Hambrick v. Prestwood, 51744

• Decision Date: 02 April 1980
• Docket Number: No. 51744,51744
• Parties: Boriece HAMBRICK v. Mrs. Judith PRESTWOOD.
• Court: Mississippi Supreme Court

Page 474

382 So.2d 474

Boriece HAMBRICK v. Mrs. Judith PRESTWOOD.

No. 51744.

Supreme Court of Mississippi.

April 2, 1980.

Rehearing Denied May 7, 1980.

Lee B. Agnew, Sr., Robert A. Crawford, Jackson, for appellant.

W. E. Gore, Jr., Jackson, for appellee.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

WALKER, Justice, for the Court:

This appeal is from a decree of the Chancery Court of the First Judicial District of Hinds County, Mississippi, wherein the lower court ordered appellant, Boriece Hambrick, to continue paying appellee, Mrs. Judith Hambrick Prestwood, $175.00 per month child support for their two minor children; pay $2,696.00 as reimbursement to Mrs. Prestwood for children's medical expenses paid by her; pay $1,250.00 to Mrs. Prestwood for attorney's fees incurred; pay the sum of $10,887.36 for back child support, and upon enrollment of Cynthia Hambrick at Mississippi State University that Mr. Hambrick pay all necessary cost, such as tuition, matriculation fee, etc., directly to the college, in advance so long as she attends and maintains average grades and until she graduates, unless she becomes emancipated, marries or reaches twenty-one years of age before graduation.

The parties herein were divorced by decree dated November 1, 1966. Under the terms of the original decree, the appellee was awarded a divorce but the appellant was given the right of reasonable visitation with his two minor children and ordered to pay $135.00 per month child support.

On October 10, 1970, a decree was entered modifying the original decree and increasing the child support to $175.00 per month and making certain changes in the visitation rights afforded to appellant.

After the filing of other petitions to modify and answers thereto, an agreed order was entered on October 14, 1974, wherein Hambrick and Prestwood were given the opportunity to voluntarily present themselves to the Jackson Mental Health Center for consultation services and Mrs. Prestwood was also ordered and directed to take her two minor children to the center for consultation services.

Since that date, a multitude of motions and petitions have been filed in this cause, and the pleadings, etc. consume 286 pages of the record, which now brings us to the present controversy.

On December 28, 1978, the appellee, Mrs. Prestwood, filed a petition to modify and for reimbursement for medical expenses and a petition for citation for contempt. Mrs. Prestwood alleged inter alia that she had been required to expend her own funds for medical treatment for the minor children; that Cynthia desired to attend Mississippi State University in September of 1979, and that appellant should be required to pay her tuition, travel expenses, necessary clothing and other incidental expenses. She further alleged that appellant was in arrears in child support and she also asked for attorney's fees.

In his answer filed on March 20, 1979, appellant filed a cross-petition to modify and prayed that the lower court discontinue any monetary payments to Mrs. Prestwood for the children of the parties, or in the alternative to make any monetary payment to the children contingent upon said children sharing, respectively, their society, love, affection, companionship and services with appellant in a reasonable and normal manner.

It is uncontradicted that Hambrick has not enjoyed visitation privileges with either his son, who was seventeen years of age at the time of the hearing, or his daughter, who was nineteen years of age at the time of the hearing, since 1974.

It is also uncontradicted that of twenty-nine attempts in the year prior to Hambrick's last attempt to visit the children, the daughter did not ever go with him, while the son went with him only five times.

It is also uncontradicted that Hambrick ceased making child support payments in March of 1974, when the children refused to visit with him.

Prior to this time, in 1973, Mrs. Prestwood was found to be in contempt of court for refusing to require the daughter, Cynthia, to visit Hambrick and was sentenced to serve fourteen days in jail for such contempt. However, on appeal, this Court was of the opinion that there was insufficient proof to show, beyond a reasonable doubt, that Mrs. Prestwood had willfully refused to abide by the court decree and set aside the judgment of contempt and sentence. See Prestwood v. Hambrick, 308 So.2d 82 (Miss.1975). However, there is a strong inference to be drawn from the voluminous pleadings and the record of this cause, that Mrs. Prestwood, though, perhaps, not in contempt, is not free of fault for the attitude of the children toward their father and the undesirable situation that exists.

In the opinion rendered below by the learned chancellor, he said, inter alia:

This Court is of the opinion that any further attempts to visit said children (after January, 1974) would have been in vain, they both having testified that they did not want to go with their father. The question then arises should Hambrick be required to pay child support under such circumstances and should he be held in contempt of court for his failure to make back payments as formerly ordered by (the) court when he has not had the privilege of visiting with his children. . . .

The chancellor correctly held that the past due installments of child support became vested as they became due and that they could not thereafter be reduced. Rubisoff v. Rubisoff, 242 Miss. 225, 133 So.2d 534 (1961). He also correctly held that the facts of this case would...