Strack v. Sticklin, No. 2005-CA-00269-COA.

• Citation: 959 So.2d 1
• Decision Date: 29 August 2006
• Docket Number: No. 2005-CA-00269-COA.
• Parties: David STRACK, Appellant v. Mollie Strack STICKLIN, Niki Lynn Strack Lowrey and Mary Christina Strack, Appellees.
• Court: Court of Appeals of Mississippi

959 So.2d 1

David STRACK, Appellant v. Mollie Strack STICKLIN, Niki Lynn Strack Lowrey and Mary Christina Strack, Appellees.

No. 2005-CA-00269-COA.

Court of Appeals of Mississippi.

August 29, 2006.

Rehearing Denied March 20, 2007.

Damon Scott Gibson, attorney for appellant.

Chester D. Nicholson, Gulfport, attorney for appellees.

Before KING, C.J., GRIFFIS and BARNES, JJ.

KING, C.J., for the Court.

¶ 1. David Strack was found in contempt for failure to pay child support and maintain health and life insurance as required by his divorce decree. Aggrieved by this David appeals and raises the following issues on appeal:

1. THE CHANCELLOR'S FINDING OF CONTEMPT IS MANIFESTLY WRONG;

2. THE CHANCELLOR ERRED WHEN HE FAILED TO GIVE DAVID STRACK A CREDIT FOR EACH MONTH THE PLAINTIFFS, MOLLIE, NIKI, AND CHRISSY RESIDED IN HIS MOBILE HOME. THE JUDGMENT OF THE TRIAL COURT RESULTED IN UNJUST ENRICHMENT TO THE PLAINTIFFS;

3. THE CHANCELLOR ERRED IN AWARDING THE PLAINTIFF, MOLLIE, ANY SUMS FOR CHILD SUPPORT AS THE CHILDREN WERE PARTIES AND ERRED IN NOT MAKING AN ALLOCATION OF SUPPORT OWED;

4. THE CHANCELLOR ERRED IN FINDING THAT THE STATUTE OF LIMITATIONS DID NOT APPLY BECAUSE THE CLAIM WAS BROUGHT WITHIN SEVEN YEARS OF THE YOUNGEST CHILD'S EMANCIPATION;

5. THE TRIAL COURT ERRED IN ITS AWARD OF THE MEDICAL BILLS TO MOLLIE BASED ON CHRISSY'S EMANCIPATION; AND

6. THE TRIAL COURT ABUSED ITS DISCRETION IN ITS AWARD OF ATTORNEY'S FEES TO THE PLAINTIFF, MOLLIE STRACK STICKLIN, IN THE AMOUNT OF $7,151.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. David and Mollie were married on December 5, 1970, and had three daughters: Stacy, born February 1, 1972¹, Niki, born July 21, 1978, and Chrissy, born May 17, 1980. David and Mollie were divorced on June 8, 1990, in Harrison County, Mississippi. In the divorce, the parties agreed (1) to joint custody, with Mollie having the physical custody, (2) that David would pay "global" or lump sum support of $300 per month, and (3) that David would maintain health and life insurance for the children. At the time of the divorce, David was employed by Mississippi Power Company and maintained health and life insurance for the children through Mississippi Power Company.

¶ 4. In 1996 David resigned his employment with Mississippi Power Company. When he resigned from that position, all health and life insurance policies involving the children ceased. Also in 1996 David married his present wife, Janice Strack, and moved to Hattiesburg.

¶ 5. In August of 1992, Mollie filed an application for disability benefits with the Social Security Administration on behalf of Chrissy, who was born with birth defects. Chrissy began receiving the benefits in 1992. Sometime after May 2000, Chrissy had to undergo surgery and related care as a result of her birth defects.

¶ 6. Sometime after the divorce, Mollie and the children moved to Hattiesburg and then Seminary. While living in Seminary, Niki gave birth to her first child in January 1995, and was married on October 21, 1995. It is disputed where Mollie, Niki, and Chrissy lived between 1995 and 1997. On November 7, 1997, Mollie married her present husband, James Sticklin. At the time of trial, she lived in Utica.

¶ 7. Sometime in 1997, David's trailer was moved from Saucier to Seminary and placed on land which he owned. The trailer was occupied by Niki and her family, and Chrissy, who had recently stopped attending school. David was not paid rent for the trailer.

¶ 8. On September 3, 2002, Mollie, Niki, and Chrissy filed a complaint for contempt against David alleging that he failed to make any child support payments, and that he also failed to maintain health and life insurance as ordered on June 8, 1990. A hearing was held on March 11, 2004, in the Harrison County Chancery Court. On November 10, 2004, the court found David in contempt for failure to pay child support, and failure to maintain health and life insurance policies. After giving David credit for two payments totaling $550, the court found that he was $38,750 in arrears, for which the chancellor awarded judgment with an 8% interest rate. As a result of having failed to maintain health insurance, David was required to reimburse Mollie $3,093 for medical expenses incurred for Chrissy's surgery. David was also ordered to pay $7,151 in attorney's fees. After hearing David's motion to reconsider on January 21, 2005, the court reduced the interest rate to 4.5%, and denied the rest of David's requested relief.

STANDARD OF REVIEW

¶ 9. A chancellor's decision, particularly in the areas of alimony, divorce, or child support, will not be disturbed on appeal unless his findings are manifestly in error. Lahmann v. Hallmon, 722 So.2d 614, 618(¶ 12) (Miss.1998). However, if the chancellor is manifestly wrong, or applied an erroneous legal standard, we will not hesitate to reverse that decision. Id.

DISCUSSION

1. Was the chancellor's finding of contempt manifestly wrong?

¶ 10. David first argues that the chancellor erred in finding him in contempt. Civil contempt is a vehicle used to enforce or coerce obedience to a court's order. Lahmann, 722 So.2d at 620(¶ 19). It is determined on the facts of the case, and is left up to a chancellor's discretion. Milam v. Milam, 509 So.2d 864, 866 (Miss. 1987). In a contempt action involving unpaid child support, when the party entitled to receive support introduces evidence that the party charged with paying has failed to pay, a prima facie case of contempt has been made. Lahmann, 722 So.2d at 620(¶ 19) (citing Guthrie v. Guthrie, 537 So.2d 886, 888 (Miss.1989)). The burden then shifts to the paying party to show, by clear and convincing evidence, an inability to pay or any other defense. Id. (citing Duncan v. Duncan, 417 So.2d 908, 909-10 (Miss.1982)).

¶ 11. The chancellor found that David failed to comply with the divorce decree by failing to pay child support of $300 a month, and by failing to maintain health insurance and life insurance for his children. While David offered proof of two payments of $50 and $500 for child support, he did not offer any proof of his inability to pay. Instead, David testified that he paid cash to Mollie for which she did not give him a receipt. He also testified that Mollie told him that he could cease payments to her after Niki and Chrissy moved into his trailer. Mollie disputed David's testimony. She specifically denied having received support from David, and that she had agreed that David could cease support payments when Niki and Chrissy moved into his trailer.

¶ 12. The chancellor found the testimony of Mollie to have greater reliability than that of David. A chancellor's finding on conflicting evidence will not be disturbed on appeal unless it is manifestly wrong. Milam, 509 So.2d at 866. The chancellor found that other than making two payments totaling $550, David had failed to pay any child support to Mollie. Even had the chancellor agreed that David and Mollie had executed an agreement for David to cease support payments, David still had a legal obligation to continue with his monthly support. "The basic right of the minor child to be supported by its parents is not affected by an agreement between the parties with respect to such obligations . . . ." Varner v. Varner, 588 So.2d 428, 433 (Miss.1991) (quoting Calton v. Calton, 485 So.2d 309, 310 (Miss.1986)). Because there was no abuse of discretion in the chancellor's finding, the claim is without merit.

¶ 13. The chancellor also found that when David discontinued his employment with Mississippi Power in 1997, he failed to continue the health and life insurance as ordered in the divorce decree. David offered no proof of any subsequent policies, or of any inability to provide such policies. Thus, there was no abuse of discretion in the chancellor's finding on this claim. This issue is without merit.

2. The chancellor erred when he failed to give David Strack a credit for each month the plaintiffs, Mollie, Niki, and Chrissy resided in his mobile home. The judgment of the trial court resulted in unjust enrichment to the plaintiffs.

¶ 14. David argues that the chancellor erred in not giving him credit from the $38,750 arrearage for the months that he offered proof that Mollie, Niki, and Chrissy lived in his mobile home and he paid the bills. After finding David in willful and contumacious contempt for failing to pay child support, the chancellor did not award David credit for providing housing for Mollie, Niki, and Chrissy. Whether or not a non-custodial parent should be given credit against his/her child support obligation, is a matter left to the sound discretion of the chancellor. Wiles v. Williams, 845 So.2d 709, 712(¶ 13) (Miss.Ct.App. 2003). The testimony was in conflict, and the chancellor found the testimony of Mollie to have greater reliability. Under these facts, this Court cannot say that the chancellor abused his discretion on this issue.

3. The chancellor erred in awarding the plaintiff, Mollie, any sums for child support as the children were parties and erred in not making an allocation of support owed.

¶ 15. Next, David claims that the trial court erred in allocating to Mollie any sums for child support. Child support payments are for the benefit of the child, not the recipient parent. Brown v. Brown, 822 So.2d 1119, 1122(¶ 11) (Miss.Ct.App. 2002). The child's emancipation does not relieve the parent of the obligation to pay any amounts of vested child support. And notwithstanding the child's emancipation, the parent may, acting in her continuing fiduciary capacity to the child, bring an action for those vested child support obligations. However, if the supporting parent's failure to adhere to his financial responsibilities causes the custodial parent to "dip into her own resources beyond what would otherwise be expected of her, she may recover, and retain any amounts so proved." Varner v. Varner, 588 So.2d 428, 433 (Miss.1991). Any sums that the...