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-CA-01227-SCT PATRICK FRANCIS HEITER

v. LINDALY

N HEITER, BY

AND THROUGH THE GUARDIAN OF HER ESTATE, HAIDEE O. SHEFFIELD, ESQ.

DATE OF JUDGMENT: 05/12/2014 TRIAL JUDGE: HON. JAYE A. BRADLEY TRIAL COURT ATTORNEYS: KRISTOPHER W . CARTER MATTHEW PAUL PAVLOV W E NDY C. HOLLINGSW ORTH HAIDEE SHEFFIELD COURT FROM W HICH APPEALED: JACKSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: MATTHEW PAUL PAVLOV ATTORNEY FOR APPELLEE: W E NDY C. HOLLINGSW ORTH NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 06/09/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. RANDOLPH, PRESIDING JUSTICE, FOR THE COURT: ¶1. Patrick Heiter sought to term inate or reduce his a lim o ny obligation. H e claim s error in the chan c e l l o r ’ s f

i nding that he had f

ailed to prove a m aterial change in circum stances since h is divorce f

r om Lindaly

n Heite r t h at would j ustif y term ination or m o dif

i cation of alim ony . Finding no error, we af f irm the judgm ent of

the chancellor. PROCEDURAL HISTORY AND FACTUAL BACKGROUND¶2. The f ollowing procedural history and f acts are taken f

rom the chancellor’s Findings of Facts and Conclusions of Law. The parties divorced

. . . on A u g u s t 2 2 , 2001. As part of this j udgm ent,

. . . Patrick agreed to pay . . . alim ony to Lindaly n at the rate of $650.00 per m o nth. Due t o her dim inished m ental capaci t y , b o t h a n attorney and a Guardian Ad Litem represented Lindaly

n during the divorce. On Septem

ber 12, 2001,

. . . a com

plaint f o r the establishm ent o f guardianship over Lindaly

n [ was f iled due to] Lindaly

n’s dim i nished m ental capacity [ and her inability ] to m anage her own f inancial af

f airs.

. . . [ T]he Court appointed

. . . co-guardians [ f

or] Lindaly

n’s estate. On Novem

ber 2 0, 2009 , t h e C ourt rem oved [ the] c o-guardians o f L indaly n’s estate,

. . . appointed [ B renda Stepro] a s [ Lindaly

n’s] sole guardian of t h e p e r s o n, . . . and

. . . appointed Haidee Shef

f ield [ an attorney ] as the sole guardian of Lindaly n’s estate. On June 27, 2011, P atrick f iled a Com

plaint t o Modif

y Alim ony and Other Relief

. I n h i s Com

plaint, Patrick alleged that Lindaly n was cohabiting with another m a n a n d receiving Social Security Disability benef its i n addition to alim ony . He alleged that a m aterial ch a n ge in circum stances not f oreseen by the parties at the t im e of the d ivo r c e h a d occurred and asked that the Court term inate his alim ony

obligations to Lindaly

n. On Septem

ber 14, 2012, Lindaly

n f iled her Def

endant’s Answer to Com

plaint to Modif y and Other Relief

, Af f irm ative Def

enses and Counterclaim

. S he adm itted that s he had a room m ate wh o was m ale, but d enied that they were cohabiting. S he also denied that she was receiving Social Security Disability benef its.

. . . 1 Lindaly

n also pled a m a terial change in c i rcum stances warranting an increase in alim ony .

. . . On June 6, 2000, bef

ore the divorce was f

i nalized, Lind a l y

n t ook an IQ test.

. . . Further psy c hological e valuation by Daniel Koch in 2011 conf irm ed that Lindaly n had several c ognitive im p airm e n ts. These tests revealed that s he was unable to properly

count m oney

or write checks. She could not coordinate or

1 L in d aly n an d h er m ale ro o m

m ate ap p l i e d f

o r S S I b en e f

its in T en n essee, an d L i n d aly n w as a p p ro v ed

. H o w ev er, af

ter S o c ial S ecu rity d isco v ered th at L i n d aly n h a d reso u rces w h ich e x ceed ed $ 2 ,0 0 0 , it d eterm in e d sh e w as n o t q u alif ied an d ask ed th at L i n d aly n p ay b ack an y b en ef its receiv ed

. 2m anage her t im e pro perly

. . . . Dr. Koch recom m ended that L indaly n w ould m ost likely

need to be in an assisted living situation.

. . . [ Brenda Stepro t estif

ied] that Lindaly

n was c a pable o f com

pleting s m a l l tasks, [ but she] lacked organizational skills. . . . Brenda testif

ied that Lindaly

n attem pted to live on her own im m e diately af ter the divorce, but that [ these] attem pts [ a ll] ended poorly

. 2

. . . In 2006, L indaly

n relocated to Tennessee and m o ved in with

. . . C u rtis Cole.

. . . The $650.00 p er m onth L i n d a ly n receives f

rom alim ony is her only incom e. Her m onthly expenses a re $ 939.00 a m onth.

. . . [ S]he draws m oney f rom the retireme n t f

u n d s she received f

rom the d ivorce. [ At the tim e of the hearing, Lindaly n had] $151,847.40 in one account and $2,460.92 in another. . . . . . . [ I]t is clear that Lindaly n is also unable to m aintain em p loy m ent. . . . There is am

ple evidence that both C urtis and L indaly n are supporting each other f inancially , and that L indaly n would not be able to survive if she d id not share f inances with him

. . . . Lindaly n o nly pay s half o f the r ent and utilities on the house, while Curtis picks up the rem a ining expenses. . . . Curtis is c urrently on disability

and does not work. . . . ¶3. Based on h e r fi n d i n g s , t h e c h ancellor d enied Patrick’s request to term inate his alim ony obligation, denied Lindaly n’s request t o increase Patrick’s alim ony obligation, 3 and granted Lindaly n’s request f

or attorney ’s f

ees.

2 B ren d a testif

ied th at L in d aly

n h ad a h isto ry o f l iv in g w ith h er sister an d th en b o y f rien d s an d th at th ey

“[ to o k ] ad v an tag e o f

[ L in d aly n ] f i n an cially .”

3 The chancellor f

ound that Lindaly

n had f a i led to put f

orth any evidence t o support her counterclaim

f or an increase in alim ony . Lindaly n did not cross-appeal this f inding. 3ANALYSIS

¶4. F i n d i n g s o f a chancellor will not be disturbed o n review unless the c h ancellor wa s “m anif estly wrong, c learly e r r o neous, or applied the wrong legal s tandard.” P owell v. Cam pbell , 912 So. 2d 978, 981 (Miss. 2005). The Court will r eview a chancellor’s j udgm ent f or abuse of discretion. Hotboxxx, LLC v . City o f G ulfport , 154 So. 3d 2 1, 24 (Miss. 2015). “The chancellor is c harged with weighing the e v idence, and this Court will not reverse [ her] determ ination absent m anif est error or an abuse of discretion.” Gillespie v. Gillespie , 594 So. 2d 620, 622 (Miss. 1992). ¶5. Patrick sought to be relieved f r o m p ay ing alim ony to Lindaly n. Patrick alleged that Lindaly n was cohabiting with a m ale and was receiving SSI benef its. Patrick f

urther averred that there had been “a substantial and m aterial change in c ircum s tances since the original decree was entered,” a nd that the original decree should be m odif ied to term inate or reduce his alim ony o b l i g ation. Traditionally , alim ony pay m ents cease only if the receiving party

rem arries or either party

dies. McDonald v. McDonald , 683 S o. 2d 929, 931 (Miss. 1996). However, a chancellor has authority to m odif y alim ony “upon a f

inding o f a s u b s tantial change in circum stances, regardless of any intent e x pressed by the parties to the contrary .” Id. ¶6. In 1 9 6 1 , this Court was f irst f aced w ith whether “ a c h ancery court [ could] divest a wif e of f uture alim ony pay

m ents on the ground of m i sconduct of the wif e a f t er the divorce.”

4Rubisoff v. Rubisoff , 242 Miss. 225, 233, 1 33 S o. 2d 534, 536 (1961). Citing Bunkley and Morse’s Am is on Divorce and S e p a r a tion in Mississippi 4 and 17 Am erican Jurisprudence, Divorce and Separation , the Rubisoff Court concluded that a chancery court could exercise its powers by m odif

y ing or revoking its prior alim ony award. Rubisoff , 242 M iss. at 236, 133 So. 2d at 538. The Court f urther determ ined that “it was the duty of the trier of f acts to determ ine whether or not the alleged m isconduct

. . . was of such nature as to f orf eit [ the] right to f u ture alim o ny . ” Rubisoff , 242 Miss. at 236, 133 So. 2d at 538. ¶7. Twenty y ears later, the i ssue arose again in McRae v. M cRae , 381 So. 2d 1 052 (Miss. 1980). The Court held that “[ n]o hard and f ast rule or m o ld m ay b e laid down to f it at once all of the spectrum of m i sconduct. The ques t i o n mu s t be f aced and determ ined on a case-by -case basis.” M

c Rae , 381 So. 2d at 1055. ¶8. Rely ing on Rubisoff a nd McRae , t h e C o u r t l a t e r a f f i r me d t h e j u d g me n t of

a chancellor who f

ound that a recipient spouse “ had f orf eited her right to f

uture support f

rom appellee b ecause her adm itted adultery du r i n g t h e period f o llowing her divorce was of suf f i cient dura t i o n and f

requency to justif

y the holding of the chancellor.” McHann v. McHann , 383 So. 2 d 8 2 3 , 8 2 6 (Miss. 1980). The Court stated that “[ t]o hold o therwise would be to condone adultery and in e f f ect would penalize a divorcee f or m arry ing but reward her f

or cohabitation without benef i t of m arriage.” Id. ¶9. Our law f

urther evolved in Ham m onds v. Ham m onds , 6 41 So. 2d 1211 ( Miss. 1994), in which the Court h eld that Rubisoff and its progeny “clearly ref l ect a m oral judgm ent that

4 J.W

. Bunkley Jr. & W .E. Morse, B unkle y a nd Morse’s Am is on Divorce and Separation in Mississippi, § 6.12 (1957); 17 Am . Jur. Divorce and Separation , § 755. 5a divorced w om an should not e ngage in sexual relations; the penalty f or s u c h a ctivity is f orf eiture of her right t o support f rom her ex-husband.” H

am m o nds , 641 So. 2d at 1216. The Ham m onds Co u r t d e p a r t ed f rom the prior line o f cases a nd rem anded the case f or the chancellor to c onsider the “f inancial, rather than m oral aspect[ ] of cohabitation” a nd f urther held t h e r e is a “presum

p t ion that the divorced wom an’s p artner/cohabitant is p roviding f inancial support, thereby elim inating or reducing her n eed f or s upport f

rom her ex-husband” unless the unique f

a cts of the case direct otherwise. Id. at 1216-17. T he Ham m onds Court adopted a two-prong test which requ i r e s c h a ncellors to consider whether a third party provides support t o the recipient spouse and whether the recipient s p ouse c ontributes to the support of

the third party

. Id. ¶10. In Ellis v. Ellis , 651 So. 2d 1068 (Miss. 1995), the Court again rem anded a case f or

a chancellor to determ ine (1) if there was c ohabitation, (2) if the ex-wif e was b eing supported by or was supporting her suitor, and ( 3) if her f inancial needs had changed d u e t o the cohabitation and/or support. Ellis , 651 So. 2d at 1074. The Ellis Court c ited a Florida 5 case which stated that cohabitation w ill raise a presum ption of a m aterial change in circum stances, but cohabitation alone does not require an autom atic reduction or term i nation of alim ony . Id. at 1072. ¶11. In Scharwath , this Court of f i c i a l l y a dopted the Florida rule and held “that proof of cohabitation creates a presum p tion th a t a m a t e rial change in circum stances has occurred.” Scharwath v. Scharwath , 702 So. 2d 1210, 1211 (Miss. 1997). This presum ption shif ts the

5 D ePo o rter v. D e

Po o rter , 5 0 9 S o . 2 d 1 1 4 1 (F la. A p p . 1 D ist.1 9 8 7 )

.

6burden to the recipient spouse to produce evidence contradicting mutual f i nancial support. Id. However, the pay ing spouse still m ust show that the cohabitation results in “a situation of m utual s u p p o r

t between the r ecipient spouse and another individual which alters the recipient spouse’s f

inancial needs” bef

ore alim ony

can be m odif

ied. Id. ¶12. At t h e c o n c l u s i on o f the presentation of evidence by Patrick, the chancellor denied Lindaly n’s m otion to dism i ss, satisf ied that P atrick h ad of

f e r e d suf f icient evidence of cohabitation and m

utual support, which required Lindaly n t o of f er e vidence related to m

utual f inancial support. Lindaly

n adm i tted that she l ived with Curtis, but without sexual relations, and that they m

utually supported one another. H owever, she denied that h er f inancial needs h a d b e e n a l tered due to the cohabitation a nd m utual support. Af

ter the parties c onclude d presentation of their proof , the chancellor a nnounced she would take the case under advisem ent and would issue a written opinion. ¶13. The chancellor reviewed the evidence, considered the law, and issued an extensive, nine-page Findings of F act and Conclusions of Law. T he chancellor f ound that Patrick had f ailed to prove that Lindaly n’s f inancial needs were altered by her cohabitation with Curtis

or the m utual support provided b y Curtis. The chancellor f ound that there was no doubt that Lindaly n was receiving m

utual f i nancial support f

rom Curtis. However, the c h ancellor noted that this was a “f

actually unique scenario

. . . i n w h i c h [ L i ndaly n] has no choice but to cohabit[ ] with another individual in o r d e r t o survive.” The testim ony presented b y Brenda Stepro and Haidee Shef

f ield, Dr. Koch’s psy chological report, and evidence of Lindaly n’s

7prior living arrangem ents all s u pport the chancellor’s f inding that L indaly

n m ust live with another person. ¶14. The chancellor held that “[ w]ithout the $650.00 she r eceives f rom P atrick, Lindaly

n would not be able to m eet her f i nancial obligations e ach m onth without accruing

. . . penalties f rom withdrawals on the retirem ent account.” Reviewing the e v idence s ubm itted to the chancellor, there is s u f

f icient proof that the support provided by C urtis to Lindaly n was not enough to justif

y elim inating or reducing Lindaly n’s support f

rom Patrick. W e f

ind that the chancellor did not abuse her discretion in deny ing Patrick’s m otion to term inate or m odif y alim ony . ¶15. Finally , Patrick argued that the chancellor h a d a b u s e d her discretion in awarding Lindaly n her unpaid attorney s’ f

ees. The award of attorney s’ f e es and costs in divorce cases is within the sound discr e t i o n o f the chancellor. Brooks v. Brooks , 652 So. 2d 1113, 1120 (Miss. 1995). W e f

ind the chancellor did not a buse her d i s c retion in f

inding that Lindaly

n presently was unable to pay her attorne y ’ s f ees without withdrawing m oney f rom her retirem ent f

unds and a ccruing penalties and that Lindaly n lacked the m onthly incom e to pay her attorney

. CONCLUSION ¶16. The c h a

ncellor f ollowed this Court’s instruction in reviewing this m atter on a case-by

case basis. In doing so, the chancellor f ound suf f icient evidence that Lindaly n’s needs were
not altered by the support provided by Curtis. The chancellor did not abuse her d iscretion in

8f

ailing to m odif

y alim o ny or in awarding Lindaly n the rem ainder of her unpaid attorney ’s f ees. W e af

f irm the f indings of

the Chancery

Court of Jackson County

. ¶17. AFFIRMED. W A L L E R , C . J . , D I C K

I N S ON, P.J., LAMAR, K ITCHENS, KING, COLEM A N , MAX W ELL AND BEAM, JJ., CONCUR.

9