Evans v. Evans, 2009-CP-00953-COA

CourtCourt of Appeals of Mississippi
PartiesROBERT D. EVANS APPELLANT v. BEVERLY B. EVANS APPELLEE ROBERT D. EVANS APPELLANT v. BEVERLY B. EVANS APPELLEE
Docket NumberNO. 2009-CP-00953-COA,CONSOLIDATED WITH NO. 2009-CP-01442-COA,2009-CP-00953-COA
Decision Date26 April 2011

TRIAL JUDGE: HON. BILLY G. BRIDGES

COURT FROM WHICH APPEALED: WASHINGTON COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: ROBERT D. EVANS (PRO SE)

ATTORNEY FOR APPELLEE: EVELYN TATUM PORTIE

NATURE OF THE CASE: CIVIL-DOMESTIC RELATIONS

TRIAL COURT DISPOSITION: MODIFICATION OF CHILD SUPPORT

GRANTED AND AMOUNT REDUCED

FROM $2,000 TO $1,000 FOR SIX MONTHS;

REQUIRED ROBERT EVANS TO

MAINTAIN LIFE INSURANCE, MEDICAL

INSURANCE, AND CAR INSURANCE FOR

THE PARTIES' MINOR CHILD; AWARDED

BEVERLY EVANS $1,000 IN ATTORNEY'S

FEES

DISPOSITION: AFFIRMED IN PART; REVERSED &

REMANDED IN PART-04/26/2011

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

TRIAL JUDGE: HON. BILLY G. BRIDGES

COURT FROM WHICH APPEALED: WASHINGTON COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: ROBERT D. EVANS (PRO SE)

ATTORNEY FOR APPELLEE: EVELYN TATUM PORTIE

NATURE OF THE CASE: DOMESTIC RELATIONS

TRIAL COURT DISPOSITION:

MODIFICATION OF CHILD SUPPORT

GRANTED AND AMOUNT REDUCED

FROM $2,000 TO $1,000 FOR SIX

MONTHS; REQUIRED ROBERT EVANS

TO MAINTAIN LIFE INSURANCE AND

MEDICAL INSURANCE FOR THE

PARTIES' MINOR CHILD; FOUND

ROBERT EVANS IN CONTEMPT FOR

FAILING TO PAY $14,750 IN CHILD

SUPPORT; AWARDED BEVERLY EVANS

$1,300 IN ATTORNEY'S FEES

DISPOSITION:

AFFIRMED IN PART; REVERSED &

RENDERED IN PART; REVERSED &

REMANDED IN PART-04/26/2011

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

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 bereversed 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 son2 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.3 In this second order, the chancellor found Robert in contempt for defaulting on $14,750 in child-support payments. He required Robert pay twoinstallments 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 judgeafter 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 court order"). "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) (citing Masonite Corp. v. Int'l Woodworkers of Am., 206 So. 2d 171, 180 (Miss. 1967)); see also Setser 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] wasambiguous, 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 also Shelton, 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:
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