Mizell v. Mizell

• Decision Date: 26 February 1998
• Docket Number: No. 92-CA-00500-SCT,92-CA-00500-SCT
• Parties: Linda Brown MIZELL v. Ronnie Cleveland MIZELL.
• Court: Mississippi Supreme Court

Page 55

708 So.2d 55

Linda Brown MIZELL v. Ronnie Cleveland MIZELL.

No. 92-CA-00500-SCT.

Supreme Court of Mississippi.

Feb. 26, 1998.

G. Charles Bordis, IV, Sadler & Ranson, Ocean Springs, for Appellant.

Jack Parsons, Wiggins, for Appellee.

En Banc.

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

STATEMENT OF CASE

¶1 Linda Brown Mizell ("Linda") filed a complaint in the Jackson County Chancery Court, seeking to have her former husband Ronnie Cleveland Mizell ("Ronnie") found in contempt for failing to abide by the provisions of a 1984 divorce decree. The chancellor entered a final judgment in April of 1992, awarding Linda $6,177.50, and addressing issues of arrearage of child support, college expenses, life insurance, mortgage payments, jointly accumulated real estate, and attorney's fees. Linda has appealed this judgment, citing the following errors:

I. THE CHANCELLOR WAS MANIFESTLY WRONG IN ALLOWING HUSBAND CREDIT FOR MONIES THAT HIS SON RECEIVED FROM AN ACCOUNT IN WHICH THE SON AND HUSBAND'S FATHER WERE JOINT OWNERS.

II. THE CHANCELLOR WAS MANIFESTLY WRONG IN ALLOWING THE PRIOR DIVORCE DECREE TO BE MODIFIED WITH REGARD TO PAYMENT OF COLLEGE EXPENSES AND THE RIGHT TO PARTITION REAL PROPERTY.

III. THE CHANCELLOR WAS MANIFESTLY WRONG IN FAILING TO AWARD WIFE 1/2 INTEREST IN LOTS 250 AND 251 OF WESTGATE ESTATES.

IV. THE CHANCELLOR WAS MANIFESTLY WRONG IN FINDING THAT HUSBAND HAD SATISFIED ALL MORTGAGE OBLIGATIONS ON THE MARITAL HOME FOLLOWING THE DIVORCE.

V. THE CHANCELLOR WAS MANIFESTLY WRONG IN FAILING TO FIND HUSBAND IN CONTEMPT OF COURT.

¶2 Ronnie has cross-appealed, citing the following error:

VI. THE CHANCELLOR WAS MANIFESTLY WRONG IN AWARDING LINDA $1000 IN ATTORNEYS FEES.

STATEMENT OF THE FACTS

¶3 Linda was granted a divorce from Ronnie on the grounds of habitual cruel and inhuman treatment by order of the Jackson County Chancery Court on July 18, 1984. Linda was awarded custody of Troy, the couple's only child, who was fifteen years old at the time of the divorce. Troy began college in the fall of 1987 at the age of eighteen. At the time of the trial for contempt in August of 1991, Troy was twenty-two years of age.

¶4 Ronnie, who did not appeal the chancellor's decision granting the divorce, was ordered to pay to Linda the sum of $200 per month as child support, to maintain a life insurance policy on himself for the benefit of Troy, and to pay all college expenses. Linda was awarded the use, possession, and occupancy of the marital home located on Lot 253, Westgates Estates in Gautier. Ronnie was ordered to make mortgage payments on the marital home ¶p 5 In 1991, Linda filed a complaint for contempt against Ronnie, alleging that he had not complied with the terms of the 1984 divorce decree, by (1) failing to pay $7,200 in child support since Troy had turned eighteen years of age ($200 X 36 months = $7,200); (2) failing to pay $2,600 in college costs and expenses; (3) failing to maintain a life insurance policy on himself for the benefit of Troy; and (4) failing to pay a delinquent mortgage note in the amount of $362.

¶6 Ronnie answered with general denials and filed a counterclaim against Linda, alleging that child support should be terminated; that Linda be required to pay at least one-half of Troy's college expenses; that certain real property owned jointly by the parties should be partitioned; and that attorney's fees should be awarded to Ronnie to compensate for Linda's wrongful action.

¶7 Linda later amended her complaint, alleging that Ronnie had fraudulently induced her into making payments toward the satisfaction of an indebtedness of certain real estate contiguous to the marital home (Lots 250 and 251). Linda requested reformation of a deed conveying a third piece of property (Lot 249) from Ronnie to his father.

¶8 A trial was held in August of 1991. Testimony established that Troy had lived with Linda since the divorce. Ronnie had paid $200 per month child support to Linda until April of 1987, when Troy turned eighteen. At this point, Ronnie had discontinued paying child support, and removed his son as beneficiary of his life insurance policy. Ronnie testified that he and Linda were under the impression Ronnie was not required to pay child support beyond Troy's eighteenth birthday.

¶9 Ronnie and Linda were both employed as vocational counselors by Mississippi Gulf Coast Community College. As a benefit of his parents' employment, Troy attended college at Gulf Coast for a fee of $35.00 a semester, plus the costs of books and supplies. Troy began attending school at the Gautier campus in the fall of 1987. He worked part-time throughout the year and, at the time of trial in 1991, Ronnie had not contributed at all to Troy's college education. Ronnie's defenses were that no demand for college expenses had ever been made by Troy or Linda, that Troy's academic performance was poor, and that relations between father and son were strained.

¶10 The chancellor issued a written ruling in September 1991, and entered final judgment on April 21, 1992. In his ruling and final judgment, the chancellor made the following findings:

(1) Ronnie had failed to pay child support since Troy was eighteen years of age, and was in arrears in the amount of $1,440. The chancellor allowed credit for the monies withdrawn from Troy and his grandfather's joint account.

(2) Ronnie and Linda would each be required to pay one-half of Troy's college expenses;

(3) Ronnie, prior to Linda's purchase of his one-half interest, had satisfied all monthly obligations with regard to the marital home.

(4) Ronnie had failed to maintain Troy as a beneficiary of his life insurance policy.

(5) Linda had incurred joint liability on the purchase of Lots 250 and 251. The chancellor failed to order Ronnie to convey an interest to Linda; rather, the chancellor found that a constructive trust had been created in favor of Linda. Linda was granted a lien in the amount of $4,650 with interest, and Ronnie was given credit for $398.82 in property taxes, which sum was used as a setoff.

(6) Ronnie's counterclaim was dismissed, and the 1984 divorce decree was modified so as to allow each party the right to file suit for partition of Lot 252, and a 2.4 acre contiguous plot.

(7) Linda was awarded $1,000 in attorney's fees and Ronnie taxed with costs of court.

¶11 In the final judgment, the chancellor awarded Linda a total sum of $6,177.50, plus interest, as follows: $1,440 as child support arrearage; $87.50 as Ronnie's one-half share of the college expenses incurred by Troy during the first five (5) semesters of college; and $4,650 for mortgage payments and taxes made by Linda in satisfaction of the indebtedness

on Lots 250 and 251 of Westgates Estates.

DISCUSSION OF THE ISSUES

¶12 Our scope of review in domestic relations matters is limited by the familiar substantial evidence/manifest error rule. Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990).

¶13 "This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). See also Faries v. Faries, 607 So.2d 1204, 1208 (Miss.1992). In other words, "[o]n appeal [we are] required to respect the findings of fact made by a chancellor supported by credible evidence and not manifestly wrong." Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). See also Dillon v. Dillon, 498 So.2d 328, 329 (Miss.1986). This is particularly true "in the areas of divorce and child support." Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989).

I. THE CHANCELLOR WAS MANIFESTLY WRONG IN ALLOWING HUSBAND CREDIT FOR MONIES THAT HIS SON RECEIVED FROM AN ACCOUNT IN WHICH THE SON AND HUSBAND'S FATHER WERE JOINT OWNERS.

¶14 We disagree with the chancellor's decision to allow the father credit for child support from funds of the paternal grandfather and the child. It is unthinkable to attribute money which legally belongs to the child of this marriage to the father as child support payment. The record demonstrates that the chancellor was in error in crediting Ronnie Mizell with payment of child support out of money that in part already belonged to the child, Troy.

¶15 The divorce decree, entered on July 18, 1984, ordered Ronnie Mizell to pay the sum of $200 per month in child support for their son Troy. Ronnie was legally obligated to comply with this court order. Ronnie Mizell did not dispute the fact that he had made no child support payments on behalf of his son between the period of April 1987 and April 1990. Further, the testimony revealed that the sum of $160 per month was paid to Troy by Cleveland Mizell, the father of Ronnie and the grandfather of Troy, between April 10, 1987, to April 9, 1990. This money was paid to Troy from a joint account belonging to Cleveland and his grandson, Troy. The total sum paid out of this account amounted to $5,760. Ronnie was ordered to pay the balance of the deficit over 36 months (36 mos. X $40) in the total amount of $1,440. The testimony was conflicting as to the purpose behind Cleveland forwarding the $5,760 to Troy, i.e., whether it was intended to account for Ronnie's arrearage or whether it was intended for some independent purpose. Clearly, the payment of $160 for 36 months depleted funds to which Troy was legally entitled to: in simple terms, at least $80 of the $160 paid per month was Troy's money and could not be used as child support from his father, Ronnie Mizell. Had Ronnie rightfully paid his child support obligations, Troy's interest in the joint account would not have been diminished.

¶16 Furthermore, the testimony developed at trial alludes to the fact that the money contained in the joint account derived from Troy's paternal grandmother and that Cleveland Mizell, the grandfather, was well aware of the fact that Troy could withdraw the entire sum from the account once he reached age eighteen.

¶17 The chancellor relied...