Crow v. Crow

• Citation: 622 So.2d 1226
• Decision Date: 03 June 1993
• Docket Number: No. 91-CA-1049,91-CA-1049
• Parties: Roy H. CROW v. Lynette CROW.
• Court: United States State Supreme Court of Mississippi

Page 1226

622 So.2d 1226

Roy H. CROW v. Lynette CROW.

No. 91-CA-1049.

Supreme Court of Mississippi.

June 3, 1993.

Rehearing Denied Sept. 23, 1993.

Charles R. Wilbanks, Corinth, for appellant.

Thomas H. Comer, Jr., Comer & Jenkins, Booneville, for appellee.

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

PRATHER, Justice, for the Court:

I. INTRODUCTION

STATEMENT OF THE CASE

This domestic relations appeal, which had its genesis in the filing by the wife of a "Complaint for Citation of Contempt," seeks reversal of the chancellor's finding of fact that Roy H. Crow was in arrears in child support payments in the amount of $5,640.00. The chancellor entered a decree adjudicating that husband was in arrears, but not in willful contempt. The husband also seeks reversal of the chancellor's denial of certain credits and denial of the husband's counterclaim seeking emancipation and relief from basic support of his twenty-one (21) year old daughter.

II. FACTS

STATEMENT OF THE FACTS

Appellant, Roy H. Crow [hereinafter "Roy"] and Lynette Crow [hereinafter "Lynette"] were married on October 14, 1966. They separated on December 31, 1989.

The parties had filed a joint complaint for divorce on February 6, 1990. A four (4) page stipulation and separation agreement executed by both parties and attached to their complaint granted to Lynette custody of the couple's two minor children, Karen Crow and Tina Crow, then seventeen (17) and nineteen (19) years of age, respectively.

In the separation agreement, which was incorporated into the final judgment of divorce, Roy agreed to pay "to the Wife ..." the sum of $600.00 per month for the support of Karen and Tina and all reasonable college expenses.

The agreement further provided that Roy would convey to Lynette the titles to the Z-28 automobile and the 1983 Blazer automobile, would assume and make monthly payments to the Peoples Bank for the indebtedness on the 1983 Blazer, and would indemnify and hold Lynette harmless from said indebtedness. Roy further agreed to pay for health insurance and medical, dental, and drug expenses not covered by said insurance. A final decree of divorce awarded on the grounds of irreconcilable differences was entered on April 13, 1990, by the Chancery Court of Alcorn County.

On May 14, 1991, thirteen months after the divorce, Lynette filed her complaint for citation of contempt alleging inter alia, that Roy had failed to pay all of the child support required of him and had not conveyed his interest in and title to plaintiff's automobile. Lynette prayed for a judgment against Roy "for all sums due" and asked that Roy be required to execute all documents necessary to abide by the orders issued by the Court.

Roy answered with a general denial. Roy also filed a counterclaim in which he alleged there had been a material and substantial change in the circumstances since the rendition of the divorce decree. Roy sought certain credits and a declaration that Tina Crow had been emancipated upon reaching her twenty-first birthday in February, 1991.

Following trial the chancellor declined to hold Roy in contempt, but found him in arrears. The court found as a fact from the testimony of the parties that during the sixteen (16) month period of time between the divorce awarded on April 13, 1990, and August 31, 1991, Roy should have paid child support to Lynette in the amount of $9,600.00. The chancellor gave Roy credit for checks written directly to Tina and Karen totaling $3,410.00, for a $150.00 check written on Roy's business account, and for a $400.00 check written by Lynette for automobile repairs. Roy's total credit was The chancellor declined to give Roy credit for certain utility bills voluntarily paid by Roy and denied Roy's counterclaim for modification of child support sought on the ground that Tina had been emancipated.

$3,960.00, and his total arrearage as of August 31, 1991, was $5,640.00 which amount was awarded to Lynette. Roy was directed to replace the Blazer automobile, which had been wrecked, by paying to Lynette the sum of $4000.00 in insurance proceeds that Roy had received and used to pay off the bank lien.

III. ANALYSIS

DISCUSSION

A. Scope of Review

Our scope of review in domestic relations matters is limited. "This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990).

In other words, "[o]n appeal [we are] required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong." Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). This is particularly true "in the areas of divorce and child support." Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989).

B. Child Support

Roy contends he clearly established by a preponderance of the evidence he had paid the child support and was not in arrears. Lynette, on the other hand, denies this allegation.

Under the terms of the decree of divorce, Roy was to pay directly to Lynette the sum of $600.00 a month for the support and maintenance of the two children. Lynette testified that although Roy had paid nothing to her directly, he had paid around $4000.00 to the children in both checks and cash, and she was willing to give him credit for this amount. While admitting that Roy had made payments with both checks and cash, she denied he had made sizable support payments in cash. Lynette, much like Roy, kept no records.

Roy testified that since the divorce he had written checks to both Tina and Karen in the amount of $150.00 every other week save for a period of three or four weeks when Lynette came into possession of a business check which she later returned. Lynette emphatically denied this was the only occasion that Roy had missed a payment.

Roy produced cancelled checks attesting to payments made to the children in the amount of $3,410.00. He claimed he had paid everything they needed for college, but he didn't know the amount.

In the final analysis, Roy kept no records, obtained no receipts, and had no idea as to the amount of money he had paid for regular child support which had been intermingled with other payments for care and maintenance such as college and health related expenses. It is difficult to ascertain the accuracy of Roy's claim that he paid $6000.00 in cash to his children, a great deal of which was purportedly placed inside a mailbox. The chancellor found the amount of child support due from April 13, 1990, (the date of the divorce) to August 31, 1991, (the month prior to trial) to be $9,600.00. Elementary math points to the correctness of this finding of fact ($600.00 X 16 months = $9,600.00). The credit of $3,960 given by the chancellor left the balance due of $5,640, which amount was awarded to Lynette.

Whether Roy was in arrears and the amount of any arrearage involved questions of fact. "[T]he findings of the chancery court concerning findings of fact, particularly in the areas of divorce and child support, will generally not be overturned by this Court on appeal unless they are manifestly wrong." Nichols v. Tedder, supra, 547 So.2d 766, 781 (Miss.1989), and the cases cited therein. These fact-findings are the equivalent of a jury's verdict upon conflicting evidence. Voss v. Stewart, 420 So.2d 761 (Miss.1982).

Stated differently, unless the chancellor committed manifest error, we will not reverse In the case sub judice, the chancellor, based upon his observation of the witnesses and their testimony, much of which was conflicting, made a finding of fact from the proof that Roy was in arrears in the amount of $5,640.00. This Court holds the record supports his finding and is not manifestly wrong. "The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts." Rainey v. Rainey, 205 So.2d 514, 515 (Miss.1967).

a chancellor's findings of fact where we find those facts supported by substantial credible evidence in the record. Morrow v. Morrow, 591 So.2d 829, 832-833 (Miss.1991). "Where evidence conflicts, ... this Court typically defers to the chancellor as fact-finder." McElhaney v. City of Horn Lake, 501 So.2d 401, 403 (Miss.1987).

The memo line on several of the $150.00 checks made out by Roy to his daughters, Karen and Tina, contained notations such as: "labor at mill," "labor," "secretary fee," and "maid work." At one point Roy testified the girls made these notations; at still another he testified he made the notations. Notations notwithstanding, Roy was given credit for these checks. Although Roy denied he was disguising some of his child support payments for the purpose of deducting these amounts as business expenses on his income tax, these observations, nevertheless, would seem to reflect unfavorably upon Roy's credibility.

Even if Lynette's figures as to the amount of the arrearages was vague and imprecise, we will not hold the chancellor in error where, as here, there was no other direct evidence as to the amount due. Brown v. Gillespie, 465 So.2d 1046, 1047 (Miss.1985). The issue was a factual one which will not be disturbed since it was not manifestly wrong.

C. The Emancipation of Tina

Tina turned twenty-one (21) in February of 1991, ten (10) months after entry of the final judgment of divorce. Roy contends he was not legally obligated to pay child support for Tina post-majority and that the chancellor should have granted the request contained in his counterclaim to "declare that Tina Crow has been emancipated and that no further support is due from the counter-defendant for the said Tina Crow."

Although not alleged in his counterclaim and sought by Roy during trial, Roy claims on appeal he is entitled to credit for $300.00 per month. Roy suggests this is Tina's pro rata share of...