Charles Richard Keys v. Janet Lee Andries Keys
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-01509-COA
CHARLES RICHARD KEYS
APPELLANT
v.
JANET LEE ANDRIES KEYS
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEE
5/20/2004
HON. WILLIAM HALE SINGLETARY
HINDS COUNTY CHANCERY COURT
STEVE YOUNGER
DEBRA LYNN ALLEN
CIVIL - DOMESTIC RELATIONS
CHANCELLOR MODIFIED JUDGMENT OF
DIVORCE, CHANGED CUSTODY OF THE
PARTIES’ MINOR CHILD FROM APPELLANT
TO APPELLEE, AND REQUIRED APPELLANT
TO REIMBURSE APPELLEE $4,148 FOR
COLLEGE EXPENSES OF THE PARTIES’
MINOR CHILD AND PAY THE CHILD’S
SORORITY EXPENSES.
AFFIRMED IN PART; REVERSED AND
REMANDED IN PART: 12/06/05
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
IRVING, J., FOR THE COURT:
¶1.
Janet Keys (Janet) applied for modification of her divorce settlement with Charles Richard
Keys (Charles). The chancellor altered the original judgment of divorce, and ordered: (1) Charles to pay
$4,148, representing one-half of the MPACT expenses for Shannon, the parties’ minor daughter; (2)
Charles to pay for Shannon’s sorority expenses; (3) a TIGR account in Shannon’s name was an
irrevocable gift to her and would not be used to reimburse Janet for Charles’s share of Shannon’s college
expenses;1 and (4) custody of Shannon changed from Charles to Janet. The chancellor declined to hold
Janet in contempt for failure to pay past-due child support and also declined to award Charles damages
for abusive behavior on the part of Janet.
¶2.
Feeling aggrieved, Charles appeals and argues that (1) the chancellor erred in ordering him to pay
half the cost of Shannon’s MPACT tuition ($4,148), (2) the chancellor erred in holding that the TIGR funds
were no longer to be used for educational purposes, (3) the chancellor erred in not finding Janet in
contempt for failing to pay child support, (4) the chancellor erred in failing to award damages to Charles
for alleged harassment by Janet, and (5) the chancellor erred in awarding custody to Janet and ordering
Charles to pay child support to Janet. We find error and therefore reverse and remand for proceedings
consistent with this opinion.
FACTS
¶3.
Janet and Charles Richard Keys were married on June 9, 1979, and divorced on June 29, 1993,
due to irreconcilable differences. During their marriage, they had two children, Carmen (born in 1981) and
Shannon (born in 1984). Their 1993 judgment of divorce awarded custody of the minor children to Janet,
with Charles being ordered to pay $850 in monthly child support ($425 for each child). Charles and Janet
agreed to equally share the costs of a college education for each girl, including room, board, tuition, books,
and supplies. Additionally, Charles was required to fund an account, in his or Janet’s name, in the sum of
$12,057.99 “for the college educational expenses of said minor children, with any sums remaining in said
account to be paid over equally to the children after they have graduated from college. . . .” This amount
1
In the judgment of divorce, the accounts are referred to as “Tiger” accounts. However, the
parties, in their appellate briefs, refer to them as “TIGR” accounts. We have chosen to use the spelling
utilized by the parties.
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was intended to be equal to the present value of two existing TIGR accounts (one for each girl), with all
of the custodial accounts being used for the children’s educational expenses.
¶4.
The judgment of divorce was modified on August 9, 2000, and the following changes were made:
(1) Janet was to research the penalties for early withdrawal from the TIGR accounts; and (2) in the event
that there was a penalty, the parties were to transfer funds from Shannon’s MPACT account to Carmen’s
in order to pay for Carmen’s college education.
¶5.
Another modification was made to the judgment of divorce on May 17, 2002, that (1) awarded
custody of Shannon to Charles, (2) terminated Charles’s child support obligations to Janet for Shannon,
(3) ordered Janet to pay Charles $225 per month as child support for Shannon, and (4) ordered Janet to
deliver the TIGR accounts for both girls ($10,000 for Shannon and $11,000 for
Carmen) to an
accountant, Mitchell Blount, for safekeeping until the parties came to a mutual agreement regarding what
to do with the accounts.
¶6.
In October 2003, Janet filed a complaint asking for another modification of the judgment of
divorce. This complaint asked that (1) Shannon’s custody be given back to Janet, (2) Janet no longer be
required to pay Charles for child support, (3) Charles pay child support for Shannon to Janet, (4) Charles
pay half of the cost of the three years of the MPACT that Janet purchased for Shannon, (5) Charles pay
for all the costs of Shannon’s joining a sorority while in college, (6) Charles be held in contempt for failure
to pay for half of some medicalexpenses incurred by Carmen, (7) Charles be held in contempt for reporting
Janet to the Hinds County Department of Human Services child support collection unit for failure to pay
child support, and (8) Shannon’s TIGR funds be deemed her personal property under the Uniform Gift to
Minors Act, or, in the alternative, that the TIGR funds should be used to recompense Janet for purchasing
three years of MPACT for Shannon.
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¶7.
In his response to Janet’s complaint for modification, Charles claimed that (1) Janet owed him six
months of child support ($1,350), (2) Janet should be held in contempt for failing to pay court-ordered
child support, and (3) Janet should pay Charles damages (both actual and punitive) for writing the initials
“ESAD” on her correspondence with him.
¶8.
The chancellor entered an order resolving these disputes on May 20, 2004. The chancellor’s order
stated that (1) Shannon’s custody would be placed with Janet, because “the evidence shows that for
purposes of a permanent residence she moved back in with [Janet] in October, 2003;” (2) Charles would
now pay Janet child support for Shannon instead of Janet paying Charles; (3) under the Uniform Gift to
Minors Act, Shannon’s TIGR account should be given to her as her personal property and managed by
Charles until Shannon turned twenty-one, because “the failure of the parties to cooperate to manage these
funds and actually use them for the minor children’s educational needs, and Carmen’s having had the
advantage of these funds herself, constitute a significant material change in the circumstances which
necessitate modifying the Final Judgment as it relates to the TIGR fund account;” (4) Charles must
contribute to any sorority expenses that Shannon incurs while in college; (5) Charles must pay one-half of
the MPACT purchased by Janet for Shannon ($4,148); (6) Charles was not in contempt; (7) Janet was
required to pay child support to Charles for the months of July and August of 2003; (8) both Charles and
Janet owed each other money for medical expenses, with a final calculation that Janet owed Charles $85;
and (9) Charles was not entitled to child support for the time period from October 2003 to the present
because “the amount of child support due during that period would have been unearned by Charles since
Shannon did not live with him during that period.”
¶9.
After the chancellor issued his decision, both Charles and Janet contested the ruling, although only
Charles has appealed, presenting the issues which we stated in the beginning of this opinion.
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STANDARD OF REVIEW
¶10.
We employ a limited standard of review when reviewing the decision of a chancery court.
Reddell v. Reddell, 696 So. 2d 287, 288 (Miss. 1997). We will not interfere with the findings of the
chancellor unless he “was manifestly wrong, [his ruling was] clearly erroneous or a wrong legal standard
was applied.” Id. (citing Carrow v. Carrow, 642 So. 2d 901, 904 (Miss. 1994)).
ANALYSIS AND DISCUSSION OF THE ISSUES
(1) Payment of MPACT tuition and TIGR accounts
¶11.
In his first issue, Charles argues that he should not have been required to pay one-half of the
MPACT tuition purchased by Janet. We also address his second issue regarding the TIGR accounts,
since our resolution of his first issue depends on our finding regarding the second issue.
¶12.
The original judgment of divorce specifically stated that Charles was to fund an investment account
to be used to pay for the girls’ college education:
Upon the entry of a Final Judgment of Divorce, Husband shall promptly fund an investment
account, established in the name of Husband and Wife, or survivor, for the benefit of the
two (2) minor children of these parties, in the sum of 12,057.99, and subject to
withdrawals only upon signature of both Husband and Wife, said custodial account being
for the college educational expenses of said minor children, with any sums remaining
in said account to be paid over equally to the children after they have graduated
from college or reached their majority without continuing to pursue a college
education, whichever first occurs. Said amount to be funded by Husband is equal to the
present value of two (2) Tiger Accounts held for the benefit of said children, with all of
said custodial accounts to be utilized for the same purpose as stated herein.
(emphasis added). No subsequent modification of the divorce order changed this original purpose of the
TIGR accounts. The accounts were to be used for college, with any additional expenses paid for equally
by Charles and Janet.
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¶13.
While we agree that Janet is entitled to compensation for half of the MPACT she purchased, we
find that the chancellor erred in ordering this money to come from Charles. In accordance with the original
judgment of divorce, the amount owed to Janet should come out of Shannon’s TIGR account, which was
originally set up and funded by Charles for the sole purpose of covering Shannon’s educational expenses,
“with any sums remaining” paid to Shannon after her educational expenses are paid. Janet may recover
not only one-half of the cost of the MPACT tuition, but the full amount that she paid, since that amount
should have originally come out of Shannon’s TIGR account. If the TIGR fund is for some reason
inadequate to fully reimburse Janet, then Charles may be ordered to pay one-half of the deficiency.
¶14.
In finding that the chancellor was in error in altering the initially ordered purpose of the TIGR
accounts, we note that there appears to be some confusion in the chancellor’s order as to the original nature
of the accounts. The May 2004 modification order states: “Per the Final Judgment of Divorce, [Charles]
was required to ‘promptly fund an investment account, certificate of deposit, or other acceptable investment
account. . . for the benefit of the two minor children. . . and to set up another account of equal value to the
TIGR funds already in existence.’” We do not see where the original divorce order required Charles to
set up two accounts. He was to fund one account, equal in value to the present value of the two existing
TIGR accounts. The chancellor does go on to note that “these funds were supposed to be available and
used for the higher education of the two minor children.” Despite acknowledging this, the chancellor held
that the TIGR funds were to be given over to the girls because “the failure of the parties to cooperate to
manage these funds and actually use them for the minor children’s educational needs, and Carmen’s having
had the advantage of these funds herself, constitute a significant material change in the circumstances which
necessitate modifying the Final Judgment as it relates to the TIGR fund account.”
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¶15.
Although it is true that Charles and Janet declined to withdraw money from the TIGR accounts
previously because of the penalty attached to early withdrawal, that decision does not constitute a material
change sufficient to alter the original purpose of the TIGR accounts as established by the original judgment
of divorce. There is no longer any penalty for withdrawal, and any educational expenditures by Charles
or Janet should be reimbursed from the girls’ TIGR accounts. The availability of these funds to Carmen
also does not constitute a material change in circumstances such that the original judgment of divorce order
should be modified. Carmen’s access to her own TIGR accounts does not necessitate a finding that
Charles and Janet should therefore be forced to pay for all of Shannon’s educational expenses, when their
original judgment of divorce clearly provided that the children’s college expenses would be paid from the
TIGR accounts.
¶16.
Although there seems to be some dispute between the parties as to whether the TIGR accounts
were subject to the older Mississippi Uniform Gifts to Minors Act, Mississippi Code Annotated section
91-19-1 as amended, or the newer Mississippi Uniform Transfers to Minors Act, Mississippi Code
Annotated section 91-20-1 as amended, we find that we need not address which statute is controlling
because either one would have allowed the withdrawal of funds for educational purposes. According to
the Mississippi Supreme Court:
Clearly, under the MississippiUniformTransfers to Minors Act, as well as its predecessor,
the Mississippi Uniform Gifts to Minors Act, [the child] may reach the assets of her
account through her mother. . . who is the custodian of the accounts. As custodian, [the
mother] has access to the funds for [the child’s] use, and is able to withdraw them at will
on behalf of [the child] for educational expenses or for any other purpose which [the
mother], as custodian, deems wise and necessary.
Saliba v. Saliba, 753 So. 2d 1095, 1098-99 (¶13) (Miss. 2000) (citations omitted). We note that the
holding in Saliba was that the child could not be forced to pay for her college education, but we find that
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Saliba is distinguishable from the case sub judice. In Saliba, the original judgment of divorce did not
specify how the college would be paid, and instead dictated that a court would decide later. Id. at 1097
(¶7). Later, the parents asked that the child be forced to pay for college with her own funds (which were
extensive), and the court ruled that the child was not required to pay for college. Id. at 1099 (¶13). Saliba
is factually distinguishable from the case at bar, where the child’s account was specifically set up to pay for
her later educational expenses. There was no question as to where the money for college was intended
to come from in the original judgment of divorce.
¶17.
Therefore, we hold that the TIGR funds should be used to pay for Shannon’s college expenses,
and should not be given to Shannon until those expenses are paid. Any remaining funds will, of course,
go to her. The judgment of the chancellor ordering that the TIGR funds be given over to Shannon and that
Charles be forced to pay for one-half of the MPACT purchased by Janet is hereby reversed and
remanded.
(2) Contempt and failure to pay child support
¶18.
Although Janet should have been ordered to all pay past-due child support, we decline to find the
chancellor in error for not holding her in contempt for failing to do so. When reviewing a lower court’s
decision regarding whether to hold a party in contempt, the supreme court has held that: “contempt matters
are committed to the substantial discretion of the trial court which, by institutional circumstance and both
temporal and visual proximity, is infinitely more competent to decide the matter than are we.” Morreale
v. Morreale, 646 So. 2d 1264, 1267 (Miss. 1994) (quoting Cumberland v. Cumberland, 564 So. 2d
839, 845 (Miss. 1990)). The chancellor stated that Janet should not be held in contempt because “[Janet]
thought that she did not owe such support for the period since Shannon came to live with her at that point
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and she was relying upon the advice of counsel. The Court accepts that defense. . . .” It was well within
the chancellor’s discretion to accept Janet’s defense. Therefore, we affirm the chancellor on this issue.
(3) Damages and harassment
¶19.
The specific behavior that Charles complained of was Janet’s practice of writing the initials ESAD
(“Eat Sh*t And Die”) on all the correspondence that she sent to him. While we do not condone Janet’s
actions, we also find no legal basis entitling Charles to damages as a result of Janet’s behavior.
¶20.
Punitive damages are a proper remedy only if a plaintiff is able to show “a willful or malicious wrong
or the gross, reckless disregard for the rights of others.” Boling v. A-1 Detective & Patrol Service, Inc.,
659 So. 2d 586, 588 (Miss. 1995) (quoting Valley Forge Insurance Co. v. Strickland, 620 So. 2d 535,
540 (Miss. 1993)). Punitive damages “are intended ‘as an example and warning to others. . . .’” Id. at
589 (quoting Beta Beta Chapter of Beta Theta Pi Fraternity v. May, 611 So. 2d 889, 894 (Miss.
1992)). We fail to see how Janet’s behavior rose to the level of a “malicious wrong” or “gross, reckless
disregard” for Charles’s rights. Accordingly, we find that the chancellor did not err in denying damages
to Charles for Janet’s behavior.
(4) Custody and child support
¶21.
There are two findings that must be made in order for child custody to be altered: first, there must
be proof that there is a material change in circumstances that adversely affects the welfare of the child, and
second, a change in custody must be in the best interests of the child. Smith v. Jones, 654 So. 2d 480,
486 (Miss. 1995). The chancellor was in error when he determined that custody should be awarded back
to Janet simply because Shannon visits her mother around once a month and has moved her belongings into
Janet’s house. This does not constitute a material change in circumstances that adversely affects
Shannon’s welfare. Shannon is away at college and does not reside with either of her parents a majority
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of her time. In fact, the evidence introduced below indicated that it is Charles who provides most of the
support for Shannon while she is away at school. As such, we find that custody should have remained with
Charles and that Janet should have been ordered to pay both future and past-due child support. Therefore,
we reverse and remand on this issue.
¶22. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED
IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO THE APPELLEE.
KING, C.J., LEE AND MYERS, P.JJ., BRIDGES, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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