Morgan David Ewing, Sr. v. Melanie Shae Ewing ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2019-CA-00753-COA
CONSOLIDATED WITH
NO. 2015-CA-01105-COA
MORGAN DAVID EWING, SR. APPELLANT
v.
MELANIE SHAE EWING APPELLEE
DATE OF JUDGMENT: 01/02/2019
TRIAL JUDGE: HON. MITCHELL M. LUNDY JR.
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: JERRY WESLEY HISAW
ATTORNEYS FOR APPELLEE: JUSTIN KEITH THOMAS
DAVID MARK SLOCUM JR.
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED - 04/07/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE BARNES, C.J., WESTBROOKS AND C. WILSON, JJ.
BARNES, C.J., FOR THE COURT:
¶1. The DeSoto County Chancery Court granted Morgan and Melanie Ewing a divorce
based on irreconcilable differences in 2015. Morgan appealed the decision, and this Court
remanded for further findings on the issues of distribution of assets, alimony, and attorney’s
fees. Ewing v. Ewing, 203 So. 3d 707 (Miss. Ct. App. 2016). On remand, the chancery court
ordered Morgan to pay $500 per month in alimony and $11,807.57 in attorney’s fees to
Melanie. After the chancery court denied Morgan’s motion for reconsideration, he appealed
the award of alimony and attorney’s fees.1 Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Morgan and Melanie were married on July 1, 2000, in Shelby County, Tennessee.
They separated on January 2, 2012. Melanie filed a complaint for divorce on the grounds of
habitual cruel and inhuman treatment and/or irreconcilable differences on January 17, 2012,
seeking custody of the parties’ four minor children and a division of the parties’ assets. An
agreed temporary order was entered on February 22, 2012, which in part granted temporary
custody to Melanie and ordered Morgan to pay $950 in monthly child support. Morgan lost
his job while the litigation was pending and had to file for bankruptcy; so Morgan became
in arrears on his child-support payments.
¶3. After a trial on February 18, 2015, the chancery court granted the parties a divorce on
the ground of irreconcilable differences, incorporating the custody and visitation schedule
as previously stipulated by the parties. The court ordered Morgan to pay (1) $950 per month
in child support; (2) $500 per month in permanent alimony; (3) $38,000 in lump-sum
alimony to be paid in monthly $1,000 increments; (4) $10,000 for Melanie’s attorney’s fees
to be paid in monthly increments of $500; and (5) two-thirds of any uncovered medical
expenses for the minor children. A “Final Decree of Divorce” was entered on April 13,
2015. Morgan filed a motion for reconsideration or, in the alternative, a new trial pursuant
to Rule 59 of the Mississippi Rules of Civil Procedure. The chancellor found that the child
support ordered was in error and decreased the monthly child support to $708.36. The
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Morgan is not challenging the chancery court’s division of marital assets.
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chancellor also gave Morgan credit for $3,050 in child-support payments made to Melanie.
The chancellor affirmed the rest of his findings.
¶4. Morgan appealed the judgment. On November 1, 2016, the Court of Appeals reversed
the court’s findings on the issues of marital property division, alimony, and attorney’s fees.
Ewing, 203 So. 3d at 717 (¶39). We concluded that the chancery court had failed to make
proper findings as to the Ferguson factors2 in the distribution of marital property, which also
required a determination on remand of “the need and proper amount of any lump-sum
alimony award, if necessary.” Id. at 714 (¶¶24-25). Also, although we affirmed the
chancellor’s assessment of periodic alimony, we remanded for reconsideration of the amount
taking into account Morgan’s standard of living. Id. at 715-16 (¶29-30). Lastly, because the
chancery court failed to make specific findings “as to Melanie’s financial situation or her
inability to pay her attorney’s fees,” we found the award of attorney’s fees improper and
remanded for further consideration of that issue. Id. at 717 (¶37).
¶5. On October 20, 2017, Melanie filed a motion for contempt and modification, claiming
that Morgan had “wilfully and obstinately refused to pay for his share of medical costs,” as
ordered by the court in the April 2015 divorce decree, and requesting an increase in child
support. In a November 20, 2017 order, the chancery court found Morgan in wilful contempt
for failing to abide by the court’s orders and ordered him to pay Melanie $10,229 in unpaid
medical expenses (including $1,000 in attorney’s fees).
¶6. On February 20, 2018, the chancery court issued an order without a hearing, finding
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Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994).
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that Melanie had a deficit of over $19,000 after the equitable division of marital property and
awarding her $500 in monthly periodic alimony. The court also upheld its prior
determination to award Melanie $10,000 in attorney’s fees. Morgan filed a motion for
reconsideration, a motion to set aside the judgment, and a contempt petition that alleged
Melanie had not complied with the court-ordered visitation schedule. The parties reached
an agreement as to contempt and modification on June 25, 2018, with the court ordering that
(1) Morgan pay Melanie $7,600 in unpaid medical bills; (2) Morgan receive seven days of
“make-up visitation”; (3) child support be increased to $938.59; and (4) Morgan be
responsible for one-half of all medical expenses not covered by insurance.3
¶7. The chancery court subsequently set aside its February 2018 order, and a hearing was
held on the remaining issues on November 8, 2018. The court issued its opinion on
December 14, 2018, dividing the marital property and awarding Melanie $500 per month in
periodic alimony and $11,808.57 in attorney’s fees paid in monthly installments of $250.4
A final divorce decree was entered on January 2, 2019. Morgan filed a motion for
reconsideration, which the chancery court denied. Aggrieved, Morgan appeals the chancery
court’s award of permanent periodic alimony and attorney’s fees to Melanie.
STANDARD OF REVIEW
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None of the issues addressed in the parties’ contempt motions and the court’s June
25, 2018 order concerned the issues on remand to the chancery court from the first appeal
(i.e., marital property division, alimony, and attorney’s fees).
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On remand, the court initially awarded Melanie lump-sum alimony in its February
2018 order. After further consideration of the Ferguson factors in the distribution of marital
assets, the chancery court did not award lump-sum alimony to Melanie in its December 2018
final order.
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¶8. We review a chancery court’s decision for abuse of discretion, and we will only
disturb that decision on appeal if we find that the court’s decision “was manifestly wrong,
clearly erroneous, or applied an erroneous legal standard.” Archie v. Archie, 126 So. 3d 937,
941 (¶11) (Miss. Ct. App. 2013). “Questions of law are reviewed de novo.” Id.DISCUSSION
I. Alimony
¶9. In the prior appeal, this Court “affirmed as to the finding of a need for periodic
alimony” but remanded for reconsideration of the amount in light of Morgan’s standard of
living. Ewing, 203 So. 3d at 715-16 (¶¶29-30). On remand, the chancery court upheld the
award of periodic alimony, concluding that “the award of $500.00 per month in periodic
alimony is proper after analyzing Morgan’s other financial obligations and his ability to
maintain a decent standard of living.” The chancery court specifically determined that even
after Morgan paid child support, alimony, and the monthly installment for attorney’s fees,
he “would still net $1,629.52 each month based upon his current income, which is sufficient
considering Melanie has [four] children living with her and he only has himself.”5 Morgan
argues that the chancery court’s award of permanent periodic alimony to Melanie “was
unreasonable in light of [his] inability to pay and the income of Melanie.”
¶10. As with other domestic-relation matters, a chancery court’s award of alimony is
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Although Morgan notes the chancery court’s error in the order regarding the number
of children (i.e., four versus five children), we agree with Melanie that because child support
was not calculated based on five minor children, this is simply a scrivener’s error that has
no substantive effect on either party. While not affecting our analysis of this issue, we have
noted a minor discrepancy in the court’s calculation of Morgan’s net monthly income, which
we will address further when we address the award of attorney’s fees.
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discretionary and will not be reversed on appeal absent a determination that the court’s
findings of fact were manifestly in error and an abuse of discretion. Armstrong v. Armstrong,
618 So. 2d 1278, 1280 (Miss. 1993). “A chancellor’s decision to award permanent alimony
must consider both need and ability to pay.” Rogillio v. Rogillio, 57 So. 3d 1246, 1252 (¶24)
(Miss. 2011). “In making that decision, the chancellor considers, in relevant part, the
reasonable net income and expenses of both spouses.” Id. (citing Box v. Box, 622 So. 2d 284,
288 (Miss. 1993)). “Alimony is considered only after the marital property has been equitably
divided and the chancellor determines one spouse has suffered a deficit.” Castle v. Castle,
266 So. 3d 1042, 1053 (¶43) (Miss. Ct. App. 2018) (quoting Lauro v. Lauro, 847 So. 2d 843,
848 (¶13) (Miss. 2003)), cert. denied, 267 So. 3d 278 (Miss. 2019).
¶11. Arguing that the chancery court failed to “balance [Melanie’s] needs with [his]
inability to pay” in awarding periodic alimony, Morgan contends that Melanie “received over
$44,000.00 in assets, [had] no debts, had all of her expenses paid for several years under the
temporary order, and currently is a homeowner with over $44,000.00 in separate equity in
her home over and above the property division.” In contrast, Morgan states that he has a
negative estate with approximately $50,000 in debt. He also claims Melanie now earns more
than he does.
¶12. Morgan argues that the chancery court was required to examine the financial positions
of the parties both at the time of trial and the time of remand, citing Yelverton v. Yelverton,
26 So. 3d 1053 (Miss. 2010). Specifically, Morgan claims that while the chancery court
addressed his financial position at the time of remand, the court failed to consider Melanie’s
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current financial position. His main point of contention is that Melanie’s salary had
increased since 2015, and she now earns more in net monthly income than he does. In
Yelverton, the chancery court issued a seventeen-page judgment without a hearing and
upheld awards of alimony and child support. Id. at 1056 (¶6). The chancellor “based his
decision on testimony and exhibits received at the hearings conducted prior to the original
2004 judgment.” Id. The appellant claimed the court should have held an evidentiary
hearing to consider changes occurring since its original 2004 judgment. Id. at (¶10). The
Mississippi Supreme Court agreed and reversed and remanded with instructions to the court
to “conduct an evidentiary hearing” in order to determine the following: (1) the value of
marital assets no later than the date of divorce and based on evidence presented at the remand
hearing; (2) “the amount of periodic alimony and child support due up until the time of the
remand hearing” based on circumstances up until the remand hearing; and (3) “the amount
of periodic alimony and child support going forward from the time of the remand hearing,
which shall be determined based on the circumstances existing at the time of the remand
hearing.” Id. at 1057 (¶13).
¶13. Unlike Yelverton, the chancery court in this case determined that the periodic alimony
award of $500 was appropriate after conducting an evidentiary hearing and considering the
parties’ incomes and expenses at trial and up to remand. The chancery court noted in its
order that Melanie’s net monthly income, as of February 18, 2015, was $851.70, while her
net expenses were $2,830.00, and that she “lost approximately $2,000 per month simply
paying her bills.” Morgan’s monthly net income, as of February 2015, was $2,579.35, while
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his net expenses were $2,329.39 before the child-support payment.
¶14. With regard to the parties’ finances up to remand, the chancery court’s order
admittedly failed to mention Melanie’s more recent Rule 8.05 financial declaration dated
June 2018, which showed her net monthly income had increased to $2,991.32.6 However,
the chancery court found that both parties “essentially live paycheck to paycheck with their
current living expenses.” (Emphasis added). This finding is supported by the evidence.
Melanie’s combined total expenses from her 2018 Rule 8.05 financial declaration were
$3,840.53, still leaving her with a significant deficit. Furthermore, although Melanie’s salary
and wages significantly increased to $3,114 in 2018, she still earns less than Morgan.
According to his financial declarations, Morgan’s salary and wages increased from $3,620
in 2015 to $4,752.80 in 2018.
¶15. Accordingly, we do not find that the court’s award of periodic alimony was manifestly
in error or an abuse of discretion, and we affirm on this issue.
II. Attorney’s Fees
¶16. Morgan claims that the chancery court also erred in awarding Melanie attorney’s fees
in the amount of $11,808.57. “Attorney’s fees may only be awarded to a party who has
shown an inability to pay his or her own fees . . . [, and] chancellors are instructed to make
specific findings regarding the recipient’s ability to pay.” Evans v. Evans, 75 So. 3d 1083,
1089 (¶22) (Miss. Ct. App. 2011). Addressing the factors in McKee v. McKee, 418 So. 2d
764, 767 (Miss. 1982), the chancery court found that Melanie had “incurred $11,808.57 in
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UCCR 8.05.
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attorney’s fees by a skilled attorney as a result of litigation spanning three (3) years which
required a large degree of responsibility in management and time and precluded the prior
legal counsel from other employment.” The court expressly determined that Melanie had an
inability to pay her attorney’s fees, noting that Melanie’s 2015 financial declaration from the
trial indicated a net monthly income (before child support) of $851.70 and net monthly
expenses of $2,830.00, leaving her with a monthly deficit of $1,978.30.
¶17. Morgan claims that the chancery court erred in failing to take into account his inability
to pay attorney’s fees as evidenced by his Rule 8.05 financial declarations. This Court has
held that “[w]here neither party is able to pay more than his or her own fees, an award of
attorney’s fees is inappropriate.” Evans, 75 So. 3d at 1089 (¶24) (citing Sarver v. Sarver, 687
So. 2d 749, 755 (Miss. 1997), overruled on other grounds by Pearson v. Pearson, 761 So.
2d 157, 163 (¶17) (Miss. 2000)). We find that the record indicates the chancery court did
consider Morgan’s ability to pay in its order, stating:
Currently, Morgan’s net monthly income after payment of child support is
$2,629.52. Morgan[’s] net income before payment of child support as of the
date of divorce was $2,579.35. Morgan is directed to pay periodic alimony in
the amount of $500.00 per month and $250.00 per month towards Melanie’s
attorney’s fee, then he would still net $1,629.52 each month based upon his
current income, which is sufficient considering Melanie has [four] children
living with her and he only has himself.
Reviewing Morgan’s 2018 financial declaration, we note a minor discrepancy between the
court’s calculation and ours—we find that Morgan would actually have a net monthly income
of $1,879.53 (after taxes, insurance, child support, alimony, and attorney’s fees are deducted
from his monthly income). Nevertheless, this amount is greater than the chancery court’s
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determination, and Morgan’s net monthly income has increased since 2015. Therefore, we
find no merit to his argument and affirm the chancery court’s award of attorney’s fees to
Melanie.
¶18. AFFIRMED.
CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.
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