Morreale v. Morreale

• Decision Date: 31 March 1994
• Docket Number: Nos. 90-CA-00702,90-CA-01046,s. 90-CA-00702
• Citation: 646 So.2d 1264
• Parties: Martin MORREALE v. Janice MORREALE. Martin MORREALE v. Janice MORREALE (MARGIOTTA).
• Court: Mississippi Supreme Court

Page 1264

646 So.2d 1264

Martin MORREALE v. Janice MORREALE.

Martin MORREALE v. Janice MORREALE (MARGIOTTA).

Nos. 90-CA-00702, 90-CA-01046.

Supreme Court of Mississippi.

March 31, 1994.

Opinion Granting and

Denying Rehearing Dec. 21, 1994.

Martin Morreale, pro se.

Jack Parsons, Parsons & Taylor, Wiggins, for appellee.

Before PRATHER, P.J., and BANKS and McRAE, JJ.

McRAE, Justice, for the Court:

This is a consolidated appeal from three judgments of the Hancock Chancery Court stemming from unpaid child support, house payments and other obligations entered on May 21, 1990, August 17, 1990, and September 5, 1990, against Martin Morreale [hereinafter referred to as "Martin"]. Thereafter, Martin appealed the three judgments awarded to his ex-wife Janice Margiotta [hereinafter referred to as "Janice"], and while Martin assigned ten issues as error, only five merit discussion. They are as follows:

I. Whether the chancery court's judgment of May 21, 1990, holding Martin in contempt for failing to pay child support and other obligations and awarding Janice a judgment for $82,119.86, was erroneous.

II. Whether the chancery court's judgment of May 21, 1990, voiding Martin's deed of future interests in certain real property to his mother and sister, was erroneous.

III. Whether the chancery court's judgment of August 17, 1990, ordering a Sheriff's sale of Martin's future interest in real property and ordering that proceeds from the sale, over and above amounts owed to Janice, should be withheld from Martin and kept in the registry of the court, was erroneous.

IV. Whether the chancery court's judgment of September 5, 1990, approving the Sheriff's report and confirming the Sheriff's Sale, without allowing Martin's attorney to object and without holding a hearing, was erroneous and a violation of Martin's right to due process of law.

V. Whether the total effect of all judgments taken together are oppressive, unreasonable and inequitable.

On cross-appeal, Janice raises the following issue:

VI. Whether the lower court erred in failing to grant attorney's fees to her in the May 21, 1990, judgment.

Finding no merit in Martin's appeals, but also finding that Janice is entitled to attorney fees, we affirm both direct appeals and reverse on cross-appeal and remand for a determination of attorney fees.

Four outstanding motions were reserved for ruling until this Court considered the case as a whole on the merits. Martin seeks to (1) supplement the record with the transcript of the bench conference held September 5, 1990, in which there was no transcript; (2) offer his then attorney's affidavit concerning the proceedings of September 5, 1990, into evidence; and (3) reconstruct the lower court's file in its entirety since the original file could not be found. Janice asks this Court to strike portions of Martin's brief which do not comply with Mississippi Supreme Court Rules 28(e) & 30(a).

All four motions are denied. Martin filed an affidavit from his attorney regarding the events of the September 5, 1990, proceedings. Martin, however, did not timely file the affidavit pursuant to Mississippi Supreme Court Rule 10(c) and was the last person to have had the missing file. There exists no transcript of the conference, and such an affidavit would have little probative value.

FACTS

Martin insists that Janice, with the assistance of the court, took the gold mine and left him the shaft. On May 21, 1990, the Hancock Chancery Court found Martin in contempt of court for failing to pay child support to Janice stemming from their 1987 divorce. The court found him to be in total arrearage of $82,119.86. This judgment also set aside Martin's deed of his future interest in two parcels of land granted to his mother and sister, finding it was given without consideration and fraudulent. The court held that the deed was conveyed with the obvious intent to prevent Janice from collecting any sums that may be due to her by Martin. The lower court cancelled the deed and held it for naught. Martin was joined in the appeal of the May 21, 1990, judgment by his mother and sister; however, they have withdrawn their appeal. On July 23, 1990, by special writ of execution the chancery court judge ordered Martin's interest in the two parcels of land located in Hancock County be sold by the Sheriff of Hancock County. On August 9, 1990, Janice filed a lis pendens notice to the Clerk of the Hancock Chancery Court.

Subsequently, on August 17, 1990, the Hancock County Chancery Court again found Martin in wilful contumacious contempt of court stating that he had good and valuable assets with which he could pay child support and awarded Janice $5,550.00 for delinquent child support and attorney fees. This constituted an additional judgment against Martin and was added to the earlier judgment of $82,119.86. The court also ordered that the proceeds from the sale of Martin's real property interest be placed in the registry of the Court as a cash bond for future child support and granted Janice a lien on the real property. On the same day, the sale was conducted, and Jacob Morreale, Martin's brother, purchased Martin's undivided interest in the parcels for $165,000.00.

On September 5, 1990, the Court entered its judgment approving and confirming the sheriff's execution sale and ordered that $90,520.46 be paid to Janice in satisfaction of the judgments with the remaining funds being placed in the registry of the court to pay future child support. Thereafter, Martin perfected his appeal for the judgments entered on August 17, 1990, and September 5, 1990. Martin has attempted to raise numerous issues which were adjudicated many years ago. Martin had previously filed a motion for reconsideration arguing he was totally unable to pay the amounts ordered in the judgment for child support, alimony and other expenses. The chancellor, however, found that although Martin did not have a job at the time of the divorce, he received seven hundred dollars a month from a rental unit and had a one-half future interest in several coast properties. No appeal was taken from the chancellor's denial of Martin's motion for reconsideration. The issues Martin presents pertaining to the earlier judgments are not addressed as they were not timely filed. The issues which were timely filed but not addressed by this Court were either presented with no authority or were never addressed.

STANDARD OF REVIEW

This Court will not disturb a chancellor's findings where there exists substantial evidence in the record to support his judgment. Omnibank of Mantee v. United Southern Bank, 607 So.2d 76, 82 (Miss.1992). In Smith v. Smith, 545 So.2d 725 (Miss.1989), this Court expounded:

Findings of fact made by a chancellor may not be set aside or disturbed on appeal unless manifestly wrong; this is so whether the finding relates to evidentiary or ultimate fact question ... With respect to issues of fact where the chancellor made no specific finding, this Court proceeds on the assumption that the chancellor resolved all such fact issues in favor of the Smith, 545 So.2d at 727. See Carr v. Carr, 480 So.2d 1120, 1122 (Miss.1985); Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983). Issues of law presented to this Court, however, are provided de novo review. UHS-Qualicare v. Gulf Coast Community Hospital, 525 So.2d 746, 754 (Miss.1987).

appellee, or at least in a manner consistent with the decree.

DISCUSSION OF LAW

I. Was the chancery court's judgment of May 21, 1990, holding Martin in contempt for failing to pay child support and other obligations and awarding Janice a judgment for $82,119.86, erroneous?

Once a plaintiff establishes an indebtedness, to avoid contempt, the defendant must show his "inability to pay the support ... or ... give a reasonable excuse for not doing so." Rhodes v. Rhodes, 420 So.2d 759, 760 (Miss.1982). We have stated:

In such a posture, the defendant may avoid a judgment of contempt by establishing that he is without present ability to discharge his obligation. Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 493 (1921). The defendant has the burden of proving his inability to pay. Redding v. Redding, 167 Miss. 780, 150 So. 776 (1933). Such a showing must be made with particularity and not in general terms. Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967).

Clements v. Young, 481 So.2d 263, 271 (Miss.1985). Martin claims that the amount for which the future interest was sold was far below the value of such interest as shown by the appraiser's testimony. The interest netted approximately $160,000.00 after all expenses were paid. Obviously, Martin did have the means with which to pay his indebtedness. He admitted to having the ability to pay; he simply choose not to pay. We have stated that "contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than are we." Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990). See Milam v. Milam, 509 So.2d 864, 866 (Miss.1987); Walters v. Walters, 383 So.2d 827, 829 (Miss.1980). Because no manifest error has been shown, the contempt charges entered on May 21, 1990, against Martin are affirmed.

II. Was the chancery court's judgment of May 21, 1990, voiding Martin's deed of future interests in certain real property to his mother and sister, erroneous?

The May 21, 1990, judgment set aside Martin's deed of August 5, 1987, which granted his future interest in two parcels of land to his mother and sister finding it was given without consideration and fraudulent. Parcel one as set out in the purported deed was executed by Martin and his sister, Patricia Garriga, and attempted to convey a life estate to their mother with the remainder interest being vested in Martin's sister. Parcel one was deeded to Martin and his sister by their mother on August 23, 1985, reserving unto the grantor a life...