IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CA-01124-SCT

CALVIN PHILIP POOLE, JR.

v.

PENNY WOODS POOLE

DATE OF JUDGMENT: 05/15/96

TRIAL JUDGE: HON. VICKI R. BARNES

COURT FROM WHICH APPEALED: WARREN COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: VAUGHN DAVIS

ATTORNEY FOR APPELLEE: SAMUEL D. HABEEB

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION: AFFIRMED - 11/13/97

MOTION FOR REHEARING FILED: 12/1/97

MANDATE ISSUED: 3/18/98

EN BANC.

MILLS, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. On March 26, 1996, the Chancery Court of Warren County heard Calvin Poole's Motion for

Modification of child support payable to his ex-wife, Penny Poole. On May 15, 1996, the court

denied the motion. Calvin Poole filed a Motion for Reconsideration which, was denied on August 2.

Aggrieved, Calvin Poole appeals to this Court, assigning as error the following issues.

ISSUES

I. Whether the chancery court erred in taking judicial notice "that in the financial

statement filed by Dr. Poole on June 25, 1992 . . . he swore under oath that his gross

monthly income was $9,573.19 and his adjusted gross income was $4,718.97."

II. Whether the chancery court erred in finding that no material change in circumstances

had occurred warranting a modification of the prior judgment of divorce or, in the

alternative, that any change which had occurred could have been reasonably anticipated
or, in the alternative, that Calvin Poole should be denied relief based on a lack of good

faith.

III. Whether the chancery court erred in awarding attorney fees to Penny Poole.

FACTS

¶2. Calvin Philip Poole, Jr. ("Calvin") and Penny Woods Poole ("Penny') were married on January 6,

1985. Calvin was a medical doctor having received his degree in 1980. He had specialized in

obstetrics and gynecology and, since July of 1984, had practiced at The Street Clinic in Vicksburg,

Mississippi. Two children were born of the marriage, Hunter David Poole, born in 1987, and Joseph

Hillary Poole, born in 1990.

¶3. On September 24, 1992, the Chancery Court of Warren County granted Calvin and Penny a

divorce on the ground of irreconcilable differences. The divorce decree, incorporating the Joint

Settlement Agreement reached by the parties, provided that Penny would have physical custody of

the two children, that Calvin would pay to Penny child support in the amount of $2,000 per month,

and that Calvin would pay to Penny lump sum alimony in the amount of $120,000 payable at the rate

of $1,000 per month for a period of ten years.

¶4. On November 27, 1995, Calvin filed a Motion for Modification of child support alleging that due

to a material change in circumstances, he could no longer afford to pay the child support required by

the divorce decree and joint settlement agreement. The motion was heard in the Chancery Court of

Warren County on March 26, 1996.

¶5. Calvin testified that at the time of the divorce, he was practicing as an obstetrician/gynecologist

("OB/GYN") at The Street Clinic in Vicksburg, Mississippi, where he had worked since 1984. He

testified that while working as a partner at the clinic, he regularly generated an annual income in the

$300,000 range. His tax return for 1992 showed a total income of $367,504.

¶6. Calvin testified that after the divorce, he began drinking heavily, began having problems with

depression and even became suicidal. Calvin went to the Hazelton Foundation in Minnesota for

treatment, and when he returned, he attempted to return to his practice at the clinic on a part-time

basis. After four months, the clinic placed him on disability, after which he began receiving checks

from his disability insurance carrier in the amount of $15,000 per month.

¶7. Calvin testified that he attempted to continue his medical career by undertaking a residency in

psychiatry in August of 1994 at the University Medical Center in Jackson, Mississippi. However, he

did not complete the residency. Calvin testified that he was contractually bound by his medical

malpractice insurance policy to attend weekly meetings of the Caduceus Club, a group of impaired

doctors in Mississippi. He testified that he was also required to attend three to four Alcoholics

Anonymous meetings per week, and that he had to take monthly drug tests. According to Calvin, if

he did not meet his obligations to the Caduceus Club, he would lose his medical malpractice

insurance and possibly his medical license. He testified that his obligations to the Caduceus Club

hindered his ability to perform as a resident, so he terminated his residency in May of 1995.

¶8. In September of 1995, Calvin secured employment as a physician at the Mississippi State Hospital
at Whitfield, where he was still employed at the time of the hearing. He testified that his gross annual

salary at the hospital was $93,065.76, or $7,755.48 per month, with a net take home pay of $4,

344.27. He testified that this was his only source of income. Calvin testified that no medical licensure

board or other authority was preventing him from practicing his specialty as an OB/GYN, but that he

had chosen not to because his psychiatrist had recommended against it. He testified that he did not

think that he could handle the pressures and lack of sleep caused by such a practice.

¶9. Calvin testified that in 1994, he sold his interest in a limited partnership for which he received

$300,000, $200,000 of which he used to purchase the house in which he was residing at the time of

the hearing. In January of 1995, The Street Clinic purchased Calvin's stock in the clinic for $120,000.

Of this money, Calvin used $50,000 to start an annuity fund with New York Life, and he used $50,

000 to make "a loan slash investment to a friend." The "loan slash investment" was made to Misty

Meadows Mastiffs, a dog kennel in Maryland owned by Marla Blethern. Calvin was unable to say

whether this payment was a loan or an investment, but he testified that he received no promissory

note or stock in the kennel, and that he no longer expected the money to be repaid. At the time of the

hearing, Calvin's annuity fund at New York Life was worth $59,000, and he had an $11,867

municipal bond, a life insurance policy with a net cash value of $6,000, a paid-for $19,000

automobile, and $155,000 in retirement funds.

¶10. Calvin's income tax return for 1994 showed a total income of $258,809. This tax return,

however, did not reflect the $300,000 Calvin received that year for his interest in the limited

partnership. Calvin's Certified Public Accountant, Steve Sessums, testified that Calvin's total income

for 1994 was $516,772. Mr. Sessums also testified that while Calvin was employed at The Street

Clinic, his tax returns reflected more income than he actually received. According to Mr. Sessums,

the clinic was structured so that its partners would report the clinic's earnings as taxable income, but

would receive only enough money from the partnership to pay taxes on the income. Thus, much of

the income reported on Calvin's tax returns was "phantom" income which he did not actually receive.

¶11. On May 15, 1996, the chancery court entered its Memorandum Opinion and Order on Calvin's

Motion for Modification. The chancellor found that at the time of the divorce, Calvin had an adjusted

gross income of $4,718.97 per month. The chancellor found that Calvin's current adjusted gross

income, as Calvin testified, was $4,344.27. The chancellor found that Calvin offered no positive

proof of the reason for his decrease in income, and that he failed to show that he lacked the ability to

earn more. The chancellor noted that Calvin offered no evidence, other than his own testimony, that

he was unable to effectively handle the stress of his OB/GYN practice. Also, noting Calvin's various

expenditures, the chancellor stated that "Dr. Poole asks this court to reduce the support to his

children, yet he continues to enjoy the same lifestyle he enjoyed prior to the divorce." The chancellor

denied Calvin's motion to modify and ordered Calvin to pay to Penny $1,800 in attorney fees.

¶12. On May 30, 1996, Calvin filed a Motion for New Trial or, in the Alternative, to Open the Prior

Judgment and Take Additional Testimony, Amend Findings of Fact and Enter New Judgment. Calvin

argued that the chancery court erred in finding that at the time of the divorce, Calvin's adjusted gross

income was $4,718.97. He asserted that because nothing establishing this figure was introduced into

evidence, "the Court must have relied upon information or documentation which was not made a part

of the record at this hearing," and that "the Court has undertaken to conduct an independent

investigation and to rely upon information which is apparently known only to the Court thereby
denying the parties the opportunity to respond to the authenticity or reliability of the information

relied on by the court." The chancery court granted the motion to take additional testimony, and a

hearing was held on June 24, 1996.

¶13. Calvin testified that while employed at The Street Clinic, where he worked throughout 1992, he

was paid $4,000 every two weeks and received bonus distributions, depending on the profitability of

the clinic, twice a year -- one in July and one in December. He again introduced his 1992 tax return

which showed a total income of $367,504. He testified that the joint settlement agreement, in which

he agreed to pay $2,000 per month in child support, was based on his total income.

¶14. On cross-examination, Calvin testified that when he was divorced on September 24, 1992 and

agreed to the terms of the joint settlement agreement, he did not know what his total income would

be for 1992, as he had not yet received his December bonus. He testified that his July 1992

distribution was approximately $70,000 to $80,000. Then, reading from his sworn interrogatory

responses signed on September 10, 1992 and filed with the court before his divorce, Calvin stated

that his July 1992 distribution was approximately $35,000. Calvin also read his response stating that

because a new partner was joining the clinic, he expected that "my income will drop drastically for a

period until he builds up his patient load." He then admitted that after the divorce, he received a very

substantial distribution in December of 1992, but testified that much of that was "phantom" income

which he did not actually receive. Calvin also admitted that in his financial statement, signed June 25,

1992 and attached to his interrogatory responses, he represented to the court that after the deduction

of state and federal taxes, his adjusted gross income was $4,718.97 per month.

¶15. On August 2, 1996, the chancery court entered its Second Memorandum Opinion and Order, in

which it made the following findings:

The Court took judicial notice that in the financial statement filed by Dr. Poole on June 25,

1992, just a few months before the final judgment of divorce, he swore under oath that his gross

monthly income was $9,573.19 and his adjusted gross income was $4,718.97. Although this

information was not brought out at the hearing on the Motion for Modification, documentation

of this information was indeed available to Dr. Poole and his counsel, as it was contained in the

original divorce file. This information was not "known only to the Court."

The Court did not undertake "to conduct an independent investigation" as the Movant suggests.

The chancery court also compared Calvin's assets -- including the house he lived in -- at the time of

the divorce to those at the time of the hearing, and concluded that Calvin enjoyed the same lifestyle

he enjoyed prior to the divorce. In response to Calvin's contention that he came into court with "clean

hands," the chancellor noted Calvin's unexplained $50,000 payment to a friend. The chancellor found

that there was no evidence that Calvin could not resume his prior practice or establish a similar

practice in another city. The chancellor also stated:

If, as Dr. Poole now contends, he knew his income would decrease because he would have to

leave his practice due to his drinking problem and because he received large distributions in

1992, that he would not continue to receive after leaving the clinic, then his subsequent

decrease in income because of those factors would not be "after-arising circumstances not

reasonably anticipated at the time of the agreement."
For these reasons, the chancellor denied Calvin's motion.

DISCUSSION

I. Whether the chancery court erred in taking judicial notice "that in the financial

statement filed by Dr. Poole on June 25, 1992 . . . he swore under oath that his gross

monthly income was $9,573.19 and his adjusted gross income was $4,718.97."

¶16. Mississippi Rule of Evidence 201(b) provides as follows:

Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it

is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of

accurate and ready determination by resort to sources whose accuracy cannot reasonably be

questioned.

Calvin argues that because the fact of what his income was at the time of divorce does not fall under

either of the two kinds of facts subject to judicial notice, the chancellor erred in taking judicial notice

that Calvin's adjusted gross income prior to the divorce was $4,718.97 per month. The flaw in this

argument, however, is that the chancellor did not take judicial notice of what Calvin's income was,

but rather took judicial notice only that Calvin stated in his sworn financial statement what his

income was. In fact, Calvin himself recognizes this distinction in his Reply Brief:

Even then, Trial Court did not state that it took judicial notice of Dr. Poole's income at the time

of the divorce. This may seem to be a subtle difference, but it is significant. Nowhere, does the

Court state that it took judicial notice of what Dr. Poole's income was at the time of the

divorce.

As Calvin states, the distinction is indeed significant.

¶17. The fact that Calvin stated in his financial statement what his income was is not one subject to

reasonable dispute, in that it is "capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned," i.e., the financial statement itself, which was

already properly before the court in the original divorce file. In fact, Calvin admitted during the

hearing to take additional testimony that he represented to the court in his sworn financial statement

that his adjusted gross income prior to the divorce was $4,718.97 per month. Clearly, there is no

reasonable dispute as to whether Calvin made this representation to the court, and thus this Court

holds that the chancellor did not err in taking judicial notice of that fact.

¶18. Calvin further contends that because he was not aware that the chancery court had taken judicial

notice of this fact until entry of the Second Memorandum Opinion and Order, he is entitled, under

Rule 201(e), "to an opportunity to be heard as to the propriety of taking judicial notice and the tenor

of the matter noticed." However, the determination of the chancellor's source of information for

finding Calvin's adjusted gross income prior to the divorce to be $4,718.97, and the opportunity to

rebut the finding, were precisely the reasons for which Calvin requested and was granted the hearing

to take additional testimony. It was at this hearing that Calvin testified that it was he himself who

submitted this information to the court. Calvin also presented further testimony regarding his income
prior to the divorce. It would serve no useful purpose to conduct yet another hearing on this matter.

This Court finds no merit in this assignment of error.

II. Whether the chancery court erred in finding that no material change in circumstances

had occurred warranting a modification of the prior judgment of divorce or, in the

alternative, that any change which had occurred could have been reasonably anticipated

or, in the alternative, that Calvin Poole should be denied relief based on a lack of good

faith.

¶19. Modification of support agreements for divorces granted on the ground of irreconcilable

differences may be granted only if there has been a material change in circumstances of one or more

of the parties. Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995). "The change must occur as a

result of after-arising circumstances...not reasonably anticipated at the time of the agreement."

Varner, 666 So. 2d at 497.

¶20. In the case sub judice, the evidence indicated that at the time of the hearing on the motion for

modification, Calvin's income was $93,065.76 per year, with an adjusted gross monthly income of $4,

344.27. The evidence was not as clear, however, as to what Calvin's income was at the time of the

agreement. Although Calvin's 1992 tax return showed a total income of $367,504, his accountant

testified that much of this was "phantom" income which Calvin did not actually receive. Also,

Calvin's financial statement submitted with his sworn interrogatory responses stated that his adjusted

gross monthly income just prior to the divorce was $4,718.97, a figure not significantly higher than

that at the time of the hearing. We have always accorded great deference to chancellors on matters

for which there has been presented conflicting evidence.

¶21. Also, in order to warrant a modification of child support, any material change in circumstances

must be such "as reasonably to affect the ability of the parties to abide by it and perform the original

decree." Hooker v. Hooker, 205 So. 2d 276, 278 (Miss. 1967) (quoting Bunkley & Morse, Amis on

Divorce and Separation in Mississippi § 6.11 at 193 (1957)). In the case sub judice, the chancellor

noted that no licensure board or other organization was preventing Calvin from practicing his

specialty as an OB/GYN. Calvin testified that he had voluntarily chosen not to do so because his

psychiatrist recommended against it. Calvin testified simply that he did not think that he could handle

the stress of such a practice. This Court concludes that the chancellor was not manifestly in error in

finding that Calvin failed to establish that he was unable to earn more income by pursuing his

specialty.

¶22. Furthermore, the evidence showed that Calvin received $300,000 in 1994 for his interest in a

limited partnership and that he received $120,000 in 1995 for his interest in the clinic. With this

money, he purchased a $200,000 home, started a $50,000 annuity with New York Life, and made a

$50,000 "loan slash investment to a friend." The evidence also showed that Calvin had substantial

assets at the time of the hearing. In addition to the $200,000 home and the annuity, by then worth

$59,000, Calvin had an $11,867 municipal bond, a life insurance policy with a net cash value of $6,

000, a paid-for $19,000 automobile, and $155,000 in retirement funds. It does indeed appear that

Calvin enjoyed the same lifestyle at the time of the hearing that he enjoyed prior to the divorce. This

Court holds that the chancery court did not abuse its discretion in finding that Calvin failed to

demonstrate a material change in circumstances affecting his ability to pay $2,000 per month in child
support.

¶23. In Mullen v. Mullen, 246 So. 2d 923, 924 (Miss. 1971), we affirmed the chancery court's denial

of the motion to modify child support where the movant made no explanation of the expenditure of

certain monies except in general terms. Likewise, in the case sub judice, Calvin offered no

explanation of his $50,000 "loan slash investment to a friend," except to say that he did not expect

the money to be repaid.

¶24. Regarding the foresee ability of any material change in circumstances, in addition to Calvin's

sworn interrogatory response, read by Calvin at the second hearing, that he knew that his income

would decrease "drastically" for a period because a new partner was joining the clinic, Calvin

asserted the following in his motion to take additional testimony:

The Court is in error in its finding that Dr. Poole "began drinking heavily" after the date of the

divorce. The proof adduced at the hearing was that at the time of the divorce and prior to the

divorce that Dr. Poole had been drinking to such an extent that his work had been affected.

From his own statement, it appears that prior to entering the joint settlement agreement, Calvin knew

or at least should have known that he had a drinking problem that might affect his income. Therefore,

this Court holds that the chancellor was not manifestly wrong in finding that any decrease in income

was not due to "after-arising circumstances not reasonably anticipated at the time of the agreement."

This assignment of error is without merit.

III. Whether the chancery court erred in awarding attorney fees to Penny Poole.

¶25. In its first Memorandum Opinion and Order, the chancery court found that Penny had incurred

$2,400 in attorney fees, and ordered Calvin to pay to her $1,800 in attorney fees. Calvin argues that

the chancellor erred in this regard because, but for the errors committed by the chancellor, he would

have prevailed on his motion to modify, and thus no attorney fees would have been awarded to

Penny. He also argues that Penny did not demonstrate that she lacked the financial ability to pay her

attorney fees.

¶26. As suggested above, the chancery court did not err in denying Calvin's motion to modify. Also,

Penny testified extensively regarding her income and her living and child care expenses, which

expenses she testified were increasing each year as the children grew older. Chancellors enjoy broad

discretion in the award of attorney fees in domestic cases. "We are 'reluctant to disturb a chancellor's

discretionary determination whether or not to award attorney fees and of the amount of [any]

award.'" Ferguson v. Ferguson, 639 So. 2d 921, 937 (Miss. 1994) (quoting Geiger v. Geiger, 530

So. 2d 185, 187 (Miss. 1988)). This Court holds that the chancery court did not abuse its discretion

in ordering Calvin to pay to Penny $1,800 of her $2,400 in attorney fees.

¶27. Penny also has filed with this Court a motion for an award of attorney fees for her legal

expenses incurred in litigating this appeal. She asserts that her attorney spent at least fifteen billable

hours, at a rate of $90 per hour, researching and preparing her brief, and that she is unable to pay

these fees as her expenses already exceed her income. This Court will grant her motion, and award

her $1,350 in attorney fees incurred on appeal.
CONCLUSION

¶28. Calvin stated in his financial statement attached to his sworn interrogatory responses that his

adjusted gross income prior to the divorce was $4,718.97 per month. This fact is not subject to

reasonable dispute. The chancellor did not err in taking judicial notice of that fact. Also, considering

all of the evidence before this Court, we find that the chancellor did not err in denying Calvin's

motion to modify the child support he agreed upon in the joint settlement agreement. Finally, we hold

that the chancery court acted within its discretion in ordering Calvin to pay to Penny $1,800 in

attorney fees. This Court affirms the chancery court opinion and order below and grants Penny's

motion for an award of attorney fees incurred on appeal.

¶29. AFFIRMED.

PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, ROBERTS AND SMITH, JJ.,

CONCUR. DAN LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY

McRAE, J.

DAN LEE, CHIEF JUSTICE, DISSENTING:

¶30. Our principles of domestic law dictate that the husband has a right to a reasonable standard of

living. Tilley v. Tilley, 610 So. 2d 348, 353 (Miss. 1992). In the instant case, Dr. Calvin Poole

("Poole") has a monthly adjusted income of $4,344.27 with child support payments of $2,000

monthly and lump sum alimony of $1,000 monthly (not to mention the $650 per month child support

payable from a previous marriage). If one does the math, Poole is left with a maximum of $1,344 per

month on which to live. In denying Poole's Motion for Modification, the chancellor abused her

discretion. In order to avoid reducing the amount of child support given to the children, I would

suggest that the chancellor, on remand, defer the lump sum alimony payments (or a portion) until the

children become self-supporting. Our principles of equity dictate such a result. The result of the

chancellor's abuse of discretion and manifest error in the instant case is that the chancellor's "material

change in circumstances" analysis regarding the reduction of child support payments is skewed and

does not reflect the obvious disparity in Poole's financial condition at the time of his divorce and his

present financial circumstance.

¶31. Poole's annual income at the time of his divorce in 1992 was $367,504. He testified that the

property agreement he signed in 1992 was based upon this figure. His income tax filings also reflect

this figure. This figure is not open to a new "finding" of his annual income in 1993 by the chancellor

in the instant case, yet she has done so. Poole's annual income in 1995 at the time of his Motion for

Modification was $93,065.76. The difference in Poole's income in 1992 at the time of his divorce and

in 1995 is $274,438.24. This is an obvious material change in circumstances under any reading of our

law. Poole was making a little more than one-fourth of his 1992 income at the time of his motion for

rehearing. The chancellor abused her discretion and was manifestly wrong in her determination that

Poole did not experience a material and substantial change in circumstances.
¶32. For the foregoing reasons I would reverse and remand this cause. Accordingly, I respectfully

dissent.

McRAE, J., JOINS THIS OPINION.