Dixon v. Olmstead

• Decision Date: 26 May 2020
• Docket Number: NO. 2019-CA-00063-COA,2019-CA-00063-COA
• Citation: 296 So.3d 227
• Parties: Michael DIXON, Appellant v. Christy Hayden OLMSTEAD and Mississippi Department of Human Services, Appellees
• Court: Mississippi Court of Appeals

296 So.3d 227

Michael DIXON, Appellant

v.Christy Hayden OLMSTEAD and Mississippi Department of Human Services, Appellees

NO. 2019-CA-00063-COA

Court of Appeals of Mississippi.

May 26, 2020

ATTORNEY FOR APPELLANT: MATTHEW STEPHEN LOTT, Pascagoula

ATTORNEYS FOR APPELLEES: CHRISTY HAYDEN OLMSTEAD (PRO SE) DARNELL L. NICOVICH

BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Michael Dixon appeals from the George County Chancery Court's December 17, 2018 order increasing his child-support obligation and awarding his attorney's fees relating to a contempt action that he initiated. On appeal, Dixon argues that the chancellor erred in modifying his child-support obligation because no evidence existed to show a material change in circumstances warranting the modification. Dixon also argues that the chancellor erred in awarding him only $1,000 in attorney's fees as a result of the contempt action.

¶2. After our review, we find the chancellor was within his discretion to award Dixon only $1,000 in attorney's fees as a result of the contempt action. We also find that the chancellor had sufficient information before him to support his modification of Dixon's child-support obligation. However, we reverse and remand this matter to the chancellor for the introduction of additional evidence as to Dixon's income to support the modified amount of his child-support obligation. We therefore affirm the chancellor's judgment in part and reverse and remand in part.

FACTS

¶3. Dixon and Christy Olmstead are the natural parents of the minor child Allison,¹ who was born in 2003. Dixon and Olmstead were never married, but they lived together for a short time after Allison's birth.

¶4. In a final judgment entered on February 24, 2005, the chancellor ordered Dixon to pay Olmstead child support in the amount of $334 per month and maintain Allison on his health and medical insurance policy. The chancellor also set forth a visitation schedule for the parties, awarding Olmstead physical custody of Allison, with Dixon receiving visitation.

¶5. According to Dixon, Olmstead initially complied with the visitation schedule set forth in the final judgment, but she eventually refused to let Dixon see Allison. Dixon testified that he has not had visitation with Allison since 2005, when Allison was two years old.

¶6. On August 29, 2017, Dixon filed a petition to cease his child-support obligation and to terminate his parental rights as to Allison. In his petition, Dixon asserted that Olmstead had "poisoned [Allison's] mind with regard to [Dixon] to the point of no return," and therefore Dixon's relationship with Allison had "eroded to the point that [Dixon] feels the relationship is irreparable."

¶7. On April 12, 2018, the Mississippi Department of Human Services (DHS) filed a cross-complaint to modify the February 24, 2005 final judgment, seeking an upward modification of Dixon's child-support obligation. In its cross-complaint, DHS argued that a substantial material change in circumstances had occurred since the final judgment; namely, that Dixon's adjusted gross income "has substantially increased" and "that he is no longer obligated to pay support for the child of a different relationship, who has now reached the age of majority." DHS also asserted that Allison "is now substantially older than she was when the [s]upport [o]rder was entered in February 24, 2005, and the costs of providing for her care have greatly increased." DHS therefore requested that the chancellor modify the previous support order and increase the support obligation to an amount that is in compliance with Mississippi Code Annotated section 43-19-101 (Rev. 2015), Mississippi's statutory guideline for child-support payment.

¶8. The chancellor heard testimony from the parties and arguments from counsel on January 11, 2018, April 23, 2018, July 26, 2018, and December 17, 2018. At the April 23, 2018 hearing, counsel for DHS clarified that DHS, not Olmstead, filed the petition to modify Dixon's child-support obligation. Counsel for DHS asserted that Dixon "had a prior child[-]support obligation. That child is emancipated, so those funds are free. He is no longer under that court order to provide child support for the other child."

¶9. On July 31, 2018, the chancellor entered a temporary visitation order awarding Olmstead physical custody of Allison with Dixon to receive "standard" visitation.² On August 29, 2018, Dixon filed a "complaint for citation of contempt" against Olmstead, claiming that since the entry of the July 31, 2018 judgment, Olmstead refused to comply with the visitation schedule. Dixon asserted that in so doing, Olmstead "acted willfully, contumaciously[,] and with contempt to withhold the minor child for visitation with her Father." Dixon requested that the chancellor sanction and incarcerate Olmstead. Dixon specifically requested that Olmstead be responsible for payment of Dixon's travel expenses, including but not limited to mileage, fuel expenses, costs, and attorney's fees associated with bringing forth the complaint for contempt.

¶10. At the December 17, 2018 hearing, DHS set forth its argument regarding its request for an increase in Dixon's child-support obligation. Pursuant to section 43-19-101(1), Dixon must pay fourteen percent of his adjusted gross income in child support to Allison. DHS asserted that based on Dixon's current income and the information provided by Ingalls Shipyard, Dixon's employer, fourteen percent of Dixon's adjusted gross income would be $491. The chancellor then stated that he would "set the child support at $400 a month," explaining "I think that's fair for a child.... as a matter of fact, that's probably ... pretty doggone low to feed, clothe, and take care of a child." The chancellor ruled that the parties "can split all medicals and costs of that nature." Later during the hearing, the chancellor clarified that he would set the child-support award at the statutory amount of $491.

¶11. As to the petition for contempt, Dixon's counsel requested that the chancellor award Dixon attorney's fees in the amount of $2,500 plus mileage of a 132-miles round trip at the rate set by the Internal Revenue Service (IRS). Dixon's counsel stated that Dixon had made this round trip drive approximately eight times. The chancellor asked Dixon's counsel for the specific mileage amount he was requesting, and Dixon's counsel responded "1,056 miles" at the IRS rate of "$.54 [or] $.55." Dixon's counsel calculated the dollar amount as $580. The chancellor therefore ordered Olmstead to pay Dixon $580 within thirty days. The chancellor also ordered Olmstead to pay Dixon $1,000 in attorney's fees.

¶12. On December 17, 2018, the chancellor memorialized his findings in an order. The chancellor awarded Olmstead physical custody of Allison and set forth a standard visitation schedule for Dixon. The chancellor amended Dixon's child-support obligation and increased the monthly amount to $491 per month. The chancellor also found Olmstead "in willful and contumacious contempt" of the chancellor's prior order and accordingly ordered Olmstead to pay Dixon attorney's fees in the amount of $1,000 and mileage expenses in the amount of $580.

¶13. Dixon timely filed his notice of appeal from the December 17, 2018 judgment "and all other orders and judgments entered in this cause of action."

STANDARD OF REVIEW

¶14. Olmstead did not file a brief in response to Dixon's appeal. The certificate of service on Dixon's notice of appeal and the certificate of service on his appellate brief reflect that Dixon served Olmstead with a copy of the notice of appeal and a copy of his appellate brief. DHS filed a brief in response to Dixon's appeal; however, in its brief, DHS clarified that counsel for DHS does not represent Olmstead. DHS explained that pursuant to Mississippi Code Annotated section 43-19-35(3) (Rev. 2015):

Any attorney authorized by the [S]tate to initiate any action pursuant to Title IV-D of the federal Social Security Act, including, but not limited to, any action initiated pursuant to Sections 43-19-31 et seq. and 93-25-1 et seq. shall be deemed to represent the interest of the State Department of Human Services exclusively; no attorney-client relationship shall exist between said attorney and any recipient of services pursuant to Title IV-D of the federal Social Security Act for and on behalf of a child or children ....

¶15. Furthermore, we recognize that section 43-19-35(3) specifically provides that "[the] attorney representing the [S]tate in a [T]itle IV-D case is only authorized to appear and prosecute and/or defend issues of support and cannot in a Title IV-D case address or provide representation to the Title IV-D recipient on any other ancillary issues raised or presented in that action." Counsel for DHS states in its appellate brief that Olmstead is a recipient of services under Title IV-D of the Social Security Act. Therefore, pursuant to section 43-19-35(3), counsel for DHS is authorized to initiate the child-support modification action on Olmstead's behalf. However, counsel for DHS cannot represent Olmstead on the contempt issue raised on appeal.

¶16. This Court has held that "[u]sually, ‘failure of an appellee to file a brief is tantamount to confession of error and will be accepted as such.’ " Taylor v. Timmons (In re C.T.) , 228 So. 3d 311, 315 (¶5) (Miss. Ct. App. 2017) (quoting Rogillio v. Rogillio , 101 So. 3d 150, 153 (¶12) (Miss. 2012) ). "However, ... when matters on appeal touch the welfare of a minor child, then regardless of whether a party filed a brief, this Court will reach the merits of the issues in this appeal, though we proceed unaided by a brief from the appellee." Id . (internal quotation marks omitted) (quoting Self v. Lewis , 64 So. 3d 578, 584 (¶28) (Miss. Ct. App. 2011) ); see also Barber v. Barber , 608 So. 2d 1338, 1340 (Miss. 1992) ("In matters of child custody and support, however, in the absence of an appellee's...