Jimmy Earl Lane v. Dixie Carole Lane
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CA-01554-COA
JIMMY EARL LANE
v.
DIXIE CAROLE LANE
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:
APPELLANT
APPELLEE
09/12/2000
HON. CEOLA JAMES
WASHINGTON COUNTY CHANCERY COURT
ERIKA DANITA SUTTLAR
WILLIAM R. STRIEBECK
CIVIL - DOMESTIC RELATIONS
APPELLANT ADJUDGED TO BE IN CONTEMPT,
CHILD SUPPORT ARREARAGES ORDERED PAID
AFFIRMED AND REMANDED FOR CONSIDERATION
OF ISSUE OF MODIFICATION - 05/14/2002
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
6/4/2002
BEFORE McMILLIN, C.J., BRIDGES, AND IRVING, JJ.
IRVING, J., FOR THE COURT:
¶1. Jimmy Earl Lane was held in contempt by the Chancery Court of Washington County for failing to pay
child support. Additionally, the chancellor determined the arrearage to be $17,150 and entered judgment
against him for this amount. He was ordered to pay $5,000 within ninety days or report to jail. Lane has
appealed and raises several issues in a convoluted manner. For purposes of our analysis and discussion, we
have found it necessary to recast the array of issues into four categories as follows: (1) whether the alimony
awarded in the divorce decree was periodic, (2) whether the chancellor's 1998 decision -- that Jimmy
voluntarily terminated his employment -- was manifestly wrong, (3) whether the chancellor's 1998 decision - that the emancipation of two of the parties' children -- did not warrant a reduction in Jimmy's child support
obligations, and (4) whether the chancellor manifestly erred in finding Jimmy in contempt and in dismissing,
pursuant to the doctrine of unclean hands, his petition for modification.
FACTS
¶2. Jimmy and Dixie Lane were divorced June 6, 1988; three children, Heather, Kristie, and Anissa, were
born to the marriage. In 1988, Heather was six, Kristie was seventeen, and Anissa was twenty. The final
decree ordered Jimmy to pay $400 a month in alimony. In addition, Dixie received full custody of Anissa
and Heather; Jimmy received full custody of Kristie. Jimmy was ordered to pay $224 a month per child
with a total of $448 a month for child support. Also, upon Anissa's emancipation, Jimmy would pay $400 a
month in child support for Heather. Each party was awarded an automobile and Dixie was given the marital
home with the responsibility of assuming all payments including taxes. Jimmy was obligated to pay medical,
dental, visual, orthodontic, and drug expenses reasonably incurred by the children.
¶3. In 1998, Jimmy filed a motion to modify child support and alimony, alleging that he was forced to take
an early retirement which caused a reduction of his income. This motion was dismissed on the court's finding
that Jimmy voluntarily accepted early retirement thereby reducing his income.(1) In September of 1999,
Jimmy was found in contempt for failure to pay child support and alimony arrearage.
¶4. In November of 1999, Jimmy filed a petition to suspend and/or modify child support and alimony,
waive arrearage, and set aside a contempt order. Dixie objected and responded to the petition with
affirmative defenses. In September 2000, the court entered an order of contempt citing Jimmy's failure to
pay a $9,350 judgment of past due child support and alimony rendered in September of 1999. Following
the September 1999 judgment, Jimmy, without order of the court, discontinued alimony payments and
reduced his child support payments to $150 a month. The arrearage caused by this unilateral reduction in
payments amounted to $7, 800, and the chancellor also found him in contempt for failing to pay this
amount. As a result, the chancellor rendered a total judgment against Jimmy in the amount of $17,150 and
ordered him to pay $5,000 of that amount within ninety days or go to jail. Also, the chancellor determined
that Jimmy came into court with unclean hands and refused to consider his November 1999 petition for
modification. It is from this September 2000 order that Jimmy prosecutes this appeal.
ANALYSIS AND DISCUSSION OF ISSUES
1. Nature of the Alimony
¶5. Jimmy contends that the alimony which was awarded in the final decree is periodic alimony, subject to
modification. Dixie concedes as much. Periodic alimony is for an indefinite period vesting as it comes due
and is modifiable. Hubbard v. Hubbard, 656 So. 2d 124, 130 (Miss. 1995). The portion of the final
decree referring to alimony stated, "[h]usband agrees to pay to wife the sum of $400 per month as alimony,
which payments shall commence February 1, 1988 and continue thereafter on the first day of each month."
Since Dixie concedes the nature of the alimony, there is no need for us to address this issue any further.
2. Nature of the Termination of Jimmy's Employment and the Reduction in Child Support
Obligations because of the Emancipation of One of the Children of the Parties
¶6. The matter of the circumstances surrounding and the nature of the termination of Jimmy's employment,
as well as the question of whether Jimmy should receive a reduction of his child support obligation because
of the emancipation of one of the children, were the subject of Jimmy's 1998 motion for modification. The
chancellor ruled adversely to Jimmy on both of these matters, and Jimmy did not appeal. Consequently,
those matters are res judicata, and Jimmy is procedurally barred from raising them in this appeal. It is well
recognized that appeals not perfected within thirty days will be dismissed. Matter of Estate of Ware, 573
So. 2d 773, 775 (Miss. 1990). Thus, Jimmy is precluded from raising those issues now.
3. Adjudication of Contempt and Refusal to Consider Jimmy's Petition for Modification
¶7. In reviewing a decision by a chancellor, this Court will uphold findings of fact as long as the record
reflects that they are supported by substantial, credible evidence. Caldwell v. Caldwell, 579 So. 2d 543,
547 (Miss. 1991). More importantly, issues of alimony and child support are discretionary, and this Court
will not reverse absent a finding that the chancellor abused his discretion or was manifestly in error. Gregg
v. Montgomery, 587 So. 2d 928, 931 (Miss. 1991).
¶8. The chancellor found that Jimmy had failed to pay the $9,350 judgment rendered against him in
September 1999, for accrued support and alimony obligations. Also, the court found that he had
discontinued alimony and reduced child support payments which resulted in an arrearage of $7,800. The
proof is uncontradicted that Jimmy had failed to pay these amounts. His defense was that he was unable to
pay because he had suffered a reduction in income.
¶9. Further, Jimmy asserts that he had made good faith efforts to uphold his monthly obligations despite his
reduction in income to $852 per month. He failed to show with particularity that he was earning all he could,
that he lived economically, and paid all surplus money above living expenses to Dixie and Heather. During
the hearing, he spoke of his present wife's ailments and his surgeries as factors which required him to accept
early retirement. Yet, he did not provide proof with particularity of these surgeries, his wife's sickness, nor
testimony of how these factors have hindered him from earning all he could. Regardless, Jimmy's financial
obligation to Dixie is paramount to the financial obligations he has as a result of his second marriage.
¶10. Moreover, Jimmy did not show that he earned all he could. There was no proof that he had searched
for other employment within his town which would supplement his retirement and enable him to pay alimony
and child support. Also, Jimmy had purchased a new Dodge pickup truck during the time he was claiming
an inability to pay his alimony and child support. Seemingly, he used his surplus from expenses to pay
himself instead of Dixie and Heather. Thus, absent Jimmy's showing with particularity that he was earning all
that he could, that he lived economically, and paid all surplus to Dixie, we find that the chancellor did not
abuse her discretion in determining that Jimmy was in contempt for failing to pay the September 1999
judgment as well as the amounts which came due and payable thereafter. He cannot claim the benefit of a
reduction in income because he did not appeal from the chancellor's decision in 1998 that he voluntarily
caused a reduction in his income. The record substantially supports the chancellor's decision; therefore, we
affirm her finding of contempt.
¶11. As stated, the chancellor refused to consider Jimmy's latest motion for modification because she found
he had unclean hands. Of course, Jimmy argues that he does not have unclean hands because he first sought
a modification of his support obligations back in 1998 after suffering a reduction in income. According to
Jimmy, his actions then, which predate his current motion for modification, show that he acted with
reasonable promptitude in alerting the court to his inability to pay. The principle of "unclean hands" dictates
that "he who comes into equity must come with clean hands." Thigpen v. Kennedy, 238 So. 2d 744, 746
(Miss. 1970). In O'Neill v. O'Neill, 551 So. 2d 228, 233 (Miss. 1989), the meaning of this principle was
expounded on: "[t]he meaning of this maxim is to declare that no person as a complaining party can have the
aid of a court of equity when his conduct with respect to the transaction in question has been characterized
by wilful inequity . . . ." The court may apply this doctrine sua sponte where it is shown applicable.
Brennan v. Brennan, 605 So. 2d 749, 752 (Miss. 1992).
¶12. Jimmy contends that the "unclean hands" doctrine prevents a payor from obtaining a modification if he
is in arrears, unless a payor proves his inability to pay. For this reason, Jimmy claims that the doctrine of
"unclean hands" does not apply to him because he has shown an inability to pay by filing petitions to modify
from 1995 until 2000. In Hooker v. Hooker, 205 So. 2d 276, 278 (Miss. 1967), the court prescribed that
"a husband may not petition for modification of the original decree without a showing either that he has
performed it or that his performance has been wholly impossible." The supreme court has recognized that
this showing must be done in "particular and not general terms." Gregg v. Montgomery, 587 So. 2d 928,
932 (Miss. 1991). A husband is required to show what his earnings, his living expenses, and who his
dependents are. Kincaid v. Kincaid, 213 Miss. 451, 456, 57 So. 2d 263, 265 (1952). Yet, "the payment
of other debts or expenses will not excuse or justify his default, unless such payment was necessary in order
to continue his business or occupation, because his wife's right to alimony is a prior and paramount claim on
his earnings." Gregg, 587 So. 2d at 932. Moreover, if a husband wishes to prove an inability to pay, his
evidence must show "that he earned all he could, that he lived economically, and paid all surplus money
above a living on the alimony decreed to his wife." Kincaid, 213 Miss. at 456, 57 So. 2d at 265. Jimmy
fails to meet this standard. Therefore, we affirm the chancellor's finding that Jimmy came into court with
unclean hands.
¶13. Having determined that Jimmy came into court with unclean hands, we now look to see if he left with
unclean hands so as to prevent any modification of his support obligations until he had paid all arrearage.
Jimmy avers that a change in his alimony and child support payments are warranted because compliance
would impose a poverty level of living. Also, he contends that his reduction in income, his poor health, and
his wife's failing health were material and/or substantial changes in the circumstances which warrant
modification of his alimony and child support obligation. Additionally, Jimmy notes that in 1995(2) the court
failed to consider Dixie's additional income and other factors which presented a material change in
circumstances. The portion of Jimmy's argument concerning the 1995 hearing will not be addressed
because he is precluded from raising that issue in this appeal due to his failure to appeal the chancellor's
ruling at that time.
¶14. Jimmy properly advances that the chancellor has the power to reduce his alimony and child support
when there has been a subsequent and substantial change in circumstances. Gregg, 587 So. 2d at 933.
However, under these circumstances, Jimmy's hardships are secondary since the chancellor determined that
he entered a court of equity with unclean hands. Jimmy's entering with unclean hands does not dictate the
conclusion that he left with unclean hands. The chancellor's final order incorporated the court's previous
ruling and findings of fact. The entering of this order had the effect of cleansing Jimmy's hands. See Brennan
v. Brennan, 605 So. 2d 749, 753 (Miss. 1992). Therefore, we affirm the judgment of the lower court but
hold that the entry of the final judgment cleansed Jimmy's hands and revived the matter of modification. We
remand to the lower court for that purpose. On remand, if a modification is granted, it will only be
retroactive to the date of the judgment from which this appeal was taken. This Court cannot eviscerate the
"bedrock" principle that neither child support nor alimony arrearage can be forgiven. Williams v. Rembert,
654 So. 2d 26, 29 (Miss. 1995). Thus, we are not at liberty to modify child support retroactively because
that would be the equivalent of forgiving Jimmy's obligations. For the reasons stated above, we find that this
argument lacks merit, and we affirm the $17,150 judgment rendered against Jimmy as well as the
chancellor's finding of contempt. However, the issue of modification is remanded for further action.
¶15. THE JUDGMENT OF THE CHANCERY COURT OF WASHINGTON COUNTY IS
AFFIRMED AND REMANDED ON THE ISSUE OF MODIFICATION. ALL COSTS OF
APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.
1. Prior to 1998, several orders for contempt were entered against Jimmy for violating the final
decree. As a result, Jimmy was ordered to pay child support and alimony arrearage.
2. Jimmy filed an Answer to Motion for Citation for Contempt and Counterclaim for Modification in
1995 and stated that Dixie had an increase in income from employment and that she had sold her
home and received a large amount of equity from it.
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