Wing v. Wing, 07-CA-57972

• Decision Date: 20 September 1989
• Docket Number: No. 07-CA-57972,07-CA-57972
• Citation: 549 So.2d 944
• Parties: Russell WING v. Barbara WING.
• Court: Mississippi Supreme Court

Page 944

549 So.2d 944

Russell WING v. Barbara WING.

No. 07-CA-57972.

Supreme Court of Mississippi.

Sept. 20, 1989.

Shirley Payne, Horn & Payne, Jackson, for appellant.

Whitman B. Johnson III, Steen Reynolds Dalehite & Currie, Jackson, for appellee.

En Banc.

PRATHER, Justice, for the Court:

The retrospective enforceability of an automatic escalation clause in a child support judgment is the subject of this appeal. Barbara Wing filed a motion for contempt against her ex-husband, Russell Wing, for non-payment of monies due for their child's support under the automatic adjustment clause of their property settlement agreement. From an adverse ruling of the Chancery Court of Hinds County, Russell Wing appeals an arrearage judgment of $13,736.40, a contempt order, an incarceration order, a wage withholding order, and imposition of attorneys' fees and costs.

Russell Wing assigns as error the indefiniteness of the escalation clause, prohibiting a contempt finding.

Barbara Wing, cross-appellant, also feels aggrieved of the chancery decree and assigns as error that the trial court erred in its failure to hold the defendant in contempt for failure to properly fund an annuity as required by the property settlement agreement, and in accepting the annuity offered by Russell Wing in satisfaction of property settlement requirement.

I.

Barbara and Russell Wing were divorced in October, 1979. At the time of the divorce, Russell Wing was employed by Jackson State University. His yearly salary was $18,411.48. The parties filed a Property Settlement Agreement along with their Joint Bill of Complaint. By the terms of this agreement, Russell Wing was to pay $400 per month child support for the couple's only child, Laurel. (Laurel was six at the time of the divorce in 1979). Also included in the agreement was an "escalation clause" to increase child support each year according to the rate of inflation "as set forth in the consumer price index" (CPI). Also, the agreement required Russell Wing to name Laurel as beneficiary of his tax sheltered annuity fund through Jackson State University and to fund that annuity at the rate of $900 per year.

In 1983, Russell Wing changed employment. Unfortunately, his employer went bankrupt in late 1983. Russell Wing was out of work from December, 1983 until May, 1984, when he found a position with the Brookhaven School District. His 1984 earnings were $11,887.00. He earned an annual sum of $22,525.00 for the 1986-1987 school year.

From the time of the divorce until October, 1985, when Barbara Wing filed the first motion to cite defendant for contempt, Russell Wing paid $400 per month in child support, notwithstanding his reduced income. The October, 1985, motion alleged that Russell Wing was in arrears for one month's payment in the sum of $400.00 and for refusal to fund his annuity at $900.00 per year and to make his daughter its beneficiary. No hearing appears to have been had on this motion.

The present motion for contempt was filed on August 22, 1986, alleging an arrearage of $14,260.32 and a failure to provide proof of the existence and funding of the annuity.

A judgment dated October 21, 1986, was entered granting Barbara Wing an arrearage of $7,400.00 for the annuity fund established for the child's benefit and granting Russell Wing thirty (30) days within which to fund an annuity contemplated by the property settlement agreement. The decree recited that Russell Wing would be given credit for a total sum of $1,143.00 for voluntary private school tuition. Attorney's fees of $250.00 and court costs were allowed and payment acknowledged by Barbara Wing. This order was signed by both attorneys. On October 21, 1986, a notice of appeal was filed by Russell Wing, with a notice to the court reporter and an appearance bond in the penal sum of $10,189.24 from the order entered October 20, 1986.

However, following these appeals, a subsequent judgment was entered on October 24, 1986, entering Barbara Wing's judgment for past due support of $13,736.40 ¹, plus a withholding order against Russell Wing's salary for $660.04 per month beginning November 1, 1986, attorney's fees of $1,100.00 and court costs. Additionally, since Russell Wing had not paid $7,014.39 arrearage owed (presumably for the annuity policy), Wing was ordered incarcerated until "such sum" (presumably the $7,014.39 figure), plus attorney's fees and court costs are paid."

II.

At the time of the Wings' divorce the parties entered into a Property Settlement Agreement which was made part of the judgment. Clause 2 states:

The Husband hereby agrees and obligates himself to pay to the Wife the sum of $400.00 per month for the support of said minor child beginning October 1, 1979, and on the first of each month thereafter until the said minor child shall marry, become self-supporting, became otherwise emancipated, or until order of this Court to the contrary. The Husband further agrees to increase said support each year according to the rate of inflation as set forth in the consumer price index. (emphasis added).

Russell Wing regularly paid $400.00 per month, although sometimes belatedly and despite personal financial difficulties. He also voluntarily paid additional sums for violin lessons, private schooling, and orthodontic work.

Barbara Wing presented testimony that Russell Wing was in arrears in the amount of $13,736.40. The testimony offered was taken from summary reports prepared by the Mississippi Employment Security Commission based on data released by the Bureau of Labor Statistics, Southeastern Regional Office, Atlanta, Georgia. Two consumer price indices were available, one for all urban workers and another for urban wage earners and clerical workers. All items were based upon United States City Averages. According to Barbara Wing's witness, the calculation would result in an increase in monthly child support to the sum of $660.04. ² Russell Wing offered different calculations which indicated an arrearage of only $7,014.39, at most.

The chancellor viewed Russell Wing's testimony as an admission that he had willfully failed to comply with the divorce decree and found the defendant in civil contempt.

In reviewing a judgment for contempt, this Court proceeds ab initio. It is our responsibility to determine whether on this record Russell Wing is guilty of civil contempt. Cook v. State, 483 So.2d 371, 374 (Miss.1986). Section 11-51-12 (Supp.1988), Appeal from Judgment of Civil Contempt, provides, in pertinent part:

A person ordered by any tribunal, except the supreme court, to be punished for a civil contempt, may appeal to the court to which other cases are appealable from said tribunal. If jail confinement is ordered to compel the payment of any monetary sum, the contemnor shall be allowed to appeal upon the execution of an appearance bond, payable to the appellee, with sufficient sureties, to be approved by the sheriff or other officer in whose custody the appellant may be, in the penalty of one hundred twenty-five percent (125%) of such sum as he has been adjudicated in contempt for failure to pay, unless the court shall determine that a lesser bond should be required. The bond shall be conditioned to abide the results of the appeal.

(2) Where the punishment for civil contempt is other than jail confinement, the contemnor shall be allowed to appeal upon the posting of a bond, payable to the appellee, with sufficient sureties, to be approved by the tribunal appealed from, in an amount to be fixed by such tribunal, conditioned to abide the results of the appeal.

(3) All appeals allowed in accordance with the provisions of this section shall operate as a supersedeas.

(4) The burden of proof in civil contempt shall be proof by a preponderance of the evidence.

The standard of review of a chancellor's finding of ultimate fact is limited. This Court upholds such a finding where there is substantial evidence consistent with the finding made by the Chancery Court. Wood v. Wood, 495 So.2d 503 (Miss.1986); Carr v. Carr, 480 So.2d 1120 (Miss.1985); Tucker v. Tucker, 453 So.2d 1294 (Miss.1984). Such finding will not be disturbed unless manifestly wrong. Wood, supra; Carr, supra. Our inquiry here is limited to whether or not the judgment is violated and this necessarily includes questions of whether or not it was possible to carry out the judgment of the Court. Ladner v. Ladner, 206 So.2d 620, 623 (Miss.1968).

It is axiomatic that before a person may be held in contempt of a court judgment, the judgment must "be complete within itself--containing no extraneous references, leaving open no matter or description or designation out of which contention may arise as to the meaning. Nor should a final decree leave open any judicial question to be determined by others, whether those others be the parties or be the officers charged with execution of the decree...." Morgan v. U.S. Fidelity & Guaranty Co., 191 So.2d 851, 854 (Miss.1966), quoting Griffith, supra, Sec. 625; see also, Miss.R.Civ.P. 65(d)(2); Hall v. Wood, 443 So.2d 834, 841-42 (Miss.1983); Aldridge v. Parr, 396 So.2d 1027 (Miss.1981); Webb v. Webb, 391 So.2d 981 (Miss.1980).

On reviewing the record, we disagree with the chancellor. The Property Settlement Agreement at issue is uncertain. Through his testimony, Russell Wing demonstrated that an "ordinary person reading the court's order" would not "be able to ascertain readily from the document itself exactly what conduct is prescribed or mandated." See Comment, Miss.R.Civ.P. 65(d). A genuine dispute existed over the amount owed, over the commencement year of the escalation clause, and over which Consumer Price Index was to be utilized. The uncertainty in the agreement may have resulted from the novelty, at that time, of using escalation clauses in divorce decrees. Furthermore, at the time this decree was prepared, this Court had not addressed the computation of these clauses. Notwithstanding that the chancellor had...