Kennedy v. Kennedy, 92-CA-1168

• Citation: 650 So.2d 1362
• Decision Date: 02 February 1995
• Docket Number: No. 92-CA-1168,92-CA-1168
• Parties: Elton KENNEDY v. Grace KENNEDY.
• Court: United States State Supreme Court of Mississippi

Page 1362

650 So.2d 1362

Elton KENNEDY v. Grace KENNEDY.

No. 92-CA-1168.

Supreme Court of Mississippi.

Feb. 2, 1995.

As Modified on Denial of Rehearing March 23, 1995.

Joseph A. Fernald, Jr., Brookhaven, for appellant.

Samuel E. Farris, Hattiesburg, for appellee.

Before DAN M. LEE, P.J., and McRAE and SMITH, JJ.

DAN M. LEE, Presiding Justice, for the Court:

Elton Kennedy ("Elton") sought modification, by reduction or termination, of the decree of the Marion County Chancery Court which required him to pay Grace Kennedy ("Grace"), his wife of nineteen (19) months,

$1,500.00 per month for separate maintenance, plus a car, car insurance, tag costs, medical and dental expenses. The chancellor found that Elton had suffered a substantial reduction in income since the rendition of the separate maintenance decree of February 24, 1989, and yet refused to reduce or terminate Elton's future separate maintenance obligations. The chancellor also held Elton in contempt of court for failing to pay past due separate maintenance and ordered that he be jailed until he purged himself of contempt. Aggrieved by the chancellor's ruling, Elton assigns as error the following:

1. WAS THE CHANCELLOR'S DECISION MANIFESTLY WRONG AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

2. WAS ELTON KENNEDY IN CONTEMPT OF THE FEBRUARY 24, 1989, ORDER ENTERED BY THE MARION COUNTY CHANCERY COURT?

3. HAS THERE BEEN A MATERIAL CHANGE IN CIRCUMSTANCES ARISING SUBSEQUENT TO THE DECREE OF FEBRUARY 24, 1989 TO WARRANT A MODIFICATION OF SEPARATE MAINTENANCE?

4. THE AWARD IS UNCONSTITUTIONAL AND IS VIOLATIVE OF THE EQUAL PROTECTION AND DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

We will address Elton's first three assignments of error, however, because we cannot tell from the record whether the constitutionality of separate maintenance was argued in the court below, we will not address assignment of error number 4.

After reviewing the record and briefs in this case, we affirm the chancellor's decision to hold Elton Kennedy in contempt of court for failure to pay Grace's separate maintenance payments up to the October 6, 1992 hearing. However, we find that the chancellor's failure to reduce or terminate Elton's future separate maintenance payments was manifest error and, therefore, reverse the chancellor's ruling that Elton was not entitled to a reduction or termination of future separate maintenance and remand for further proceedings on this issue.

FACTS

On July 26, 1987, Elton Kennedy married Grace McDaniel Kennedy. This was the second marriage for both parties. Elton's first wife of 27 years died of cancer in 1986, and Grace's husband was killed in a 1975 airplane crash. After seven months of marriage, Elton, dissatisfied with the marriage, left Grace on or about February 27, 1988. Grace initiated a separate maintenance action against Elton in the Marion County Chancery Court shortly thereafter. In his order of February 24, 1989, the chancellor awarded Grace $1,500.00 per month in separate maintenance, plus a car, car insurance, tag costs, medical and dental expenses. The chancellor also ordered that Elton pay court costs and $3,000.00 toward Grace's attorney's fees.

Elton appealed this award and this Court affirmed the chancellor's order without a written opinion on March 21, 1990. Kennedy v. Kennedy, 557 So.2d 1197 (Miss.1990). Subsequent to this ruling, relations between Elton and Grace did not improve. Grace brought contempt charges against Elton in the Marion County Chancery Court several times for contempt of the original order. On each of these previous occasions, the chancellor found that Elton was in contempt of court and ordered that he be arrested and jailed until he purged himself of contempt. Elton, on these prior occasions, paid his arrearages into the court and was not jailed.

A chronology of the events that culminated in this appeal are detailed to-wit:

1. On January 7, 1992, Grace Kennedy filed a Petition to Cite Elton Kennedy For Contempt for failure to pay her separate maintenance, medical bills, attorneys fees and to carry insurance on her vehicle.

2. On May 19, 1992, Elton Kennedy filed a Motion To Modify Judgment For 3. On June 11, 1992, Grace Kennedy filed an Amendment To Petition To Cite For Contempt naming Elton Kennedy as the defendant.

Separate Maintenance naming Grace Kennedy as defendant.

4. On October 6, 1992, Chancellor Sebe Dale, Jr., heard testimony from Grace Kennedy and Elton Kennedy in support of their respective petitions.

5. On October 22, 1992, the Marion County Chancery Court entered a Memorandum Opinion stating that Elton Kennedy was guilty of willful contempt of court and denied Elton's Motion to Modify Judgment of Separate Maintenance.

In his Memorandum Opinion of October 22, 1992, the chancellor upheld Order of separate maintenance dated February 24, 1989, and found that Elton was delinquent $5,050.00 in separate maintenance payments as well as $883.50 for Grace's unpaid medical expenses. The chancellor addressed Elton's Petition For Modification of Separate Maintenance and opined:

[a]s to the modification petition: Though Elton has shown a reduction in his income from the date of the initial order of the Court for separate maintenance and related payments, he has nevertheless wholly failed to convince the Court that he is presently without the ability to comply with the Court's prior judgment, or that his compliance therewith will deprive him of a reasonable standard of living for himself. The Court therefore concludes that Elton is not entitled to a modification of the ordered separate maintenance and related payments. (emphasis added)

The chancellor clearly found that "Elton had shown a reduction in his income from the date of the initial order of the Court for separate maintenance and related payments,...." However, in the same breath, the court then stated that Elton had not demonstrated that he was without the present ability to comply with the court's order. The chancellor did not suggest how Elton could pay the assessed separate maintenance, but, in his memorandum opinion, the chancellor listed all of Elton's assets.

Elton worked for Sonat Exploration as a lease operator at the time of the February 24, 1989, separate maintenance order and received approximately $32,000.00 per year in salary from Sonat. In 1991, UMC Petroleum bought the field where Elton worked. UMC Petroleum did not offer Elton a job and therefore, Elton was forced to accept a job with Sonat as a roustabout on an offshore production rig. Elton worked on the offshore production rig for approximately three months and then, confronted with the prospect of working a job that he was physically unable to perform at age 59, and not offered any other job with Sonat, took voluntary retirement in September of 1991.

At the time of the October 6, 1992, hearing, Elton received a gross monthly pension payment of $438.00 from Sonat. Elton also received $878.00 quarterly from dividends on his Sonat stock and $539.26 every six months from a certificate of deposit that he owned. Elton showed a total monthly income of $820.54 from these sources. Elton admitted that he received approximately $500.00 to $600.00 per month from oil and gas royalty payments, but he has continuously given his two children about $250.00 per month per child as their part of their mother's inheritance from these oil and gas revenues.

Grace's attorney questioned Elton as to the amount of money that Elton had in certificates of deposit during 1989-1991. Elton testified that he had about $15,184.00 in an individual retirement account and about $20,600.00 in a certificate of deposit. Elton further testified that he had expended other monies that he had in certificates of deposit and savings accounts to pay Grace's separate maintenance, attorney's fees, and his own personal bills. Grace's attorney further questioned Elton as to whether or not he had sold any cattle (he had and, according to income tax returns for 1991, his total farm Grace admitted that in 1989, she sold a house and six acres of land, and, in 1991, she sold additional acreage that she owned. Grace was questioned by Elton's attorney as to why she did not work. Grace stated that she was in poor health and "cannot hold a job." When asked if she had filed for any type of disability payments, Grace answered that she had not. Grace further testified that her grown son Ricky lived with her and did not pay room and board because "Elton kept threatening me." However, she testified that Ricky occasionally gave her money.

income showed a loss of approximately $6,753.00) or if he had sold any timber from his property (he had not). At the time of the October 6, 1992 hearing, Elton owned 1733 shares of Sonat stock worth approximately $38.00 per share. Elton acquired this stock through an employee stock option plan while with Sonat.

The chancellor, after hearing all of the testimony, refused to terminate or reduce Elton's separate maintenance payments to Grace. The chancellor found that Elton had suffered a reduction in income but that he was not convinced that Elton was without the present ability to pay the $1,500.00 per month in separate maintenance payments and $883.50 medical expenses.

Because Elton was delinquent in his separate maintenance payments, the chancellor found that Elton was in contempt of court for failing to comply with the terms of the 1989 separate maintenance decree. Accordingly, the chancellor ordered that Elton be jailed until he purged himself of contempt by paying all sums due and payable under the terms of the February 24, 1989, decree for separate maintenance, plus $883.50 medical expenses.

DISCUSSION

For the sake of clarity we will combine Elton's first two assignments of error.

WAS THE CHANCELLOR'S DECISION MANIFESTLY WRONG AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

WAS ELTON KENNEDY IN CONTEMPT OF THE FEBRUARY 24, 1989, ORDER ENTERED BY THE MARION...