Wallace v. Jones

• Decision Date: 19 September 1990
• Docket Number: No. 07-CA-59154,07-CA-59154
• Citation: 572 So.2d 371
• Parties: Gloria Jones WALLACE v. Otha Lee JONES.
• Court: Mississippi Supreme Court

Page 371

572 So.2d 371

Gloria Jones WALLACE v. Otha Lee JONES.

No. 07-CA-59154.

Supreme Court of Mississippi.

Sept. 19, 1990.

Rehearing Denied Dec. 12, 1990.

Stella Terrell, Yazoo City, for appellant.

Hudson L. Thomas, Yazoo City, for appellee.

Before HAWKINS, ANDERSON and BLASS, JJ.

ANDERSON, Justice, for the Court:

This is an appeal from the Chancery Court of Yazoo County where, upon the motion of the respondent/appellee, the chancellor dismissed the petitioner/appellant's complaint for contempt. In addition, the chancellor overruled appellant's motion for new trial. We reverse and remand. The appellant now alleges these errors:

THE COURT ERRED IN SUSTAINING A RULE 41(b) MOTION TO DISMISS

THE COURT ERRED IN RENDERING JUDGMENT TO WALLACE ON ITS FINDINGS OF DECEMBER 14, 1988

THE COURT ABUSED ITS DISCRETION IN OVERRULING THE MOTION FOR A NEW TRIAL ¹

STATEMENT OF THE FACTS

Gloria Jones Wallace [Wallace] ² and Otha Lee Jones [Jones] were married on March 17, 1978. During the marriage two children were born, but Jones claimed that he did not father the younger child. ³ The parties were separated on September 25, 1983, and Jones filed his complaint for divorce on February 3, 1984, alleging adultery.

The court granted the divorce on June 16, 1984, and awarded the custody of the minor children to Wallace. The record is not entirely clear on what grounds the chancellor granted the divorce, but Jones was ordered to pay $280.00 per month as child support payments for the minor children. One-half of the amount was to be paid on the first day of each month, and the other half was due on the following fifteenth of each month. Unable to continue these payments, Jones petitioned for a modification, and the court responded by reducing the amount of support to $100 per month, with $50.00 due on the 1st and 15th of each month.

Even with this substantial reduction, Jones failed to abide by the court's order. From May 1, 1986, to September 15, 1987, Jones paid $40.00 for the support of his children. As a matter of fact, he missed twenty-nine consecutive payments. Thereafter, Wallace filed her Petition for Citation for Contempt on September 30, 1987. In this petition Wallace requested, inter alia, that Jones be adjudged in civil and criminal contempt, that the court render judgment against Jones for all past due child support as of the date of the hearing, and that Wallace be awarded a reasonable sum for attorneys' fees.

This hearing was held on November 2, 1987. The chancellor rendered his opinion on December 14, 1987. In his opinion the court found that Wallace had made a prima facie case of civil contempt and found that Jones was $1,835 in arrears, having paid only $465 from the date of the modification until November, 1987. Moreover, the chancellor found that Wallace was entitled to the past due amount, plus accrued interest.

According to the chancellor, Wallace had failed to prove that Jones deliberately defied the court's judgment; therefore, he granted Jones' motion to dismiss the criminal contempt charge. When the motion to dismiss was sustained, Jones took the stand as his only witness. He sought to prove his present inability to pay his back child support. His testimony revealed that he had no job, his present family was on public assistance and he paid only $14.00 per month for rent. Moreover, he had no borrowing power, but he was making reasonable efforts to find employment.

At the conclusion of the hearing, the chancellor believed that there remained one unanswered question--albeit the answer was strongly implied from his testimony: Does Jones have any property which he could be required to dispose of in order to pay back support? He continued the hearing for January 8, 1988, so that Jones could prove his inability to pay. Upon this proof, the court would render its final judgment. Of course Wallace would attempt to prove that Jones did have such property.

After a continuance, the hearing was held on January 12, 1988. ⁴ The chancellor reiterated that the focus of this hearing was to determine what assets, if any, Jones owned.

When the hearing finally resumed, the first witness to testify was Thomas Wally, Yazoo City branch manager for Unifirst Bank for Savings. The witness produced, pursuant to the wishes of Wallace, accounts of three people. ⁵ Included on this list was Otha Lee Jones. Wally emphasized that there may be conflicts in the addresses provided by Wallace and those that he had, and "the only way to really tie it down would be to compare social security numbers." Over Wallace's objection, the court then allowed Jones to testify in order to make a complete record of his assets.

Jones testified that he did not have a bank account at Unifirst Bank. He owned no real property. He did not own a lawn mower, gun or stereo. The things he did own included a 1968 GMC pickup valued at approximately $300, a television for which he paid $25, and clothes. He also had an interest in a couch, chair, table and pictures on the wall, which were given to him and his present wife as wedding gifts.

When cross-examined by Wallace, Jones gave his social security number as 427-04-0902, and he denied ever having a mailing address at P.O. Box 433. He did have an account at Unifirst, however, that was when he was in high school. Jones was now thirty-one years old. When he was divorced from Wallace, he took no personal property other than the clothes on his back.

Wallace called Wally to the stand. He testified that the social security number of the account of the Otha Lee Jones that he had was 587-38-4521, and his address was listed as P.O. Box 433. This account was opened on August 6, 1987. Nothing from the account records indicated what proof of identification for Otha Lee Jones was used in establishing the account. But, according to Wally, when a person opens an account, he certifies that he has given his correct social security number. The witness could not identify Jones as the Otha Lee Jones who had an account with the bank. Therefore, the chancellor properly sustained the objection to Wallace's attempted admissions of the accounts provided by Wally.

Wallace testified next. She stated that when the parties separated and divorced Jones took with him a stereo worth $1,000.00, two guns, a Bible for which she had paid $41, and a lawn mower. She also testified that she could identify Jones' signature and that it was his signature that was on the original complaint for divorce. She also identified the signature on the Unifirst account as that of Jones, her former husband. Wallace again moved that the exhibit be admitted into evidence, and Jones properly objected because no proper foundation had been laid. The chancellor then gave this warning:

I would hope that both of you have sufficiently advised your client[s] about the crime of perjury. This is a matter that will be easily resolved by the district attorney and can be resolved by the district attorney. We now have him testifying he had no such account at Unifirst. We now have her identifying unequivocally this signature on this Exhibit 3 as his signature. It seems to me like we are getting into a position where somebody could be looking at subsequent perjury charges. Having said that, let's move along.

On cross-examination, Jones asked Wallace if she maintained that he had an account at Unifirst. At that point Wallace's counsel advised her to invoke her Fifth Amendment privilege. The court responded that it would have to dismiss her petition if she invoked her privilege because the question was relevant to establish contempt. When asked about the document a second time, Wallace, on advice of her attorney, again asserted the privilege. Jones then moved for dismissal and the court granted the motion.

On January 22, 1988, Wallace properly filed a Motion For New Trial claiming that she was entitled to have the case proceed to a hearing and final judgment on the merits. In her motion Wallace insisted that the Otha Lee Jones, who owns the Unifirst account, does in fact write "very similar to the Otha Lee Jones of these proceedings;" however, after further investigation, Wallace discovered that the account did not in fact belong to Jones.

The court denied the Motion for New Trial prompting Wallace to file this appeal.

Before we address the assignment below, we must deal with a preliminary matter. Contrary to what Wallace insists, she could not invoke her right against self incrimination thereby shielding herself from Jones' questions on cross-examination. Wallace voluntarily took the stand on direct examination and unequivocally identified the signatures on the bank account and the divorce complaint as her former husband's.

In addressing Wallace's rights and responsibilities as a witness, one only needs to turn to Black v. State, where this Court stated the following:

Cross-examination is a matter of right. It is secured by the confrontation clause of the Sixth Amendment to the Constitution of the United States, made enforceable against the states via the Fourteenth Amendment. Delaware v. Van Arsdall, 475 U.S. 673, , 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 683 (1986). The right is secured independently by the confrontation clause of this state's constitution, Miss. Const., Art. 3, Sec. 26 (1890), though it is more commonly thought of as a function of our law of evidence. As such its scope has been considered wide, coextensive with the limits of relevancy measured by the issues.

506 So.2d 264, 266-67 (Miss.1987) (citations omitted). See Rule 611(b) Miss.R.E. (1989).

Without question, Jones had a right to ask this question. Notwithstanding the fact that our courts allow wide-open cross-examination ⁶, but Wallace during her direct testimony asserted that the signatures on the divorce complaint and the bank account were in fact her husband's. See, Sayles v. State, 552 So.2d 1383, 1385 (Miss.1989); Miss.Code Ann., Sec. 13-1-13 (1972). See also, Moore v. Moore, ...