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IN THE SUPREME COURT OF MISSISSIPPI NO. 93-CA-01026-SCT WILLIAM C. ASHFORD v. SANDRA W. ASHFORD THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE: NATURE OF THE CASE: DISPOSITION: 8-9-93 HON. PAT WISE HINDS COUNTY CHANCERY COURT T. JACKSON LYONS JANE SANDERS LEWIS L. C. JAMES CIVIL - DOMESTIC RELATIONS DIRECT APPEAL: AFFIRMED; CROSS APPEAL: REVERSED AND REMANDED 2/27/97

MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. PRATHER, PRESIDING JUSTICE, FOR THE COURT: I. INTRODUCTION This domestic relations case arises from a modification hearing in which the chancellor denied the husband's request to reduce or terminate alimony and to be named custodial parent of the couple's oldest child. The chancellor also ordered the husband to pay $15,000 of the wife's attorney fees and denied the husband supersedeas. At the wife's request on cross-motion for modification, the child support payments were increased by $300 per month. On appeal, the husband argues that the chancellor erred with regard to alimony, custody, payment of the wife's attorney fees, and the denial of supersedeas. On cross-appeal, the wife argues that the chancellor should have increased the amount of child support to comply with the statutory guidelines. The wife also asserts that the husband should pay her attorney fees for this appeal.

This Court finds that the issues raised by the husband on appeal are moot or without merit. On crossappeal, the case is reversed and remanded for a written, on-the-record determination of the applicability of the statutory child support guidelines. The wife's argument that the husband should pay her attorney fees on appeal is without merit. II. STATEMENT OF THE CASE Sandra and William Ashford were married December 28, 1971. They had two children: Emily Claire Ashford (born May 25, 1974) and John Clay Ashford (born June 17, 1977). They separated October 24, 1984, and, on February 24, 1986, William Ashford was granted a divorce from Sandra Ashford on the ground of habitual cruel and inhuman treatment. Custody of the two children was awarded to their mother (Sandra), subject to reasonable visitation rights of the father (William). William was ordered to pay the following: 1. $1,500 per month in child support; 2. the children's school tuition; 3. the reasonable and necessary costs of a college education for each child, provided that there would be an appropriate reduction in the amount of monthly child support; 4. the children's medical insurance and the cost of all reasonable medical treatment over the first $25.00 not covered by insurance; 5. $2,200 per month in permanent alimony until Sandra died or remarried; 6. a partial division of property in the amount of $120,000 at a rate of $10,000 per year; 7. one-half of any and all tax refunds due to the parties; 8. life insurance premiums on himself in the amount of a) $250,000 with the children as beneficiaries until the children became emancipated, b) $250,000 with Sandra as beneficiary, to be reduced to $125,000 when the children no longer lived with her, provided she was still unmarried, c) the unpaid lump sum alimony with Sandra as the beneficiary, should Sandra remarry (C. P. at 4-5); 9. one-half the mortgage, tax, and insurance on the marital dwelling. (Sandra was granted use and control of the home until she remarried or both children left home -- whichever came first.); 10. any major repair to the marital dwelling in excess of $200 for which William was to be reimbursed from the proceeds of any subsequent sale of the property; and 11. $20,000 for Sandra's reasonable attorney fees. Six years later, on May 20, 1992, William filed for modification of the divorce decree. William requested custody of Emily (then age 18) and John Clay (then age 14) and a corresponding reduction in the amount of child support. He also requested a reduction or termination in alimony. On July 28, 1992, Sandra filed her "Answer and Counterclaim" to William's motion. Sandra denied

that William was entitled to any of the relief he asked for in his motion for modification. On crossmotion, Sandra sought an increase in alimony and child support. In addition, Sandra asked that William be required to pay her attorney fees in connection with the motion and cross-motion. The chancellor ruled that, pursuant to stipulation of the parties, John Clay would remain in Sandra's custody. However, William's visitation rights were increased. Sandra and William were granted joint legal custody of Emily, with primary physical custody to remain with Sandra. William's motion for modification with regard to alimony was dismissed with prejudice. The chancellor ruled that William failed to establish a material change in circumstances to justify any termination or reduction in alimony. Furthermore, the chancellor increased William's child support payments from $1,500 per month to $1,800 per month (or $900 per child). With regard to the method of payment, the chancellor held that William should pay a) $900 per month for John Clay's child support directly to Sandra, b) $150 per month of Emily's child support directly to Sandra, and c) $750 per month of Emily's child support into a joint account for Sandra and Emily. The chancellor instructed William to pay for the college education of his children, but allowed William to do so from money set aside for the children by their paternal grandmother. The chancellor ruled that all other provisions of the divorce decree would continue in full force and effect. William was ordered to pay $15,000 toward Sandra's attorney fees. William appeals to this Court and raises the following issues: A. Whether the trial court erred by failing to terminate or alternatively reduce alimony payments to Sandra Ashford? B. Whether the trial court erred in denying the request of Emily Ashford, age 18, to have her father as custodial parent? C. Whether the trial court erred in ordering Dr. William Ashford to pay $15,000 of Sandra Ashford's attorney fees? D. Whether the trial court erred as a matter of law in denying a motion for supersedeas where the judgment appealed from was a money judgment for sums certain? Sandra raises the following issues on cross-appeal: A. Whether the trial court should have increased child support further because there was a material change in Dr. William Ashford's income? B. Whether attorney fees for purposes of this appeal should be awarded to Sandra Ashford? III. LEGAL ANALYSIS OF ISSUES ON APPEAL A. Whether the trial court erred by failing to terminate or alternatively reduce alimony payments to Sandra Ashford? William argues that he was entitled to the reduction or termination of alimony based on Sandra's sexual misconduct and a change in her financial circumstances.

1. The Alleged Sexual Misconduct. The record reflected that Sandra had a relationship with John Vlahos (Vlahos). The chancellor, in her bench ruling stated: "The Court listened to the testimony and weighed [Vlahos'] credibility and found at this instance that the movant [William] failed to meet his burden of proof in convincing this Court that there was any in this Court's opinion morality issue." The formal written judgment stated that William had failed to prove a change in circumstances that would justify any termination or reduction in alimony. William again contends before this Court that Sandra's relationship with Vlahos was not wholesome and that she should receive less alimony or no alimony as a result of her sexual conduct. Sandra contends that she had not engaged in sexual misconduct or cohabitation sufficient to warrant a reduction or termination of alimony. She also argues that, under this Court's standard of review, the chancellor's ruling as to the absence of sexual misconduct in this case should be given great weight. The standard of review in determining the weight of the evidence has been well established by this Court and it will not "disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Ellis v. Ellis, 651 So. 2d 1068, 1071 (Miss. 1995) (quoting Crow v. Crow, 622 So. 2d 1226 (Miss. 1993)). For years, the courts of this State viewed sexual conduct and its application to alimony as a moral issue; as a result, former wives (by engaging in sexual conduct) have forfeited their right to support from their former husbands. See generally McRae v. McRae, 381 So. 2d 1052 (Miss. 1980); McHann v. McHann, 383 So. 2d 823, 826 (Miss. 1980); Owen v. Gerity, 422 So. 2d 284, 287 (Miss. 1982). However, this Court, in conformity with the modern trend, has recently held that sexual conduct as it relates to alimony is an economic issue -- not a moral issue. See generally Ellis , 651 So. 2d at 1072; Hammonds v. Hammonds, 641 So. 2d 1211, 1216 (Miss. 1994). Indeed, alimony is a purely economic issue. "The general rule is that the wife is entitled to a reasonable allowance of alimony commensurate with her accustomed standard of living and the ability of the husband to pay." Hockaday v. Hockaday, 644 So. 2d 446, 448 (Miss. 1994). The test for modification of spousal support is "whether there has been a material or substantial change in circumstances since the divorce." Ellis, 651 So. 2d at 1072. In cases of sexual activity by the recipient of spousal support with a third party, this Court has held that there are two factors to consider in determining whether a change in circumstances merits a reduction in alimony: "(1) whether the third party provides support to the recipient . . .; and (2) whether the recipient spouse contributes to the support of a third party." Ellis 651 So. 2d at 1072; Hammonds, 641 So. 2d at 1216). The record in the case sub judice reflects that Sandra and Vlahos had exchanged gifts of clothing, jewelry, a camera, furniture, etc. In addition, they had shared expenses on one trip to Florida where Sandra stayed in a room with Emily and Vlahos stayed in a room with his children. Both Sandra and Vlahos denied that they ever stayed overnight with one another, and there is nothing in the record to contradict this testimony.

Furthermore, it is undisputed that Sandra had never given or loaned Vlahos money. Sandra and Vlahos did not own any property, incur any debt, or file their income tax together. They had always maintained separate homes. They had never pooled their income and resources. Therefore, there is no evidence that Sandra (upon receiving support from William) used her resources to support Vlahos. In addition, there is no evidence that Sandra was supported by Vlahos, thereby reducing or eliminating William's obligation to provide support. Thus, considering these two factors in the light of the deferential standard of review applicable in this case, this Court finds that the chancellor properly denied William's request for reduction or termination of alimony due to Sandra and Vlahos' relationship. See Ellis, 672 So. 2d at 1072; Hammonds, 641 So. 2d at 1216. 2. The Alleged Change in Financial Circumstances. William, who is an ophthalmologist earning almost one million dollars per year, admits that he is able to pay alimony. However, he contends that, due to Sandra's financial success, alimony is no longer justified in this case. As stated earlier, the standard of review in these matters is deferential, and the "chancellor's findings will not be disturbed on appeal unless manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Hockaday , 644 So. 2d at 448. Courts of equity in determining whether an award of alimony in a divorce should be modified should consider the present status of the parties and inquire into their respective earning abilities and probable future prospects and all other circumstances which might bear on the subject, such as age, sex, health and station in life. Spradling v. Spradling, 362 So. 2d 620, 623 (Miss. 1978). The "general rule is that the wife is entitled to a reasonable allowance of alimony commensurate with her accustomed standard of living and the ability of the husband to pay." Hockaday v. Hockaday, 644 So. 2d 446, 448 (Miss. 1994). The evidence reflected that Sandra's business was not profitable. She had some money from her father; however, much of it was pledged as collateral for a business loan. The marital home was struck by lightning and burned, forcing Sandra to relocate during renovations. Even though much of this was covered by insurance, Sandra did incur expenses as a result of the relocation. In addition, the $10,000 per year that Sandra received in alimony was scheduled to end in 1998. There is nothing in the record to demonstrate that Sandra's ability to maintain her accustomed standard of living had improved. Furthermore, William's income had increased substantially; in fact he admitted that he was able to afford the alimony payments. Therefore, the chancellor properly ruled that no change in circumstances had been proven, such that reduction or termination of alimony was warranted. See Hockaday, 644 So. 2d at 450; Spradling, 362 So. 2d at 625. B.. Whether the trial court erred in denying the request of Emily Ashford, age 18, to have her father as custodial parent? William next argues that, pursuant to Mississippi statute, the chancellor should have granted 18-year-

old Emily's request for William to be her custodial parent. William also contends that the chancellor erred by failing to make an on-the-record finding as to why Emily's best interests were not served by having William as a custodial parent. The chancellor ruled that Sandra and William would have joint legal custody of Emily, who was attending college in Alabama. The chancellor also held that Emily's primary physical custody should remain with Sandra. The law in child custody cases is well-settled. For the custody decree or order to be modified so as to transfer custody to the non-custodial parent, the non-custodial parent must prove that since the entry of the decree or order sought to be modified, a material change of circumstances has occurred within the custodial home which adversely affects the child's welfare. Tucker v. Tucker, 453 So.2d 1294 (Miss.1984); Phillips v. Phillips, 555 So.2d 698 (Miss.1989). In considering this alleged change, the court should view the evidence within the totality of the circumstances, and not base a finding on an isolated incident. Once the material change has been found, a change in custody is in order only if it would be in the best interest of the child involved. Spain v. Holland, 483 So.2d 318 (Miss.1986). A chancellor's finding of fact on such a matter will not be set aside or disturbed on appeal unless the finding is manifestly wrong, or is not supported by substantial credible evidence. . . Miss. Code Ann.

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