Buckalew v. Stewart

• Decision Date: 15 December 1969
• Docket Number: No. 45534,45534
• Parties: William Troy BUCKALEW v. Mary Helen STEWART.
• Court: Mississippi Supreme Court

Page 559

229 So.2d 559

William Troy BUCKALEW v. Mary Helen STEWART.

No. 45534.

Supreme Court of Mississippi.

Dec. 15, 1969.

William E. Andrews, Jr., Purvis, for appellant.

Smith & Smith, Poplarville, for appellee.

SMITH, Justice.

William Troy Buckalew appeals from a decree of the Chancery Court of Pearl River County adjudging him to be in contempt for failure to comply with a decree of that court entered October 20, 1964. Under the terms of the earlier decree, appellee, Mary Helen (Buckalew) Stewart, his then wife, had been granted a divorce, awarded custody of their minor children, and he had been directed to make certain weekly payments for the support of the children.

The decree appealed from, adjudging him to be in contempt, was entered following a hearing upon a petition filed by appellee on February 14, 1967, praying that he be cited for contempt for having failed to make the payments for child support ordered in the 1964 decree.

The provision for child support, with which it was alleged appellant had failed to comply, quoted in its entirety as it appears in the 1964 decree, is as follows:

It is further ordered, adjudged and decreed that defendant pay a reasonable amount each week, $30.00, for the support of these minor children, and that complainant be awarded all of equity in property jointly owned by them, and that one-half of said amount be credited in advance calculated at 30.00 per week. (Emphasis added.)

Appellant answered the petition, denied that he was delinquent, claimed credit for cash payments he had made as well as for the credit allowed by the terms of the 1964 decree by reason of the award of the 'jointly owned' property to appellee.

Appellee responded to the 'affirmative' matter contained in appellant's answer, and alleged, among other things, that appellant's 'equity' in the property 'jointly owned' was worthless as it was subject to the liens of several enrolled judgments outstanding against him.

At the hearing, no witness testified for either side, and the chancellor heard the matter upon the pleadings, the exhibits thereto, and a brief stipulation as to certain facts.

Although many of the relevant tacts were inadequately developed and the record affords but meager information regarding the circumstances, it appears to be undisputed that, at the time of the divorce proceedings, appellant and appellee, husband and wife, owned a 178 acre farm on which there was a 6 room dwelling, in which they lived, a dairy barn and other farm buildings. This property, on the date of the 1964 decree, had a value of $17,800 and had been purchased with money borrowed through the Farmers Home Administration. Payments on this indebtedness had been made (the record does not show by whom, whether by appellant or appellee) which had reduced the mortgage debt to $13,000.

A determination of the appeal requires an interpretation of the provision in the 1964 decree directing that appellant pay $30.00 per week as child support and that complainant (appellee) be awarded all of the property 'jointly owned' by them (appellee and appellant) and 'that one half of said amount be credited in advance calculated at $30.00 per week.'

Appellee contends that this provision was intended to and did have the effect of divesting appellant of title to his interest in the farm home property and of vesting such title in her. Moreover, appellee argues, it was contemplated by the court in making the decree that appellant's 'equity' would be worth $2,400, or one half of the $4,800 difference between the $17,800 value and the $13,000 balance due Farmers Home Administration. She asserts further that the credit to which appellant was entitled because of the award of his equity to her was limited to the value of one half of the amount by which the value of the property exceeded the balance of the mortgage debt. Obviously, nothing like this is embodied in the decree and this view requires reading into it several material provisions it does not actually contain.

Appellee concedes, moreover, that appellant has made cash payments and, if given credit for one half of the 'equity' (even at her figure of $2,400), he has substantially overpaid the amount due. She seeks to avoid the consequences of this admission by asserting in her final pleading (she did not mention it in her original petition) that appellant's 'equity' actually had no value because it was incumbered by the liens of enrolled judgments obtained against him by his creditors, the amount of which exceeded $2,400. She further concedes, however, that she and her 'present' husband and presumably the children, remain in possession, and that she and her husband currently are making the mortgage payments to Farmers Home Administration. Although several years elapsed between the decree and the filing of the contempt petition, it is nowhere suggested that the property has been taken on execution on the judgments or that either her possession or enjoyment of the property has, in anywise, or to any extent, been disturbed or interfered with because of the judgments.

This Court has held that the chancellor is without power, by judicial fiat, in making support awards in domestic relations cases, to divest title to realty out of one spouse and vest it in the other.

In Windham v. Windham, 218 Miss. 547, 67 So.2d 467, 471, 472 (1953) this Court quoted with approval from McCraney v. McCraney, 208 Miss. 105, 43 So.2d 872, 873, (1950) as follows:

(W)e know of no authority for a court to divest the...