Pamela J. Thompson v. Department of Human Services
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00022-COA
PAMELA J. THOMPSON
APPELLANT
v.
MISSISSIPPI DEPARTMENT OF HUMAN SERVICES
FOR DONALD W. SURBER
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:
APPELLEE
12/6/2002
HON. GLENN ALDERSON
TIPPAH COUNTY CHANCERY COURT
LAURA EAVES MURPHY
VICKIE R. MITCHELL
CIVIL - DOMESTIC RELATIONS
DEFENDANT HELD IN CONTEMPT FOR
UNPAID CHILD SUPPORT OF $5000 AND
ORDERED TO PAY $150 MONTHLY IN
CURRENT CHILD SUPPORT PLUS AN
ADDITIONAL $100 PER MONTH UNTIL
ARREARAGE PAID IN FULL.
AFFIRMED - 10/14/2003
BEFORE SOUTHWICK, P.J., THOMAS AND IRVING, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1.
Pamela Thompson was found in contempt for unpaid child support to her ex-husband, Donald
Surber. She claims that the chancellor improperly denied her an opportunity to present documentary and
testamentary evidence favoring her case. She further submits that her actions did not constitute contempt.
We find no support in the record for these allegations. Consequently, we affirm.
STATEMENT OF FACTS
¶2.
In 1988, the parties were granted a divorce, with custody of their minor child awarded to Ms.
Thompson. In January 1999, the parties submitted an agreed order of modification, transferring custody
of the child to Mr. Surber. In December 1999, a further agreed order of modification assessed child
support in the amount of $150 per month to Thompson. In November 2002, the Mississippi Department
of Human Services filed a petition for contempt, claiming that Thompson was over $5000 in arrears of her
child support obligation. A hearing on the contempt motion was held, and a judgment finding Thompson
in contempt was entered on December 6, 2002. A schedule for Thompson to pay the past-due amounts
as well as remain current in the future was set in the court's order. Thompson's appeal from that judgment
has been deflected here.
DISCUSSION
¶3.
Thompson argues that the chancellor improperly limited her presentation of evidence. There was
no transcript of the hearing, as only the pleadings were designated by Thompson's attorney for the appellate
record. Thus almost all is left solely to the imagination.
¶4.
Thompson alleges that she had in fact paid most or all of the child support but just had not been
paying it through the Department of Human Services. She apparently attempted to introduce a receipt
book in which she claims her child support payments were recorded. This book, Thompson argues, would
have rebutted any finding of "willful and deliberate" action on her part justifying a finding of contempt. She
alleges that the chancellor "instructed Defendant to sit down and shut up or she would be incarcerated."
¶5.
The Department of Human Services in its brief states that the father of the child denied at the
hearing ever receiving any of the payments. If both parties are correct in their assertions, the chancellor
was simply dealing with conflicting evidence as to the existence of payments.
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¶6.
It is the appellant's duty to supply a reviewing court with an adequate record for the issues under
consideration. Oakwood Homes Corp. v. Randall, 824 So. 2d 1292, 1293 (Miss. 2002). "Facts
asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law;
otherwise, we cannot know them." Id. at 1294 (quoting Mason v. State, 440 So. 2d 318, 319 (Miss.
1983)). We do not know if a court reporter was present, and the failure was in having a transcript made,
or whether there was no reporter and thus no post hoc means to create a transcript. Both parties
seemingly agree that Thompson had no counsel at the hearing.
¶7.
Once counsel was retained, had there been no reporter there still was a means to correct the
deficiency in the record:
If no stenographic report or transcript of all or part of the evidence or proceedings is
available, the appellant may prepare a statement of the evidence or proceedings from the
best available means, including recollection. The statement should convey a fair, accurate
and complete account of what transpired with respect to those issues that are the bases of
the appeal . . . .
M.R.A.P. 10(c). The summary is to be filed with the court clerk, and the opposing party then has an
opportunity to file timely objections. Id. We must have some statement which would serve as a basis for
an appellant's claims.
¶8.
Absent a record basis to determine otherwise, we presume the chancellor's order of contempt was
based on adequate evidence. If the chancellor did refuse to admit the receipt book that Thompson states
she had compiled and then offered, we will presume that the chancellor did at least hear evidence that no
payments were made. Whatever the receipt book might have shown, maintained as it was solely by
Thompson, it would not have been conclusive anyway.
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¶9.
Thompson further claims that the chancellor failed to follow "the dictates of the Mississippi Supreme
Court which require that a Chancellor make specific findings of fact on the record which support a
Chancellor's final decision."
¶10.
We agree that after a bench trial, the court has discretion to enter specific findings even without a
party's request. M.R.C.P. 52(a). In matters of "any significant complexity . . . the word 'may' in Rule 52(a)
should be construed to mean 'generally should.'" Tricon Metals & Services, Inc. v. Topp, 516 So. 2d
236, 239 (Miss. 1987).
¶11.
What information can be gleaned from the record before us suggests that the issue was
straightforward, not complex. We do not find that the chancellor abused his discretion in failing to enter
specific factual findings without a request to do so.
¶12. THE JUDGMENT OF THE CHANCERY COURT OF TIPPAH COUNTY IS HEREBY
AFFIRMED. STATUTORY DAMAGES AND INTEREST ARE AWARDED. COSTS ARE
ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, AND
GRIFFIS, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.
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