Setser v. Piazza

Citation644 So.2d 1211
Decision Date27 October 1994
Docket NumberNo. 93-CA-00890,93-CA-00890
PartiesPerry Nathan SETSER v. Beverly Marie PIAZZA.
CourtUnited States State Supreme Court of Mississippi

R. Louis Field, Way Field & Bodron, Vicksburg, for appellant.

Travis T. Vance, Jr., Vicksburg, for appellee.

Before PRATHER, P.J. and BANKS and McRAE, JJ.

PRATHER, Presiding Justice, for the Court:

I. STATEMENT OF THE CASE

The parties here were divorced in December, 1980. The mother, Beverly Piazza (Piazza) was granted custody of the two children, Pam and Thomas, and Perry Setser (Setser) was ordered to pay child support of $175.00 per week and certain medical obligations. The Chancery Court of Warren County reduced his obligation for child support to $450.00 monthly in July, 1992.

At the same time, the Chancery Court of Warren County heard Beverly Piazza's motion for citation for contempt and motion to modify the former decree granting the original divorce. The chancellor adjudged, inter alia, that Setser was in contempt for failure to pay child support and was in arrears in the amount of $12,500.00, plus 8% interest; that Pam Lyne Setser, Piazza and Setser's daughter, was emancipated and no longer dependent; that child support to be paid by Setser was modified to $450.00 per month for the parties' minor son; and that Setser pay $1,000.00 of Piazza's attorney fees and all court costs.

Setser paid the August 1992 child support payment of $550.00 to Piazza timely. On advice of his attorney, he then filed for bankruptcy to relieve him of debts other than his house, car, and child support payments. After taking bankruptcy, Hurricane Andrew hit the Florida coast where he lived and destroyed his home, car, house trailer used in his work and all personal effects.

In September, 1992, Setser sought an abatement of the modified child support "until such times as Petitioner has the means by which to comply with the order of the Court," stating as grounds that neither he nor his wife were gainfully employed and that Hurricane Andrew had destroyed all of his real and personal property. Piazza answered Setser's petition and included a counter-petition for citation for contempt. Piazza alleged Setser had violated the 1992 decree in that he was in arrears on the $100.00 monthly arrearage payment in the amount of $500.00, and in the amount of modified child support in the amount of $2,250.00. Piazza also alleged that Setser was gainfully employed and able to pay such child support.

On May 20, 1993, following a hearing, the chancellor entered an order which dismissed Setser's petition for abatement of child support, found Setser in civil contempt and in arrears in child support payments in the amount of $4,050.00. Piazza was awarded a judgment of $4,050.00 plus legal interest and her $1,000.00 attorney fees previously awarded in 1992, but later thought by Setser to be discharged in bankruptcy. Setser was also ordered to pay $350.00 for Piazza's attorney fees in the abatement and contempt matter.

Aggrieved with the chancery court's judgment, Setser appeals to this Court, seeking review of the following issues:

A. Whether the chancery court erred in dismissing Setser's motion for abatement of child support;

B. Whether the chancery court erred in holding Setser in contempt and in awarding Piazza attorney fees; and

C. Whether the chancery court erred in failing to terminate child support in its entirety because of the emancipation of the parties' minor son.

II. FACTS

Setser worked on nuclear power plants and supported refueling outages, traveling all over the United States. His hourly wage was between $25.00 and $35.00 an hour, but his expenses were high due to short term jobs, breaks between jobs, relocation, maintaining two households, and maintaining vehicles capable of taking him wherever his work might be. Still, Setser made between $60,000.00 and $70,000.00 per year. Setser had remarried after his divorce from Piazza, and he and his wife of twelve years, Linda Setser, had no children.

Following the 1992 modification and contempt hearing, Setser consulted an attorney who advised him to file for bankruptcy in order to relieve himself of other debts so he could make his child support payments and keep his home and car. Setser followed this advice, which action ruined his credit according to his testimony. In August, 1992, Hurricane Andrew destroyed everything Setser owned, including the truck he used to travel to his jobs and the camper trailer in which he lived in while working away from home. Although Setser had insurance on his home, the proceeds paid off the debt on his house and $3,000.00 or $4,000.00 more than the payoff amount of his home. Insurance proceeds paid Setser an additional $13,000.00 for five months rent in temporary housing which was paid directly to the housing authority. Insurance proceeds covered his debts on his personal automobile and trailer debt, and he received $6,000.00 insurance proceeds to make repairs to his business truck, which was already paid for. Setser used the $30,000.00 insurance proceeds for his personal property to rebuild his house. Setser personally did the repairs on his home because he could not afford to hire someone else to do it. A neighbor who is a certified electrician helped him with the electrical work. Setser also spent $2,000.00 on a fence to keep his dog from bothering the neighbors.

In early 1993, the Setsers were hit by another storm which ruined the south side of the new roof. Setser described his home as a condemned building, although he and his wife were living in it at the time of the hearing. After the storm, the Setsers furnishings were limited to a living room suite, kitchen table, a bed, a bathtub, and a stove and refrigerator, all of which were purchased with insurance proceeds. Setser was still working on his house at the time of the hearing and claimed he had spent close to the $53,000.00 in total insurance proceeds on it.

Since the storm, Setser had been unable to go back to work because he didn't have a reliable vehicle to get him to job sites. Also, Setser claimed he had lost his networking phone numbers which would have helped him look for a job, although he was checking the newspaper daily. Although he had received insurance proceeds to repair his truck, he had put that money into his house instead. Setser claimed there was no work for his skills in South Florida. Setser could ride a bus to a job site, but had not had any luck in finding any job in his field. He had worked in a FEMA contract position for four months for a tree company as a laborer, earning $7.24 an hour cleaning up storm damage and debris. During this period of employment Setser grossed a little more than $300.00 a week. Setser's wife was employed at the time of the hearing as a secretary, and had been for two weeks, although she had been out of work after the storm for two months.

Setser's personal effects at the time of the hearing were limited to a pair of boots, four pairs of blue jeans, and a pair of pants and a shirt. His and his wife's joint checking account contained $300.00. The only other item owned by the couple was Linda Setser's 1987 or '88 Pontiac Sunbird, for which she had paid between $2,800.00 and $3,000.00 after Hurricane Andrew from the couple's insurance proceeds for their personal belongings.

Setser had been trying to get work since his contract position expired. He planned to check into unemployment when he returned to Florida after the hearing on this matter. Setser estimated he might draw unemployment proceeds of $135.00 per week. His monthly expenses included: $95.00 electricity bill; $60.00 gasoline; $66.00 property taxes; $100.00 insurance; $25.00 telephone and $300.00 groceries. Setser also indulged his cigarette smoking and beer drinking habits of about $88.00 a month. Because of his bankruptcy petition, Setser had no debt other than the child support obligations and attorney fees. Linda Setser was earning a gross income of approximately $280.00 a week with a net of about $200.00 per week. Between Linda's income and Setser's income from January through April 1992, while he was employed as a laborer, the couple brought home $1,900.00 a month. Setser admitted he hadn't sent any of this income for his son's support because getting his house liveable was his "most important priority."

James Setser and Piazza's son, Thomas, who was twenty (20) years old at the time of the hearing and would be twenty-one in October 1993, had not contacted Setser for over a year prior to the hearing. Likewise, Setser had not tried to contact his son. Piazza had custody of the child since the parties' divorce in 1980. The boy was, at the time of the hearing, attending Hinds Community College and planning to attend Mississippi State upon graduation. College expenses had been paid by Piazza and her husband as well as through grants and loans. The child was a B student who also worked for United Parcel Service five nights a week for four hour shifts. Piazza thought her son earned $8.00 an hour.

Setser admitted he had not followed the July 1992 court order in that he failed to inform Piazza of his change in employment status and he failed to pay her $1,000.00 attorney fees. However, Setser believed that his bankruptcy had discharged the prior $1,000.00 attorney fee debt. Piazza had not been advised of Setser's bankruptcy.

Piazza earned, at the time of trial, $7.35 an hour. She testified she was unable to pay the attorney fees or court costs incurred in responding to Setser's motion for abatement and petition for contempt.

The chancellor found that Setser had made no attempt to comply with the prior decree regarding child support, although he could have at least partially complied. Setser's petition for abatement was dismissed because Setser came into court with unclean hands. The chancellor further found Setser in contempt of court and awarded Piazza judgment in the amount of $4,050.00 through May, 1993. Piazza was also awarded...

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