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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-CA-00634 COA NANCILEE PEAKS ALEXANDER v. DANIEL WAYNE ALEXANDER APPELLANT APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: NATURE OF THE CASE: TRIAL COURT DISPOSITION: DISPOSITION: MOTION FOR REHEARING FILED: 12/15/1997 CERTIORARI FILED: MANDATE ISSUED: 05/21/96 HON. JASON H. FLOYD JR. HARRISON COUNTY CHANCERY COURT JOSEPH R. MEADOWS WAYNE HENGEN CIVIL - DOMESTIC RELATIONS DOWNWARD MODIFICATION OF CHILD SUPPORT AND ALIMONY PAYMENTS REVERSED AND RENDERED - 11/18/97

BEFORE BRIDGES, C.J., HERRING, AND PAYNE, JJ. PAYNE, J., FOR THE COURT: Nancilee Alexander appeals from a decision of the Chancery Court of Harrison County to grant Danny Alexander's request for modification of child support and alimony. Finding an abuse of discretion on the part of the chancellor in granting such modification, we reverse. FACTS Nancilee and Danny Alexander were divorced in February of 1995. Nancilee was given custody of the parties' two children, and Danny was granted visitation. Since the entry of their divorce, Danny has filed three complaints for contempt against Nancilee. The first complaint was settled and an order of dismissal was obtained in April of 1995. A second complaint resulted in a judgment against Nancilee to pay to Danny's father's estate $13,739.50 plus interest. This sum represents Nancilee's portion of a promissory note owed to Danny's father which was executed by both Danny and Nancilee during their marriage. A third complaint for contempt was filed against Nancilee in February

of 1996 alleging that she had failed to comply with the order of the chancery court regarding visitation. Danny contends that Nancilee interfered with his visitation rights with his son by refusing to permit Danny to administer the child's medication. Danny testified that his son suffers from an illness that requires that he be given medication three times a day. Danny testified that Nancilee, instead of giving Danny the medication to administer, insisted on coming to Danny's home three times a day to administer the medication. Danny argues that Nancilee's inflexibility on this matter constantly interfered with any plans that he and his son might have. Nancilee responded that the reason she would not permit Danny to administer the medication was because he refused to give the medication at the appropriate times. Nancilee testified that her son was hospitalized numerous times for having too much medication in his system and that each time he had been visiting with his father. Nancilee contends that her understanding from her son's doctors was that it was important for the medication to be administered at certain times so that the level of medication in the child's system would be constant at all times. Nancilee stated that Danny admitted to her that he was not giving the child the medication at the exact times prescribed. In response, Danny contends that he contacted his son's doctor and asked if a few hours before or after the prescribed times for administration would make a difference in the child's condition. Danny contends that the doctor told him that it would not. Danny also argues that while his son was hospitalized after Danny's visits with him, there is no medical evidence that his son's problems with the medication level was due to Danny's failure to administer the medication properly. Danny contends that there was a dosage problem and that the doctors have since changed the child's medication. Danny points out that now his son must take two tablets three times a day and that he (Danny) is just as capable as Nancilee of administering the medication. Danny argues further that Nancilee has interfered with his visitation with his daughter because his daughter often refuses to come visit him. Danny contends that Nancilee is adversely influencing his daughter's decision to visit with him. Nancilee contends that she has not influenced their daughter in any way and that she does not know why the child does not want to visit with Danny. This third contempt complaint was later amended to include a request for modification of child support and alimony due to a change in circumstances. A hearing on the complaint was held in March of 1996. At the hearing, Danny testified that he had resigned from his $140,000 a year job as chief financial officer of American Medical Response because of stress. Danny testified that the stress was a result of his divorce, the three complaints for contempt he was forced to file against his ex-wife, a criminal case pending at the time of the divorce to which he plead no contest though vehemently denying his guilt, his son's deteriorating medical condition, increased job obligations as well as increased travel on the job that he held at the time of the divorce, and the recent death of his father. Danny testified that the stress had caused his own health to decline to such an extent that he could not function and was currently seeking psychological counseling. Danny indicated to the chancery court that he had accepted a job in Georgia as the chief financial officer for Central Ambulance Company. Danny's starting salary with Central Ambulance Company is $40,000 per year with the possibility of a fifteen percent increase after four months. Following a hearing on Danny's request for modification, the chancery court modified the previous divorce judgment as it pertains to child support and alimony. The alimony and support awards from the original divorce decree are as follows: child support - $833.33 per month plus all insurance,

educational, and uncovered medical expenses; periodic alimony - $500 per month; lump sum alimony - $30,000 paid in $1,000 monthly installments. Danny is also responsible for one-half of the mortgage payment on the marital residence in which his ex-wife and children live--$640 per month. In modifying the alimony and child support awards, the chancellor ordered the following: child support $500 plus all insurance on the children, one-half of educational expenses, and one-half of all uncovered medical expenses; periodic alimony - $200 per month until such time as the lump sum alimony is paid in full and then the periodic alimony increases to $400 per month. The chancellor based his modification on a monthly adjusted gross income of $2,464.76. It should also be noted that at the time of the modification hearing, Danny had $40,000 in a savings account. As part of his opinion, the chancellor made numerous findings of fact which included the above problems that Danny contends to have. The chancellor also stated in his opinion that he found that Danny had made a conscious and voluntary decision to lower his income while aware of his financial responsibilities. The chancellor went on to state that he found it suspicious that Danny decided that he needed to lower his stress such a short time after the divorce (thirteen months). Despite these concerns by the court, the chancellor found that Nancilee's refusal to cooperate with the divorce decree had significantly contributed to Danny's stress. As such, the chancellor went on to grant Danny's request for modification stating that there was no evidence that Danny had acted in bad faith in deciding to quit his job and take a lower paying one.(1) Feeling aggrieved, Nancilee filed this appeal citing five specific areas in which the chancery court erred in its ruling: 1. The trial court erred in reducing the amount of the award of child support. 2. The trial court erred in requiring that the payment of all uncovered medical expenses of the minor child will be shared. 3. The trial court erred in requiring the defendant to pay one-half of the cost of education of the minor children, including tuition and books. 4. The trial court erred in reducing the amount of periodic alimony. 5. The trial court erred in ruling that there had been a material and substantial change in the circumstances of Danny, though of his own making, to warrant the above referenced changes. ANALYSIS I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THERE HAD BEEN A MATERIAL AND SUBSTANTIAL CHANGE IN DANNY'S CIRCUMSTANCES SO AS TO WARRANT A MODIFICATION OF CHILD SUPPORT AND ALIMONY. While Nancilee assigns error to five specific rulings by the chancery court, we find that the above stated issue is dispositive of this case and we will address it accordingly. The fundamental standard of review in all appeals from our state's chancery courts is well-established and oft-quoted:

This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). See also Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994); Faries v. Faries, 607 So.2d 1204, 1208 (Miss.1992). In other words, "[o]n appeal [we are] required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong." Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). See also Dillon v. Dillon, 498 So.2d 328, 329 (Miss.1986). This is particularly true in the areas of divorce, alimony and child support. Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989). The word "manifest", as defined in this context, means "unmistakable, clear, plain, or indisputable." Black's Law Dictionary 963 (6th ed. 1990). Magee v. Magee, 661 So. 2d 1117, 1122 (Miss. 1995). Modification of divorce decrees is governed by Miss. Code Ann.

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