                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2014-CA-01227-SCT

PATRICK FRANCIS HEITER

v.

LINDALYN HEITER, BY AND THROUGH THE
GUARDIAN OF HER ESTATE, HAIDEE O.
SHEFFIELD, ESQ.


DATE OF JUDGMENT:                        05/12/2014
TRIAL JUDGE:                             HON. JAYE A. BRADLEY
TRIAL COURT ATTORNEYS:                   KRISTOPHER W. CARTER
                                         MATTHEW PAUL PAVLOV
                                         WENDY C. HOLLINGSWORTH
                                         HAIDEE SHEFFIELD
COURT FROM WHICH APPEALED:               JACKSON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                  MATTHEW PAUL PAVLOV
ATTORNEY FOR APPELLEE:                   WENDY C. HOLLINGSWORTH
NATURE OF THE CASE:                      CIVIL - DOMESTIC RELATIONS
DISPOSITION:                             AFFIRMED - 06/09/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.   Patrick Heiter sought to terminate or reduce his alimony obligation. He claims error

in the chancellor’s finding that he had failed to prove a material change in circumstances

since his divorce from Lindalyn Heiter that would justify termination or modification of

alimony. Finding no error, we affirm the judgment of the chancellor.

           PROCEDURAL HISTORY AND FACTUAL BACKGROUND
¶2.   The following procedural history and facts are taken from the chancellor’s Findings

of Facts and Conclusions of Law.

      The parties divorced . . . on August 22, 2001. As part of this judgment, . . .
      Patrick agreed to pay . . . alimony to Lindalyn at the rate of $650.00 per month.
      Due to her diminished mental capacity, both an attorney and a Guardian Ad
      Litem represented Lindalyn during the divorce.

      On September 12, 2001, . . . a complaint for the establishment of guardianship
      over Lindalyn [was filed due to] Lindalyn’s diminished mental capacity [and
      her inability] to manage her own financial affairs. . . . [T]he Court appointed
      . . . co-guardians [for] Lindalyn’s estate. On November 20, 2009, the Court
      removed [the] co-guardians of Lindalyn’s estate, . . . appointed [Brenda
      Stepro] as [Lindalyn’s] sole guardian of the person, . . . and . . . appointed
      Haidee Sheffield [an attorney] as the sole guardian of Lindalyn’s estate.

      On June 27, 2011, Patrick filed a Complaint to Modify Alimony and Other
      Relief. In his Complaint, Patrick alleged that Lindalyn was cohabiting with
      another man and receiving Social Security Disability benefits in addition to
      alimony. He alleged that a material change in circumstances not foreseen by
      the parties at the time of the divorce had occurred and asked that the Court
      terminate his alimony obligations to Lindalyn.

      On September 14, 2012, Lindalyn filed her Defendant’s Answer to Complaint
      to Modify and Other Relief, Affirmative Defenses and Counterclaim. She
      admitted that she had a roommate who was male, but denied that they were
      cohabiting. She also denied that she was receiving Social Security Disability
      benefits. . . .1 Lindalyn also pled a material change in circumstances warranting
      an increase in alimony.

      ...

      On June 6, 2000, before the divorce was finalized, Lindalyn took an IQ test.
      . . . Further psychological evaluation by Daniel Koch in 2011 confirmed that
      Lindalyn had several cognitive impairments. These tests revealed that she was
      unable to properly count money or write checks. She could not coordinate or

      1
        Lindalyn and her male roommate applied for SSI benefits in Tennessee, and
Lindalyn was approved. However, after Social Security discovered that Lindalyn had
resources which exceeded $2,000, it determined she was not qualified and asked that
Lindalyn pay back any benefits received.

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       manage her time properly. . . . Dr. Koch recommended that Lindalyn would
       most likely need to be in an assisted living situation.

       ...

       [Brenda Stepro testified] that Lindalyn was capable of completing small tasks,
       [but she] lacked organizational skills. . . .

       Brenda testified that Lindalyn attempted to live on her own immediately after
       the divorce, but that [these] attempts [all] ended poorly.2

       ...

       In 2006, Lindalyn relocated to Tennessee and moved in with . . . Curtis Cole.

       ...

       The $650.00 per month Lindalyn receives from alimony is her only income.
       Her monthly expenses are $939.00 a month. . . . [S]he draws money from the
       retirement funds she received from the divorce. [At the time of the hearing,
       Lindalyn had] $151,847.40 in one account and $2,460.92 in another. . . .

       . . . [I]t is clear that Lindalyn is also unable to maintain employment. . . .

       There is ample evidence that both Curtis and Lindalyn are supporting each
       other financially, and that Lindalyn would not be able to survive if she did not
       share finances with him. . . . Lindalyn only pays half of the rent and utilities on
       the house, while Curtis picks up the remaining expenses. . . . Curtis is currently
       on disability and does not work. . . .

¶3.    Based on her findings, the chancellor denied Patrick’s request to terminate his alimony

obligation, denied Lindalyn’s request to increase Patrick’s alimony obligation,3 and granted

Lindalyn’s request for attorney’s fees.



       2
        Brenda testified that Lindalyn had a history of living with her sister and then
boyfriends and that they “[took] advantage of [Lindalyn] financially.”
       3
        The chancellor found that Lindalyn had failed to put forth any evidence to support
her counterclaim for an increase in alimony. Lindalyn did not cross-appeal this finding.

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                                        ANALYSIS

¶4.    Findings of a chancellor will not be disturbed on review unless the chancellor was

“manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Powell v.

Campbell, 912 So. 2d 978, 981 (Miss. 2005). The Court will review a chancellor’s judgment

for abuse of discretion. Hotboxxx, LLC v. City of Gulfport, 154 So. 3d 21, 24 (Miss. 2015).

“The chancellor is charged with weighing the evidence, and this Court will not reverse [her]

determination absent manifest error or an abuse of discretion.” Gillespie v. Gillespie, 594 So.

2d 620, 622 (Miss. 1992).

¶5.    Patrick sought to be relieved from paying alimony to Lindalyn. Patrick alleged that

Lindalyn was cohabiting with a male and was receiving SSI benefits. Patrick further averred

that there had been “a substantial and material change in circumstances since the original

decree was entered,” and that the original decree should be modified to terminate or reduce

his alimony obligation. Traditionally, alimony payments cease only if the receiving party

remarries or either party dies. McDonald v. McDonald, 683 So. 2d 929, 931 (Miss. 1996).

However, a chancellor has authority to modify alimony “upon a finding of a substantial

change in circumstances, regardless of any intent expressed by the parties to the contrary.”

Id.

¶6.    In 1961, this Court was first faced with whether “a chancery court [could] divest a

wife of future alimony payments on the ground of misconduct of the wife after the divorce.”




                                              4
Rubisoff v. Rubisoff, 242 Miss. 225, 233, 133 So. 2d 534, 536 (1961). Citing Bunkley and

Morse’s Amis on Divorce and Separation in Mississippi4 and 17 American Jurisprudence,

Divorce and Separation, the Rubisoff Court concluded that a chancery court could exercise

its powers by modifying or revoking its prior alimony award. Rubisoff, 242 Miss. at 236, 133

So. 2d at 538. The Court further determined that “it was the duty of the trier of facts to

determine whether or not the alleged misconduct . . . was of such nature as to forfeit [the]

right to future alimony.” Rubisoff, 242 Miss. at 236, 133 So. 2d at 538.

¶7.    Twenty years later, the issue arose again in McRae v. McRae, 381 So. 2d 1052 (Miss.

1980). The Court held that “[n]o hard and fast rule or mold may be laid down to fit at once

all of the spectrum of misconduct. The question must be faced and determined on a

case-by-case basis.” McRae, 381 So. 2d at 1055.

¶8.    Relying on Rubisoff and McRae, the Court later affirmed the judgment of a

chancellor who found that a recipient spouse “had forfeited her right to future support from

appellee because her admitted adultery during the period following her divorce was of

sufficient duration and frequency to justify the holding of the chancellor.” McHann v.

McHann, 383 So. 2d 823, 826 (Miss. 1980). The Court stated that “[t]o hold otherwise

would be to condone adultery and in effect would penalize a divorcee for marrying but

reward her for cohabitation without benefit of marriage.” Id.

¶9.    Our law further evolved in Hammonds v. Hammonds, 641 So. 2d 1211 (Miss. 1994),

in which the Court held that Rubisoff and its progeny “clearly reflect a moral judgment that

       4
        J.W. Bunkley Jr. & W.E. Morse, Bunkley and Morse’s Amis on Divorce and
Separation in Mississippi, § 6.12 (1957); 17 Am. Jur. Divorce and Separation, § 755.

                                             5
a divorced woman should not engage in sexual relations; the penalty for such activity is

forfeiture of her right to support from her ex-husband.” Hammonds, 641 So. 2d at 1216. The

Hammonds Court departed from the prior line of cases and remanded the case for the

chancellor to consider the “financial, rather than moral aspect[] of cohabitation” and further

held there is a “presumption that the divorced woman’s partner/cohabitant is providing

financial support, thereby eliminating or reducing her need for support from her ex-husband”

unless the unique facts of the case direct otherwise. Id. at 1216-17. The Hammonds Court

adopted a two-prong test which requires chancellors to consider whether a third party

provides support to the recipient spouse and whether the recipient spouse contributes to the

support of the third party. Id.

¶10.   In Ellis v. Ellis, 651 So. 2d 1068 (Miss. 1995), the Court again remanded a case for

a chancellor to determine (1) if there was cohabitation, (2) if the ex-wife was being supported

by or was supporting her suitor, and (3) if her financial needs had changed due to the

cohabitation and/or support. Ellis, 651 So. 2d at 1074. The Ellis Court cited a Florida5 case

which stated that cohabitation will raise a presumption of a material change in circumstances,

but cohabitation alone does not require an automatic reduction or termination of alimony. Id.

at 1072.

¶11.   In Scharwath, this Court officially adopted the Florida rule and held “that proof of

cohabitation creates a presumption that a material change in circumstances has occurred.”

Scharwath v. Scharwath, 702 So. 2d 1210, 1211 (Miss. 1997). This presumption shifts the



       5
           DePoorter v. DePoorter, 509 So. 2d 1141 (Fla. App. 1 Dist.1987).

                                              6
burden to the recipient spouse to produce evidence contradicting mutual financial support.

Id. However, the paying spouse still must show that the cohabitation results in “a situation

of mutual support between the recipient spouse and another individual which alters the

recipient spouse’s financial needs” before alimony can be modified. Id.

¶12.   At the conclusion of the presentation of evidence by Patrick, the chancellor denied

Lindalyn’s motion to dismiss, satisfied that Patrick had offered sufficient evidence of

cohabitation and mutual support, which required Lindalyn to offer evidence related to mutual

financial support. Lindalyn admitted that she lived with Curtis, but without sexual relations,

and that they mutually supported one another. However, she denied that her financial needs

had been altered due to the cohabitation and mutual support. After the parties concluded

presentation of their proof, the chancellor announced she would take the case under

advisement and would issue a written opinion.

¶13.   The chancellor reviewed the evidence, considered the law, and issued an extensive,

nine-page Findings of Fact and Conclusions of Law. The chancellor found that Patrick had

failed to prove that Lindalyn’s financial needs were altered by her cohabitation with Curtis

or the mutual support provided by Curtis. The chancellor found that there was no doubt that

Lindalyn was receiving mutual financial support from Curtis. However, the chancellor noted

that this was a “factually unique scenario . . . in which [Lindalyn] has no choice but to

cohabit[] with another individual in order to survive.” The testimony presented by Brenda

Stepro and Haidee Sheffield, Dr. Koch’s psychological report, and evidence of Lindalyn’s




                                              7
prior living arrangements all support the chancellor’s finding that Lindalyn must live with

another person.

¶14.   The chancellor held that “[w]ithout the $650.00 she receives from Patrick, Lindalyn

would not be able to meet her financial obligations each month without accruing . . . penalties

from withdrawals on the retirement account.” Reviewing the evidence submitted to the

chancellor, there is sufficient proof that the support provided by Curtis to Lindalyn was not

enough to justify eliminating or reducing Lindalyn’s support from Patrick. We find that the

chancellor did not abuse her discretion in denying Patrick’s motion to terminate or modify

alimony.

¶15.   Finally, Patrick argued that the chancellor had abused her discretion in awarding

Lindalyn her unpaid attorneys’ fees. The award of attorneys’ fees and costs in divorce cases

is within the sound discretion of the chancellor. Brooks v. Brooks, 652 So. 2d 1113, 1120

(Miss. 1995). We find the chancellor did not abuse her discretion in finding that Lindalyn

presently was unable to pay her attorney’s fees without withdrawing money from her

retirement funds and accruing penalties and that Lindalyn lacked the monthly income to pay

her attorney.

                                      CONCLUSION

¶16.   The chancellor followed this Court’s instruction in reviewing this matter on a case-by-

case basis. In doing so, the chancellor found sufficient evidence that Lindalyn’s needs were

not altered by the support provided by Curtis. The chancellor did not abuse her discretion in




                                              8
failing to modify alimony or in awarding Lindalyn the remainder of her unpaid attorney’s

fees. We affirm the findings of the Chancery Court of Jackson County.

¶17.   AFFIRMED.

   WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, KING, COLEMAN,
MAXWELL AND BEAM, JJ., CONCUR.




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