BEFORE WALKER, HAWKINS AND PRATHER
PRATHER, JUSTICE, FOR THE COURT:
This appeal raises two issues: (1) a pleading procedure inquiry of whether an answer is necessary on a contempt citation and (2) the propriety of restrictions on garnishment rights. Mrs. Karen W. Peeples filed a" motion "for contempt
citation for non-payment of child support against her ex-husband, William Stephen Yarbrough. The Chancery Court of Yalobusha County granted Mrs. Peeples a monetary judgment, but declined incarceration of the defendant father. The court did, however, place restrictions on the mother's legal rights to garnishment of the father's wages, which order gave rise to this appeal.
Appellant, Karen Peeples, appeals and assigns as error the following:
(1) The court erred in allowing counsel for appellee to assert ore tenus, affirmative defenses on the morning of the hearing.
(2) The court erred in continually and consistently refusing to grant unto appellant any relief from appellee's continual and consistent acts of contempt in flaunting and disregarding the orders of the court.
(3) The court erred in unduly restricting appellant in the execution of the judgment granted to her by threatening inter alia to reduce the court ordered sum of child support by he amount obtained through garnishment on the wages of appellee.
Karen W. Peeples and William Stephen Yarbrough were divorced in August, 1981, through a joint bill of divorce. Mr. Yarbrough was originally ordered to pay $150 per month for the support of two children. Subsequently, Mr. Yarbrough was held in contempt on five separate occasions from June, 1982, through December, 1982, for failing to make his child support payments.
The case sub judice is an appeal taken from a sixth hearing, held in August, 1983, to determine whether Mr. Yarbrough should once again be held in contempt of court.
At the hearing on the motion for citation for contempt and modification of decree, Yarbrough filed no responsive pleading, but instead, appeared with counsel to defend. Yarbrough was allowed to ore tenus categorically deny the relief sought. After Yarbrough's verbal denial, Peeples moved for judgment on the pleadings on the basis that her motion had not been denied in writing. The motion for judgment on the pleadings was overruled.
Next, Peeples contended that Yarbrough had made only a
categorical denial and thus could not assert any affirmative defenses. But Yarbrough was allowed to amend his ore tenus response and assert verbally the affirmative defense of" inability to pay. "Mr. Yarbrough testified concerning his declining financial condition; he has remarried and now has three stepchildren. Yarbrough testified that he had experienced difficulty in finding employment and consequently had been unable to make his child support payments. However, since Yarbrough started working in April of 1983, he had made timely payments of $150 for current child support and $50 for past child support. Yarbrough made those payments up until August, 1983, the hearing date.
In reaching his decision the chancellor acknowledged the difficulty Mr. Yarbrough had encountered in finding a job and recognized that since Mr. Yarbrough had been employed he had made ...