Polk v. Polk

• Decision Date: 06 November 1991
• Docket Number: No. 90-CA-0684,90-CA-0684
• Citation: 589 So.2d 123
• Parties: Erma J. POLK v. LaPlause POLK.
• Court: Mississippi Supreme Court

Page 123

589 So.2d 123

Erma J. POLK v. LaPlause POLK.

No. 90-CA-0684.

Supreme Court of Mississippi.

Nov. 6, 1991.

Appeal No. 16525 from Judgment dated July 13, 1990, E.G. Cortright, Ruling Judge, Holmes County Chancery Court.

Leman D. Gandy, Greenwood, for appellant.

Sally Barrett, Barrett Law Offices, Lexington, for appellee.

Before HAWKINS, P.J., and PITTMAN and BANKS, JJ.

PITTMAN, Justice, for the Court:

Erma Polk appeals from a judgment of the Holmes County Chancery Court, which involved both disbursement of funds from the partition sale of the home she and LaPlause Polk had once owned, and consideration of Erma's petition to modify the original decree of divorce from LaPlause. After two separate hearings the chancery court divided some of the personal property at issue, and made certain deductions from both parties' sale proceeds, but otherwise left custody and child support as it had been after the original divorce judgment. We affirm as to the disbursement of funds, but reverse and remand on the matter of custody and child support.

I.

On April 13, 1987, Erma J. Polk filed a complaint for divorce against her husband, LaPlause Polk, on the ground of desertion. LaPlause answered and counterclaimed against Erma for divorce on the ground of habitual cruel and inhuman treatment. On January 5, 1988, the Holmes County Chancery Court granted a divorce to LaPlause Polk. Marcus and Darien Polk remained in the custody of their father, LaPlause. Kawanis Polk, the daughter of the parties, remained in the custody of her mother. ¹ Neither party was required to pay child support to the other party. Erma and LaPlause each owned an undivided one-half interest in the family home, located in the Thurmond Subdivision in Holmes County. The court found that the property was not susceptible of division, and granted LaPlause's request for partition. The trial court's judgment was subsequently affirmed by this Court. Polk v. Polk, 559 So.2d 1048 (Miss.1990). The lower court named Joe Moore, chancery clerk, special commissioner and directed him to sell the property to the highest bidder on February 5, 1988.

The sale did not take place until May 27, 1988. LaPlause Polk bid $30,000.00 and the property was sold to him. Because of Erma's pending appeal to this Court, the chancery court held the $30,000.00 in the court registry until the appeal could be resolved.

Polk v. Polk was decided on April 11, 1990. On May 1, 1990, LaPlause Polk filed a Motion for Disbursement of Funds and Other Relief. LaPlause asked the chancery court to finally disburse the funds from the sale of the home. He alleged that Erma had continued to live in the house in question since June 8, 1988. He asked that the court evict her from the house, and deduct from her share of the sale monies in an amount equal to a reasonable amount of rent for the months she had lived in the family home since LaPlause had bought it at auction. This motion was noticed for hearing on May 22, 1990.

On May 9, 1990, Erma Polk filed a Cross-Motion for Disbursement of Funds and Other Relief. She alleged that Marcus Polk had been living with her since June 20, 1989, despite the court granting custody of Marcus to his father, LaPlause. She asked that LaPlause be ordered to pay child support for the months that Marcus had lived with her. Erma further alleged that at the time LaPlause left the family home $4,267.45 was due on the mortgage. Erma alleged that she paid off this balance, and she asked that LaPlause be ordered to reimburse her. She further alleged that she had paid the property taxes on the family home from 1985 to 1989, in the amount of $693.93, and asked that LaPlause be ordered to reimburse her for this amount. She alleged that she had paid delinquent utility bills in the amount of $465.00 after LaPlause had left and that he should be ordered to reimburse her for that amount. She finally asked that, because she had legal custody of Kawanis and physical custody of Marcus, she be awarded sole use and possession of the family home and all the household furniture and appliances. Apparently, no notice was given as to when the cross-motion would be called up.

On May 22, the parties appeared for the hearing. After some discussion, the following exchange took place:

BY THE COURT: The court in conference with counsel a few moments ago was advised that Mr. Barrett was willing to accommodate Mr. Gandy in the hearing of the cross motion by hearing the same on this day provided it did not delay the hearing of the motion filed by Mr. LaPlause Polk. The court advised the parties that it had another case set for one o'clock which would take precedent over this case, but that the court in an attempt to accommodate the parties would be willing to hear the motion of LaPlause Polk first and then move into the cross motion with the view to completing it before one o'clock or at least trying it until one o'clock. This offer by the court carried with it the implication that the court would stop a few minutes for the lunch hour. Without reciting the long history of this case, which includes a Supreme Court appeal and several contempt proceedings regarding the subject matter of that appeal, the court feels that the said LaPlause Polk is certainly entitled to proceed today on his motion and that it should be disposed of or at least addressed by the testimony before the cross motion is heard or testimony begins. That will be the order of procedure fixed by the court. If there is any response that either one wants to make in regard to the truth or the accuracy of what I have just stated, I will be glad to let you preserve your position in the record. Mr. Barrett?

BY MR. BARRETT: We have no response.

BY THE COURT: Mr. Gandy?

BY MR. GANDY: Your Honor, it is my understanding that in the event time does not permit, would it be continued for us to come back and present our cross motion at a later date?

BY THE COURT: Oh, yes, sir. I would let you come back as soon as I could find a convenient time and complete your motion. Yes, sir.

BY MR. GANDY: Would the court, in order to preserve time, if we have additional pleadings and can get ample process for it, hear other matters regarding this at the same time?

BY THE COURT: I would certainly try to accommodate you if there are other issues involved. I would try to hear it all on that subsequent day--sure.

BY MR. GANDY: Thank you, sir.

LaPlause Polk testified that Erma Polk had been living in the house in the Thurmond Subdivision since June 1988, and was still living there despite various requests and court orders. Erma Polk had paid no rent since June of 1988, when LaPlause had gotten the deed to the house. LaPlause was currently living in the house his deceased parents had owned. He claimed to be paying rent, or providing in-kind maintenance services on the house. LaPlause admitted that his son, Marcus, was living with Erma.

Renee Taylor had been a realtor for about four and a half years in Tchula and in Lexington. In her opinion, a reasonable monthly rental was in the $200.00-$250.00 range.

Erma Polk testified that she was still living in the house in the Thurmond Subdivision and intended to stay there until she received her share of funds from the partition. She agreed that she had seen certain papers, containing derogatory statements about LaPlause, which were signed and allegedly written by their daughter, Kawanis, but Erma had nothing to do with the preparation of the papers.

Both sides rested, as the trial court reiterated that the proceeding concerned only the motion that had been called up for that day, LaPlause Polk's motion. Counsel for Erma Polk announced his intention to file additional pleadings and consolidate those with the cross-motion for disbursement already filed. Later that day the court issued two orders, one setting Erma Polk's cross-motion for a hearing on June 11, and the other taking LaPlause Polk's original motion under advisement.

On May 30, 1990, Erma Polk filed a Petition for Modification of Prior Judgment. She alleged that she had legal custody of Kawanis Polk, as well as actual physical custody of both Kawanis and Marcus Polk, and that a material change in circumstances had occurred, such that she should have legal custody of both children. She asked that LaPlause be ordered to pay child support for both children. She also asked for use and possession of the house in Thurmond Subdivision, as well as the household furniture and supplies. She also asked that LaPlause obtain medical insurance for the children, and that she be allowed to claim the two children as dependents for tax purposes. Erma also moved to consolidate her cross-motion and the petition for modification for the purpose of hearing both at one time.

On June 1, 1990, the lower court rendered judgment on LaPlause Polk's motion for disbursement of funds. The court found that the funds should be disbursed to LaPlause and Erma, with $4600.00 being deducted from Erma's share, that being made up of a reasonable monthly rent, $200.00, times the number of months, twenty-three, that Erma remained in the house past the time LaPlause had bought it at auction. The court further found that Erma Polk's behavior in refusing to leave the house would have justified punitive damages. Because of this, the court awarded $430.00 in attorney's fees. Lastly, the court ordered that Erma and her possessions be removed from the house.

Court reconvened on June 11 to hear Erma Polk's cross-motion and her petition for modification. LaPlause Polk was called as an adverse witness. LaPlause worked as a school teacher in Holmes County. He testified to a gross monthly salary of $1982.58 and a net monthly salary of $1359.78. LaPlause said that he had taken Marcus to Erma's house for Marcus' birthday on June 20, 1989, and then Marcus had failed to come home. LaPlause denied that he had been told that Marcus didn't want to come home, saying that he had been told only to contact his...