Durr v. Durr, No. 2003-CA-01673-COA.

Decision Date05 April 2005
Docket NumberNo. 2003-CA-01673-COA.
PartiesJames D. DURR, Jr., Appellant v. Beverly DURR (Hale), Appellee.
CourtMississippi Supreme Court

Luther Putnam Crull, attorney for appellant.

Willard L. McIlwain, Greenville, attorney for appellee.


IRVING, J., for the Court.

¶ 1. James Durr and Beverly Durr, now Beverly Hale, were divorced in July 1986.1 Thereafter, Hale filed a petition for contempt, alleging that Durr had failed to abide by certain terms of the judgment of divorce. Hale specifically alleged that Durr had failed to maintain a life insurance policy with the parties' son as beneficiary, and had failed to pay certain medical and educational expenses in accordance with the judgment of divorce. The chancellor entered an order finding Durr in contempt and ordered him to pay Hale's attorney fees. Aggrieved by the chancellor's decision, Durr appeals and asserts that the chancellor erred in (1) failing to find Hale's claim for payment of private school tuition and expenses barred under the doctrines of equitable estoppel and/or laches, (2) finding him in contempt for failure to pay private school tuition and expenses, (3) finding him in contempt for failure to pay certain medical expenses, (4) failing to find Hale in contempt for failure to abide by the visitation provision in the judgement of divorce, and (5) ordering him to pay Hale's attorney fees. Finding no reversible error, we affirm the chancellor's findings.


¶ 2. In 1986, Durr and Hale were granted a divorce on the ground of irreconcilable differences. The parties were granted joint legal custody of their minor son, James Waid, with Hale having physical custody and Durr having reasonable visitation.2 The judgment of divorce provided that Durr maintain Waid as the beneficiary of a life insurance policy and pay one-half of Waid's educational and medical expenses.

¶ 3. In March 2003, Hale filed a petition for contempt against Durr alleging that Durr was in arrears on his obligations under the judgment of divorce. Hale also requested an award of attorney fees. In response to the petition, Durr filed an answer and counterclaim alleging that Hale's claims against him were barred under the doctrines of laches and/or equitable estoppel. Durr also alleged that Hale's claim was barred under the "clean hands" doctrine because she had failed to abide by the visitation provision in the judgment of divorce.3

¶ 4. In June 2003, a contempt hearing was held on the issues presented to the court. After hearing testimony from both parties and considering evidence presented to the court, the chancellor dismissed Durr's claim of contempt against Hale, but found Durr in contempt of the judgment of divorce. The chancellor also found that Durr was in arrears on his obligation to pay his share of the minor child's medical and educational expenses.4 The chancellor further awarded Hale $1,500 in attorney fees. Additional facts will be related during our discussion of the issues.


Standard of Review

¶ 5. "[This Court's] scope of review in domestic relations matters is limited." Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997). "[We] will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Id. (quoting Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994)). "In other words, on appeal [we] are required to respect the findings of fact by the chancellor supported by credible evidence and not manifestly wrong." Sandlin, (699 So.2d at 1203) (citing Ferguson, 639 So.2d at 930).

(1) Private School Tuition

¶ 6. We combine for discussion Durr's first two issues since they are interrelated. Durr's first argument is that Hale's claim for payment of Waid's private school tuition and expenses is barred under the doctrines of equitable estoppel and/or laches. Durr argues that Hale waited more than ten years before filing a claim demanding the tuition payments.

¶ 7. At the time of the parties' divorce, Waid was three years old and was enrolled in a private preschool. The record reveals that the agreement, which the parties executed pursuant to their obtainment of a divorce on the ground of irreconcilable differences and which was incorporated into the judgment of divorce, provides for the following with respect to Waid's education:

The child will start nursery school in the fall and the husband agrees to be responsible for one-half of all fees and expenses related to nursery school and shall further be responsible for one-half of all educational costs for each school that the child attends thereafter.

¶ 8. During the contempt hearing, Hale testified that although Durr paid his share of Waid's nursery school tuition, he failed to pay his one-half share of Waid's tuition while the child was enrolled in private school in the fourth through twelfth grades. Both parties presented conflicting testimony as to when Hale first demanded that Durr assist with Waid's tuition. Hale testified that she first approached Durr regarding the tuition payments when Waid first began attending private school in the fourth grade. Durr, however, testified that Hale did not request that he help pay Waid's private school tuition, and her attorney did not demand payment of the tuition while Waid was enrolled in private school. Durr testified that he first received a letter from Hale's attorney demanding payments for the tuition payments in October 2002, when Waid was in his second year of college.5

¶ 9. We first note that the chancellor did not specifically rule on the affirmative defenses raised in Durr's answer following the conclusion of the contempt hearing, and Durr failed to bring the matter to the chancellor's attention. After the chancellor entered her order disposing of Hales's petition for contempt and Durr's counterclaim for contempt, Durr again failed to bring to the chancellor's attention that she had not addressed the affirmative defenses raised by him. Under this state of the facts, we find that Durr has waived any right to argue these issues on appeal. See Rushing v. State, 711 So.2d 450, 456(¶ 17) (Miss.1998) (holding that failure to obtain a ruling from the court on motions constitutes a waiver of same); Allgood v. Allgood, 473 So.2d 416, 423 (Miss.1985) (holding that "[a]s a prerequisite to obtaining review [on appeal] it is incumbent upon a litigant that he not only plead but press his point in the trial court"). However, assuming arguendo that the issues are preserved for appellate review, we find no merit in them as will be explained later in this opinion.

¶ 10. The law is clear that "child support payments vest in the child as they accrue, [and] [o]nce they have become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts." Houck v. Ousterhout, 861 So.2d 1000, 1002(¶ 9) (Miss.2003) (citing Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992)). "Each payment that becomes due and remains unpaid `becomes "a judgment" against the supporting parent.'" Id. (quoting Tanner, 598 So.2d at 786). "The only defense thereto is payment." Houck, 861 So.2d at 1002 (citing Tanner, 598 So.2d at 786).

¶ 11. According to the judgment of divorce, Durr was obligated to pay one-half of all of Waid's educational expenses. This also included his private school tuition payments. See Southerland v. Southerland, 816 So.2d 1004, 1006(¶ 11) (Miss.2002) (holding that pre-college school tuition should be treated as a part of child support). As a result, the tuition payments became a judgment against Durr each month he failed to make the payments. Based on a logical extrapolation of the law enunciated in Houck, Durr's obligation to make these payments cannot be excused by Hale's tardiness in seeking enforcement of his obligation to pay.

¶ 12. Further, the law is clear that laches does not apply if the action is not barred by the statute of limitations. Greenlee v. Mitchell, 607 So.2d 97, 111 (Miss.1992). Here, Waid was still a minor when Hale initiated the contempt action. Consequently, the statute of limitations had not run on Durr's support obligations. Miss.Code Ann. § 15-1-59 (Rev.2003). It therefore follows that even if Durr had obtained a ruling on his affirmative defense of laches, it would have availed him naught. Having disposed of the laches issue, we point out that Durr does not argue that Hale did not have standing to bring the contempt action. He simply argues that she waited too long to bring the action. Even if he had raised the issue, however, we would find such contention to be without merit, for it is well settled law in this State that child support arrearage may be pursued against the defaulting parent by either the child or the custodial parent. Ladner v. Logan, 857 So.2d 764, 771(¶ 22) (Miss.2003).

¶ 13. Durr also argues that Hale is equitably estopped from bringing the contempt action. "Equitable estoppel," as Durr points out in his brief, "is generally defined as the `principle by which a party is precluded from denying any material fact, induced by his words or conduct, upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was followed.'" Koval v. Koval, 576 So.2d 134, 137 (Miss.1991).

¶ 14. It is well settled law, as we discussed above, that child support is for the benefit of the minor. The custodial parent is only a conduit for the support. Therefore, it follows that no action or inaction on the part of the custodial parent can relieve the defaulting parent of that parent's obligation to pay support. Moreover, even if we were to find, which we do not, that equitable estoppel might be appropriate in child support cases, we would likewise find that Durr failed to meet the requirements for its application in this...

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