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Shumake v. Shumake

Court of Appeals of Mississippi

November 26, 2013

LESLIE B. SHUMAKE, JR., APPELLANT
v.
KATARINA SITTON SHUMAKE, APPELLEE

COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT. DATE OF JUDGMENT: 04/10/2012. TRIAL JUDGE: HON. WOODROW WILSON BRAND JR. TRIAL COURT DISPOSITION: APPELLANT ORDERED TO PAY $3,250 PER MONTH IN ALIMONY WHILE MAKING BANKRUPTCY-PLAN PAYMENTS AND, UPON COMPLETION OF BANKRUPTCY-PLAN PAYMENTS, $4,225 PER MONTH IN ALIMONY, $1,500 PER MONTH IN PAST-DUE ALIMONY, AND $500 PER MONTH TO RACHEL SHUMAKE FOR MONEY REMOVED FROM MPACT FUND.

FOR APPELLANT: SABRINA D. HOWELL, A. E. (RUSTY) HARLOW JR.

FOR APPELLEE: T. JACKSON LYONS.

BEFORE IRVING, P.J., ISHEE AND FAIR, JJ. LEE, C.J., ISHEE, ROBERTS, FAIR AND JAMES, JJ., CONCUR. GRIFFIS, P.J., AND MAXWELL, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.

OPINION

Page 901

IRVING, P.J.

¶1. On April 12, 2012, pursuant to a request for modification of alimony, the Desoto County Chancery Court reduced Leslie B. Shumake Jr.'s monthly alimony payments to Katarina Sitton Shumake from $5,750 to $3,250 until Leslie finished with his Chapter 13 bankruptcy plan, at which time the monthly alimony payment would increase to $4,225. Additionally, the chancery court ordered Leslie to pay $58,550 in back alimony and $13,361.50 to his daughter, Rachel, for money that Leslie had withdrawn from the MPACT college fund that he had set up for her. Payments on the alimony arrearage and reimbursement of the MPACT fund were suspended until Leslie completed his bankruptcy plan, at which time he would begin making monthly payments of $1,500 toward the alimony arrearage and $500 as reimbursement of the MPACT fund.

¶2. Feeling aggrieved, Leslie appeals and argues that the chancery court: (1) failed to take into account all of his income and expenses in setting the current alimony amount; (2) erred in ordering future alimony; (3) erred in finding that he was in arrears on his alimony payments in the amount of $58,550; (4) erred in ordering him to pay $500 per month to reimburse Rachel for the MPACT fund; and (5) erred in ruling on the case almost one year from the date of the hearing.

¶3. We affirm the judgment modifying Leslie's alimony obligation. However, we find that the court erred in ordering Leslie

Page 902

to pay $58,550 in arrearage, as well as ordering him to reimburse Rachael $13,361.50 for money withdrawn from the MPACT fund. Therefore, we reverse and render that portion of the judgment.

FACTS

¶4. In its final judgment of divorce filed on February 20, 2009, the chancery court ordered Leslie to pay Katarina $5,750 per month, or $1,326.93 per week, in periodic alimony.[1] On February 27, 2009, Leslie filed a motion for reconsideration, or, in the alternative, a new trial pursuant to Rule 59 of the Mississippi Rules of Civil Procedure, which the chancery court did not rule on immediately. On March 12, 2009, Katarina filed a complaint for citation for contempt, claiming that Leslie had not been paying the amount of alimony that the court had ordered. Leslie had never paid the amount ordered in the February 20, 2009 judgment of divorce and had been paying only $650 per week, or $2,816.66 per month, since then. Leslie filed an answer and counterclaim for contempt and a complaint for modification in which he claimed that it was impossible for him to pay the amount of alimony ordered by the court. Additionally, he alleged that Katarina had not " complied with the provisions of the court's findings of fact and conclusions of law." He also asserted that a material change in circumstances had occurred because he had been " forced" to file for bankruptcy on February 19, 2009, and that there was a need to modify the divorce decree.

¶5. On April 8, 2009, the chancery court entered an order denying Leslie's motion for reconsideration, and on April 14, 2009, Leslie filed a notice of appeal. After a hearing on Katarina's complaint for citation for contempt and Leslie's answer and counterclaim for contempt and for modification, the court entered an order on August 24, 2009, pretermitting the issue of reduction in alimony and continuing the matter for review in January 2010. It is noteworthy, however, that the chancery court did not hold Leslie in contempt for paying less alimony than he had been ordered to pay, and implicitly allowed him to continue paying the reduced amount. There is no record of the alimony issue being reviewed in January 2010, as promised by the chancellor. The parties agree that the matter of alimony was next addressed by the chancellor in an order entered November 12, 2010, although that order is not in the record. Despite the absence of the order, the docket reflects that an order was indeed entered on November 12, 2010. During the final hearing held in April 2011, the parties discuss a pertinent portion of the order, wherein the chancellor ordered ...


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