Evans v. Evans

• Decision Date: 01 December 2011
• Docket Number: 2009–CP–01442–COA.,Nos. 2009–CP–00953–COA,s. 2009–CP–00953–COA
• Citation: 75 So.3d 1083
• Parties: Robert D. EVANS, Appellant v. Beverly B. EVANS, AppelleeRobert D. Evans, Appellant v. Beverly B. Evans, Appellee.
• Court: Mississippi Court of Appeals

75 So.3d 1083

Robert D. EVANS, Appellant

v.Beverly B. EVANS, AppelleeRobert D. Evans, Appellant

v.Beverly B. Evans, Appellee.

Nos. 2009–CP–00953–COA

2009–CP–01442–COA.

Court of Appeals of Mississippi.

April 26, 2011.Rehearing Denied Aug. 23, 2011.Certiorari Denied Dec. 1, 2011.

Robert D. Evans, Appellant, pro se.

Evelyn Tatum Portie, Brandon, attorney for appellee.

Before LEE, C.J., BARNES and MAXWELL, JJ.

MAXWELL, J., for the Court:

¶ 1.The Washington County Chancery Court granted Robert Evans a downward modification of his child-support payments but ordered him to pay an amount greater than required by the child-support guidelines.While the chancellor's deviation from these presumptively correct guidelines may be reasonable, his findings of fact are inadequate to support the reduction.Further, because Robert promptly filed a modification action upon his loss of income, the chancellor's contempt finding and corresponding award of attorney's fees were improper.The chancellor's other award of attorney's fees to Beverly must also be reversed because it lacks sufficient findings and supporting evidence.

¶ 2.We therefore reverse the chancellor's child-support reduction and remand for the chancellor to make findings regarding the child-support guidelines and deviation criteria.And we reverse and render on the issue of contempt and reverse and remand the chancellor's assessment of attorney's fees.Because child-support payments vest as they accrue, we affirm the chancellor's refusal to relate the modification order back to an earlier date.¹

FACTS

I.Background

¶ 3.In December 1998, Beverly and Robert obtained a divorce based on irreconcilable differences.The chancellor incorporated the terms of the parties' “marital settlement agreement” into his final judgment of divorce.Their agreement called for joint physical and legal custody of the parties' two children.And it required that Robert pay Beverly $2,000 per month in child support, provide health-insurance coverage for the children, and maintain a life-insurance policy for their benefit.

II.Modification and Contempt Actions

¶ 4.Robert had served as County Attorney for Washington County for twenty years.In early November 2007, he lost his re-election bid.Soon after, on November 14, 2007, Robert filed a motion to modify his child-support payments.It is undisputed that his net loss of income was approximately $3,500 per month.

¶ 5.The chancellor spent five days hearing the matter.On the third day, January 28, 2009, Beverly filed a motion for contempt based on Robert's failure to comply with child-support provisions in the 1998 divorce judgment.The chancellor then reset the matter and heard evidence over two more days in March 2009.

III.The Chancellor's Findings

¶ 6.The chancellor ruled from the bench that Robert was not in contempt for accruing arrearages because he was financially incapable of complying with the original child-support decree.

¶ 7.Then, on May 13, 2009, the chancellor entered a written order.The chancellor found a material change in circumstances and decreased Robert's child-support obligation from $2,000 to $1,000 for a period of six months.He also required that Robert maintain a life-insurance policy for the benefit of his son ² and provide his son's automobile and health insurance.He further ordered Robert pay $1,000 for Beverly's attorney's fees, even though his order contained no finding regarding Beverly's inability to pay her own attorney's fees, nor any finding on the McKee factors.The chancellor's order neither mentions contempt nor Robert's liability for arrearages.

¶ 8.The chancellor later entered a second written order on July 28, 2009, for the stated purpose of clarifying his prior order.³In this second order, the chancellor found Robert in contempt for defaulting on $14,750 in child-support payments.He required Robert pay two installments of $100 each month until this arrearage is paid.Based on the contempt finding, the chancellor awarded Beverly an additional $1,300 in attorney's fees.

IV.Issues Presented

¶ 9.Robert now appeals arguing the chancellor erred by (1) finding him in contempt, (2) ordering him to pay Beverly's attorney's fees, (3) deviating above the child-support-guideline percentages without sufficient findings, and (4) refusing to relate his modification order back to the date of his originally scheduled hearing.

STANDARD OF REVIEW

¶ 10.“Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in the record.”Henderson v. Henderson,757 So.2d 285, 289 (¶ 19)(Miss.2000).We will not disturb a chancellor's factual findings unless the chancellor's decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard.Wallace v. Wallace,12 So.3d 572, 575 (¶ 12)(Miss.Ct.App.2009).We do not substitute our judgment for the chancellor's, even if we disagree with his findings and would arrive at a different conclusion.Coggin v. Coggin,837 So.2d 772, 774 (¶ 3)(Miss.Ct.App.2003).When reviewing a chancellor's interpretation and application of the law, our standard of review is de novo.Tucker v. Prisock,791 So.2d 190, 192 (¶ 10)(Miss.2001).

¶ 11.We conduct a heightened review when a chancellor simply adopts one party's findings verbatim.City of Jackson v. Presley,40 So.3d 520, 522 (¶ 10)(Miss.2010).We do so because adopted findings “are not the same as findings independently made by the trial judge after impartially and judiciously sifting through the conflicts and nuances of the trial testimony and exhibits.”Id.

¶ 12.But here we need not apply a heightened review because the chancellor made changes, albeit slight, to Beverly's proposed findings of fact.Further, the chancellor entered a subsequent order for the stated purpose of clarifying his prior order.This order appears to embody the chancellor's independent findings, and Robert does not contend otherwise.Therefore, our familiar manifest-error standard applies.

DISCUSSION

I.Contempt

¶ 13.Robert claims that because he promptly petitioned for a reduction in his child-support payments, the chancellor erred by finding him in contempt.

¶ 14.Enforcing compliance with a court order is a matter of civil contempt.Dennis v. Dennis,824 So.2d 604, 608 (¶ 8)(Miss.2002)(explaining that the primary purpose of a civil contempt order “is to enforce the rights of private party litigants or enforce compliance with a courtorder”).“An adjudication of contempt is a serious matter and must, in the case of civil contempt, be proven by clear and convincing evidence.”Allred v. Allred,735 So.2d 1064, 1067 (¶ 10)(Miss.Ct.App.1999)(citingMasonite Corp. v. Int'l Woodworkers of Am.,206 So.2d 171, 180(Miss.1967));see alsoSetser v. Piazza,644 So.2d 1211, 1216(Miss.1994);Shelton v. Shelton,653 So.2d 283, 286(Miss.1995).Failure to comply with a court order is prima facie evidence of contempt.McIntosh v. Dep't of Human Servs.,886 So.2d 721, 724 (¶ 11)(Miss.2004).To rebut a prima facie case of contempt, a defendant must show an “inability to pay, that the default was not willful, that the provision [violated] was ambiguous, or that performance was impossible.”Deborah H. Bell, Bell on Mississippi Family Law§ 11.05[1][a](1st ed.2005).

¶ 15.Parties who are unable to comply with court-ordered child-support payments should promptly petition the chancellor for a reduction of support.Thurman v. Thurman,559 So.2d 1014, 1016(Miss.1990).“Where a party promptly files for a modification ... of support based on his inability to pay, a finding of contempt is not proper.”Setser,644 So.2d at 1216;see alsoShelton,653 So.2d at 286–87;Cumberland v. Cumberland,564 So.2d 839, 847(Miss.1990), Thurman v. Thurman,559 So.2d 1014, 1016–17(Miss.1990);Clower v. Clower,988 So.2d 441, 445 (¶ 11)(Miss.Ct.App.2008).⁴

¶ 16.Robert suffered a substantial decrease in income after he lost in his re-election bid for county attorney in early November 2007.He had held the position for twenty years.Robert's net loss of income was approximately $3,500 per month.Based on his financial inability to comply with the original decree, on November 14, 2007, Robert petitioned for a modification of child support.After he began failing to pay the full amount required by the divorce judgment, Beverly filed her contempt action in January 2009.

¶ 17.The following colloquy from the chancellor's bench ruling on March 17, 2009, shows he found Robert financially unable to meet his child-support obligation:

By the Court: I guess he hopes, as well as ... we do, that things are going to get better.But the law is that he can't he[sic] held in contempt if he can't pay.

....

By the Court: And I was not going to hold him in contempt today.

By [Beverly's counsel]: I'm sorry to hear that.

By the Court: Well, I don't think I can, based on the evidence[.]

But the chancellor apparently later changed his mind.In a written order entered July 28, 2009, the chancellor found Robert in contempt without mentioning his earlier finding of Robert's inability to pay.The chancellor simply stated, “the Court is of the opinion that [Robert] is in [c]ontempt of this Court for his failure to pay the sum of $14,750 in child support as ordered by this Court[.]”Other than citing Robert's failure to make payments, the chancellor offered no other basis for holding him in contempt.

¶ 18.We find the chancellor erred in his contempt ruling.Because Robert promptly filed for a reduction in child-support payments when his financial circumstances changed, the contempt finding was improper.See, e.g., Setser,644 So.2d at 1216.⁵To be clear though, Robert's prompt filing of the modification action only precludes a finding of contempt.It does not excuse arrearages.SeeThurman,559 So.2d at 1016–17...