Allred v. Allred

• Decision Date: 23 March 1999
• Docket Number: No. 97-CA-01171-COA.,97-CA-01171-COA.
• Citation: 735 So.2d 1064
• Parties: Leesa Crim ALLRED, Appellant, v. Judson Moore ALLRED, III, Appellee.
• Court: Mississippi Court of Appeals

735 So.2d 1064

Leesa Crim ALLRED, Appellant, v. Judson Moore ALLRED, III, Appellee.

No. 97-CA-01171-COA.

Court of Appeals of Mississippi.

March 23, 1999.

Mark A. Chinn, Jackson, Attorney for Appellant.

Judson Moore Allred, III, Appellee, pro se.

BEFORE McMILLIN, P.J., DIAZ, AND KING, JJ.

McMILLIN, P.J., for the Court:

¶ 1. Leesa Crim Allred had appealed a ruling of the chancellor finding her to be in wilful contempt for her failure to abide by the terms of the judgment of divorce from her former husband, Judson Moore Allred, III, regarding Mr. Allred's visitation rights with the children of the parties. She also claims that the chancellor abused his discretion by finding Mr. Allred to be in contempt as to certain other provisions of the divorce judgment relating to finance and property but in failing to use the coercive powers available to him to force Mr. Allred to comply with the judgment. We conclude that Mrs. Allred is correct on both scores and we, therefore, reverse and render in part and reverse and remand in part.

I.

Facts

¶ 2. Mrs. Allred was granted a divorce on the ground of Mr. Allred's uncondoned adultery in November 1994. Rather than actively contest matters relating to division of property, claims for spousal support, child custody, and child support, the parties amicably resolved these issues in a written agreement submitted to the chancellor. The chancellor approved the terms of the agreement and incorporated it by reference into the judgment, thereby vesting the terms of the agreement with the force of a court order. Under the agreement, Mrs. Allred was awarded primary custody of the two minor children of the parties. The agreement defined Mr. Allred's visitation in the following terms:

HUSBAND shall have visitation with the children in accordance with guidelines and schedules established by Dr. Gerald O'Brien who is the children's psychologist. HUSBAND shall meet with Dr. O'Brien at HUSBAND'S expense for this purpose prior to exercising any visitation. All guidelines and schedules recommended by Dr. O'Brien shall be first submitted to WIFE by Dr. O'Brien for approval, which shall not be unreasonably withheld by WIFE. Dr. O'Brien shall be the judge of reasonableness of WIFE'S objections.

¶ 3. One year after the divorce judgment, Mr. Allred filed a motion to have Mrs. Allred cited for contempt in that she had "failed and refused to allow the minor children to visit with [him] thereby denying him his visitation rights as awarded by the Court...." Additionally, Mr. Allred requested that the judgment be amended to establish a fixed visitation schedule for the future.

¶ 4. Mrs. Allred, in response, filed a countering motion that asked the chancellor to cite Mr. Allred for contempt for, among other things, (a) his failure to pay certain monetary obligations placed on him in the divorce judgment totaling $17,109.61, (b) his failure to deliver to her "all of his interest in the Country Club of Jackson stock ... free and clear of all debt," (c) his failure to furnish Mrs. Allred the necessary documentation to permit her to have the parties' GMC Safari minivan retitled solely in her name, and (d) his failure to maintain life insurance coverage on his life for the benefit of the children as ordered in the divorce judgment.

¶ 5. The chancellor found Mrs. Allred to be in contempt in regard to visitation "by reason of her unreasonably withholding from [Mr. Allred] visitation with his children since April, 1995, in disregard of the opinion of Dr. Gerald O'Brien in December 1994 that [Mr. Allred] should be allowed certain monitored visitation with his children." The chancellor further concluded that the existing provisions relating to visitation had proven to be unworkable. As a result, the chancellor amended the visitation order to set a detailed and rigidly fixed schedule of visitation for Mr. Allred. The chancellor ruled that Mrs. Allred could purge herself of her contempt by complying in the future with the court's modified order on visitation and by paying to Mr. Allred the sum of $5,000 as partial reimbursement for his attorney's fees in prosecuting the contempt proceeding. The chancellor ordered that sum to be paid within fifteen days of entry of the judgment.

¶ 6. The chancellor also found Mr. Allred to be in contempt for his failure to pay awards of alimony and certain obligations relating to the children which totaled, in the aggregate, the sum of $3,328.06. The chancellor also found Mr. Allred to be in contempt for failing to cooperate in the retitling of the GMC Safari van, and for failing to maintain the required life insurance for the benefit of his children. However, in fashioning a means for Mr. Allred to purge himself of contempt, the chancellor, without explanation, ordered Mr. Allred to "purge himself of his contempt by the payment of the sum of $3,328.06 to Leesa within one hundred twenty (120) days of this judgment," this being the amount owed by Mr. Allred on matters unrelated to either the GMC van or the life insurance policy.

¶ 7. Mrs. Allred has appealed and filed her brief as provided in the Mississippi Rules of Appellate Procedure. The record reflects that Mr. Allred has made a pro se entry of appearance before this Court, but he has not filed a responsive brief.

II.

Appellee's Failure to File a Brief

¶ 8. There is case law authority that the failure of an appellee to file a brief is tantamount to confession of error. Price v. Price, 430 So.2d 848, 849 (Miss. 1983). Counterbalanced against that notion, however, is the proposition that a trial court's adjudication is entitled to a presumption of correctness, and that, despite an appellee's failure to argue his case, if the appellate court, after a review the record, is satisfied as to the unequivocal correctness of the trial court's ruling, both as it touches on matters of fact and law, then the appellate court is obligated to affirm the trial court's order. Ford v. City of Pascagoula, 228 Miss. 265, 271, 87 So.2d 558, 560 (1956).

¶ 9. Because, to some extent, this proceeding touches on matters relating to the welfare of minor children, this Court has determined to reach the merits of the issues in this appeal, though we proceed unaided by a brief from the appellee. We, therefore, conclude that this is an inappropriate case to apply the principle that appellee's failure to file a brief is a confession of error.

III.

Mrs. Allred's contempt

¶ 10. We have little doubt that the chancellor felt that Mrs. Allred was being unreasonable and uncooperative in the matter of permitting Mr. Allred to visit with his children. Nevertheless, it is problematic that, in this case, Mrs. Allred's perceived poor attitude and uncooperative spirit could form the basis for an adjudication of contempt for wilful disobedience of the court's order as it then existed. An adjudication of contempt is a serious matter and must, in the case of civil contempt, be proven by clear and convincing evidence. Masonite Corp. v. International Woodworkers of Am., 206 So.2d 171, 180 (Miss.1967). If the alleged contemnor is to be punished criminally, the standard rises to that applicable in a criminal prosecution, i.e., beyond a reasonable doubt. Id.

¶ 11. Because Mr. Allred sought, in this case, to sanction Mrs. Allred for her past wilful disobedience of the chancellor's order rather than to coerce her future obedience, we conclude that this was a proceeding in the nature of criminal contempt. Thus, the standard of proof to convict her of contempt was beyond a reasonable doubt.

¶ 12. It is one of the fundamental precepts of contempt proceedings that, in order to determine that an alleged contemnor's disobedience is wilful, the directive claimed to have been violated must have been clear in defining the action that is either mandated or proscribed. Switzer v. Switzer, 460 So.2d 843, 846 (Miss.1984). A person is entitled to be informed with a high degree of clarity as to exactly what her obligations are under a court order before she can be found in contempt for willfully disobeying that order. Id.

¶ 13. With that in mind, we turn to the particular facts of this case. Before Mr. Allred was entitled to any visitation with his children, it was absolutely necessary that two definite events occur and it was possible that three events would have to occur. First, Dr. O'Brien was required to establish "guidelines and schedules" for visitation. Secondly, Dr. O'Brien was required to submit these guidelines and schedules to Mrs. Allred for her approval. If Mrs. Allred approved Dr. O'Brien's proposed guidelines and schedules, then visitation would be fixed. However, if Mrs. Allred declined to approve Dr. O'Brien's suggestions, a third step would become necessary in which Dr. O'Brien would be permitted to rule on the reasonableness of Mrs. Allred's objections to his proposal.

¶ 14. The proof that Mrs. Allred violated any provision of this rather convoluted process is essentially lacking. Dr. O'Brien did not testify at the contempt hearing. There is some indication in the record that Dr. O'Brien had written a letter in December 1994 to the chancellor concerning visitation. The chancellor, in his written opinion, characterized the letter as indicating that Dr. O'Brien believed Mr. Allred "should have regular visitation with his children on a trial basis for several months." However, that letter was not made a part of the record in this case. Neither was there any direct testimony that the letter was presented to Mrs. Allred in any formal sense as the required proposal establishing "guidelines and schedules" for visitation. There is no indication that the letter even contained any expansion on what Dr. O'Brien considered to be "regular visitation"—a rather vague concept, at best. Though there is evidence in the record that, after Dr. O'Brien's letter, there was some attempt at scheduling visitation, it appears that it was done on a more-or-less piecemeal...