Carter v. Carter, 97-CA-00115 COA.

• Decision Date: 23 March 1999
• Docket Number: No. 97-CA-00115 COA.,97-CA-00115 COA.
• Citation: 735 So.2d 1109
• Court: Mississippi Court of Appeals
• Parties: Wendee Gail Wortman CARTER, Appellant, v. Billy Michael CARTER, Appellee.

735 So.2d 1109

Wendee Gail Wortman CARTER, Appellant, v. Billy Michael CARTER, Appellee.

No. 97-CA-00115 COA.

Court of Appeals of Mississippi.

March 23, 1999.

Tracy L. Morris, Gulfport, Attorney for Appellant.

James D. Bell, Madison, Eduardo Alberto Flechas, Jackson, Attorneys for Appellee.

EN BANC.

MODIFIED OPINION ON MOTION FOR REHEARING

DIAZ, J., for the Court:

¶ 1. The original opinion is withdrawn and the following is substituted. The motion for rehearing is granted.

¶ 2. This case is before the Court on an appeal by Wendee Carter. She seeks to reverse two rulings issued in the Chancery Court of Madison County. The first ruling denied her petition for contempt brought against her former husband, Billy Carter, for failure to pay child support. The second ruling amended the original judgment of divorce to change custody of the two minor children of the parties from Mrs. Carter to Mr. Carter. Finding no cause to reverse the chancellor's modification of custody order, we affirm on that issue. However, it is this Court's opinion that the chancellor erred in denying Mrs. Carter's petition for contempt. Accordingly, we reverse and remand on that issue alone for proceedings consistent with this opinion.

FACTS

¶ 3. On October 19, 1994, Wendee and Billy Carter were divorced, and an order was entered giving Mrs. Carter physical and legal custody of the two minor children of the marriage. Mr. Carter was ordered to pay twenty percent of his adjusted gross income in child support. On April 4, 1996, Mr. Carter filed a motion to modify the final judgment of custody and support, citing a material change in circumstances adverse to the best interests and welfare of the children. Thereafter, on April 12, 1996, Mrs. Carter filed a motion seeking to hold Mr. Carter in contempt for failing to pay child support on income he received from his newspaper delivery route. The chancery court denied Mrs. Carter's motion for contempt but granted Mr. Carter's motion for modification, awarding primary physical and legal custody of the two children to Mr. Carter. It is from these two orders that Mrs. Carter now brings forth her appeal to this Court.

DISCUSSION

I. DOES THIS COURT HAVE JURISDICTION TO CONSIDER THE CHANCELLOR'S ORDER DENYING MRS. CARTER'S PETITION FOR CONTEMPT?

¶ 4. Mr. Carter raises the issue of whether this Court has jurisdiction to consider the chancellor's ruling on the contempt aspects. He claims that this issue was decided separately by the chancellor and there was not a timely notice of appeal from the order ruling on non-payment of child support.

¶ 5. Mr. Carter filed a motion seeking a modification of custody of the children on April 4, 1996. Mrs. Carter filed her motion for contempt for non-payment of child support on April 12. On April 19, she filed a separate written response to Mr. Carter's motion to change custody. The chancellor ruled on the contempt motion, denying relief, by order entered on August 30. The chancellor subsequently ruled on the custody modification by order entered on December 30. Mrs. Carter filed her notice of appeal on January 6, 1997.

¶ 6. It is axiomatic that only final orders are appealable. Grey v. Grey, 638 So.2d 488, 492 (Miss.1994). In the context of cases involving questions of family law, the issue of finality for purposes of appeal is somewhat unique since the chancery court retains jurisdiction of such matters as periodic alimony, child support, and child custody. It is possible that, over the course of an extended number of years, the court may be called upon to resolve any number of disputes, yet all of those disputes arise in the same proceeding. In some instances, there may arise legitimate questions of when a particular ruling is final for purposes of appeal. Under our current rules of procedure, it is envisioned that these recurring disputes, including contempt and custody modification proceedings, will be brought to the court's attention "by complaint or petition only...." M.R.C.P. 81 cmt. Though both parties in this case persist in calling their pleadings "motions," the comment specifically states that "[i]nitiating Rule 81(d) actions by `motion' is not intended." M.R.C.P. 81 cmt.

¶ 7. In order to determine the finality of the chancellor's ruling on the contempt matter, we must discover how these competing pleadings were treated procedurally. The chancellor correctly elected to treat the pleadings as what they actually represented, rather than to accept the incorrect nomenclature provided by the parties. Bruce v. Bruce, 587 So.2d 898, 904 (Miss.1991). It is obvious that Mr. Carter's pleading seeking modification of custody must be seen as either a complaint or petition under Rule 81. The question then arises as to whether to treat Mrs. Carter's subsequent motion for contempt as a counterclaim or as a separate Rule 81 complaint or petition commencing a separate proceeding. We observe that the chancellor elected to treat the contempt motion as a counterclaim even though Mrs. Carter did not identify it as one. In his order dealing with the contempt issue, the chancellor stated as follows:

Billy Michael Carter (Mike) filed a petition to modify custody. Wendee Gail Wortman Carter (Wendee) his former wife who has primary custody of their minor children answered and counterclaimed to cite Mike in contempt for failure to pay child support. (emphasis supplied).

¶ 8. We are of the opinion that the chancellor was acting within his discretion when he recast the pleadings in this manner. Because the chancellor elected to treat Mrs. Carter's separate pleading as a counterclaim, it is clear under our procedural rules that the order disposing of the counterclaim did not have the requisite finality to make it appealable. M.R.C.P. 54(b). Thus, until all aspects of the proceeding were resolved, there was no right to appeal. The final resolution of all issues then pending before the chancellor did not occur until December 30, 1996. Mrs. Carter filed her appeal notice within thirty days from that date. This vested jurisdiction in this Court to consider all matters ruled on by the chancellor, including specifically the issue of contempt.

¶ 9. By our holding, we do not mean to suggest that every post-divorce petition or complaint filed while some other claim advanced by the other party remains unresolved must be treated as a counterclaim. We only hold that the chancellor may, in the exercise of the discretion afforded to the trial courts to manage their own dockets, affirmatively elect to treat it as such. It may be that, in some circumstances, the first matter will have progressed so far toward final resolution that to permit the defending party to delay the finality of the court's decision by simply filing a new claim would be inequitable. In such case, the chancellor may, in the exercise of discretion, elect to treat this subsequent pleading as a separate proceeding. We only sound a note of caution that, in instances where there may be some question on the proper treatment of the second claim, the chancellor should speak on the record with some measure of certainty as how the competing pleadings are being handled procedurally. In the absence of a clear statement from the chancellor, counsel for the aggrieved litigant should be wary of relying on the result in this case as a basis to permit the appeal period to expire from an order that may, or may not, ultimately prove to be interlocutory in character.

¶ 10. Having determined that, in this instance, we have jurisdiction to reach the merits of both aspects of this appeal, we will now proceed to do so, touching first on the issue of child custody.

II. DID THE CHANCELLOR ERR IN MODIFYING THE ORIGINAL AWARD OF CUSTODY?

¶ 11. The chancellor modified the court's earlier award of custody, which gave Mrs. Carter primary custody of the two minor children. The two children of the marriage, a boy and a girl, were eight and six years of age, respectively, at the time of the modification hearing. There was a substantial amount of evidence presented regarding the care the children had received since the divorce that indicated that the children's physical needs were not being properly looked after. Teachers for both children reported the children repeatedly coming to school in an unclean and unkempt condition, sometimes to the extent that they had noticeable body odors. These teachers also reported repeated instances where the children did not appear to be appropriately dressed, to include lack of underwear or dressed too lightly to protect them from inclement weather. Mrs. Carter claimed that lack of sufficient resources caused her to have to wash clothing in the bathtub and that this explained why the children's clothing may not have always been clean.

¶ 12. There was evidence presented that tended to show that the children were not being subjected to appropriate discipline, and that this was causing the children to have behavioral problems at school. Mrs. Carter had subsequently remarried and there was evidence that her second husband was a photographer who engaged in photographing female nudes and that the children had, either purposely or through laxity in precautions, been exposed to photographic material having a sexual content inappropriate for younger children.

¶ 13. Mrs. Carter was unemployed and stayed at home as the caregiver for these two children as well as two younger children born to her subsequent marriage.

¶ 14. There was substantial evidence that the conditions of Mrs. Carter's home were below acceptable standards for basic cleanliness, and that the children had been subjected to five separate changes of residence in a space of approximately two years. ¶ 15. The proof showed, on the other hand, that Mr. Carter lived in a home that he owned and that had recreational facilities available for the children. At least one expert in the area of family social work who had participated in evaluations of the...