Williams v. Rembert

• Decision Date: 06 April 1995
• Docket Number: No. 93-CA-00138-SCT,93-CA-00138-SCT
• Citation: 654 So.2d 26
• Parties: Julius WILLIAMS v. Shirley Butler Williams REMBERT.
• Court: Mississippi Supreme Court

Page 26

654 So.2d 26

Julius WILLIAMS v. Shirley Butler Williams REMBERT.

No. 93-CA-00138-SCT.

Supreme Court of Mississippi.

April 6, 1995.

Angela T. Miller, Miller & Miller, McComb, for appellant.

Gary L. Honea, Magnolia, for appellee.

En Banc.

PRATHER, Presiding Justice, for the court:

I. INTRODUCTION

Julius Williams (Julius) has appealed an order of the Chancery Court of Pike County, concerning the proper level of child support awarded in a contempt of court petition filed by his ex-wife, Shirley Butler Williams Rembert (Shirley). The court's first order forgave an arrearage of child support which Julius unilaterally stopped providing when one child moved out of the mother's household. On a Motion for Reconsideration, the chancellor corrected this judgment by requiring the father to pay this arrearage; the chancellor also increased the remaining child support award.

Julius appealed the ruling to this Court, asserting the following errors:

1) WHETHER THE CHANCELLOR COMMITTED REVERSIBLE ERROR IN SETTING ASIDE THE REPORT OF THE FAMILY MASTER WITHOUT DECIDING THAT THE SUPPORTING FACTS SHOW THAT THE REPORT OF THE MASTER WAS MANIFESTLY WRONG?

2) WHETHER THE CUSTODIAL PARENT WHO RECEIVED FULL CHILD SUPPORT DURING THE TIME SHE HAD CUSTODY OF THE CHILD IS ENTITLED TO AN ARREARAGE EVEN THOUGH THE CHILD WAS EMANCIPATED AT THE TIME SHE LEFT HOME THREE YEARS PRIOR?

II. STATEMENT OF THE FACTS

Julius and Shirley were divorced on January 5, 1982. The chancellor awarded Shirley custody of the three children of the parties and required Julius to pay child support of $500 monthly.

In June 1988, Julius III, one of the three children, moved out of Shirley's household. Julius, by agreed order, reduced his child support payments to Shirley to the amount of $333.67.

On February 19, 1989, Ursula, another child, left Shirley's household. At that time, beginning in February 1989, Julius reduced his child support payments to $200 monthly, without court modification. Shirley filed a contempt of court complaint against Julius in March 1992. The chancellor, upon receiving the complaint, referred the matter to Gerald McMillan, a Family Master. ¹ Both parties submitted a stipulated set of facts by July 23, 1992.

The Family Master issued his report on September 19, 1992. The chancellor adopted the Family Master's opinion through an order on October 16, 1992. Both parties' attorneys signed this order as "Agreed as to Form and Content." The order forgave the majority of the child support arrearage which Julius had not paid upon Ursula's leaving the household.

Shirley made a Motion to Correct the Judgment and a Motion to Reconsider the Family Master Ruling on October 26, 1992. Shirley's attorney argued at a hearing on this motion that Shirley had intended to agree only to form and not content and that he overlooked the law which disallows unilateral reductions in child support. The chancellor granted the Rule 60(b) motion.

On December 14, 1992, the chancellor heard the motion for reconsideration of the October 16th order. The chancellor ruled that Julius could not unilaterally reduce child support payments without a court order. The chancellor awarded $7,598.16, the full amount of the arrearage, to Shirley. The chancellor also fixed child support for the remaining child at $280 monthly. The chancellor also found Julius in contempt for reducing child support without court order, and awarded attorneys' fees to Shirley in the matter.

The chancellor entered a corrected judgment on December 18, 1992, affirming what he ordered in October, 1992, but mistakenly contradicting his December 14, 1992 judgment. The chancellor later entered an order on January 11, 1993, which formally set forth his holdings on December 14. This order granted Shirley the full arrearage and increased child support to $280 monthly child support for one child.

Aggrieved, Julius filed his notice of appeal on February 8, 1993.

III. ANALYSIS

The standard of review for a chancellor's ruling is to reverse a chancellor only where his decision is manifestly wrong or not supported by "substantial, credible evidence." Snow Lake Shores Property Owners Corp. v. Smith, 610 So.2d 357, 360 (Miss.1992).

A) WHETHER THE CHANCELLOR COMMITTED REVERSIBLE ERROR IN SETTING ASIDE THE REPORT OF THE FAMILY MASTER WITHOUT DECIDING THAT THE SUPPORTING FACTS SHOW THAT THE REPORT OF THE MASTER WAS MANIFESTLY WRONG?

Julius cites several assertions of error within this issue. First, Julius cites Massey v. Massey, 475 So.2d 802, 804 (Miss.1985) for the argument that Shirley waived any allegations of error by signing the judgment of the Family Master, under M.R.C.P. 53(g). However, Massey stands for the proposition that parties may waive procedural irregularities by signing the decree. Massey, 475 So.2d at 804. Shirley's problem with the Family Master's decision is an erroneous conclusion of law that the Master made in forgiving Julius' arrearage of child support.

Julius argues that M.R.C.P. 53(g) requires that a party object to findings of fact, or any problem with a master's decision, within ten days of notice of the filing of the report. However, the master's decision-that it was inequitable to requiring Julius to pay his arrearage-is a conclusion of law. This Court held that M.R.C.P. 53(g)(2) does not bar a chancellor from reexamining conclusions of law as needed. Butler v. Pembroke, 568 So.2d 296, 298 (Miss.1990) (holding "only 'the Master's findings of fact [must be accepted] unless manifestly wrong.' "); see also Arlen B. Coyle, Charles H. Walker, Walter W. Eppes, Jr., Time, Evidence, Subpoenas, and Master, Referees, and Commissioners--Rules 6, 43, 45, and 53, 52 Mississippi Law Journal 145, 162 (1982) (stating that "[w]hen the parties stipulate that the master's findings of fact shall be final, only questions of law shall thereafter be considered.").

As a result, the chancellor is within his authority to reopen any conclusions of law in a chancery case. As a conclusion of law is the issue here, the chancellor was correct in reviewing this case on a motion for reconsideration. ²

Julius also argues that the chancellor may not set aside the master's report without stating it is manifestly wrong. Merchants Fertilizer & Phosphate Co. v. Standard Cotton Gin, 199 Miss. 201, 208, 23 So.2d 906, 907 (1945). However, the chancellor properly found that no court has the authority to forgive past due child support arrearages. In doing so, the chancellor found manifest error in the master's ruling forgiving that arrearage.

Julius, in his brief, asserts that this Court disfavors bills of review and disallows them in negligence actions in civil suits. Fondren v. Bank of Franklin, 187 So.2d 304, 306 (Miss.1966). A motion to reconsider in chancery court functions as a bill of review. Moreover, Julius contends that the legislature repealed the statutes allowing bills of review in 1991. Miss.Code Ann. Sec. 11-5-119 (1972) (repealed 1991).

However, a new system of rules took the place of prior Mississippi practice. The Mississippi Rules of Civil Procedure, effective 1982, applies to both circuit and chancery courts. (Order Adopting the Mississippi Rules of Civil Procedure (1981)). These rules allow relief from a judgment on motion, and when justice requires, for six reasons, including "any other stated grounds justifying relief from the judgment." M.R.C.P. 60(b). For this reason, any decision on this case will revolve around the application of Rule 60.

Two mistakes occurred in this case which Shirley motioned to correct under Rule 60. First, Shirley made a Rule 60(a) motion to correct the October 16 judgment which had both parties agreeing in form and content. Shirley asserted that she had only intended to agree as to form, not content. Second, Shirley made a Rule 60(b)(2) and/or a Rule 60(b)(6) motion to overturn the October 16 judgment in light of law disallowing unilateral child support reductions.

As to the Rule 60(a) clerical change between agreeing in form and content, or form only, this change is not substantial. It is not substantial because under Rule 53(g)(2), a stipulation as to the content, concerning the findings of fact, does not preclude a chancellor's review of the conclusions of law. Butler v. Pembroke, 568 So.2d 296, 298 (Miss.1990). Shirley cannot use Rule 60(b)(2) to correct the chancellor's judgment, based upon a mistake that her attorney made in not recognizing the master's failure to disallow unilateral reductions in child support. However, such a motion is possible under Rule 60(b)(6) under recent Mississippi caselaw.

This Court reversed a chancery court that dismissed a motion to reconsider, where the prior judgment effectively forgave a large sum of past-due child support. In Department of Human Serv. v. Rains, 626 So.2d 136, 138 (Miss.1993), this Court held that despite Rule 60(b)(6)'s restrictions on such motions, "[c]onsidering this State's longstanding adherence to the principle that past due child support vests and cannot be forgiven absent payment, in the case sub judice, it was neither the attorneys' nor the chancellors' place to forgive the arrearage." Department of Human Serv., 626 So.2d at 138.

Stated most forcefully, the obligated spouse must pay accrued child support. Furthermore, the obligated spouse cannot reduce child support payments without court order. See Moore v. Moore, 372 So.2d 270, 271-72 (Miss.1979) (holding that emancipation of one child does not allow unilateral prorata reduction of child support payments absent court modification.). An obligated parent may terminate child support payments when the only remaining child reaches the age of majority at twenty-one. Duncan v. Duncan, 556 So.2d 346, 347-48 (Miss.1990); Wilson v. Wilson, 464 So.2d 496, 497 (Miss.1985). Disputed questions of emancipation should be determined by the chancellor, and a prorata reduction may not be sufficient for a single remaining child.

As a result, the chancellor...