Shelton v. Shelton, 93-CA-00127-SCT

Decision Date30 March 1995
Docket NumberNo. 93-CA-00127-SCT,93-CA-00127-SCT
Citation653 So.2d 283
PartiesRobert Gerald SHELTON v. Geraldine A. SHELTON.
CourtMississippi Supreme Court

B. Brennan Horan, Horan & Horan, Horn Lake, for appellant.

Jack R. Jones, III, Taylor Jones Alexander Sorrell & McFall, Southaven, for appellee.

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

PRATHER, Presiding Justice, for the Court:

I. INTRODUCTION AND PROCEDURAL HISTORY

Appellant Robert Shelton ("Robert") and Appellee Geraldine Shelton ("Geraldine") were divorced in September 1987, pursuant to which decree the parties' two minor children were placed in custody of Geraldine with reasonable rights of visitation to Robert. Robert was ordered to pay child support in the amount of $200.00 per child per month. In May 1992 Robert filed a petition to modify the divorce decree, seeking a change of custody of one of the parties' children and a modification of child support. Geraldine answered and counterclaimed for contempt based on Robert's failure to pay child support.

Following a hearing on the matter, the chancellor entered an order finding Robert in contempt of court and ordering him to pay Geraldine $200.00 a month in ongoing child support and $100.00 a month until his arrearage of $7,970.00 was paid, including 8% interest thereon. Robert's requested modification was granted to the extent that he was relieved from further child support payments for the oldest child. Aggrieved, Robert now appeals to this Court, requesting review of the following issues:

A. Whether Appellant was in contempt of court for his failure to pay child support in full;

B. Whether the chancellor should have granted Appellant's request for modification of custody; and

C. Whether Appellant is entitled to pay his arrearage at the rate of $100.00 per month.

II. THE FACTS

Although Geraldine had custody of her and Robert's two children from the time of divorce in September 1987, one child, Aunnie, began to reside with Robert beginning in September 1988. Geraldine phoned Robert one night and asked him to pick up Aunnie because she was interfering with Geraldine's life. 1 Robert picked up Aunnie the next morning, drove her to Ashland, MS, where he resided, and enrolled her in Faulkner Junior High School. At this time, Robert was not employed and was about $1,500-$2000.00 behind in his child support payments, though he denied having voluntarily or contemptuously failed to pay. Despite the arrearage in child support payments, Robert bought Aunnie a new car, on which he paid the notes and insurance.

Robert and Aunnie lived in a metal shed with no heat and only a wood stove for about four months. Robert then convinced Aunnie to live with Geraldine until he could get some money together. In January 1989 Aunnie moved in with Geraldine and stayed there until June 1989, when she once again moved in with Robert for the summer months. In June 1990 Aunnie again moved in with Robert, who had moved to Horn Lake and rented an apartment there. Aunnie thereafter stayed with Robert, attending eleventh and twelfth grades at Horn Lake. In total, Aunnie had lived with Robert for about 37 months from the time the couple divorced until the time of the hearing.

Sometime prior to November 1990 Robert contacted an attorney in Southaven about changing custody of Aunnie from Geraldine to himself. Robert paid $400.00 to have legal papers prepared, but the attorney neglected his case. Robert then asked for his money back, at which time the attorney returned $100.00 and provided a motion to modify as well as a consent order. Although Geraldine had asked Robert to have Aunnie's custody legally changed, when he presented her with these papers she refused to sign them.

Robert had receipts for all of the $6,000.00 or $6,400.00 child support he had paid Geraldine from the time of divorce forward. He had been unable to pay either $400.00 or $200.00 monthly child support while he had Aunnie with him. While Robert claimed he has adequately provided for Aunnie, he also contended that he could not afford to pay child support for her or his other child who still resided with Geraldine. A painter, Robert did not have a job at the time of trial; "whatever I make, I make." Nonetheless, Robert provided the court with a financial statement which reflects his income and expenses from January 1992 to September 1992. This statement shows his gross and net monthly income as $900.00 and monthly expenses totalling $1,550.00. Robert testified that it would be fair if he provided for Aunnie, since she was in his custody, and Geraldine provided for Mandy, the parties' other child, who was in Geraldine's custody. Mandy was 11 years old at the time of the hearing.

Geraldine was awarded the couple's house upon divorce. Geraldine sold the house and Robert felt Aunnie was entitled to some of the $30,000.00 proceeds. Geraldine claimed that she only received about $15,000.00 from the sale of the house after paying Robert his portion. Geraldine put her portion of the proceeds into another house for herself. Geraldine later remarried, in July 1991. Robert helped Geraldine with the medical expenses 2 for the parties' other child, Mandy, although he was not required to do so by court order. Geraldine did not believe Robert should be given credit toward his child support arrearage for the amount he had voluntarily paid toward Mandy's medical expenses. In 1992 Robert traded in Aunnie's car and bought her a new 1992 Celica, on which he paid the notes and insurance, and which Aunnie was still driving at the time of trial.

At the time of the hearing, Robert and Aunnie were living with Robert's mother; he was financially unable to live elsewhere. Robert was giving 18 year old Aunnie an allowance for her to save toward her college tuition. Since Aunnie had graduated from high school in May, she had worked with her mother for two months as a temporary employee, as a hostess at a steak house for a month, and then accompanied her father on his painting jobs.

Aunnie testified that her father adequately provided for her and she wanted to remain with him. Geraldine agreed that Robert had provided for Aunnie and that Aunnie should stay with him. Aunnie characterized the allowance from Robert as payment for helping him on painting jobs and said she earned about $300.00 each week or two.

Geraldine testified that for the first year following her divorce from Robert, he paid the entire amount of child support only one month. In 1991 Geraldine contacted the Legal Department of the Human Services Office regarding Robert's failure to pay child support. Geraldine told Ms. Atkinson, an employee of the Office, that all she wanted was $200.00 a month for the child who resided with her. According to Geraldine, Robert agreed to pay the $200.00 a month beginning May 8 and she agreed not to sue for the arrearage. Shortly thereafter, Robert brought her the papers she had requested, to change custody of Aunnie from Geraldine to Robert, but the papers also provided that all child support for both children would be dropped. Geraldine refused to sign the papers.

An affidavit of accounting was prepared by Ms. Atkinson and Geraldine to show how much Robert had paid and how much his arrearage was. This accounting reflects that Geraldine gave him credit for payment of $200.00 a month from July 1990 through April 1992, although he had not paid this amount. This was done because Geraldine did not want child support for Aunnie while she was living with Robert. Robert's total credit through April 1992 was $10,030.00 and his arrearage was $11,970.00. He had not paid any amount of child support since that time.

Geraldine testified that she only wanted $200.00 a month child support for Mandy and the arrearage owed, which was $13,770.00 at the time of the hearing. Geraldine agreed that if $200.00 a month were subtracted for each month that Aunnie had lived with Robert from July 1990 to the present, the arrearage figure would be reduced.

The chancellor found that Robert had unclean hands, as he was in arrears in the amount of $1,500.00 to $2,000.00 in child support as of June 1989. As a result, the chancellor declined to grant Robert's modification. Robert was found in contempt of court and liable for $13,770.00 in child support arrearage, less $200.00 per month for the period from June 1990 to the date of the hearing since Aunnie had been in his continuous custody for those months. Geraldine was awarded judgment in the amount of $7,970.00 with 8% interest. Based on Robert's financial statement, which the chancellor found revealed some excessive expenses, the chancellor found Robert had the ability to pay. The chancellor further provided that Robert could purge his contempt by paying toward the arrearage $100.00 per month beginning January 1, 1993. Finally, although the chancellor claimed not to be modifying the decree, he reduced Robert's child support payments from $400.00 a month to $200.00 a month beginning January 1, 1993, to cover only the child in Geraldine's care and custody. The parties were ordered to pay their own attorney fees, with Robert responsible for court costs.

III. THE LAW

A. Whether Appellant was in contempt of court for his

failure to pay child support in full.

The Parties' Contentions

Robert claims he could not have been found in contempt of court as his non-payment of child support was due to impossibility because of his lack of steady employment. Additionally, Robert contends he should be given credit toward his arrearage for $400.00 per month for each of the months Aunnie lived with him. Geraldine counters that the chancellor was within his discretion in finding Robert in contempt of court as he was indeed behind in his child support payments and could have afforded to pay them.

Relevant Law and Analysis

Whether a party is in contempt of court is left to the chancellor's substantial discretion. Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990). However,...

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  • Durr v. Durr, No. 2003-CA-01673-COA.
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    • 5 Abril 2005
    ...Contempt matters are committed to the substantial discretion of the chancellor. Lahmann, 722 So.2d at 620(¶ 19) (citing Shelton v. Shelton, 653 So.2d 283, 286 (Miss.1995)). "[We] will not reverse a [finding of contempt] where the chancellor's findings are supported by substantial credible e......
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