Lewis v. Pagel, 2016–CA–00192–SCT

• Decision Date: 01 June 2017
• Docket Number: NO. 2016–CA–00192–SCT,2016–CA–00192–SCT
• Citation: 233 So.3d 740
• Parties: Drake L. LEWIS v. Tonia D. Lewis PAGEL
• Court: Mississippi Supreme Court

233 So.3d 740

Drake L. LEWIS

v.Tonia D. Lewis PAGEL

NO. 2016–CA–00192–SCT

Supreme Court of Mississippi.

June 1, 2017

ATTORNEY FOR APPELLANT: THOMAS W. TEEL, BILOXI

ATTORNEY FOR APPELLEE: DEAN HOLLEMAN, GULFPORT

BEFORE RANDOLPH, P.J., KITCHENS AND CHAMBERLIN, JJ.

CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. Tonia (Lewis) Pagel ("Tonia") filed for divorce against Drake Lewis ("Drake") in the Harrison County Chancery Court, Second Judicial District. An order of divorce was entered in 2008. This case is now on its third appeal to this Court.

¶ 2. Drake filed his first appeal from the order of divorce. Lewis v. Lewis , 54 So.3d 233, 239 (Miss. Ct. App. 2009) ( Lewis I ) (remanding with instructions for valuing the marital estate). On certiorari, this Court affirmed in part and reversed in part, remanding the case to the chancery court. Lewis v. Lewis , 54 So.3d 216, 218 (Miss. 2011) ( Lewis II ) (finding that "the chancellor should value Legacy1[, a marital business,] without considering goodwill"). After remand, the chancellor issued his judgment and an order on modification and contempt. Drake filed his second appeal from the judgment and the order. Lewis v. Pagel , 172 So.3d 162, 177 (Miss. 2015) ( Lewis III ) (remanding on issue of child support).

¶ 3. Now, Drake appeals two issues. First, Drake argues that the order of divorce should be voided due to a lack of jurisdiction and that the chancellor erred in finding that he resided in Harrison County. Drake claims that he never resided in Harrison County and that it was an improper venue for the suit. Second, Drake argues that the chancellor erred in entering an order of contempt against him. Finding no error, we affirm the judgment of the chancellor on both issues.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 4. Drake and Tonia were married in 1991. Tonia filed for divorce in August 2006 in Harrison County Chancery Court, Second Judicial District; an order of divorce was entered on January 11, 2008.

Jurisdiction Facts

¶ 5. On September 22, 2014, at a hearing on a contempt motion filed by Tonia, while the second appeal was pending before this Court, Drake filed a motion for a continuance and argued for the first time in the litigation that the divorce action was void for lack of jurisdiction due to improper venue under Mississippi Code Section 93–5–11. The chancellor granted the motion for continuance, and Drake filed a Motion to Declare Prior Orders Void and to Dismiss Actions . Drake's counsel claimed that he first became aware of the lack of jurisdiction on September 22, 2014, when he and Drake were discussing the facts related to the contempt motion.

¶ 6. In his filing, Drake argued that he and Tonia both resided in Jackson County at the time of their separation and when Tonia filed for divorce in Harrison County. He also noted that he was served in Jackson County. In an affidavit, Drake recognized that Tonia's complaint for divorce alleged that he resided at "Gulf Shores Villa, Atkinson Road, in Biloxi, Mississippi." He argued, though, that this was the address of his aunt's condominium and that he had never resided there. Further, he argued, after his separation from Tonia, he resided at his business address in Jackson County. While he conceded that he "spent some nights away from Jackson County," he claimed that he was a resident of the county from the time of separation through the entry of the divorce order in 2008 until he moved to Louisiana in 2009.

¶ 7. As evidence of his residence in Jackson County, Drake noted that his Mississippi driver's license was issued in Jackson County from 2004 until 2008. He also pointed out that his business office—which he argued he used as a primary residence—was in Jackson County. Further, according to Drake, he was registered to vote in Jackson County from 1996 to 2011. Lastly, he claimed that his mail, during this time period, was delivered either to his marital residence or his business—both in Jackson County.

¶ 8. In her response to Drake's motion, Tonia argued that Drake left the marital residence on June 12, 2006, and moved to Biloxi, Mississippi, in Harrison County after their separation.¹ She noted that Drake did not answer her complaint that alleged that he resided in Harrison County. Tonia also claimed that Drake, on his Rule 8.05 financial disclosure statement, filed on September 29, 2006, represented to the chancery court—in his own handwriting—that his address was in Biloxi, Mississippi. See Miss. Unif. Chancery Court R. 8.05. In response, Drake noted that he spent ten to fourteen nights at the Biloxi address and put the address there "probably because he had stayed there when he drafted it." Further, Tonia noted that Drake admitted in a 2007 deposition that he lived in Biloxi:

Q. And where did you live prior to January of '07?

A. I lived in Biloxi at an apartment.

Q. And when is the last time you lived at Marina Road or Marina Drive, where the home is?

A. June of '06.

In her affidavit, Tonia claimed that "[d]uring his scheduled visitations, I brought the children to him at th[e Harrison County] residence where they remained with him for the weekend." Tonia also cited her unrefuted trial testimony:

Q. And at the time—so the record will be clear, at the time you filed your complaint for divorce in the Second Judicial District, that is where Drake was living, correct?

A. Yes.

¶ 9. At the hearing, on October 6, 2014, Drake explained his living situation:

Immediately after the separation, I spent my time divided between my aunt's. My aunt had a one-bedroom apartment in Biloxi, and I spent some nights there and some nights at my office in Gautier [in Jackson County], and then some of the time at Stephanie's home in Jackson County in Ocean Springs.

Drake also claimed that his residence remained the marital home since he paid the mortgage on the property, and he claimed, "I spent, as I said before, about equal times, probably more in Gautier at my office than anywhere else." Drake testified that since 2005 he had never had any voting privileges, homestead rights, or residences in Harrison County. Tonia testified that she never delivered the children to the office for any weekend visitation. She also claimed that Drake had told her that he was going to "stay" at his aunt's apartment; when asked again, Tonia claimed that Drake had said he "was going to live there."

¶ 10. After the hearing, the chancellor denied the motion. The chancellor found that Drake "left the marital home in June of 2006, ... moved to Biloxi, Mississippi, Second Judicial District of Harrison County, Mississippi [and] ... took up residence in his aunt's condominium." Further, the chancellor noted that Drake's Rule 8.05 disclosure listed his mortgage on the marital home as his "previous household." The chancellor wrote,

This Court is well aware that this is a factual determination that it made based upon the evidence presented to it, under oath, at the initial trial of this matter. Propriety of venue was established by the testimony at the first trial. No objection to venue was made at the trial. No objection to venue was raised in the first appeal. No objection to venue was made at the retrial of this matter. No issue of venue was raised in the second appeal.

...Again, there is the question of credibility. For Drake Lewis to now claim after having affirmatively led this Court to find that it had proper venue because he never resided in Biloxi is unbelievable. He left Tonia Lewis and Jackson County in June of 2006 and moved to Biloxi, and remained there until he moved in with his paramour in Ocean Springs, Jackson County, Mississippi in January 2007.

The chancellor found that Drake's motion was frivolous and awarded attorney's fees to Tonia.

¶ 11. In response, Drake filed a petition for interlocutory appeal with this Court. This Court denied Drake's petition on December 10, 2014. On February 18, 2016, Drake entered into three agreed orders that the Harrison County Chancery Court had subject-matter jurisdiction over the divorce action.

Contempt Facts

¶ 12. On May 19, 2015, the chancellor granted Tonia's motion for contempt and entered a judgment of contempt against Drake. The chancellor found that it had jurisdiction to enter the judgment of contempt as Drake was not entitled to a stay of the proceedings while he awaited resolution of his petition for interlocutory appeal. The chancellor recognized the implications of lacking jurisdiction and stayed entry of the judgment until the resolution of the jurisdictional issue in the petition for interlocutory appeal.

¶ 13. Tonia sought a total contempt award of $306,176.82. Of that award, $132,812 was due to Tonia as a portion of the equitable distribution of assets in the divorce decree entered in 2008. See Lewis III , 172 So.3d at 173–74. Tonia sought $5,000 in attorney's fees and $60,000 in lump-sum alimony that the chancellor had awarded her on February 15, 2013. See id. at 175–76. She also sought $2,353.50 for one of the children's orthodontic expenses.

¶ 14. In analyzing Drake's ability to pay, the chancellor recognized that Drake and his current wife's totaled income for 2013 was $89,970. The chancellor noted that Drake's wife's income "was not to be considered in establishing any obligation for [Drake]" but realized that the "combined income demonstrat[ed] what the current household income" was. Addressing Drake's "true financial means," the chancellor noted that if Drake chose to do so he could sell his collector Chevrolet Corvette, various properties and an interest in an apartment complex. In addition, the chancellor recognized that Drake had sold a property approximately one week before the contempt hearing and paid his father the proceeds of $45,000.

¶ 15. Throughout the order, the chancellor emphasized the role of Drake's father in Drake's finances. He recognized that the debts Drake claimed to owe his father were "not truly debts owed by [Drake] to his father," as his father was willing to forgive the debts in offers of...