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Finch v. Finch

Supreme Court of Mississippi, En Banc

January 16, 2014

ROSEMARY FINCH
v.
STEWART FINCH

Page 228

[Copyrighted Material Omitted]

Page 229

COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT. DATE OF JUDGMENT: 02/16/2011. TRIAL JUDGE: HON. DEBORAH J. GAMBRELL.

FOR APPELLANT: JAMES L. ROBERTSON, JR., ALFRED J. LECHNER, JR.

FOR APPELLEE: S. CHRISTOPHER FARRIS.

PIERCE, JUSTICE. LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., KING AND COLEMAN, JJ.; CHANDLER, J., JOINS IN PART.

OPINION

Page 230

ON WRIT OF CERTIORARI

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

PIERCE, JUSTICE.:

¶1. Rosemary Finch filed a complaint for separate maintenance, and her husband Stewart Finch responded with a counterclaim for divorce. In the course of their divorce proceedings, Rosemary and Stewart were required by Mississippi Chancery Court Rule 8.05 to provide a comprehensive financial statement listing their individual incomes and expenses and their marital and nonmarital assets and liabilities. Miss. Unif. Ch. Ct. R. 8.05.

¶2. The divorce trial was conducted before the Honorable James H.C. Thomas. At trial, it was established that Rosemary had been primarily responsible for handling the parties' financial obligations and paying the bills. Stewart worked away from home as a tugboat captain in New York while Rosemary worked as a stay-at-home mom. In the judgment of divorce, the chancellor awarded Rosemary periodic alimony in the amount of $4,000 for thirty-six months, followed by $3,700 for forty-eight months, and finally $3,400 to be paid indefinitely. Stewart also was required to pay $7,000 for Rosemary's attorneys' fees.

¶3. Four months later, Rosemary filed a contempt petition claiming that Stewart had failed to pay alimony and child support, failed to obtain life insurance, failed to make COBRA payments, and failed to disclose his present address and telephone number. Stewart filed an answer and counter-petition for contempt, alleging that Rosemary had failed to pay the balance on a vehicle and failed to provide him with personal property from their marital home pursuant to the divorce judgment. Stewart also asserted that Rosemary must submit to a medical examination before he could obtain the life insurance. Later, Stewart filed an amended counter-petition

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for contempt and modification alleging that Rosemary had fraudulently represented to the chancery court that she had continued to pay all of the marital debts, just as she had through the marriage, but in reality, she had failed to make payments on an American Express credit card that was in his name. Based on this, Stewart asked the chancellor for a reduction in alimony from $4,000 to $2,500 to offset the increased costs resulting from her failure to pay. He additionally requested that the court declare his minor child emancipated because the child had refused to communicate with Stewart and had legally removed " Stewart" as his middle name.

¶4. In August 2010, a hearing was conducted before a specially appointed second chancellor, the Honorable Billy Bridges, in which Stewart asserted that Rosemary had incurred debts in his name of which he was unaware, and that those debts were not listed on Rosemary's 8.05 financial statement. Testimony of the parties also revealed that Rosemary had been late in making payments on her vehicle; thus Stewart had paid the remainder of the debt on the car to keep his credit from becoming further damaged and to convey title to Rosemary pursuant to the divorce judgment. Stewart explained his attempts to communicate with his son and his son's refusal to have a relationship with him. The child also provided testimony indicating his desire not to have a relationship with Stewart. At the close of the hearing, the chancellor requested both parties submit findings of facts and conclusions of law to further support their claims. However, a judgment was not entered by the chancellor prior to the expiration of his appointment.

¶5. Oral argument was held before the newly appointed third chancellor, the Honorable Deborah J. Gambrell, in January 2011, on a motion for enforcement of the prior judgment related to the August hearing and on a motion to strike. Based on the oral arguments presented, and on the record from the August hearing, the chancellor issued an opinion and judgment. The chancellor found that there had been a material change in circumstances since the original divorce decree had been entered. First, Stewart was ordered to convey title to the Camaro to his daughter, but the title could not be transferred until the debt was fully satisfied by his daughter. Stewart's daughter ceased making payments on the vehicle, therefore, Stewart paid the $9,211.95 debt in order to protect his credit and to convey title. Second, the unpaid American Express debt and the undisclosed debts resulted in Stewart borrowing $38,000 to satisfy those debts. Third, Stewart suffered a reduction in income from $8,190.47 per month to $5,691.75 per month. Fourth, Rosemary now receives $728.00 per month in social security payments. Fifth, Sean Finch displayed animosity toward his father, graduated from high school, was able to work a part-time job, and enrolled at a local junior college.

¶6. In the judgment, the chancellor sua sponte raised a Rule 60(b) motion finding Rosemary had committed a fraud upon the court. Miss. R. Civ. P. 60(b). Thus, no time limit existed to inhibit the court from modifying the divorce judgment.

¶7. The chancellor retroactively reduced alimony from $4,000 to $2,000 per month based on Rosemary's failure adequately to disclose social security payments, additional debts, and a joint account with her mother, and Stewart having to pay for both Rosemary's and his daughter's vehicles in order to transfer title pursuant to the divorce judgment. In addition, Stewart was paying more than $800 per month to satisfy the additional marital debts. The chancellor retroactively reduced child support from $1,300 to $900 per month and

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further relieved Stewart of the obligation to pay any of his son's educational expenses.

¶8. Rosemary appealed this judgment, and the Court of Appeals affirmed the chancery court. Rosemary then petitioned for writ of certiorari, which we granted, seeking review of the following issues:

I. Whether Rosemary was given proper notice that she committed fraud on the court.
II. Whether the third chancery judge used the clear and convincing evidence standard when finding Rosemary committed fraud.
III. Whether an appellate court should give deference to credibility findings made by a third chancery judge who neither saw nor heard the witnesses testify.
IV. Whether the third chancery judge's findings were unsupported by the evidence, contrary to law, and deprived Rosemary of a fair trial.

¶9. Finding this case should be reversed and remanded for further factual findings regarding Stewart's income and for a recalculation of alimony and child support under issue IV, it is not necessary for us to discuss Issue III.

STANDARD OF REVIEW

¶10. Factual findings made by the chancery court will not be disturbed if they are " supported by substantial evidence unless [we] can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard." Biglane v. Under the Hill Corp., 949 So.2d 9, 14 (Miss. 2007) (quoting Cummings v. Benderman, 681 So.2d 97, 100 (Miss. 1996)). It is well settled that " [c]hancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters. . . ." Henderson v. Henderson, 757 So.2d 285, 289 (Miss. 2000) (citing Hammett v. Woods, 602 So.2d 825, 827 (Miss. 1992)).

¶11. Additionally, when this Court reviews motions for relief pursuant to Rule 60(b), reversal is warranted only when an abuse of discretion is found, because these motions are to be addressed at the sound discretion of the trial court. Stringfellow v. Stringfellow, 451 So.2d 219, 221 ...


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