BEFORE ROY NOBLE LEE, ROBERTSON and ANDERSON
ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:
Myrna Guthrie Hinton (Myrna), joined by her daughters, Cynthia Elaine Guthrie (Cynthia) and Donna Jo Guthrie (Donna Jo), filed an action in the Chancery Court of Rankin County, Mississippi, entitled Motion for Citation for Contempt, praying that the court find Aaron Guthrie in contempt because of his failure and refusal to pay child support for the daughters and for judgment against Aaron Guthrie for delinquent child support. At the conclusion of the plaintiffs' evidence, the court held that the proof was not sufficiently definite and dismissed the action. The claim relating to support for Cynthia was previously dismissed as barred by the statute of limitations. Myrna and Donna Jo have appealed to this Court and assign two errors in the trial below.
Myrna and Aaron were were divorced on September 18, 1962. Myrna was awarded custody of the two children of the marriage, i.e., Cynthia Elaine Guthrie, born December 25, 1957, and Donna Jo Guthrie, born October 12, 1960. Aaron was ordered to pay Myrna fifty dollars ($50.00) per month per child beginning February 1, 1962. The child support was to be paid until such time as each child reached majority, married, or otherwise became emancipated.
On March 4, 1968, Myrna filed a motion for citation for contempt against Aaron alleging that child support was in arrears in the amount of $3,600 as of March 1, 1968. A hearing was set for April, 1968, and a non-resident summons was issued for Aaron, who was living in the State of Oregon at that time. There was no proof that Aaron received the summons, and there was no hearing on the petition and no action taken thereon.
Eighteen (18) years elapsed from the filing of the first motion for contempt, and then, on November 26, 1986, a second petition for citation for contempt was filed by Myrna and her daughters, Cynthia and Donna Jo. The lower court granted Aaron's motion to dismiss the action as to Cynthia, since she was more than 28 years old at the time of filing, and the statute of limitations barred her action. Miss. Code Ann. 15-1-59 (1972). Aaron's answer admitted the terms of the divorce decree and support order, but denied that he had wilfully and intentionally refused to pay child support.
Trial was held on June 16, 1987. Attached to the motion for contempt was an intemized statement of the delinquent child support for Donna Jo. According to it, Aaron was delinquent in the amount of forty-one thousand two hundred seven dollars forty cents ($41,270.40) support and interest. Myrna, Donna Jo and Myra Janelle Donald (Myrna's sister) testified for the appellants. The proof reflected that Aaron had made only three (3) payments for Donna Jo over the years; that Myrna had contacted Aaron through the years seeking the support payments; and that he refused to make them. Further, the proof indicated that Aaron sent Donna Jo a money order for one hundred dollars ($100.00) or possibly three hundred dollars ($300.00) while she was a student at Hinds Jr. College. After the appellant rested, Aaron moved the court to dismiss the motion for contempt and judgment on the ground that there had been no evidence as to the amount then due from him. The lower court granted the motion and its opinion follows in part:
Although the defendant did not testify,
plaintiff admits that some amounts were paid by the defendant to Myrna; and Myrna admitted same in her testimony. There was no testimony from either Myrna or Donna as to the amount owed to them or either of them by Aaron. There was no testimony as to any other relief sought by any of the plaintiffs. This Court believes that under any rules, laws, or maxims laid down by the Supreme Court of this state or set out in any uniform rules or treatises the defendant in any case wherein he is sued is entitled to know by proof of amount how much is demanded of him. Pleadings in any court have never been proof or taken as evidence of any charge or demand. Therefore, this Court believes it is incumbent upon plaintiff, and, in fact, required that plaintiff testify and place in proof any amount that's owed to such plaintiff, so that the court can make its decision of the amount of judgment due.
In the case at bar, plaintiff was seeking a judgment in an amount and also requesting the court to place Aaron in jail until he has purged himself of such contempt for the non-payment of such judgment. It is impossible for the court in this case to make a fair and accurate determination of the amount owed to plaintiff and certainly then to place the defendant in jail until he has paid same.
The two assigned errors simply present the question of whether or not the lower court erred in dismissing the action.
Appellants contend that this Court should treat a contempt/child support action as an action on open account. We reject that contention and argument. In Peeples v. Yarbrough, 475 So.2d 1154 (Miss. 1985), the Court quoted Griffith's Mississippi Chancery Practice 667, at 735 (1950), as follows:
Procedure in contempt. - When a party has been commanded by decree or order personally to do or refrain from doing a specified act and he disobeys the mandate, the practice is to file in the cause a motion supported by affidavit, or preferably a verified petition, clearly stating the facts, and if filed by a private party that the party has been ...