Mixson v. Mixson, 18994

• Decision Date: 18 December 1969
• Docket Number: No. 18994,18994
• Citation: 171 S.E.2d 581,253 S.C. 436
• Parties: Melita Ann Team MIXSON, Appellant, v. Benjamin Eugene MIXSON, Jr., Respondent, (Two Cases).
• Court: South Carolina Supreme Court

Page 581

171 S.E.2d 581

253 S.C. 436

Melita Ann Team MIXSON, Appellant, v. Benjamin Eugene MIXSON, Jr., Respondent, (Two Cases).

No. 18994.

Supreme Court of South Carolina.

Dec. 18, 1969.

Robert J. Thomas, Columbia, for appellant.

Cromer & Louthian, Columbia, for respondent.

MOSS, Chief Justice:

Melita Ann Team Mixson, the appellant herein, and Benjamin Eugene Mixson, Jr., the respondent herein, were married on July 7, 1959. Three children were born of this marriage, two daughters, Myrtle Graves Mixson, age nine, Melita Team Mixson, age seven, and a son, Benjamin Eugene Mixson, III, age four.

The appellant, on December 13, 1966, instituted an action in the Richland County Court for a divorce A vinculo matrimonii from the respondent on the ground of physical cruelty. Section 20--101(3) of the Code. On May 31, 1967, the appellant was granted an absolute divorce from the respondent on the ground of physical cruelty. In said decree, the permanent custody of the minor children was awarded to the appellant with reasonable visitation rights to the respondent. It was also provided that the respondent would pay to the appellant as alimony for her, the sum of $62.50 per week, and the sum of $62.50 per week for the support and maintenance of the children. The respondent was also required to transfer the ownership of certain life insurance policies to the appellant and to pay directly to her the premiums to become due under said policies.

The appellant instituted a proceeding on February 17, 1969, wherein she alleged that the respondent was in arrears in the alimony and support payments, the amount being $2,821.70, he was required by the divorce decree to pay to her. She prayed that the respondent be adjudged in contempt of court for his violation of the terms of the aforesaid decree and that he be ordered to make immediate payment to the appellant the amount in arrears, together with attorney's fee for prosecuting the action.

A hearing was held before The Honorable John A. Mason, Judge of the Richland County Court, on March 27, 1969, and at that time the appellant filed an amended and supplemental petition covering the period from May 3, 1968 through March 21, 1969, setting forth the arrearage for alimony and support payments, and accrued insurance premiums, the total amount being $3,261.37.

The respondent filed an answer and counterclaim in which he admitted that he was in arrears in his payments but not in the amount claimed by the appellant. He asserts that he is not guilty of willful contempt and alleges that he has been unable to pay the full amount required by the aforesaid decree because of his financial condition. He asks, because of a change in his financial condition, that the support and alimony payments be reduced and he asserts that it would be for the best interest of the minor children of the marriage that their custody be awarded to him.

On April 10, 1969, the trial judge signed an order stating that he was unable to determine accurately if there was any arrearage, but, nevertheless, he fixed the arrearage at $750.00, this being the amount that the appellant was behind in her house payments. He required the respondent to pay this sum, and if there was an arrearage that such amount would take care of it and bring the respondent up-to-date in his payments. He further found that the respondent's financial condition had changed and ordered a reduction in child support payments from $62.50 per week to $25.00 per week, effective April 25, 1969.

The trial judge also found that it would be in the best interest of the children to grant joint custody to the parties, provided the respondent provides a proper home for the minor children. It was required that during the times that the minor children of the parties were in school that the appellant should deliver to the home of the respondent the minor child who was not in school by 9:00 A.M. each morning, Mondays through Fridays. The respondent was required to pick up the two older children from school and all of them were to remain at his home until 7:00 o'clock P.M. when the appellant was required to pick them up at that place. During the summer months the appellant was granted uninterrupted custody of the children except for five weeks geginning July 1, at which time the respondent was granted uninterupted custody of the children. On weekends during school months the respondent was granted custody of the children from 1:00 o'clock P.M. Saturday until 9:00 o'clock A.M. on Sunday. At Christmas time custody of the minor children was awarded to the respondent for a period of three days, beginning at 5:00 o'clock P.M. December 25.

The trial judge found that the appellant should be responsible for her own medical bills and for her personal taxes.

The court found that the appellant was entitled to attorney's fees and that the sum of $250.00 was reasonable under the circumstances.

The appellant filed timely notice of appeal from the order of the county judge. The exceptions will be discussed in order. Following the notice of intention to appeal, the appellant presented to this court a petition asking that the custody provisions of the order of April 10, 1969, be superseded and stayed until the appeal in this case could be heard and disposed of on its merits by this court. We granted an order of supersedeas on May 13, 1969.

The first question for determination is whether the respondent was in arrears in the payment of alimony to his wife, support money for the children, and insurance premiums required by the divorce decree for the period from May 3, 1968, through March 21, 1969.

A computation shows that for the period above stated the respondent was due to pay as alimony and support money the sum of $5,875.00, and insurance premiums of $436.37, making a total of $6,311.37. The evidence shows that the respondent made total payments of $3,105.00 and in addition thereto he was entitled to a credit of $139.40 for purchases made by the appellant on his Pure Oil Credit Card, and also the sum of $98.20, representing purchases made by the appellant on a Bank Americard of the respondent, making a total of $3,342.60. Subtracting the amount of payments made and credits due to the respondent from the amounts due under the divorce decree shows that he was in arrears in the amount of $2,968.77.

The respondent contends that he expended funds and made payments for the benefit of his wife and children and he should be allowed credit for same in reducing his arrearage. He claims a credit of $384.00 which he testified he had paid for hospital insurance for his children. He was not entitled to any credit for this because under the divorce decree this was an obligation of the respondent over and above the alimony and support payments which he was required to make.

The respondent also claimed a credit of $400.00 which was a part of a total of $1,000.00 paid to the appellant prior to May 3, 1969, as part of a compromise settlement of a dispute over his arrearage at that time. The respondent now admits that he was was not entitled to such credit.

The respondent also claims credit for $400.00 which he said he spent on the children for a trip to the beach and a credit of $500.00 which he estimated he spent on the children at Christmans time. The respondent was not entitled to credit for these two expenditures.

The general rule is that it is the obligation of the divorced husband to pay the specified amounts according to the terms of the decree and he should not be permitted to vary these terms to suit his own convenience. The amounts spent on the children for a trip to the beach and at Christmas time must be regarded as gifts or gratuities and they cannot be credited on his obligation to pay according to the terms of the decree. Fearon v. Fearon, 207 Va. 927, 154 S.E.2d 165.

In Nelson on Divorce (2d Ed.), section 16.27, it is stated:

'A husband, charged with contempt for nonpayment of alimony or support money, is entitled to credit for such amounts as he may have paid under the decree. The fact that he has made some payments, however, will not purge him of contempt or prevent his commitment therefor as default as to each new installment is a fresh contempt. Nor is he entitled to credit for payments made, enuring to the benefit or welfare of his wife or children, if they are not made pursuant to or for the purposes prescribed by the decree. * * *

Under circumstances short of abandonment of the child by the wife, the husband may be considered merely a volunteer with respect to his expenditures in the child's behalf while in his custody, therefore not entitled to credit for them as against payments due his wife by order of the court. * * *'

The respondent asserts as a defense his inability to comply with the divorce decree because of a change in his financial condition. The appellant made out a prima facie case of contempt by pleading the order for the payment of alimony and child support and default in payment. The burden was upon the respondent to establish his defense and to show his inability to comply with the divorce decree.

The trial judge did not find, with reference to the arrearage, that the respondent was unable because of his financial condition to comply with the order for the payment of alimony and child support. The respondent is not in a position now to argue to the contrary.

Upon the testimony and pleadings of the respondent, we reach the conclusion that the respondent's violation of the court decree was willful. He argues that he 'was well within his rights in withholding this money for the benefit of the children so that it could be made pursuant to and for the purposes prescribed by the decree.' It thus appears that the respondent deliberately withheld the alimony and support money because he didn't think the appellant was properly spending such.

It is our conclusion that the respondent was guilty of contempt of court in willfully violating...