Gebetsberger v. East, 92-CA-0461

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: JAMES L. ROBERTS, Jr.; HAWKINS; PITTMAN, J., dissents with separate written opinion, joined by BANKS; PITTMAN; BANKS
• Citation: 627 So.2d 823
• Parties: Kathy Greer East GEBETSBERGER v. Ray Ronald EAST, Jr.
• Docket Number: No. 92-CA-0461,92-CA-0461
• Decision Date: 02 December 1993

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627 So.2d 823 Kathy Greer East GEBETSBERGER
v.
Ray Ronald EAST, Jr. No. 92-CA-0461. Supreme Court of Mississippi. Dec. 2, 1993.

Before PRATHER, P.J., and SULLIVAN and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

On March 16, 1992, a Family Master appointed by the Rankin County Chancery Court held a hearing on the motion by Kathy Greer East Gebetsberger ("Kathy") to cite her ex-husband Ray Ronald East, Jr. ("Ray") for contempt for his failure to pay child support. On March 23, the court found that Ray owed $7,400 in child support for the period of March 1989 to March 1992, in addition to a $3,268 arrearage from prior years. Ray was held in contempt of court, and ordered to seek employment. Kathy's petition for rehearing, seeking Ray's incarceration for his contempt, was denied. Finding no error in the chancellor's decision not to incarcerate Ray, we affirm.

A.

Facts and Procedural History

Kathy was granted a divorce from Ray in the Rankin County Chancery Court on August 6, 1974. She was given custody of their daughter Sharon, born in 1971, and Ray was ordered to pay $100.00 per month in child support.

An order dated March 19, 1985, found that Ray was $8,500 behind in his support payments. Several judgments of contempt followed in May, July, and October of 1985, and

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May of 1989. The court twice ordered Ray incarcerated until he purged himself of contempt. On December 24, 1991, Kathy filed a motion to cite Ray once again for contempt, alleging that his current arrearage in child support payments was $8,499.35. She requested that Ray be incarcerated.

On March 16, 1992, a hearing was held before a Family Master. Ray testified that his failure to pay support was due to the fact that he had not worked since 1985. He explained that a back injury had forced him to quit his job driving and loading trucks, and had prevented him from returning. Ray stated that he had entered one vocational rehabilitation program in Brandon, Mississippi, and another in Alabama, but had completed neither; he stated that he had attempted, unsuccessfully, to find work through the Veteran's Administration, and through an employment agency. Ray testified that he owned no home, property or vehicle, and that he was supported by his current wife.

Kathy testified Ray had paid no support since 1989, and had not kept her apprised of his whereabouts. She testified that Sharon was currently attending junior college, and was not emancipated; Kathy stated that she subsidized her daughter's living and educational expenses in the amount of $800.00 per month.

On March 23, 1992, the Court issued a judgment finding that Ray had failed to pay child support from March 1, 1989 through March 16, 1992, resulting in an arrearage of $7,400.00. The Court also found that Ray had failed to purge himself of a $3,268.80 judgment for which he had been held in contempt on May 15, 1989. The Court found Ray in contempt, and awarded a judgment against him for the $7,400.00 and $3,268.80 debts, plus $500.00 in attorneys fees and $89.00 for court costs. The Court admonished Ray for his conduct, and ordered him "to make all efforts to obtain suitable and gainful employment."

Kathy filed a petition for rehearing on April 2, 1992, citing the failure of the Family Master to incarcerate Ray for his contempt. Her petition was denied by the chancellor on April 10, 1992, and she appealed the judgment to this Court.

B.

Discussion of Issue

THE RANKIN COUNTY CHANCERY COURT WAS MANIFESTLY WRONG IN NOT INCARCERATING THE APPELLEE FOR HIS WILLFUL AND CONTUMACIOUS CONTEMPT IN FAILING TO PAY ANY AMOUNT WHATSOEVER IN CHILD SUPPORT FOR THE CHILD SHARON EAST

Miss.Code Ann. (1972) Sec. 9-1-17 (Supp.1992) provides that all state courts are empowered to punish any person guilty of civil contempt by fine and imprisonment: ¹

The supreme, circuit, chancery and county courts shall have power to fine and imprison any person guilty of contempt of the court while sitting, but the fine shall not exceed one hundred dollars for each offense, nor shall the imprisonment continue longer than thirty days. If any witness refuse to be sworn or to give evidence, or if any officer or person refuse to obey or perform any rules, order, or judgment of the court, such court shall have power to fine and imprison such officer or person until he shall give evidence, or until the rule, order, or judgment shall be complied with.

Therefore, the chancellor had the option of incarcerating Ray until such time as he purged himself of contempt; i.e., discharged his debt, or some given part thereof. However, the contempt judgment entered against Ray did not provide for imprisonment.

Kathy's complaint is not that the chancellor failed to find Ray in contempt of court, but that having found Ray in contempt,

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the chancellor failed to incarcerate him. However, nothing in the applicable statutes or this Court's decisions requires that a chancellor incarcerate any person found in contempt of court. Miss.Code Ann. (1972) Sec. 9-1-17 provides that all state courts "shall have the power to fine and imprison any person guilty of contempt" (emphasis added), but does not mandate that such person be imprisoned.

We regard the determination of punishment for contempt--fine, imprisonment, both, or neither--as within the discretion of the chancellor. This Court will not reverse decisions entrusted to the discretion of the chancellor, absent manifest error or application of an erroneous legal standard. Smith v. Smith, 607 So.2d 122, 126 (Miss.1992); Bowers Window and Door Co., Inc. v. Dearman, 549 So.2d 1309 (Miss.1989). We find no such error in the chancellor's decision not to imprison Ray, and affirm.

C.

Burden of Proof

While we affirm the chancellor's decision, we write to clarify procedure in contempt cases. The record reveals some inconsistency between the judge's findings at trial and his final judgment; it also suggests that the judge may have misallocated the burden of proof.

This Court has many times stated that even where there has been established a prima facie case of contempt, the defendant may avoid judgment of contempt by establishing that he is without present ability to discharge his obligation. If the contemnor raises this as a defense, he has the burden of proving his inability to pay, and such showing must be with particularity and not in general terms. Newell v. Hinton, 556 So.2d 1037, 1042 (Miss.1990). See also Caldwell v. Caldwell, 579 So.2d 543, 546 (Miss.1991); Riser v. Peterson, 566 So.2d 210, 211 (Miss.1990); Jones v. Hargrove, 516 So.2d 1354, 1457 (Miss.1987); Clements v. Young, 481 So.2d 263, 271 (Miss.1985).

Therefore, in the case at bar, the burden of proof was properly on Ray to demonstrate with particularity his inability to pay the judgment against him. It appears that the judge thought the burden of proof was on Kathy to show that Ray had the ability to pay, and that because she failed to carry that burden, he could not...