Glass v. Glass, No. 97-CA-01044 COA.

• Court: Court of Appeals of Mississippi
• Writing for the Court: Before McMILLIN, P.J., and HERRING and KING, JJ.
• Citation: 726 So.2d 1281
• Parties: Jerry GLASS, Appellant, v. Marie GLASS, Appellee.
• Decision Date: 30 December 1998
• Docket Number: No. 97-CA-01044 COA.

726 So.2d 1281

Jerry GLASS, Appellant,
v.
Marie GLASS, Appellee

No. 97-CA-01044 COA.

Court of Appeals of Mississippi.

December 30, 1998.

726 So.2d 1282

John S. Hill, William G. Armistead, Tupelo, Attorneys for Appellant

Robbie A. Byers, Tupelo, Attorneys For Appellee.

Before McMILLIN, P.J., and HERRING and KING, JJ.

HERRING, J., for the Court:

¶ 1. Jerry Glass appeals to this Court from an Order of the Chancery Court of Lee County, Mississippi, which was rendered against him on July 26, 1997, in the amount of $7,307.50, plus attorney's fees and costs. The judgment rendered against him, finding him in contempt of court, was the result of his failure to make the child support payments required by the court's directives. We affirm.

A. THE FACTS

¶ 2. Jerry and Marie Glass obtained a divorce on July 20, 1976. During their marriage they had two children, Yolanda Glass, born April 19, 1971, and Lamond Glass, born October 25, 1974. Pursuant to the divorce decree dated July 20, 1976, the children were placed in the custody of Marie Glass, and Jerry Glass was ordered to pay child support in the amount of $30 per week, which commenced on July 23, 1976.

¶ 3. Subsequently, on August 1, 1980, Jerry Glass was found in contempt of court for failure to pay child support. Thereafter, on April 16, 1991, the Chancery Court of Lee County, Mississippi, entered an order redirecting the child support payments to the Department of Human Services (DHS). In November of 1991, Aircap Industries, the employer of Mr. Glass, began withholding

726 So.2d 1283

child support payments and forwarding them to DHS pursuant to a withholding order entered by the Chancery Court of Lee County

¶ 4. On January 16, 1996, Jerry Glass filed a motion for modification of the decree requiring him to make child support payments. In his motion, Mr. Glass requested that the court remove his obligation to make child support payments, due to the fact that both of his children had reached the age of majority. In her answer, Marie Glass alleged that not only was Jerry Glass not entitled to relief from making the child support payments, but he also was in contempt of court for failing to make past child support payments in the amount of $13, 541.75.¹ Mrs. Glass arrived at this figure based on a sworn schedule or accounting which she prepared with the assistance of DHS and which purported to show an arrearage in her former husband's child support payments from July, 1976, through October, 1991. The arrearage for the period from July, 1976, through October, 1991, as shown in the accounting prepared by Mrs. Glass, came to $13,850. In addition to the accounting prepared by Mrs. Glass, an affidavit of accounting was prepared by Tiffany Andrews of DHS which purported to show the arrearage in child support payments by Mr. Glass from November, 1991 to March, 1996. This accounting was combined with the accounting prepared by Mrs. Glass for the previous period, and the total arrearage in child support payments was reflected as $13,541.75. The reason for the reduction in the total amount once the affidavits were combined was the emancipation of the children during the period covered in the second accounting. Mr. Glass continued to make child support payments after the children reached majority, and the amount paid by Mr. Glass was applied to the arrearage, thereby reducing the total amount in arrears.

¶ 5. An updated affidavit of accounting prepared by DHS was presented at trial that reflected the additional time period from March 1996 to June of 1997. The updated affidavit stated the sum of the arrearage to be $10,732.50, as opposed to the previous figure of $13,541.75.² According to the record, DHS arrived at $10,732.50 by assuming that the original accounting prepared by Mrs. Glass (which reflected child support payments from July, 1976, through October, 1991) was accurate. DHS then applied its own calculations from that point forward.

¶ 6. Mrs. Glass testified that the sole basis of her accounting was a "piece of paper" on which she wrote down the payments by Mr. Glass over the years. She presented her notes in this regard at trial, which showed nine payments made by Mr. Glass from November 2, 1989, to November 25, 1992. She first testified that the notes she presented at trial were the only notes she had concerning the child support payments because her house had burned. However, on cross-examination she conceded that her house burned when she and Mr. Glass were still living together and that the fire had nothing to do with the loss of her notes. She testified that she could not recall whether he made the payments as shown in her notes by check or by cash, although he usually paid by check.

¶ 7. Jerry Glass presented a number of canceled checks at trial which indicated child support payments made by him to Marie Glass for which she had not given him credit. The amount of the uncredited checks totaled $710. Mrs. Glass later admitted during the course of her testimony that the payments by check in the amount of $710 had in fact been made. Mr. Glass also testified that he made his child support payments in cash about fifty percent of the time and by check fifty percent of the time. The parties stipulated that

726 So.2d 1284

"if called, a Bank of Mississippi representative would testify that from 1989 back they could not pull microfilm checks; therefore, [at trial Mr. Glass had] microfilm checks from 1990 only." The parties chose not to obtain microfilm checks for the years following 1990 because by 1991, the trial court had directed that all child support payments should be paid to DHS, which kept accurate records of the payments

¶ 8. Following the trial of this case, Chancellor Charles D. Thomas gave Mr. Glass a credit on his child support arrearage in the sum of $2,715, which represented the total of the amount that Mr. Glass paid in child support for Yolanda Glass after she reached the age of majority on April 19, 1992. He also gave Mr. Glass credit for the uncredited checks totaling $710, and subtracted all of these credits from the $10,732.50 arrearage claimed by DHS. The Chancellor then entered judgment for Mrs. Glass against Mr. Glass in the sum of $7,307.50. Jerry Glass now appeals to this Court.

B. THE ISSUES

¶ 9. The appellant raises the following issues on appeal which are taken verbatim from his brief:

I. WHETHER THE LOWER COURT ERRED IN BASING ITS JUDGMENT ON SPECULATIVE EVIDENCE.

II. WHETHER MARIE GLASS'S CLAIM IS BARRED BY THE STATUTE OF LIMITATIONS.

III. WHETHER MARIE GLASS'S CLAIM IS BARRED BY EQUITABLE DOCTRINES.

C. ANALYSIS

¶ 10. We will address each assignment of error in sequence.

STANDARD OF REVIEW

¶ 11. The standard of review employed by this Court in domestic relations cases is well settled. Chancellors are vested with broad discretion, and this Court will not disturb the chancellor's findings unless the trial court's actions were manifestly wrong, or the court abused its discretion, or unless the court applied an erroneous legal standard. Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997); Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994); Crow v. Crow, 622 So.2d 1226, 1228 (Miss.1993); Gregg v. Montgomery, 587 So.2d 928, 931 (Miss.1991). However, upon a finding that the decision of the chancellor was manifestly wrong or that the trial court applied an erroneous standard of law, this Court will not hesitate to reverse. Bowers Window & Door Co., Inc. v. Dearman, 549 So.2d 1309 (Miss.1989).

I. DID THE COURT BELOW ERR IN BASING ITS JUDGMENT ON SPECULATIVE EVIDENCE?

¶ 12. In his first assignment of error, Jerry Glass claims that the trial court erred in awarding Marie Glass past due child support payments because the court's award was based on the speculative evidence presented to the court in the form of a sworn accounting prepared by Marie Glass. He asserts that Mrs. Glass "had the burden of proof to show that Jerry Glass was in arrears." He noted that in addition to the affidavit of accounting prepared by DHS, Mrs. Glass presented evidence in the form of an affidavit which she prepared herself. Although he does not dispute the accuracy of the sworn accounting prepared by DHS, he argues that Mrs. Glass's affidavit which covers the time period from July 1976 to October 1991, is "completely speculative and wholly unreliable." To show the unreliable nature of the affidavit prepared by Mrs. Glass, Mr. Glass presented twenty-three child support checks which he delivered to Mrs. Glass from the calendar year 1990, totaling $710. Of the twenty-three checks, not one had been acknowledged in the sworn accounting presented by Mrs. Glass. The parties stipulated to the fact that, if called, a representative from the Bank of Mississippi would testify that the bank was unable to pull microfilm copies of Mr. Glass's child support checks prior to

726 So.2d 1285

1990. Thus, the only proof either of them was able to...