Sappington v. Sappington, 42479

• Decision Date: 17 December 1962
• Docket Number: No. 42479,42479
• Citation: 147 So.2d 494,245 Miss. 260
• Parties: Millard Cartwright SAPPINGTON, M. D., v. Virginia Payne SAPPINGTON.
• Court: Mississippi Supreme Court

Page 494

147 So.2d 494

245 Miss. 260

Millard Cartwright SAPPINGTON, M. D., v. Virginia Payne SAPPINGTON.

No. 42479.

Supreme Court of Mississippi.

Dec. 17, 1962.

McCraine & Fox, Houston, for appellant.

Thomas J. Tubb, West Point, for appellee.

McELROY, Justice.

This is an appeal by Millard C. Sappington, M. D., from a decree of the Chancery Court of the First Judicial District of Chickasaw County, Mississippi, holding that the appellant be held in both civil and criminal contempt of court and sentenced to serve ninety days in the county jail.

The bill of complaint stated that on September 16, 1958, the Chancery Court of the First Judicial District of Chickasaw County granted to appellee an absolute divorce from the appellant and custody of their three minor children, and awarded appellee alimony and support money in the sum of $300 monthly and $1,000 as attorney's fee. It further ordered appellant to maintain and keep in force life insurance with the Modern Woodmen of America Life Insurance Company in the sum of $20,000 with their three children as beneficiaries.

Appellee was appellant's second wife. He had a former wife and children in California and after the appellee divorced him, he married a third wife by whom another child was born to him. The third wife no longer lives with the appellant.

On May 19, 1959, on appellee's petition to cite appellant for contempt for failing to comply with the court's decree, a decree was entered adjudicating appellant guilty of civil contempt and awarding to the appellee a money decree in the sum of $1,497.72, and in a second decree continued appellee's petition for further hearing which was continued from term to term until the March 1962 term of the court.

On August 17, 1961, appellee filed her second petition to have appellant cited and held in both civil and criminal contempt of court in that he wilfully refused to comply with the decree of September 16, 1958, and charged that appellant was in arrears in support money and alimony in the sum of $5,906.

The appellant filed his answer to the last petition on September 11, and his plea was his inability to pay more than he had already paid to the appellee under the decrees.

At a hearing during the September 1961 term, a decree was entered awarding appellee a money decree in the sum of $4,050, and continuing the cause for hearing in vacation or the next term of the court on whether or not appellant was guilty of civil and criminal contempt.

A hearing was had at the March 1962 term of court on a petition filed August 7, 1961, and answered by the appellant. A certified public accountant, introduced as a witness for the appellant, stated that he had made up the appellant's accounts as of August 31, 1961, which showed assets, liabilities and an analysis of appellant's bank statements. Another statement was filed covering the period from September 1, 1961, to February 28, 1962. These statements were made by the witness primarily from appellant's bank statements, oral information or statements made to the witness by appellant. Between September 1961, and February 1962, the appellant had purchased medical equipment valued at $12,000. The appellant owned two cars but the auditor's report of August 31, 1961, reflected that he owed $1,500 on one of the automobiles, which automobile was wrecked before February 1962, and was declared a total loss. His insurance paid the debt plus an additional $643.

The appellant's affirmative defense was to the effect that the agreed decree entered on September of 1958 was made in good faith and based on the assumption that his income from his profession would continue in the future as it had in the past. He gave the defendant all of his interest in his home and his interest in a corporation known as the Natchez Trace Clinic. He tried to practice his profession in Houston, Mississippi, until October 1960, when his creditors foreclosed and repossessed his X-Ray machine and other medical equipment. He went to Texas to practice but they would not honor his license in that state. He returned to Tupelo, Mississippi, but was unable to break into the medical practice at Tupelo. On March 1961, by the help of his friends, he opened an office and attempted to establish a medical practice at Baileysville, Mississippi, in Calhoun County, in what is known as the Bailey Hospital. This hospital is owned by Senator Bailey, who through his generosity loaned his credit to the appellant to purchase equipment on conditional sales contracts valued at more than $30,000.

He gave a list of his liabilities, including the contracts and notes he owed, the support and alimony due his wives, what he owed the United States Government for Federal income taxes, taxes due the State of Mississippi and what he owed on his Woodmen of America Life Insurance policy, which liabilities totalled $68,727.68. From the doctor's testimony he was making payments on the $30,000 or more that he owed for his equipment. He owed $3,200 to the G.M.A.C. for an automobile which was later wrecked. In the final settlement for this wreck the doctor received $643, but this was not reflected in his bank account. He was questioned about this settlement and he stated: 'I still have maybe a portion of it in cash.' He made a note for $1,363, which he used for living expenses. He stated he had paid approximately $3,500 in six months for food, clothing and shelter because he had established his home completely, which meant buying furnishings for the house, even though he was not living with his wife at the time. During the same six months period he paid $1,600 towards the support of his children and wives. During the period from February 1961, to August 31, 1961, he spent $2,388 on his personal living expenses and paid to his children and wife the sum of $400.

The opinion of the court stated: 'It is apparent from the admission in the answer that the decree has not been complied with and the question to be determined by this court is whether or not Dr. Sappington is guilty of criminal contempt of this court.

'The evidence shows here that he had expended for his own personal living expenses and in payment of debts made by one of his former wives, and for equipping his home, a sum in excess of $3,000.00. During the same period of time, he has expended for the support of his wife and children, as required by the original decree, the sum of $1,600.00. The witness stated on the witness stand that he had in his possession the major portion of $643.00 that he received in cash as settlement for a wrecked automobile. Taking the testimony before the court, the money that was available to him and the fact that he has had and says now that he has money on hand, it is the opinion of the Court that the defendant here is guilty of criminal contempt, and the Court so holds that Dr. Sappington is guilty of criminal contempt.

'It is with regret that I find it necessary to impose a sentence upon him because his medical practice will cease...