Premeaux v. Smith, 89-CA-0377

CourtUnited States State Supreme Court of Mississippi
Citation569 So.2d 681
Docket NumberNo. 89-CA-0377,89-CA-0377
PartiesBecky Thomas Smith PREMEAUX v. James Thomas SMITH, Jr.
Decision Date17 October 1990

Page 681

569 So.2d 681
Becky Thomas Smith PREMEAUX
James Thomas SMITH, Jr.
No. 89-CA-0377.
Supreme Court of Mississippi.
Oct. 17, 1990.

Page 682

Fielding L. Wright, Jr., Pascagoula, for appellant.

Thomas J. Lowe, Jr., E. Michael Marks, Jackson, for appellee.

Before DAN M. LEE, P.J., and PRATHER and ANDERSON, JJ.

PRATHER, Justice, for the Court:

This appeal challenges the sufficiency of proof for imposition of a jail sentence for a criminal contempt finding in the Chancery Court of Jackson County. Becky Thomas Smith Premeaux filed a motion for citation of contempt against her ex-husband, James Thomas Smith, Jr. for non-payment of child support for some fifteen (15) years and totaling approximately $14,000.00 arrearage. The Chancery Court dismissed her motion, finding that the mother was guilty of criminal contempt for "secreting the subject child" from the father. From a sentence of eighteen (18) days in jail and direction to pay $500.00 to her ex-husband's attorney for defense to her motion, Premeaux appeals assigning the insufficiency

Page 683

the proof of criminal contempt beyond a reasonable doubt.


Becky Thomas and James Thomas Smith, Jr. were married in May, 1969. Their marriage was a brief one, as Becky separated from James taking their new born son, James Thomas Smith, III (Jim) and moving to Jackson County, Mississippi, in June of 1971. The couple was granted a divorce in the Chancery Court of Jackson County in December of 1971. The divorce decree gave paramount custody of Jim to Becky and gave reasonable visitation rights to James. James was also ordered to pay $65 a month in child support.

Becky testified that after leaving James in Jackson she lived with her mother for a short period and then moved into her own apartment in Pascagoula, Mississippi. Becky lived there for approximately six months to a year. James knew of her address in Pascagoula.

Becky then moved to Gautier with the father of her second child. James also knew of this address as he actually came to the trailer in which she was living.

In June of 1972 Becky and the children moved into a house in Ocean Springs, where she has lived ever since. James was not given this address as Becky had not heard from him for quite some time. Becky testified that she had not in any way concealed the whereabouts of herself and Jim from James.

James joined the Marine Corps after the divorce and arranged for an allotment of $105.00 per month to be paid to Becky for Jim. The allotment was discontinued after two years at the time of his severance from the armed services. Jim continued to pay $65 a month for approximately another nine months but made no further payments.

James' sole attempt to find Becky after his discharge from the Marine Corps in 1974 was by contacting his ex-mother-in-law. She refused to give James any information of Becky's whereabouts and "threatened" his life and told him to leave Becky alone. James stopped his efforts to locate Becky and Jim.

Jim testified that his mother and other family members talked to him about James and asked if he wanted to see him or call him. Jim has never recognized anyone as his father except James. Jim also testified that he often thought about calling his father and that although he used the name Premeaux in school he always knew that he was a Smith.

In April of 1988, Becky Thomas Smith Premeaux filed a motion to find James Thomas Smith, Jr. in contempt of court for failure to pay child support and to recover arrearages totalling $14,755. The court action was prompted to secure for her son financial assistance for college expenses. James Thomas Smith, Jr. filed his response and affirmative defenses requesting that Becky Thomas Smith Premeaux be found in contumacious contempt of court.

The trial court denied the arrearages and found that Becky Thomas Smith Premeaux set about to deliberately, premeditatedly and effectively cut off contact between the father and the son and adjudged Becky Thomas Smith Premeaux to be in obstinate and contumacious contempt of court. As a result she was sentenced to 18 days in the county jail and ordered to pay her ex-husband's attorney's fees for defense to this action.

The only assigned error on this appeal is whether Becky Thomas Smith Premeaux was properly found guilty of criminal contempt beyond a reasonable doubt. Although this Court may recognize the denial of the arrearages as plain error, it does not address this issue in this appeal.


The factual findings of the chancery court in a civil contempt case are affirmed unless manifest error is present and apparent. However, this appeal addresses a finding of criminal contempt which is punitive in nature, and this Court is not bound by the manifest error rule when reviewing an appeal of a conviction of criminal contempt. Review proceeds ab initio to determine whether on the record the contemnor

Page 684

is guilty of contempt beyond a reasonable doubt. Mabry v. Howington, 569 So.2d 1165, 1167 (Miss.1990) (reversing and discharging defendant of criminal contempt); Cook v. State, 483 So.2d 371, 374 (Miss.1986); Prestwood v. Hambrick, 308 So.2d 82, 84 (Miss.1975).

A citation for criminal contempt is to vindicate the dignity and authority of the court. A citation is proper only when the contemnor has wilfully, deliberately and contumaciously ignored the court. Cooper v. Keyes, 510 So.2d 518, 519 (Miss.1987). Prerequisite is a decree which defines with reasonable specificity what the alleged contemnor must do or refrain from doing. Hinds County Board of Supervisors v. Common Cause, 551 So.2d 107, 119-120 (Miss.1989); Wing v. Wing, 549 So.2d 944, 947 (Miss.1989). The burden of proving the criminal contempt is on the party asserting it. Cook v. State, 483 So.2d 371, 375 (Miss.1986). For a conviction of criminal contempt the guilt of the contemnor must be established beyond a reasonable doubt. Miss.Code Ann. Sec. 11-51-11(4) (Supp.1990); Varvaris v. State, 512 So.2d 886, 888 (Miss.1987) (each element of criminal contempt must be proved beyond a reasonable doubt); Mabry v. Howington, supra, at ---- (defendant must be afforded minimum due process rights) (citing D. Dobbs, LAW OF REMEDIES 97 (1973)); See also Hinds County Board of Supervisors v. Common Cause, 551 So.2d 107, 120-121 (Miss.1989); Common Cause of Mississippi v. Smith, 548 So.2d 412, 414-418 (Miss.1989); Culpepper v. State, 516 So.2d 485 (Miss.1987); Prestwood, supra.

Due process includes notice to the alleged contemnor that she was being considered for criminal contempt. Cook v. State, 483 So.2d 371, 375 (Miss.1986). Here the father James Thomas, Jr. pled the mother's alleged "obstinate, deliberate, and contumacious contempt of this Court for secreting the subject child away from the [father] which denied him visitation rights for eighteen (18) years" only as a defense and affirmative matter to the contempt charge against him. He did not file a cross-bill of contempt against Premeaux, but only prayed for the dismissal of contempt charged against himself. Vol. I, P. 9.

The record does not establish that Becky wilfully, deliberately and contumaciously concealed her whereabouts from James. Becky moved three times after the divorce, but gave James the address the first two times. The third time she did not give him the address because she felt he did not care. Each of the three moves was in Jackson County and the third move has been her permanent residence for the past 16 years.

Becky did not take the initiative in letting James know where she and Jim were. However, there is no evidence in the...

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