         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CA-00526-COA

WILLIAM LANE                                                                 APPELLANT

v.

STELLA B. LANE                                                                 APPELLEE


DATE OF JUDGMENT:                          02/06/2014
TRIAL JUDGE:                               HON. DAN H. FAIRLY
COURT FROM WHICH APPEALED:                 RANKIN COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                   JOHN R. REEVES
                                           JOHN JUSTIN KING
ATTORNEY FOR APPELLEE:                     SHARON PATTERSON THIBODEAUX
NATURE OF THE CASE:                        CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:                   GRANTED FULL FAITH AND CREDIT TO
                                           TEXAS DIVORCE DECREE AND
                                           ENFORCED SEPARATE-MAINTENANCE
                                           ORDER
DISPOSITION:                               AFFIRMED: 12/01/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       FAIR, J., FOR THE COURT:

¶1.    William Lane sought termination of a Mississippi separate-maintenance order after

he divorced his wife, Stella, in Texas. The Rankin County Chancery Court granted full faith

and credit to the Texas divorce decree (which had itself accorded full faith and credit to the

Mississippi separate-maintenance judgment) and enforced the terms of its prior separate-

maintenance judgment. Finding no error, we affirm.

                                          FACTS
¶2.    William and Stella married in 1982 and had one child together. They separated in

2005. On October 18, 2006, the chancery court, after a trial, entered a judgment for separate

maintenance requiring William to pay Stella 55% of the net proceeds upon sale of the marital

residence, 75% of Stella’s and the child’s out-of-pocket medical and dental expenses, a

portion of Stella’s and their child’s car notes and insurance, and $500 per month for Stella’s

living expenses. That judgment was not appealed.

¶3.    William moved to Texas, and at his instance the parties were divorced in Texas on

August 28, 2013. The divorce decree included the following language: “The Court finds

that the parties entered into a Judgment for Separate Maintenance . . . attached as Exhibit A

to this Decree. It is not the intent or purpose of this decree, nor shall it be construed or

interpreted to alter, change, limit, diminish, or cancel any provisions of said judgment.” On

November 12, 2013, William filed a complaint requesting that the chancery court dismiss his

separate-maintenance obligations based on the parties’ Texas divorce judgment. Stella

counterclaimed for contempt and enforcement of the separate-maintenance order.

¶4.    The chancery court ruled in favor of Stella, entering a judgment granting full faith and

credit to the Texas divorce decree and enforcing the judgment of separate maintenance.

William appeals.

                               STANDARD OF REVIEW

¶5.    “This Court will not disturb a chancellor’s judgment when supported by substantial

evidence unless the chancellor abused his discretion, was manifestly wrong, [or was] clearly


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erroneous, or an erroneous legal standard was applied.” Chapel v. Chapel, 876 So. 2d 290,

292 (¶8) (Miss. 2004) (citation omitted).

                                        DISCUSSION

¶6.    The only issue on appeal is whether William can use a foreign divorce decree to

terminate (not modify)1 a Mississippi separate-maintenance judgment after signing an

agreement to the contrary. We find that he cannot for two reasons: (1) Stella’s separate

maintenance and matters of marital property and marital debt remain within the jurisdiction

of the chancery court; and (2) the solemn agreement of the parties in the Texas proceedings,

as recognized and adopted by the Texas trial court in a decree signed by both parties as to

form and substance, is contractual in nature, and enforceable for that reason as well.

Provisions set out in the separate-maintenance judgment remain subject to judicial

enforcement by the chancery court through its grant of full faith and credit to the Texas

judgment and through both courts’ recognition of jurisdiction over different aspects of the

parties’ relationship as citizens of different states.

       1. Jurisdiction of the Mississippi Court

¶7.    William argues that the chancellor erred when he declined to terminate the separate-

maintenance obligation as a matter of law based on the entry of the Texas divorce decree.

“Article IV, § 1 of the United States Constitution requires that full faith and credit be given


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         A divorce can be a material change in circumstances warranting modification of a
prior separate-maintenance order. Landrum v. Landrum, 498 So. 2d 1229, 1230 (Miss.
1986) (citation omitted).

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to the judicial proceedings of sister states.” Lofton v. Lofton, 924 So. 2d 596, 599 (¶15)

(Miss. Ct. App. 2006) (quoting Kolikas v. Kolikas, 821 So. 2d 874, 880 (¶34) (Miss. Ct. App.

2002)). “However, those proceedings are only entitled to full faith and credit where the

rendering court properly has subject matter and personal jurisdiction.” Id.

¶8.    “[A] divorce action involving one resident party and one foreign party may or may not

be able to adjudicate personal rights, though it can sever a marriage as long as at least one

party is a resident of that state.” Id. at 601 (¶27). William personally appeared before the

Texas court. At the time the suit was filed, he had been a domiciliary of Texas for six

months. Stella entered a general appearance through local counsel, ultimately signing the

divorce decree along with William as to “form and substance.” The divorce decree

specifically did not litigate the issues of support and property division. In fact, the decree

declined jurisdiction over all but the divorce itself, deferring to the chancery court and its

separate-maintenance judgment for “all issues involving the division of the property and debt

of the parties.”

¶9.     In Weiss v. Weiss, 579 So. 2d 539, 540-41 (Miss. 1991), the Mississippi Supreme

Court reaffirmed that Mississippi law allows for separate litigation of divorce and alimony.

Thomas and Barbara Weiss married in Mississippi. Id. at 540. Thomas later moved to

Louisiana and filed for divorce. Id. That same year, Barbara filed a request for separate

maintenance in Mississippi. Id. The Louisiana court granted the divorce but reserved the




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issue of alimony for the Mississippi court.2 Id. Our supreme court held that the Mississippi

court had jurisdiction to determine alimony because the parties’ foreign divorce decree did

not litigate the issue of alimony. Id. at 541.

¶10.   The supreme court dealt with a similar issue in Chapel. In that case, the Jackson

County Chancery Court awarded Grace Chapel separate maintenance in 1996. Id. at 292

(¶5). Mr. Chapel was granted a divorce in Virginia in 1997. Chapel, 876 So. 2d at 292 (¶6).

The Mississippi chancellor modified the separate-maintenance agreement in 1998 and 2001.

Id. at 294 (¶13). Grace argued that the chancellor lacked subject-matter jurisdiction because

the Virginia divorce decree terminated the original separate-maintenance agreement. Id. at

293 (¶10). The supreme court held that “the . . . chancery court continues to have jurisdiction

in what originally was the separate-maintenance case, but which converted to one for

alimony and other claims compatible with divorce actions[] after the date of the foreign

divorce.” Id. at 295 (¶15).3 In her treatise, Bell on Mississippi Family Law (2d Edition

2011), Professor Deborah Bell refers to this as a “recharacterization” of separate maintenance


       2
        Barbara’s claim for separate maintenance was no longer proper since a divorce had
been granted but was convertible to a claim for alimony. Weiss, 579 So. 2d at 541. Separate
maintenance and alimony may both result in payments for a short period of time or an
extended period of time (the period of time for separate maintenance is more uncertain). Id.
at 542.
       3
         The supreme court also stated that because “neither party . . . made formal
objections to the chancellor’s authority to modify the original separate-maintenance
judgment after the Virginia divorce was granted, it is not necessary for the Court to reach
the issue of whether . . . a foreign divorce decree[] terminates a domestic court’s order of
separate maintenance.” Chapel, 876 So. 2d at 294 (¶11).

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as alimony.

¶11.   Like the divorce decree in Weiss, the Texas divorce decree in the present case

expressly reserved Stella’s rights to enforce the separate-maintenance order. And, similar

to the wife in Chapel, Stella was awarded separate maintenance prior to the entry of a foreign

divorce decree, and the foreign decree did not address the issue of separate maintenance. We

do not find, like the dissent, that Stella’s failure to expressly petition for alimony prohibits

the chancellor’s sua sponte “recharacterization” of separate maintenance as alimony. As

stated in Weiss, “‘[a]limony’ and ‘maintenance’ are merely different words used in

differing situations to describe the same thing.” 579 So. 2d at 541 (citation and quotation

omitted) (emphasis added). Mississippi law clearly provides that the chancery court retained

jurisdiction over William and Stella’s separate-maintenance agreement, as acknowledged by

the Texas court with the consent and agreement of the parties.

       2. Contractual Nature of the Texas Divorce Decree

¶12.    “[A] decree for separate maintenance may be modified upon a petition presented

because of a material or substantial change of circumstances[, such as divorce,] arising

subsequent to the date of the decree.” Landrum v. Landrum, 498 So. 2d 1229, 1230 (Miss.

1986) (citation omitted). William did not seek modification of the separate-maintenance

order. Instead, he claimed that the divorce decree automatically terminated the order.

However, the Texas divorce decree contained the following provision:

       Agreement of the Parties


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              The [c]ourt finds that the parties have entered into a written agreement
       as contained in this decree by virtue of having approved this decree as to both
       form and substance. To the extent permitted by law, the parties stipulate the
       agreement is enforceable as a contract. The [c]ourt approves the agreement of
       the parties as contained in this [f]inal [d]ecree of [d]ivorce.

               The [c]ourt finds that the parties entered into a [j]udgment for [s]eparate
       [m]aintenance on or about September 1, 2006, in the Chancery Court of
       Rankin County, Mississippi, in case number 57913 . . . It is not the intent or
       purpose of this decree, nor shall it be construed or interpreted to alter, change,
       limit, diminish, or cancel any provision of said judgment. This [d]ecree is
       being entered separate and apart from that judgment.

¶13.   In In re Kennington's Estate, 206 So. 2d 337, 338 (Miss. 1968), our supreme court

held that spouses can contract to payment terms deviating from the traditional concepts of

spousal support (providing for alimony to continue after the former husband’s death and to

be paid by his estate based on his former wife’s life expectancy). Ten years later, the

supreme court went even further in Burnett v. Burnett, 362 So. 2d 828, 830 (Miss. 1978),

finding that the former wife was entitled to status as an heir-at-law of the husband upon his

death because of an offer in the divorce complaint and its implied acceptance by inclusion

in the final decree of divorce.

¶14.   Here, the chancellor ruled to enforce all terms of the separate-maintenance order,

noting on the record, as had the Texas trial judge in his decree, the contractual aspects of his

judgment. Thus, we also find that William’s written agreement, incorporated in the Texas

judgment and specifically including the separate-maintenance order, constitutes a waiver of

his right to contest the chancellor’s continued jurisdiction over issues regarding William’s

support and maintenance obligations to Stella.

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                                   CONCLUSION

¶15.   For the reasons set out above, we conclude that a separate-maintenance judgment of

a Mississippi court that had acquired full jurisdiction over marital partners does not

automatically become void upon entry of a valid divorce judgment in another state. We

recognize, however, that entry of a divorce judgment under such circumstances is a material

change in circumstances sufficient to allow consideration of modification of the separate-

maintenance judgment. Such modification must, however, take place upon proper pleading

and be based on sufficient evidence to justify modification. In this case, as the chancellor

properly noted, William sought no such modification, nor did he present any evidence to

justify modification. He rested his case solely on the assertion that the judgment in issue

became totally void and of no legal effect upon the Texas divorce judgment, overlooking the

fact that the Texas court had specifically deferred to the chancery court’s continuing

jurisdiction over issues of support and marital property. The chancery court therefore

properly rejected William’s argument that it lacked jurisdiction.

¶16. THE JUDGMENT OF THE CHANCERY COURT OF RANKIN COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

     LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, MAXWELL AND JAMES, JJ.,
CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION,
JOINED BY CARLTON AND WILSON, JJ.

       IRVING, P.J., DISSENTING:

¶17.   The majority finds that the chancellor did not err in refusing to terminate William’s


                                             8
separate-maintenance obligations after William and Stella were divorced. Because an

existing marriage is a prerequisite for sustainment of an award of separate maintenance, I

dissent.

¶18.   In August 2013, the District Court of El Paso County, Texas, awarded William and

Stella a divorce. The record does not inform us if Stella requested alimony at that time, but

it reveals that no alimony was awarded. The judgment of divorce contains two provisions

that warrant analysis:

       The [c]ourt finds that the parties have entered into a written agreement as
       contained in this decree by virtue of having approved this decree as to both
       form and substance. To the extent permitted by law, the parties stipulate the
       agreement is enforceable as a contract. The [c]ourt approves the agreement of
       the parties as contained in this [f]inal [d]ecree of [d]ivorce.

       The [c]ourt finds that the parties entered into a [j]udgment for [s]eparate
       [m]aintenance on or about September 1, 2006[,] in the Chancery Court of
       Rankin County, Mississippi[,] in case number 57913 and attached as Exhibit
       A to this [d]ecree. It is not the intent or purpose of this decree, nor shall it be
       construed or interpreted to alter, change, limit, diminish, or cancel any
       provision of said judgment. This [d]ecree is being entered separate and apart
       from that judgment.

¶19.   On November 13, 2013, a little over two months after the judgment of divorce,

William filed a complaint in the Chancery Court of Rankin County, seeking to terminate the

separate maintenance that the chancery court had awarded to Stella in September 2006.

Stella answered William’s complaint and filed a counterclaim, seeking to have William held

in contempt for failing, since December 2013, to abide by the terms and conditions of the

order for separate maintenance. Specifically, Stella contended that William had not provided


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health insurance for her as required by the separate-maintenance order.

¶20.   When the matter came on for hearing before the chancery court, the chancellor

determined that William should not be held in contempt because he had attempted to acquire

health insurance for Stella.     However, the chancellor denied William’s request for

termination of his separate-maintenance obligations and dismissed his complaint. In doing

so, the chancellor stated: “[T]his [c]ourt will fully enforce all terms of the [j]udgment for

[s]eparate [m]aintenance entered in this cause and incorporated in the [f]inal [d]ecree of

[d]ivorce entered in the [Texas court].”

¶21.   Our law is well settled that an existing marriage is a prerequisite to an award of

separate maintenance. See Weiss v. Weiss, 579 So. 2d 539, 541 (Miss. 1991). In Weiss,

       Barbara and Thomas Weiss were married on December 16, 1967, in Biloxi,
       Mississippi. They separated in 1986, and Thomas moved to Slidell, Louisiana.
       Barbara continued to reside in Mississippi. In November 1988[,] Thomas filed
       a suit for divorce in Louisiana. In December of that same year, Barbara filed
       a complaint for separate maintenance in Mississippi.

Id. In deciding that the chancery court’s award of alimony was proper despite the fact that

Barbara had filed only a complaint for separate maintenance, the Weiss court stated:

       Barbara's original complaint was for separate maintenance; and she did not
       formally amend her complaint. Her claim for separate maintenance was no
       longer proper, however, as a divorce had been previously granted. The lower
       court's judgment of alimony may still be affirmed if her action for separate
       maintenance could be and was properly converted to, and tried as, a claim for
       alimony.

       There is nothing inherent in the substance of a claim for separate maintenance
       to prevent parties from implicitly or tacitly amending the complaint at trial to
       become a claim for alimony.

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Id. (emphasis added).

¶22.   The major distinction between our case and Weiss is that, here, unlike what occurred

in Weiss, the parties did not try, by consent, the issue of alimony, nor did Stella convert her

claim for separate maintenance into one for alimony. As stated, Stella sought to have

William held in contempt for his failure to abide by the separate-maintenance order, even

though the parties were divorced. I should note that Stella did not question the validity of

the Texas District Court’s judgment of divorce in the chancery court, and even if she had, she

would not have prevailed on that issue, as it is not subject to collateral attack. Moreover, she

agreed to both the form and substance of the Texas court’s judgment.

¶23.   Based on these facts, it is clear to me that the majority errs in affirming the chancery

court’s judgment upholding the continuing validity of the separate-maintenance order despite

the existence of the valid judgment of divorce by the Texas court. Also, it is clear to me that

the chancellor, as well as the majority, misreads the Texas [c]ourt’s judgment as

incorporating the separate-maintenance order.        Quite the contrary, the Texas court’s

judgment simply acknowledges the existence of the separate-maintenance order and

specifically states: “It is not the purpose of this [judgment], nor shall it be construed or

interpreted to alter, change, limit, diminish, or cancel any provisions of said judgment.”

Despite the plain and unambiguous wording in the Texas court’s judgment, leaving the

separate maintenance unaffected, the chancellor and the majority must either read the

judgment as automatically converting the separate maintenance into alimony, or misinterpret


                                              11
Mississippi law as automatically allowing separate maintenance in lieu of alimony if there

is an outstanding order for separate maintenance at the time a judgment of divorce is granted.

In my judgment, Mississippi law does not allow such. I acknowledge that Stella would have

been acting within the parameters of our law if she had sought to convert, by the appropriate

pleading, her separate-maintenance claim into one for alimony. Also, the parties could have

voluntarily tried the issue of alimony even though no pleadings on the issue existed.

However, in either case, Stella would have been required to prove that alimony was

appropriate. That was not done, hence the error.

¶24.   I should point out that the majority’s reliance upon Chapel v. Chapel, 876 So. 2d 290

(Miss. 2004) is misplaced because Chapel, while factually similar to our case in some ways,

is factually dissimilar in a crucial and material aspect: the absence of consent by William, or

a request by Stella for the chancery court to decide the issue of alimony or to treat the

existing separate maintenance as alimony. In Chapel, one of the issues was whether the

Virginia judgment of divorce removed subject-matter jurisdiction from a Mississippi court

that had previously granted separate maintenance, thereby precluding a subsequent

modification of the order for separate maintenance. Chapel, 876 So. 2d at 293 (¶10). In

order to put the issue in Chapel in factual context vis-a-vis the facts in our case, I quote

extensively from the Chapel court’s opinion in resolving the issue presented:

       However, given that neither party in the present case made formal objections
       to the chancellor’s authority to modify the original separate[-]maintenance
       judgment after the Virginia divorce was granted, it is not necessary for the
       [c]ourt to reach the issue of whether a divorce decree, particularly a foreign

                                              12
divorce decree, terminates a domestic court’s order of separate maintenance.

....

In the present case, the chancellor entered the original separate[-]maintenance
judgment on May 31, 1996. Virginia entered the final divorce decree on April
25, 1997. The chancellor entered judgments modifying the original judgment
on August 7, 1998[,] and January 9, 2001[,] at the petition of Grace and
Michael. Similar to Landrum [v. Landrum, 498 So. 2d 1229 (Miss. 1986)], the
chancellor modified the judgment at the request of the parties and subsequent
to the entr[y] of the divorce. The entry of the divorce decree did not terminate
the chancellor’s authority to modify the existing judgment[,] which provided
for support for Grace and the two children, possession of the marital home [,]
and custody of the children. Once petitioned by the parties, the divorce
qualified as a material change in circumstances subsequent to the original
judgment, which vested the chancellor with the authority to modify it.

....

Similar to the parties in Weiss, Grace and Michael manifested their consent to
the chancellor’s modification of the original judgment and division of the
marital property on numerous occasions during the years covered in this
appeal. There was no surprise or prejudice occasioned as a result of the
judge’s decision to grant the agreed request of the parties. Although the
parties’ pleadings were for the contempt of the original judgment, the parties
consented to the chancellor’s authority to modify and decide issues not
resolved by the Virginia divorce, including division of the marital property.

Based on the [c]ourt's holdings in Landrum and Weiss, we conclude that the
chancellor had authority to modify the original separate-maintenance
agreement subsequent to the Virginia divorce, based on a subsequent material
and substantial change in circumstances. The consent of the parties gave the
chancellor the authority and jurisdiction to adjudicate issues relating to
division of the marital property, without requiring the parties to amend their
pleadings.

The foreign divorce decree did not terminate the Mississippi chancery court’s
jurisdiction over the matter, nor were the parties required to file a separate
pleading for alimony or division of property once the parties consented to the
chancellor’s authority to rule on such matters. We affirm the chancellor’s

                                      13
       modification of the separate[-]maintenance judgment and denial of Grace's
       motion for relief from judgment.

Chapel, 876 So. 2d at 294-95 (¶¶11, 13, 18-20) (emphasis added).

¶25.   Clearly, the facts in Chapel are totally different from our facts, making the legal

conclusions stated therein inapplicable to our case. Here, Stella’s counterclaim placed only

one issue before the chancery court: whether William was in contempt for his failure to abide

by the order for separate maintenance. William’s complaint also placed only one issue before

the court: whether his obligations under the separate-maintenance order should be terminated

because a material change in circumstances had occurred—the marriage between him and

Stella had been dissolved since the date of the order for separate maintenance. The parties

did not stipulate that the court could consider whether the separate maintenance should be

continued as alimony and did not try that issue. Since Stella, in her counterclaim, did not ask

that she be granted alimony or that the separate maintenance be converted to or treated as

alimony, the issue of converting or treating Stella’s separate maintenance as alimony was not

before the chancery court. It necessarily follows that there was no basis for the chancellor

to keep the order for separate maintenance in place after the judgment of divorce. Citing

Landrum, 498 So. 2d at 1230, the majority states: “A divorce can be a material change in

circumstances warranting modification of a prior separate maintenance order.” In my view,

a judgment of divorce is a material change in circumstances, for it cannot be legitimately

argued that the dissolution of the marriage—the premier legal relationship between the

parties upon which separate maintenance hangs—is not a material and substantial change.

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¶26.   In William’s complaint, he stated: “A material change in circumstances has occurred

which warrants termination of the separate[-]maintenance judgment[,] to wit: The parties

were divorced on August 28, 2013.” When Stella was served with a copy of William’s

complaint, it became her obligation to counterclaim for alimony if she felt entitled to it. She

did not, choosing instead to seek to have William held in contempt for failure to honor all of

his obligations under the existing separate-maintenance agreement. She could have done

both, but her failure to counterclaim for alimony did not preclude the chancery court from

considering and deciding the issue presented by William. Indeed the chancery court was

obligated to do so.

¶27.   I would reverse and render the judgment of the chancery court. In doing so, I offer

no opinion as to whether Stella may still seek alimony by an appropriate pleading. I simply

find that since she did not seek alimony at the time that William sought to have his separate-

maintenance obligations terminated, the chancery court erred in not terminating William’s

separate-maintenance obligations because the undisputed evidence is that the parties were

no longer married. The majority’s suggestion that, notwithstanding Stella’s failure to

expressly petition for alimony, the chancellor could sua sponte re-characterize the separate

maintenance as alimony is without legal footing.

¶28.   Therefore, for the reasons presented, I dissent.

       CARLTON AND WILSON, JJ., JOIN THIS OPINION.




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