Duncan v. Duncan, 53294

• Decision Date: 21 July 1982
• Docket Number: No. 53294,53294
• Citation: 417 So.2d 908
• Parties: Clarence Grady DUNCAN v. Paula Leggett DUNCAN.
• Court: Mississippi Supreme Court

Page 908

417 So.2d 908

Clarence Grady DUNCAN v. Paula Leggett DUNCAN.

No. 53294.

Supreme Court of Mississippi.

July 21, 1982.

Michael Adelman, Andalman, Adelman & Steiner, Hattiesburg, for appellant.

Karl W. Kepper, Kepper & Kepper, Hattiesburg, for appellee.

Before PATTERSON, C. J., and WALKER and DAN M. LEE, JJ.

DAN M. LEE, Justice, for the Court:

This is an appeal from the Chancery Court of Forrest County wherein Paula Leggett Duncan, petitioner/appellee, filed her petition for citation for contempt and petition to modify a previous divorce decree against her former husband, Clarence Grady Duncan, respondent/appellant. Clarence Duncan failed to file an answer to the petition or make an appearance. Therefore, the chancellor granted the relief prayed for in Paula Duncan's petition and also ordered Clarence Duncan confined to jail until all child support arrearage due at the time of the final decree was paid unto Paula Duncan.

The parties to this appeal were divorced on March 12, 1980, by a decree of the Chancery Court of Forrest County. Appellee was awarded custody of the parties' minor child with reasonable visitation rights granted to the appellant. The decree further provided that appellant pay unto appellee, through the chancery clerk's office, $150 per month as child support until the minor child reached twenty-one years of age, or married, or otherwise became emancipated.

On February 26, 1981, appellee filed a petition for citation for contempt and petition to modify the previous divorce decree as to visitation rights only. Appellee, in her petition, alleged that appellant was $450 in arrears.

Appellant was personally served with process but failed to answer appellee's petition. On May 14, 1981, the chancellor entered his decree adjudging appellant in contempt of court. Appellant was ordered confined to jail until he paid appellee $900 in delinquent child support payments as well as $200 in attorney's fees. Visitation rights were also modified somewhat. However, they are not at issue on appeal.

I. Did the chancellor err in committing appellant to jail?

Appellant contends the chancellor erred in confining him to jail because appellee failed to allege or offer proof to the effect that appellant was able to abide by the former decree of divorce.

In Collins v. Collins, 171 Miss. 891, 158 So. 914 (1935), this Court stated:

The introduction of the decree ordering the appellant to pay a stipulated monthly sum for the support and maintenance of his child, together with proof that he had failed to comply with the decree, placed him prima facie in contempt of court, and devolved on him the burden of proving his inability to make the payments directed. Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 14 A.L.R. 712.... (171 Miss. at 895, 158 So. at 915)

Where a party is unable to comply with a divorce decree, he should with reasonable promptitude, make the 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. If a party fails to take this course of action, he will, in response to the citation for contempt, be required to make out a clear case of inability. Redding v. Redding, 167 Miss. 780, 150 So. 776 (1933). The burden was on appellant to purge himself of the contempt by showing that he had complied with the decree, was unable to do so, or impossibility of performance. Rainwater v. Rainwater, 236 Miss. 412, 110 So.2d 608 (1959). There is no merit in this argument.

II. Did the chancellor err in ordering payment of delinquent child support in a sum greater than that alleged in appellee's petition?

Appellee filed her petition on February 2, 1981, alleging an arrearage of child support payments of $450. The final decree in the cause was entered May 14, 1981, and adjudicated appellant in arrearage in the amount of $900.

In Seymore v. Greater Mississippi Life Insurance Co., 362 So.2d 611 (Miss.1978), we stated:

The issues are framed, formed and bounded by the pleadings of the litigants. The Court is limited to the issues raised in the pleadings and the proof contained in the record. Judge Griffith, in his monumental work on Mississippi Chancery Practice, gave these sound reasons why it must be so:

"Courts do not instigate or initiate civil litigation. They act only when called on for aid, and only in respect to that which is within the call. The potentiality of a court to consider and determine a given class of cases over which it has jurisdiction is made actual, in a particular case within that class, only when a party entitled to relief with respect thereto has applied to the court by his written pleading and even then his written application must state the facts upon which it is based or else it will still be ineffectual to actuate the...