Alfred Bosarge, III v. Cheryl Bosarge
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00604-COA
ALFRED BOSARGE, III
APPELLANT
v.
CHERYL BOSARGE
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
2/10/2003
HON. SEBE DALE, JR.
PERRY COUNTY CHANCERY COURT
DAVID JEFFREY WHITE
ALBERT LIONEL NECAISE
CIVIL - CUSTODY
PETITION FOR CITATION OF CONTEMPT
GRANTED, PRIMARY CUSTODY OF CHILD
CHANGED.
AFFIRMED - 07/27/2004
BEFORE KING, C.J., BRIDGES, P.J., AND CHANDLER, J.
CHANDLER, J., FOR THE COURT:
¶1.
On June 17, 2002, Alfred Bosarge, III filed a petition to modify child custody and support, based
on both a claim that the eldest of three children had moved from the household of his former wife, Cheryl,
to his household, as well as a claim that his earnings had decreased and he was unable to continue paying
the support that was required by a previous settlement agreement, which was incorporated into their 1988
divorce judgment. Cheryl counterclaimed alleging Alfred was in contempt for unpaid child support. After
a one day trial on December 19, 2002, the Perry County Chancery Court denied Alfred's petition to
modify the child support provisions and found him to be in contempt of court. He appeals asserting the
following issues which we quote verbatim.
1. The trial court erred in finding the appellant in contempt for failure to pay child support
and not finding that the appellant had reasonable justification for noncompliance and made
a reasonable effort to comply or seek relief from the court.
2. The trial court erred in awarding the appellee attorney's fees.
3. The trial court erred in not allowing the appellant a credit towards child support
arrearage for the time the minor child resided with him.
4. The trial court erred in modifying child custody granting appellant custody of the parties'
oldest minor child and not awarding the appellant child support.
Finding no error, we affirm.
FACTS
¶2.
In August of 1998, the chancery court entered an order for withholding, requiring Alfred's employer
to withhold $500 per month from him, $400 for child support and $50 toward a child support arrearage.
The employer was to pay that amount to the chancery court clerk. In 2000, without any notice to the
chancery court, Cheryl approached the Department of Human Services (DHS) about ongoing deficiencies.
On June 2, 2000, DHS sent to the chancery court clerk a notice of redirection of child support payments
directing that the clerk send the payments received to DHS.
¶3.
Trial on the petition to modify and counter-claim for finding of contempt was held on December
19, 2002. At the trial, an accounting from DHS was introduced into evidence. It appears that sometime
between August of 1998 and June of 2000, which is when DHS began collecting the child support
payments, Alfred became current in his payments, as the DHS accounting showed no initial arrearage.
However, Alfred admitted that in November of 2001 a check was returned for insufficient funds. Alfred
then directly gave Cheryl a second check, which was honored by his bank, but in December of 2001 he
2
failed to send a check because he thought the first November of 2001 check would be resubmitted. The
record was not clear as to whether Alfred made a January of 2002 payment.
¶4.
On January 20, 2002, Alfred fell from a deer stand and seriously injured his back. He admittedly
paid no more support until May of 2002. Cheryl testified that the child support arrearage was $3,204 plus
the $460 due in December of 2002. The DHS accounting showed an arrearage of $3,204. Alfred agreed
that he had not paid all the child support required, but he was unable to give a figure as to the amount.
ANALYSIS
1. FINDING OF CONTEMPT
¶5.
A finding of contempt for failure to pay child support is subject to the deferential manifest error
standard of review. Milam v. Milam, 509 So.2d 864, 866 (Miss. 1987); Witters v. Witters, 864 So.2d
999 (¶ 18) (Miss. Ct. App. 2004). Alfred contends the chancery court erred in finding him in contempt
because he was unable to pay the child support after his injury. However, this contention does not
accurately reflect the chancery court's findings. The chancery court found that Alfred had not promptly
sought relief after his injury:
He [Alfred] would have this Court believe that he acted with reasonable dispatch in
bringing that [his injuries from the fall] to the Court's attention, but I don't find an injury that
occurred in January and a modification relief asked in July -- of mid July to be reasonably
done and done with dispatch and that old dog won't hunt.
Moreover, at the time the chancery court made its ruling, Alfred testified that he had recovered from his
injury and was earning approximately $600 per week, yet he had made no effort to pay any amount
towards the arrearage. Credible evidence supported the chancery court's finding that Alfred was in
contempt of court for failure to pay the child support recited in the settlement agreement and incorporated
into the divorce decree. Accordingly, we find this issue is without merit.
3
2. ATTORNEY'S FEES
¶6.
The standard of review for a chancery court's award of attorney’s fees in an action for enforcement
of child support provisions is abuse of discretion. Ladner v. Logan, 857 So.2d 764 (¶ 31) (Miss. 2003);
Langdon v. Langdon, 854 So.2d 485 (¶ 41) (Miss. Ct. App. 2003). In this case, Alfred confesses in his
brief that his basis for this error rests in his assignment that the finding of contempt was error. He does not
contend that the award of $1,000 as a contribution towards the total of Cheryl's fees was an abuse of
discretion. Having found the chancery court did not err in finding Alfred to be in contempt, there can be
no basis for finding the chancery court abused its discretion in ordering Alfred to pay a portion of Cheryl's
attorney’s fees. Accordingly, we find this issue is without merit.
3. CREDIT FOR MINOR CHILD
¶7.
Decisions regarding modification of child support provisions of a divorce decree are left to a
chancery court's discretion, and will only be disturbed if in manifest error. Gillespie v. Gillespie, 594
So.2d 620, 622 (Miss.1992); Hopson v. Hopson, 851 So.2d 397 (¶ 10) (Miss Ct. App. 2003). In this
case, Alfred's contention is two-fold. First, he contends that the chancery court erred in not allowing him
a credit towards the arrearage for support he directly provided the eldest daughter who came to reside with
him in January of 2001. Additionally, Alfred contends that the chancery court erred in not reducing the
amount of child support he paid to Cheryl, because the eldest daughter leaving her household constituted
a material change in circumstances.
¶8.
Child support vests when it becomes due. Setser v. Piazza, 644 So.2d 1211, 1215 (Miss. 1994).
Nevertheless, a chancery court does have discretion to allow a credit against an arrearage if one of several
children becomes emancipated prior to an action for modification of child support being brought.
Department of Human Services, State of Miss. v. Fillingane, 761 So.2d 869 (¶13) (Miss. 2000).
4
However, "the emancipation of one child does not automatically reduce the supporting parent's periodic
payment." Varner v. Varner, 588 So.2d 428, 433 (Miss. 1991). In this case, the chancery court cited
several reasons for its decision against modifying the settlement agreement's $400 per month child support
provision. The chancery court found that Alfred had not acted with dispatch after his injury to seek a
modification, and his unilateral decision to reduce his payments without court approval resulted in Alfred
coming to equity with unclean hands. The chancery court explicitly found that reducing the monthly amount
while Alfred was in arrearage would in effect reward him because Alfred would satisfy the arrearage
without increasing his monthly payments. Additionally, the chancery court found that the settlement
agreement's provision of $400 per month support was within guidelines of Mississippi Code Annotated
Section 43-19-101 (Rev. 2000). Pursuant to this statute, the $400 per month figure is presumed to be
reasonable, and no evidence overcame that presumption. Nothing in the record indicates that the chancery
court committed manifest error in declining to modify the child support provisions. This issue is without
merit.
IV. CUSTODY OF THE ELDEST CHILD
¶9.
This assignment of error is a corollary to the previous assignment of error. Alfred contends that
the chancery court erred in altering the physical custody of the eldest daughter, who was seventeen years
old, without altering the child support provisions of the settlement agreement by ordering Cheryl to pay
support for this child. Viewing the record, it appears that the incomes of Alfred and Cheryl were roughly
equal. However, $400 a month was less than Cheryl expended on the two younger children residing with
her. Alfred had remarried and had a child of that marriage. It was undisputed that Alfred's injury and the
addition of the eldest child to his household altered his economic situation. Nevertheless, the Court is
ultimately left with the fact that Alfred came to equity without having met his obligations under the settlement
5
agreement, and without making a timely appeal to the chancery court to modify his obligations in light of
his injury. The determination of this issue must be left to the chancery court's discretion.
See, e.g.,
Gillespie, 594 So.2d at 622. While there is obvious merit to Alfred's argument, the record also factually
supports the chancery court's decision. Given our standard of review, we find the record cannot support
a finding of manifest error. This issue is without merit.
¶10. THE JUDGMENT OF THE CHANCERY COURT OF PERRY COUNTY IS
AFFIRMED. THE APPELLANT IS ASSESSED ALL COSTS OF THIS APPEAL.
KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., LEE, MYERS AND GRIFFIS, JJ.,
CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
6
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
