Cumberland v. Cumberland

• Decision Date: 06 June 1990
• Docket Number: 89-CA-242 and 07-CA-59593,Nos. 89-CA-803,s. 89-CA-803
• Parties: Linda Carol CUMBERLAND v. Michael Floyd CUMBERLAND. Linda Carol CUMBERLAND v. Michael Floyd CUMBERLAND, Johnny Cumberland and Mary Cumberland. Linda Carol CUMBERLAND v. Michael Floyd CUMBERLAND, Johnnie Floyd Cumberland and Mary Henderson Cumberland.
• Court: Mississippi Supreme Court

Page 839

564 So.2d 839

Linda Carol CUMBERLAND v. Michael Floyd CUMBERLAND.

Linda Carol CUMBERLAND v. Michael Floyd CUMBERLAND, Johnny Cumberland and Mary Cumberland.

Linda Carol CUMBERLAND v. Michael Floyd CUMBERLAND, Johnnie Floyd Cumberland and Mary

Henderson Cumberland.

Nos. 89-CA-803, 89-CA-242 and 07-CA-59593.

Supreme Court of Mississippi.

June 6, 1990.

Linda Carol Cumberland, Jackson, pro se.

Kevin D. Lewis, Jackson, for appellant.

Robert D Jones, Jordan & Jones, Meridian, for appellee.

Before HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court.

I.

For five years today's once married litigants have sought in the judicial process an instrument of revenge, only to suffer the familiar effects of vengeance: random excess and self-consumption. Each has inflicted substantial injury (monetary and otherwise) upon the other, and upon our judicial system as they have consumed so much of its meager resources, but none so great as the injury they have visited upon their vicarious victims: their two sons. In the end our courts have absorbed their blows, been seen resilient and decree an end we believe vindicates the integrity of the system and at once protects the legal interests of these two boys, though we know it is but a crude and partial approximation of justice.

II.

On May 20, 1985, the Chancery Court of Lauderdale County, Mississippi, adjudged that Linda Carol Cumberland (Linda) and Michael Floyd Cumberland (Michael) were divorced on grounds of irreconcilable differences. Miss.Code Ann. Sec. 93-5-2 (Supp.1985). The judgment of divorce incorporates a child custody and support agreement, see Newell v. Hinton, 556 So.2d 1037, 1043 (Miss.1990), the principal provisions of which vested custody of Michael F. Cumberland, II, born November 21, 1973, and John Wesley Cumberland, born February 22, 1977, in their mother, Linda, and ordered their father, Michael, to pay as child support $400.00 per month per child.

Two months later the parties were back in court. These three consolidated appeals arise from proceedings dating back to December 10, 1985, when Michael sought to cite Linda for contempt, charging her interference with his visiting his son, Michael, II. Characteristically, Michael sought as a sanction suspension of his child support obligations. Ten days later, Linda retaliated, asking the Court to terminate Michael's visitation rights.

The fighting soon escalated, as Michael sought to modify--and reduce--his child support payments. Of note, Michael, once in court, acted unilaterally. In May of 1986, Michael began paying only $560.00 per month, or $280.00 per child per month. He cited the financial difficulties of his employer which had reduced his salary, plus Linda's new and remunerative employment. Beginning in August of 1986, Michael restored five percent of his unilateral child support reduction because his own salary reduction had been restored.

The next eighteen months saw a plethora of pleadings and bloody battles marked by excessive satellite litigation. ¹ The Chancery Court struggled like Hercules against the Hydra while at once wallowing in the Augean Stables until June 8, 1987, when the Court sought to calm the chaos, ordering (1) that both parties should merge all pending claims into one consolidated pleading which would be filed on or before June 20, 1987; (2) a schedule for the completion of numerous outstanding discovery matters; (3) and that the case be tried on September 21, 22, 23 and 24, 1987.

On June 22, 1987, Michael filed his consolidated complaint. To the end that the flavor of the proceedings below may be sensed, we summarize Michael's allegations--and thereafter Linda's--although by no means are all relevant to this appeal.

Michael alleged first that there had been a material change in circumstances, "including an increase in respondent's [Linda's] income and earning capacity, decrease in movant's [Michael's] income and earning capacity, and increase in movant's expenses, including those related to an Internal Revenue Service (IRS) investigation, and a change due to a failure of Michael F. Cumberland, II to visit and maintain a normal relationship with his father, commencing in 1985." As a result of these changes, Michael asked that his child support payments be reduced, retroactive to 1985. Michael demanded that Linda be held in contempt for her failure to sign IRS Form 8332 in order that he might claim the minor children as dependents. He also asked for attorney's fees, plus all costs.

On June 22, 1987, Linda filed her consolidated pleading. Linda alleged that there had been a material and substantial change in circumstances since the judgment of divorce, as follows: (1) Michael continually wrote harassing and threatening letters to Linda, made like telephone calls, and continually threatened Linda with economic ruin and custodial sanctions; (2) Michael had so abused his telephone privileges with the minor child, Wesley Cumberland, that those privileges should be terminated or, alternatively, that Michael should be ordered to pay all costs required to provide a separate telephone; (3) Michael had willfully, continually, obstinately and contumaciously failed to pay the proper amount of child support such that he was currently in arrears in the amount of $5,620.00; (4) Michael had subjected the minor child, Wesley Cumberland, to religious dogma and practices inconsistent with the religious and moral traditions and guidelines practiced by Linda, the custodial parent; (5) Michael had failed to comply with the provision of the judgment of divorce that required that he maintain $100,000.00 life insurance policies for each child; (6) Michael had intentionally refused to pay child support in an effort to create economic pressure and cause Linda intentional emotional distress, and caused Linda to have to leave her employment. Linda demanded relief on each point, and, as well, asked that all reasonable attorney's fees and costs of the proceedings be assessed against Michael.

Finally, Linda sued Michael in tort for his "outrageous conduct and intentional infliction of emotional distress" and demanded judgment in the amount of $100,000.00 actual damages and $500,000.00 punitive damages.

Not even this consolidation calmed the waters, for the parties were at it again in a matter of days. The Court held the line--that the claims for litigation were those asserted in the June, 1987, consolidated pleadings and none others. Mercifully, trial began September 22, 1987, consuming ten days intermittently, concluding on March 30, 1988. The Court endured and in the end filed an opinion that began appropriately,

The primary problem in the trial of this action was that [Michael] and [Linda] have a bitter, hostile, intense and aggressive aversion for each other, and the aversion of the litigants eventually spread to and was manifested in the actions of their attorneys. Compounding the situation was the friendship of [Michael] and his attorney, Robert D. Jones, and the friendship of [Linda] with her attorney, Patricia Alexander, and her employment by Attorney Roland Lewis. The close friendships between attorneys and clients did not lend itself to complete objectivity of counsel as to their courtroom conduct.

Final judgment was entered on August 10, 1988, ordering inter alia, that Michael pay past due child support (for the period May 5, 1986, through June 5, 1987) in the sum of $5,620.00, plus interest. Brand v. Brand, 482 So.2d 236, 238 (Miss.1986).

Subsequent litigation generated supplemental opinions and judgments on September 16, 1988, ² and February 3, 1989. Effective December 16, 1988, Michael F. Cumberland, III went to live with his father. The Chancery Court has ratified this move. En route the Court has directed that Michael pay no more periodic child support, that each parent is responsible for the support, and maintenance and education of the child in his or her custody.

Time and attrition appear to have settled what law and litigation could not. Nevertheless, Linda appeals all, and we have consolidated the three appeals for purposes of hearing consideration and decision.

III.

Linda argues that the Chancery Court erred when it denied her an award of damages on her complaint that Michael's intentional and outrageous conduct had inflicted upon her severe emotional distress. Linda's complaint sounds in tort but her argument is technical.

On June 22, 1987, Linda filed her consolidated pleading, charging intentional infliction of emotional distress, and demanding actual damages and punitive damages. Michael made no answer to this claim, and on September 21, 1987, Linda requested the Chancery Court to enter judgment against Michael by default. The Court denied Linda's motion on grounds the pre-trial order required the parties to file consolidated pleadings as the pleadings to put an end to pleading; hence, answers were neither contemplated nor required.

Default judgments are regulated procedurally by Rule 55, Miss.R.Civ.P. That rule grants our trial courts a significant discretion when one party seeks judgment by default against another, as the official comment thereto and our decisions make clear. The Chancery Court's June 8, 1987, order contemplated that each party would file a consolidated pleading, stating all claims and issues to be litigated, and that thereafter, pleadings would cease. It is apparent that Michael was ready for trial on this issue, and Linda certainly suffered no prejudice by his failure to answer. The Chancery Court in no way exceeded its discretionary authority when it refused to enter judgment in Linda's favor by default, instead choosing to hear Linda's claim on its merits. See Shannon v. Henson, 499 So.2d 758, 762-63 (Miss.1986); Bryant, Inc. v. Walters, 493 So.2d 933, 936-37 (Miss.1986); Wilson v. South Central Mississippi Farmers, Inc., 494 So.2d 358, 360 (Miss.1986); see generally, Burkett v. Burkett, 537 So.2d 443, 445 ...