                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2017-CT-01075-SCT

CINCINNATUS E. ALFORD, III

v.

LINDA B. ALFORD

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                        06/27/2017
TRIAL JUDGE:                             HON. VICKI R. BARNES
TRIAL COURT ATTORNEYS:                   J. MACK VARNER
                                         CLIFFORD C. WHITNEY III
                                         S. TODD JEFFREYS
COURT FROM WHICH APPEALED:               SHARKEY COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                  S. TODD JEFFREYS
ATTORNEYS FOR APPELLEE:                  CLIFFORD C. WHITNEY III
                                         J. MACK VARNER
NATURE OF THE CASE:                      CIVIL - DOMESTIC RELATIONS
DISPOSITION:                             THE JUDGMENT OF THE COURT OF
                                         APPEALS IS AFFIRMED IN PART AND
                                         REVERSED IN PART. THE ALIMONY
                                         AWARD BY THE CHANCERY COURT OF
                                         SHARKEY COUNTY IS REINSTATED AND
                                         AFFIRMED - 06/04/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1.   In 2016, Linda Alford filed for divorce from Cincinnatus (“Nat”) Alford III in the

Chancery Court of Sharkey County. The parties then agreed to a divorce based on

irreconcilable differences, allowing the chancery court to divide the marital assets and

expenses and to make a determination regarding alimony. The chancellor awarded Linda
Alford $5,000 per month in periodic alimony, $5,000 in attorney fees, and $6,000 in expert

witness fees. Nat Alford appealed the chancellor’s judgment. This Court assigned the case

to the Court of Appeals, which reversed and remanded the chancellor’s alimony award and

reversed and rendered the amount of attorney fees. Alford v. Alford, No. 2017-CA-01075-

COA, 2019 WL 3297142 (Miss. Ct. App. July 23, 2019).

¶2.    Aggrieved, Linda Alford filed a petition for writ of certiorari with this Court. We

granted certiorari because this Court has not answered whether a chancellor should consider

Social Security benefits when considering initial alimony awards. We find that consideration

of derivative Social Security benefits should be reserved for alimony modification

proceedings. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the

chancellor’s award of alimony. We affirm the Court of Appeals decision to reverse and

render the award of attorney fees.

                                         FACTS

¶3.    On February 5, 2016, Linda Alford filed for divorce in the Chancery Court of Sharkey

County. In January 2017, Linda Alford and Nat Alford agreed to an irreconcilable differences

divorce and “stipulated that the chancellor would decide issues related to the equitable

distribution of the marital estate, alimony, and attorney’s fees.” Alford, 2019 WL 3297142,

at *1. Before trial, “the court entered an agreed temporary order that required Nat to pay

Linda $4,000 per month in temporary support[.]” Id. At the time of the trial, both Linda

Alford and Nat Alford were sixty-three years old.




                                             2
¶4.    The chancellor divided the marital property and awarded Nat Alford 54 percent of the

marital assets. The chancellor awarded Linda Alford 46 percent of the marital assets. After

dividing the marital property, the chancellor determined there was a need for alimony and

awarded Linda Alford $5,000 in periodic monthly alimony. The chancellor determined also

that Linda Alford did not have the ability to pay all of her attorney fees and awarded her

$5,000 in attorney fees and $6,000 in expert witness fees.

¶5.    Nat Alford argued on appeal that “the chancellor erred by (1) accepting Linda’s

valuation of his twenty-five percent interest in a closely held corporation that operates a farm

in Sharkey County, (2) [by] awarding Linda $5,000 per month in periodic alimony, and (3)

[by] awarding Linda attorney’s fees and expert witness fees.”1 Id. Nat Alford presented three

specific arguments regarding the alimony award. First, he contended that the chancellor had

failed to consider the financial positions of the parties after equitable division. Id. at *5.

Second, he argued that Linda Alford’s expenses were inaccurate. Id. Finally, Nat Alford

argued that the chancellor had failed to consider that Linda Alford was about to receive

derivative Social Security benefits in the near future. Id.

¶6.    At the time of the Alfords’ divorce, “a payor spouse [was] entitled to an automatic,

dollar-for-dollar credit against his alimony obligation for derivative Social Security

retirement benefits received by the payee spouse.” Id. (citing Spalding v. Spalding, 691 So.

2d 435 (Miss. 1997), overruled by Harris v. Harris, 241 So. 3d 622, 628 (Miss. 2018)). After



       1
        In her petition for writ of certiorari, Linda Alford did not challenge the Court of
Appeals’ holding regarding the valuation of the closely held corporation, Cannonwall
Plantation. Our decision does not affect that portion of the Court of Appeals’ decision.

                                               3
the initial alimony award, this Court, in Harris v. Harris, overruled Spalding and held that

derivative Social Security benefits “do not constitute a special circumstance triggering an

automatic reduction in alimony[]” and that when a spouse receives derivative Social Security

benefits, “the trial court must weigh all the circumstances of both parties and find that an

unforeseen material change in circumstances occurred to modify alimony.” Harris, 241 So.

3d at 628. The Court of Appeals found that, since Harris overruled Spalding, “[t]he alimony

award in this case should be reevaluated in light of Harris.” Alford, 2019 WL 3297142, at

*6. The Court of Appeals reasoned that “Harris specifically holds that derivative Social

Security benefits will not justify a subsequent modification of alimony if the benefits were

anticipated or foreseeable at the time of the divorce.” Id. (citing Harris, 241 So. 3d at 628-

29). The Court of Appeals concluded that since it was foreseeable that “Linda [Alford] would

receive derivative benefits in the near future[,]” which “[would] not justify a later

modification of alimony,” the chancellor should have considered Linda Alford’s inevitable

receipt of derivative Social Security benefits in its “initial determination of alimony.” Id.

¶7.    As for Nat Alford’s two other arguments concerning the alimony award, the Court of

Appeals declined to address those arguments because it reversed and remanded the case “for

further consideration in light of Harris[.]” Id. Accordingly, the Court of Appeals ordered the

chancellor to consider the remaining arguments on remand. Id.

¶8.    Nat Alford argued that the chancellor erred by awarding Linda Alford attorney fees

and expert witness fees because she “received substantial assets in the equitable division of

assets,” giving her the ability to pay without having to liquidate all of her assets in order to



                                               4
pay the fees. The Court of Appeals found that the chancellor erred by awarding Linda Alford

attorney fees because she had “failed to meet her burden of establishing an inability to pay

her fees.” Id. at *8. According to the appeals court, she had not met her burden because “the

record [was] insufficient to demonstrate [Linda’s] inability to pay.” Id. (second alteration in

original) (internal quotation marks omitted) (quoting Gray v. Gray, 745 So. 2d 234, 239

(Miss. 1999)). The court reasoned that the record was insufficient because Linda Alford had

been paying some of her fees in monthly installments, and she had received “nearly half of

the marital assets” with no evidence demonstrating she “would have been required to

liquidate any significant part of her savings” in order to pay. Id. Thus, the Court of Appeals

reversed and rendered the chancellor’s award of attorney fees.

¶9.    Linda Alford filed for a writ of certiorari, which this Court granted. She argues that

the Court of Appeals should not have applied Harris because her case did not involve a

modification of alimony. She argues also that the appeals court’s interpretation of Harris was

erroneous because that court “misconstrued Harris as requiring a chancellor to automatically

adjust an alimony award on the front end based on the expectation of future Social Security

benefits,” which “is the very thing that Harris condemns.”

¶10.   Additionally, Linda Alford argues that the Court of Appeals’ reversal of her attorney

fees conflicts with the holding in Branch v. Branch, 174 So. 3d 932 (Miss. Ct. App. 2015).

She claims her only means for paying her fees is by “utilizing her share of the marital estate.”

Therefore, she asks this Court to reestablish the chancellor’s award of attorney fees and also

to award her appellate attorney fees.



                                               5
                                STANDARD OF REVIEW

¶11.   It is well settled that “[a]limony awards are within the discretion of the chancellor, and

his discretion will not be reversed on appeal unless the chancellor was manifestly in error in

his finding of fact and abused his discretion.” Harris, 241 So. 3d at 625 (internal quotation

marks omitted) (quoting Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993)).

“Chancellors are afforded wide latitude in fashioning equitable remedies in domestic

relations matters, and their decisions will not be reversed if the findings of fact are supported

by substantial credible evidence in the record.” Gutierrez v. Gutierrez, 233 So. 3d 797, 806

(Miss. 2017) (internal quotation mark omitted) (quoting Henderson v. Henderson, 757 So.

2d 285, 289-90 (Miss. 2000)). But “[i]f we find the chancellor’s decision manifestly wrong,

or that the court applied an erroneous legal standard, we will not hesitate to reverse.”

Armstrong, 618 So. 2d at 1280 (citing Smith v. Smith, 607 So. 2d 122, 126 (Miss. 1992)).

¶12.   “For questions of law, we employ a de novo standard of review and will only reverse

for an erroneous interpretation or application of the law.” Lewis v. Pagel, 233 So. 3d 740,

746 (Miss. 2017) (internal quotation marks omitted) (quoting Boyd v. Tishomingo Cty.

Democratic Exec. Comm., 912 So. 2d 124, 128 (Miss. 2005)).

¶13.   “Generally the award of attorney’s fees in a divorce case is left to the discretion of the

trial court.” Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994) (internal quotation marks

omitted) (quoting Cheatham v. Cheatham, 537 So. 2d 435, 440 (Miss. 1988)); see also

Ballard v. Ballard, 255 So. 3d 126, 135 (Miss. 2017) (“We have said time and time again

that an award of attorney’s fees in divorce cases is largely a matter entrusted to the sound



                                               6
discretion of the trial court.” (internal quotation marks omitted) (quoting Armstrong, 618 So.

2d at 1282)).

                                       DISCUSSION

       I.       Alimony Award

       A.       Did the Court of Appeals interpret Harris erroneously?

¶14.   The Court of Appeals held that the chancellor should have considered Linda Alford’s

near-future reception of derivative Social Security benefits when it made her initial alimony

award because “Harris specifically holds that derivative Social Security benefits will not

justify a subsequent modification of alimony if the benefits were anticipated or foreseeable

at the time of the divorce.” Alford, 2019 WL 3297142, at *6 (citing Harris, 241 So. 3d at

628-29).

¶15.   Linda Alford argues that the Court of Appeals erred in its interpretation of Harris.

According to her, Harris concerned “whether the other financial circumstances of the parties

had materially changed so as to warrant a modification of alimony, when coupled with the

advent of Social Security benefits” and did not concern whether derivative Social Security

benefits were foreseeable. This Court agrees. Harris did not hold that the future receipt of

derivative Social Security benefits is a foreseeable circumstance that would not allow a

subsequent modification of alimony; rather, Harris said that when an alimony recipient

acquires derivative Social security benefits, the alimony payor may seek a downward

modification of his or her alimony payments after the chancery court considers the totality

of the parties’ circumstances, not merely the receipt of derivative Social Security benefits.



                                              7
Harris, 241 So. 3d at 628. We find that Harris requires the chancellor to examine the impact

the reception of derivative Social Security benefits causes and not the reception alone. We

find also that it is the unpredictable impact that stymies foreseeability at the time of the initial

alimony award. Thus, we hold that the Court of Appeals interpreted Harris incorrectly.

¶16.   At the time of the Alfords’ divorce, the law regarding derivative Social Security

benefits provided that the spouse paying alimony was entitled to an automatic credit toward

his alimony obligation “because the amount was based on his income.” Harris, 241 So. 3d

at 626 (citing Spalding, 691 So. 2d at 439). In 2018, this Court overruled Spalding “to the

extent that it holds an alimony reduction to be automatic for Social Security benefits derived

from the alimony-paying spouse’s income.” Id. at 624. The issue in Harris involved a

modification of a property settlement agreement, and this Court held that

       Social Security benefits derived from the other spouse’s income do not
       constitute a special circumstance triggering an automatic reduction in alimony.
       When a spouse receives Social Security benefits derived from the other
       spouse’s income, the trial court must weigh all the circumstances of both
       parties and find that an unforeseen material change in circumstances occurred
       to modify alimony.

Harris, 241 So. 3d at 628.

¶17.   Harris did not say that derivative Social Security benefits can never be a basis for

modifying an alimony award, only that the reception of derivative Social Security benefits

does not “trigger[] an automatic reduction in alimony.” Id. The Court in Harris said that

when a person receives derivative Social Security benefits, there can be a later modification

of alimony as long as the chancellor “weigh[s] all the circumstances of both parties and

find[s] that an unforeseen material change in circumstances occurred to modify alimony.”

                                                 8
Id. If we were to agree with the Court of Appeals that “derivative Social Security benefits

will not justify a subsequent modification of alimony if the benefits were anticipated or

foreseeable at the time of the divorce[,]” Alford, 2019 WL 3297142, at *6 (citing Harris, 241

So. 3d at 628-29), one would not be able to seek a modification under Harris because it is

foreseeable that most Americans will receive Social Security benefits at some point in their

lives.

¶18.     The Court of Appeals found that it was “clearly foreseeable” that Linda Alford would

receive derivative Social Security benefits “in the near future” and it was the reception of

those benefits that would not justify a later modification according to Harris. Alford, 2019

WL 3297142, at *6. While it may be foreseeable that a litigant will receive Social Security

benefits, the impact of the benefits on both parties cannot be anticipated or foreseen. The

chancellor must consider such benefits in conjunction with “all the circumstances of both

parties” in order to determine whether there is an “unforeseen material change in

circumstances” that justifies modifying alimony. Harris, 241 So. 3d at 628. It also may be

said that it is clearly foreseeable that a person will get older and/or a person’s health will

decline; yet courts have determined that these foreseeable events sometimes can create

unanticipated, unforeseeable material changes in circumstances that justify the modification

of alimony. See Broome v. Broome, 75 So. 3d 1132, 1141 (Miss. Ct. App. 2011) (“The

chancellor found T.C.’s standard of living dramatically decreased over the years since the

divorce decree due to his poor health and advanced age.”); Makamson v. Makamson, 928

So. 2d 218, 221 (Miss. Ct. App. 2006) (“These are specific findings that the increased costs,



                                              9
length of time before treatment was to begin and the stroke were not anticipated in the

property settlement agreement.”). Contra Weeks v. Weeks, 29 So. 3d 80, 90-91 (Miss. Ct.

App. 2009) (“With the extensive testimony concerning Deborah’s medical problems and the

state of her health before the judgment after remand was entered, we cannot say that the

increased expenses due to the progression of these problems was in any way unforeseeable

by the parties.”).

¶19.   In Harris, this Court considered the South Carolina case Serowski v. Serowski in

deciding whether a modification of alimony “due to the start of Social Security benefits” was

automatic or “require[d] a showing of a material or substantial change in circumstances[.]”

Harris, 241 So. 3d at 628 (citing Serowski v. Serowski, 672 S.E. 2d 589, 593 (S.C. Ct. App.

2009)). In Serowski, the court did not find that the spouse’s reception of Social Security

benefits was a foreseeability that would not allow a modification of alimony. Serowski, 672

S.E. 2d at 593 (“[T]he court found Wife’s increase in income due to her receipt of social

security and annuity benefits had improved her ability to meet her needs.”). Instead, the court

upheld a modification of alimony by considering the impact the Social Security benefits had

on the wife’s income in conjunction with the increase in the wife’s net worth and the

husband’s decline in health. Id. at 593-94 (“[T]he court properly considered both parties’

economic circumstances in reaching its finding.” (citing Eubank v. Eubank, 555 S.E. 2d

413, 417 (S.C. Ct. App. 2001))).

¶20.   Similarly, this Court determines that Harris does not hold that the mere reception of

derivative Social Security benefits is a foreseeable circumstance that would preclude a



                                              10
subsequent modification of alimony. Harris, 241 So. 2d at 628. In Harris we reversed and

remanded, not because it was foreseeable that a person would receive derivative Social

Security benefits, but because the trial court had failed to perform the proper analysis and

determine whether all of the circumstances, including the impact the reception of derivative

Social Security benefits had on both parties, constituted an unforeseen material change in

circumstances. Id. at 628-29. Merely receiving derivative Social Security benefits alone is

not enough to allow a modification of alimony because there must be judicial consideration

of its impact on the parties, a factor that is not foreseeable at the time of the divorce. See

Ivison v. Ivison, 762 So. 2d 329, 334 (Miss. 2000) (“An award of alimony can only be

modified where it is shown that there has been a material change in the circumstances of one

or both of the parties.” (citing Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995))); Tingle

v. Tingle, 573 So. 2d 1389, 1391 (Miss. 1990) (“This change, moreover, must also be one

that could not have been anticipated by the parties at the time of the original decree.” (citing

Morris v. Morris, 541 So. 2d 1040, 1043 (Miss. 1989); Trunzler v. Trunzler, 431 So. 2d

1115, 1116 (Miss. 1983))).

¶21.   We clarify our holding in Harris: when an alimony payor seeks an alimony

modification based on the payee’s receipt of derivative Social Security benefits, the trial

court must consider whether the impact of the derivative Social Security benefits on the

parties constitutes a “material or substantial change in the circumstances[,]” Tingle, 573 So.

2d at 1391 (citing Clark v. Myrick, 523 So. 2d 79, 82 (Miss. 1988); Shaeffer v. Shaeffer,

370 So. 2d 240, 242 (Miss. 1979)), that arose after the original judgment and “could not have



                                              11
been anticipated by the parties at the time of the original decree[,]” Morris, 541 So. 2d at

1043; Trunzler, 431 So. 2d at 1116, and whether the change in circumstances calls for an

alteration of alimony under the factors governing alimony awards from Armstrong, 618 So.

2d at 1280. See Steiner v. Steiner, 788 So. 2d 771, 776 (Miss. 2001) (“The chancellor must

consider what has become known as the Armstrong factors in initially determining whether

to award alimony, the amount of the award, and in deciding whether to modify periodic

alimony, comparing 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.” (citing Tilley v.

Tilley, 610 So. 2d 348, 353-54 (Miss. 1992))).

       B.     Should chancellors consider a spouse’s future derivative Social
              Security benefits in the initial determination of alimony?

¶22.   The Court of Appeals determined that since it was “clearly foreseeable” that Linda

Alford was to receive derivative Social Security benefits “in the near future[,]” then the only

allowable time for a chancellor to consider derivative Social Security benefits is at “the

initial determination of alimony.” Alford, 2019 WL 3297142, at *6. Harris does permit a

modification of alimony once an alimony payee begins receiving derivative Social Security

benefits, as long as the chancellor conducts the proper analysis. Harris, 241 So. 3d at 628.

But this Court has not addressed whether a chancellor is to consider future, not-yet-received

derivative Social Security benefits at the initial alimony determination.

¶23.   Linda Alford argues that the Court of Appeals’ decision to consider derivative Social

Security benefits at the initial alimony determination will force chancellors to engage in




                                               12
speculation about the impact of future Social Security benefits because “there are too many

unknowns to be able to conduct such an analysis in advance.”

¶24.   While it can be said that it is foreseeable that most Americans eventually will receive

Social Security benefits, this Court is of the opinion that there will be numerous cases that

present so many unknowns at the initial alimony determination that chancellors would be

forced to speculate about the amount and the impact such benefits will have on the parties.

Some of the unknown factors might be: (1) when the payor spouse actually will receive

Social Security benefits; (2) whether that spouse will begin to receive Social Security

benefits while still working; (3) what amount of Social Security benefits the payor spouse

will receive; (4) how many additional divorces, if any, the payor spouse may have before

receiving benefits; and (5) the health conditions of the parties. Of course, this list is not

exhaustive.

¶25.   Here, the chancellor conducted an Armstrong analysis, taking into consideration that

Nat Alford and Linda Alford were nearing retirement age but acknowledging that both were

working at the time of the trial. At trial, Nat Alford provided the chancellor estimates of his

potential Social Security benefit amounts, which had been obtained from the local Social

Security Office and were based on his previous wages through 2015, for the retirement ages

of sixty-three, sixty-six, and seventy. Additionally, an expert witness, John Paris, testified

that Linda Alford could claim derivative Social Security benefits at the age of sixty-six and

a half and that she would get one-half of Nat Alford’s benefits.




                                              13
¶26.    Even with this evidence, it still was impossible for the chancellor to know the actual

time Linda Alford would begin to draw Social Security benefits or the amount she would

receive. Nat Alford testified that he planned to retire at sixty-seven but he testified also that

he believed he could work another ten years and agreed that it was his choice on when to

retire. For a chancellor to engage in speculation about derivative Social Security benefits is

not fair to either party. If the chancellor guesses wrong, under the Court of Appeals’ decision,

the parties would not be able to seek modification. See Ivison, 762 So. 2d at 334 (citing

Varner, 666 So. 2d at 497); Tingle, 573 So. 2d at 1391 (citing Morris, 541 So. 2d at 1043;

Trunzler, 431 So. 2d at 1116). We decline to require chancery courts to engage in such

speculation. Parties may seek modification at a later date when they actually are drawing

Social Security benefits and when the chancellor has an actual basis on which to “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, 788 So. 2d at 776.

¶27.    While Harris and the Alfords’ case are procedurally different, we find that Harris

applies here only to the extent that it overruled Spalding by establishing that there shall be

no automatic reductions in alimony for derivative Social Security benefits. Harris, 241 So.

3d at 628. Under Spalding, alimony had been reduced automatically when an alimony payee

began drawing derivative Social Security benefits. Id. at 626 (citing Spalding, 691 So. 2d at

439).

¶28.    While an alimony-paying former spouse may be entitled to a reduction in alimony

when the other former spouse receives derivative Social Security benefits, the reduction is



                                               14
not an automatic one. Harris, 241 So. 3d at 629. Because considering derivative Social

Security benefits at the time of the initial alimony decree is fraught with too many unknowns

and reducing alimony at the time of the initial alimony decree would violate Harris to the

extent that it overruled Spalding, this Court holds that the consideration of derivative Social

Security benefits shall be reserved exclusively for later modifications of alimony.

¶29.   We find that no harm will be suffered by either party by requiring them to wait until

they actually are drawing Social Security benefits before seeking an adjustment in the

alimony payments. Therefore, the Court of Appeals erred by remanding this case for the

chancellor to consider Linda Alford’s future, not-yet-received derivative Social Security

benefits.

       C.     Because the Court of Appeals remanded Nat Alford’s other
              arguments regarding the alimony award without giving them due
              consideration, we address them now.

¶30.   The Court of Appeals determined that since it had “already determined that the

alimony award must be reversed and remanded for further consideration in light of Harris,”

it was not necessary to address Nat Alford’s other arguments regarding the alimony award

and ordered the chancellor to consider these arguments on remand. Alford, 2019 WL

3297142, at *6-7. Because we are reversing the Court of Appeals’ decision, this Court must

address Nat Alford’s other arguments.

¶31.   Nat Alford presented three issues regarding the chancellor’s alimony award to the

Court of Appeals, arguing that

       the chancellor did not adequately consider that the parties are nearing
       retirement age and that Linda will soon be eligible to receive Social Security


                                              15
       benefits. He also argues that the chancellor did not adequately consider the
       assets that Linda received as part of the equitable distribution of the marital
       estate, as well as the anticipated future income and returns that those assets
       will produce. Finally, Nat argues that Linda’s claimed expenses are overstated.

Id. at *1.

¶32.   Nat Alford argued that the chancellor “did not adequately survey the relative financial

situations of the parties after equitable division.” After dividing the marital assets and debts,

the chancellor awarded Nat Alford 51 percent of the parties’ marital equity and awarded

Linda Alford 49 percent of the parties’ martial equity. Then, the chancellor conducted an

Armstrong analysis and found that those factors weighed in favor of awarding Linda Alford

alimony. See Holcombe v. Holcombe, 813 So. 2d 700, 704 (Miss. 2002) (“On appeal, this

Court presumes that the chancellor considered all factors in the decision.” (citing Voda v.

Voda, 731 So. 2d 1152, 1155 (Miss. 1999))). We find no error with the chancellor’s analysis,

and we hold that the chancellor was correct in finding that the Armstrong factors weighed

in favor of awarding alimony.

¶33.   Nat Alford claimed also that Linda Alford’s claimed expenses were not accurate.

Linda Alford was questioned about her expenses at trial. This Court has stated that “[t]he

chancellor is tasked with the duty of evaluating the evidence and the credibility of the

witnesses.” Alexis v. Black, 283 So. 3d 1105, 1110 (Miss. 2019). We find that Nat Alford’s

argument is without merit because the chancellor did consider the evidence about Linda

Alford’s expenses and in fact did reduce some of them. See Alford, 2019 WL 3297142, at

*5 n.3. We find that the chancellor considered the Armstrong factors and was correct in




                                               16
finding that the factors weighed in favor of awarding Linda Alford $5,000 per month in

periodic alimony.

       II.    Attorney Fees

¶34.   This Court has held that “the award of attorney’s fees in a divorce case is left to the

discretion of the trial court.” Hemsley, 639 So. 2d at 915 (internal quotation mark omitted)

(quoting Cheatham, 537 So. 2d at 440). We held in Gray v. Gray that

       It is well settled in Mississippi that if a party is financially able to pay an
       attorney, an award of attorney’s fees is not appropriate. Benson v. Benson, 608
       So. 2d 709, 712 (Miss. 1992); See Martin v. Martin, 566 So. 2d 704, 707
       (Miss. 1990). Furthermore, if the record is insufficient to demonstrate the
       wife’s inability to pay the attorney’s fees, then an award of the fees is an abuse
       of discretion. Benson, 608 So. 2d at 712; Jones v. Starr, 586 So. 2d 788, 792
       (Miss. 1991).

Gray, 745 So. 2d at 239.

¶35.   The chancellor awarded Linda Alford $11,000 in fees: $5,000 for attorney fees and

$6,000 for expert witness fees. The Court of Appeals found that Linda Alford had failed to

meet her burden of proof because the record failed to show her inability to pay the fees.

Alford, 2019 WL 3297142, at *8. The Court of Appeals reasoned that Linda Alford had the

ability to pay because “Linda [Alford] received nearly half of the marital assets, which her

attorney agreed would be sufficient to allow her to pay her attorney’s fees.” Id.

¶36.   In her petition for a writ of certiorari, Linda Alford claims that the Court of Appeals

violated its own holding that, “a party is not required to liquidate all assets to pay for

attorney’s fees[,]” and the only means she has for paying her fees is by utilizing her share of




                                              17
the marital estate because she cannot be expected to pay her attorney fees based on her

$1,500 per month income. Branch, 174 So. 3d at 946.

¶37.   Although it is true that Linda Alford earns only $1,500 per month from her job, she

was awarded alimony and a significant amount of the marital assets to enable her to pay her

attorney fees and her expert witness fees without significantly depleting her assets.

¶38.   While we recognize that Linda Alford’s attorney’s testimony and her own testimony

seem to call her ability to pay the attorney fees into question, we find that the record lacked

sufficient evidence to establish her inability to pay. As the Court of Appeals stated, Linda

Alford failed to establish how much she still owed her attorney and she failed to show that

she “would have been required to liquidate any significant part of her savings to pay her

attorney or her expert.” Alford, 2019 WL 3297142, at *8. We find that the Court of Appeals

did not err by reversing and rendering the chancellor’s award of fees.

¶39.   Additionally, Linda Alford asked in her petition for this Court to award her appellate

attorney fees. We find that Linda Alford should not be awarded appellate attorney fees.

                                      CONCLUSION

¶40.   The Court of Appeals erroneously interpreted Harris. When an alimony payee begins

receiving derivative Social Security benefits and the payor seeks to modify the alimony

award, chancellors are to consider the impact of the benefits upon the parties in light of the

totality of their circumstances at that time. A chancellor cannot make a prospective

determination concerning the effect of a spouse’s derivative Social Security benefits at the




                                              18
time of the initial alimony award. Such a determination may not be made until the parties

actually begin to receive Social Security benefits and a modification of the award is sought.

¶41.   The Court of Appeals erred by reversing the chancellor’s award of alimony.

Accordingly, we reverse the judgment of the Court of Appeals and reinstate the chancellor’s

award of $5,000 per month in periodic alimony. We find also that the Court of Appeals’

reversal and rendering of the chancellor’s award of attorney fees should be affirmed.

¶42. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART
AND REVERSED IN PART. THE ALIMONY AWARD BY THE CHANCERY
COURT OF SHARKEY COUNTY IS REINSTATED AND AFFIRMED.

    RANDOLPH, C.J., KING, P.J., COLEMAN,                           MAXWELL,         BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.




                                             19
