R.K. v. J.K.
| Citation | 946 So.2d 764 |
| Decision Date | 04 January 2007 |
| Docket Number | No. 2005-CA-01267-SCT.,No. 2006-CA-00411-SCT.,2005-CA-01267-SCT.,2006-CA-00411-SCT. |
| Parties | R.K. v. J.K. |
| Court | United States State Supreme Court of Mississippi |
Thomas W. Crockett, Jackson, attorney for appellant.
John Benton Clark, Brandi N. Smith, Thomas Ray Julian, Jackson, attorneys for appellee.
EN BANC.
¶ 1. Before this Court are two domestic relations cases which have been consolidated on appeal from the Hinds County Chancery Court. Both cases concern the Property Settlement and Child Custody and Support Agreement (Agreement) between Plaintiff R.K. and Defendant J.K. In the first case, R.K. appeals the November 15, 2004 and February 18, 2005 decisions in which the chancery court required R.K. to resume monthly periodic alimony payments and to pay arrears to J.K. He contends that the court erred (1) in not enforcing the liquidated damages provision, (2) in not enforcing the section allowing him to deduct one-half of his attorney's fees from his monthly alimony payments, and (3) in not granting him relief from those errors under Rule 60(b). J.K. cross appeals the February 2005 decision asserting that the chancery court erred (1) in not finding R.K. in contempt for violating the Agreement and (2) in not awarding her attorney's fees. In the second case, R.K. appeals the February 27, 2006 decision of the Hinds County Chancery Court ordering him to continue child support payments and pay arrears. He argues that the court erred in requiring him to continue child support payments when his minor daughter attends an out-of-state boarding school. We affirm the Chancellor on all issues, except the denial of relief under Rule 60(b), which we reverse. Accordingly, this Court affirms in part and reverses and remands in part.
¶ 2. R.K. and J.K. married in 1976. They had two children, L.K. and B.K., and the family resided in Hinds County, Mississippi until 2001 when the couple separated and R.K. subsequently filed for a divorce. J.K. planted a recording device in R.K.'s car, which recorded R.K. talking during various conversations with other health professionals concerning patients and with lawyers regarding his personal legal matters as well as the matters of others in which he served as a medical expert. Upon learning of these recordings, R.K. filed a Motion for Injunctive and Other Relief and subsequently a Motion to Quash, both in May 2002, to prevent J.K. from ever using or divulging the information on the tapes. Later that May the trial court granted in part R.K.'s motion for injunctive relief instituting a preliminary injunction enjoining J.K. from admitting as evidence any of the recorded communications protected by the doctor-patient privilege. While the court did not quash the recorded communications, the court enjoined J.K. from using any of the recordings until the court determined whether the communications should be quashed pursuant to 18 U.S.C. § 2511(1)(b)(i). R.K. filed a motion to reconsider, which the court denied. Thus, the parties agreed on their own terms as to the regulation of the information on the tapes in the divorce settlement agreement.
¶ 3. The court issued a final judgment of divorce on August 29, 2002 on the grounds of irreconcilable differences, which included the parties' agreement for property settlement and child support. In section 3 of the Agreement, titled "Child Support," R.K. agreed to provide $5,000 monthly in child support for B.K. "as long as [B.K.] lives at home with [J.K.] or until [B.K.] reaches 21 years of age, whichever is first."
¶ 4. Additionally, section 11, titled "Installment Payments," provided in the first paragraph that R.K. would pay J.K. periodic alimony for four months, commencing as monthly payments of $5,000 on September 1, 2002, and thereafter, a lump sum property distribution in monthly payments of $5,000, commencing on January 1, 2003, for 56 months totaling $280,000. The second paragraph of section 11 allowed R.K. to "deduct one half of his cost of defending, settling, or discharging claims arising from his actions which took place prior to the date of the divorce." One of the three types of claims to which this deduction privilege applied was for "any litigation that may arise as a result of J.K.'s instigation, encouragement, or in which J.K. provides assistance, directly or indirectly."
¶ 5. Further, section 19 of the agreement, titled "Additional Covenants," required, inter alia, that J.K.:
(2) will return to [R.K.] all tapes, photos, and any other evidence or material she has in her possession concerning [R.K.]'s or any of his associates' conduct, and all copies, transcripts thereof or other reproductions thereof, (3) will keep confidential and not divulge to anyone any of the content or evidence derived from the use of the materials listed in clause (2), and promptly advise him of any accidental disclosure, (4) agrees not to pursue any litigation, civil or criminal relative to his relationship with other women, and in general will refrain from making any comments to anyone concerning [R.K.'s] alleged marital misconduct, except in counseling which is confidential.
Later in the same paragraph, J.K. and R.K. additionally agreed to the following:
J.K. warrants that she will not divulge the contents of the tapes to anyone ... If Defendant breaches this Agreement in regards to the tapes, she will pay in liquidated damages the greater of (1) all amounts remaining due hereunder, or (2) One Hundred Thousand Dollars ($100,000).
¶ 6. On December 17, 2002, C.G., longtime friend and legal counsel to R.K., filed suit against J.K. for wiretapping fraud alleging that her recordings included his conversations with R.K. On December 12, 2003, J.K. filed a Petition to Re-Open and Modify Divorce Settlement and Court Order for a Limited Purpose in chancery court requesting that the court modify the Agreement in such a manner as to allow her to defend herself. R.K. filed a Motion to Dismiss, Answer to Petition and Counter-claim for Contempt and Specific Performance on March 12, 2004. The counterclaim requested that the court find J.K. in contempt, inter alia, for violating section 19 by disclosing the contents of the tapes and consequently, that the court order specific performance of the liquidated damages provision in section 11, which would require J.K. to forfeit the remaining $215,000 due of the property distribution lump sum. R.K. offered no evidence of his actual damages. The chancery court denied J.K.'s motion on March 31, 2004, finding that the tapes were certainly discoverable but leaving the determination as to whether J.K. could disclose the contents to the federal district court who was in the best position to decide what information was necessary for disclosure in the wiretapping suit. The court did not address R.K.'s counterclaim for breach of contract at that time.
¶ 7. J.K. counterclaimed in federal court against C.G. on April 2, 2004, for conspiracy, abuse of process, and conversion, and R.K. intervened in the suit on April 12, 2004, consequently making him subject to J.K.'s counterclaim as well. On July 7, 2004, J.K. filed in the federal district court a Motion for Partial Summary Judgment as to the admissibility of certain tapes, treated by the court as a Motion in Limine. J.K. asked the court to rule that the Agreement could not be used to prevent her from defending herself in the wiretapping suit. On September 14, 2004, the federal district court granted J.K.'s motion. J.K. was the only person the court was certain knew the content of the tapes, and thus her testimony was crucial in defense to the wiretapping suit. Since the wiretapping suit was based upon the content of the tapes, it was necessary for J.K.'s defense that she be able to discuss the information on the tapes. Thus, the court granted J.K.'s motion, holding that, solely within the context of that trial, J.K. could discuss the tapes in order to defend herself in the wiretapping suit. The court would address matters concerning evidentiary privileges as the need arose. The court did not decide whether J.K.'s arguments could be construed as "uses" or "disclosures" in violation of the Agreement and left that issue to be decided by the chancery court. On February 17, 2005, the jury found that J.K. proved two of her claims, conversion and abuse of process.1 The jury also found that she suffered actual damages as a result of R.K.'s actions and consequently awarded her $242,000.
¶ 8. R.K.'s attorney wrote J.K. a letter in May 2004 stating that he advised R.K. to discontinue monthly property distribution payments in order to recoup his legal fees pursuant to Section 11 of the Agreement. On May 21, 2004 J.K. filed a Motion for Contempt and for Specific Performance of Property Settlement Agreement requesting that R.K. be found in contempt for ceasing monthly property distribution payments and that he be required to provide specific performance of his duty per the Agreement to pay arrears and continue payments.
¶ 9. On November 15, 2004, the chancery court responded to J.K.'s motion for contempt and specific performance and R.K.'s counterclaim for breach of contract. The court found R.K. in contempt for willfully and intentionally violating the Agreement by failing to make the $5,000 monthly payments. The court did not enforce the liquidated damages provision in section 19. She enforced the provision as a termination clause, finding "[J.K.] did not commit a material breach" as any disclosure was for a limited purpose among parties who were already aware of the content, and because of the necessity of participating in her own defense, her breach was not willful and thus not contemptuous. The court was thus unconvinced by R.K.'s argument that he withheld the payments because J.K. violated sections 11 and 19 of the Agreement by divulging the contents of certain tapes and making comments concerning R.K.'s alleged marital misconduct. The court found...
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