Broome v. Broome, No. 2001-CA-01014-COA.

• Citation: 832 So.2d 1247
• Decision Date: 17 December 2002
• Docket Number: No. 2001-CA-01014-COA.
• Parties: Cindy K. BROOME, Appellant, v. Paul A. BROOME, Appellee.
• Court: Court of Appeals of Mississippi

832 So.2d 1247

Cindy K. BROOME, Appellant, v. Paul A. BROOME, Appellee.

No. 2001-CA-01014-COA.

Court of Appeals of Mississippi.

December 17, 2002.

Barbara Elizabeth Harvey, Gautier, attorney for appellant.

Jack C. Pickett, Jackson, attorney for appellee.

Before KING, P.J., IRVING, and BRANTLEY, JJ.

IRVING, J., for the court.

¶ 1. Cindy Broome filed a complaint for contempt and modification against her former spouse, Paul Broome, seeking to have him held in contempt for failure to pay $1,375 in child support, $550 of which was alleged to be due for arrearage, $240 in medical expenses, and $1,196 in charges and fees which were assessed as a result of twenty-three of Paul's child support and medical reimbursement checks being returned because of insufficient funds. Cindy also sought attorney's fees and a modification of the provisions of the final judgment of divorce concerning Paul's obligations for reimbursement of medical expenses.

¶ 2. Paul responded and admitted that certain sums were owed, including some payments for child support arrearage. Paul further admitted that twenty-three checks had been returned to Cindy. However, he alleged that the return of the checks was the result of Cindy's own conduct and that Cindy had refused to cooperate in his efforts to pay for the returned checks. He also alleged that Cindy had refused to accept payment for the amounts alleged to be due and owing and that she had acted with the deliberate design to harass him, both financially and emotionally. Additionally, Paul filed a counterclaim seeking to have Cindy sanctioned pursuant to Rule 11 of the Mississippi Rules of Civil Procedure. He averred that Cindy's conduct in holding twenty-nine checks, dating back to March 2000, and then depositing them between September 5 and 12 of 2000, was designed to harass him. He also sought to have Cindy held in contempt for violating a previous court order providing that the parties were not to harass or disrupt the peaceful enjoyment of life of one another.

¶ 3. The trial judge rendered a judgment denying Cindy's request for relief and granting Paul's counterclaim. Cindy has appealed and urges that the trial judge erred when he refused to hold Paul in contempt, denied her claim for insufficient funds fees, denied her request that Paul be solely responsible for the initial dental bill of $3,286 for braces for the minor child, denied her request for attorney's fees and for statutory fees under section 11-7-12 of the Mississippi Code of 1972, as amended, held her in contempt, and sanctioned her $700.

¶ 4. We do not find any reversible error; therefore, we affirm the trial judge.

FACTS

¶ 5. Paul and Cindy Broome were married on September 15, 1984. The marriage produced one son, Shaun Anthony Broome. On November 17, 1994, the parties were granted a divorce on the grounds of irreconcilable differences by the Chancery Court of Jackson County, Mississippi. The court's final decree did not, however, end the conflict or litigation between the parties. Since October 7, 1996, the chancery court has addressed five complaints of contempt filed by Cindy against Paul. The last complaint was filed on December 4, 2000, with the trial being conducted on February 15, 2001, and May 10, 2001.

¶ 6. Additional facts will be related during a discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 7. A limited standard of review is employed by this Court in reviewing decisions of a chancellor. Stacy v. Ross, 798 So.2d 1275, 1278(¶ 13) (Miss.2001) (citing Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997)). Findings will not be disturbed on review unless the chancellor abused his discretion, was manifestly wrong, or made a finding which was clearly erroneous. Id. (citing Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss. 1992)). This Court reviews questions of law, however, under a de novo standard. Id. (citing Zeman v. Stanford, 789 So.2d 798, 802(¶ 12) (Miss.2001)).

Contempt Charges against Paul

¶ 8. This Court will not reverse a chancellor's finding where it is supported by substantial credible evidence. Shipley v. Ferguson, 638 So.2d 1295, 1297 (Miss. 1994). This standard of review holds true for contempt matters, too. "Contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than we are." Morreale v. Morreale, 646 So.2d 1264, 1267 (Miss.1994) (citing Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss. 1990)). A citation for contempt is proper only when the contemner has willfully and deliberately ignored the order or the court. Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss.1997) (citing Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990); Cooper v. Keyes, 510 So.2d 518, 519 (Miss.1987)). Clear and convincing proof is required for a finding of contempt by the chancellor. Setser v. Piazza, 644 So.2d 1211, 1216 (Miss.1994) (citing Cumberland v. Cumberland, 564 So.2d 839, 845 (1990)).

¶ 9. Cindy argues that, on the first trial, Paul owed child support, medical expenses, and arrearage from previous judgments. She points out that Paul admitted he owed said obligations. Furthermore, Cindy proclaims that Paul's payment of arrearage after the first day of trial is convincing proof of his contempt.

¶ 10. At least four things are exceedingly clear and undisputed from the evidence adduced at trial. First, when Cindy filed her last complaint for contempt, Paul was in arrears in both current and past due child support. Second, between September 5 and 12, 2001, Cindy presented to Paul's bank for payment a total of twentynine checks which Paul had given her for current and past due child support and medical expenses. Some of these checks dated back to March 2000. Third, the bank honored six of these checks, but twenty-three of them were not paid due to insufficient funds in Paul's account. Fourth, sometime between the first day of the trial in February and the last day of the trial in May, Paul paid all of the checks that had not been paid by the bank.

¶ 11. The reason for the delay in presenting the checks for payment is in sharp dispute. Cindy testified that she was asked by Paul to hold the checks. As might be expected, Paul denies that he asked that the checks be held, explaining that he never asked that a check be held for more than two days. Also, it is unclear whether the checks would have been paid if they had been timely presented because no evidence was presented as to the status of Paul's account at the time each check was tendered to Cindy.

¶ 12. The trial judge determined that Paul was not in contempt because "Mrs. Broome admitted that all of the checks in question had been paid at the time of the hearing." The trial judge also concluded that "because Mrs. Broome's testimony was contradictory regarding whether or not she actually deposited, cashed or only had the checks in question stamped by her bank as being bad for `insufficient funds', she is not entitled to any statutory fees for the checks in question."

¶ 13. We do not agree with the trial judge that Paul should not be held in contempt simply because he had paid all of the child support arrearage at the time of the hearing. We first point out that Cindy's testimony was that all of the arrearage had been paid by the time of the second day of the hearing in May, not by the time of the first day of the hearing which occurred in February. Even if the arrearage had been paid by the first day of the hearing, that would still be approximately five months after Paul was aware that the checks had been dishonored. The record does not indicate how many checks, if any, were paid by Paul between September 12, 2000, and the first day of the hearing on February 15, 2001. Although we do not agree that Paul's action in bringing his payments current by the time of the second day of the hearing should insulate him from contempt, we nevertheless affirm the trial judge's refusal to hold Paul in contempt. We do so because the burden was on Cindy to prove by clear and convincing evidence that Paul was in contempt for failure to pay child support as ordered. As previously mentioned, Cindy failed to present clear and convincing evidence that when Paul tendered the checks to her, he did not have sufficient money in his account to cover them. We are mindful of Cindy's testimony that Paul asked her to hold some of the checks. However, it would have been a simple matter to subpoena Paul's bank records for the periods in question to ascertain whether sufficient money was available to cover the tendered checks.

Contempt Charges against Cindy

¶ 14. Cindy argues that the chancellor's ruling was arbitrary and capricious and against the overwhelming weight of the evidence when he found that she was in willful contempt of the court's August 25, 1995 order. According to Cindy, both she and her son, Shaun, gave clear and extensive testimony regarding the reason for holding the twenty-nine checks and that the reason was because Paul asked her to hold them, promising that he would make the checks good. Cindy contends that, notwithstanding Paul's promise, she could never talk to him or get his attention until she presented the twenty-nine checks to his bank. She further explains that Paul's attorney contacted her about redeeming the twenty-three checks that were not paid by Paul's bank due to insufficient funds and that she provided Paul's attorney with a copy of all of the checks. Yet, she did not receive any funds for two months. According to Cindy, it was Paul's action in this regard that forced her to file the contempt action against Paul.

¶ 15. The chancellor saw it differently. In his findings, the chancellor explained:

Even considering the fact that the 29 child support and arrearage checks Mrs. Broome cashed between September 5th and 12th all should have been good if Mr.

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