                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2016-CT-00532-SCT

SUSAN HARRIS

v.

THOMAS L. HARRIS

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                          03/16/2016
TRIAL JUDGE:                               HON. H. DAVID CLARK, II
TRIAL COURT ATTORNEYS:                     THOMAS L. TULLOS
                                           WILLIAM B. JACOB
COURT FROM WHICH APPEALED:                 NEWTON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                    THOMAS L. TULLOS
ATTORNEYS FOR APPELLEE:                    WILLIAM B. JACOB
                                           JOSEPH A. KIERONSKI, JR.
                                           DANIEL P. SELF, JR.
NATURE OF THE CASE:                        CIVIL - DOMESTIC RELATIONS
DISPOSITION:                               REVERSED AND REMANDED - 02/01/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1.    Thomas Leon Harris sought a reduction in the alimony award he paid to Susan Harris,

due to the Social Security benefits she was receiving that were based on his income. After

review of the applicable law in Mississippi and in other states, we overrule Spalding v.

Spalding, 691 So. 2d 435 (Miss. 1997), to the extent that it holds an alimony reduction to be

automatic for Social Security benefits derived from the alimony-paying spouse’s income.

Further, we fully reverse the judgment of the Court of Appeals and remand for the trial court
to perform the proper analysis under Armstrong v. Armstrong, 618 So. 2d 1278 (Miss.

1993), and our alimony-modification caselaw in light of the instant holding.

                             STATEMENT OF THE FACTS

¶2.    Susan Harris (Susan) and Thomas Leon Harris (Leon) were married on July 14, 1979.

On the grounds of irreconcilable differences, they were divorced on February 25, 2011. At

the time of divorce, Leon was sixty-one years old, and Susan was sixty years old. In the

Property Settlement Agreement, Leon agreed to pay $2,755 per month to Susan as periodic

alimony. The Property Settlement Agreement did not address any contingency with respect

to the alimony other than that it would end at Susan’s remarriage or death. After the divorce,

when Susan became eligible for Social Security, she filed for and obtained derivative Social

Security retirement benefits in the amount of $1,035 per month, based on Leon’s income

record with the Social Security Administration.

¶3.    In 2015, Susan filed a complaint to review the health provision of the Property

Settlement Agreement. Leon answered, filing a Motion to Dismiss Susan’s complaint under

Mississippi Rule of Civil Procedure 12(b)(6), and he filed a counterclaim to reduce or

terminate his alimony payments in light of the fact that Susan had begun drawing Social

Security benefits based on his earnings record. Leon maintained that he should be required

to pay Susan only an additional $1,720 per month, since she was already drawing $1,035 per

month from Social Security as a result of his earnings record.

¶4.    The trial court granted Leon’s Rule 12(b)(6) Motion to Dismiss, and the trial court

entered a judgment modifying the Property Settlement Agreement by lowering Leon’s



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alimony payments from $2,755 to $1,720 a month, stating, without explanation, that there

had been a material change in circumstances. Susan appealed on the sole issue of the trial

court’s modification of the Property Settlement Agreement. The Court of Appeals affirmed

the trial court’s decision, holding that a material change in circumstances need not be shown

and assessing all costs of the appeal to Susan. Susan sought rehearing, which was denied,

but we granted certiorari.

                             STATEMENT OF THE ISSUES

¶5.    Certiorari was granted on two issues. Stated verbatim, the two issues are:

       (1)    The lower court erred when it granted Leon credit for the Social Security
              benefits received by Susan.

       (2)    The chancellor erred when he modified the Agreed Property Settlement
              Agreement.

For clarity, we have restated the issues:

       (1)    Whether the Social Security benefits received by Susan based on
              Leon’s income constituted an automatic downward modification in
              the alimony granted in the Property Settlement Agreement.

       (2)    Whether a material change in circumstances warranted a
              downward modification in the alimony granted in the Property
              Settlement Agreement.


                                STANDARD OF REVIEW

¶6.    The standard of review of an alimony award is well-settled. “Alimony 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.”

Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993) (internal citation omitted).


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However, if we hold the “chancellor’s decision manifestly wrong, or that the court applied

an erroneous legal standard, we will not hesitate to reverse.” Id.

                                        ANALYSIS

       (1)    Whether the Social Security benefits received by Susan based on
              Leon’s income constituted an automatic downward modification
              in the alimony granted in the Property Settlement Agreement.

¶7.    On certiorari, Leon maintains that the credit he received for the Social Security

benefits was not a modification of the alimony provision because Susan still received the

same amount of alimony ($2,755) between his payment and her Social Security benefits.

Therefore, a material change in circumstances was never needed. On the other hand, Susan

argues that holding an alimony credit to be automatic for Social Security benefits claimed

and paid to the dependent spouse is a “complete break” from the requirement that a material

change in circumstances is required.

¶8.    “The purpose of permanent periodic alimony is to be a substitute for the

marital-support obligation.” Rogillio v. Rogillio, 57 So. 3d 1246, 1250 (Miss. 2011). The

award of permanent periodic alimony arises from the duty of the financially independent

spouse to support the financially dependent spouse. Id. “The rule of law providing for the

modification of periodic alimony awards arises from the nature of alimony itself, which is

based upon the inherently changing financial ability of the [financially independent spouse]

to support [the financially dependent spouse] in the manner to which [he or she] is

accustomed.” McDonald v. McDonald, 683 So. 2d 929, 931 (Miss. 1996). In Mississippi,

in determining whether to modify an alimony award, the trial court should “consider the



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present status of the parties . . . .” Spradling v. Spradling, 362 So. 2d 620, 623 (Miss. 1978);

see also Ivison v. Ivison, 762 So. 2d 329, 334 (Miss. 2000) (holding that the material change

in circumstances of one or both parties must be shown). Further, the Court found reversible

error where the trial court failed to consider the substantial increase in earnings of the

appellee who sought the modification in alimony. Spradling, 362 So. 2d at 623. Also, the

change in circumstances must be due to an after-arising circumstance that was not anticipated

by the parties at the time of the original decree. Tingle v. Tingle, 573 So. 2d 1389, 1391

(Miss. 1990); see also Holcombe v. Holcombe, 813 So. 2d 700, 703 (Miss. 2002).

¶9.    As stated above, the Court of Appeals held that a material change in circumstances

was not needed to amend the Property Settlement Agreement. It cited Spalding v. Spalding,

691 So. 2d 435, 439 (Miss. 1997), stating that the “chancellor did not abuse his discretion in

failing to require Leon to show a material change in circumstances because Leon’s obligation

to pay alimony in the amount set forth in the Agreement remains the same.” Harris v.

Harris, 2017 WL 2129752, at ¶ 10 (Miss. Ct. App. May 16, 2017), reh’g denied (Aug. 22,

2017), cert. granted, 2017 WL 2129752 (Miss. Nov. 16, 2017).

¶10.   The question before us comes down to whether the Spalding Court created an

exception, as argued by Leon, in which a material change in circumstances is not needed to

amend the Property Settlement Agreement with regard to alimony when Social Security

benefits are received based upon the independent spouse’s income. The issue in Spalding

was one of first impression in Mississippi, and it asked the Court to determine whether

William Spalding was entitled to a credit in the amount of alimony he paid to Betty Spalding



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because she had begun to claim her Social Security benefits based on his income. Spalding,

691 So. 2d at 436-37. The Court held that William should be credited for the amount Betty

received because the amount was based on his income. Id. at 439. The Spalding Court did

not consider whether the benefits constituted an unforeseeable and material change in

circumstances. It merely concluded that “no valid reason exists to treat derivative Social

Security benefits differently with respect to alimony or child support.” Spalding, 691 So. 2d

at 439. The Spalding Court based its decision on two cases: Mooneyham v. Mooneyham,

420 So. 2d 1072 (Miss. 1982), and Frazier v. Frazier, 455 So. 2d 883 (Ala. Civ. App. 1984).

¶11.   The Mooneyham Court concluded that Social Security disability benefits—based on

the noncustodial parent’s disability—that are paid to the child should be credited to the non-

custodial parent’s support obligations. Mooneyham, 420 So. 2d at 1074. Notably, the Social

Security disability benefits were paid due to the noncustodial parent’s inability to work, and

the noncustodial parent received no additional Social Security benefits, aside from the

benefits used to cover child support. Id.

¶12.   Under 42 U.S.C.A. § 402, once a divorced spouse reaches the age of sixty-two, he or

she is entitled to Social Security benefits that are “equal to one-half of the primary insurance

amount of her husband (or, in the case of a divorced wife, her former husband) for such

month.” 42 U.S.C.A. § 402(b)(2). Further, use of the former spouse’s income to receive

benefits does not affect that former spouse’s benefits. The applicable statute provides:

       (C) When any of such individuals is entitled to monthly benefits as a divorced
       spouse under section 402(b) or (c) of this title or as a surviving divorced
       spouse under section 402(e) or (f) of this title for any month, the benefit to
       which he or she is entitled on the basis of the wages and self-employment

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       income of such insured individual for such month shall be determined without
       regard to this subsection, and the benefits of all other individuals who are
       entitled for such month to monthly benefits under section 402 of this title on
       the wages and self-employment income of such insured individual shall be
       determined as if no such divorced spouse or surviving divorced spouse were
       entitled to benefits for such month.

42 U.S.C.A. § 403 (emphasis added). In other words, Leon’s Social Security payments are

not affected by Susan’s use of his income to claim her Social Security benefits. Turning to

Mooneyham, the noncustodial parent’s only Social Security benefits were being received by

the child. If, for instance, Leon had received his Social Security benefits and sent them or

assigned them to Susan, the instant case would be on point with Mooneyham. However,

Spalding and the instant case are materially distinguishable from Mooneyham, and the

Spalding Court’s reliance on Mooneyham is misplaced.

¶13.   As stated above, the Spalding Court also relied on a decision from Alabama. See

Frazier, 455 So. 2d at 883. On an issue of first impression, the Frazier Court decided that

an alimony credit should be received by the independent spouse, when the dependent spouse

uses the independent spouse’s income to claim Social Security benefits. We expound upon

the basis for the Frazier Court’s holding below.

¶14.    First, like the Spalding Court, the Frazier Court considered Alabama caselaw that

credited Social Security disability benefits to child-support obligations, as in Mooneyham.

Frazier, 455 So. 2d at 883. And, as explained above, the credit received for Social Security

disability benefits in child-support cases is materially different from the credit sought here.

Therefore, the child-support cases are materially distinguishable from Frazier, Spalding, and

the instant case.

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¶15.   Second, it considered an Alabama case, Swindle v. Swindle, 429 So. 2d 601, 603 (Ala.

Civ. App. 1983), in which a husband was bound by the couple’s property settlement to pay

the mortgage on the house, but the court held that his agreement was satisfied when, due to

a fire, the insurance company paid the mortgage. The court reasoned that “[t]here was no

evidence of any duty which had been imposed upon the husband to furnish such a fire

policy.” Id. And the court concluded, “It makes no difference that the mortgage was satisfied

by the insurance payment from the policy so furnished by the husband for, under the

circumstances, payment by the insurer to the mortgagee was the legal equivalent of the

husband’s satisfaction of that debt.” Id.

¶16.   As with the Social Security disability benefits credited for child support, the husband

in Swindle did not receive additional insurance payments, other than the insurance payments

used to pay the mortgage. Further, the insurance payments were due to the husband’s

attainment and maintainence of the insurance policy. However, in the case of an alimony

credit for Social Security benefits, the Social Security benefits belong to the dependent

spouse, and although the amount is derived from the other spouse’s income, the other

spouse’s Social Security benefits are not affected.

¶17.   Finally, Frazier considered a Georgia case, Horton v. Horton, 132 S.E.2d 200 (Ga.

1963), stating, “It has been decided that, inasmuch as the amount of alimony required to be

paid is determined somewhat by income, Social Security benefits should be credited in

discharging an obligation to pay periodic alimony.” Id. at 885. However, the issue in Horton

was the calculation of alimony and that calculation included child-support payments.



                                              8
Horton, 132 S.E.2d at 200-201. More specifically, the court decided that the husband’s

Social Security disability benefits would be credited toward the child-support obligation. Id.

at 201.   Therefore, Horton is directly in line with Mooneyham and is materially

distinguishable from Frazier, Spalding, and the instant case. Thus, considering the analysis

of the Frazier Court, the Spalding Court’s reliance on Frazier also is misplaced.

¶18.   Further, Georgia subsequently spoke to our specific issue. See Bell v. Bell, 356

S.E.2d 869, 869 (Ga. 1987). The Bell Court did not apply a credit to alimony benefits when

the dependent spouse’s Social Security benefits were derived from the independent spouse’s

income. Bell, 356 S.E.2d at 869. The Bell Court’s reasoning is instructive:

       A divorced wife is entitled, pursuant to 42 U.S.C.A. § 402(b)(1), to insurance
       benefits if she fulfills the requirements set forth in 42 U.S.C.A. § 402. Thus,
       under federal law the insurance benefits belong to the appellee. We have
       recognized that a wife’s “efforts toward the furtherance of her husband’s
       career [contribute] to the accumulation of . . . retirement benefits, and that
       [the] efforts [are] made with the expectation that [the] retirement benefits
       [will] provide her with some measure of personal security and future
       well-being.” Courtney v. Courtney, 256 Ga. 97, 99, 344 S.E.2d 421 (1986).

Id. Like Georgia, other states, such as South Carolina, Tennessee, and West Virginia, require

a showing of a material or substantial change in circumstances to modify alimony due to the

start of Social Security benefits. Serowski v. Serowski, 672 S.E.2d 589, 593 (S.C. Ct. App.

2009) (requiring a substantial change in circumstances); Harris v. Harris, 2004 WL

2607541, at *5 (Tenn. Ct. App. Nov. 16, 2004) (requiring an unforseen material change in

circumstances); Phillips v. Phillips, 403 S.E.2d 744 (W. Va. 1991) (requiring a substantial

change in circumstances).




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¶19.   Today, we hold that Mississippi falls in line with these jurisdictions. 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 unforseen material change in circumstances

occurred to modify alimony. See Ivison, 762 So. 2d at 334 (holding that the circumstances

of both parties are considered to determine whether there was a material change); see also

Tingle, 573 So. 2d 1389, 1391 (Miss. 1990) (holding that change in circumstances must be

after-arising and unanticipated). To the extent that Spalding states otherwise, it is overruled.

       (2)    Whether a material change in circumstances warranted a
              downward modification in the alimony granted in the Property
              Settlement Agreement.

¶20.   Leon certainly may be entitled to a reduction in alimony, but it is not an automatic

reduction due to Susan’s Social Security benefits based on his income. The trial court is

required to consider the Armstrong factors in its finding when it modifies a periodic alimony

award. Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993); see also Steiner v.

Steiner, 788 So. 2d 771, 776 (Miss. 2001) (“The chancellor must consider what has become

known as the Armstrong factors 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.”). The trial court also must

consider the financial positions of both parties and whether the change in circumstances was

due to an after-arising circumstance that was not anticipated by the parties at the time of the



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original decree. See Ivison, 762 So. 2d at 334; Tingle, 573 So. 2d at 1391; Spradling, 362

So. 2d at 623.

¶21.   Although the trial court was following the law under Spalding, because we overrule

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, we hold the trial court’s failure

to consider the Armstrong factors, the financial positions of both parties, and the

foreseeabliltiy of Social Security payments to be reversible error. Thus, we reverse the

judgment of the Court of Appeals, including the assessment of costs on appeal, and we

remand the case to the trial court to perform the proper analysis in light of our clarification

that no automatic reduction in alimony is triggered by Social Security benefits derived from

the alimony-paying spouse’s income. To be clear, the instant holding separates Social

Security benefits that affect alimony from Social Security benefits that affect child support,

and the caselaw regarding Social Security benefits that affect child support is not changed

by this holding.

¶22.   REVERSED AND REMANDED.

   WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN,
MAXWELL AND BEAM, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.




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