Gambrell v. Gambrell

• Decision Date: 13 October 1994
• Docket Number: No. 93-CA-00541,93-CA-00541
• Citation: 644 So.2d 435
• Parties: Daniel Dewitt GAMBRELL v. Judy Diane GAMBRELL.
• Court: Mississippi Supreme Court

Page 435

644 So.2d 435

Daniel Dewitt GAMBRELL v. Judy Diane GAMBRELL.

No. 93-CA-00541.

Supreme Court of Mississippi.

Oct. 13, 1994.

James E. Winfield, Winfield & Moran, Vicksburg, for appellant.

Eddie H. Tucker, Jackson, for appellee.

Before DAN M. LEE, P.J., and McRAE and SMITH, JJ.

SMITH, Justice, for the Court:

Dr. Daniel Gambrell, appellant herein, appeals to this Court from an order of contempt in the Hinds County Chancery Court. The chancellor found Gambrell was not entitled to attack portions of the divorce judgment as void, finding he had not challenged the decree within a reasonable time. Further, no modification of child support was granted. Finally, Gambrell was found in wilful civil contempt of court for failure to pay child support, alimony and the school expenses of his daughter and an incarceration order was issued. Although we cannot say the chancellor was manifestly in error in denying Gambrell's attempt to attack the decree or in denying the requested modifications,

we find the contempt order must be reversed.

STATEMENT OF THE FACTS

Judy Gambrell was granted a divorce from Daniel Gambrell in June of 1992 on her claim of cruel and inhuman treatment. Daniel was ordered to pay lump-sum alimony at $2,000 monthly, child support of $1,100 per month and various educational expenses of his minor daughter. Custody of the parties' only child, Danyelle, age sixteen years, was awarded to Judy with Daniel to receive visitation.

Citing Daniel's failure to make scheduled payments under their June 1992 divorce decree, Judy filed an amended motion for contempt in November 1992. At that time, the stated amount in arrears was $11,270. Within his answer, Daniel included a counterclaim for modification, requesting that his child support obligation be reduced and that he be relieved of the provision ordering him to pay the daughter's high school tuition and school-related expenses. A contempt hearing was held before Special Master Oran C. Page on February 9, 1993.

Daniel testified he was unemployed on the date of the hearing, but ordinarily practiced medicine. He stated he had stopped working at his private practice as of August 14, 1992, due to a fire which destroyed his office building. Daniel stated he had paid both the child support and alimony as set forth in the divorce decree until he was no longer able to do so.

Daniel stated since the fire he was living with his sister who had provided him money. He testified he was living in his office when it was destroyed and thus had lost "everything." Daniel admitted the police had found about $9,000 identified as belonging to him, which was apparently the result of insurance proceeds and which he had somehow lost at the bank. Daniel admitted other than a $6,000 payment to bring his payments up to date in September of 1992, that he had not made scheduled payments.

Judy Gambrell testified that following the divorce decree of June 1992, Daniel made his scheduled payments the following month, but failed to make payments in August or September. Judy first filed a contempt motion on August 18, 1992. She stated a hearing was set for September, and Dr. Gambrell on that date paid the amounts in arrears totalling $6,000. She stated as of the February 1993 hearing, Daniel owed $10,000 in alimony payments (5 months at $2,000 per month) and child support of $2,200 (2 months at $1,100 each), for a total of $12,200. Judy stated she was requesting the court to require Daniel to pay the arrearage or be incarcerated until he did so.

Upon cross-examination, Judy admitted Daniel's office burned in August 1992. She stated she was "also aware that his girlfriend set it on fire." She further stated Daniel could have practiced medicine a number of other places, but she could not say where he had been or what he had done since August 1992 because he had gone "underground" and no one had seen him since then. Judy testified she worked for the State Department of Rehabilitation Services. Her gross salary was $1,800 per month with take-home pay of about $800 per month after several deductions. She stated a garnishment for Medicaid/Medicare was also "coming out of [her] check." Judy testified the tuition for their daughter's school was due January 1st, in the amount of $1,955, which had to be paid or she would "get put out of school."

On re-direct, Judy stated Daniel was ordered to pay 3/4 of Danyelle's tuition, plus registration for the 1992-93 school year. She stated these amounts were in addition to the scheduled child support payments, also in arrears.

On further examination, Daniel testified he was at the time attempting to relocate and reopen his private practice in Forest, Mississippi. He was in the process of hiring employees and doing "extensive renovations" to a new building. Daniel stated he had no monies at the time of the fire, to the extent that the checks he wrote to pay his employees during that same week bounced. He testified that the money he had paid to Judy thus far was derived from insurance proceeds as a result of the fire. He stated $15,000 of the proceeds went directly to the IRS, and another $40,000 was paid by the Daniel stated he simply did not have the money to pay the amounts owed to his ex-wife. He stated he was not intentionally refusing to comply with any court orders. He further stated if the $9,000 being held by the City of Jackson Police Department were returned to him, he would apply it to the amount owed to his ex-wife. Daniel testified he needed to be able to practice medicine again since it was his only means of livelihood. He stated he had no money to buy the basic office equipment to rebuild his practice.

insurance company straight to the bank for the mortgage on his building. In addition, $15,000 went for renovations and $14,000 went to his ex-wife.

Daniel testified the fire insurance proceeds totalled $98,000. He stated he hoped to sell the property upon which his old office was located but had received no offers. He described the property as two buildings put together, with the half housing his office being destroyed. Daniel stated it was not possible for him to reopen his office in the other half of the building because it was unheated and in a flood zone which stayed full of water.

Following the hearing, the special master found Daniel in contempt, based on his total arrearage in the amount of $19,310 and recommended that he be given thirty (30) days to satisfy the judgment or be incarcerated. A second hearing was held April 27, 1993, on Daniel's motion to reconsider the order of contempt with Chancellor Owens presiding.

Daniel testified that following the order finding him in contempt and in arrears, he went to a bank in Forest and requested a loan, but was told his credit history was bad. Eventually the bank did loan him some money. Daniel stated he had made payments of $2,000 and $6,500 since the order. He stated since the first hearing, he had begun practicing medicine again at his Forest office. Daniel stated he reopened his medical practice on March 15, 1993, and had during that month made another $900 payment to his ex-wife. He stated he was now seeing 6-7 patients per day and was "pleased" with this since he was not yet fully established. Daniel testified he owned a 1956 Jaguar which was in a deteriorated state. He stated he never intentionally avoided making the payments due his ex-wife.

Daniel further testified his former office building was still up for sale. He stated the property would be sold to pay county taxes owing for 1990 unless redemption was made by August of 1993. Taxes due for the years 1990-92 totaled $19,665.50. Daniel also testified that a money judgment resulting from a lawsuit filed against him and his ex-wife, in the amount of $30,000, had not yet been satisfied. As a result, his income from Medicare had been garnished since the judgment date.

On cross-examination, Daniel stated that with a portion of the insurance proceeds from the fire, he purchased a new truck for $16,000. The Bank of Forest used this vehicle as collateral in loaning him $10,000. He spent approximately $10,000 to renovate his new office in Forest. With the remaining proceeds, Daniel "caught up" on payments owed to his ex-wife, between $10,000--$12,000, and the IRS took the remaining $13,000.

Andrew E. Gay, CPA, testified he had done Daniel's 1992 personal income taxes. Gay stated Daniel's gross income from the operation of his practice showed a loss of $3,031 for the year. However, with the insurance proceeds figured in, Daniel's total income was $52,692 for 1992. Gay testified since Daniel had reopened his practice, his receipts from March 15 to April 15 showed cash receipts of $1,093 and Medicaid billings to be submitted in the amount of $1,980.

The court found Daniel in contempt and further found there were assets available to him to purge himself, such as the parts of the Jaguar car, the pickup truck and the real property where he formerly practiced medicine in Yazoo City. The court allowed the defendant the remainder of the week to comply with the contempt order or be incarcerated. The record indicates a summons was executed and Daniel was incarcerated on May 4, 1993. Daniel's appeal to this Court followed.

DISCUSSION

I. THE LOWER COURT ERRED IN REFUSING TO GRANT THE APPELLANT

RELIEF FROM THE JUDGMENT PURSUANT TO RULE 60 b.

Daniel contends Miss. Rules of Civil Procedure, Rule 60(b)(4) provides him with the proper method by which to attack that portion of the divorce decree ordering him to pay private high school tuition for his daughter. Asserting it was "clear error" for the lower court to so order, Daniel argues the decree and the contempt order of June 5, 1992, should be set aside and the case remanded for just consideration. Daniel similarly requested modification of the ordered child support and alimony payments.

The lower court at the May 4, 1993, hearing dismissed this argument, following this exchange:

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