Judy Lynn (Payne) Goodson v. William David Goodson
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CA-00494-COA
JUDY LYNN (PAYNE) GOODSON
v.
WILLIAM DAVID GOODSON
APPELLANT
APPELLEE
DATE OF TRIAL COURT 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:
CERTIORARI FILED:
MANDATE ISSUED:
02/16/2001
HON. MELVIN MCCLURE
DESOTO COUNTY CHANCERY COURT
JOHN THOMAS LAMAR JR.
STEVEN GLEN ROBERTS
CIVIL - DOMESTIC RELATIONS
DIVORCE AWARDED, PROPERTY DIVISION
REVERSED AND REMANDED - 04/16/2002
5/7/2002
BEFORE SOUTHWICK, P.J., LEE, AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1. David and Judy Goodson were granted a divorce based on irreconcilable differences on February 16,
2001. Judy was awarded primary custody of the couple's only child and David was granted liberal visitation
rights. The chancellor also made provisions for the division of the marital property that the couple had not
otherwise divided. On January 31, 2000, the chancellor found Judy in contempt for failing to force her
daughter to comply with the chancellor's visitation schedule. On appeal, Judy argues that the she did not
violate the visitation order and that the contempt order should be set aside. She also argues that the
chancellor erred by not awarding her a portion of David's 401K plan in the property division.
FACTS
¶2. David and Judy Goodson were married on March 24, 1981, in Grenada, Mississippi. One child was
born to the union, Sheri Beth Goodson, on June 25, 1986. The couple was granted a divorce on the basis
of irreconcilable differences on January 10, 2001. At the time of the divorce, Judy was awarded primary
custody of Sheri and David was granted liberal visitation rights.
LAW AND ANALYSIS
I. DID THE CHANCELLOR ERR IN FINDING JUDY IN CONTEMPT OF THE
COURT'S VISITATION ORDER?
¶3. A citation for contempt is determined upon the facts of each case and is a matter for the trier of fact.
Milam v. Milam, 509 So. 2d 864, 866 (Miss. 1987). A finding of contempt is proper when "the
contemnor has willfully and deliberately ignored the order of the court." Bredemeier v. Jackson, 689 So.
2d 770, 777 (Miss. 1997). Contempt matters are committed to the sound discretion of the trial court.
Caldwell v. Caldwell, 579 So. 2d 543, 545 (Miss. 1991). This Court will not reverse a contempt citation
where the chancellor's findings are supported by substantial credible evidence. Id.
¶4. The burden of proof in a case of civil contempt is by a preponderance of the evidence. Miss. Code
Ann. § 11-51-12(4) (Supp. 2001). The behavior necessary for a finding of contempt must amount to a
willful or deliberate violation of a judgment or decree. Dunaway v. Busbin, 498 So. 2d 1218, 1222 (Miss.
1986).
¶5. The chancellor found Judy to be in contempt of court because she did not force her daughter to comply
with the court's visitation schedule. The court stated that because visitation was ordered and not complied
with and because Judy was in the custody of Sheri, she was in contempt regardless of whether Sheri
wanted to see her father or not.
¶6. We find two problems with this contempt citation. First, Sheri, who was fourteen years of age, refused
to comply with the visitation order and informed both of her parents that she would not visit her father. In
Prestwood v. Hambrick, 308 So. 2d 82 (Miss. 1975), the Mississippi Supreme Court set aside a
contempt citation based on the mother's failure to force her thirteen year old daughter to comply with the
ordered visitation schedule. The court stated that the mother could show by way of defense that the failure
to comply with the court's decree was not willful or intentional. Prestwood, 308 So. 2d at 84. The court
noted that the mother had talked with her daughter and explained to her that she should visit with her father
as ordered by the court and otherwise urged her to visit her father. Id. The court found that the mother had
done all she could to comply with the court's order and that failure to do so was not her fault. Id. at 85.
¶7. The facts of Prestwood are similar to the case sub judice. Sheri was fourteen at the time she refused to
go with her father. At trial, Judy testified that she encouraged Sheri to visit with her father. Judy stated that
she reminded Sheri that he was her father and she should spend time with him as ordered. Judy further
stated that short of physically putting Sheri in her father's vehicle, she could not otherwise force the child to
comply with the court's order.
¶8. The chancellor's order does not take into consideration the above facts and case law. Because Judy
tried to make Sheri comply with the visitation order and because the child's refusal to comply was not
Judy's fault, she did not act in willful violation of the court's order. Further, the language of the contempt
citation itself is problematic. The chancellor did not impose a fine or penalty for the contempt violation. He
stated that Judy could purge herself of the contempt by complying with the visitation order from that point
forward. In the case that Judy did not rectify the contempt, the chancellor instructed her that if she were to
come before him again, she would "have problems on a contempt matter." This language is not sufficiently
clear or instructive. Before a person may be held in contempt of a court judgment, the judgment must "be
complete within itself--containing no extraneous references, leaving open no matter or description or
designation out of which contention may arise as to the meaning." Wing v. Wing, 549 So. 2d 944, 947
(Miss. 1989)(quoting Griffith, Mississippi Chancery Practice § 625, at 676-77 (2d ed. 1950)). "Nor should
a final decree leave open any judicial question to be determined by others, whether those others be the
parties or be the officers charged with execution of the decree . . . ." Wing, 594 So. 2d at 947 (quoting,
Griffith, supra, § 625). Therefore, for the foregoing reasons, the order of contempt is reversed.
II. DID THE CHANCELLOR ERR BY FAILING TO AWARD JUDY A PORTION OF
DAVID'S 401K RETIREMENT PLAN?
¶9. This Court's guidelines for review of a chancellor's equitable division of marital assets are enumerated in
Ferguson v. Ferguson, 639 So. 2d 921, 930 (Miss. 1994). The equitable distribution of marital assets is
committed to the discretion of the chancellor. Arthur v. Arthur, 691 So. 2d 997, 1003 (Miss.1997) (citing
Ferguson, 639 So. 2d at 930). The chancellor's findings will not be disturbed by this Court unless the
chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Arthur,
691 So. 2d at 1003 (citing Ferguson, 639 So. 2d at 930). In order to aid review, the chancellor must
provide specific findings of fact with regard to property acquisition, classification of assets, and distribution
of the marital estate. Henderson v. Henderson, 703 So. 2d 262 (¶12) (Miss. 1997).
¶10. In Johnson v. Johnson, we outlined the steps involved in the process of applying the equitable
distribution factors listed in Ferguson. Johnson v. Johnson, 650 So. 2d 1281, 1287 (Miss. 1994). To
begin, the chancellor is to classify the parties' assets as marital or non-marital pursuant to Hemsley v.
Hemsley, 639 So. 2d 909, 914 (Miss. 1994). Next, the chancellor is to value and equitably divide the
marital property using the Ferguson factors as guidelines, in light of each party's non-marital property.
Johnson, 650 So. 2d at 1287. Then, if the marital assets, after equitable division and in light of the parties'
non-marital assets, will adequately provide for both parties, then "no more need be done." Id. Finally, if an
equitable division of marital property, considered with each party's non-marital assets, leaves a deficit for
one party, then alimony should be considered. Id.
¶11. In the decree of divorce and the ruling at the hearing, the chancellor did not apply the above mentioned
formula. The parties submitted to him for division several items which they could not agree as to whom
would receive the property. The chancellor seemed to go down the list awarding some of the items to Judy
and some of the items to David.
¶12. Failure by a chancellor to apply the Ferguson factors and make the requisite findings of fact and
conclusions of law has been pronounced to be reversible error. Heigle v. Heigle, 771 So. 2d 341 (¶20)
(Miss. 2000). In Kilpatrick v. Kilpatrick, 732 So. 2d 876 (Miss. 1999), the Mississippi Supreme Court
reversed a chancellor for failing to make the required findings of fact and conclusions of law regarding the
distribution of the marital estate. Id. at (¶19). In that case, the chancellor gave a listing of the actual division
of marital property; however, he did not give any findings of fact or law to support his division of the marital
estate. Id. at (¶¶15-19). The court reversed and remanded the case stating, ""[w]ithout findings from the
chancellor . . . we cannot determine if the distribution of property outlined above meets the standards of
equitable distribution required by Ferguson."Id. at (¶19). The facts of Kilpatrick are similar to the case
sub judice.
¶13. A 401K plan is marital property and subject to equitable division by the chancellor. Caswell v.
Caswell, 763 So. 2d 890 (¶14) (Miss. Ct. App. 2000). "When separate plans for each spouse are not in
existence, it is only equitable to allow both parties to reap the benefits of the one existing retirement plan, to
which both parties have materially contributed in some fashion." Selman v. Selman, 722 So. 2d 547 (¶24)
(Miss. 1998).
¶14. The chancellor listed the items of property that each party would receive, but he did not give any
findings of fact or conclusions of law in support of his decisions. Without proper findings of fact and
conclusions of law by which to evaluate the chancellor's division of the marital estate, we cannot determine
if there has been an abuse of discretion. As such, this case must be remanded for specific findings
concerning the division of David's 401K retirement plan.
¶15. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY FINDING
JUDY IN CONTEMPT IS REVERSED. THE JUDGMENT OF THE CHANCERY COURT OF
DESOTO COUNTY AWARDING THE ENTIRE 401K RETIREMENT PLAN TO DAVID IS
REVERSED AND REMANDED FOR SPECIFIC FINDINGS AND CONCLUSIONS OF LAW
IN SUPPORT OF THE DIVISION OF THE RETIREMENT PLAN. COSTS ARE ASSESSED
TO THE APPELLEE.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND BRANTLEY, JJ., CONCUR.
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