Peeples v. Yarbrough, 55674
| Decision Date | 04 September 1985 |
| Docket Number | No. 55674,55674 |
| Citation | 475 So.2d 1154 |
| Parties | Karen W. PEEPLES v. William Stephen YARBROUGH. |
| Court | Mississippi Supreme Court |
Joe Lee Tennyson, Charleston, for appellant.
D. Donald Musgrove, Smith & Musgrove, Batesville, for appellee.
Before WALKER, HAWKINS and PRATHER, JJ.
This appeal raises two issues: (1) a pleading procedure inquiry of whether an answer is necessary on a contempt citation and (2) the propriety of restrictions on garnishment rights. Mrs. Karen W. Peeples filed a "motion" for contempt citation for non-payment of child support against her ex-husband, William Stephen Yarbrough. The Chancery Court of Yalobusha County granted Mrs. Peeples a monetary judgment, but declined incarceration of the defendant father. The court did, however, place restrictions on the mother's legal rights to garnishment of the father's wages, which order gave rise to this appeal.
Appellant, Karen Peeples, appeals and assigns as error the following:
(1) The court erred in allowing counsel for appellee to assert ore tenus, affirmative defenses on the morning of the hearing.
(2) The court erred in continually and consistently refusing to grant unto appellant any relief from appellee's continual and consistent acts of contempt in flaunting and disregarding the orders of the court.
(3) The court erred in unduly restricting appellant in the execution of the judgment granted to her by threatening inter alia to reduce the court ordered sum of child support by the amount obtained through garnishment on the wages of appellee.
Karen W. Peeples and William Stephen Yarbrough were divorced in August, 1981, through a joint bill of divorce. Mr. Yarbrough was originally ordered to pay $150 per month for the support of two children. Subsequently, Mr. Yarbrough was held in contempt on five separate occasions from June, 1982, through December, 1982, for failing to make his child support payments.
The case sub judice is an appeal taken from a sixth hearing, held in August, 1983, to determine whether Mr. Yarbrough should once again be held in contempt of court.
At the hearing on the motion for citation for contempt and modification of decree, Yarbrough filed no responsive pleading, but instead, appeared with counsel to defend. Yarbrough was allowed to ore tenus categorically deny the relief sought. After Yarbrough's verbal denial, Peeples moved for judgment on the pleadings on the basis that her motion had not been denied in writing. The motion for judgment on the pleadings was overruled.
Next, Peeples contended that Yarbrough had made only a categorical denial and thus could not assert any affirmative defenses. But Yarbrough was allowed to amend his ore tenus response and assert verbally the affirmative defense of "inability to pay." Mr. Yarbrough testified concerning his declining financial condition; he has remarried and now has three stepchildren. Yarbrough testified that he had experienced difficulty in finding employment and consequently had been unable to make his child support payments. However In reaching his decision the chancellor acknowledged the difficulty Mr. Yarbrough had encountered in finding a job and recognized that since Mr. Yarbrough had been employed he had made regular payments of current and past due child support.
since Yarbrough started working in April of 1983, he had made timely payments of $150 for current child support and $50 for past child support. Yarbrough made those payments up until August, 1983, the hearing date.
The chancellor's order gave Mrs. Peeples a judgment for $1,769.50 in past child support. In addition, the chancellor ordered Mr. Yarbrough to continue paying $150 current monthly child support and an additional $50 toward the retirement of the judgment. The order specified, however, that if Mrs. Peeples sought to levy on the judgment by filing for garnishment, Mr. Yarbrough would only be required to pay, in child support, the difference between what the garnishment produced and two hundred dollars.
Did the court err in allowing counsel for appellee to assert ore tenus, affirmative defenses on the morning of the hearing?
The style of the pleading before us is "motion" for citation for contempt. This nomenclature is permitted for the substantive relief of non-support contempt citation in domestic relations cases under our present Mississippi Rules of Civil Procedure 81(d). MRCP 81(d) uses the terminology of "complaints, petitions, or motions." Some confusion has arisen from the use of the term "motion" in this type of action where there is a hearing on the merits, as is true here. The confusion arises from the definition of a motion in chancery practice as defined in Griffith's Mississippi Chancery Practice. Motion practice consists of "a short and succinct proposal or suggestion bringing an interlocutory matter to the attention of the court for its action." Griffith, Mississippi Chancery Practice Sec. 400, at 389 (1950). Generally, a motion suggests a subject to the court in the progress of a case which requires an interlocutory rule or order. Griffith, supra. "No written response to a motion or to its supporting affidavits is necessary." Griffith, supra, Sec. 407, at 396 (1950).
This confusion has been eliminated by a recent amendment to Rule 81. 1
In the case sub judice, the chancellor looked through the technical labels and Procedure in contempt.-- When a party has been commanded by a decree or order personally to do or refrain from doing a specified act and he disobeys the mandate, the practice is to file in the cause a motion supported by affidavit, or preferably a verified petition, clearly Griffith, supra, Sec. 667, at 735 (1950).
terminology of this pleading to its substance and applied the procedure dictated by Griffith to contempt proceedings stating the facts, and if filed by a private party that the party has been injured, and how, by the acts constituting the alleged contempt, unless the injury sufficiently appears within the facts of the principal statement; upon which, if sufficient, a rule will be granted by the chancellor, under which a citation will be issued by the clerk, notifying the alleged contemnor to appear at a reasonable time and place, as fixed in the rule granted, to show cause why he should not be adjudged in contempt. When the alleged contemnor appears he must do so by sworn answer, or else he must tender himself personally for examination. If he do neither the petition will be taken as confessed. He may not appear simply by solicitor and raise technical questions; ...
Therefore, it was not necessary that the answer be in writing. The chancellor acted properly in permitting an oral dictation of the defendant's answer into the record and requiring that it be reduced to writing for appeal purposes. This Court does not have before it the issue of a request for thirty days time within which to file an answer under MRCP Rule 12. That situation is not addressed in this opinion.
Additionally, appellant asserts that it was improper to permit defendant to amend and allow the affirmative defense of inability to pay. Such a defense is proper in a contempt case. Griffith, supra, Sec. 669, at 668.
Rule 15 of the Mississippi Rules of Civil Procedure states in part, "[O]therwise a party may amend his pleadings only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires." [Emphasis added].
Likewise, Miss. Code Ann. Sec. 11-5-53 (1972) states, "Amendment shall be allowed in the pleadings and proceedings, on liberal terms, to prevent delay and injustice." A recent Mississippi case construing Miss. Code Ann. Sec. 11-5-53 (1972) held, "[I]t is a familiar rule that amendments to pleadings are liberally allowed and ... pleadings may be reformed to conform to the proof." Deposit Guaranty National Bank v. Biglane, et al, 427 So.2d 945, 950 (Miss.1983). In the Biglane opinion this Court stated: "The matter is properly addressed to the discretion of the chancellor." Id.
The chancellor in the case sub judice was clearly exercising his discretion and, in this Court's opinion, was not in error in permitting an ore tenus dictation into the record of the defendant's response which contained a proper affirmative defense.
Did the court err in continually and consistently refusing to grant unto appellant any relief from appellee's continual and consistent acts of contempt in flaunting and disregarding the orders of the court?
Appellant, under her second assignment of error, seeks redress for a course of conduct occurring prior to the hearing from which this appeal was taken. In making reference to the five previous contempt orders issued against appellee, appellant contends the chancery court had a duty to grant appellant relief by incarceration of the defendant. The chancery court may find a person in contempt but still decline to incarcerate the contemner. Brown v. Gillespie, 465 So.2d 1046 (Miss.1985).
This Court affirms the chancellor's action in this regard since the trial court was within its discretion.
Did the court erred in unduly restricting appellant in the execution of the judgment granted to her by threatening inter alia to reduce the court ordered sum of child support by the amount obtained through garnishment on the wages of appellee?
Under the order appellant was to receive a total of $200 per month. One hundred fifty dollars was to be for current child support and $50 was to be for an installment payment toward the retirement of the $1,769.50 judgment. The order stated that However, the question of law in this situation should be whether the chancellor abused his discretion in circumventing Mrs. Peeples statutory right to use garnishment. Under the statutes governing practice in the chancery courts, Miss. Code Ann. Sec. 11-5-81, (1972) provides:
if Mrs. Peeples chose to use garnishment to collect the $1,769.50 judgment, the...
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