Before Thomas, P.j., King, And Payne, JJ.
The opinion of the court was delivered by: Payne, J.
JAMES COLLIER HALE, APPELLANT v. LOUISE HALE, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 05/18/95
TRIAL JUDGE: HON. TIMOTHY E. ERVIN
COURT FROM WHICH APPEALED: PONTOTOC COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: JAMES COLLIER HALE WAS HELD TO BE IN CONTEMPT OF COURT.
DISPOSITION AFFIRMED - 4/21/98
MOTION FOR REHEARING FILED:
Louise Hale received a divorce from James Hale on the ground of adultery by decree of the Chancery Court of Pontotoc County, Mississippi, on June 19, 1992. From this decree, Louise Hale was awarded lump sum alimony in the amount of $36,000, payable over a period of five years at a rate of $600 a month and attorney's fees. She was also granted an interest in land, use of a car, and use of the marital home for a period of five years from and after July 1, 1992, after which time either party may partition the property and divide the proceeds.
Subsequently to this decree of divorce, James Hale was cited for and found in contempt of court on several occasions for nonpayment. Feeling aggrieved from this last ruling (May 1995), he appeals. Having read the record and researched the law, we affirm the chancellor's findings below.
This is a case concerning contempt of the Pontotoc County Chancery Court. Following the entry of the final decree of divorce, Louise Hale was compelled to embark upon the filing of a series of motions for citation for contempt in order to secure the payment of the alimony awarded to her earlier by the chancellor. Attorney's fees were allowed with each proceeding.
The last motion for citation for contempt was heard on the merits before Chancellor Tim Ervin on September 6, 1994. At this hearing, the chancellor found James Hale to be in "willful, obstinate and contumacious contempt of the Court" and ordered him to pay the sum of $7, 354.87. The chancellor also awarded $1,215 in attorney's fees in regard to that particular hearing. In this order, the chancellor deferred execution on this judgment pending the ruling of the United States Bankruptcy Court for the Northern District of Mississippi as to the dischargeability of any attorney's fees and the alimony involved in this proceeding. The chancellor also held in abeyance his order to incarcerate James Hale until payment was made.
On March 8, 1995, the United States Bankruptcy Court held that the alimony was not dischargeable, nor were the attorney's fees incurred in connection with the collection thereof. The bankruptcy Judge did, however, reduce the total sum of attorney's fees due by the Appellant, by $1,500.
On May 16, 1995, the chancellor heard this case on the Appellee's motion for citation for contempt and enforcement of judgment. In the court's judgment of May 18, 1995, the chancellor ordered the Appellant to pay all past due alimony and attorney's fees in the total sum of $7,654.87, which included $1,800 for the March, May, and June alimony payments. The court also found that the Appellant should pay attorney's fees in the sum of $5,900.01, all as specified in the order.(1) In its order, the chancery court directed James Hale to pay $7,654.87 of this amount by May 20, 1995, or face incarceration in the Pontotoc County jail. He was given thirty days from May 16, 1995, within which to pay the balance of the $5, 900.01 in attorney's fees which had accrued.
ARGUMENT AND DISCUSSION OF THE LAW
This Court will not overturn the decision of a chancellor in a domestic relations case when his findings are supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, or applied an erroneous legal standard. Crow v. Crow, 622 So. 2d 1226, 1228 (Miss. 1993); Gregg v. Montgomery, 587 So. 2d 928, 931 (Miss. 1991).
CONTEMPT ISSUES PRESENTED
I. WHETHER THE HONORABLE COURT ERRED IN ORDERING FULL PAYMENT OF ATTORNEY'S FEES IN THE AMOUNT OF $5, 901 WITHIN THIRTY DAYS FROM MAY 16, 1995.
II. WHETHER THE HONORABLE CHANCELLOR ERRED IN ORDERING THE INCARCERATION OF THE APPELLANT UNLESS HE PAID WITHIN ONE DAY OF THE DECREE THE SUM OF $7,654.87 AND FURTHER OBTAIN INSURANCE ON THE HOUSE, WHEN THE APPELLANT WAS IN A BANKRUPTCY CASE AND HAD ESTABLISHED AN INABILITY TO PAY THIS SUM WITHIN THE GIVEN TIME OF TWENTY-FOUR TO FORTY-EIGHT HOURS AND ALSO OBTAIN INSURANCE AND THEN FURTHER ESTABLISHED THE INABILITY TO ALSO PAY THE ADDITIONAL $5, 901 WITHIN AN ADDITIONAL THIRTY DAYS.
There are several defenses to a contempt charge, and one notable defense, the basic inability to pay, is the defense we encounter on this appeal. It is well settled in Mississippi law that the failure to remain current with all ordered payments under an alimony decree will be prima facie evidence of contempt of court, Rainwater v. Rainwater, 110 So. 2d 608 (Miss. 1959), and the burden of proving the inability to pay rests upon the shoulders of the individual ordered to make the payments. Lewis v. Lewis, 57 So. 2d 163 (Miss. 1952). The contemnor may avoid the judgment of the contempt by establishing that he is without the present ability to pay his obligations. Gebetsberger v. East, 627 So. 2d 823 (Miss. 1993).
In the case presented here, James Collier Hale argues that his inability to pay insulates him from the civil contempt citations lodged against him. He charges that his inability to pay is evidenced by several factors. He cites that during this time, as he was being required to tender over payments to Louise, the bankruptcy court (Chapter 12) had ordered his repayment on the accumulated debt, the payments totaling twenty-three thousand dollars per year. He also states that a portion of his money was going toward the extinguishment of a joint debt that both he and Louise had created. Further, he states that he had been working six to seven days a week to create capital with which to eliminate his bills. James also purports that his expenses, such as tractor breakdowns, took the available money he received from his farming operation.
Louise Hale voices a different story. She argues that her former husband had ample financial ability to pay. She states that within thirty days after her divorce, James purchased a new double-wide trailer, priced at $17,000. She states at the same time he was running several dump trucks, which hauled gravel, sand, and furniture. Further, she states that he was raising cattle and had the ability to support another woman, whom he eventually married.
Louise also notes that the Appellant not only had been given twenty-four to thirty-six hours to pay what was required of him, but he was actually given much longer. The determination of contempt was made more than eight months before the time of payment, and penalty for nonpayment was stayed until after the March bankruptcy hearing. The order from which this appeal came was nine weeks after that. Louise cites in her brief:
This hearing was conducted by Appellant's counsel['s] own admission, on May 16, 1995, at which time the court entered its bench opinion. This was not reduced to writing and signed by the chancellor until May 19, and [James] Collier's incarceration was not due until May 20, so he had four days to comply with this decree and purge himself and had, in fact, three years to have done so with ample resources as reflected in the record in this cause.
It is vividly apparent after consulting the record that James Collier had not complied with the prior decrees of the Pontotoc Chancery Court, nor did he show that he was unable to comply with those decrees, nor did he show that it was impossible for him to perform his obligations thereunder as required by Kennedy v. Kennedy, 650 So. 2d 1362 (Miss. 1995). Kennedy states:
It is well established that in domestic relations cases, when a party has demonstrated a prima facie case of contempt, the contemnor may avoid the judgment of contempt by establishing that he is without the present ability to pay his obligations. Gebetsberger v. East, 627 So. 2d 823, 826 (Miss.1993); see also Duncan v. Duncan, 417 So. 2d 908 (Miss. 1982). If the party in contempt raises inability to pay as a defense, the contemnor must shoulder the burden of proving his inability to pay, and this proof must be established with particularity and not in general terms. Gebetsberger, 627 So. 2d at 826; Newell ...