Hickey v. Hickey, 2013–CA–01540–COA.

• Decision Date: 16 December 2014
• Docket Number: No. 2013–CA–01540–COA.,2013–CA–01540–COA.
• Court: Mississippi Court of Appeals
• Parties: Clayton John HICKEY, Appellant v. Melissa Crenshaw HICKEY, Appellee.

166 So.3d 43

Clayton John HICKEY, Appellant

v.Melissa Crenshaw HICKEY, Appellee.

No. 2013–CA–01540–COA.

Court of Appeals of Mississippi.

Dec. 16, 2014.

Rehearing Denied April 21, 2015.

Certiorari Denied June 18, 2015.

Jerry Wesley Hisaw, Southaven, H.R. Garner, Hernando, attorneys for appellant.

Leigh A. Rutherford, Hernando, attorney for appellee.

Before GRIFFIS, P.J., ROBERTS, MAXWELL and FAIR, JJ.

Opinion

ROBERTS, J., for the Court:

¶ 1. Clayton Hickey appeals the Desoto County Chancery Court's judgment finding him in contempt for his failure to pay his ex-wife, Melissa Crenshaw Hickey, child support for their six-year-old son and their two-year-old daughter. Clayton claims that the chancellor erred because he was only obligated to pay for one-half of his children's undefined needs, and he had disagreed that the children needed to be in daycare. Clayton also claims that the chancellor should have found Melissa in contempt because she had not fulfilled her obligation to file a joint tax return for 2011. Additionally, Clayton claims that the chancellor erred by modifying his child-support obligation, and awarding Melissa sole legal custody of the children.

¶ 2. After careful consideration, we find that the chancellor erred by awarding Melissa sole legal custody of the children when there was no evidence that the children had been adversely affected by the joint-legal-custody arrangement that Clayton and Melissa had agreed to when they divorced. However, we find no merit to Clayton's other claims on appeal. Accordingly, we affirm the chancellor's judgment in part and reverse and render in part.

FACTS AND PROCEDURAL HISTORY

¶ 3. Clayton and Melissa were married on July 17, 2004, and divorced on January 9, 2012. They have two children. When Clayton and Melissa divorced, they entered into a property-settlement agreement. The agreement provided that Melissa would have primary physical custody of the children, but she and Clayton would share joint legal custody of them. The agreement also provided Clayton visitation with the children. According to the agreement, Clayton's visitation included “flexible” periods during weekdays “from time to time.” Clayton also received weekend visitation during the first and third weekends of each month. Clayton and Melissa were to split visitation of the children equally during holidays “according to [Clayton's and Melissa's] work schedules.” The agreement also addressed Clayton's summer visitation with the children, and visitation on specific holidays and events.

¶ 4. As for child support, the agreement provided:

Due to the great disparity in incomes and current financial situations of the parties, the parties hereby request that there be no child support ordered at this time from [Clayton]; However, should his income ever become equal to that of [Melissa,] then the parties agree that child support should be paid by [Clayton] as per Mississippi [s]tate guidelines.

The agreement went on to state that “[u]ntil such time, the parties agree to split any and all needs of the minor children 50/50.” Additionally, the agreement stated that Clayton and Melissa would file joint tax returns for 2011, but Melissa would claim both children as dependents for income-tax purposes after 2011. Neither party received alimony under the agreement.

¶ 5. The agreement also addressed the marital home. Clayton received use of it, but he agreed that he would be solely responsible for the mortgage payments, taxes, and insurance. Clayton also agreed to pay Melissa $32,000 for her share of the equity in the marital home. In the final judgment of divorce, the chancellor found that “the [p]roperty [s]ettlement [a]greement ... is adequate and sufficient to settle all property issues and child custody and support issues.”

¶ 6. Approximately eight months after the divorce, Melissa filed a “petition for citation of contempt[,] modification[,] and other relief.” Melissa claimed that Clayton was in contempt because he had failed to split the expenses related to the needs of the children. According to Melissa, Clayton owed her approximately $5,700. Melissa also claimed that the chancellor should modify the provision of the judgment of divorce and award her sole legal custody of the children. Melissa's reasoning was based on her allegation that she and Clayton can not “agree on anything,” and Clayton “only wants to argue.” Melissa also alleged that Clayton “has caused problems at the [children's] school.” Melissa requested that the chancellor eliminate Clayton's right to visitation with the children during the week. Additionally, Melissa asked the chancellor to order Clayton to pay a specific amount of child support.

¶ 7. Clayton filed a counterclaim and alleged that Melissa was in contempt because she had not quitclaimed her ownership in the marital home, and she did not file a joint tax return for 2011. Clayton also claimed that a large portion of the expenses that Melissa sought were related to daycare expenses that were unnecessary, because he could take care of the children during the day.

¶ 8. Clayton and Melissa went before the chancellor on May 30, 2013. Clayton and Melissa both testified. After the hearing, the chancellor held that Clayton was in willful contempt because he had not paid half of the children's daycare expenses, which qualified as a need. The chancellor noted that in the seventeen months that followed the divorce, Clayton paid a total of $1,400 toward the needs of the children. The chancellor also noted that the children had both been in daycare from the time that Melissa's maternity leave had ended. The chancellor also mentioned that Clayton worked nights and slept during the day. The chancellor found that Clayton owed Melissa approximately $9,000 for his half of the children's daycare expenses. The chancellor also awarded Melissa $3,500 in attorney's fees related to Clayton's contempt.

¶ 9. The chancellor declined to find that Melissa was in contempt. The chancellor's reasoning was based on the fact that Melissa had given Clayton a quitclaim deed related to her rights to the marital home. Although Melissa had not filed a joint tax return for 2011, the chancellor noted that she had done so based on the advice of the person who had prepared her tax return. However, the chancellor held that Clayton was entitled to one-half of the return that Melissa had received. Consequently, the chancellor reduced the amount that Clayton owed Melissa by approximately $3,000.

¶ 10. Next, the chancellor found that it was appropriate to award Melissa sole legal custody of the children. The chancellor found that there had been a material and substantial change in circumstances adverse to the children's best interest, but the chancellor did not elaborate regarding the nature of that change in circumstances. Likewise, the chancellor did not specify how the children had been adversely affected by that unspecified change in circumstances.

¶ 11. Finally, the chancellor modified Clayton's child-support obligation. Rather than paying one-half of the children's undefined needs, the chancellor ordered Clayton to pay Melissa $420 per month in child support. The chancellor noted that the monthly figure was a deviation from the statutory guideline for two children, but the deviation was necessary because of the children's daycare and after-school-care expenses. Clayton appeals.

ANALYSIS

I. CONTEMPT

¶ 12. Clayton argues that the chancellor should not have found him in contempt for not paying half of the children's daycare expenses. He notes that he and Melissa initially had joint legal custody of the children, and he was required to pay half of the costs for the children's needs. He was not expressly obligated to pay for half of daycare expenses. Clayton's position was that he was available to care for the children during the day, so daycare expenses were unnecessary. Clayton further notes that Melissa wrote off the daycare expenses on her taxes. He reasons that the chancellor should not have held him in contempt because he was not in willful violation of an obligation. According to Clayton, because the chancellor had to first find that daycare expenses were a need, the agreement was ambiguous, and he should not have been held in contempt because he did not fulfill an ambiguous obligation. Clayton concludes that the chancellor should not have ordered him to pay Melissa approximately $6,000 in daycare expenses.

¶ 13. Whether a party is in contempt is a question of fact to be decided on a case-by-case basis. R.K. v. J.K., 946 So.2d 764, 777 (¶ 39) (Miss.2007). A chancellor has substantial discretion in deciding contempt matters because of the chancellor's “temporal and visual proximity” to the litigants. Mabus v. Mabus, 910 So.2d 486, 491 (¶ 20) (Miss.2005). This Court “will not reverse the chancellor's findings if they are supported by substantial credible evidence.” Doyle v. Doyle, 55 So.3d 1097, 1110 (¶ 44) (Miss.Ct.App.2010).

¶ 14. “A citation for contempt is proper when the contemner has willfully and deliberately ignored the order of the court.” Id. “The purpose of a civil contempt order is to coerce a part[y's] compliance with a court order.” Id. at (¶ 46). “The burden then shifts to the defendant who may rebut the prima facie case by proving inability to pay, lack of willfullness regarding the contempt, ambiguity in the order's provisions, or impossibility of performance.” Id. at 1111 (¶ 46). “Civil contempt, such as here, must be proven by clear and convincing evidence.”Id. “[B]efore a person may be held in contempt of a court judgment, the judgment must be complete within itself—containing no extraneous references, leaving open no matter or description or designation out of which contention may arise as to the meaning.” Wing v. Wing, 549 So.2d 944, 947 (Miss.1989). “Nor should a final decree leave open any judicial question to be determined by others, whether those others be the parties or be the officers charged with execution of the...