English v. Davenport, 2016-CA-00419-COA

• Decision Date: 09 August 2018
• Docket Number: NO. 2016-CA-00419-COA,2016-CA-00419-COA
• Citation: 253 So.3d 357
• Parties: Tammy ENGLISH, Appellant v. Richard D. DAVENPORT, Appellee
• Court: Mississippi Court of Appeals

253 So.3d 357

Tammy ENGLISH, Appellant

v.Richard D. DAVENPORT, Appellee

NO. 2016-CA-00419-COA

Court of Appeals of Mississippi.

August 9, 2018

ATTORNEYS FOR APPELLANT: B. BLAKE TELLER, GEORGE PHILIP SCHRADER IV, Vicksburg

ATTORNEYS FOR APPELLEE: DAVID M. SESSUMS, PENNY B. LAWSON, J. MACK VARNER, Vicksburg

BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.

GREENLEE, J., FOR THE COURT:

¶ 1. After finding that Tammy English was in contempt for failing to pay Richard Davenport lump-sum alimony, the Warren County Chancery Court ordered her to satisfy the arrearage in installments. The chancellor held that English would be incarcerated if she failed to do so. English appeals and claims the chancellor erred by (1) finding her in willful and contumacious contempt of her alimony obligation; and (2) ordering that she would be incarcerated. But it was within the chancellor's discretion to find that English failed to prove that she was unable to satisfy her lump-sum alimony obligation. And English's inability to pay as a defense to incarceration is not properly before us. Thus, we affirm the chancellor's judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Incident to their 2012 divorce, English was ordered to pay Davenport approximately $8,400 per month in lump-sum alimony for 180 months.¹ Davenport v. Davenport , 156 So.3d 231, 235 (¶ 11) (Miss. 2014). The award was intended to avoid dividing a number of companies that the former couple owned, including Good Samaritan Physical Therapy, Inc. Id. at (¶ 10). English appealed, and the Mississippi Supreme Court retained the case.

¶ 3. Meanwhile, English and Davenport were in practically constant litigation related to English's lump-sum alimony obligation. English was held in contempt after she failed to make the September through November 2012 alimony payments, among other things.² She apparently satisfied that contempt judgment, but she was later found in contempt again after she did not pay alimony from December 2012 through March 2013. She satisfied that judgment after she sold her home to her father.

¶ 4. Next, English failed to pay alimony from September through December 2013. English sold her lake house and became current through January 2014. However, she did not pay any alimony from January to May 2014. On May 13, 2014, the chancellor entered a judgment in Davenport's favor for more than $42,000. The chancellor held that English would be incarcerated if she did not become current on her alimony by May 30, 2014.

¶ 5. In November 2014, the supreme court affirmed the chancellor's divorce judgment. Id. at 241 (¶ 36). The supreme court also upheld the chancellor's valuation of the business, the equitable distribution of the marital property, and the lump-sum alimony award. Id. The supreme court found no merit to English's claim that she was unable to pay approximately $8,400 per month in lump-sum alimony. Id. at (¶ 35).

¶ 6. In March 2015, Davenport filed another contempt petition. At that time, English had not satisfied the previous contempt judgment, and she had failed to pay alimony from June 2014 through February 2015. English responded with an emergency motion to stay an arrest warrant and to modify her alimony obligation. She claimed she was unable to make the lump-sum alimony payments, so she should not be held in contempt. After hearing evidence over the course of three days, the chancellor found no merit to English's request to modify her alimony obligation. The chancellor also found that English was again in contempt. Consequently, the chancellor awarded Davenport a judgment for approximately $114,000. The chancellor held that English had to pay Davenport $50,000 by March 1, 2016.³ She then had to pay him another $50,000 on June 1, 2016. The remaining balance was due on August 1, 2016. The chancellor held that English would be incarcerated if she failed to make any of the payments. English also had to continue making alimony payments as they became due. After filing an unsuccessful motion for reconsideration, English appeals.⁴

STANDARD OF REVIEW

¶ 7. In general, a chancellor has substantial discretion in deciding whether a party is in contempt. The chancellor, who sits in the unique position to observe the parties and their demeanor, the evidence, and the testimony, is infinitely more competent to decide contempt matters than we are. Because contempt is an issue of fact to be decided on a case-by-case basis, these matters are committed to the substantial discretion of the trial court. Therefore, [an appellate court] will not reverse a chancellor's finding where it is supported by substantial credible evidence.

Gutierrez v. Gutierrez , 233 So.3d 797, 815 (¶ 46) (Miss. 2017) (citations and internal quotation marks omitted).

DISCUSSION

I. Inability to Pay as a Contempt Defense

¶ 8. English does not dispute that Davenport adequately proved that she was in contempt. Instead, she argues that the chancellor should have found that she was unable to satisfy her alimony obligation. A defendant can rebut a prima facie contempt case related to nonpayment of alimony by proving her inability to pay. Doyle v. Doyle , 55 So.3d 1097, 1111 (¶ 46) (Miss. Ct. App. 2010). One must do so by a preponderance of the evidence and "with particularity, not just in general terms." Gutierrez , 233 So.3d at 815 (¶ 47) ; Stribling v. Stribling , 960 So.2d 556, 560 (¶ 9) (Miss. Ct. App. 2007). Thus, a defendant must prove "that [she] earned all [she] could, that [she] lived economically, and paid all surplus money above a living on the alimony decreed to [her husband]." Lane v. Lane , 850 So.2d 122, 126 (¶ 12) (Miss. Ct. App. 2002). "[T]he payment of other debts or expenses will not excuse or justify [her] default, unless such payment was necessary in order to continue [her] business or occupation, because [her husband's] right to alimony is a prior and paramount claim on [her] earnings." Id.

¶ 9. A significant portion of the contempt hearing was devoted to scrutinizing English's financial declarations and records. According to English, her net monthly income was approximately $11,600. She claimed her monthly expenses were around $10,800. That figure did not include her alimony obligation, but it also does not account for the fact that Good Samaritan reimbursed English or outright paid for many of her expenses. The chancellor could have reasonably found that English's expenses were not "necessary ... to continue [her] business" and she had not been living as economically as possible. See id. The chancellor also noted that English did not have exclusive access to her accounts. Without detailing every minute expenditure, it was within the chancellor's discretion to find that English spent lavishly on meals and several trips over the course of a year. It was not unreasonable for the chancellor to find that English's expenses were "out of control." The chancellor concluded that English "ha[d] continued to live as she always ha[d,]" "no one appear[ed] to be on any sort of budget[,]" and everyone⁵ "just spen[t] at will."

¶ 10. As mentioned above, "[a] chancellor has substantial discretion in deciding contempt matters because of the chancellor's temporal and visual proximity to the litigants." Crittenden v. Crittenden , 129 So.3d 947, 953 (¶ 18) (Miss. Ct. App. 2013) (quoting Gilliland v. Gilliland , 984 So.2d 364, 369 (¶ 19) (Miss. Ct. App. 2008) ). There was substantial credible evidence to support the chancellor's decision that English had not been living as economically as possible and contributing everything she could toward her alimony obligation. As such, we will not reverse the chancellor's judgment.

II. Inability to Pay as a Defense to Incarceration

¶ 11. On January 21, 2016, the chancellor entered her "order of contempt" and held that English must surrender herself for incarceration if she did not pay Davenport $50,000 by March 1, 2016. The chancellor entered the "final judgment on petition for contempt" after English failed to make that payment. Although there is apparently a warrant for English's arrest, the record does not indicate that English is in custody. Be that as it may, English claims that the chancellor should not incarcerate her because she cannot pay Davenport $50,000. English also claims that her incarceration would violate Article 3, Section 30 of the Mississippi Constitution, which provides that "[t]here shall be no imprisonment for debt."⁶ But our supreme court has held that the "constitutional prohibition against imprisonment for debt does not prevent a commitment to prison for nonpayment of alimony." Felder , 195 Miss. at 338, 13 So.2d at 827.

¶ 12. "Inability to pay to avoid incarceration is a continuing defense as imprisonment does not accomplish the purpose of the civil contempt decree." Vassar v. Vassar , 228 So.3d 367, 380 (¶ 48) (Miss. Ct. App. 2017) (quoting Riser v. Peterson , 566 So.2d 210, 211 (Miss. 1990) ). "[A] litigant may be incarcerated for civil contempt for failure to pay a judgment but that litigant is always entitled to offer evidence of inability to pay as a defense, not to the contempt, but to the incarceration." Id. Moreover:

the court's power to commit [someone] to jail until he complies with the decree requiring him to make monthly payments for support and maintenance depends on his then present ability to comply with the decree, and that, in determining such ability, the amount of past earnings and how they have been expended is not controlling .

Lewis v. Lewis , 213 Miss. 434, 438, 57 So.2d 163, 165 (1952) (emphasis added). So even if the contemnor's inability to pay "is due to misconduct, imprisonment cannot accomplish the purpose of the civil contempt decree, which is to compel obedience." Howard v. Howard , 913 So.2d 1030, 1039 (¶ 20) (Miss. Ct. App. 2005) (quoting Jones v. Hargrove , 516 So.2d 1354, 1358 (Miss. 1987) ).

¶ 13. Notwithstanding the foregoing, "the right to imprison [someone] until he has paid the total sum now in arrears would depend upon his ability to do so...