Ronald W. Jurney v. Missie Slay Jurney
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-00681-COA
RONALD W. JURNEY
APPELLANT
v.
MISSIE SLAY JURNEY
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEE
12/14/2003
HON. WILLIAM HALE SINGLETARY
HINDS COUNTY CHANCERY COURT
SHARON PATTERSON THIBODEAUX
JOHN ROBERT WHITE
CIVIL - DOMESTIC RELATIONS
CHANCELLOR DISMISSED APPELLANT’S
CONTEMPT PETITION AND ORDERED HIM TO
PAY APPELLEE $6,936.46 IN ATTORNEY’S
FEES.
AFFIRMED IN PART; REVERSED AND
RENDERED IN PART: 08/16/05
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE LEE, P.J., IRVING AND CHANDLER, JJ.
IRVING, J., FOR THE COURT:
¶1.
Ronald Jurney and Missie Slay Jurney were divorced in August 1998. Thereafter, Ronald filed a
petition for contempt, alleging that Missie had failed to abide by certain terms of the divorce decree.
Ronald specifically alleged that Missie failed to maintain a wholesome environment for the parties’ two
minor sons, and failed to pay certain medical expenses in accordance with the judgment of divorce. The
chancellor entered an order declining to find Missie in contempt and ordered Ronald to pay Missie’s
attorney’s fees. On appeal, Ronald contends that the chancellor erred in failing to find Missie in contempt
of the divorce decree and in awarding Missie attorney’s fees. Ronald further contends that Missie came
into court with unclean hands, and as a result the chancellor erred in awarding her relief.
¶2.
We find merit in Ronald’s argument regarding the chancellor’s award of attorney’s fees to Missie.
Therefore, we reverse and render the chancellor’s decision on this issue but affirm the chancellor’s decision
not finding Missie in contempt.
FACTS
¶3.
In 1998, Ronald and Missie were granted an irreconcilable differences divorce. Pursuant to the
child custody and property settlement agreement incorporated into the judgment of divorce, Missie was
granted custody of the parties’ two minor sons, and Ronald was granted reasonable visitation. The divorce
decree further provided that the parties maintain a wholesome environment for the minor children and
ordered each party to pay one-half of the children’s medical expenses.
¶4.
In February 2003, Ronald filed a petition for contempt against Missie, alleging (1) that Missie had
violated the provision of the divorce decree which prohibits the parties from subjecting the minor children
to an unwholesome environment, and (2) that Missie had refused to pay her portion of a medical expense
for the parties’ minor children. The amount was $105 and was owed to Horizons Credit LLCC. Ronald
also sought custody of both children, and alternatively, petitioned the court for a reduction in his child
support obligation and for a modification of the decree’s visitation provision in the event the chancellor
failed to award him custody. Ronald further requested an award of attorney’s fees and court costs.
¶5.
In response to the petition, Missie filed an answer and counterclaim seeking an increase in child
support payments, and requesting an award of attorney’s fees.
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¶6.
After a hearing on the issues presented, the chancellor refused to find Missie in contempt of the
divorce decree and granted her request for an increase in child support. The chancellor also awarded
Missie $6,936.46 in attorney’s fees .1 Additional facts will be related during our discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶7.
“[This Court’s] scope of review in domestic relations matters is limited.” Sandlin v. Sandlin, 699
So. 2d 1198, 1203 (Miss. 1997). “[We] will not disturb the findings of a chancellor unless the chancellor
was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. (quoting
Ferguson v. Ferguson, 639 So. 2d 921, 930 (Miss. 1994)). “In other words, on appeal [we] are
required to respect the findings of fact by the chancellor [which are] supported by credible evidence and
not manifestly wrong.” Id.
(1) Contempt
¶8.
In his first two assignments of error, Ronald argues that the chancellor erred in declining to find
Missie in contempt of the divorce decree. Ronald contends that the chancellor should have found Missie
in contempt due to her failure to pay $105 in medical expenses and for failing to provide a wholesome living
environment for the parties’ children. For the sake of brevity, we will discuss both issues together.
¶9.
During the hearing, Ronald presented undisputed evidence that at the time of the filing of his
contempt action, Missie had not paid her share of the medicalexpenses despite repeated requests from him
to do so. Ronald also testified that Missie had subjected the children to an immoral environment by living
with a man with whom she was romantically involved. Missie admitted that she lived with her children, for
1
The record reflects that during the hearing, Ronald withdrew his claims for custody and for a
reduction in child support, and the parties voluntarily entered into a new visitation agreement.
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a little more than two months, in the home of a man with whom she was romantically involved. She
explained that she initially moved out of her home because of mold problems. Her insurance company paid
for her to move into an apartment. However, she made several moves while waiting on the house to be
repaired. One of the moves was to the home of her male friend. Missie contends that because she paid
her share of the medical expense two months prior to trial and changed her living arrangements seven
months prior to the date of the trial, any alleged contempt had been cured before the hearing. At the
conclusion of the hearing, the chancellor did not determine whether Missie had violated either of the two
provisions of the judgment of divorce in question. However, the chancellor declined to find Missie in
contempt
¶10.
We give deference to the chancellor’s decision. It is well-settled law that “‘[c]ontempt matters
are committed to the substantial discretion of the trial court which, by institutional circumstances and both
temporal and visual proximity, is infinitely more competent to decide the matter than [this Court].’” Varner
v. Varner, 666 So. 2d 493, 496 (Miss. 1995) (quoting Morreale v. Morreale, 646 So. 2d 1264, 1267
(Miss. 1994)). Here, the chancellor was clearly in a position to observe the demeanor of the parties and
assess their credibility. Evidently, after hearing testimony from both parties and considering the evidence,
the chancellor was not persuaded that Missie had willfully violated the divorce decree. Accordingly, we
decline to disturb the chancellor’s exercise of discretion on this issue.
(2) Attorney’s Fees
¶11.
Ronald next challenges the chancellor’s award of attorney’s fees to Missie. In support of his
argument, he relies heavily on Smith v. Smith, 545 So. 2d 725 (Miss. 1989). In Smith, a chancellor
declined to find the appellant’s ex-wife in contempt and awarded her $300 in attorney’s fees even though
she admittedly failed to comply with the divorce decree. Id. at 726-27. On appeal, the Mississippi
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Supreme Court affirmed the chancellor’s decision not to hold the ex-wife in contempt but reversed and
rendered the award of attorney’s fees. Id. at 728-29. In affirming the decision not to hold the ex-wife in
contempt, the Court, however, noted:
Beverly Smith cannot, without sanction of the Court, decide when or how she will comply
with court judgments. Further, Howard Smith is entitled to protection of the chancery
court, and he is entitled to have the court’s protection and help in enforcing the court’s
order, and this Court will require where necessary a trial court to see that its orders are
followed. The trial court was lenient on Beverly Smith, but denied Howard Smith the use
of appropriate petitions to exercise his court-granted and approved rights. Howard Smith
too must have a remedy. Beverly Smith must comply with the chancery court’s judgment.
Id. at 728.
Similarly, in reversing the award of attorneys’ fees, the Court stated:
Because there was no evidence presented to the Court in regard to attorney fees by
Beverly Smith and because for this Court to approve attorney fees in this instance would
be to reward Beverly Smith even though she admittedly refused to carry out the order of
the court, this Court will reverse as to attorney’s fees. Id. at 729.
¶12.
We find Smith helpful to the resolution of the issue before us. The judgment of divorce in the case
at bar specifically provided that each party pay “one-half (½) of the deductible and one-half (½) of all
doctor, hospital, optical, dental, orthodontic, psychological, psychiatric and prescription drug expenses of
said minor children not covered by such insurance provision.” The decree also provided that “neither of
the parties do anything to subject said minor children to any illegal, dangerous, or unwholesome
environment.”
¶13.
According to the evidence presented during the hearing, Missie did not pay her share of the medical
expense owed to Horizon Credit until four months after Ronald had instituted his contempt action. Missie
also acknowledged that she and the children began living with her boyfriend in December 2002 and stayed
with him until the beginning of March 2003. As we have already stated, Ronald filed his contempt action
in February 2003. That Missie may have come into compliance with the provisions of the judgment of
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divorce prior to the hearing does not vitiate the fact that Ronald’s filing of the contempt action was no doubt
the impetus that brought about her compliance. This Court has repeatedly held that an offending party
cannot disregard a valid court order until contempt proceedings are filed, and prior to the hearing gain
exoneration by full compliance. See Douglas v. Douglas, 766 So. 2d 68, 72 (¶15) (Miss. Ct. App.
2000).
¶14.
While we recognize that a chancellor has discretion to award reasonable attorney’s fees in
contempt proceedings, the purpose of an award of attorney’s fees is to compensate the prevailing party
for losses sustained by reason of a defendant’s noncompliance with the judicial decree. Hinds County Bd.
of Supervisors v. Common Cause of Miss., 551 So. 2d 107, 125 (Miss. 1989) (citing Sebastian v.
Texas Dept. Of Corr., 558 F. Supp. 507 (S.D. Tex. 1983)). Here, an award of attorney’s fees would
compensate Missie for her noncompliance with the divorce decree and punish Ronald for exercising his
court-granted right to institute contempt proceedings in an effort to coerce Missie’s compliance.
¶15.
In defense of the chancellor’s decision awarding her attorney’s fees, Missie contends that the
chancellor’s finding — that Ronald’s petition against Missie was a waste of resources and a hollow exercise
— was tantamount to a finding that Ronald’s claim was without substantial justification and frivolous in
nature, thereby justifying an award of attorney’s fees. Missie also contends that the record contains
substantial evidence of her inability to pay her own attorney’s fees, and additionally, requests an award on
appeal of interests and damages.
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¶16.
Ronald argues that Missie failed to argue during the hearing that she lacked the financial ability to
pay her own attorney’s fees. We agree.2 Moreover, Missie’s testimony was very limited on the issue of
attorney’s fees as reflected by the following colloquy:
Q.
A.
What is that?
Q.
This is my attorney’s bill to you.
A.
All right. Are you asking the Court to award you attorney’s fees in this case?
A.
Yes.
Q.
All right. You’ve paid $2,500. Is that right?
A.
Yes.
Q.
And what do you currently owe?
A.
[$]4,436
Q.
And what is the total of your attorney’s fees?
A.
¶17.
Alright Missie, let me show you another document and ask you if you can identify
this document. Do you recognize that document?
Almost [$]7,000. $6,936
We disagree with the chancellor that Ronald’s petition was a waste of judicial resources and a
hollow exercise. While it is unfortunate that Ronald had to resort to the judicial system to enforce two
provisions of the judgment of divorce, that was and is his right. That the monetary amount sought to be
collected was fairly insignificant in no way qualified or limited his right to seek the enforcing power of the
court. It necessarily follows from our finding, that Ronald’s petition was not a waste of judicial resources
2
Although on appeal Missie presents various arguments regarding her lack of ability to pay her
attorney’s fees, the record reflects that no such arguments were made in the court below, nor was there
any testimony that Misisie lacked the financial ability to pay her own attorney’s fees.
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and a hollow exercise, that the award of attorney’s fees against Ronald cannot be justified. From our
review of the record and the judgment itself, it does not appear that the chancellor’s award of attorney’s
fees to Missie was based on her inability to pay. On the issue of attorney’s fees, the chancellor’s judgment
states: “Having found that Ron’s position against Missie was a waste of resources and a hollow exercise,
the Court assesses reasonable attorney’s fees against Ron in the sum of $6,936.46. . . .”
¶18.
For the foregoing reasons, we find that the chancellor erred in his assessment of attorney’s fees
against Ronald; therefore, we reverse and render the award of attorney’s fees. Likewise, for the reasons
presented, we also deny Missie’s request for attorney’s fees and costs on appeal.
¶19.
Finally, Ronald argues that the chancellor erred in awarding Missie relief because she came into
court with unclean hands due to her failure to abide by the judgment of divorce. According to the record,
Ronald failed to raise this argument during the hearing. As a result, he is therefore procedurally barred from
now raising it for the first time on appeal. See Crowe v. Smith, 603 So. 2d 301, 305 (Miss. 1992).
¶20.
However, procedural bar aside, we find that this argument is lacking in merit. As previously noted,
the chancellor declined to find Missie in contempt, thus implicit in this finding is that Missie did not have
unclean hands at the time of the hearing. Moreover, the relief granted, a sixty-one dollar increase in
monthly child support, was for the benefit of the parties’ minor children. We see no reason to penalize the
children. Accordingly, we find it unnecessary to address this issue further.
¶21. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS
REVERSED AND RENDERED AS TO THE AWARD OF ATTORNEY’S FEES BUT IS
AFFIRMED ON THE REMAINING ISSUES. ALL COSTS OF THIS APPEAL ARE
ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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