Rita H. Holzhauer Markofski v. James L. Holzhauer
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1999-CA-00855-COA
RITA H. HOLZHAUER MARKOFSKI
v.
JAMES L. HOLZHAUER
APPELLANT
APPELLEE
DATE OF TRIAL COURT
04/05/1999
JUDGMENT:
TRIAL JUDGE:
HON. DOROTHY WINSTON COLOM
COURT FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:
THOMAS L. SEGREST
WILLIAM J. RITCHIE
ATTORNEY FOR APPELLEE:
HAL H. H. MCCLANAHAN
NATURE OF THE CASE:
CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION:
RITA'S PETITION FOR MODIFICATION OF CHILD
SUPPORT DENIED. VISITATION SCHEDULE SET BY
THE COURT. PETITION FOR CONTEMPT AGAINST
JAMES DENIED. JAMES ORDERED TO PAY RITA $23,
906 FOR MEDICAL EXPENSES DUE TO FAILURE TO
PROVIDE ADEQUATE HEALTH INSURANCE
COVERAGE. JAMES' CLAIMS FOR INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS AND
ALIENATION OF THE AFFECTIONS OF HIS SON ARE
DENIED. BOTH PARTIES' PETITION FOR ATTORNEYS
FEES ARE DENIED.
DISPOSITION:
AFFIRMED IN PART AND REVERSED AND
REMANDED IN PART-10/16/01
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
11/6/2001
BEFORE KING, P.J., BRIDGES, AND IRVING, JJ.
KING, P.J., FOR THE COURT:
¶1. On May 4, 1994, Rita H. Holzhauer Markofski (Markofski) and James L. Holzhauer were granted a
divorce based on irreconcilable differences. The parties executed a child custody, support and property
distribution agreement. Pursuant to that agreement, the couple shared joint custody of the one child born
during the marriage with primary physical custody given to Ms. Markofski. In August 1997, Mr. Holzhauer
filed a petition for citation of contempt against Ms. Markofski for failure to abide by the agreement. Ms.
Markofski responded with a counterclaim for contempt and modification of child support. In a judgment
entered on April 5, 1999, the chancellor granted Ms. Markofski the sum of $23,906 with costs and interest
as compensation for medical expenses incurred as a result of Mr. Holzhauer's failure to provide her with
comparable medical insurance as required by their agreement. The chancellor denied Ms. Markofski's
request for contempt citation against Mr. Holzhauer for failure to transfer title to a Camaro vehicle to her
daughter, Alexa Scroggins, and for nonpayment of college expenses for the same daughter.
¶2. Aggrieved by the chancellor's ruling, Ms. Markofski has appealed and raised the following issues,
which we quote verbatim from her brief: (1) Whether the chancellor abused her discretion in failing to apply
the child support guidelines based upon Rita H. Holzhauer Markofski's counterpetition for modification of
child support; (2) Whether the chancellor committed manifest error, was clearly erroneous, or applied an
erroneous legal standard in failing to order James Holzhauer to turn over the title of the 1993 Camaro to
Rita's daughter, Alexa Clay Scroggins; (3) Whether the chancellor committed manifest error, was clearly
erroneous, or applied an erroneous legal standard in failing to order James to pay the college expenses of
Rita's daughter, Alexa Clay Scroggins; and (4) Whether the chancellor committed manifest error, was
clearly erroneous, or applied an erroneous legal standard in failing to award Rita attorney fees.
¶3. Mr. Holzhauer has also appealed and raised the following issues, which we quote verbatim from his
brief: (1) The trial court erred as a matter of law and fact in refusing to temporarily suspend James'
obligation to support his son; (2) The trial court erred on dismissing the alienation of affection claim; (3) The
chancellor erred in overruling the request for damages for intentional infliction of emotional distress; and (4)
The chancellor erred in not allowing cross appellant his attorney fees.
¶4. This Court affirms in part and reverses and remands in part.
FACTS
¶5. The Holzhauers were married on January 2, 1982, in Little Rock, Arkansas. They lived together until
their separation on January 1, 1994, in Lowndes County, Mississippi. Ms. Markofski had two children
from a previous marriage, Alexa Scroggins and Sara Scroggins, neither of whom was adopted by Mr.
Holzhauer. Mr. Holzhauer initially agreed to pay Ms. Markofski $1,000 per month for child support. On
March 25, 1997, an agreed order was entered raising the child support to $1,500 per month.
¶6. On August 8, 1997, Mr. Holzhauer petitioned the chancery court to cite Ms. Markofski for contempt
and other relief. Things requested included custody of his son along with damages for alienation of the son's
affection and intentional infliction of emotional distress by Rita Holzhauer, and attorney's fees.
¶7. On December 4, 1997 and January 8, 1998, Ms. Markofski filed responses to Mr. Holzhauer's
requests and filed counterclaims for citation for contempt and for modification of former decree where she
requested an increase in child support, $5,000 for college expenses for Alexa, delivery of title to the Mazda
now in Alexa's possession, comparable health insurance to that which existed on the date of the divorce,
and reasonable attorney fees.
¶8. On April 23, 1998, Ms. Holzhauer Markofski filed an amended counterclaim for citation for contempt,
modification of former decree and other relief to include an amount of $20,000 for Alexa's college
expenses.
¶9. On June 23rd, 24th , and 29th , 1998, the chancellor conducted a hearing on both parties' motions.
During the hearing, the son testified that while he loved his father, he did not want to live with him and would
not stay with his father even if ordered to do so by the court. Subsequently, Mr. Holzhauer abandoned his
request for a change in custody and asked the court to temporarily suspend his obligation to pay child
support. During the course of the proceeding, the son amended his testimony by stating that he loved his
father, but did not want to visit or live with him, but he would do so if ordered by the court.
¶10. After considering all of the evidence, the chancellor ordered the following:
(1) That Mr. Holzhauer should continue to pay $1,500 per month as child support for the support and
maintenance of the minor child;
(2) That Mr. Holzhauer should have visitation with his son for two weeks in the summer and one
week at Christmas each year. He should also have visitation during spring break from school and for
Thanksgiving holidays in odd numbered years, with additional visitation as agreed to by the parties;
(3) That Ms. Holzhauer Markofski be awarded $23,906 with costs and interest to
compensate her for medical expenses she incurred as a result of Mr. Holzhauer's
failure to provide her with a comparable medical insurance policy as agreed to in their separation
agreement;
(4) That Mr. Holzhauer continue to be required to provide comparable medical insurance for Ms.
Holzhauer-Markofski according to the terms of the parties' separation agreement;
(5) That there was insufficient evidence presented at trial that Ms. Holzhauer Markofski did not timely
respond to requests for information regarding her medical insurance coverage, as would estop her
from asserting her claims for reimbursement of medical expenses;
(6) That there was insufficient cause for a finding of contempt against Mr. Holzhauer regarding not
transferring title to a Camaro vehicle or for his nonpayment of college expenses for Ms. Holzhauer
Markofski's daughter, Alexa Scroggins;
(7) That Mr. Holzhauer's claims for damages for intentional infliction of emotional distress and
alienation of affection of his relationship with his son are without merit and should be denied; and
(8) That both parties' request for attorneys fees should be denied, as each is capable of paying his or
her own attorney's fees.
ISSUES AND ANALYSIS
STANDARD OF REVIEW
¶11. When a domestic relations case is on appellate review, a chancellor's factual findings will not be
disturbed unless the court's actions were manifestly wrong, the court abused its discretion, or applied an
erroneous legal standard. Wright v. Wright, 737 So. 2d 408 (¶5) (Miss. Ct. App. 1998) (citing Sandlin v.
Sandlin, 699 So. 2d 1198, 1203 (Miss. 1997)); Johnson v. Johnson, 650 So. 2d 1281, 1285 (Miss.
1994); Crow v. Crow, 622 So. 2d 1226, 1228 (Miss. 1993); Gregg v. Montgomery, 587 So. 2d 928,
931 (Miss. 1991).
I.
Whether the chancellor abused her discretion in failing to apply the child support guidelines
based upon Rita H. Holzhauer Markofski's counterpetition for modification of child support.
¶12. Ms. Markofski contends that the chancellor erred in continuing to allow Mr. Holzhauer to pay $1,500
for child support which was agreed upon by both parties. Ms. Markofski suggests that the evidence
demonstrated a substantial change in circumstances which warranted an increase in child support. Among
those changes were a decrease in her income, an increase in Mr. Holzhauer's income and increased needs
by the child due to his age and size.
¶13. The relevant portion of the statutory child support guidelines, Miss. Code Ann. Section 43-19-101
(Rev. 2000), provides:
(1) The following child support award guidelines shall be a rebuttable presumption in all judicial or
administrative proceedings regarding the awarding or modifying of child support awards in this state:
Number Of Children Percentage Of Adjusted Gross Income
Due Support That Should Be Awarded For Support
1 14%
2 20%
3 22%
4 24%
5 or more 26%
****
(4) In cases in which adjusted gross income as defined in this section is more than Fifty Thousand
Dollars ($50,000.00) or less than Five Thousand Dollars ($5,000.00), the court shall make a written
finding in the record as to whether or not the application of the guidelines established in this section is
reasonable.
¶14. Ms. Markofski and the minor child testified that his extracurricular and recreational activities required
additional money. As a demonstration of the need for additional money, Ms. Markofski tendered the
following list of the child's estimated expenditures for 1998:
A) School Related Items $8,800
B) Recreational Items $21,300
(includes $13,000 for a swimming pool)
C) Entertainment $16,130
D) Food and clothing $17,800
E) Sporting & Athletic Related Items $15,900
F) Other Items $3,800
(pet care and vet bills)
G) totals for year $83,730
H) monthly average $6,978
¶15. To justify a modification of the child support payments, Ms. Markofski had to demonstrate a material
change in the circumstances of one or more of the interested parties arising after the entry of the original
agreement. Havens v. Broocks, 728 So. 2d 580 (¶8) (Miss. Ct. App. 1998) (citing McEachern v.
McEachern, 605 So. 2d 809, 815 (Miss. 1992)).
¶16. The chancellor found no substantial change in circumstances which occurred that could not have been
anticipated by the parties since their divorce. She also determined pursuant to Miss. Code Ann. Section 4319-101(4) (Rev. 2000) that monthly child support in the amount of $5,425.42 would be an unreasonable
amount given the son's age and his reasonable needs, and the support guidelines were therefore
inappropriate. The chancellor determined that Mr. Holzhauer's current child support obligation of $1,500
per month was a sufficient amount to provide for a healthy teenage boy. Given the record before this Court,
we cannot say that the chancellor's actions were manifestly wrong or that they constituted an abuse of
discretion.
II.
Whether the chancellor committed manifest error, was clearly erroneous, or applied an
erroneous legal standard in failing to order James Holzhauer to turn over the title of the
1993 Camaro to Rita's daughter, Alexa Clay Scroggins.
¶17. Ms. Markofski contends that since Mr. Holzhauer agreed to convey to his step-daughter Alexa the
1993 Camaro in the separation agreement, that the chancellor should have required that Mr. Holzhauer
either transfer title to the Camaro or transfer title to the vehicle which replaced the Camaro.
¶18. The separation agreement, incorporated in the final judgment of divorce, constituted a valid contract
between Mr. Holzhauer and Ms. Markofski. East v. East, 493 So. 2d 927, 932 (Miss. 1986). After the
divorce was entered, Alexa notified Mr. Holzhauer of mechanical difficulties with the Camaro. Mr.
Holzhauer traded the Camaro for a Mazda 626 automobile, which Alexa has driven since that time.
¶19. Accordingly, the chancellor determined that since Mr. Holzhauer no longer had title to the Camaro, he
could not perform this portion of the separation agreement and that the vehicle was traded with Alexa's
knowledge. The chancellor noted that Alexa may seek to enforce any agreement she and Mr. Holzhauer
had regarding the vehicle if she elects to do so, but concluded that because this action is between Mr.
Holzhauer and Ms. Markofski only, the proper parties were not before the court for such a determination.
¶20. However, we find that the proper parties were before the court to have this matter addressed. Mr.
Holzhauer agreed to transfer title to Alexa as a part of the resolution of support claims and property rights
between Mr. Holzhauer and Ms. Markofski. Ivison v. Ivison, 762 So. 2d 329 (¶14) (Miss. 2000).
Therefore, Ms. Markofski could bring this claim. Finding error in the failure to decide Alexa's entitlement to
the Camaro, this Court reverses and remands on this issue.
III.
Whether the chancellor committed manifest error, was clearly erroneous, or applied an
erroneous legal standard in failing to order James to pay the college expenses of Rita's
daughter, Alexa Clay Scroggins.
¶21. Ms. Markofski contends that the chancellor committed manifest error in failing to order Mr. Holzhauer
to pay the college expenses of her daughter, Alexa. In the separation agreement, Mr. Holzhauer agreed to
pay all reasonable schooling expenses, provided that he approved of the college.
¶22. In her brief, Ms. Markofski acknowledges that Mr. Holzhauer is under no obligation to provide
support for her daughter, Alexa. However, she does contend that based on the separation agreement, Mr.
Holzhauer is obligated to pay reasonable college expenses.
¶23. The record reveals that Mr. Holzhauer provided money to Alexa for her first year at the University of
Southern Mississippi, but did not continue to pay for her expenses. The chancellor determined that the
separation agreement was too vague regarding the circumstances under which Mr. Holzhauer would be
required to pay for Alexa's college education. The language in the agreement states that:
Husband agrees to pay all reasonable schooling expenses to Darlington for Alexa Clay Scroggins, his
stepdaughter. Husband further agrees to pay Alexa Clay Scroggins reasonable college expenses,
provided he approves of said college.
¶24. The chancellor found that there was no indication of what was covered under "expenses." The
chancellor also found that under the present circumstances, it would be unreasonable to require a man to
pay for the college education of a former stepchild who accused him of molesting her, charges of which he
was eventually acquitted. Hambrick v. Prestwood, 382 So. 2d 474, 477 (Miss. 1980).
¶25. Our review of the chancery court's opinion on this issue does not reveal an abuse of discretion. We
affirm the chancellor's refusal to require Mr. Holzhauer to pay for the college expenses of Alexa.
IV.
Whether the chancellor committed manifest error, was clearly erroneous, or applied an
erroneous legal standard in failing to award Rita attorney fees.
¶26. Ms. Markofski contends that Mr. Holzhauer should be required to pay her attorney fees since the
separation agreement states that either party breaching any provision of the agreement which causes legal
fees to be incurred shall be responsible for paying the legal fees of the non-breaching party.
¶27. Here, Ms. Markofski claims that Mr. Holzhauer breached the agreement by refusing to transfer title on
the automobile to her daughter, Alexa, and by failing to pay Alexa's college expenses. The chancellor
determined that from the evidence presented, attorney fees were not appropriate, and concluded that both
parties were financially capable of paying their respective attorney fees. The award of attorney fees and
court costs is a matter within the sound discretion of the trial court. Kergosien v. Kergosien, 471 So. 2d
1206, 1207 (Miss. 1985). There is nothing in the record to suggest abuse of the chancellor's discretion.
MR. HOLZHAUER'S CROSS-APPEAL
I.
Did the trial court err as a matter of law and fact in refusing to temporarily suspend James'
obligation to support his son?
¶28. Mr. Holzhauer contends that the chancellor erred by refusing to temporarily suspend his obligation to
support his son pending his son's decision to resume a normal relationship with him. Mr. Holzhauer's son
stated that he did not want to visit or live with his father at any time when first asked about visitation with his
father. Subsequently, Mr. Holzhauer's son stated that he would visit with the father if the court ordered him
to do so. Here, the chancellor relied on Caldwell v. Caldwell, 579 So. 2d 543, 548 (Miss. 1991) which
states that:
The amount of money that the noncustodial parent is required to pay for the support of his minor
children should not be determined by the amount of love the children show toward that parent. The
proper inquiry, as we have often stated, is what is in the best interest of the child. In reaching that
conclusion, the chancellor must balance the needs of the child against the parent's financial ability to
meet those needs. (quoting Holston v. Holston, 58 Md. App. 308, 473 A. 2d 459, 463 (1984),
cert. denied, 300 Md. 484, 479 A.2d 372 (1984)).
The chancellor determined that the best interest of the child necessitated support from Mr. Holzhauer. The
record contains substantial evidence to support this finding.
II.
Did the trial court err in dismissing the alienation of affection claim?
¶29. Mr. Holzhauer contends that Rita Holzhauer Markofski caused his relationship with his son to
dissipate. He claims that prior to the son living primarily with Ms. Markofski, he enjoyed an outstanding
relationship with his son. However, the chancellor found this claim to be without merit and denied Mr.
Holzhauer's claim for damages since there was no evidence presented on this issue to prove his claim. We
find this claim to be without merit as well.
III.
Did the chancellor err in overruling the request for damages for intentional infliction of
emotional distress?
¶30. Mr. Holzhauer contends that Ms. Markofski actively followed a plan to discredit and/or ruin him
professionally and financially. He claims that Ms. Markofski assisted her daughters in bringing charges of
sexual molestation against him. Mr. Holzhauer contends that he had to ultimately spend $200,000 to defend
himself against these criminal charges. However, Mr. Holzhauer failed to present actual evidence regarding
this claim.
¶31. We affirm the chancellor's decision.
IV.
Did the chancellor err in not allowing cross appellant his attorney fees?
¶32. Mr. Holzhauer contends that had his claims of alienation of affection of his son and intentional infliction
of emotional distress not been dismissed, he might have been allowed to recover attorney fees as part of
possible damages awarded.
¶33. An award of attorney fees is left to the discretion of the chancellor. Gray v. Gray, 745 So. 2d 234
(¶26) (Miss. 1999). "It is well settled in Mississippi that if a party is financially able to pay an attorney, an
award of attorney's fees is not appropriate." Id. Here, the chancellor determined that each party was
capable of paying his or her own attorney fees and denied both parties' request. Due to the discretion
afforded the chancellor in this issue, we find that no error was committed.
¶34. THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IS AFFIRMED
IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL
ARE TAXED TO THE APPELLANT.
BRIDGES, IRVING, MYERS, CHANDLER, AND BRANTLEY, JJ., CONCUR.
McMILLIN, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION JOINED BY SOUTHWICK, P.J., THOMAS, AND LEE, JJ.
McMILLIN, C.J., CONCURRING IN PART AND DISSENTING IN PART:
¶35. I respectfully dissent as to that part of the opinion that effectively releases Dr. Holzhauer from any
obligation under the property settlement agreement to provide the reasonable college expenses of his former
step-daughter, Alexa Scroggins. Dr. Holzhauer's primary defense against the claim was that at the time Ms.
Scroggins began her second year at the University of Southern Mississippi his financial situation had
deteriorated to the extent that he could not afford to meet his obligation. A demonstrated inability to
perform under a court decree is a defense to a claim of contempt. Clements v. Young, 481 So. 2d 263,
271 (Miss. 1985). However, a present inability to pay is not a complete defense that excuses any obligation
to perform in the future. Rather, until the obligation itself is altered by subsequent appropriate court action,
the obligation continues to exist and may be enforced by reducing it to judgment or by appropriate
enforcement proceedings at such time as the obligor's financial condition has improved to the extent that he
can meet the obligation. Tanner v. Roland, 598 So. 2d 783, 786-87 (Miss. 1992).
¶36. I would note that the chancellor, in ruling on the matter, ignored Dr. Holzhauer's inability to pay
defense, making no finding of fact in that regard. Instead, the chancellor offered two alternative reasons for
finding Dr. Holzhauer's obligation unenforceable.
¶37. First, the chancellor held that a commitment to pay "reasonable college expenses" was too vague
because it failed to delineate the specific costs that were captured within the meaning of that term. This is
plainly wrong. This Court has found similar provisions definite enough to enforce. Rogers v. Rogers, 662
So. 2d 1111, 1116-17 (Miss. 1995); Harmon v. Yarbrough, 767 So. 2d 1069 (¶¶11-12) (Miss. Ct.
App. 2000) (holding obligor is bound by provision to "provide for said child's higher education"). Certainly,
there may be certain costs associated with attending college upon which minds might reasonably differ as to
whether they were included in this descriptive term, but the core costs of matriculating at a recognized
institution of higher learning - such as tuition, books, and room and board - are fundamentally a part of the
cost of college attendance by any reasonable definition. One can, by brainstorming, think of examples of
costs associated with attending college that are less clearly necessary to a successful education, but a
recitation of those examples does not render the entire commitment unenforceable for vagueness. Neither
does the fact that some of the undisputably vital costs of college may vary widely from institution to
institution. The only question raised by such issues is whether, under the circumstances of the particular
case, the proposed expenditure under consideration is deemed reasonable or not. That is a matter that can
be resolved by appropriate litigation upon the parties' inability to agree. Id.
¶38. The second reason advanced by the chancellor to refuse to enforce the agreement was the fact that the
stepdaughter accused Dr. Holzhauer of sexually molesting her under circumstances that ultimately led to his
indictment and subsequent acquittal. Whether Dr. Holzhauer could avoid his contractual obligation upon
proving, by a preponderance of the evidence, that his stepdaughter falsely accused him of sexually improper
behavior may be an issue of law upon which a court could properly rule, but that issue is not before this
Court on this record. The chancellor made no finding of fact as to whether the charges of sexual
impropriety were false, and it is well-settled law that a judgment of acquittal in a criminal prosecution, where
the burden of proof is substantially higher than in a civil suit, is not conclusive in a civil suit where the same
allegations may have some relevance. Chatman v. Modern Builders, 227 Miss. 339, 344, 86 So. 2d 350,
352 (1956). The majority, in affirming the chancellor, cites the case of Hambrick v. Prestwood as
authority for its holding, apparently on the notion that evidence of a poor relationship between the obligor
and the intended beneficiary of the payment is an appropriate ground to excuse performance. Hambrick v.
Prestwood, 382 So. 2d 474, 477 (Miss. 1980). In that case, the natural father was excused from any
responsibility for the costs of college for his nineteen-year-old daughter who had been estranged from him
since the age of twelve. Hambrick, 382 So. 2d at 477. The Hambrick case is, in my view, distinguishable
since the obligation in Hambrick was not a part of a voluntary commitment on the part of the obligor in the
nature of a contractual obligation as it is in the case before us. Instead, in Hambrick the claimed entitlement
to payment was based solely on the legal obligation of a father to support his minor children, and the father's
obligation was excused on the ground that the normal ties of kinship giving rise to such an obligation had, on
the unique facts of that case, been irretrievably broken. In the case before us, there was no indication that
Dr. Holzhauer's commitment was based on any feelings of affection for his stepdaughter or in recognition of
any particular familial bonds that might have arisen during his marriage to the child's mother. Rather, the
agreement appears to be nothing more than one of several negotiated financial concessions made by him in
the context of obtaining a divorce. Hambrick has no particular application because, absent Dr. Holzhauer's
voluntary agreement to pay such expenses, it would have been entirely beyond the authority of the
chancellor to order such payments. Nevertheless, once Dr. Holzhauer committed contractually to make
such payments, it fell within the chancellor's authority to enforce that provision of the agreement. Varner v.
Varner, 666 So. 2d 493, 496-97 (Miss. 1995). The fact that Dr. Holzhauer may have found his previous
commitment distasteful because of the subsequent actions of his former stepdaughter is not, in my view,
sufficient grounds to excuse his performance of the obligation altogether.
¶39. Whether Dr. Holzhauer's cessation of payments to meet Alexa Scroggins's reasonable college
expenses was based on impossibility of performance brought on by his then-existing deteriorating financial
condition or whether it was, in fact, based upon his determination that her post-agreement behavior toward
him had voided his obligation is, to a large extent, moot at this point since neither defense appears to have
merit and it is apparent from the record that Dr. Holzhauer, in his present situation, can easily defray the
reasonable costs associated with Ms. Scroggins's college attendance for the three years that he has yet to
pay. This obligation should be enforced, either in the form of reimbursement for reasonable expenses
already expended or in the form of prospective payments for future undergraduate educational efforts by
Ms. Scroggins, depending on what the facts would show to be more appropriate on remand. The sole issue
not mooted by Dr. Holzhauer's improved financial condition is the issue of attorney's fees for the
enforcement of this provision of the divorce settlement agreement, since that would hinge, to some extent,
on whether Dr. Holzhauer's earlier failure to pay was wilful or based on impossibility of performance. That,
too, is a matter that can and ought to be resolved on remand.
¶40. I would reverse and remand the chancellor's judgment to resolve this issue along the terms set out
herein where the dollar amount of Dr. Holzhauer's obligation is determined based on proper evidence of the
reasonable costs of Ms. Scroggins's efforts to complete her undergraduate education (proper evidence of
which is not, as the appellant seems to contend, demonstrated by proof of the amounts of student loans
taken out by Ms. Scroggins).
¶41. I agree with the majority's treatment of all the remaining issues.
SOUTHWICK, P.J., THOMAS AND LEE, JJ., JOIN THIS SEPARATE WRITTEN
OPINION.
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