Manning v. Tanner

• Decision Date: 12 February 1992
• Docket Number: No. 90-CA-0926,90-CA-0926
• Citation: 594 So.2d 1164
• Parties: Willeta Tanner MANNING v. Ervin H. TANNER.
• Court: Mississippi Supreme Court

Page 1164

594 So.2d 1164

Willeta Tanner MANNING v. Ervin H. TANNER.

No. 90-CA-0926.

Supreme Court of Mississippi.

Feb. 12, 1992.

Gail D. Nicholson, Nicholson & Nicholson, Gulfport, for appellant.

Thomas M. Matthews, Jr., Wiggins, for appellee.

Before HAWKINS, P.J., and PITTMAN and McRAE, JJ.

PITTMAN, Justice, for the Court:

I.

By Final Decree dated December 3, 1980, Willeta and Ervin Tanner were granted a divorce by the Chancery Court of Stone County. Ervin Tanner was awarded custody of one minor child, Ervin Bryant Tanner, and Willeta was awarded custody of the other minor child, Russell Todd Tanner, with reasonable visitation vested in each party. Ervin Tanner was ordered to pay child support for Russell in the amount of $25.00 per week beginning December 5, 1980.

On January 20, 1983, Willeta filed a Complaint for Modification of Decree and Citation of Contempt alleging that Ervin Tanner was delinquent in the payment of child support for Russell, that he had prevented Willeta from exercising her visitation rights with Ervin Bryant, and that he had engaged in a course of conduct which was detrimental to the best interest of Ervin Bryant. She sought to have custody of Ervin Bryant changed to her, and to have Ervin's visitation rights extinguished.

By Final Decree dated April 29, 1983, the chancery court modified the original divorce decree and awarded custody of both children to Willeta, with limited visitation in favor of Ervin. The court increased the amount of child support to $50.00 per week. The court also found Ervin in contempt, awarded Willeta a judgment for the arrearage in the amount of $1,075.00, a judgment for attorney's fees in the amount $550.00, and assessed court costs against Ervin. He was ordered incarcerated until he purged himself of contempt.

Significantly, Ervin Tanner did not appear for this proceeding, but the court decree recited that "personal service of process was had upon the defendant in the manner and for the time required by law so as to require his appearance at this term of court. Therefore, this Court has jurisdiction of the parties and of the subject matter and may adjudicate herein."

On January 20, 1984, an unsigned Complaint was filed on behalf of Ervin Tanner alleging that he was incarcerated pursuant to the April 29, 1983 Final Decree, that he continued to have custody of Ervin Bryant Tanner (then 16), and that he was only $450.00 in arrears at the time the April 29th Decree was entered. He sought release from jail in order that he could return to work and support his children. He also sought to have child support reduced from $50.00 to $25.00 per week since Willeta still only had custody of one child. Finally, Ervin sought to have custody of both children returned to him, or to some suitable party other than the mother. Apparently, no process was had on Ms. Tanner.

According to a note from a Deputy Chancery Clerk to an Enforcement Officer with the Harrison County Department of Public Welfare, no action was taken on this latest complaint, and it was passed to the files on August 19, 1985. The last official order in this case was entered April 29, 1983.

However, the Harrison County Department of Public Welfare was under the impression that Ervin and Willeta Tanner had entered into an agreement on February 3, 1984 which was worked out by their attorneys, Garnett Harrison and Jack Parsons. There is an Agreed Order in the record which provides that the parties appeared in court on January 25, 1984 and announced through counsel that an agreement had been reached. The pertinent terms of agreement provided that Ervin Tanner would be released from jail, and that he would pay $300.00 toward the arrearage set out in the decree of April 29, 1983, plus the sum of $50.00 per week which would be paid via withholding through the Stone County Welfare Department beginning February 3, 1984. Of this $50.00 per week, $25.00 would go for the support of Russell Todd Tanner who resided with his mother, and $25.00 would go toward the arrearage. Once the arrearage was paid in full, child support payments from Ervin would revert to $25.00 per week as originally ordered.

This Agreed Order was never officially entered by the court, it does not bear the judge's signature, and is not part of the chancery court file. Notwithstanding, the parties, or Mr. Tanner at least, relied upon this Proposed Agreed Order, and he began making the scheduled payments via withholding through the welfare department pursuant to the terms of the agreement.

On January 5, 1990, Ervin Tanner filed a Complaint in the Chancery Court of Stone County alleging that Ervin Bryant Tanner had never resided with his mother, notwithstanding the change of legal custody on April 29, 1983, that Willeta never had the intention of taking custody of Ervin Bryant when the decree changing custody was entered on April 29, 1983, at her request, and that this conduct by Willeta amounted to a fraud upon the court justifying her conviction for contempt. He also alleged that he was not in arrears, and in fact had overpaid since April 29, 1983, and prayed for a judgment against Willeta in the amount of $1,240.14, plus attorney's fees.

Willeta answered the Complaint on March 5, 1990, and essentially denied the allegations. She also affirmatively alleged that Mr. Tanner was in fact in arrears on child support in the amount of $7,001.53, and in the amount of $500.00 for previously ordered attorney's fees. On April 13, 1990, Willeta filed a Motion for Citation of Contempt based on these alleged arrearages.

A hearing was held on April 18, 1990, and on the 16th of May, 1990, the chancery court entered it Findings and Conclusions. The court found in essence that Willeta "did in effect commit what this Court considers to be the equivalent of fraud upon this Court." It found that she made a "serious misrepresentation to the Court [which] borders on the legal equivalent of fraud."

The court's legal conclusion was based on its factual finding that Willeta, "after urging this Court to remove the custody of the minor [Ervin Bryant] from his father because of the dangers involved to the child ... did not take the next step and protect the child by removing him from the father's" custody. Furthermore, Willeta accepted increased child support payments from Mr. Tanner even though she never assumed physical custody of the child.

The court also found that Mr. Tanner spent seventeen (17) days in jail as a result of this legal action taken by Willeta. Mr. Tanner thought he was jailed for past due support and was advised to pay $50.00 per week to "catch up." Curiously, the chancellor found that both Mr. Tanner and Ervin Bryant Tanner were unaware that legal custody of Bryant had been changed by the April 29, 1983 decree.

The chancellor found as fact that Ervin Bryant continued to live with his father until "late October or early November, 1984, after which he moved to Gulfport, Mississippi, and stayed for uncertain periods of time with his mother until he finished high school by graduation." The court found specifically that Bryant did eat some meals at his mother's house, visited his brother Russell Todd on occasion, and sometimes slept there, but usually only after he had fallen asleep on the couch watching television. The chancellor found that, by this time, Ervin Bryant was, "for all practical purposes, emancipated and on his own."

The chancellor was "astounded to find that the mother ... allowed the minor, Bryant, to move into a trailer with his girlfriend [Bryant being only seventeen years of age at the time], and this on more than one occasion, and live with the girlfriend in a trailer court, at a time she, by decree at least, had documentary custody of Bryant."

The chancellor found these facts regarding the actual custody of Ervin Bryant to be overwhelmingly supported by the evidence, and justified a finding that Willeta had been unjustly enriched by over-payments of money for child support in the amount of $1,240.14. Accordingly, judgment in that amount was rendered against Willeta and in favor of Mr. Tanner.

The court also held, pursuant to Miss.R.Civ.P. 60 and Shaeffer v. Shaeffer, 370 So.2d 240 (Miss.1979), that the decree of April 29, 1983 be set aside and declared null, void and of no further effect, thus reinstating the relevant provisions of the original divorce decree of December 3, 1980.

A Judgment was prepared in accordance with these Findings and Conclusions holding that Willeta had committed a fraud upon the court resulting in an overpayment by Mr. Tanner of child support, and justifying the vacation of the decree of April 29, 1983.

A motion to reconsider and amended motion to reconsider were filed by Willeta, and denied by the court on August 15, 1990. This appeal ensued.

II.

Preliminarily, Mr. Tanner attempts to raise for the first time on appeal that the decree of April 29, 1983 is void because of the insufficiency of process and a lack of personal jurisdiction. However, because Mr. Tanner has waited this long before raising such a defense, the claim has been waived. Miss.R.Civ.P. 12(h)(1).

III.

In the lower court, Chancellor Morris found that Willeta Manning's actions in successfully moving the court to modify the custody and child support provisions of the original divorce decree, and afterwards accepting increased child support payments without ever actually assuming physical custody of the second child, Ervin Bryant, amounted to the commission of fraud on the court, or at least was the equivalent of fraud. Based upon this belief, the chancery court set aside the decree dated April 29, 1983 which...