Lahmann v. Hallmon

• Citation: 722 So.2d 614
• Decision Date: 22 October 1998
• Docket Number: No. 97-CA-00798-SCT.,97-CA-00798-SCT.
• Parties: Mark Steven LAHMANN v. Glenda Ann Kelley HALLMON.
• Court: Mississippi Supreme Court

722 So.2d 614

Mark Steven LAHMANN v. Glenda Ann Kelley HALLMON.

No. 97-CA-00798-SCT.

Supreme Court of Mississippi.

October 22, 1998.

Sarah C. Jubb, Sardis, Attorney for Appellant.

Thomas S. Shuler, Sardis, Attorney for Appellee.

Before PITTMAN, P.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. This is an appeal from a final judgment of the Chancery Court of the First Judicial District of Panola County, Mississippi. On opposing complaints for contempt and for modification of a divorce decree, Appellant Mark Steven Lahmann (hereinafter "Lahmann") was found to be in contempt of court for failure to pay child support and Appellee Glenda Ann Kelley Hallmon (hereinafter " Hallmon") was found not to be in contempt for failure to allow visitation to which the parties had agreed. Both parties' requested modifications were refused.

Course of Proceedings

¶ 2. On November 27, 1996, Lahmann filed a Complaint for Contempt and for Modification of Former Decree against Hallmon. A summons for Hallmon was issued that day, and it was executed on November 28 by a private process server whose return was filed on December 3. An Answer to Petition to Modify Former Decree and Counterclaim of Contempt, Modification, Etc. was filed on January 10, 1997. By administrative order, dated December 16, the case was set for trial on January 17, 1997. Thereafter, an Order for Continuance was entered and the case was reset for trial on March 12, 1997, at the courthouse in Sardis, Mississippi.

¶ 3. A hearing was held before the Honorable Melvin McClure, Jr., Chancery Judge on March 12, 1997. Following a one day trial and after hearing testimony from witnesses and allowing introduction of a number of documents and other exhibits, the trial court delivered its ruling in open court. This ruling found Lahmann to be in willful contempt of court for failure to pay child support as ordered, neither party was granted modification of the original decree, visitation provisions were clarified and Lahmann was ordered to pay Hallmon's attorney's fees in the amount of $1,000.00. An Order of Contempt, Etc. reflecting this ruling was filed April 7, 1997.

¶ 4. Lahmann's Motion for a New Trial was filed April 16, 1997. Following a hearing May 5, 1997, the trial court overruled the motion from the bench, and an order reflecting that ruling was filed May 19, 1997. Thereafter Lahmann perfected his appeal raising the following issues:

I. WHETHER THAT AMOUNT OF THE JUDGMENT AWARDED TO HALLMON IS GREATER THAN PERMISSIBLE?

II. WHETHER LAHMANN'S FAILURE TO PAY CHILD SUPPORT WAS SO WILLFUL AND OBSTINATE AS TO MAKE HIM GUILTY OF CONTEMPT OF COURT?

III. WHETHER, IN SPITE OF THE DOCTRINE OF UNCLEAN HANDS, LAHMANN PROVED A MATERIAL CHANGE IN CIRCUMSTANCES ENTITLING HIM TO A REDUCTION IN THE AMOUNT OF PERIODIC CHILD SUPPORT DUE FROM THE DATE OF THE HEARING?

IV. WHETHER HALLMON WAS IN WILLFUL CONTEMPT OF THE VISITATION PROVISIONS OF THE PRIOR COURT ORDER AND, THUS NOT ENTITLED TO ANY AWARD OF ATTORNEY FEES?

STATEMENT OF THE FACTS

¶ 5. Lahmann and Hallmon were married in Sullivan, Missouri on September 6, 1980. Their union produced two children, Scott Andrew Lahmann and Kelly Lynn Lahmann. After irreconcilable differences arose between them, the couple separated and were divorced on January 26, 1987. The divorce decree provided that Hallmon would have full custody, care and control of the minor children and that Lahmann was to have visitation with his children on every other weekend beginning February 6, 1987. The only restriction on the visitation was that Lahmann was not to remove the children from the State of Mississippi without court approval. The divorce decree also required that Lahmann pay as child support the sum of $150.00 per week commencing January 30, 1987.

¶ 6. With the exception of $125.00 paid in 1989, Lahmann paid absolutely no child support from at least 1988, a year after the divorce, until 1996 when criminal proceedings were instituted against him in Missouri, his present state of residence, at the urging of Hallmon. Lahmann does not dispute that the child support was not paid. During this period of time, specifically in 1992, 1993, 1994 and 1995, Lahmann spent, according to his tax returns, a net of $17,848.07 on his show horses. He characterized this as a business that took time to show profit. However, it is clear that in 1992, he spent $2,188.00 with zero income. In 1993, he spent $3,334.63 with zero income. In 1994, he spent $7,143.54, although he did report $1,117.22 in income. In 1995, he spent $7,399.71, and he reported income of $1,189.00. This adds up to $2,307.22 as income for four years while he was in this business and $20,155.29 in expenditures, making for quite an unsuccessful business. It is also important to note that during this time, Lahmann did not pay one dime to support his children and totally ignored the requirements of the Decree of Divorce.

¶ 7. In December of 1995, criminal proceedings for non-support were instituted in Missouri at Hallmon's urging. At least by January 25, 1996, he was aware that Hallmon was seeking support from him for the parties' two children. It was at this time that Lahmann received a phone call from the Sheriff's Department in Washington County, Missouri, and was told that there was a warrant for his arrest for non-payment of support, and was asked to turn himself in at the Sheriff's office. He did so, was jailed, and posted bond. After hiring an attorney, Lahmann reached a plea agreement with the district in which he pleaded guilty and was ordered to pay $5,000.00 immediately plus $300.00 a month for nine months. On the tenth month, Lahmann was ordered to pay the current support plus fifty percent (50%) of amount in arrearage until the Mississippi support order could be modified. In order to meet the terms of the Missouri sentence, Lahmann had to return to the Chancery Court of the First District of Panola County, Mississippi, to have his current support modified. He stated at the trial that because he was forced to return to court, he should have his visitation rights enforced at the same time.

¶ 8. In July of 1996, subsequent to the Missouri criminal proceedings, Lahmann moved to Climax Springs, another town in Missouri located in the Lake of the Ozarks area. At the time of the trial, Lahmann and his new wife were living in a trailer and he was working two nights a week singing in night clubs, for which he testified he was earning $75.00 per night. Lahmann testified at trial that he was engaged in no other gainful employment and had no construction jobs. However, Lahmann's new wife testified that in addition to singing he does roofing and other odd jobs for which he is paid resulting in an additional income in an amount unknown, but characterized as "nominal."

¶ 9. Furthermore, Lahmann and his new wife testified that during the time between the move in 1996 and the trial of this action in March of 1997, Lahmann spent considerable time using his construction skills to help build a house and feed store for a new business venture which promised to be highly successful. His wife testified that Lahmann probably saved $15,000.00 doing this work. The testimony is uncontroverted that all of this is solely in his new wife's name. Their reason for this is that Lahmann had previously filed for bankruptcy and had credit problems.

¶ 10. When Lahmann was asked if he could earn more by taking a day job, perhaps in construction where he had traditionally worked, Lahmann acknowledged that he could. In fact when asked if he could earn more money by taking a minimum wage job, Lahmann stated that he could. When asked whether instead of pulling his trailer to the Ozarks after his child support conviction he could have pulled it instead to a more prosperous area, obtained a more prosperous job, and therefore had more funds with which to pay his child support, he acknowledged that he could. However, in all these situations and possibilities for complying with the court's decree and supporting his children, there was a serious problem according to Lahmann. He would not be happy.

¶ 11. It must also be remembered that Lahmann does not allege that Hallmon refused to let him see the children or exercise visitations with them. In fact, Lahmann testified that he had not called or come to see the children as much as he should. Lahmann testified that his real complaints were that he could not take the children to Missouri and could not visit with the children unless it was around Hallmon's residence. However, it was the court's divorce decree that prevented Lahmann from taking the children to Missouri without court approval.

DISCUSSION OF THE ISSUES

Standard of Review

¶ 12. Under the standard of review of a chancery court's findings of fact, particularly in the areas of divorce, alimony and child support, this Court will not disturb a decision on appeal unless the findings are manifestly in error. Smith v. Smith, 585 So.2d 750, 753 (Miss.1991); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989). If this Court finds that the chancellor's decision was manifestly wrong, or that the court applied an erroneous legal standard, this Court will not hesitate to reverse. Bowers Window & Door Co. v. Dearman, 549 So.2d 1309, 1312-13 (Miss.1989)

I. WHETHER THAT AMOUNT OF THE JUDGMENT AWARDED TO HALLMON IS GREATER THAN PERMISSIBLE?

¶ 13. Lahmann asserts that the amount of the judgment awarded to Hallmon for back child support is $1,200.00 too high. Specifically, the claim is that the maximum the Chancellor could have awarded was $67,500.00, rather than the $68,950.00 awarded.

¶ 14. First, the basis of Lahmann's position is not that the amount awarded is incorrect or not owed, but rather that the amount awarded and owed is in excess of the amount claimed by Hallmon at the time of the filing of her counterclaim, several months prior to trial. The...