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GLENDA LAZARUS GILLESPIE BROWN v. LEE EDWARD GILLESPIE

MARCH 06, 1985

GLENDA LAZARUS GILLESPIE BROWN
v.
LEE EDWARD GILLESPIE, JR.



EN BANC.

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

On the 20th day of June, 1980, the Chancery Court of Adams County, Mississippi, rendered a final decree divorcing Glenda Lazarus Gillespie (Brown) from Lee Edward Gillespie, Jr., on the ground of habitual cruel and inhuman treatment. Both parents were found to be fit and suitable persons to have the custody of Jonathan Lee Gillespie, two-year-old child of the parties. However, custody was granted to the mother with the right of reasonable visitation on the part of the father. Gillespie also was ordered to pay $150.00 per month child support for the boy.

Approximately three and one-half (3-1/2) years later Brown filed a petition for contempt citation averring that Gillespie had made only one $150.00 payment on the support, was in default in the sum of five thousand eight hundred fifty dollars ($5,850), and was in contempt of the court. Gillespie filed an answer denying default and contempt. He further filed a cross-petition asking the court to set reasonable visitation with the child and reasonable times when the child could visit him.

 The chancellor heard the cause and entered a decree on November 22, 1983, adjudicating (1) that Gillespie was in arrears for child support in the sum of five thousand thirty

 dollars ($5,030); (2) that he was not in willful contempt of the court; (3) that judgment be entered in favor of the appellant for $5,030.00, but that execution not issue on the judgment so long as Gillespie paid $150.00 per month plus $50.00 on the delinquent child support; (4) set visitation rights with the child. Brown has appealed to this Court and assigns five (5) errors in the trial below.

 I.

 THE CHANCERY COURT OF ADAMS COUNTY, MISSISSIPPI, ERRED BY ENTERING A JUDGMENT FOR AN AMOUNT WHICH WAS CLEARLY MATHEMATICALLY INCORRECT.

 Appellant contends that the total arrearage was $5,850.00, appellee paid only $350.00 on support, and that the total amount due was $5,500.00.

 When appellant took the witness stand, her attorney made the statement to the court that the amount in question "would just be a matter of mathematical computation, but it would be about $6,000." If the attorneys had stipulated the amount or had the court instructed the appellant's attorney to make the calculation and submit it to the opposing attorney for approval, and then entered the correct amount due in the record, the question here might be different. However, appellant's attorney asked her what had been paid and the amount then due. Appellant's answer was not direct. In order to clarify the question, the court inquired if it was in the area of $6,000, and she replied, "$5,080 I think."

 Further in the direct examination, in order to fix the amount appellant claimed as owing, the following was asked her:

 BY THE COURT: Was that before the $200.00 was paid?

 A. That was before the $200.00 was paid, he paid $50.00, I guess, I suppose, on the back payments, which would make $50.00 off the $80.00, make it $5,030.00.

 There was no testimony as to the amount in arrears by any person except appellant. She was vague and indefinite in her figures, but finally settled on the figure of $5,030.00. This Court will not hold the lower court in error for finding the exact amount in arrears as that to which appellant testified, there being no other direct evidence as to the amount due.

 II.

 THE CHANCERY COURT OF ADAMS COUNTY, MISSISSIPPI, ERRED BY REFUSING TO FIND THE ...


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