Dailey v. McBeath
| Decision Date | 19 April 2012 |
| Docket Number | NO. 2012-CA-01393-COA,2012-CA-01393-COA |
| Parties | GREGORY DAILEY APPELLANT v. TRACIE MCBEATH (FAIRLEY) APPELLEE |
| Court | Mississippi Court of Appeals |
DATE OF JUDGMENT: 04/19/2012
TRIAL JUDGE: HON. D. NEIL HARRIS SR.
COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: JAMES NELSON SCARFF II DAVID NEIL MCCARTY
ATTORNEY FOR APPELLEE: WENDY WALKER MARTIN
NATURE OF THE CASE: CIVIL - OTHER
TRIAL COURT DISPOSITION: ORDER OF CONTEMPT FOR PAST-DUE CHILD SUPPORT, AWARD OF PAST-DUE CHILD SUPPORT IN THE AMOUNT OF $32,130.46, PLUS $2,000 IN ATTORNEY'S FEES, AND MONTHLY CHILD-SUPPORT PAYMENTS INCREASED TO $450
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 11/25/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
BARNES, J., FOR THE COURT:
¶1. Tracie McBeath Fairley and Gregory Dailey had a child born out of wedlock on November 25, 1992. On May 31, 2001, Tracie filed a petition for custody and other relief. The parties entered into an agreed order on September 6, 2001, wherein Tracie was granted primary physical and legal custody of the child, and Gregory was ordered to pay $334 per month in child support (retroactive to August 2, 2001), $1,750 in back child support, andone-half of the child's reasonable medical expenses not covered by insurance.
¶2. However, Gregory became extremely delinquent on the ordered child support, and Tracie filed a petition for modification and contempt on December 5, 2005, followed by an amended petition for modification and contempt filed on June 19, 2006. A bench warrant was also issued for Gregory at that time. A third amended petition for modification and contempt was filed by Tracie on November 12, 2009.
¶3. On February 5, 2010, Gregory was found in contempt and ordered to pay a purge amount of $5,000, and the chancery court reset "this matter" for a later date. On April 21, 2010, the chancery court found Gregory in "willful, wanton[,] and contumacious contempt" of the 2001 order, stating:
[Gregory] never pays his support on time. He has only paid his support when he has been summoned to [c]ourt. He has failed to follow [Uniform Chancery Court] Rule 8.06 and give his change of address to the [c]ourt[,] and the [c]ourt finds that he has on numerous occasions avoided process although he has come to court when served. He has only paid[,] in the last nine years, $9,000.00 towards the support of this now 17 year old child. The support amount that he was ordered to pay in the amount of $334.00 a month certainly is a meager amount to support a 17 year old child. The matter of raising support is not before the [c]ourt.
The chancellor, therefore, granted Tracie a judgment of $35,695 ($27,486 in past child support, $7,000 in attorney's fees, $900 in investigative fees to locate Gregory, and $309 in court costs), plus eight percent interest from the date of the order. The chancery court also ordered Gregory incarcerated until he paid a purge amount of $11,898.33, which he promptly paid. Gregory was ordered to pay an additional $200 on top of his monthly child-support payments of $334 to reduce the remaining arrearage.
¶4. On June 21, 2011, Tracie filed another petition for modification and contempt, asserting that since the first contempt proceeding a year prior, Gregory had only paid $1,600 in child support, and he had paid nothing towards the arrearage. She also claimed that a modification of child support was warranted due to a material change in circumstances, specifically the increased needs of the child, such as "college expenses, car insurance, and extracurricular activities."
¶5. A hearing on the petition was held April 19, 2012. Tracie's counsel asserted a motion to compel discovery, claiming that when she had finally received an answer from Gregory a week prior to the hearing, there was no proper documentation (tax returns, check stubs, etc.) included. She also claimed that Gregory had purposely eluded investigators, giving them false information, and that he was hiding assets. Gregory failed to appear at the hearing. His counsel, however, was present and acknowledged that Gregory had not filed tax returns for the last seven years. Gregory's counsel complained that counsel opposite had not been communicating with him and that he had been unable to depose Tracie, even though he had been trying for months.
¶6. As a result, both parties requested a continuance, but the chancellor denied the motions and proceeded with the hearing, despite the protestations by his counsel that Gregory was not present. Tracie testified at the hearing that an increase in child support was needed because the child was now in college, and there had been no increase in child support since 2001. At the conclusion of Tracie's testimony (since Gregory had failed to make an appearance), the chancellor issued a bench ruling, holding Gregory in contempt and orderingGregory incarcerated until he paid a purge amount of $15,000.1 The chancellor indicated that the modified monthly child-support payment would be increased to $583, and he reduced Gregory's additional monthly arrearage obligation from $200 to $100. Gregory was also ordered to pay one-half of the child's college expenses.
¶7. The final judgment was entered on July 24, 2012. The order noted that, as of the April 19, 2012 hearing, Gregory was $24,114.46 (including interest) in arrears for child support. The chancellor found: "[Gregory] now owes an additional $8,016 in child support[,] plus $2,000 in attorney fees[.]" The chancellor awarded Tracie an additional judgment of $10,016, plus interest of two and one-half percent. Gregory was ordered incarcerated until he paid the purge amount of $15,000, and he was also ordered to pay one-half of the child's college expenses. However, deviating from the court's bench ruling, the order entered by the chancellor only increased Gregory's monthly child-support payment to $450.2 Gregory now appeals the chancery court's July 24, 2012 order, specifically the increase in monthly child support from $334 to $450 and the award of attorney's fees to Tracie; he does not, however, challenge the arrearage of child support and the finding of contempt.
¶8. Finding that the chancellor failed to make specific findings of fact to support the modification of child support and the deviation from statutory guidelines, we reverse andremand for further proceedings consistent with this opinion. As to the issue of attorney's fees, we find no abuse of discretion in the award of attorney's fees to Tracie based on the court's finding of contempt and affirm the judgment in part on this ground. However, we decline to grant Tracie's request for attorney's fees on appeal.
DISCUSSION
¶9. Gregory's counsel made an appearance on his behalf at the April 19, 2012 hearing, evidently expecting that the chancery court was only going to address the motions for discovery and grant the parties' motions for a continuance. However, the chancellor refused to continue the proceedings and denied both parties' motions. Although counsel argued that Gregory was located three hours away in Madison, Mississippi, as were the attorney's files for the case, the chancellor advised the parties to prepare for trial and to attempt to reach an agreement. He admonished:
¶10. On appeal, Gregory argues that the chancellor's denial of a continuance, which gavehis counsel only seventeen minutes to prepare for trial, was "an inherent abuse of discretion" and that he was "ambushed" and "unable to defend himself." A chancellor's decision to deny a motion for a continuance is reviewed for abuse of discretion. Sizemore v. Pickett, 76 So. 3d 788, 794 (¶14) (Miss. Ct. App. 2011) (citing Robinson v. Brown, 58 So. 3d 38, 42 (¶10) (Miss. Ct. App. 2011)). Absent a finding of prejudice, we will not reverse the denial of a continuance. Robinson, 58 So. 3d at 42 (¶10).3
¶11. While the chancellor's decision to proceed with the hearing without Gregory present may appear harsh, we find that it was not an abuse of discretion. Gregory and his counsel should have been prepared for the possibility that the motions for a continuance would be denied. Gregory was obviously aware of the hearing, as his counsel was in attendance to represent him. Gregory does not contend that he was unable to attend the hearing, and he knew that he owed the prior judgment to Tracie and that the hearing had been scheduled for several months. Furthermore, the record shows that the chancery court had previously granted a continuance on August 17, 2011, and the chancellor noted at the hearing that the case had been set since February 21, 2011.
¶12. Consequently, we find any prejudice suffered by Gregory due to the chancellor's decision to proceed with the hearing was of Gregory's own making, and the chancellor did not abuse his discretion in denying the motions for a continuance.
¶13. Gregory argues that the chancellor's modification of child support should be reversed and remanded because the chancellor failed to make specific findings of fact as to why the increase in Gregory's child-support obligation was in excess of the statutory guidelines.4 Mississippi Code Annotated section...
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