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January 01, 1989




The retrospective enforceability of an automatic escalation clause in a child support judgment is the subject of this appeal. Barbara Wing filed a motion for contempt against her ex-husband, Russell Wing, for non-payment of monies due for their child's support under the automatic adjustment clause of their property settlement agreement. From an adverse ruling of the Chancery Court of Hinds County, Russell Wing appeals an arrearage judgment of $13,736.40, a contempt order, an incarceration order, a wage withholding order, and imposition of attorneys' fees and costs.

Russell Wing assigns as error the indefiniteness of the escalation clause, prohibiting a contempt finding.

 Barbara Wing, cross-appellant, also feels aggrieved of the chancery decree and assigns as error that the trial court erred in its failure to hold the defendant in contempt for failure to properly fund an annuity as required by the property settlement agreement, and in accepting the annuity offered by Russell Wing in satisfaction of property settlement requirement.


 Barbara and Russell Wing were divorced in October, 1979. At the time of the divorce, Russell Wing was employed by Jackson State University. His yearly salary was $18,411.48. The parties filed a Property Settlement Agreement along with their Joint Bill of Complaint. By the terms of this agreement, Russell Wing was to pay $400 per month child support for the couple's only child, Laurel. (Laurel was six at the time of the divorce in 1979). Also included in the agreement was an" escalation clause "to increase child support each year according to the rate of inflation" as set forth in the consumer price index "(CPI). Also, the agreement required Russell Wing to name Laurel as beneficiary of his tax sheltered annuity fund through Jackson State University and to fund that annuity at the rate of $900 per year.

 In 1983, Russell Wing changed employment. Unfortunately, his employer went bankrupt in late 1983. Russell Wing was out of work from December, 1983 until May, 1984, when he found a position with the Brookhaven School District. His 1984 earnings were $11,887.00. He earned an annual sum of $22,525.00 for the 1986-1987 school year.

 From the time of the divorce until October, 1985, when Barbara Wing filed the first motion to cite defendant for contempt, Russell Wing paid $400 per month in child support, notwithstanding his reduced income. The October, 1985, motion alleged that Russell Wing was in arrears for one month's payment in the sum of $400.00 and for refusal to fund his annuity at $900.00 per year and to make his daughter its beneficiary. No hearing appears to have been had on this motion.

 The present motion for contempt was filed on August 22, 1986, alleging an arrearage of $14,260.32 and a failure to provide proof of the existence and funding of the annuity.

 A judgment dated October 21, 1986, was entered granting Barbara Wing an arrearage of $7,400.00 for the annuity fund established for the child's benefit and granting Russell Wing thirty (30) days within which to fund an annuity contemplated by the property settlement agreement. The decree recited that Russell Wing would be given credit for a total sum of $1,143.00 for voluntary private school tuition. Attorney's fees of $250.00 and court costs were allowed and payment acknowledged by Barbara Wing. This order was signed by both attorneys. On October 21, 1986, a notice of appeal was filed by Russell Wing, with a notice to the court reporter and an appearance bond in the penal sum of $10,189.24 from the order entered October 20, 1986.

 However, following these appeals, a subsequent judgment was entered on October 24, 1986, entering Barbara Wing's judgment for past due support of $13,736.40 *fn1, plus a withholding order against Russell Wing's salary for $660.04 per month beginning November 1, 1986, attorney's fees of $1,100.00 and court costs. Additionally, since Russell Wing had not paid $7,014.39 arrearage owed (presumably for the annuity policy), Wing was ordered incarcerated until" such sum "(presumably the $7,014.39 figure), plus attorney's fees and court costs are paid.'


 At the time of the Wings' divorce the parties entered into a Property Settlement Agreement which was made part of the judgment. Clause 2 states:

 The Husband hereby agrees and obligates himself to pay to the Wife the sum of $400.00 per month for the support of said minor child beginning October 1, 1979, and on the first of each month thereafter until the said minor child shall marry, become self-supporting, became otherwise emancipated, or until order of this Court to the contrary. The Husband further agrees to increase said support ...

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