Leroy Rushing v. Margaret Carson Rushing
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-00215-COA
LEROY RUSHING
APPELLANT
v.
MARGARET CARSON RUSHING
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
10/31/2003
HON. WILLIAM JOSEPH LUTZ
LEAKE COUNTY CHANCERY COURT
LAUREL G. WEIR
JOSIE MAYFIELD HUDSON
CIVIL - DOMESTIC RELATIONS
DEFENDANT FOUND TO BE IN WILLFUL,
OBSTINATE, AND CONTUMACIOUS
CONTEMPT OF COURT FOR FAILURE TO PAY
$2,980 IN ALIMONY PURSUANT TO THE
PREVIOUS COURT ORDER. ORDERED TO PAY
$2,980 BACK ALIMONY, $500 IN ATTORNEY’S
FEES, AND $105 FOR SERVICE OF PROCESS
AND FILING FEES; ORDERED TO BE
INCARCERATED. A STAY IS PLACED ON THE
INCARCERATION PENDING THE PAYMENT OF
$685 TO MARGARET ON NOVEMBER 1, 2003.
HE IS FURTHER ORDERED TO DO A
VOLUNTARY WAGE ASSIGNMENT AND/OR
ALLOTMENT THROUGH THE VETERAN’S
ADMINISTRATION.
AFFIRMED: 08/23/2005
BEFORE BRIDGES, P.J., GRIFFIS AND BARNES, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Leroy Rushing appeals an order from the Chancery Court of Leake County finding him in contempt
of court for failing to pay alimony. On appeal, Leroy asserts the following errors: (1) the chancellor erred
in holding him in contempt of court for failing to pay alimony; (2) the chancellor erred in awarding attorney’s
fees and court costs to Margaret Carson Rushing (Margaret); and (3) the chancellor’s decision was
contrary to the overwhelming weight of the evidence. We find no error and affirm.
FACTS
¶2.
Leroy and Margaret were granted a divorce based on irreconcilable differences on February 11,
2002. As part of the property settlement agreement, Leroy agreed to pay Margaret $600 per month in
permanent periodic alimony, beginning on March 1, 2002.
¶3.
On May 31, 2002, Margaret filed her first motion for citation of contempt with the court alleging
that Leroy had failed to pay alimony for the months of March, April, and May 2002. Leroy was served
with process but failed to appear for the hearing. The hearing was conducted in Leroy’s absence, and
Leroy was ordered to pay $5,100 for back alimony, attorney’s fees, service of process fees, and filing fees.
Thereafter, Leroy paid the $5,100.
¶4.
On December 17, 2002, Margaret filed her second motion for citation of contempt alleging that
Leroy had failed to pay alimony for the months of August, September, November, and December 2002.
Prior to the court date, Leroy paid the back alimony.
¶5.
In February 2003, Margaret requested that a withholding order be entered through the Social
Security Administration so that the alimony would be sent to her directly from Leroy’s Social Security
check. However, it was learned that the State of Louisiana was already garnishing Leroy’s Social Security
check for the payment of back alimony that was owed to Leroy’s former wife. Leroy was initially ordered
to pay $250 per month in alimony to his former wife pursuant to a Louisiana judgment. However, that
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order was increased to $678 per month because Leroy repeatedly failed to make payments. Because of
the Louisiana garnishment, the Social Security Administration could only give Margaret $40 per monthfrom
Leroy’s Social Security check, leaving $560 per month in unpaid alimony.
¶6.
On October 1, 2003, Margaret filed her third motion for citation of contempt alleging that Leroy
owed her alimony for May, June, July, August, September, and October of 2003. At the hearing, Leroy
was found in contempt of court and ordered to pay $2,980 pursuant to a previous court order, $500 in
attorney’s fees, and $105 for service of process and filing fees for a total of $3,585. The chancellor further
ordered that Leroy be incarcerated immediately but placed a stay on the incarceration pending the payment
of $685 to Margaret on November 1, 2003. The chancellor also ordered Leroy to do a voluntary wage
assignment and/or allotment through the Veteran’s Administration (“V.A.”) in order to pay the $600 per
month in permanent periodic alimony owed to Margaret. However, Leroy never paid the alimony owed
to Margaret. Instead, Leroy appealed to this Court.
STANDARD OF REVIEW
¶7.
Our scope of review in domestic matters is limited. This Court will not disturb the findings of a
chancellor when supported by substantial evidence unless the chancellor abused his discretion, was
manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Denson v. George, 642
So. 2d 909, 913 (Miss. 1994).
ANALYSIS
I.
¶8.
Did the chancellor err in finding Leroy in contempt of court for failing to pay
alimony?
“Contempt 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
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the matters than we are.” Elliott v. Rogers, 775 So. 2d 1285, 1291 (¶22) (Miss. Ct. App. 2000). Leroy
contends that the chancellor erred in finding him in contempt of court for failing to pay Margaret alimony
pursuant to their final judgment of divorce. To support his argument, Leroy relies on Moses v. Moses, 879
So. 2d 1036 (Miss. 2004). In Moses, the court held that the amended final judgment of divorce was too
vague and too indefinite to be enforced. Id. at 1040 (¶20). The court stated that “a person is entitled to
be informed with a high degree of clarity as to exactly what his obligations are under a court order before
he can be found in contempt for willingly disobeying that order. Id. at (¶16). Here, unlike Moses, the final
judgement of divorce is clear and unambiguous. The property settlement agreement clearly states,
“Husband and wife agree that husband shall pay to wife $600 per month as permanent periodic alimony.
Said permanent periodic alimony payments shall be paid to wife beginning the 1st day of March, 2002, and
husband shall continue to pay $600 per month to the wife for permanent periodic alimony on the 1st day
of each month thereafter.” By failing to pay Margaret the agreed upon amount of alimony, Leroy willfully
disobeyed the chancellor’s order.
¶9.
In his brief to this Court, Leroy argues that the chancellor ordered him to be incarcerated unless
the V.A. withheld money from his benefits check. He contends that the V.A. would not honor a
withholding order, making it impossible for him to fulfill the chancellor’s order. Indeed, it is correct that the
V.A. cannot withhold money from a veteran’s benefits check pursuant to a withholding order. 38 U.S.C.
§ 5301 provides that:
payments of benefits due or to become due under any law administered by the Secretary
shall not be assignable except to the extent specifically authorized by law, and such
payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be
exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure
by or under any legal or equitable process whatever, either before or after receipt by the
beneficiary.
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¶10.
The record shows that the chancellor did not order the V.A. to withhold money from Leroy’s
benefits check. The chancellor acknowledged that the V.A. would not honor a withholding order. Instead,
the chancellor ordered Leroy to request a voluntary wage assignment so that Margaret could be paid out
of his V.A. benefits. Contrary to Leroy’s assertion, requesting a voluntary wage assignment is not an
impossible task. Leroy had the opportunity to voluntarily withhold money from his V.A. check in order
to pay Margaret the money owed in back alimony. However, Leroy chose not to do this and instead
appealed to this Court.
¶11.
In Rose v. Rose, 481 U.S. 619, 636 (1987), the Supreme Court held that state courts can use
contempt sanctions and a veteran can be incarcerated for failing to pay child support even if the only source
of those payments was the veteran’s disability benefits. The Court stated:
[W]hile it may be true that these funds are exempt from garnishment or attachment while
in the hands of the Administrator, we are not persuaded that once these funds are delivered
to the veteran a state court cannot require that veteran to use them to satisfy an order of
child support.
Id. at 635. The Supreme Court’s holding in Rose was extended to include alimony as well as child support
since “both [were] viewed as familial support by the United States Supreme Court.” See In re Marriage
of Anderson, 522 N.W.2d 99, 101 (Iowa Ct. App. 1994).
¶12.
“[D]omestic relations are preeminently matters of state law,” and “Congress, when it passes general
legislation, rarely intends to displace state authority in this area.” Mansell v. Mansell, 490 U.S. 581, 587
(1989). The chancellor’s efforts to enforce his alimony award by holding Leroy in contempt did not conflict
with the congressional intent of the Veteran’s benefits provisions of Title 38. Once the benefits were
delivered to Leroy, the chancellor had authority to require that Leroy use those funds to satisfy the alimony
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owed to Margaret. Thus, the chancellor’s order that Leroy voluntarily withhold money from his benefits
check was not an abuse of discretion.
¶13.
A finding of civil contempt is given deference because the trial judge is in a better position to review
all circumstances including the credibility of the witness and the facts of the case. Montgomery v.
Montgomery, 873 So. 2d 1071, 1072 (¶5) (Miss. Ct. App. 2004). If substantial evidence supports the
findings, we will affirm. Id. Upon review, we find there is substantial evidence to support the chancellor’s
finding of contempt. The record shows that Leroy repeatedly failed to comply with a previous court order
requiring him to pay alimony to Margaret. Therefore, the chancellor did not err in finding Leroy in
contempt.
II.
¶14.
Did the chancellor err in awarding Margaret attorney’s fees and court costs?
The chancellor ordered Leroy to pay Margaret’s attorney’s fees and court costs for having to bring
the contempt action. Leroy argues that there is no proof as to the reasonableness or necessity of attorney’s
fees and again cites Moses as support for his argument. In Moses, there was no testimony regarding the
amount of the wife’s attorney’s fees and no request for attorney’s fees. Moses, 879 So. 2d at 1041 (¶21).
Here, Margaret requested attorney’s fees and provided proof as to the reasonableness and necessity of
those fees. “When a party is held in contempt for violating a valid judgment of the court, then attorney’s
fees should be awarded to the party that has been forced to seek the court’s enforcement of its own
judgment.” Elliott, 775 So. 2d at 1290 (¶25). But for Leroy’s repeated failure to pay, Margaret would
not have incurred the expense of bringing multiple contempt actions against him.
¶15.
The determination of attorney's fees is a matter largely within the sound discretion of the chancellor.
Magee v. Magee, 661 So. 2d 1117, 1127 (Miss. 1995). We are reluctant to disturb a chancellor's
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decision to award attorney's fees and the amount awarded. Id. Upon review, we find that the chancellor
did not err in awarding attorney’s fees and court costs to Margaret.
III.
¶16.
Was the chancellor’s decision contrary to the overwhelming weight of the
evidence?
The chancellor denied Leroy’s request for a modification of alimony. Leroy argues that this
decision is contrary to the overwhelming weight of the evidence. The record shows that Leroy was
ordered to pay $250 per month in alimony to his former wife pursuant to a Louisiana judgment entered in
1994. However, Leroy failed to pay the alimony and, as a result, the State of Louisiana began to garnish
his Social Security check in the amount of $678. Leroy argues that because of this prior alimony award,
along with other debts incurred, he is unable to pay Margaret the alimony ordered. However, the record
shows that Leroy knew about the prior alimony award of $250 per month, as well as the other debt, at the
time of his divorce from Margaret, and yet, he still agreed to pay Margaret $600 per month in alimony.
¶17.
Leroy further argues that his living expenses have increased due to the fact that he is now remarried
with two children. However, when Leroy remarried and fathered two children, he knew of his obligation
to Margaret.
¶18.
In response to Leroy’s motion for modification, the chancellor stated:
[Leroy] had a copy of that divorce judgment since ‘94 or ‘95. So he knew what his
obligations were.
I can assure you, this Court is not going to unilaterally modify [Margaret’s] alimony
because [Leroy] didn’t pay any attention to what might have been happening in Louisiana.
I’m not going to do that.
So as far as any request for relief by modification, it’s denied. There has been – [Leroy]
ha[s] shown no change in circumstances that he didn’t create himself.
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When [Leroy] got married, following his divorce from [Margaret] and created another
family, he did – he did so facing a known obligation to [Margaret] [and] [a] known
obligation to his prior wife in Louisiana.
¶19.
“[A]limony is normally modifiable if there is a showing of material and unanticipated change in
circumstances of the parties arising after the original decree was rendered.” Elliott, 775 So. 2d at 1287
(¶8). Here, there is no material and unanticipated change in circumstances. As the chancellor correctly
stated, there has been no change of circumstances that Leroy did not create himself. It is not Margaret’s
fault that Leroy failed to pay alimony to his former wife or allowed it to accumulate for several years.
Furthermore, Leroy’s argument that his alimony obligations to Margaret should be reduced because he has
so many other financial obligations is without legal merit. “Personal bills cannot be used as a factor to
reduce support payments.” Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995).
¶20.
Leroy’s predicament was created by his own failure to make the required alimony payments to his
former wife. Initially, that payment was only $250 per month. It was not until Leroy failed to pay and
allowed the alimony to accumulate that the State of Louisiana began to garnish his Social Security check
in the amount of $678 per month. The fact that the $250 award of alimony has now increased is no one’s
fault but Leroy’s. He should not now be allowed to escape his responsibility to Margaret.
¶21.
Upon review, we find that the chancellor did not err in denying Leroy’s motion for modification.
Thus, the chancellor’s decision is not against the overwhelming weight of the evidence.
¶22. THE JUDGMENT OF THE CHANCERY COURT OF LEAKE COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, BARNES
AND ISHEE, CONCUR.
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