Windham v. Blakeney

• Decision Date: 01 February 1978
• Docket Number: No. 49873,49873
• Citation: 354 So.2d 786
• Parties: Will D. WINDHAM v. Cecil Ruth Windham BLAKENEY.
• Court: Mississippi Supreme Court

Page 786

354 So.2d 786

Will D. WINDHAM v. Cecil Ruth Windham BLAKENEY.

No. 49873.

Supreme Court of Mississippi.

Feb. 1, 1978.

Ronald N. Ashley, Jackson, for appellant.

E. Howard Eaton, Taylorsville, for appellee.

Before INZER, P. J., and SUGG and WALKER, JJ.

WALKER, Justice, for the Court:

This is an appeal from a decree of the Chancery Court of the First Judicial District of Hinds County, Mississippi, wherein appellant was found to be $10,000 in arrears in child support payments allegedly due under a South Carolina decree of divorce.

The appellee, Cecil Ruth Windham Blakeney and the appellant, Will D. Windham, were married in Taylorsville, Mississippi, on September 6, 1954. During the period of said marriage there were two children born: Michelle Windham born November 28, 1956, and Charles Randall Windham born April 14, 1958. The bonds of matrimony were wholly dissolved by decree of divorce in the County Court of Charleston, South Carolina, on May 26, 1964. The divorce decree provided that the appellant was to pay $100 per month for each child or $200 per month total child support and further that the appellant was to pay attorney's fees. Appellant paid the monthly installments until March of 1970, at which time he retired from the United States Navy. Subsequent to that date appellant refused to make any more payments. Appellee demanded payment of the appellant and the appellant refused to pay.

Appellee filed her bill of complaint for child support in March, 1973, praying that the South Carolina decree be enforced in this State and that defendant be ordered to pay the amount in arrears and future child support. After several false starts, a hearing was finally held on June 28, 1976, in Hinds County Chancery Court, after which a decree was entered that found appellant to be in arrears in the amount of $10,000, and ordered that he pay appellee that sum plus $100 per month thereafter for the support of the one remaining minor child.

Appellant's first assignment of error is that the court should not have granted appellee the relief sought in that the South Carolina decree may be retroactively modified by the South Carolina court as to otherwise accrued payments of child support, and therefore said decree is not a final decree subject to enforcement in Mississippi. It appears to be the law in South Carolina that decrees granting alimony and child support ". . . even though they be deemed final when rendered, . . . are subject to modification on a proper showing of altered financial circumstances. And, this modification may operate prospectively as well as retroactively with reference to installments." (Emphasis added). Johnson v. Johnson, 196 S.C. 474, 13 S.E.2d 593 (1941). In Gallant v. Gallant, 154 Miss. 832, 123 So. 883 (1929), this Court held that the alimony decree of a Louisiana court was one which could be annulled, varied or modified by the Louisiana court and therefore was not enforceable in Mississippi under the full faith and credit clause of the United States Constitution. See generally Bunkley & Morse's Amis Divorce and Separation in Mississippi § 6.15 (1957).

Appellee attempts to avoid the effect of Gallant by arguing that the South Carolina rule as to modification of past due installments is operative only in cases where the wife seeks to have the husband held in contempt of court. However, an examination of Ex parte Jeter, 193 S.C. 278, 8 S.E.2d 490 (1940) does not indicate that the South Carolina Supreme Court intended to limit its ruling in any way. The holding was broadly based upon the inherent power of an equity court ". . . to make such changes in the amount of alimony originally granted by the Court for a wife's support and separate maintenance, as the altered conditions of the parties may show to be equitable and necessary . . . ." (8 S.E.2d at 492.) Because the decree of the South Carolina court in the case at bar was modifiable as to past due...