IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01758-COA BRIAN KORELITZ APPELLANT

v. RUTH’E KORELITZ APPELLEE
DATE OF JUDGMENT: 11/06/2015 TRIAL JUDGE: HON. ROBERT GEORGE CLARK III COURT FROM W HICH APPEALED: MADISON COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: ROBERT MARVIN PEEBLES MATTHEW STANLEY EASTERLING MARTY CRAIG ROBERTSON ATTORNEY FOR APPELLEE: AMY D. JORDAN NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: DENIED MODIFICATION OF FINAL JUDGMENT FOR DIVORCE DISPOSITION: AFFIRMED - 05/09/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ. ISHEE, J., FOR THE COURT: ¶1. In March 2006, B r i a n K o relitz and Ruth’e Korelitz were g ranted a d ivorce by the Madison C ounty C hancery Court. As p a rt of the divorce, Brian and Ruth’e entered into a written p roperty -settlem ent agreem ent. The alim ony provision of the agreem ent originally contained t h e w o r d “ p e riodic” six tim e s. But af ter negotiations b etween the parties, each instance of “periodic” was stricken through a nd initialed by both parties. Additionally , there

was a handwritten clause stating t h a t t h e alim ony p rovision of the agreem ent was

nonm o dif i able. This was also initialed by both parties.¶2. In August 2 014, alleging a de f acto m arriag e o f R

u t h ’e, Brian initiated an action to

term inate his a lim ony o bligation. Alternatively , Brian asked t he court to m odif y h is alim ony

on the ground that he had e xperienced a substantial decrease in his incom e. The chancellor
f ound t h a t t h e a lim ony provision was to be classif ied a s lum

p-sum alim ony

—and thus not subject to m odif

ication. Brian appeals. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶3. In 2 0 0 6 , B r i a n a n d R u th’e agreed to a n irreconcilable-dif f erences divorce. Their
agreem ent relating to child custody , child s upport, a nd property settlem ent was ref lected in a docum ent that was executed on March 2, 2006. ¶4. The a l i mo n y p r o v i s i on of the agreem ent, which is a t issue in t his case, reads as
f ollows:
A. Periodic Alim o ny . [ B rian] agrees to p ay u nto [ Ruth’e] as periodic alim ony the m onthly sum o f $2,850.00 per m onth, beginning the f irst day of the m onth im m e diately

f ollowing execution of this Agreem ent f or a period of thirty

- six (36) m o nths, reducing to $2,600.00 f or a period of thirty -six (36) mo n ths, [ a n d ] r e d u c ing to $2,100.00 f or a period of thirty -six (36) m onths. Periodic [ A]lim ony shall then r educe to $1,750.00 until Septem ber 1, 2 019, or [ Brian’s] retirem ent, whichever o ccurs later, whereupon p eriodic alim ony shall c ease. Said periodic a lim ony shall be pay able o ne-half on the 1st a n d one-half o n the 15th of each m onth. In addition, such periodic alim ony shall cease u pon the rem arriage of [ Ruth’e] o r u p on the death of either party [ ,] whichever occurs f irst. The pay

m e nts shall be deductible by [ Brian] and includable as incom e by [ Ruth’e], b oth f

or state and f

ederal incom e t ax purposes. [ Handwritten addition a s f

ollows:] Said payments are further non-modifiable, except as s et forth herein above

. ¶5. The word “ periodic” w as initially inserted into the alim ony p aragraph six tim es. But, in the course of negotiations by the parties, the word w as later stricken through and initialed by the parties, in e very place the word appeared. A lso, there was a handwritten statem ent at

2the end of the alim ony provision that stated: “Said pay m ents are f

urthe r n o n - mo dif

iable, except as set f

orth hereinabove.” This change was also initialed by both parties. ¶6. Additionally , a ccording t o the term s o f t he a greem ent, Brian agreed to assure alim ony
pay m ents by m a intaining certain insurance policies as f ollows:
A. [ Brian] agrees to m a int a i n i n f u l l f orce and ef

f ect a policy or p olicies of insurance on his lif

e that will provide at least $400,000.00 in death benef its f or the benef

it of [ Ruth’e] a s long as he is r equired to pay alim ony

. . . . D. In addition, in order to assure the pay m ent of

. . . alim ony , [ Brian] shall m a intain i n fu l l f

orce and ef

f ect disability insurance coverage p roviding benef its o f not less than $4,200.00 per m onth as long as . . . [ Brian] is obligated to pay

alim ony to [ Ruth’e] . . . . ¶7. Following the divorce, Ruth’e and Lee, the parties’ son, m oved to Calif ornia. W hile there, Ruth’e m et, a nd began a r o ma n t i c r elationship with, Michael Rideout. R uth’e and Michael cohabited in her Calif ornia apartm e nt f

rom Septem

ber 2007 t o m id-February 2008. ¶8. In February 2008, R uth’e and M i c h a e l l e f

t C a l i f ornia and m o ved to Hot Springs, Arkansas. They lived i n separate residences, but continued their sexual relationship. Ruth’e and M ichael m aintained separate bank accounts, and Ruth’e was solely r esponsible f or her hom e repairs, lawn, m onthly utility bills, and m ortgage. ¶9. On August 29, 2014, Brian f iled a com p laint f or t erm ination o f his alim ony obligation under the agreem e nt. B rian sought the term ination o n the b asis t h a t R u t h ’ e and Michael cohabited and entered into a de f acto m arriage. Alternatively , he asked the court to m odif y his alim ony pay

m e nts on the ground that s ince the entry of the f inal judgm e nt of divorce, he

3had experienced a substantial decrease in his incom e .

¶10. At the tim e of the judgm ent of d ivorce, Brian’s incom e was a pproxim a tely $230,000. However, Brian later saw a reduction of his s alary , and eventually l o s t h i s j o b , due to his

em ploy e r’s budgetary problem s and corporate r e s t r u c t uring. Af t er his position was elim inated, his e m

p loy er p rovide d severance p ay i n the sum of $190,000. A n d although Brian was able to gain new em p l oy m ent, his new job lef

t h im m aking less m oney

—an annual salary of $127,188. ¶11. Brian claim ed that this reduction in his incom e lef t him unable to m aintain his alim ony
pay m ents under the term s of the original agreem e nt. Brian unilaterally d iscontinued his f ull alim ony pay

m ents without an order of t he c hance r y c o u r t. Specif ically , Brian r educed his
pay m ents to $945 in Septem

ber 2014, and then to $735 in April 2015. ¶12. Ruth’e f

iled an answer deny ing Brian’s entitlem ent to a m odif i cation of his alim ony obligation. Ruth’e argued that the parties never intended t he a l im ony in question to be periodic alim ony , but lum p-sum alim o ny —and not subject to m odif ication. ¶13. L o o k i n g t o t h e totality of the agreem ent, the chancellor f ound that t h e a l i mo n y provision was t o be considered lum p sum a nd not periodic—and thus not subject to

m odif ication. Accordingly , the chancellor f ound that the i ssues of Ruth’e’s a lleged de f acto

m arriage, along with Brian’s reduction of incom e, were irrelevant. Brian now appeals.
STANDARD OF REVIEW ¶14. The Mississippi Suprem e Court has held that a n a ppellate court “ will not disturb the
f indings o f a chancellor when s upported by substantial evidence unless the chancellor abused

4his discretion, w as m anif estly wrong [ or] clearly erroneous [ ,] or [ applied] an erroneous legal standard.” W

ilburn v. W

i lburn , 991 So. 2d 1185, 1190 (¶10) (Miss. 2008). Regarding legal questions, this Court applies a de novo standard of review. Id

. DISCUSSION
I. The chancellor d id not abuse his d iscretion in categorizing t h e alim o ny provision of the agreem ent a s l um p-sum a lim ony r ather than periodic alim ony . ¶15. Brian argues that the c hancellor abused his dis c r e t i o n i n c a t egorizing t he alim ony provision of the agreem ent as lum p-sum alim ony rather than periodic alim ony . Specif ically , Brian argues that t he alim o n y p r o v i s ion is am biguous, and s o m

ust be interpreted as providing f

o r periodic alim ony , term inable upon Ruth’e’s de f acto rem arriage. ¶16. “To determ i n e w h e t h e r a l i mo ny is lum p sum or p eriodic, we m ust exam ine the substance, without regard to labels.” Chroniger v. Chroniger, 914 S o . 2 d 3 11, 314 (¶10) (Miss. Ct. App. 2005) (quoting Creekmore v. Creekmore, 651 S o. 2d 513, 518 (Miss. 1995)).
“As a general rule, periodic a lim ony has no f ixed term ination date; instead, it a utom atically

term ina t e s a t t he death of t he obligor or the rem a rriage o f the obligee.” W est v. W est , 891 So. 2d 203, 212 (¶21) (Miss. 2004). ¶17. “ L u mp s u m a l i mo n y ma y b e p a y able in a single lum p sum o r f

ixed periodi c installm ents. Lum

p s um alim ony is a f

inal s ettlem ent between h u s band and wif e and m ay
not be changed or m odif

i ed by either party , absent f raud.” Armstrong v. Armstrong , 618 So. 2d 1278, 1281 (Miss. 1993). In short, periodic alim ony m ay be m odif ied, while lum

p-sum alim ony “ is not considered to be in the nature of c o n t i n u i n g support, but r ather a property

5transf

er whic h is vested in the recipient s pouse at the tim e said alim o ny is awarded.” McDonald v. McDonald , 683 So. 2d 929, 931 (Miss. 1996). ¶18. Again, the alim ony provision of

the property -settlem ent agreem ent provides:
A. Periodic A lim ony . [ Brian] agrees to pay unto [ Ruth’e] as periodic alim ony the m onthly sum o f $2,850.00 per m o nth, beginning the f irst day of the m onth im m e diately f

ollowing execution o f

this Agreem e nt f

or a period of thirty

- six (36) m o nths, redu c i n g to $2,600.00 f or a period of thirty

- six (36) m o nths, [ and] reducing to $2,100.00 f or a p e r i o d o f thirty -six (36) m onths. Periodic [ A]lim ony shall then r educe to $1,750.00 until S eptem b er 1, 2 019, or [ Brian’s] retirem ent, whichever o ccurs later, whereupon p eriodic alim ony shall c ease. Said periodic alim ony shall be pay able one-half on the 1st a nd o ne-half on the 15th of each m onth. In addition, such periodic alim o ny shall c ease upon the rem arriage of [ Ruth’e] or u p o n t h e death of either party [ ,] whichever occurs f irst. The pay

m ents shall be deductible b y [ Brian] a n d i ncludable a s incom e by [ Ruth’e], b oth f

or state and f

ederal incom e t ax purposes. [ Handwritten addition a s f

ollows:] Said payments are further non-modifiable, except as s et forth herein above

. ¶19. As we believe the chancellor correctly em phasized in his opinion, it is clear that the alim ony provision has characteristics of both periodic and lum

p-sum alim ony . On the one hand, i t is like periodic in t hat the p ay m ents term i nate upon the death o f either party , or upon the rem arriage of Ruth’e. And the pay m ents are treated as incom e to Ruth’e a n d a deduction

to Brian f or incom e-tax purposes. On the other hand, the alim ony i s like lum p-sum alim ony in that Brian is req u i r e d t o p ay Ruth’e f ixed sum s , in three consecutive thirty -six-m onth periods, and then at the expiration of the third thirty -six-m onth period, Brian is required to
pay another f

ixed sum until Septem

ber 1, 2019, or until Brian retires, whichever o ccurs later. ¶20. Brain argues that t he a lim ony award is am biguous, and according t o In r e Dissolution of Ma r riage of W

ood , 35 So. 3d 507, 513 (¶11) (Miss. 2010), the am biguities should be construed against Ruth’e. “The m ere f act that the parties disagree about the m eaning of a

6provision of a contract does not m ake the contract am biguous as a m a t ter of law.” Cherry v. Anthony, Gibbs, Sage , 501 So. 2d 416, 419 (Miss. 1987). ¶21. But h ere, when looking to the t e rm s of the agreem ent, the parties’ intent i s evident. The word “periodic” was initially inserted into the a lim ony paragraph six tim e s. But, in the

course of n egotiations by the parties, the word was later stricken through and initialed by the parties, in every place the word appeared. This evidences a c l ear intent that the parties did

not want f

or t he alim on y to be considered periodic. Moreover, the handwritten change on the agreem ent which states, “said pay m ents are f

urther non-m odif

iable, except as set f

orth herein above,” is f

urther e vidence of the parties’ i ntent. Indeed, t his p ortion, like the striking of the word “periodic,” also was initialed by both parties. ¶22. Furtherm ore, the agreem e nt outlines a certain pay m e nt am o unt, and specif

ic pay m ent dates. The agreem e nt also leads to a specif ied end date. W hat is m o re, Brian a l so agreed to

assure his alim ony p ay

m ents by m aintaining c ertain insurance policies. This, too, is f urther evidence that the alim ony here is lum p sum —not periodic. ¶23. Rely ing o n W

ray v. W ray , 394 So. 2d 1341, 1345 (Miss. 1 981), Brian also asserts that

our caselaw creates a presum ption toward periodic alim o ny when the agreem ent lacks clear, unequivocal language labeling the provision as lum p sum . W hile W

ray does stand f

or this proposition, we f

ind here that clear and uneq u ivocal intent—expressed by the parties’ striking of the term periodic m u ltipl e t i me s in t he agreem ent—renders Brian’s reliance on this presum

ption m isplaced. ¶24. Accordingly , w e f ind that t he chancellor did not abuse h is discretion in categorizing

7the alim ony provision o f the agreem ent as lum p-sum alim ony rather than periodic alim ony . This issue is without m erit.
II. The chancellor d id n ot abuse h is discretion in deny ing Brian’s request for a m odification o f his alim o ny obligations on the basis of cohabitation, de facto m arriage, and change in incom e. ¶25. Rely ing on his sam e argum ent that the alim ony was periodic, Brian also argues that the chancellor a

bused h is discretion in determ ining t hat Rut h ’ e ’ s alleged cohabitation and Brian’s reduction of

incom e were irrelevant to the court’s consideration of Brian’s request
f or a m odif

ication. “In the case of lum p sum a l im ony . . . said a lim o ny i s not considered to be in the nature of c ontinuing support, but rather a property transf er which is vested in the recipient spouse at the t im e s aid alim ony is awarded.” McDonald , 683 So. 2d a t 9 3 1

. Accordingly , due to o ur f indings in the previous issue, considerations of R uth’e ’ s a l l eged cohabitation, her de f

a cto m arriage, or Brian’s decrease in incom e are “ i rrelevant, given that an order f or lum p sum alim ony provides the recipient spouse with a vested right to receive said pay m ents.” I d

. Theref o r e, w e f ind that the chancellor did not a buse his discretion in deny ing Brian’s request f or a m odif

i cation of his alim ony . CONCLUSION ¶26. Revie w i n g t h e r e c ord, we f ind no abuse of discretion on the part of t he chancellor. Theref ore, we af f irm

. ¶27. THE JUDGMENT OF THE MADISON COUNTY CHA N C E R Y C O U R T IS AFFIRMED. A LL COSTS OF THIS APPEAL ARE ASSESSED T O THE APPELLANT. LEE, C .J., IRVING A ND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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