Sondra Robin Howell Brawdy v. Brett Alan Howell
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-00501-COA
SONDRA ROBIN HOWELL BRAWDY
APPELLANT
v.
BRETT ALAN HOWELL
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:
APPELLEE
3/8/2002
HON. CARTER O. BISE
HARRISON COUNTY CHANCERY COURT
WILLIAM W. DREHER, JR.
DEBORAH KAY HESTER
CIVIL - DOMESTIC RELATIONS
MODIFIED JUDGMENT TO ORDER
APPELLANT TO PAY CHILD SUPPORT;
FOUND APPELLEE IN CONTEMPT AND
ENTERED JUDGMENT WITH INTEREST.
AFFIRMED IN PART; REVERSED AND
RENDERED IN PART: 04/01/2003
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE MCMILLIN, C.J., BRIDGES AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
In 1999, Sondra Robin Howell Brawdy (“Brawdy”) and Brett Alan Howell (“Howell”) obtained
an irreconcilable differences divorce. After several modification orders were entered, Howell filed a
petition for modification and Brawdy filed a counterclaim. After a hearing, the Harrison County Chancery
Court found Howell in contempt for unpaid child support and ordered Brawdy to pay monthly child
support. Brawdy appeals the chancellor’s ruling and alleges that the chancellor erred by ordering her to
pay child support, by assessing interest at a rate of three percent (3%) per annum for child support
payments in arrears, and in failing to deny Howell’s petition for modification based on the clean hands
doctrine. Finding that the chancellor abused his discretion in the award of child support, we reverse and
render in part, and in finding no error in the other presented issues, we affirm in part.
FACTS AND PROCEDURAL HISTORY
¶2.
On January 15, 1999, Howell and Brawdy were divorced. The chancellor accepted and entered
the parties’ agreed judgment, which incorporated a property settlement and child support agreement.
According to the judgment, they were to share joint legal custody of their two minor children with Brawdy
having paramount physical custody. Howell was ordered to pay Brawdy monthly child support of $270
per child.
¶3.
In August 1999, the parties returned to court and filed a joint petition seeking modification of the
original judgment. On August 24, 1999, the chancellor entered an agreed order that granted Howell
custody of their oldest child and reduced his child support obligation by one-half. At this time, Brawdy had
remarried and moved to Utah.
¶4.
On March 30, 2001, the chancellor entered a second agreed order of modification that awarded
Howell paramount physical custody of the younger child and terminated his remaining child support
obligation to Brawdy. This order, prepared and submitted to the chancellor by Howell’s attorney, did not
require Brawdy to pay Howell child support.
¶5.
Approximately five and a half months later, on September 12, 2001, Howell filed a motion for
modification that asked the chancellor to order Brawdy to pay child support, provide major medical
insurance coverage for the children, provide automobile insurance, provide a life insurance policy naming
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the children as irrevocable beneficiaries, and allow Howell the right to claim the children for tax purposes.
¶6.
Brawdy counterclaimed and asserted that Howell was in contempt because he owed back child
support and, therefore, lacked the “clean hands” required to obtain equitable relief. Brawdy alleged that
(1) Howell was in arrears for child support that was due prior to the March 30, 2001 agreed order; (2)
the older son was emancipated and, therefore, no child support should be paid for his benefit; (3) she was
financially unable to provide support for the younger son; and (4) for the return of custody due to Howell’s
lack of supervision.
¶7.
After a hearing, on March 8, 2002, the chancellor1 ordered Brawdy to pay Howell child support
in the amount of $275 per month for the younger son, granted Howell the right to claim Jeremy as a tax
exemption for the year 2001 and each year thereafter, found Howell to be in contempt of court and granted
judgment in the amount of $3,967.68 plus interest at the prevailing rate of three percent (3%), and allowed
Brawdy to offset her child support obligation against Howell's arrearage until it is eliminated. The
chancellor further held that Brawdy did not have to maintain health, life or automobile insurance and that
the older son was emancipated.
STANDARD OF REVIEW
¶8.
This Court's scope of review in domestic relations is strictly limited. We will not disturb the
findings of a chancellor unless we find an abuse of discretion, an erroneous application of the law or a
manifest error. Andrews v. Williams, 723 So. 2d 1175 (¶7) (Miss. Ct. App. 1998). If we find
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The chancellor that entered the March 30, 2001 agreed judgment was different from the
chancellor who heard the motion for modification and entered the March 8, 2002 order.
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substantial evidence in the record to support the chancellor's findings, we will not reverse. Wilbourne
v. Wilbourne, 748 So. 2d 184 (¶3) (Miss. Ct. App. 1999).
ANALYSIS
I. WHETHER THE COURT COMMITTED MANIFEST ERROR AND ABUSED ITS
DISCRETION IN ALLOWING HOWELL TO MODIFY THE JUDGMENT OF
DIVORCE WITHOUT SHOWING A MATERIAL AND SUBSTANTIAL CHANGE
IN CIRCUMSTANCES.
¶9.
Decisions regarding modification of child support are normally within the discretion of the
chancellor. Reversal is permitted only if there is manifest error in findings of fact or an abuse of discretion.
Powell v. Powell, 644 So. 2d 269, 279 (Miss. 1994). “The process of weighing evidence and arriving
at an award of child support is essentially an exercise in fact-finding, which customarily significantly restrains
this Court's review.” Clausel v. Clausel, 714 So. 2d 265, 266-67 (¶6) (Miss. 1998). Using these
standards, we review the chancellor’s decision.
¶10.
In modifying the previous agreement and awarding child support, the chancellor found that “there
has been an increase in expenses for Jeremy due to his advanced age” and that “Brawdy still has a duty
to support her child.” The chancellor ordered Brawdy to pay child support for Jeremy at the rate of
fourteen percent (14%) of her adjusted gross income, $275 per month, and to be equally responsible for
all deductibles and out-of-pocket medical expenses for the younger child.
¶11.
Mississippi law on modification of divorce decrees is well settled. “A child support award can be
altered if it can be shown that there has been a substantial or material change in the circumstance of one
or more of the interested parties: the father, the mother, and the child or children, arising subsequent to the
entry of the decree to be modified.” Overstreet v. Overstreet, 692 So. 2d 88, 92 (Miss. 1997). The
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substantial or material change must occur as a result of after-arising circumstances of the parties not
reasonably anticipated at the time of the previous agreement. Tingle v. Tingle, 573 So. 2d 1389, 1391
(Miss. 1990); see Meeks v. Meeks, 757 So. 2d 364, 367 (¶9) (Miss. Ct. App. 2000) (This Court has held
that justification for the change must “be events for which allowance could not reasonably have been made
at the time of the previous ruling.").
¶12.
Furthermore, the party seeking modification must present “proof on the issue of the unexpected
nature to the changes in circumstances." Id. at 367 (¶11). Such burden may be met by “showing a
significant increase in the cost of goods or services or by a specific showing of needs not previously
existing.” Turner v. Turner, 744 So. 2d 332, 336 (¶17) (Miss. Ct. App. 1999).
¶13.
In the present case, Howell sought to modify the March 30, 2001 agreed order by requesting child
support due to an alleged material change in circumstances. To support his claim, Howell testified that "the
boys have gotten older and more expensive." Howell offered no other evidence to support this allegation.
¶14.
We recognize that increased age and proven expenses may be considered a material change in
circumstances. Kilgore v. Fuller, 741 So. 2d 351, 353 (¶7) ( Miss. Ct. App. 1999). In this case,
however, there was no evidence offered to prove what expenses had increased in the five months (or one
year) since the previous order. Howell simply made a general characterization that the costs associated
with his sons have increased. "This general pronouncement, unsubstantiated by specific proof, does not
rise to the level of a material change in circumstances warranting modification of child support." Turner,
744 So. 2d at 336 (¶18).
¶15.
As stated above, to allow a modification, the material change in circumstances must not have been
anticipated at the time of the prior ruling. Tingle, 573 So. 2d at 1391. Here, the prior ruling was entered
on March 30, 2001, approximately five months before the motion for modification was filed and less than
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a year before the hearing. Yet, there was no evidence to suggest that the alleged material change of
circumstances, i.e. the boys are of greater age and more expensive, was not anticipated or foreseeable
at the time of the earlier order. Accordingly, we find that the chancellor abused his discretion in finding that
there was a material or substantial change in circumstances to justify an increase in the child support
obligation.
¶16.
In all child custody and child support matters, the best interest of the child or children is paramount.
The present case presents this Court with a very difficult and perplexing issue. Frankly, we are disturbed
by the fact that the chancellor, in the March 30, 2001 order, changed custody but did not likewise impose
a child support obligation on Brawdy as the non-custodial parent. Chancellors should be reluctant to enter
orders that do not require a non-custodial parent to pay an appropriate amount of child support. However,
we are mindful that Miss. Code Ann. § 93-11-65 (2) (Supp. 2002) grants the chancellor the authority and
discretion to order each parent to contribute to the support and maintenance of the children. Nevertheless,
an order that does not require a non-custodial parent to pay child support should be entered only in rare
circumstances. The chancellor should also include detailed findings in the order to support the decision to
relieve a non-custodial parent from their financial obligation to support their children. Knutson v. Knutson,
704 So. 2d 1331, 1334 (Miss. 1997).
¶17.
We are persuaded in this case by the fact that the March 30, 2001 order was prepared and
presented to the court by Howell and his attorney. It is evident that Howell and his attorney asked Brawdy
to agree to the change in custody, asked her to sign the agreed judgment which she did, and failed to
include any provision for child support in the agreed judgment. Thus, by presenting the agreed judgment,
Howell and his attorney represented to the chancellor that the provisions of the March 30, 2001 order were
adequate and sufficient to provide for the custody and maintenance of the children of the marriage. See
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Miss. Code Ann. § 93-5-2 (Rev. 1994). Accordingly, Howell represented that he was in a position to
undertake the full financial obligation to support his children.
¶18.
Indeed, we refuse to sanction the conduct of Howell. By filing the petition for modification less than
six months after the entry of the March 30, 2001 order, Howell directly attacked the judgment he procured
and asked the chancellor to enter. His conduct is more closely related to relief under M.R.C.P. 60, which
would not be allowed.
¶19.
We find that the chancellor abused his discretion and erred as a matter of law in granting Howell's
request for modification of child support. Therefore, finding the chancellor in error, we reverse and render
a judgment denying the petition for modification as to the amount of Brawdy’s child support obligation. The
March 30, 2001 order is reinstated as to the amount of child support owed by Brawdy.
II. WHETHER THE COURT ABUSED ITS DISCRETION AND WAS
MANIFESTLY IN ERROR IN ASSESSING INTEREST ON THE JUDGMENT
ENTERED AGAINST HOWELL AT THE RATE OF 3% PER ANNUM.
¶20.
Brawdy asserts that the chancellor abused his discretion and was manifestly wrong in the judgment
entered against Howell awarding interest at the rate of three percent (3%) on the child support arrearage.
The chancellor had the discretion to set the rate of interest. Miss. Code Ann. § 75-17-7 (Supp. 2000).
Specifically, Section 75-17-7 provides that:
All judgments or decrees founded on any sale or contract shall bear interest at the same
rate as the contract evidencing the debt on which the judgment or decree was rendered.
All other judgments or decrees shall bear interest at a per annum rate set by the
judge hearing the complaint from a date determined by such judge to be fair but in no
event prior to the filing of the complaint.
(emphasis added).
¶21.
In Adams v. Adams, 591 So. 2d 431, 436 (Miss. 1991), the Mississippi Supreme Court awarded
an eight percent (8%) per annum rate of interest as past due child support payments. However, we find
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no authority holding it an abuse of discretion or manifest error for the chancellor to set interest at a rate of
three percent (3%) per annum. Therefore, we find that the chancellor did not abuse his discretion as to this
issue and this assignment of error is without merit. Therefore, we affirm the chancellor on this assignment
of error.
II. WHETHER THE COURT WAS MANIFESTLY WRONG IN IGNORING THE
CLEAN HANDS DOCTRINE IN GRANTING RELIEF UNTO HOWELL.
¶22.
Brawdy also asserts that since Howell was in arrears of his child support payments, the “clean
hands” doctrine prevented him from obtaining a modification. “The clean hands doctrine prevents a
complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in the
transaction at issue.” Bailey v. Bailey, 724 So. 2d 335, 337 (¶2) (Miss. 1998). At the hearing, Brawdy
testified that Howell was in arrears of his child support payments in the sum of $3,967.68. Howell
conceded the arrearage, but expressed that he had a misunderstanding as to some of the payments. In
finding that the clean hands doctrine did not apply, the chancellor reasoned that:
while [Howell] is technically in contempt for his failure to make child support payments up
through the [o]rder of March 30, 2001, the [c]ourt finds that he is not in willful and
contumacious contempt. If anything, there appears to have been a misunderstanding
regarding the effect of the sometimes conflicting and sometimes silent provisions of the
previous orders. Although the court declines to issue a finding of willful contempt,
[Howell] is obligated to bring the amount of his arrearage current.
¶23.
Upon review of the record, we find that the chancellor’s finding is supported by the testimony.
“Contempt matters are committed to the substantial discretion of the trial court which, by institutional
circumstance and both tempered and visual proximity, is infinitely more competent to decide this matter than
we are." Morreale v. Morreale, 646 So. 2d 1264, 1267 (Miss. 1994). Therefore, we hold that the
chancellor’s finding that Howell was in contempt, but not willful contempt, was within his discretion. We
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further find that because Howell was not found to be in wilful contempt, the clean hands doctrine did not
apply in this particular case. Thus, finding no error, we affirm the chancellor on this assignment of error.
¶24. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS
AFFIRMED ON ALL ISSUES EXCEPT AS TO CHILD SUPPORT PAYMENTS; ONLY AS
TO THAT ISSUE IS THE JUDGMENT REVERSED AND THE CAUSE RENDERED
CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED AGAINST
THE APPELLEE.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS AND CHANDLER, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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