Warner v. Warner

• Decision Date: 07 June 2022
• Docket Number: 2020-CA-01098-COA
• Citation: 341 So.3d 152
• Parties: Donald Ray WARNER, Appellant v. Melanie Kay WARNER, Appellee
• Court: Mississippi Court of Appeals

341 So.3d 152

Donald Ray WARNER, Appellant

v.Melanie Kay WARNER, Appellee

NO. 2020-CA-01098-COA

Court of Appeals of Mississippi.

June 7, 2022

ATTORNEYS FOR APPELLANT: CHARLES E. WINFIELD, ASHLYN BROWN MATTHEWS, Starkville

ATTORNEYS FOR APPELLEE: A. E. (RUSTY) HARLOW JR., KATHI CRESTMAN WILSON, Grenada

BEFORE WILSON, P.J., GREENLEE AND EMFINGER, JJ.

GREENLEE, J., FOR THE COURT:

¶1. In 2020, Donald Warner ("Don") and Melanie Warner consented to a divorce based on irreconcilable differences.¹ Don appeals the judgment of the DeSoto County Chancery Court claiming that the chancellor erred in (1) classifying, valuing, and distributing the marital property, (2) awarding alimony to Melanie, (3) finding him to be in contempt, and (4) awarding attorney's fees to Melanie. After review, we reverse in part the chancellor's judgment regarding the division of property and alimony and remand for further proceedings consistent with this opinion. We reverse and render the chancellor's finding of contempt and the corresponding award of attorney's fees for contempt to Melanie. Finally, the chancellor should reconsider the award of attorney's fees for the divorce action in light of the reversal of the property division and alimony awards.

FACTS AND PROCEDURAL HISTORY

¶2. Don and Melanie were married in 1984 and had five children during their marriage.² In October 2018, Melanie filed a complaint for separate maintenance and other relief against Don. In response, Don filed a counter-complaint requesting a divorce on the grounds of habitual cruel and inhuman treatment, constructive desertion, or, in the alternative, irreconcilable differences.

¶3. Several months later, Melanie filed a motion for a restraining order against Don, which was denied. Then Melanie filed a motion for temporary relief and an amended complaint. In the amended complaint, she requested a divorce on the grounds of habitual cruel and inhuman treatment, uncondoned adultery, habitual drunkenness, or, in the alternative, irreconcilable differences.

¶4. In September 2019, the chancellor entered a temporary order granting Melanie exclusive use and possession of the marital residence and prohibiting Don from visiting the residence without prior approval. The chancellor also ordered Don to pay "for any and all of the repairs on the marital home," and for "marital debts and expenses including but not limited to medical insurance." Finally, the chancellor ordered Don to pay temporary alimony to Melanie in the amount of $850 per month.

¶5. Approximately two months later, Don filed an emergency motion to clarify, amend, or modify the temporary order. Don argued, among other things, that the chancellor's provision requiring him to pay the "marital debts and expenses including but not limited to medical insurance" was confusing. Don also alleged that Melanie had been withholding his mail—which contained bills—and requested an itemized statement of any outstanding payments.

¶6. In January 2020, the chancellor filed an order nunc pro tunc clarifying its September 2019 temporary order. The chancellor stated that Don "shall continue to pay all the bills needed to operate the household, including but not limited to AT&T, utilities, and medical bills." The chancellor further stated that Don could request an Explanation of Benefits from the insurance company and suggested that Melanie should forward all pertinent mail and bills directly to Don.

¶7. In August 2020, Melanie filed a petition for citation of contempt. According to Melanie, Don failed to comply with the chancellor's temporary order by failing to pay certain expenses. Don filed a response and asserted, among other things, that he had not willfully violated the chancellor's order. Then he filed another motion for clarification of the temporary order.

¶8. On September 22, 2020, Don and Melanie filed a consent to divorce on the grounds of irreconcilable differences. A trial was held for the chancellor to determine, among other things, issues regarding (1) the classification, valuation, and distribution of property, (2) alimony, (3) contempt, and (4) attorney's fees.

¶9. At trial, Don testified that he and Melanie worked for MCI in Texas when they married in 1984. Thereafter, they moved to Virginia where Don continued to work for MCI, and Melanie worked until around the time she became pregnant. Then Don and Melanie moved to Tennessee, and Don worked for Weatherproofing Systems—a company that he co-owned with his father.³ In 1991, Don and Melanie moved back to Texas where Don worked for MCI again and Melanie worked for Lima Electronics. Around 2002, they moved back to Tennessee with their five children. Don returned to work for WSI, which was co-owned by his parents at the time, and Melanie worked for Hunter Fan for a brief period. However, Melanie primarily stayed home to care for the children for a total of approximately fifteen years.⁴

¶10. At the time of trial, Don still worked for WSI and did not have any plans to retire.⁵ His gross income was $8,737.60 per month, and his net income was $4,384.23 per month.⁶ Don initially testified that WSI did not pay for any of his personal expenses. However, he later acknowledged that the company provided him with the use of a 2020 F-150 Platinum pickup truck, money for gasoline, auto repairs, and meals, and a cell phone. According to Melanie, Don also used company funds to purchase alcohol. Additionally, Melanie testified that Don replaced older electronics in their house with new electronics purchased with company funds and then gave the older electronics to WSI. Don testified that he had health insurance and approximately $28,000 in a profit-sharing program. Don expected his social security benefit at retirement to be $2,894 per month.

¶11. Melanie testified that she had an associate's degree in general education. However, she had been working as a bookkeeper since 2018. She worked twenty-five to thirty hours per week for $16 per hour.⁷ Melanie's employer did not provide health insurance or retirement benefits. Melanie expected her monthly social security benefit at retirement to be $1,093.⁸

¶12. At the time of trial, Melanie was living in the marital residence, which had been appraised for approximately $580,000. Don and Melanie owed approximately $330,000 on their mortgage, and their mortgage payment was approximately $2,000 per month. Don was living in a camper that was owned by WSI. Although WSI paid the bills associated with the camper, Don testified that he paid $150 to rent the land where the camper was situated. Don testified that he wanted to build a house, but he was left with a deficit after paying his monthly expenses.

¶13. Don testified that he was in good health; however, Melanie had some health problems. Melanie testified that she had been diagnosed with cancer

in 2010. Although she had been in remission for approximately ten years, her doctors expected the cancer to return. Melanie also testified that she suffered from anxiety and depression and had been admitted to Parkwood Behavioral Health in 2016 and Crestwood Behavioral Health in 2018. According to Melanie, she was undergoing intensive outpatient counseling three to five times per week. When asked what had triggered her mental-health issues, Melanie explained that it was the "constant degrading behavior" from Don and his "coming home drunk."⁹ Melanie was seemingly covered by Don's health insurance, but she would not be covered after the divorce.

¶14. Don and Melanie testified as to property classification, valuation, and distribution. Afterward, Don seemingly acknowledged that he should pay alimony but did not know how much, and Melanie suggested that she would need $4,200 per month to cover her expenses.

¶15. As to the contempt petition, Melanie asserted that Don had not paid for the following expenses: gasoline, eyeglasses, a cancer

insurance policy, veterinary expenses, automobile expenses, and home maintenance/repairs and lawn maintenance.

¶16. Finally, Melanie's testified that she was not able to afford attorney's fees and that she did not have any separate money to pay for them. Don seemingly testified that he assumed Melanie was borrowing money from someone or charging her litigation expenses to a credit card.

¶17. The chancellor issued a bench ruling and then entered a final decree of divorce on September 25, 2020. After the classification, valuation, and distribution of the property, the chancellor noted that the total value of property that Melanie received was $21,884.87, and the total value of property that Don received was $59,060.65. The chancellor noted that Melanie would receive $37,157.78 less in property value. The chancellor rounded that deficit down to $37,000.

¶18. Then the chancellor ordered the parties to put the marital residence on the market immediately and granted Melanie use of the residence until it sold. The chancellor ordered Don to pay for "taxes, insurance, utilities, pest control, appliance repairs, mortgage payments, and the HELOC loan on the property until the property ... sold." The chancellor stated that after the mortgage, HELOC loan, closing costs, and realtor fees were paid off, Melanie would receive the first $37,000 of the sale proceeds, and Don would be reimbursed for repairs. Then the remaining proceeds would be divided with Melanie receiving 75 percent and Don receiving 25 percent. In her bench ruling, the chancellor explained that she divided the proceeds of the house in such a way as to lessen Don's support obligation. Then the chancellor ordered Don to pay $1,000 per month in permanent alimony until Melanie vacated the residence or the residence sold. After that, Don was ordered to pay $3,500 per month in permanent alimony.

¶19. The chancellor held Don in contempt for his "failure to pay certain amounts as ordered in the Temporary Order ...." These expenses included: eyeglasses, cancer

insurance, auto repairs, and home maintenance/repairs and lawn maintenance.¹⁰ Accordingly, the...