Thurman v. Thurman

• Decision Date: 28 March 1990
• Docket Number: No. 89-CA-0468,89-CA-0468
• Citation: 559 So.2d 1014
• Parties: Kathleen C. THURMAN v. Kenny J. THURMAN.
• Court: Mississippi Supreme Court

Page 1014

559 So.2d 1014

Kathleen C. THURMAN v. Kenny J. THURMAN.

No. 89-CA-0468.

Supreme Court of Mississippi.

March 28, 1990.

Jess H. Dickinson, Vaughn & Dickinson, Gulfport, for appellant.

Robert D. Jones, Jordan & Jones, Meridian, for appellee.

Before ROY NOBLE LEE, C.J., and SULLIVAN and PITTMAN, JJ.

PITTMAN, Justice, for the court:

In August 1987, Kathleen C. and Kenny J. Thurman were divorced on the ground of irreconcilable differences. Pursuant to the Property Settlement Agreement incorporated into the Final Judgment of Divorce, Mrs. Thurman was awarded custody of the three minor children of the parties with Mr. Thurman paying child support of $1,100 per month, one-half of medical and hospital expenses not covered by insurance, reimbursement to Mrs. Thurman for monthly premiums paid by her for a State Farm insurance policy, and payments on enumerated indebtedness of the parties, as well as attorneys fees and court costs. The parties also agreed to put their house up for sale for $79,000 with the agreement that if the house sold for that amount, Mrs. Thurman would retain all the proceeds and pay off the remaining indebtedness; if the house sold for less than that amount, Mrs. Thurman would keep the proceeds and pay off what indebtedness she could with the exception of two specified bank notes. Mr. Thurman would pay off any remaining indebtedness on bills enumerated in the Agreement. Subsequent to the divorce, the house sold for less than $79,000 and in accord with their agreement, Mrs. Thurman kept the proceeds to pay off what she could of their indebtedness. Mr. Thurman filed for bankruptcy, resulting in some of their enumerated debts being either discharged or being paid off for a smaller sum than the amount owed and then being discharged. Mr. Thurman also paid Mrs. Thurman $2,200 for her to use to pay off obligations, including, he understood, attorneys fees and court costs although he acknowledged that $2,200 would not pay all of the debts he was obligated to pay. Mr. Thurman then lost two of his major accounts as a construction supply salesman, resulting in an alleged average loss of income of $700 per month from what he made at the time of the divorce. Mr. Thurman continued to pay child support in the specified amount until August of 1988, when he paid only half the amount.

In July 1988, Mrs. Thurman filed a Motion for Judgment of Arrearage and Citation for Contempt, alleging that Mr. Thurman failed to pay attorneys' fees and court costs, six months reimbursement for the insurance policy, and medical expenses. Mr. Thurman responded with an answer and counter-motion to Modify Judgment in which he asserted that he had suffered a material change of circumstances rendering him unable to pay the child support payments in the amount provided by the divorce decree and requesting modification of that amount. Mrs. Thurman then filed another Motion for Judgment of Arrearage and Citation for Contempt, alleging that Mr. Thurman had paid only half of the child support payment for August.

A hearing was held in October 1988, after which the Chancellor declined to hold Mr. Thurman in contempt, finding that the proof was insufficient to establish contempt and, in fact, tended to establish that Mr. Thurman had paid more than enough money to cover the bills which Mrs. Thurman alleged had not been paid. The Chancellor also found that Mr. Thurman's financial resources had decreased since the divorce and reduced the child support payments to $841 per month, commensurate with the average monthly salary he was making at the time and following the guidelines suggested by the federal government in fixing child support payments (guidelines which were adopted by the Mississippi Legislature, effective October 1, 1989). See Miss.Code Ann. Sec. 43-19-101 (Supp.1989). The Chancellor also required Mr. Thurman to pay the difference between $841 and what he paid in August, $550, and September, $600, and October, $0, for a total arrearage payment of $1,373.

Mrs. Thurman appeals, raising two issues:

I. THE CHANCELLOR ERRED IN NOT HOLDING KENNY IN CONTEMPT FOR FAILURE TO PAY THE REQUIRED CHILD SUPPORT PAYMENTS AND FOR ALLOWING A MODIFICATION OF VESTED CHILD SUPPORT PAYMENTS.

II. THE CHANCELLOR ERRED IN MODIFYING THE CHILD SUPPORT PAYMENTS.

I. DID THE CHANCELLOR ERR IN NOT FINDING MR. THURMAN IN CONTEMPT AND NOT REQUIRING MR. THURMAN TO PAY VESTED CHILD SUPPORT PAYMENTS?

The first issue is Mr. Thurman's failure to pay the full amount of child support for the months of August, September and October. Mr. Thurman admitted that he paid only half the amount for August, and a little over half for September. He had paid none for October. After the hearing the Chancellor allowed Mr. Thurman to pay the difference between the amount he had paid per month and the $841.00 the Chancellor determined as the new modified amount of child support. This was far short of the $1,100.00 per month required under the Property Settlement incorporated in the Final Judgment of Divorce. This Court has stated that once child support payments become past due they become vested and cannot be modified. Brand v. Brand, 482 So.2d 236, 237 (Miss.1986), Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984), Hambrick v. Prestwood, 382 So.2d 474, 476 (Miss.1980). The Chancellor's reduction of the past child support payments for the months of August, September and October was manifest error.

Although Mr. Thurman did not pay the full amount required by the Final Judgment it was proper for the Chancellor not to find him in contempt. In Brown v. Gillespie, 465 So.2d 1046, 1048 (Miss.1985), this Court, citing Duncan v. Duncan, 417 So.2d 908 (Miss.1982), stated:

Where a party is unable to comply with a divorce decree, he should with reasonable promptitude, make the fact known to the court by proper petition and have the decree modified or suspended, and not wait until he has been cited for contempt. If a party fails to take this course of action, he will, in response to the citation for contempt be required to make out a clear case of inability. [cites omitted].

Mr. Thurman filed for the modification of child support in August, before Mrs. Thurman filed a motion for contempt concerning the arrearage in child support payments. Mr. Thurman did what this Court has stated he must do in order not to be found in contempt of the divorce decree.

While it was proper for the Chancellor not to find him in contempt Mr. Thurman must pay the amount of child support required by the Final Judgment until there has been a modification because the payments were vested. We therefore reverse and render on this issue and reinstate the $1,100.00 per month child support payment for the months of August, September and October.

II. DID THE CHANCELLOR ERR IN GRANTING MR. THURMAN'S REQUEST FOR MODIFICATION OF CHILD SUPPORT?

Mrs. Thurman also asserts that Mr. Thurman was not entitled to a modification of his child support obligations because he failed to show any material or substantial change in his financial situation since the original divorce. Divorces granted due to irreconcilable differences are subject to modification, Morris v. Morris, 541 So.2d 1040, 1042 (Miss.1989), provided there has been a material or substantial change in the circumstances of the parties relative only to after-arising circumstances of the parties following the original decree. Id. at 1043.

The Chancellor found that since Mr. Thurman's income allegedly decreased by $700 per month that there was a material change in Mr. Thurman's situation. The proof showed that Mr. Thurman had the same job he was holding at the time he entered the Property Settlement Agreement. He did testify that he had lost two of his better accounts; however, he had the same job, he received the same commission, he was performing the same duties and there is conflict as to whether or not his monthly receipts had been reduced. From the trial record, it is difficult to conclude that there was any reduction in his monthly commission receipts. It is without dispute that he had the same job and the same commission that he had twelve months earlier when he voluntarily entered the Property Settlement Agreement which is not at issue. There does not appear to be a substantial change in Mr. Thurman's financial situation or at least of the sort that would warrant a modification of the support of his children of his former marriage. However, the trier of the issue found material change and this Court will not reverse on this issue alone.

The Chancellor relied on the federal guidelines to reduce the child support payments and to establish the new child support required. The Chancellor looked at Mr. Thurman's alleged average monthly salary, applied the federal guidelines for child support payments,...