Cook v. Whiddon

• Decision Date: 24 February 2004
• Docket Number: No. 2000-CA-01776-COA.,2000-CA-01776-COA.
• Parties: Henry J. COOK, III, Appellant, v. Ginger Cook WHIDDON, Appellee.
• Court: Mississippi Court of Appeals

866 So.2d 494

Henry J. COOK, III, Appellant, v. Ginger Cook WHIDDON, Appellee.

No. 2000-CA-01776-COA.

Court of Appeals of Mississippi.

February 24, 2004.

Henry J. Cook, III, pro se.

David D. Powell, Michael D. Haas, Richard Lynn Ducote, for appellee.

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

IRVING, J., for the court.

¶ 1. Henry J. Cook III and Ginger Cook, now Ginger Whiddon, were divorced in June 1997. Thereafter, numerous motions for contempt and modifications were filed by both parties. A final judgment on all motions was entered in September of 2000. Aggrieved by the chancellor's decision, Cook has appealed, asserting that the chancery court erred: (1) in granting his ex-wife a judgment for pre-divorce support, (2) in using the "clean hands" doctrine to bar his request for a reduction in his child support obligation since he owed no temporary spousal support, (3) in applying the "clean hands" doctrine by ignoring the Schlom rule, (4) in not giving him credit, as child support for his payment of the children's private school tuition, (5) in awarding attorney fees to his ex-wife, (6) in computing child support in the final judgment, (7) in permitting extraordinary delays in the bringing of issues before the court, (8) in computing fees for copying the chancery clerk's papers, and (9) in allowing the entry of a judgment replete with errors and mistakes.

¶ 2. We find merit in Cook's assertion that the trial court erred in its application of the "clean hands" doctrine; therefore, we affirm in part and reverse and remand in part.

FACTS

¶ 3. Cook and Whiddon's divorce was granted on the ground of habitual cruel and inhuman treatment. The chancellor granted Cook and Whiddon joint legal custody of the couple's three minor children, with Whiddon having physical custody and Cook having reasonable weekend and holiday visitations. Cook was also ordered to pay child support in the amount of $977 per month.

¶ 4. In July of 1997, one month following the entry of the final judgment of divorce, Whiddon filed a motion for contempt, alleging that Cook had failed to pay court-ordered child support and temporary pre-divorce support. Cook responded by answering and filing a counterclaim and a motion to modify the judgment of divorce. He asserted that he had suffered a material change in circumstances that rendered him unable to pay the child support payments in the amount provided by the divorce decree and requested modification of that amount. Cook claimed that, since the judgment of divorce, he had been forced to close his law practice and had been declared 80% disabled based on his physical and mental health. Following a hearing in September of 1997, Chancellor Shannon Clark found Cook in arrears in the amount of $3,715 for child support. The chancellor ordered Cook to pay $822 per month of the previously ordered $977 child support obligation, with the remainder of the monthly support to be paid on his behalf by the Veteran's Administration. The court also ordered Cook to pay an additional $500 per month in back child support until his arrearage was paid in full.

¶ 5. In February 1998, Whiddon filed yet another motion for contempt, alleging that Cook had failed to pay his child support obligations. A hearing was held on March 10, 1998, and the chancellor found that Cook should have paid $25,000 to Whiddon in pre-divorce support. After a number of credits and set-offs totaling $19,098.77, Cook was found to be in arrears in his pre-divorce support of $5,901.23. The chancellor also found that Cook should have paid $5,862 in child support from October 1997 through March 1998. However, he had only paid $2,372 to Whiddon, and the Veteran's Administration had paid $930, for which Cook was given credit. He therefore had a total child support arrearage of $2,560. As a result of the hearing, the chancellor entered a judgment for Whiddon in the amount of $8,461.23. In August of 1998, Whiddon and the children moved to Tennessee. Cook filed a motion for ex-parte emergency relief. The chancellor directed Whiddon to return the children to Mississippi until a hearing for temporary relief could be held. However, before the hearing date, the chancellor permitted the children to return to Tennessee with their mother.

¶ 6. In July of 2000, a trial was held to decide all previously filed and not yet decided motions for modification and contempt. After three days of testimony, a different chancellor, Presiding Chancellor Donald Patterson, granted Whiddon sole legal and physical custody of the children and found Cook in contempt for failure to pay past due temporary spousal support and child support. The chancellor also found Cook in arrears on child support due at the time of trial. The court held that Cook had the ability to pay his child support obligation, and a reduction in child support was inappropriate. Whiddon was also awarded $3,000 in attorney fees because the court found that she did not have the financial ability to pay.

¶ 7. At the conclusion of the evidence the chancellor made findings of facts and directed Whiddon's attorney to draft a judgment and submit it for approval. This was done and submitted to the chancellor. After making numerous corrections to the proposed judgment, the chancellor signed the judgment and entered it in September 2000. It is from this final judgment that Cook appeals. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 8. This Court's scope of review in domestic relations matters is strictly limited. Brawdy v. Howell, 841 So.2d 1175,-1178 (¶ 8) (Miss.Ct.App.2003). We will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of law, or a manifest error. Id. Thus, if we find substantial evidence in the record to support the chancellor's findings, we will not reverse. Id.

(1) Temporary Spousal Support

¶ 9. Cook first argues that the court erred in allowing Whiddon to recover $5,901.23 in temporary pre-divorce spousal support arrearage. Cook maintains that his pre-divorce obligation is unenforceable because the temporary support was not incorporated into the judgment of divorce. Whiddon counters with the assertion that prior to the judgment of divorce, the court issued an order requiring Cook to provide monthly alimony payments in the amount of $2,500 per month.

¶ 10. We were unable to find in the record the temporary order to which Whiddon makes reference. However, we are satisfied that such an order exists inasmuch as Cook, in his answer to Whiddon's motion for contempt, admitted that he had been ordered to pay pre-divorce support.

¶ 11. We find no error on the part of the chancellor in allowing the arrearage and in holding Cook in contempt for failing to pay the temporary pre-divorce support. While Cook is correct in his contention that the temporary support order was not incorporated in the final judgment of divorce, that omission did not extinguish his then existing obligation to pay accrued pre-divorce support. Lewis v. Lewis, 586 So.2d 740, 742 (Miss.1991).

(2) Application of Clean Hands Doctrine

¶ 12. The chancellor determined that Cook's hands were unclean for failure to pay back child support and temporary alimony. Consequently, the chancellor refused to consider Cook's petition for modification, ruling that the petition would not be considered until Cook became current in the aforementioned obligations. However, the chancellor did allow Cook to proffer testimony concerning his changed circumstance.

¶ 13. The doctrine of "unclean hands" declares that "he who comes into equity must come with clean hands." Thigpen v. Kennedy, 238 So.2d 744, 746 (Miss.1970). In other words, the clean hands doctrine prevents a complaining party from obtaining equitable relief in court when he is guilty of wilful misconduct in the transaction at issue. Bailey v. Bailey, 724 So.2d 335, 337(¶ 6) (Miss.1998). Our supreme court has set out the proper course a party should take when he is unable to meet his support obligations. Gambrell v. Gambrell, 644 So.2d 435, 441 (Miss.1994). If a party is unable to comply with a divorce decree, he should, with reasonable promptitude, make that fact known to the court by proper petition and have the decree modified or suspended, and not wait until he has been cited for contempt. Id.

¶ 14. Chancellor Patterson held that unless Cook could show that he was current in his child support obligation, he would refuse to hear any request or evidence pertaining to modification of child support. Cook contends that the trial court should have followed the ruling in Schlom v. Schlom, 149 Miss. 111, 115 So. 197 (Miss.1928), in considering his request for reduction. In Schlom, the court held that the clean hands doctrine did not apply to a father who voluntarily reduced his child support payments only after he filed his petition for modification.

¶ 15. In contrast, the case-at-bar is readily distinguishable from Schlom. Here, Cook was in arrears at the time he filed his motion for modification of child support which was not filed until after Whiddon had filed her motion seeking to have him held in contempt for failure to make child support payments. Cook's reliance on Schlom is misplaced. The evidence supports the finding that Cook came into court with unclean hands.

¶ 16. Although we agree with the chancellor that Cook came into court with unclean hands, our task does not end there. We must now determine if he left with unclean hands so as to prevent any modification of his future child support obligations until after he has paid all arrearage.

¶ 17. We find the case of Brennan v. Brennan, 605 So.2d 749, 753 (Miss.1992), helpful to the resolution of the issue before us. In Brennan, the trial court dismissed a petitioner's petition for modification because he was found to have unclean hands. Id. Apparently, prior to dismissing the petition,...