Fancher v. Pell

• Decision Date: 05 December 2002
• Docket Number: No. 2001-CA-01513-SCT.,2001-CA-01513-SCT.
• Parties: Edwin Keith FANCHER v. Gale Alford PELL f/k/a Gale Alford Fancher.
• Court: Mississippi Supreme Court

831 So.2d 1137

Edwin Keith FANCHER v. Gale Alford PELL f/k/a Gale Alford Fancher.

No. 2001-CA-01513-SCT.

Supreme Court of Mississippi.

December 5, 2002.

John Hinton Downey, Flowood, attorney for appellant.

Jeffrey P. Hubbard, Susan Louise Durham, Jackson, attorneys for appellee.

EN BANC.

CARLSON, J., for the Court.

¶ 1. This case comes to us via an appeal by Edwin Keith Fancher (Fancher) from a decision of the Chancery Court of the First Judicial District of Hinds County wherein the chancellor split the children's college tuition payments between former spouses, with Fancher paying 70 percent of the costs and Gale Alford Fancher Pell (Pell) paying 30 percent, and additionally, the chancellor entered an award of attorney's fees to Pell. Also, Pell cross-appeals because the chancellor failed to find Fancher in contempt of court for non-payment of a child's college tuition. Finding that the chancellor was correct as to all issues save the issue of the husband's contempt, this cause is affirmed in part, and reversed and remanded in part.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Pell and Fancher were married on December, 20, 1980, in Hinds County, Mississippi. Three children were born into the marriage: Phillip Wendell Fancher (born July 3, 1983), Matthew Ryan Fancher (born June 2, 1986), and Rachel Lauren Fancher (born March 29, 1988). A divorce was granted to Pell and Fancher on March 8, 1991. A provision in the divorce agreement read:

It is agreed by the parties that all three children will be provided with a college education at the appropriate time according to the ability and desires of the child and in keeping with the means and ability of Husband and Wife.

¶ 3. By letter dated May 3, 2000, Pell contacted Fancher about paying for Phillip's college expenses. In that letter Pell explained Phillip's eligibility to take college classes at Holmes Community College while still enrolled in high school under the "dual enrollment program" and indicated her willingness to pay half of the cost under the program. Fancher responded by letter dated May 5, 2000, that he had contacted an attorney in his home state of Washington who advised him to seek counsel in Mississippi. He told her "six days notice is not an adequate length of time to obtain advice on a subject that eventually could involved large amounts of money." Pell responded with a letter dated May 10, 2000, wherein she again mentioned the Holmes Community College dual enrollment program and asked again for "any ideas you have in writing concerning education for the children." Fancher had not yet tendered any money for Phillip's college education.

¶ 4. Pell wrote again to Fancher on July 14, 2000, inquiring again as to his ideas on payment of the children's college tuition. Fancher responded by letter of July 19, 2000, that "I would much rather contribute to my kids than to an attorney." Fancher asked Pell to "write down (her) ideas of how this should be handled."

¶ 5. In a letter dated August 22, 2000, Pell, wrote that she had no problem splitting all college costs "50/50" after scholarships and grants. She wrote again on August 26, 2000, still having not received college tuition payments from Fancher. On September 15, 2000, Fancher responded with a note that he had received the letter and forwarded it to his attorney in Washington and would reply when he heard from his attorney. Fancher further responded in a letter of September 27, 2000, that his attorney had advised him that the subject of college tuition was "premature" since no "definite dollar amounts are known." He again requested "concrete figures with no open ended details left out."

¶ 6. Obviously annoyed, Pell replied in an October 23, 2000, letter that she wanted to split college costs "50/50" and that she did not know exact amounts until Phillip registered for classes the following fall, and Pell further pointed out that this agreement was after any scholarships the children would receive. In the letter she gave approximate costs of attending the University of Mississippi (Ole Miss) based on the 2000-2001 school year. She also gave the exact amount of Phillip's tuition and books at Holmes Community College under the dual enrollment program and asked that half of that amount be sent as soon as possible.

¶ 7. On November 15, 2000, Fancher mailed a note with a child support payment (tuition payments excluded) and said he had forwarded Pell's previous letter to his attorney and would get back with her as soon as he had heard from his attorney.

¶ 8. On April 10, 2001, Pell filed a Petition to Hold Edwin Keith Fancher in Contempt of Court in the Chancery Court of the First Judicial District of Hinds County. In addition to a request that Fancher be found in contempt, Pell sought an order from the court to require Fancher to contribute to the costs of Phillip's upcoming college expenses, a bond to guarantee and secure payment of Phillip's future college expenses, attorney's fees and court costs.

¶ 9. On June 4, 2001, Fancher answered and filed a counterclaim for modification of the divorce decree. The counterclaim basically requested the court to construe the divorce agreement in relation to the parties' ability to pay, their son's needs, and "resources that may be available to meet these educational needs."

¶ 10. By judgment dated August 22, 2001, the chancellor found that Phillip graduated from high school in the spring of 2001 and planned to attend the University of Southern Mississippi (USM) in the fall, and that Phillip had attended the dual enrollment program at Holmes Community College while in high school, as well as attending summer school at Holmes. The chancellor ordered Fancher to reimburse Pell for 70 percent of the Holmes dual enrollment expense, or $532.70, which represented tuition costs and book expenses for the dual enrollment program. The chancellor found Pell responsible for 30 percent of those expenses, or $228.30. He ordered Fancher to pay half of his portion on or before August 24, 2001, and the rest on or before September 23, 2001. The chancellor likewise divided the summer school expenses.

¶ 11. The chancellor ordered that Phillip be reimbursed by his parents for his expenses incurred in attending Holmes Community College summer school, which amounted to a total of $212. Fancher was to reimburse Phillip for 70 percent of this amount, or $148.40, and Pell was to reimburse Phillip for 30 percent, or $63.60.

¶ 12. After finding the estimated undergraduate expenses at USM to be $8,336.00, the Chancellor ordered Fancher to pay 70 percent of this amount, or $5,835.20, and Pell to pay 30 percent, or $2,500.80. The chancellor lowered by 70 percent the amount of child support Fancher paid to Pell while Phillip was in college because the chancellor found Fancher responsible for 100 percent of Phillip's personal, transportation, and clothing expenses for the ten months he attended college, for a total of $1850.00. Fancher usually paid $1,660.00 per month as child support for the three children. This figure, amounting to $553.00 per child, was to be reduced by 70 percent ($387.00) as to Phillip alone while he was enrolled in college. The chancellor found that the child support would remain the same, for the months of June and July.

¶ 13. The chancellor also directed Fancher to pay Pell a lump sum amount of $2,500 as partial reimbursement for her attorney's fees; however, the chancellor did not find Fancher in contempt.

¶ 14. Fancher filed a notice of appeal to this Court on September 21, 2000. On October 5, 2001, Pell filed a cross-appeal on the issue of the chancellor's refusal to find Fancher in contempt of court.

STANDARD OF REVIEW

¶ 15. The findings of fact of the chancery court, particularly in the areas of divorce and child support, will generally not be overturned by this Court on appeal unless they are manifestly wrong. Nichols v. Tedder, 547 So.2d 766, 781 (Miss. 1989). Findings of the chancellor will not be disturbed or set aside on appeal unless the decision of the trial court is manifestly wrong and not supported by substantial credible evidence, or unless an erroneous legal standard was applied. Sarver v. Sarver, 687 So.2d 749, 753 (Miss.1997).

DISCUSSION

I. WHETHER THE CHANCELLOR CORRECTLY ORDERED FANCHER TO PAY PELL $2500 IN ATTORNEY'S FEES.

¶ 16. Fancher argues that the chancellor erred in ordering him to pay Pell's attorney's fees in a contempt proceeding because Fancher was found not to be in contempt. He further argues that Pell's "lack of candor and refusal to communicate" necessitated the proceedings.

¶ 17. Fancher cites Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss. 1990), for the proposition that a court's denial of an ex-spouse's petition for contempt prevents an award of attorney's fees to the spouse filing the petition. Cumberland is factually distinguishable from the case sub judice. In Cumberland, the ex-wife petitioning the court for contempt was found by the court to not only have the ability to pay her attorney's fees, but found much of the litigation expense incurred by the ex-wife to be unreasonable. Also, the ex-husband in Cumberland unilaterally reduced his child support payments because of his substantial reduction in income. This was not a case of a refusal to pay any of the educational expenses of a child. So, while it is true, as this Court wrote in Cumberland, that "failing a finding of contempt, (filing ex-spouse) argument for fees fails," Id., the circumstances leading to that decision were markedly different.

¶ 18. Regardless, we find Fancher was in contempt (see Issue III), and this issue is moot.

II. WHETHER THE TRIAL COURT CORRECTLY APPORTIONED THE AMOUNT OF COLLEGE

EXPENSES TO BE PAID BY EACH PARTY.

¶ 19. Fancher argues that the 70/30 college expense split is unfair because he is already paying 35 percent of his net pay in child support, and this figure is higher than the statutorily mandated 22...