Holcomb Dunbar - North Mississippi Attorneys

This week’s divorce and child custody spotlight opinion from the Mississippi Court of Appeals

Fotolia_21995387_Subscription_Monthly_XXLThis week’s divorce and child custody spotlight opinion from the Mississippi Court of Appeals:

Marcus A. Crittenden v. Susan Crittenden

This matter arises from the parties’ cross claims of contempt.

By way of history, Marcus and Susan were married 1987. They had six sons and after 23-years of marriage, the parties each filed for divorce.  The chancellor awarded the couple joint legal custody minor children.  Marcus was ordered to $4,500 per month in child support and $1,000 per month in periodic alimony. The chancellor also evenly divided Marcus’s retirement accounts.  The marital home and the property surrounding were to be listed with a realtor and sold.  If, however, the home had not sold by October 8, 2011, the chancery clerk would be appointed as a special commissioner manage the sale

Thereafter, Susan filed a complaint for contempt alleging Marcus failed to pay the mortgage. Marcus responded with his own contempt charge asserting that Susan obstructed his efforts to sell the property. Indeed, Marcus alleged that Susan’s efforts in obstructing the sale, caused financial problems, and ultimately to his bankruptcy.  The bankruptcy court confirmed Marcus’ plan several months later, relieving Marcus of his mortgage obligations. And at the same time, Susan immediately became responsible for the same.

At trial on the contempt charges, the chancellor held that Susan was still obligated to sell the marital home. And because one of the children no longer lived with Susan, Marcus’s child-support obligation was reduced. And due to the events surrounding the property and Marcus’s bankruptcy, the chancellor increased Marcus’s periodic-alimony obligation to $4,000 per month. Marcus was also ordered to pay Susan $30,000 due to the sums which accrued on the mortgages

Each party appealed the order.

As for Marcus’ appeal, he asserts the following error: (1) declining to find Susan in contempt; (2) increasing Marcus’s alimony obligation from $2,500 per month to $4,000 per month; (3) awarding Susan $30,000 from his retirement; (4) declining to modify custody of Adam; and (5) declining to modify his child-support obligation more significantly than a decrease of $200 per month.

Susan claims the chancellor erred by: (1) declining to find Marcus in contempt for his failure to pay the mortgages; (2) declining to order Marcus to pay her attorney’s fees; and (3) failing to consider all of Marcus’s income when determining his child-support obligation. Additionally, Susan requests that this Court award her attorney’s fees related to her appeal.

Marital Property

The Court of Appeals found that there was not clear and convincing evidence that Susan prevented a potential buyer from viewing the marital home or the surrounding property. And thus affirmed that she was not in contempt.

Division of Personal Property

Moreover, the Court of Appeals affirmed that Susan was not in contempt over the failure to properly handle personal property as the order contained inconsistent statements regarding the same.  As such, it was within the chancellor’s discretion to decline to find Susan in contempt.

Visitation

Marcus claims to have submitted twenty-four requests for visitation to Susan, receiving only six responses.  Susan notes that she complied with eighteen of Marcus’s twenty-four written visitation responding to the others with various conflicts.

Again, the Court of Appeals found that the chancellor acted within his discretion when he declined to find Susan in contempt and affirmed on this ground as well.

Alimony

Marcus asserts error in that the alimony was wrongfully increased to $4,000 per month. “Alimony may be modified upon a showing that there has been a material and unanticipated change in circumstances.” D’Avignon v. D’Avignon, 945 So. 2d 401, 406 (Miss. Ct. App. 2006). “The material change must occur as a result of after-arising circumstances of the parties not reasonably anticipated at the time of the agreement.” Id.  The chancellor held that “[Marcus’s] bankruptcy and discharge of the debts constitute[s] a material change. This discharge is significant, in that all payments on the mortgages, which were [Marcus’s] responsibility, are now [Susan’s]. This has resulted in an increase in her expenses by over $5,000 monthly.” The chancellor further stated the bankruptcy “. . .  resulted in a great financial hardship on [Susan] and a great financial disparity between the parties, frustrating the clear goal of this Court.”  Again affirming the chancellor, the Court of Appeals wrote, “suffice it to say, we find that the chancellor implicitly considered a number of the Armstrong factors. It follows that we find no error in the chancellor’s decision to modify Marcus’s periodic-alimony obligation.”

Lump Sum Transfer of Retirement Funds

The chancellor found that that Marcus’s “bankruptcy and discharge of his debt on the marital home and property frustrated the . . . equitable distribution” of the marital estate and ordered him to transfer $30,000 to Susan.  The chancellor reasoned that the discharge of Marcus’ obligations resulted in a “disparity in the parties’ financial standings.”

The Court of Appeals declined to address this issue as “Marcus cited no authority to support this argument, it is procedurally barred.

Custody Modification

The Court of Appeals agreed that there had been a material change in the child’s circumstances. However, the Court noted that child in question was a full-time college student at the time of the hearing and that the child was not critical of Susan.  Accordingly, “based on the totality of the circumstances, [the court finds] that the chancellor did not abuse his discretion.”

Child Support

Addressing a chancellor’s ‘upward departure’ of child support guidelines, the court of Appeals cited Mississippi Code Annotated section 43-19-101 (Supp. 2013). The guidelines establish that there is a rebuttable presumption that an award of child support should be twenty-four percent of the noncustodial parent’s adjusted gross income when four children are due support. Miss. Code Ann. § 43-19-101(1). A chancellor may deviate from the statutory guidelines if he makes “an on-the-record finding that it would be unjust or inappropriate to apply the guidelines in the instant case.” Garcia, 97 So. 3d at 112 (¶12) (quoting Chesney v. Chesney, 910 So. 2d 1057, 1061 (¶7) (Miss. 2005)).”  And again, the Court of Appeals found no reversible error as to this issue.

As for Susan’s Cross-appeal:

Among other issues which were affirmed, Susan claims Marcus violated the Chancellor’s order in failing to pay the mortgage debts.   The Court of Appeals noted that “a citation for contempt is proper when the contemnor has willfully and deliberately ignored the order of the court.” Id. “The purpose of a civil contempt order is to coerce a part[y’s] compliance with a court order.” Id. at (¶46). “A payor’s failure to comply with a court order is prima facie evidence of contempt.” Id. at 1111 (¶46). “The burden then shifts to the defendant who may rebut the prima facie case by proving inability to pay, lack of willfulness regarding the contempt, ambiguity in the order’s provisions, or impossibility of performance.” Id.

At trial, testimony revealed that Marcus could not afford to pay the mortgages.  Moreover, testimony was offered regarding Susan’s obstruction of Marcus’s attempts to sell the marital home.  And again, the Court of Appeals affirmed the chancellor on this issue as well.

2018