Bozant v. Nguyen

• Decision Date: 26 May 2020
• Docket Number: NO. 2018-CA-01438-COA,2018-CA-01438-COA
• Citation: 296 So.3d 254
• Parties: Remy Jonathan BOZANT, Appellant v. Hang M. NGUYEN, Appellee
• Court: Mississippi Court of Appeals

296 So.3d 254

Remy Jonathan BOZANT, Appellant

v.Hang M. NGUYEN, Appellee

NO. 2018-CA-01438-COA

Court of Appeals of Mississippi.

May 26, 2020

ATTORNEY FOR APPELLANT: MARY LEE HOLMES, Petal

ATTORNEY FOR APPELLEE: WILLIAM BRIAN ATCHISON

BEFORE J. WILSON, P.J., GREENLEE AND LAWRENCE, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. The Chancery Court of Forrest County held Remy Bozant in contempt for failing to pay his ex-wife, Hang M. Nguyen ("Kat"), $35,438.76¹ in accumulated tax debt for the years of 2013, 2014, and 2015 that he owed as a result of their property settlement agreement (PSA) from their divorce on October 6, 2016. Further, Remy was held in contempt for failing to pay $750 in professional fees for the preparation of the parties’ 2015 taxes as set forth in the PSA. The court also ordered that Remy pay $6,332.14 in attorney's fees for a total judgment of $42,511.90.² The chancery court ordered Remy to pay the total judgment to Kat by October 1, 2018, or he would be incarcerated.³ Further, the chancery court dismissed Remy's counter-petition with prejudice and denied all of his post-trial motions. The chancery court held that Remy's post-trial motion regarding an inability to pay was premature and could be addressed in a hearing at a later date should Remy be incarcerated for his failure to pay the contempt judgment. We affirm in part and reverse and remand in part.

FACTS AND PROCEDURAL HISTORY

¶2. Remy and Kat were divorced on October 6, 2016, by virtue of a final judgment of divorce in the Forrest County Chancery Court. The parties executed a PSA that was incorporated into the final judgment of divorce as Exhibit A. All of the issues in the divorce were resolved by agreement of the parties as reflected in the PSA.

¶3. There are three specific paragraphs of the PSA that are relevant to issues in this appeal. In paragraph E of the PSA, labeled "credit cards and/or accounts," the agreement states as follows:

1. It is agreed that any credit cards or credit accounts held in the parties’ names jointly shall be canceled.

2. The Wife shall be responsible for all of the parties’ joint personal credit card debt.

3. Wife shall be responsible for paying all of her own personal debts, including but not limited to her student loans.

4. Husband shall be responsible for paying all of his own personal debts, including but not limited to his student loans.

Further, paragraph H of the PSA, labeled "marital debts and taxes," states as follows:

Wife shall be responsible for 75%, and Husband shall be responsible for 25%, of any personal State and Federal income taxes due for the Tax Years 2013, 2014 and 2015. Wife shall be responsible for any unpaid balance due for accountant fees to Wegmann Dazet for preparation of all 2013 and 2014 Income Tax returns. The parties shall each be responsible for 50% of professional fees to Wegmann Dazet for preparation of 2015 personal income tax return, said return shall be filed jointly by the parties. The business shall be wholly responsible for any accountant professional fees and taxes incurred by the business for 2015, and all future business tax years.

Finally, paragraph J of the PSA, labeled "business," states as follows in subparagraph 5:

Wife shall make payments directly to Husband in his name in the amount of $1,000.00 every two weeks for a total of $5,000.00. These payments do not constitute alimony whatsoever, but are only a part of the Property Settlement Agreement entered into between the parties herein. Payments shall begin at Wife's next pay check.

¶4. Kat filed a petition for a citation of contempt against Remy on July 12, 2018, claiming that Remy did not comply with paragraph H of the PSA. More specifically, Kat alleged that Remy failed to pay his 25% share of the debt the couple owed to the Internal Revenue Service (IRS) and Mississippi Department of Revenue (MDOR) for the 2013, 2014 and 2015 tax years. Further, Kat alleged that Remy failed to pay his 50% share of the professional fees owed to a CPA firm named Wegmann Dazet for the preparation of their 2015 tax return. After Kat filed an amended tax return for 2014, it was without dispute that the total amount due for 2013 and 2014 was $96,886.05. Pursuant to the PSA, Remy was responsible to pay 25% of the tax liability, and Kat was required to pay 75%. In an effort to resolve the couple's tax liability for those years, Kat entered into an agreement with the IRS for repayment of the entire amount of taxes owed. The agreement called for Kat to pay $3,000 each month until the tax debt was paid in full. For the 2015 tax year, on October 16, 2017, Kat paid $35,219 to the United States Treasury and $6,650 to the MDOR. Pursuant to the PSA, Remy was responsible for 25% of that tax debt. In addition to paying the entire 2015 tax debt, Kat paid $1,500 to Wegmann Dazet for fees the couple incurred in having the 2015 tax forms prepared. The record reflects that the parties knew the exact amount of tax liability for 2013 and 2014 at the time of their divorce. However, the amount of the 2015 tax liability and the tax-preparation fee was not established until approximately seven months after the date of the divorce.⁴ Further, Kat requested in her petition that Remy be ordered to join, by signature, the installment agreement that she entered into with the IRS to ensure that he pay his 25% share of the remaining outstanding tax liability for 2013 and 2014. Finally, Kat requested that Remy be incarcerated until he purged himself of the contempt.

¶5. Remy filed an answer to the petition for contempt on July 26, 2018 and asserted several defenses in his answer, including recrimination, unclean hands, and a Mississippi Rule of Civil Procedure 12(b)(6) motion to dismiss. In his counter-petition, Remy claimed that Kat was in contempt of paragraph E of the PSA in that she had not paid off and canceled certain accounts she jointly held with him. Further, he claimed that Kat was in contempt of paragraph J of the PSA in that she failed to pay him the $5,000.00 as agreed. Finally, he claimed that Kat was in contempt of paragraph H of the PSA because she failed to pay her entire portion of the 2013 and 2014 tax liability in a timely manner and that as a result of her failure to pay, the parties incurred extensive penalties and interest for which she should be held solely responsible. Remy also argued that he could not be held in contempt for the 2013 and 2014 tax amounts owed to the IRS or MDOR because Kat had not yet paid those debts in full.

¶6. After a hearing in which Remy represented himself, the chancery court entered a final judgment of contempt on August 27, 2018, finding Remy in willful and contumacious civil contempt. The court held Remy in contempt for failing to comply with paragraph H of the PSA for failing to pay his 25% share of the income taxes for the 2013, 2014 and 2015 tax years in a total amount of $35,438.76. Further, the court held Remy in contempt for failing to pay $750.00 to Kat for his share of the tax preparation fee for 2015. In addition, Remy was ordered to pay $6,332.14 in attorney's fees to Kat as a result of the contempt ruling. Remy was directed to pay the entire monetary judgement of $42,511.90 directly to Kat by paying the sum to the Forest County Chancery Clerk's office on or before October 1, 2018, or he would be incarcerated. The court denied Kat's request to order Remy to sign the IRS payment plan for the 2013 and 2014 tax years. As to Remy's claims in his counter-petition for citation for contempt that Kat failed to pay him $5,000 and failed to pay off and cancel the joint credit card accounts, the chancery court denied and dismissed those claims with prejudice.

¶7. In accordance with Mississippi Rule of Civil Procedure Rule 59, Remy filed a motion for new trial or consideration of new evidence or, in the alternative, to alter or amend the September 6, 2018 judgment. Kat filed her Answer to Remy's motions on September 13, 2018. Remy filed an additional motion on September 18, 2018, requesting an evidentiary hearing to show his inability to pay the judgment. Kat filed her response to this motion on September 20, 2018. After a hearing on the post-trial motions on October 3, 2018, the chancery court entered an order dismissing all post-trial motions and entered a second judgment of contempt on October 9, 2018.⁵ Remy filed his notice of appeal on October 9, 2018.

STANDARD OF REVIEW

¶8. "In domestic-relation cases, our review is limited to whether the chancery court's findings were manifestly wrong or clearly erroneous, or the court applied the wrong legal standard." Gwathney v. Gwathney , 208 So. 3d 1087, 1088 (¶5) (Miss. Ct. App. 2017). If substantial evidence in the record supports the chancellor's findings of fact, we will not disturb his decision. Id. " ‘Contempt matters are committed to the substantial discretion of the trial court,’ and the findings of the chancery court ‘will not be disturbed unless manifestly wrong.’ " Hunt v. Hunt , 289 So. 3d 313, 317 (¶11) (Miss. Ct. App. 2019) (quoting Gutierrez v. Gutierrez , 153 So. 3d 703, 713 (¶31) (Miss. 2014) ).

ANALYSIS

I. Contempt

¶9. There is no dispute that Kat paid $1,500 in tax preparation professional fees to Wegmann Dazet for the 2015 tax year. There is no dispute that Remy owed 50% of that professional fee to Kat and failed to pay. This part of the judgment is not an issue on appeal. Further, there is no dispute that Remy has paid nothing toward the tax debt for the 2013, 2014 and 2015 tax years since the date of the divorce. However, Remy raised several defenses within his answer and counter-petition as well as in his testimony at trial as to why he has not made the payments. Kat paid the total amount due on both the State and federal taxes for the 2015 tax year in the amount of $41,869. Further, Kat entered into an agreement with the IRS on April 3, 2018, for the payment of the taxes due for the 2013 and 2014 tax years. Kat is currently making monthly payments toward that debt...