Mizell v. Mizell

• Decision Date: 07 March 2003
• Docket Number: No. 37,004-CA.,37,004-CA.
• Parties: Mona Elizabeth Harper MIZELL, Plaintiff-Appellee, v. Jerry Allen MIZELL, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

839 So.2d 1222

Mona Elizabeth Harper MIZELL, Plaintiff-Appellee, v. Jerry Allen MIZELL, Defendant-Appellant.

No. 37,004-CA.

Court of Appeal of Louisiana, Second Circuit.

March 7, 2003.

COPYRIGHT MATERIAL OMITTED

Donald L. Kneipp, Monroe, for Appellant.

Loomis & Dement, by: Albert E. Loomis, III, Jeffrey L. Dement, Monroe, for Appellee.

Before WILLIAMS, STEWART and GASKINS, JJ.

GASKINS, J.

Jerry Allen Mizell appeals from a trial court judgment in favor of his former wife, Mona Elizabeth Harper Mizell, which granted her more than $23,000 in past due child support and alimony and awarded her permanent alimony of $2,100 per month for 10 years. The judgment also found him in contempt and awarded her attorney fees of $5,000. We amend the judgment in part and, as amended, affirm.

FACTS

The parties were married in 1972. Three children were born of this marriage: two daughters, Heather, an adult at the time of the divorce, and Shaunte (DOB 8/9/77); and a son, Jerried Ashley (5/21/82). The parties separated in July 1993. In January 1994, Mona filed for divorce. She requested joint custody with the children primarily residing with her. She also sought alimony and child support of $4,200 per month. A divorce was granted in April 1994. Mona was made domiciliary parent under a joint custody plan. She was awarded $2,100 in alimony and $2,100 in child support per month in a judgment signed on April 18, 1994.

In October 2000, Mona filed the instant motion for past due alimony and child support. She alleged that Jerry had consistently been behind in his support payments and that he owed $116,012. She asked that Jerry be held in contempt and cast for attorney fees and court costs.

In November 2000, Jerry filed an answer in which he claimed that there was an agreement by which he was paying community debts. He asserted that his child support payments should be reduced by 50% as of June 1996, after Shaunte graduated from high school. He further claimed that Mona had failed to give him credit for some payments he made to her. Jerry also asserted that a five-year prescriptive period applied to bar payment of some of the arrearages. In his reconventional demand, he sought to terminate alimony and to reduce child support because Shaunte turned 18 on August 9, 1995, and graduated from high school in May 1996. In a separate pleading, Jerry sought a partition of community property.

In her December 2001 answer to the request for partition, Mona agreed that there should be a judicial partition of community property. However, should the court determine that Jerry's payment of the community house mortgage notes constituted alimony payments, she requested reimbursement and credit for the use of her separate funds to discharge a community debt.

Trial was held in December 2001. The parties stipulated that Jerry be given credit against the arrearages for his payments on the first and second mortgages on the family home, as well as a van note that was paid off in 1995. Mona specified that in agreeing to the stipulation, she was not conceding that she had entered into any agreement with Jerry whereby he was to get credit for those payments.

Testimony demonstrated that the parties married when Mona was 20 and Jerry was 23. During their 22-year marriage, Mona—a high school graduate—remained at home to raise the couple's three children. Her only employment outside of the home was a brief period as a teacher's assistant. Jerry, a college graduate, served in the U.S. Army during the early years of the marriage and then began a career in construction management. Although he had very brief periods of unemployment, in about 1990 he began working overseas; the projects involved renovations of American embassies and consulates in such places as China, Greece, India and Turkey. While employed in this capacity, his annual salary was in the mid to upper $80,000's. In 1999, he changed employers and he presently works on yearly contracts. His 2000 federal tax return showed that he earned in excess of $172,000. At the time of trial, he was living in the Ukraine, working for the same employer on a missile dismantlement and elimination project.

Immediately after the April 1994 decree, Jerry paid the full monthly amounts for child support and alimony as set forth in the judgment. However, he testified that when he returned home from China in June 1994, he found that Mona was behind in paying the first and second mortgage notes and the van note, all of which were in his name. (Mona denied that the notes were delinquent and Jerry was unable to provide documentation supporting this claim.) He gave his oldest daughter Heather authority to write checks on his account. He instructed her to pay the notes directly, and he began to reduce Mona's support payments. Although he testified that Mona agreed to this arrangement, she testified that she did not. Even when the second mortgage and van notes were paid off, he did not increase his payments to Mona.

Jerry also testified that when Shaunte turned 18 in August 1995, he was going to reduce the child support by half but Mona insisted that he continue paying until the girl graduated from high school in May 1996. In June 1996, Jerry instructed Heather to reduce the amount of child support he was paying. In August 1996, Mona began working at State Farm as a life and health administrative clerk.

Mona testified that she did not confront Jerry about his failure to pay the full amount owed under the judgment because the children didn't want her to "rock the boat" with their father and she feared he would make more reductions if she angered him. However, in 1999, she contacted an attorney who wrote to Jerry about the accumulating arrearages and informed him that he could not independently pay third parties sums of money on behalf of the children and claim a credit. Heather also e-mailed her father and informed him about the past due amounts. After receiving the letter from Mona's attorney, Jerry stopped communicating with Mona and continued making the deductions. Thereafter, he removed Heather from his checking account.

According to the testimony, Jerry then hired a CPA to distribute money for him. Jerry instructs the CPA what and how much to pay. Jerried graduated from high school at age 19 in May 2001 and thereafter enlisted in the Marine Corps. Following his son's graduation, Jerry ceased paying child support. At the time of trial, he was paying Mona $1288 per month in support and directly paying the house note which was about $812.

On July 30, 2002, the court issued written reasons for judgment. The court declined to give Jerry credit for payments made for Visa payments that accrued during the community. As to child support, the court found that the parties had agreed to a reduction of $1,050 in child support after Shaunte's graduation. The court found this appropriate in light of the facts that Jerry paid for his daughter's wedding and that he was more generous in his support of the children than required under the judgment. Accordingly, child support for Shaunte was deemed terminated as of June 1, 1996. Effective January 1, 2001, child support for Jerried was set at $1,387 per month. However, the court declined to otherwise give Jerry credit for such acts as buying a truck or paying insurance for the children. The court held that the evidence did not support a finding that Mona agreed to allow him to reduce his child support obligation according to the amounts paid at his own election.

As to alimony, the court found that Mona, age 49, was entitled to permanent alimony for a period of 10 years. The court held that, in light of the debt structure demonstrated by Mona at trial, termination of alimony was not appropriate. Other factors considered by the court in awarding alimony were the long-term nature of the marriage and Mona's position as a housewife who cared for the children during Jerry's extensive overseas, workrelated absences. The court also considered that in 2000, Jerry's income in construction management was $172,000 whereas Mona's was in the range of $20,000 and she had significant debt.

The court denied the exception of prescription. It found that Jerry owed Mona a total of $23,792 for past due alimony and child support. On the issue of contempt, the court noted that many of the payments for which Jerry sought credit were rejected by the court as not a proper basis for such reduction. The court also considered his generosity to the children. However, since Mona was obliged to hire counsel and file suit because of his failure to address his delinquency, the court found him in contempt. Jerry was ordered to pay $5,000 in attorney fees, as well as all court costs incurred since October 1, 2000. He was given a sentence of 60 days in jail, suspended for one year on condition he comply with the court's order. Judgment was signed August 3, 2002.

Jerry appeals.

PAST DUE ALIMONY

Jerry contends that the trial court erred in finding that Mona was entitled to past due alimony. He argues that while the trial court was correct in finding an agreement to reduce child support when the children reached majority, it was manifestly wrong in failing to find a similar agreement to reduce alimony.

Mona corrects Jerry's assertion in brief that the sum of $23,792 awarded in the judgment was only for alimony; to the contrary, the judgment specifies that it is for "back due child support and alimony." Mona further disputes Jerry's assertion that there was evidence of an agreement to reduce her alimony when the second mortgage and van notes were paid off. She maintains that there was no agreement to reduce the payments owed under the April 1994 judgment. She also contends that due to Jerry's unilateral decision to alter the amount each month she never knew what payment she would receive and that she feared antagonizing him for fear that he would arbitrarily reduce the payments even more.

Law

The general rule in...