Riser v. Peterson, 89-CA-0187
| Decision Date | 22 August 1990 |
| Docket Number | No. 89-CA-0187,89-CA-0187 |
| Citation | 566 So.2d 210 |
| Parties | Linda Peterson RISER v. Don G. PETERSON and The State Department of Human Services (formerly State Department of Public Welfare). |
| Court | Mississippi Supreme Court |
Jimmy D. Marshall, Jackson, for appellant.
Elizabeth S. Majure, Canton, for appellee.
Before ROY NOBLE LEE, C.J., and SULLIVAN and ANDERSON, JJ.
Linda Riser is the former wife of Don Peterson and the mother of two minor children who are in the custody of Peterson. Riser was ordered by the Chancery Court of Madison County to pay the sum of $150.00 per month in child support to Peterson for the use and benefit of the two minor children.
Peterson filed a Petition for Citation of Contempt against Riser for failure to pay child support and a hearing was held on August 3, 1988. At that hearing the chancellor found that Riser had not made any payments from June 1, 1985, to April 1, 1988, and awarded a judgment to Peterson in the amount of $4,800.00, plus interest.
The chancellor further found that Riser's failure to pay was willful and held her in civil contempt of court and ordered her to be placed in the Madison County Jail. Incarceration was suspended and the cause continued until September of 1988, at which time the chancellor scheduled a hearing to determine if Riser had complied with the court order by that date. If Riser had failed to purge herself of contempt by that time, the suspension was to be withdrawn.
At the August hearing Riser had offered no evidence of inability to pay the child support.
At the hearing on September 2, 1988, Riser did not assert that she had paid the judgment but did attempt to put on evidence of her inability to pay as of September 2 as a defense not to the contempt but to incarceration.
The chancellor interrupted the examination of Riser and stated that he had already determined at the first hearing the question of her ability to pay and that the purpose of the September hearing was to find out if she had paid or not and nothing else. Foreclosed from establishing any proof of inability to pay and unable to present proof that the judgment had been paid, Riser was ordered incarcerated in the Madison County Jail.
We do not know how to over-emphasize that the law in Mississippi is INABILITY TO CURRENTLY DISCHARGE AN OBLIGATION IN A CIVIL CONTEMPT CASE IS A DEFENSE TO A JUDGMENT OF CONTEMPT. The defendant does have the burden of proving inability to pay and that showing must be in particular terms. Newell v. Hinton, 556 So.2d 1037 (Miss.1990).
On appeal, Riser alleges that she was entitled to show her inability to pay at the hearing on September 2. Peterson argues that Riser's obligation to show inability to pay, if in fact she chose that as a defense, had to have been shown at the first hearing in which she was found to be in contempt.
Peterson is wrong. Inability to pay to avoid incarceration is a continuing defense as imprisonment does not accomplish the purpose of the civil contempt decree. It merely punishes. Had Riser failed to put on proof of inability to pay at the August hearing and the chancellor ordered her incarcerated immediately, Riser would have no legal grounds to complain. However, had she been incarcerated in August and in September petitioned the Chancery Court of Madison County to be released from incarceration on the basis of inability to...
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Sickler v. Sickler
...v. United States, supra note 37 ). See, also, Turner v. Rogers, supra note 37 ; Hicks v. Feiock, supra note 37.44 Riser v. Peterson, 566 So.2d 210 (Miss.1990). See, also, Allen v. Sheriff of Lancaster Cty., supra note 33 ; Com. v. Ivy, supra note 43 ; Turner v. Rogers, supra note 37 ; Hicks......
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Gebetsberger v. East, 92-CA-0461
...Newell v. Hinton, 556 So.2d 1037, 1042 (Miss.1990). See also Caldwell v. Caldwell, 579 So.2d 543, 546 (Miss.1991); Riser v. Peterson, 566 So.2d 210, 211 (Miss.1990); Jones v. Hargrove, 516 So.2d 1354, 1457 (Miss.1987); Clements v. Young, 481 So.2d 263, 271 Therefore, in the case at bar, the......
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Kennedy v. Kennedy, 92-CA-1168
...So.2d at 826; Newell v. Hinton, 556 So.2d 1037, 1042 (Miss.1990); Caldwell v. Caldwell, 579 So.2d 543, 546 (Miss.1991); Riser v. Peterson, 566 So.2d 210, 211 (Miss.1990). Elton seeks to have this Court overrule the chancellor's finding of contempt by arguing that he was without the present ......
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Howard v. Howard, 2003-CA-01129-COA.
...pay the $10,000 in April 2003, the court must, upon proper motion, revisit the issue at the time the order is executed. In Riser v. Peterson, 566 So.2d 210 (Miss.1990), the Chancery Court of Madison County found the mother of two minor children in contempt for failing to pay child support b......