Caldwell v. Caldwell

• Decision Date: 17 April 1991
• Docket Number: No. 90-CA-0043,90-CA-0043
• Citation: 579 So.2d 543
• Parties: Joy Pickle CALDWELL v. Carl R. CALDWELL.
• Court: Mississippi Supreme Court

Page 543

579 So.2d 543

Joy Pickle CALDWELL v. Carl R. CALDWELL.

No. 90-CA-0043.

Supreme Court of Mississippi.

April 17, 1991.

Jeffrey C. Smith, Sims & Sims, Columbus, for appellant.

Donna S. Smith, Columbus, for appellee.

Before HAWKINS, P.J., and SULLIVAN and PITTMAN, JJ.

PITTMAN, Justice, for the Court:

This appeal finds its origin in a suit and countersuit for divorce between Joy and Carl Caldwell. Finding no grounds for divorce, the chancellor left the Caldwells married but separated, and made certain provisions for the support of the couple's two children. The litigation continued, based on accusations of contempt and frivolous appeals. We affirm in part, and reverse in part in an effort to see that the decrees of the chancery court are obeyed.

I.

Joy and Carl Caldwell were married in 1964. Two children were born of the marriage: Mark, 20 years of age at the time of the hearing in the case at bar, and Matt, 15. Joy sued Carl for divorce in May 1986 in Lowndes County Chancery Court. That suit was eventually dismissed, but Joy again filed for divorce in August of 1987. Carl, separated from his wife, countersued. The chancery court granted a divorce to neither, but, in its judgment ("final decree") of July 25, 1988, ordered Carl to make the following payments: (1) $250.00 per month support for Matt Caldwell, though no specific time of the month was mandated for payment; (2) Mark's college expenses, including tuition, room, board and supplies; (3) Mark's car insurance; (3) $254.31 for the monthly mortgage payment on the family's home; (4) one-half of all medical expenses for the minor children not covered by Joy Caldwell's medical insurance.

On May 4, 1989, Joy filed a complaint for contempt and modification, alleging that Carl, who had moved to Florida in April 1988, had refused to pay the monthly mortgage payment, that he was in arrears in his child support in the amount of $125.00, that he had been consistently late with the payments that he did make, that he had refused to pay for Mark's college expenses, that he had refused to make certain medical expense payments, and that he was delinquent on his state income tax, which had placed Joy's qualification for homestead exemption in jeopardy. She further alleged that since the rendition of the final decree there had been a substantial and material change in her circumstances which necessitated an increase in her child support. She alleged that Matt Caldwell had reached age fifteen, with an attendant rise in expenses, and that he was much larger than the average fifteen year old, causing his clothes to be more expensive than normal; and that the rate of inflation had risen once again.

Carl Caldwell counterclaimed, alleging that his income had decreased since the final decree to the point where his child support obligation should be decreased; that his two sons were so hostile to him that he should be relieved of any support obligation for them; that his oldest son, Mark Caldwell, was emancipated and should be declared so; that he had been unable to enjoy visitation with his children and that the court should order specific visitation rights; and that the real property owned by him and Joy Caldwell should be partitioned.

The hearing in this cause was held on October 19, 1989. The court heard testimony from Carl, Joy, Mark, Matt, and Carl's sister Carol Meriwether. The chancellor found that Carl Caldwell was not in wilful contempt of the chancery court's prior order. It also found that there had been no substantial and material change in circumstances since the rendition of the final decree, and Joy Caldwell was not entitled to an increase in child support for Matt Caldwell. The chancellor found that Carl Caldwell still had to pay the same $250.00 per month in support that had been ordered earlier. Carl was also ordered to continue making the mortgage payment. The chancellor found that Mark Caldwell, the elder son, was emancipated and his father had no further duty to support him. The chancellor also ordered that Carl should have the following visitation with Matt: seven (7) days at Christmas, in the Columbus area; two (2) weeks during the summer, taken all at once or split up; and such other visitation as could be worked out between Carl and Matt. Joy Caldwell has appealed, and Carl Caldwell has cross-appealed, from the chancery court judgment.

II.

The burden of proof in a case of civil contempt is by a preponderance of the evidence. Miss.Code Ann. Sec. 11-51-12(4) (Supp.1990). "The factual findings of the chancery court in a civil contempt case are affirmed unless manifest error is present and apparent." Premeaux v. Smith, 569 So.2d 681, 683 (Miss.1990).

"The law is well settled that upon establishment of a prima facie case of contempt, the defendant may avoid judgment of contempt by establishing that he is without present ability to discharge his obligation, but he has the burden of proving his inability to pay, and such a showing must be made with particularity and not in general terms." Jones v. Hargrove, 516 So.2d 1354, 1357 (Miss.1987). Before one may be found in contempt of a court judgment, the judgment must be "complete within itself--containing no extraneous references, leaving open no matter or description or designation out of which contention may arise as to the meaning." Wing v. Wing, 549 So.2d 944, 947 (Miss.1989). The behavior necessary for a finding of contempt must amount to a willful or deliberate violation of a judgment or decree. Dunaway v. Busbin, 498 So.2d 1218, 1222 (Miss.1986).

Carl and Joy Caldwell testified to conflict over almost every aspect of support owed by Carl under the final decree. Joy testified that the child support payments came at irregular times, and one support payment of $125.00 had not been made. Carl made that disputed payment just before the hearing to modify, and pointed out that the final decree did not specify any particular day of the month for payment. Joy complained that the mortgage payments had been as much as two months late. Carl, who lived at one address and received his mail at another, stated that he had not received notice from the bank concerning the payment. When he did finally receive notice, he made the payments. Joy alleged that she had been unable to timely file for homestead exemption in 1989, as a tax lien in Carl's name had been placed against the property. She sent notice of the lien to Carl, but he denied ever receiving it. She finally paid the tax lien. Joy testified that she had sent notice to Carl of a $148.00 doctor bill incurred by Matt. She never received any portion of it. Carl testified that he had not received the notice. There were two other medical bills involving Matt, one for $110.00, and one of undetermined amount for a football physical. Joy Caldwell testified that she sent no notice of those, as she did not feel it would do any good.

Carl Caldwell's compliance with the support provisions involving his son Mark is also a matter of controversy. Apparently Carl did not pay Mark's college expense for the 1988-89 school year, as the final decree had ordered. When Joy Caldwell attempted to testify about Mark's medical expenses, Carl objected, saying that he had no legal obligation for that expense. For some reason Joy Caldwell agreed. This was despite the language of the final decree, which states that "[t]he Plaintiff and Defendant will each pay one-half ( 1/2) of all medical and dental expenses not covered by insurance on the parties' minor children."

Because of the conflicting testimony, and because of admitted lack of notice in some instances concerning support which was owed, we will not disturb the chancellor's finding that Carl Caldwell was not in contempt of the final decree. However, there is a strong inference of disrespect for the orders of the chancery court which is disturbing. The chancellor took some steps to see that the decree would be obeyed in the future. We add the following: this cause is remanded to the chancery court for the purpose of determining exactly what medical and dental expenses Matt and Mark Caldwell have incurred since the final decree which are not covered by Joy's insurance. Carl Caldwell will be required to pay one-half of those expenses, as ordered by the final decree. If there are further problems with delinquent payments, or accusations that certain payments have not been made, the court may at its discretion order that payments be made through the court clerk.

III.

The final decree ordered Carl Caldwell to pay $250.00 per month support for his son Matt. This support award was based on a gross salary for 1987 of $28,762.56, and a net monthly income of $1,735.40, though Carl was actually voluntarily unemployed at the time of the final decree. The figures had changed somewhat by the time of the hearing to modify. Carl Caldwell testified to total assets of $85,035.90, including $10,532.74 and $23,679.72 in two savings accounts. He admitted before trial that he had $18,000.00 in cash or liquid assets, but that figure had been reduced to $13-14,000.00 because of legal fees, dental work for himself, and cash gifts of $250.00 to Matt and $300.00 to Mark. He had voluntarily quit his job and was doing some accounting work for the Dundee Citrus Growers Association at a yearly salary of approximately $18,000.00. He testified to a net monthly income of $1180.74 and monthly expenses of $1372.13. Carl had no housing expenses.

At the time of the final decree Joy Caldwell had a gross monthly income of $950.00 and a net income of $741.25. By the time of the hearing to modify she was earning a gross monthly income of $1172.00, with a net income of $836.66. She alleged expenses of $1720.96 per month. Joy Caldwell testified that she could not survive without a voluntary contribution of approximately $275.00 each month from her sister-in-law, Carol Meriwether. Meriwether had also contributed $2,000.00 for Joy's legal fees.

Joy Caldwell...