Finch v. Finch, 2011–CA–00306–COA.

CourtCourt of Appeals of Mississippi
Citation137 So.3d 314
Docket NumberNo. 2011–CA–00306–COA.,2011–CA–00306–COA.
PartiesRosemary FINCH, Appellant/Cross–Appellee v. Stewart FINCH, Appellee/Cross–Appellant.
Decision Date09 April 2013


Alfred J. Lechner Jr., James Lawton Robertson, Jackson, attorneys for appellant.

S. Christopher Farris, attorney for appellee.


ISHEE, J., for the Court:

¶ 1 In September 2009, the Lamar County Chancery Court granted Rosemary and Stewart Finch a divorce based on irreconcilable differences. The parties had previously agreed to the amount of child support Stewart would pay, and the chancery court awarded Rosemary periodic monthly alimony. The parties' debts and assets were also distributed, and all other issues were decided. Thereafter, Rosemary filed a petition for contempt, and Stewart filed a counter-petition for contempt and modification. In ruling on the petitions, the chancery court found that Rosemary had committed a fraud upon the court in her Uniform Chancery Court Rule 8.05 financial statement, and that the parties' minor child voluntarily became estranged from Stewart. Accordingly, the chancery court reduced Stewart's monthly alimony and child support obligations. From this ruling, Rosemary appeals. Stewart cross-appeals, arguing the chancery court erred by failing to declare their minor son fully emancipated.


¶ 2 Rosemary and Stewart were married on February 14, 1981. During the marriage, they had two children together, Shannon and Sean. At the time of the divorce, Shannon was twenty-four years old, and Sean was seventeen years old. Stewart was a tugboat captain who works in New York. Rosemary was a stay-at-home parent. During the marriage, while the family resided in Hattiesburg, Mississippi, Stewart alternated between two weeks on the tugboat and two weeks in Mississippi. The parties separated in March 2008.

¶ 3 On April 4, 2008, Rosemary filed a complaint for separate maintenance, custody, support, and other relief. On December 4, 2008, the chancery court entered a temporary order requiring Stewart to pay $4,500 per month in alimony and child support, to begin on November 15, 2008. The order further: required Stewart to maintain health insurance for Rosemary and Sean; granted Rosemary exclusive use and possession of the marital home, which was to be listed with a realtor for sale; divided the parties vehicles; prevented the parties from making charges to their credit cards; and awarded Stewart reasonable visitation with Sean. Thereafter, Stewart filed a contempt petition alleging Rosemary failed to comply with the temporary order because she never attempted to sell the home. The chancery court ordered Rosemary to make the home available for showings and maintain the home in proper condition.

¶ 4 On August 13, 2009, the parties filed a consent to adjudicate. They consented to a divorce based on irreconcilable differences and agreed to permit the chancery court to decide all matters on which they could not agree. The following issues were to be decided by the chancery court: the amount of permanent, lump-sum, or rehabilitative alimony, if any; the identification, valuation, and equitable division of all marital assets and liabilities; the amount of attorney's fees, if any; the percentage of medical costs related to Sean; the division of Sean's school expenses, including college expenses; life insurance coverage; and continued health-insurance coverage.

¶ 5 The parties agreed that Rosemary would have primary physical and legal custody of Sean, with Stewart exercising reasonable visitation. Stewart was required to pay $1,300 per month in child support; maintain $300,000 in life insurance on himself with Sean as the beneficiary; and maintain health insurance for Sean. Stewart was also ordered to provide health-insurance coverage (COBRA) for Rosemary for thirty-six months. Under the consent to adjudicate, Rosemary retained the marital home and agreed to pay any future expenses associated with the property. In addition, Stewart was to transfer the title of Rosemary's and Shannon's vehicles to them. Rosemary and Shannon were to pay the outstanding loans on their respective vehicles. The parties further agreed on the division of certain personal property.

¶ 6 On September 18, 2009, a divorce was granted based on irreconcilable differences. The chancery court ordered Stewart to pay Sean's college expenses, including tuition, room and board, and books. Sean's high school expenses for attending a private school were to be paid from the child support provided to Rosemary each month. Stewart was also required to pay three-fourths of any uninsured medical needs of Sean.

¶ 7 When determining alimony, the chancery court considered the parties' income and living expenses. The chancery court found Stewart's living expenses totaled $2,827.35, and Rosemary's living expenses totaled $6,216.28. Thus, the parties cited $9,043.63 in total expenses, but had only $8,190 in monthly income. Ultimately the chancery court awarded Rosemary monthly periodic alimony of $4,000 for thirty-six months, a subsequent reduction to $3,700 for forty-eight months, and then a final reduction to $3,400, to be paid indefinitely. Finally, the chancery court ordered Stewart to pay $7,000 for Rosemary's attorney's fees.

¶ 8 On December 15, 2009, shortly after the finalization of the divorce, Rosemary filed a contempt petition. The contempt petition focused on Stewart's alleged failure to pay alimony and child support. In addition, she cited his alleged failure to follow other directives within the judgment, including his failure to obtain life insurance, to make COBRA payments, and to disclose his current address and telephone number. Rosemary sought to have an order of withholding entered for alimony and child support payments and COBRA coverage.

¶ 9 On January 28, 2010, Stewart filed an answer to Rosemary's contempt petition and a counter-petition for contempt. He alleged that Rosemary had failed to pay the outstanding balance on one vehicle as ordered by the chancery court and had failed to provide him with certain property from the marital home. Stewart further requested that Rosemary submit to a medical examination in order to procure life insurance. Finally, he implored the chancery court not to enter an order of withholding, for fear of losing his job.

¶ 10 In June 2010, Stewart filed an amended counter-petition for contempt and modification. He alleged that since the filing of the original petition, he had discovered that Rosemary “fraudulently represented to the [chancery court] at the time of trial that she was continuing to pay all of the marital debts just as she had throughout the marriage.” However, according to Stewart, she had not made payments on their American Express account even though that bill was accounted for in the alimony payments. Thus, he requested that the chancery court reduce his alimony payments from $4,000 to $2,500 in order to offset the costs incurred as a result of her actions. He also included a petition to declare the minor child emancipated or, in the alternative, to terminate child support. Stewart claimed Sean refused to respond to any attempts at communication made by Stewart, and that, in fact, Sean actually texted Stewart to advise him not to attempt to text or call anymore. Furthermore, Stewart asserted Sean had taken legal action to have the name “Stewart” removed as his middle name.

¶ 11 On August 25, 2010, a hearing was held on all of the post-divorce-judgment motions before the Honorable Billy Bridges. At the end of the hearing, the chancellor directed the parties to submit proposed findings of fact and conclusions of law. However, before the parties' submissions, the special appointment of Chancellor Bridges expired. Therefore, the Honorable Deborah Gambrell was appointed as chancellor.

¶ 12 On February 16, 2011, Chancellor Gambrell entered an opinion and judgment in the matter. The chancellor found that several changes had occurred since the August 25, 2010 hearing. Stewart was ordered to pay $9,211.95 to satisfy the debt owed on his daughter's vehicle in order to convey title, even though the court had previously ordered that she take over the payments. With regard to the credit cards, the chancellor found that in addition to the credit cards listed in the Rule 8.05 financial declaration, which included the disputed American Express debt, there were several other credit cards not disclosed by Rosemary. This resulted in Stewart borrowing $38,000 to pay off the debt. The chancellor found that Rosemary had handled all of the family finances and was aware of the undisclosed debt, but failed to inform the chancery court. Therefore, the chancellor reasoned that Rosemary had committed a fraud upon the court by failing to disclose the additional debts. The chancellor adduced that Rosemary's fraud permitted the chancery court to modify the divorce judgment under Mississippi Rule of Civil Procedure 60(b).

¶ 13 The chancellor noted that since the divorce judgment was entered, Stewart's monthly income had been reduced from $8,190.47 to $5,691.75. Furthermore, due to payments for alimony, child support, COBRA, life insurance, and the loan for the undisclosed debts, his monthly expenses had increased to $11,279.62. Thus, the chancellor ordered that beginning on November 1, 2010, Stewart's alimony obligation was reduced to $2,000, to be paid until Rosemary's death or remarriage. Stewart was entitled to receive a credit for any amount paid in accordance with the divorce judgment from November 1, 2010, until the chancery court's ruling. The monthly payments for COBRA insurance and life insurance were to continue.

¶ 14 The chancellor also reduced the monthly child support owed. It was undisputed that the father-son relationship became strained after the divorce. Sean repeatedly said he did not want a relationship with his fa...

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