Howard v. Howard, 2006-CA-00350-COA.

• Decision Date: 13 November 2007
• Docket Number: No. 2006-CA-00350-COA.,2006-CA-00350-COA.
• Citation: 968 So.2d 961
• Parties: Martin HOWARD, Jr., Appellant v. Teresa HOWARD, Appellee.
• Court: Mississippi Court of Appeals

968 So.2d 961

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

No. 2006-CA-00350-COA.

Court of Appeals of Mississippi.

November 13, 2007.

John R. Reeves, John Justin King, attorneys for appellant.

Wayne Smith, Liberty, attorney for appellee.

Before LEE, P.J., IRVING and CHANDLER, JJ.

CHANDLER, J., for the Court.

¶ 1. This appeal is the second time this child support modification case has been before the Court. In Howard v. Howard, 913 So.2d 1030 (Miss.Ct.App.2005), we reversed the denial of Martin Howard, Jr.'s petition for modification of child support by the Chancery Court of Pike County and remanded for reconsideration. After hearing more evidence on remand, the chancellor dismissed the modification petition. Now, Martin appeals, arguing that the chancellor erred by dismissing the petition for modification on the bases of res judicata and unclean hands, by finding him in contempt of court, and by awarding attorney's fees to his ex-wife, Teresa Howard.

¶ 2. We find that the chancellor erroneously found that the matter of Martin's disability from employment as a surgeon was barred from consideration by the doctrine of res judicata. We reverse and remand for the chancellor to reconsider the issue of modification. We affirm the chancellor's finding of contempt and the award of attorney's fees to Teresa.

FACTS AND PROCEDURAL HISTORY

¶ 3. The following facts were taken from our prior opinion in this case and from the record of the proceedings before the chancery court on remand. The parties were divorced in 1995 by a decree of the Chancery Court of Pike County. On November 17, 2000, the court increased Martin's child support obligations for his three children from $2,100 per month to $2,500 per month. The court also ordered Martin to make the monthly mortgage payment on the home of Teresa and the children and to pay the children's reasonable educational expenses. All of these obligations totaled $5,100 per month. At that time, Martin worked as a general surgeon and had an income exceeding $200,000 annually.

¶ 4. Martin filed a petition for modification of child support on June 13, 2001. He alleged that there had been a material change in circumstances due to an injury to his hand that had foreclosed his ability to perform surgery, resulting in a reduction in income. Teresa opposed the petition, and a hearing occurred on October 30, 2001. In our prior opinion, this Court summarized the evidence adduced at the October 30, 2001 hearing:

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 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 proceedings 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 laparoscopic 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).

Howard, 913 So.2d at 1033-34(¶ 4). In a footnote, the Court related Dr. Lucas's testimony that, on August 28, Martin had discussed several issues "outside normal discussions about his hand" including child support and uncontrolled rage, and that Dr. Lucas had recommended that Martin consult a psychologist or psychiatrist. Id. at 1034 n. 2.

¶ 5. On November 2, 2001, the chancery court issued a letter opinion denying Martin's petition for modification. The chancellor found that no vocational evidence supported Martin's position. Rather, the chancellor found "strong evidence from Dr. Lucas that Martin was motivated to make a change by considerations other than his medical condition." The chancellor found that all the evidence showed that "Martin was, at the least, premature in the decision to abandon his career as a surgeon." The chancellor found that Martin, despite his knowledge of his court-ordered obligations, had voluntarily worsened his financial position so that he could not meet those obligations. For that reason, the chancellor held he was not entitled to a reduction in support pursuant to Parker v. Parker, 645 So.2d 1327, 1331 (Miss.1994). The chancellor stated that "Martin must accept responsibility for that ill-timed and ill-advised decision that was at best premature." The chancellor also found that Martin was before the court with unclean hands because he had failed to perform his obligations or show his inability to perform. The chancellor noted that, while Martin claimed to be in great pain, he continued to play golf regularly.

¶ 6. Martin did not appeal from the November 2, 2001 judgment.¹ On two occasions in 2002, the chancery court held Martin in contempt for nonpayment of the mortgage, child support, and educational expenses. On both occasions, the court ordered that Martin be incarcerated until he purged himself of contempt by paying all the amounts owed. Martin was arrested on January 14, 2003. On January 16, 2003, he filed the instant motion to suspend/modify his support obligation. He argued that he had no money, had exhausted his liquid assets, was unable to practice medicine as a surgeon because of a medical disability which was beyond his control, and was earning only $3,000 per month as a pathology resident. On January 17, 2003, Teresa filed a motion for citation of contempt, claiming that Martin was in contempt of his continuing obligations under the prior court orders. The court ordered that Martin could be released from incarceration on a cash bond of $36,500. Martin paid that amount and was released.

¶ 7. On April 17, 2003, a hearing occurred on Martin's petition for modification of child support and Teresa's motion for contempt. In our prior opinion, we related the evidence introduced at the April 17, 2003 hearing:

The parties stipulated that Martin's arrearage as of April 17, 2003 was $100,620.43. Teresa testified that she works approximately thirty hours a week and last year made $15,900, which was insufficient to cover her house payments. She has borrowed money from her family and inherited part of a small estate of her father. Teresa testified that while she has considered moving into a different home with a lower monthly note, she did not qualify for other loans because of the negative liens on her credit report that Martin had failed to clear up previously. Teresa testified that the minimum amount she needed in order to make ends meet considering the children's educational expenses, insurance, clothing, food, and housing was $2,500 per month.

Martin admitted that he had unilaterally reduced his child support payments from $2,500 to $500 per month but had not even paid Teresa that amount since his release from jail. Martin testified that it was his understanding that he was incarcerated because of past due child support payments and that when he paid the amount set by the court for his release, that he had paid all the past-due child support plus an extra amount which had him current until the middle of the summer. He testified that he has been paying the $500 he would normally pay to Teresa to his brother-in-law in partial repayment of the amount he borrowed to secure his release from jail. Martin testified, ...