Howard v. Howard, 2003-CA-01129-COA.

• Decision Date: 10 May 2005
• Docket Number: No. 2003-CA-01129-COA.,2003-CA-01129-COA.
• Parties: Martin HOWARD, Jr., Appellant v. Teresa HOWARD, Appellee.
• Court: Mississippi Supreme Court

Page 1030

913 So.2d 1030

Martin HOWARD, Jr., Appellant v. Teresa HOWARD, Appellee.

No. 2003-CA-01129-COA.

Court of Appeals of Mississippi.

May 10, 2005.

COPYRIGHT MATERIAL OMITTED

Ronald Alford Herrington, attorney for appellant.

Wayne Smith, Liberty, attorney for appellee.

Before KING, C.J., IRVING and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. Currently pending before this Court are issues of contempt and modification of child support. We affirm the chancery court's order of contempt, but reverse and remand as to the issue of modification.

STATEMENT OF FACTS AND PROCEEDINGS IN THE COURT BELOW

¶ 2. By the time the chancellor entered the orders at issue in the instant appeal, he had been dealing with the parties for over eight years. A brief review of the prior proceedings is necessary for an understanding of the issues currently before the Court. Martin Howard, Jr. (Martin) was divorced from Teresa Howard (Teresa) in 1995 by decree of the Chancery Court of Pike County, Mississippi. By judgment dated November 17, 2000, Martin's child support obligations for his three children were increased from $2,100 per month to $2,500 per month; both before and after the modification, Martin was also ordered to pay the mortgage on the marital home in which Teresa and the children continued to reside and the reasonable educational expenses of the three children, including but not limited to private school tuition. These amounts totaled apparently $5,100 per month. At this time, Martin was a surgeon, with an income exceeding $200,000 per year.

¶ 3. On June 13, 2001, Martin petitioned the chancery court for modification of child support, contending that since the date of these orders, there had "been a substantial and material change in circumstances in that the petitioner sustained an injury to his hand and has been required to undergo surgery on his right hand and will no longer be able to practice his chosen profession, i.e., that of a surgeon, and, therefore, his income has or will decrease substantially." He requested the court to reduce his child support to an amount commensurate with his new or anticipated income and to terminate the requirement that he pay the educational expenses of the children. Teresa denied Martin's allegations regarding material change in circumstance and raised the "clean hands doctrine" as an affirmative defense,¹ claiming that Martin had "wilfully and contemptuously refused to pay" a number of items ordered by the court.

¶ 4. Following discovery, the matter was heard by the chancery court on October 30, 2001. Martin testified that following carpal tunnel release in November 2000, his dexterity decreased and he had difficulty holding objects. In April, 2001, he took a medical leave of absence and consulted with Dr. Aubrey Lucas, an orthopaedic surgeon who specialized in hand surgery. Dr. Lucas testified by way of deposition; his office notes were attached as an exhibit. Following his initial examination of Martin on April 27, 2001, Dr. Lucas referred him to a neurologist for a nerve conduction study, an anesthesiologist for pain management and, to an occupational therapist for strength, range of motion and sensation measurement. Upon reviewing the results of these examinations, Dr. Lucas recommended continued evaluation by the pain management specialist and, a return visit to Dr. Lucas in two weeks. Martin did not return. Three months later, he telephoned Dr. Lucas advising that he had made plans to start a pathology residency at the University of South Alabama in the next few weeks due to his inability to hold laparoscopic instruments for more than one to two minutes without significant pain and numbness. He asked Dr. Lucas to give a deposition for use in chancery court proceeding and made an appointment for Dr. Lucas to update his condition before the deposition. On August 28, Dr. Lucas detected no visible abnormalities with Martin's hands and found the range of motion to be good. Dr. Lucas recommended that "if his condition does not improve and if he still feels unable to practice as a general surgeon, I would recommend a 2nd opinion regarding that issue. . . ." In response to a request for information from Martin's disability insurer, Dr. Lucas wrote, on September 12:

Martin has plans to complete a pathology residency and does not have plans to return to his normal practice of general surgery which included laparoscopic procedures. At this current time Martin is under restrictions that would not allow him to hold the laparoscope for extended periods of time. I discussed with Martin that if his condition continues to provide problems related to using the laparoscopic equipment and to returning to normal employment as a general surgeon, I would recommend a 2nd opinion regarding this issue. . . . At this time Martin has not been released to his regular occupation. He has been released to perform the office or clinic component of his surgical occupation and has been free to do so since I originally saw Martin on 4-27-01. The medical restrictions to avoid the use of the laparoscope will be in effect until 12-1-01. I hope at that time to either hear from Martin that he can return or to obtain a 2nd opinion regarding this issue.

Dr. Lucas testified that while Martin could perform some simple surgical procedures, he could not perform the laparascopic component of his practice which, according to the history, was the majority of his practice. When asked whether there was a need for Martin to change occupations at that time, Dr. Lucas responded "[a]t this point and (sic) time, there were probably many personal reasons that I don't feel that I should be in the middle of. . . . As far as physical reasons for changing occupations, I would say it's premature. But, he might have many reasons he's factoring in." (emphasis added).²

¶ 5. By letter opinion dated November 2, 2001, the court found Martin's decision to abandon his career as a surgeon to be "premature" and denied his request for modification. The court found "no vocational evidence" to support Martin's position; instead, the court found "strong evidence from Dr. Lucas that Martin was motivated to make a change by considerations other than his medical condition." The court concluded that all of these matters "show clearly that Martin was, at the least, premature in the decision to abandon his career as a surgeon." Citing Parker v. Parker, 645 So.2d 1327, 1331 (Miss.1994) that an obligor cannot obtain modification of support when he, acting in bad faith, voluntarily worsens his financial position so that he cannot meet his obligations, the court found that Martin made the decision to change careers when he knew the extent of his obligations and that his decision would prevent him from being able to comply with the court's order. The court determined that "Martin must accept responsibility for that ill-timed and ill-advised decision that was at best premature."

¶ 6. The court further found that Martin came to the court "with unclean hands in that he failed to perform his obligations and has failed to show a lack of ability to perform." The court noted that during a substantial part of the time Martin claimed to be losing his surgical practice and to be in great pain, he continued to maintain and regularly use his membership in a country club to play golf. The court found engaging in such activities while claiming inability to perform to be "extremely inequitable" and concluded that Martin's "own lifestyle doesn't bear . . . sacrifices" similar to those he asked the court to order with respect to his children's educational and home experiences. Accordingly, the court denied his request for modification.

¶ 7. Martin took no appeal from the chancellor's ruling and acknowledges that he is currently bound by the decision. The chancery court held Martin in contempt twice during 2002. First, by order dated January 30, 2002, the court found Martin in wilful and obstinate contempt of prior orders of the court respecting, inter alia, his failure to pay monthly mortgage payments on the marital home, child support and educational expenses; the court ordered him incarcerated until he purged himself of contempt by paying all amounts specified in said order (approximately $24,000) and by complying with other non-monetary provisions. Second, by order dated April 19, 2002, the court found Martin in contempt of the January 30, 2002 order and also of additional items, including continued failure to pay the mortgage and other expenses relating to the marital home, educational and child support obligations, medical expenses and attorney's fees. The court ordered Martin to be incarcerated until he purged himself of contempt (by paying approximately amount of $67,000, which incorporated all amounts due and owing under the January 30 order).³ Again, Martin filed no appeal seeking review of these orders.⁴

¶ 8. Martin subsequently sought protection under Chapter 13 of the United States Bankruptcy Code and, on September 16, 2002, moved the chancery court to withdraw all arrest warrants based upon contempt until the bankruptcy stay was lifted. Following dismissal of the bankruptcy petition (which Martin states was due to Teresa's refusal to consent to the proposed reorganization plan), the chancery court issued an order to arrest and incarcerate Martin until he purged himself of contempt as specified in the April 19, 2002, order of the court. Martin was arrested on January 14, 2003, and two days later filed the instant motion to modify/suspend support obligation and motion for release from incarceration, contending that he had no money, had exhausted all liquid assets to satisfy the standing orders of the court, was "unable to practice medicine as a surgeon as was his previous employment due to a medical/physical disability which is beyond his control," and was entitled to modification of his child support obligation based upon his current income of...