Before Thomas, P.j., Coleman, And Diaz, JJ.
The opinion of the court was delivered by: Diaz, J.
DATE OF JUDGMENT: 08/01/96
TRIAL JUDGE: HON. JANE R. WEATHERSBY
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: CHANCELLOR FOUND APPELLANT IN CONTEMPT AND AWARDED $5000 IN BACK SUPPORT AND $8506.90 IN ATTORNEY'S FEES. CHANCELLOR ALLOWED MODIFICATION OF CUSTODY OF DAUGHTER TO APPELLANT.
DISPOSITION: DIRECT APPEAL AFFIRMED; CROSS- APPEAL REVERSED AND REMANDED -
¶1. Freddie Formigoni appeals the chancellor's order adjudicating him $5,000 in child support arrearage and awarding attorney's fees and expenses in the amount of $8,506.90 to his former wife, Donna Formigoni. Donna cross-appeals the chancellor's order awarding custody of the parties' minor child to Freddie as well as the chancellor's refusal to award attorney's fees to Donna for the final hearing in this matter. We find that the chancellor was correct in holding Freddie in arrears for his child support obligation and that $8,506.90 in attorney's fees was properly awarded to Donna. Therefore, we affirm that part of the chancellor's order. However, we find that the chancellor erred in awarding custody of the minor child to Freddie; accordingly, we reverse and remand on that issue.
¶2. Freddie and Donna Formigoni were married on August 26, 1979 and were divorced on September 8, 1992. Two children were born during the marriage-Amber and Erick, who were ages eleven and six, respectively, at the time of their parents's divorce. Donna was granted custody of both children, and Freddie was ordered to pay Donna $500 per month in child support. On May 4, 1995, Donna petitioned the court to find Freddie in contempt for, inter alia, failing to honor his child support obligations. Donna also argued that Freddie disregarded the terms of the divorce decree and obtained custody of Amber without the court's permission. In response to Donna's motion, the chancellor found Freddie to be in arrearage of child support and ordered Freddie to pay Donna $5,000 together with legal interest at the rate of 8%. The chancellor then awarded temporary custody of Amber to Freddie. On September 6, 1996, Donna again petitioned the court to find Freddie in contempt for failing to honor the terms of the chancellor's previous order. The chancellor responded by finding Freddie in contempt of court and ordering him to pay Donna's attorney's fees in the amount of $8,506.90. At a final hearing on July 18, 1997, the chancellor awarded permanent physical custody of Amber to Freddie. Both parties now appeal the chancellor's ruling. Freddie asserts that the chancellor erred in finding him $5,000 in child support arrearage and in ordering him to pay Donna's attorney's fees. Donna maintains that the chancellor erred in awarding physical custody of Amber to Freddie and in refusing to order Freddie to pay her attorney's fees for the final hearing. We now consider Freddie's direct appeal and Donna's cross-appeal.
I. DID THE CHANCELLOR ERR IN ADJUDICATING FREDDIE IN CHILD SUPPORT ARREARAGE?
¶3. According to the final judgment of divorce between Freddie and Donna Formigoni, Donna was to receive permanent custody of the two minor children, Amber and Erick, and Freddie was to pay Donna $500 per month in child support. However, Amber decided that she preferred to live with her father, and without seeking the court's permission, Freddie allowed Amber to begin living in his home. Freddie then decided that his child support obligation should be reduced by one half, and thereafter began paying Donna $250 per month instead of the $500 per month which the court had originally ordered him to pay. Eventually, Freddie decided to stop paying child support to Donna altogether. During a June 1996 hearing in chancery court, Freddie admitted to owing $4,500 in child support payments. In a hearing one month later, Donna testified that Freddie was still not ...