           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 WHICH 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 motion to reconsider a judgment that

granted a modification of alimony payments. Finding no error, we affirm.

                         FACTS AND PROCEDURAL HISTORY

¶2.     Charles D. Easterling and Lajuana Easterling had been married for thirty-seven years

when they were divorced on January 23, 2013. They entered into a property-settlement

agreement that stipulated the terms of their divorce. Among the terms, Charles was required

to pay monthly periodic alimony in the amount of $2,500 to Lajuana; Lajuana retained

possession of the marital home; and Charles was obligated to pay the monthly note on the

home.
¶3.    Prior to and at the time of the divorce, Charles worked as a tool pusher for Ensco, an

off-shore oil-drilling contractor. After the divorce, Charles remarried, and he now has an

adopted daughter and two stepchildren who reside in his home. However, Charles testified

that due to circumstances in the oil industry beyond his control, he was terminated from

Ensco in 2015. Charles testified that he was without a regular income. He said that he had

attempted to find other employment in the oil industry, but to no avail. He further testified

that he picked up odd jobs when available.

¶4.    On August 13, 2015, Charles filed a complaint for modification of his alimony

obligation. A hearing was held with both Charles and Lajuana in attendance on December

2, 2015. There was no record or written order of the proceedings. But each party agreed that

the court temporarily reduced Charles’s alimony obligation to $600 per month. From that

date until the final judgment, Charles paid the reduced amount of alimony and ceased

monthly payments on the home-equity line of credit, which forced Lajuana to begin paying

the interest on the mortgage.

¶5.    A trial was held on May 10, 2016. The chancellor found that Charles’s termination

from Ensco was an unanticipated, unforeseen loss of employment beyond his control that

resulted in a substantial material change in circumstances. Therefore, the chancellor then

analyzed the Armstrong factors and granted Charles a permanent reduction of his alimony

payments to $1,500 per month.

¶6.    Charles then filed a motion to reconsider and asked the chancellor to completely

eliminate his alimony obligation. The motion was denied, and Charles has appealed.



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                                         ANALYSIS

¶7.    Charles argues that the complete loss of his income justifies either the total

elimination of his alimony obligation, or a greater decrease in his alimony obligation than the

chancellor granted. Charles claims that his finances are so immediately finite that at this rate,

within four years, he will be sixty-five years old and destitute, making compliance with the

judgment thereafter impossible.

¶8.    When requesting modification of a previously ordered alimony award, chancellors are

vested with general statutory authority to modify divorce decrees and make “new decrees as

the case may require.” Miss. Code Ann. § 93-5-23 (Rev. 2013). Within this broad authority

is the more specific power to increase, decrease, or terminate periodic alimony payments.

Hubbard v. Hubbard, 656 So. 2d 124, 129 (Miss. 1995). “Unless the chancellor is in

manifest error and abused her discretion, we will not reverse.” Peterson v. Peterson, 129 So.

3d 255, 257 (¶5) (Miss. Ct. App. 2013) (citing Armstrong v. Armstrong, 618 So. 2d 1278,

1280 (Miss. 1993)). “In the case of a claimed inadequacy or outright denial of alimony, we

will interfere only where the decision is seen as so oppressive, unjust or grossly inadequate

as to evidence an abuse of discretion.” Armstrong, 618 So. 2d at 1280.

¶9.    When considering a party’s petition to modify or terminate an award of periodic

alimony, a chancellor must first determine whether “an unforeseeable and material change

in circumstances occurred since entry of the initial divorce decree.” Peterson, 129 So. 3d at

257 (¶7) (citing Holcombe v. Holcombe, 813 So. 2d 700, 703 (¶11) (Miss. 2002)). “The

change in circumstance must not be anticipated by the parties at the time of the original



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decree.” Holcombe, 813 So. 2d at 703 (¶11). If no unforeseeable and material change has

occurred, then a modification of the alimony award is improper. Peterson, 129 So. 3d at 257

(¶7).

¶10.    Once “a substantial unanticipated change has in fact occurred, the chancellor should

then consider the Armstrong factors to determine the appropriate amount of alimony.” Id.

at (¶8) (footnote omitted) (citing Holcombe, 813 So. 2d at 703 (¶12)). When analyzing these

factors and “deciding whether to modify periodic alimony,” chancellors should “compar[e]

the relative positions of the parties at the time of the request for modification in relation to

their positions at the time of the divorce decree.” Steiner v. Steiner, 788 So. 2d 771, 776

(¶16) (Miss. 2001) (citations omitted). As in all alimony-modification cases, “[a]limony, if

allowed, should be reasonable in amount, commensurate with the wife’s accustomed standard

of living, minus her own resources, and considering the ability of the husband to pay.” Gray

v. Gray, 562 So. 2d 79, 83 (Miss. 1990). “[A]limony awards in excess [of] a spouse’s ability

to pay are ‘per se unreasonable.’” Sheffield v. Sheffield, 55 So. 3d 1142, 1145 (¶9) (Miss.

Ct. App. 2011) (quoting Yelverton v. Yelverton, 961 So. 2d 19, 28 (¶18) (Miss. 2007)).

¶11.    Here, the chancellor’s final judgment found that Charles’s “decrease in income from

his loss of employment was not anticipated at the time of the divorce and is a material change

in circumstances[, but] . . . the loss of employment does not justify a termination of

alimony[.]” After which, the chancellor considered the Armstrong factors to determine the

proper amount of alimony. See Holcombe, 813 So. 2d at 703-04 (¶12).

¶12.    “Personal bills cannot be used as a factor to reduce support payments.” Hardin v.



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Grantham, 201 So. 3d 511, 515 (¶15) (Miss. Ct. App. 2016). Since the divorce, Charles has

acquired a new home and land, and has remarried and adopted one child and has two

stepchildren. The law is clear that the claim of the divorced wife under an alimony award

on the ex-husband’s earnings takes precedence over that of a second wife. De Marco v. De

Marco, 199 Miss. 165, 167, 24 So. 2d 358, 359 (1946). The obligations to the first wife also

take precedence over any obligations the ex-husband may have as the result of children with

his new wife. James v. James, 724 So. 2d 1098, 1104 (¶22) (Miss. Ct. App. 1998). As a

result, Charles’s post-divorce personal bills and remarriage cannot be used as factors to

reduce his support payments. See Hardin, 201 So. 3d at 515 (¶15).

¶13.   Further, the chancellor considered the Armstrong factors and concluded that Charles

had not missed any payments on his monthly financial obligations since the divorce. Despite

having been fired and claiming that he was in financial jeopardy because of his alimony

obligation, all of his debts were current and there was no risk of foreclosure or repossession

at the time of the hearing. Charles argues that he was current on all of his debts only because

he took on additional credit-card debt through cash advances in order to make the payments.

However, “simply alleging, as does [Charles], that one is subsisting on borrowed funds does

not show with the required particularity that he is unable to pay.” Varner v. Varner, 666 So.

2d 493, 497 (Miss. 1995).

¶14.   At the time of trial, Charles held more than $400,000 in stocks and an annuity, along

with real property, vehicles, and other assets. Here he argues that he will run out of money

within four years if he is forced to pay $1,500 a month in alimony, $120 a month in mortgage



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payments— including retroactive payments on each—and his reported $7,574.56 in monthly

expenses. If this were the case, at that rate without any other income, Charles would be

rendered destitute regardless of the court-required support payments.

¶15.   At the hearing, Charles could make his obligatory alimony payments to Lajuana,

whose living expenses and needs have remained unchanged since the divorce. The supreme

court has held:

       [i]n property and financial matters between the divorcing spouses themselves,
       there is no question that, absent fraud or overreaching, the parties should be
       allowed broad latitude. When the parties have reached [an] agreement and the
       chancery court has approved it, we ought to enforce it and take as dim a view
       of efforts to modify it, as we ordinarily do when persons seek relief from their
       improvident contracts.

Weathersby v. Weathersby, 693 So. 2d 1348, 1351 (Miss. 1997) (quoting Bell v. Bell, 572 So.

2d 841, 844 (Miss. 1990)).

¶16.   “[T]he chancellor has substantial discretion in reaching a decision that [she] finds

equitable and fair to both parties.” Seale v. Seale, 863 So. 2d 996, 999 (¶14) (Miss. Ct. App.

2004). The chancellor determined that Lajuana had been substantially dependent upon both

her disability payments and the alimony payments from Charles since the divorce to meet her

monthly living expenses. Her financial situation has not changed. As a result of Charles’s

material change in circumstances, the chancellor concluded that a $1,000 reduction in his

alimony obligation was warranted. We find the chancellor’s reduction in the amount of the

alimony was neither manifest error nor an abuse of discretion. The chancellor’s judgment

is affirmed.

¶17.   AFFIRMED.

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    LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR.




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