E-Filed Document
Feb 3 2014 17:15:57
2013-CA-01189
Pages: 24
IN THE SUPREME COURT OF MISSISSIPPI
JOY ELIZABETH STEWART
VS.
APPELLEE
CAUSE NO. G2002-2010 T/1
JACK H. WILSON, JR.
APPELLANT
APPEAL FROM THE CHANCERY COURT OF THE FIRST JUDICIAL
DISTRICT OF HINDS COUNTY, MISSISSIPPI
_______________________________
BRIEF FOR THE APPELLANT
JACK H. WILSON, JR.
_______________________________
ORAL ARGUMENT REQUESTED
MICHAEL J. MALOUF, ESQ.
MSB NO. 1843
MELISSA A. MALOUF, ESQ
MSB NO. 99774
ROBERT E. JONES, ESQ.
MSB NO. 104442
Malouf & Malouf, PLLC
501 E. Capitol Street
Jackson, MS 39201
(601) 948-4320
CERTIFICATE OF INTERESTED PARTIES
The undersigned counsel of record certifies that the following listed persons have an
interest in the outcome of this case. These representations are made in order that the Justices of
the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible
disqualification or recusal:
1.
Jack H. Wilson
(Appellant)
2.
Michael J. Malouf, Esq.
Melissa A. Malouf, Esq.
Robert E. Jones, Esq.
(Counsel for Appellant)
3.
Joy E. Stewart
(Appellee)
4.
Anabel E. Wilson
Jack H. Wilson III
(Children of Jack H. Wilson and Joy E. Stewart)
5.
David Bridges, Esq.
(Counsel for Appellee)
6.
Honorable J. Dewayne Thomas
(Chancery Court Judge for the First Judicial District of Hinds County)
DATED this the 3rd day of February, 2014
RESPECTFULLY SUBMITTED
BY: /s/ Robert E. Jones
Robert E. Jones
MSB No. 104442
Malouf and Malouf, PLLC
501 E. Capitol Street
Jackson, Mississippi 39201
(601) 948-4320
i
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS…………………………………………………...i
TABLE OF CONTENTS………………………………………………………………………....ii
TABLE OF CASES AND OTHER AUTHORITIES…………………………………………….iv
STATEMENT OF THE ISSUES…………………………………………………………………1
STATEMENT OF THE CASE……………………………………………………………………1
A.
Course of the Proceedings and Disposition of the Court Below……………….....1
B.
Statement of the Facts……………………………………………………………..4
SUMMARY OF THE ARGUMENT……………………………………………………………..6
ARGUMENT……………………………………………………………………………………...8
Standard of Review………………………………………………………………..8
I.
Jay’s monthly child support obligation should have been calculated at $800.00 per
month……………………………………………………………………………...8
A.
Jay’s full performance of the modification agreement……………………8
B.
Impact of estoppel on Joy’s claims ……………………………………….9
C.
Jay’s substantial performance of the modification agreement ……………9
D.
Jay’s late payment of Joy’s attorney fees or post-modification child
support ………………………………………………………………...…10
II.
The Chancellor erred by finding Jay in willful contempt………………………..11
III.
The Chancellor erred by ordering Jay to pay college expenses postemancipation……………………………………………………………………..12
IV.
The Chancellor erred by ordering Jay to pay college expenses despite poor
academic performance…………………………………………………………...13
V.
The Chancellor erred by failing to give Jay child support credit for the time
Henley resided with Jay………………………………………………………….14
VI.
The Chancellor erred by ordering Jay to pay Joy’s attorney fees………………..14
ii
VII.
The Chancellor erred by ordering Jay to pay the majority of the special master
fees……………………………………………………………………………….15
Conclusion…………………………………………………………………….....16
CERTIFICATE OF SERVICE…………………………………………………………………..17
ADDENDUM…………………………………………………………………………………….A
iii
TABLE OF CASES AND OTHER AUTHORITIES
Cases:
Alexander v. Alexander
494 So. 2d 365 (Miss. 1986)……………………………………………………………………..14
Biglane v. Under the Hill Corp.
949 So. 2d 9 (Miss. 2007).………………………………………………………………………...8
Boleware v. Boleware
450 So. 2d 92 (Miss. 1984)………………………………………………………………………12
Brooks v. Brooks
652 So. 2d 1113 (Miss. 1995)……………………………………………………………………..8
Crow v. Crow
622 So. 2d 1226 (Miss. 1993)……………………………………………………………………12
Darby Lumber Co. v. Hill
48 So. 2d 484 (Miss. 1950)………………………………………………………………………..9
Dynasteel Corp. v. Aztec Indus., Inc.
611 So. 2d 977 (Miss. 1992)……………………………………………………………………..15
Evans v. Evans
75 So. 3d 1083 (Miss. Ct. App. 2011)…………………………………………………………...15
Hambrick v. Prestwood
382 So. 2d 474 (Miss. 1980)……………………………………………………………………..13
Howard v. Howard
913 So. 2d 1030 (Miss. Ct. App. 2005)………………………………………………………….11
Irving v. Irving
67 So. 3d 776 (Miss. 2011)……………………………………………………………………….9
Johnston v. Parham
758 So. 2d 443 (Miss. Ct. App. 2000)…………………………………………………………….8
Lewis v. Lewis
57 So. 2d 163 (Miss. 1952)…………………………………………………………………..11, 12
Mount v. Mount
624 So. 2d 1001 (Miss. 1993)……………………………………………………………………14
iv
Nichols v. Tedder
547 So. 2d 766 (Miss. 1989)……………………………………………………………………..12
Palmere v. Curtis
789 So. 2d 126 (Miss. Ct. App. 2001)…………………………………………………………...12
Stokes v. Maris
596 So. 2d 879 (Miss. 1992)……………………………………………………………………..12
Varner v. Varner
666 So. 2d 493 (Miss. 1995)……………………………………………………………………..10
Westerburg v. Westerburg
853 So. 2d 826 (Miss. Ct. App. 2003)…………………………………………………………...11
v
STATEMENT OF THE ISSUES
I.
Whether Jay’s monthly child support obligation should have been calculated at
$800.00 per month.
II.
Whether the Chancellor erred by finding Jay in willful contempt.
III.
Whether the Chancellor erred by ordering that Jay continue to pay the children’s
college expenses post-emancipation.
IV.
Whether the Chancellor erred by ordering that Jay continue to pay college
expenses despite poor academic performance.
V.
Whether the Chancellor erred by failing to give Jay child support credit for the
time Henley resided with Jay.
VI.
Whether the Chancellor erred by ordering Jay to pay Joy’s attorney fees.
VII.
Whether the Chancellor erred by ordering Jay to pay the majority of the special
master fees.
STATEMENT OF THE CASE
A. Course of the Proceedings and Disposition of the Court Below
Appellant, Jack H. Wilson (“Jay”), and Appellee, Ms. Joy E. Stewart (“Joy”), were
divorced due to irreconcilable differences on February 12, 2003. (R. at 27.) Jay and Joy agreed
to joint custody of their minor children, Madison Claire Wilson (“Madison”), born December 20,
1988; Anabel Elizabeth Wilson (“Anabel”), born April 12, 1991; and Jack Henley Wilson III
(“Henley”), born June 5, 1992. (R. at 31.) Joy received sole physical custody, and Jay agreed to
pay $1,700.00 per month in child support. (R. at 32.) Jay also agreed to pay the minor
children’s private school tuition, college expenses, half of the costs for extracurricular activities,
half of all uncovered medical, optical, dental, and orthodontic bills, and to provide health and
hospitalization insurance for the children. (R. at 32.) Approximately eighteen (18) months after
the divorce was entered, Jay lost his job. (R. at 68.) On March 7, 2005, the parties entered an
Agreed Order Modifying Judgment of Divorce – Irreconcilable Differences. (R. at 119.) Per the
1
agreement, beginning in April of 2005, Jay’s child support obligation would be reduced to
$800.00 per month, if Jay timely paid his child support arrearage of $9,052.00. (R. at 120.) Jay
mistakenly paid $9,000.00 in accordance with the agreement, not realizing he was short of the
arrearage.
On July 20, 2011, Joy filed an Amended Petition for Contempt of Court and Other Relief.
(R. at 172.) An Agreed Order of Reference to Master was entered on April 25, 2012. (R. at
219.) The master analyzed the evidence presented by the parties, but did not hear testimony in
open court. (See R. at 221.) The master filed his report on November 21, 2012. (R. at 324.)
The master recommended a finding that Jay had not sufficiently performed his side of the
modification agreement, so back support obligations should be calculated at $1,700.00 per
month. (R. at 325-29.) The master based this recommendation on a finding that Jay had failed
to pay $52.00 of the $9,052 arrearage and $500.00 of Joy’s attorney fees. (R. at 326.) The
master also considered a missed child support payment in April of 2005. (R. at 326.)
Additionally, the master made the following recommendations in his report: Jay should pay the
education costs of Anabel, even post-emancipation; Jay should pay $2,524.90 in past
extracurricular activities; post-judgment interest of 6% should be assessed to amounts unpaid by
Jay, while no pre-judgment interest was ordered; Jay should pay $31,070.50 for Joy’s attorney
fees and $4,430 in special master’s fees; and there was insufficient evidence to prove Jay was
unable to pay the amounts owed. (R. at 324-39, 955.) This amounted to $132,255.90, before
interest. (R. at 340.)
On December 18, 2012, Chancellor Dewayne Thomas entered an Order Adopting in Part
and Revising in Part Report of Master. (R. at 901.) This order reduced the post-judgment
interest to 4%, to reflect the economic climate of the time, but awarded prejudgment interest at
2
the same rate. (R. at 903.) The court ordered Jay to provide education support for his children
past the age of majority, until the earlier of the children’s graduation or their reaching the age of
twenty-three (23). (R. at 903-04.) In the Final Judgment, the Chancellor added an additional
$5,180.94 for Anabel’s college expenses, $1,530 for Henley’s college expenses, $12,414.79 in
child support, and $29,062.42 in attorney fees. (R. at 954-55.) This comes to a grand total of
$197,802.74, interest included. (R. at 955.)
Joy filed a Second Amended Petition for Contempt on February 11, 2013, alleging that
Jay failed to abide by the terms of the Order Adopting in Part and Reversing in Part Report of
Master entered on December 18, 2012. (R. at 921-23.) Joy alleged that Jay failed to abide by
the following orders: failure to pay Joy $10,000.00 by January 1, 2013; failure to pay Joy
$2,000.00 by January 1, 2013; failure to pay $2,000.00 by February 1, 2013; failure to pay child
support due February 1, 2013; failure to pay Anabel’s college expenses for the spring semester of
2013; and failure to pay Henley’s college expenses for the 2012-2013 school year. (R. at 923.)
In the Final Judgment, the court found Jay in willful contempt of court. (R. at 955.) The
court awarded Joy a judgment against Jay totaling $197,802.74, with post judgment interest on
all amounts at the rate of 4% per annum. (R. at 955.) The Chancellor suspended the immediate
incarceration of Jay with the conditions that Jay pay Joy $5,000.00 by June 21, 2013; $5,000.00
by July 14, 2013; and $2,000.00 a month, beginning August 1, 2013, until the judgment is paid
in full; that Jay fully comply with all other requirements of the Order Adopting in Part and
Revising in Part Report of Master; and that Jay pay the appointed master the sum of $2,380.00
within sixty (60) days of the judgment. (R. at 956.)
3
B. Statement of the Facts
Pursuant to the Agreed Order Modifying Judgment of Divorce – Irreconcilable
Differences entered on March 7, 2005, Jay mistakenly paid Joy $4,500.00 in March of 2005 and
$4,500.00 in April of 2005, instead of two payments of $4,526. (R. at 327.) Jay paid $500.00 in
Joy’s attorney fees in March of 2005. Jay paid the balance of $500.00 in May of 2008 upon
notice, from Joy’s attorney, that he had forgotten to do so. (R. at 327.) Jay also paid his
children’s cellular phone bill, $58.55, in March of 2005. (R. at 605.) Joy accepted the arrearage
payment of $9,000 and never complained or objected that the amount was insufficient nor was
anything ever filed by Joy to evidence her disapproval of the lowered monthly payment.
Transcript of Hearing at 57, Wilson v. Stewart, Case No. 2013-CA-01189 (5th Ch. 2013). Neither
Joy nor her attorney explained to Jay that he had made a mistake or that said payments were
unacceptable. Transcript of Hearing at 56, Wilson v. Stewart, Case No. 2013-CA-01189 (5th Ch.
2013). Pursuant to the modification agreement, Jay began paying the agreed upon $800.00 per
month. (R. at 202-03.) The total paid by Jay each month fluctuated with his ability to pay. (R.
at 202-03.)
All three of Jay’s children have now reached the age of majority. Madison was
emancipated upon her marriage on May 29, 2009. (R. at 328.) Anabel was emancipated on
April 12, 2012, her twenty-first (21st) birthday, and Henley was emancipated on his twenty-first
(21st) birthday June 5, 2013. At the time of the Report of the Master, Anabel was emancipated,
and attended Mississippi State University. (R. at 329.) Anabel refuses to talk to or visit Jay, but
gave no reason for the strained relationship in her affidavit filed April 28, 2012. (R. at 443-446.)
The Chancellor found Jay was a contributing factor to the strain, but recited no facts supporting
such a conclusion. (R. at 953.)
4
Henley also refuses to talk to or visit Jay, though Henley lived with Jay during his 8th
grade year of school, between 2006 and 2007; in September of 2009 through November of 2009;
February of 2010 through April of 2010; and in July of 2010 through August of 2010. (R. at
908, 953.) Following the spring semester of 2012 at Mississippi State University, in which
Henley achieved a 0.84 grade point average, Jay no longer wanted to pay for Henley’s education.
(R. at 857.) Henley had a history of not taking academics seriously and shirking his school
work. (R. at 445.) In high school, Henley would play video games for hours and made a habit of
missing homework assignments, skipping tutoring sessions, and consistently being absent or
tardy. (R. at 445.) Frustrated, Jay repeatedly chastised Henley about his grades and the
importance of performing better. (R. at 845.) This caused the relationship between Henley and
Jay to deteriorate to a point of nonexistence. (R. at 845.)
In September of 2012, Jay last filed an 8.05 Financial Statement. (R. at 865.) Jay
approximated his net monthly pay to be $5,652.00 and his total monthly expenses to exceed
$8,610.00. (R. at 865.) This amounts to an approximation of an almost $3,000.00 deficit per
month. Jay approximated his available assets at a total of $11,500.00. (R. at 870.) Henley
stated in an affidavit that he receives phone calls from bill collectors mistaking him for his
father. (Supp. R. at 452.)
5
SUMMARY OF THE ARGUMENT
Jay fully complied or, at a minimum, substantially complied with the modification
agreement and should receive the benefit of the lower monthly child support payment. In order
to satisfy the divorce modification agreement, Jay was to pay Joy $4,526 in March of 2005 and
$4,526 in April of 2005. Instead, Jay paid Joy $4,500 in March of 2005, $58.55 in March of
2005 in the form of the children’s cell phone bill, and $4,500 in April of 2005. This totals
$9,058.55, so Jay fully complied with the modification agreement. Alternatively, if the cell
phone bill is not considered, Jay substantially complied with the modification agreement. Jay
paid $9,000 out of the $9,052. Because Jay paid almost 99.5% of the amount owed, he should
receive the benefit of the agreement. Any delay by Jay in paying Joy’s attorney fees should not
be considered in regards to the modification agreement, as the agreement only called for the
timely payment of “back child support.” Finally, Joy is estopped from arguing for a higher
child support rate, since she accepted the lowered amount, without objection, for over six years.
The Chancellor also erred by finding Jay in willful contempt, inasmuch as inability to pay
is a complete defense to a contempt action. Jay was financially unable to pay his support
obligations, so a finding of willful contempt was inappropriate. Further, even if Jay was in
willful contempt, incarceration is inappropriate due to Jay’s financial difficulties. The
Chancellor also erred by ordering Jay to pay college expenses post-emancipation, as the court
lacks the authority, absent an agreement between the parties, to do so. Also, Jay should not be
forced to pay for Henley’s college expenses, due to Henley’s poor academic performance. The
Chancellor also erred in not providing Jay with a child support credit for the time that Henley
resided with Jay and for the time the children were attending college. To allow Joy to continue
to benefit from the payments, while her burden was lessened, would unjustly enrich Joy. Finally,
6
due to Jay’s financial situation and inability to pay, the Chancellor erred in ordering Jay to pay
for Joy’s attorney fees and the special master fees.
7
ARGUMENT
Standard of Review
This court applies a de novo standard of review for questions of law. Brooks v. Brooks,
652 So. 2d 1113, 1117 (Miss. 1995). The standard of review for the factual findings of a
Chancellor is whether the Chancellor abused his discretion or was manifestly wrong, whether the
Chancellor’s findings were clearly erroneous, or whether the Chancellor applied an erroneous
legal standard. Biglane v. Under the Hill Corp., 949 So. 2d 9, 13-14 (Miss. 2007).
The Chancellor erred both in finding Jay in contempt of a court order and in calculating
the monetary amount Jay owes Joy.
I.
Jay’s monthly child support obligation should have been calculated at
$800.00 per month.
Jay fully or, at a minimum, substantially complied with the stipulation of the divorce
modification and should receive the benefit of that agreement. Therefore, Jay’s child support
obligation would be reduced from $1,700.00 per month to $800 per month. The agreement
stated, “should Jay fail to timely pay either or both installments of back child support . . . the
modification of child support shall be null and void, and the original child support of $1,700.00 a
month . . . shall be reinstated.” (emphasis added).
A.
Jay’s full performance of the modification agreement.
Jay should be given credit for the children’s phone bill which he paid in March of 2005.
Mississippi law allows non-custodial parents to receive credit for having paid child support when
that parent provides support directly to the child which would otherwise unjustly enrich the
custodial parent. Johnston v. Parham, 758 So. 2d 443, 446 (Miss. Ct. App. 2000). In Johnston,
a father was given a credit for back child support in the amount he gave to his daughter as cash
payments given directly to his daughter. Here, Jay gave his children a cash payment, in the form
8
of a cellular phone bill, totaling $58.55 in March of 2005. Jay was under no obligation to pay for
his children’s cellular phones and should be given a credit for this amount deducted from the
owed child support. Therefore, Jay paid $4,558.55 ($4,500 to Joy plus $58.55 for the cell phone
bill) in March of 2005 and $4,500 in April of 2005, totaling $9,058.55. Since this amount is
larger than the owed $9,052, Jay satisfied his payment of the $9,052.00 per the modified divorce
agreement.
B.
Impact of estoppel on Joy’s claims.
Joy is estopped from now arguing that Jay owes $1,700 per month after accepting
$800.00 per month for more than six years. One of the maxims of equity is, “equity aids the
vigilant, and not those who slumber on their rights.” Irving v. Irving, 67 So. 3d 776, 779 (Miss.
2011). After paying Joy $9,000.00, Jay began paying the reduced rate of $800.00 per month.
Joy accepted, without objection, this payment for over six years, until she filed her Motion for
Contempt in April of 2011. The amount of past due child support, calculated at the lower
monthly amount, should be $65,550.00. This calculation includes $800.00 per month from April
of 2005 to May of 2009 and $730.00 (to account for Madison’s emancipation: $1,545.00 per
month divided by $1,700.00 per month, multiplied by $800.00) from June of 2009 to April of
2012.
C.
Jay’s substantial performance of the modification agreement.
Alternatively, Jay substantially performed his responsibilities under the agreed
modification. Chancery courts are courts of equity. See Miss. Const. art. § 159. In Darby
Lumber Co. v. Hill, the Supreme Court of Mississippi stated, “[i]n equity it has been generally
held that, where a contract has been substantially performed, the party so performing may
recover as for a completed performance, less such damages as the other party may have been put
9
to by reason of the matters not performed.” 48 So. 2d 484, 489 (Miss. 1950). It is helpful to
consider the divorce modification a quasi-contract, as this court did in Varner v. Varner. 666 So.
2d 493, 496 (Miss. 1995). Here, Jay mistakenly paid to Joy two payments of $4,500.00 in March
and April of 2005, instead of $4,526. Jay paid almost 99.5% of the total arrearage. Therefore, it
is unreasonable to find that Jay did not substantially comply with the terms of the agreement.
It is inequitable to charge Jay over $70,000.00 for a mutual mistake which neither party
recognized. After Jay paid the $9,000 arrearage, both parties acted as if the agreement had been
satisfied. For six years, Joy accepted Jay’s $800 monthly payment for child support and never
objected or complained about the lowered amount or that the agreement had not been satisfied.
Joy never filed anything reflecting disapproval of the lowered monthly payments. Only after Joy
filed a petition for contempt in July of 2011 did she first raise this issue.
D.
Jay’s late payment of Joy’s attorney fees or post-modification child
support.
The delay in payment of Joy’s attorney fees should have no effect on the modification of
child support payments. The language of the divorce modification states only that the reduction
in child support payments was contingent upon the payment of “back child support.” Yet, the
master, in the Report of the Master, stated, “Jay did not simply fail to timely pay $52 in April
2005. Instead, he failed to timely pay $800 (what would have been at that time the current child
support owed for April 2005), $500 (attorney’s fee owed to William Wright in April 2005), and
$52 (balance of the arrearage owed to Joy in April 2005).” (R. at 327.) The master erred in
using such a basis in his opinion. Any delay by Jay in paying Joy’s attorney fees should have no
impact on the reduction in child support payments. Additionally, the $800.00 in child support
Jay mistakenly failed to pay in April of 2005 should have no impact on modification. As the
10
master concluded, any failure by Jay to pay the lowered monthly child support would not affect
the modification.
II.
The Chancellor erred by finding Jay in willful contempt.
Due to financial hardship, Jay was unable to timely pay his support obligations and
should not have been found in contempt. The remedy of contempt requires that a violation be
willful. Westerburg v. Westerburg, 853 So. 2d 826, 828 (Miss. Ct. App. 2003). Consequently,
inability to pay is a recognized defense to contempt. Howard v. Howard, 913 So. 2d 1030, 1039
(Miss. Ct. App. 2005). Jay was financially unable to pay his support obligations. Because of
this, the Chancellor erred in finding Jay in contempt. Jay submitted to the court an 8.05 financial
statement showing both his income and debts. Jay listed a monthly income of $5,652.00 and
monthly expenses exceeding $8,600.00. Moreover, Jay’s 8.05 financial statement reflects that
Jay has $11,500 in total assets and is approximately $100,233.00 in debt. It is evident that Jay is
struggling to make ends meet and cannot afford his support obligations. Henley even stated in
his affidavit that multiple bill collectors have called him seeking payment, mistaking him for his
father. Jay is without a monetary well with which he can pay his owed support obligations.
Incarcerating Jay due to his inability to pay does not provide a solution to the problem, but only
exacerbates it. This would amount to nothing less than sentencing Jay to a debtor’s prison, as the
loss of his earning capability would create a permanent state of contempt.
Additionally, incarceration is an improper means of punishment, if Jay failed to comply
with the requirements of the Order Adopting in Part and Revising in Part Report of Master. In
Lewis v. Lewis, the Supreme Court of Mississippi held that the court’s “power to commit a
divorced husband to jail until he complies with the decree requiring him to make monthly
payments for support and maintenance depends on his then present ability to comply with the
11
decree, and that, in determining such ability, the amount of past earnings and how they have
been expended is not controlling.” 57 So. 2d 163, 165 (Miss. 1952). In Lewis, the lower court
had ordered a husband to be incarcerated for failure to pay owed support payments. The
Supreme Court of Mississippi found that this was an improper sanction, due to the husband’s
inability to pay his owed obligations. Id. at 165. The court found that the husband’s failure to
seek a divorce modification was insufficient to warrant incarceration. Id. at 166. In this case,
Jay has provided financial information sufficient to show an inability to pay the judgment against
him.
III.
The Chancellor erred by ordering Jay to pay college expenses postemancipation.
The Chancellor should have terminated Jay’s obligation to pay college expenses upon the
children’s emancipation. A parent is under no legal obligation to support his child after the child
has been emancipated. Nichols v. Tedder, 547 So. 2d 766, 770 (Miss. 1989). Further, a court
may not order a parent to provide child support post-majority. Stokes v. Maris, 596 So. 2d 879,
882 (Miss. 1992). This duty may only be extended if a parent contracts to provide for the
additional expenses. Crow v. Crow, 622 So. 2d 1226, 1230 (Miss. 1993). And, the Chancellor is
without authority to create an agreement where there has not been mutual assent. Palmere v.
Curtis, 789 So. 2d 126, 132 (Miss. Ct. App. 2001). Whether such a contractual duty exists is
dependent on the proof and circumstances presented. Boleware v. Boleware, 450 So. 2d 92, 92
(Miss. 1984). In Boleware, the Supreme Court of Mississippi found “all college expenses of the
minor children” in an education support clause to imply a post-emancipation responsibility of the
father to pay for education expenses post-emancipation, because the court found that the parties
intended at the time of the contract to extend the support obligation past the age of twenty-one
(21). Id.
12
In this case, there is no such contractual agreement extending Jay’s duty to provide for
college expenses. In fact, Section II, Paragraph C of the Marital Dissolution, Child Custody, and
Child & Spousal Support Agreement specifically states, “Jay shall bear . . . the full costs of all
college expenses of the minor children” (emphasis added.) Such language clearly shows that Jay
did not knowingly and willingly agree to provide for college expenses after his children reached
the age of majority. The Chancellor disregarded this, ordering Jay to pay for college expenses
post-emancipation to make up the owed child support. The Chancellor also failed to determine,
as the Court did in Boleware, that Jay and Joy intended at the time of the divorce agreement to
extend the support obligation past the age of twenty-one (21). The only other possible
consideration is that this seemingly clear language is ambiguous. If the language is ambiguous,
Jay could not have knowingly and willfully agreed to pay for college post-emancipation. This
lack of mutual assent cannot obligate Jay beyond the children’s twenty-first (21st) birthday. As
all three of Jay’s children have now reached the age of majority, Jay’s obligation should be
terminated.
IV.
The Chancellor erred by ordering Jay to pay college expenses despite poor
academic performance.
The Chancellor should have terminated Jay’s responsibility to pay for Henley’s college
expenses due to Henley’s poor academic performance. In Hambrick v. Prestwood, the Supreme
Court of Mississippi held a parent’s duty to support a child in college is dependent on the child’s
aptitude, qualifications for college, and the child’s behavior towards and relationship with the
parent. 382 So. 2d 474, 477 (Miss. 1980). Such a standard should be applied to this case. The
Chancellor refused to limit Jay’s financial obligation regarding Henley’s college education,
despite Henley’s poor academic performance. Henley’s academic track record, including his
most recent .84 grade point average in the 2012 spring semester at Mississippi State University,
13
shows a shortcoming of the maturity and responsibility necessary to benefit from attending
college. Instead of providing for Henley’s education, Jay would be paying for an extended
vacation in a college town. Furthermore, a relationship between Jay and Henley is nonexistent,
as Henley has severed all ties with Jay. The Chancellor erred by not relieving Jay of the burden
of paying for Henley’s college.
V.
The Chancellor erred by failing to give Jay child support credit for the time
Henley resided with Jay.
The Chancellor erred in not providing Jay a child support credit for the periods Henley
resided with Jay. Child support payments belong to the children being supported by said
payments. Alexander v. Alexander, 494 So. 2d 365, 367 (Miss. 1986). The support obligation
arises out of the fiduciary duty a parent owes his or her child. Id. at 368. These payments are
not a secondary form of alimony. In Alexander, the Supreme Court of Mississippi considered
whether a former custodial parent was owed child support payments after the child moved in
with the other parent. The court held that to allow a non-custodial parent to retain child support
payments would result in unjust enrichment and a monetary windfall for that parent. Id. This
case is no different. Henley lived with Jay during his 8th grade year of school between 2006 and
2007; in September of 2009 through November of 2009; in February of 2010 through April of
2010; and in July of 2010 through August of 2010. As a result, Joy was not providing support
for Henley during the seventeen (17) months he lived with Jay. The Chancellor erred by not
giving Jay a credit for these periods.
VI.
The Chancellor erred by ordering Jay to pay Joy’s attorney fees.
Jay is not financially able to pay attorney fees, so the Chancellor erred by ordering him
to. A party found to be in contempt of court may be liable for resulting attorney fees. Mount v.
Mount, 624 So. 2d 1001, 1005 (Miss. 1993). But, the awarding of attorney fees is at the
14
discretion of the Chancellor. Evans v. Evans, 75 So. 3d 1083, 1089 (Miss. Ct. App. 2011).
Generally, the Chancellor may only award attorney fees to a party showing an inability to pay his
or her own fees. Id. An award of attorney fees is inappropriate, however, where neither party
can pay more than his or her own fees. Id. Here, as described in Section II, the Chancellor erred
by finding Jay in contempt. Moreover, the Chancellor made no finding regarding Joy’s inability
to pay for her own fees, even though such a finding would not be dispositive of the issue. As
previously explained, Jay is financially unable to pay his past support obligations and obviously
would not be able to pay Joy’s attorney in addition to his current responsibilities. The
Chancellor’s order that Jay pay over $60,000 for Joy’s attorney fees was an abuse of discretion
and should be reversed.
Alternatively, the amount in attorney fees, if any, Jay is ordered to pay should be
reduced. In collection actions, there is a presumption favoring an award of attorney fees in the
amount of one-third of the indebtedness. Dynasteel Corp. v. Aztec Indus., Inc., 611 So. 2d 977,
987 (Miss. 1992). The Chancellor relied on this presumption in determining that Joy’s attorney
fees were reasonable. However, the Chancellor used an incorrect amount of indebtedness to
calculate the award. The arrearage owed by Jay should be reduced for all the reasons stated
above. Therefore, should the Court decide to award attorney fees, the amount should, at a
minimum, be reduced by any commensurate reduction in the total amount owed by Jay.
VII.
The Chancellor erred by ordering Jay to pay the majority of special master
fees.
The Chancellor should have considered Jay’s financial situation before ordering him to
pay the majority of the special master fees, over $4,400. As previously explained, any award
granted to Joy will already place a great strain on Jay to pay. Piling on additional costs would
only deepen Jay’s financial hole. Therefore, it would be inequitable to force Jay to bear the
15
burden of paying the balance, and the Chancellor should have ordered the parties to split the
special master fees.
Conclusion
For the foregoing reasons, the Chancellor erred by entering a $197,802.74 judgment
against Jay. The basis for a large portion of the almost $200,000 judgment revolves around an
oversight of the parties totaling $52.00. Jay requests this Court to reverse the lower court in this
matter and render a judgment in the amount of $23,531.40 without interest. This is calculated
using the same information from March of 2005 to November of 2012 utilized by the master in
his report, with the aforementioned corrections substituted. (R. at 344.) Jay owed or owes
$10,052.00 in arrearage; $40,000.00 in child support from April 2005 to May 2009; $25,550.00
in child support from June of 2009 to April of 2012; $11,551.89 in college expenses; $2,254.90
in miscellaneous expenses as determined by the special master; and an NSF charge of $22.00.
This balance is $89,380.79. Jay should receive a credit of $54,730.39 for child support payments
made during that time; a credit of $8,060.00 for payments made directly to his children; a credit
of $2,805.00 for Anabel’s trip to Italy; and a credit of $304.00 to account for previously
misapportioned photography expenses. (See Addendum.) This leaves a total of $23,531.40,
excluding any prejudgment or post-judgment interest. Alternatively, Jay asks that this matter be
reversed and remanded on all issues.
16
CERTIFICATE OF SERVICE
I, Robert E. Jones, attorney for Appellant Jack H. Wilson, do hereby certify that I have
this day filed with the Clerk of the Supreme Court, via the MEC system, a true and correct copy
of the above and foregoing Brief of the Appellant, which sent electronic notification of such
filing to David Bridges, Esq.
I further certify that I have this day sent via U.S. Mail postage prepaid, a true and correct
copy of the above and foregoing Brief of the Appellant to the Honorable J. Dewayne Thomas,
Hinds County Chancery Court Judge, P.O. Box 686, Jackson, Mississippi 39205.
DATED this the 3rd day of February, 2014
BY:/s/ Robert E. Jones
Attorney for Appellant
MICHAEL J. MALOUF, ESQ.
MSB NO. 1843
MELISSA A. MALOUF, ESQ.
MSB NO. 99774
ROBERT E. JONES, ESQ.
MSB NO. 104442
Malouf & Malouf, PLLC
501 E. Capitol Street
Jackson, Mississippi 39201
(601) 948-4320
17
ADDENDUM
Description
Amount
Amounts Owed by Jay
Child support arrearage as of March
7, 2005 (including $500.00 in
attorney fees)
$800.00 in child support for 50
months (April of 2005 - May of
2009)
$730.00 in child support for 35
months (June of 2009 - April of
2012)
College expenses paid by Joy
(Special Master figure)
Miscellaneous expenses paid by Joy
(Special Master figure)
NSF Charges for checks given to Joy
(Special Master figure)
Total
Amounts Credited to Jay
Child support payments made to Joy
by Jay
Payments made directly to children
(Special Master figure)
Anabel's trip to Italy (Special Master
figure)
Anabel's trip to Italy (Previous
credity by judge)
Credit agreed upon by attorneys
(Previous credit by judge)
Total
Total Owed by Jay
$10,052.00
$40,000.00
$25,550.00
$11,551.89
$2,254.90
$22.00
$89,430.79
$54,730.39
$8,060.00
$805.00
$2,000.00
$304.00
$65,899.39
$23,531.40
A