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Dailey v. McBeath

Court of Appeals of Mississippi, En Banc

November 25, 2014

GREGORY DAILEY, APPELLANT
v.
TRACIE MCBEATH (FAIRLEY), APPELLEE

DATE OF JUDGMENT: 04/19/2012.

Page 1039

COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT. TRIAL JUDGE: HON. D. NEIL HARRIS SR. TRIAL COURT DISPOSITION: ORDER OF CONTEMPT FOR PAST-DUE CHILD SUPPORT, AWARD OF PAST-DUE CHILD SUPPORT IN THE AMOUNT OF $32,130.46, PLUS $2,000 IN ATTORNEY'S FEES, AND MONTHLY CHILD-SUPPORT PAYMENTS INCREASED TO $450.

FOR APPELLANT: JAMES NELSON SCARFF II, DAVID NEIL MCCARTY.

FOR APPELLEE: WENDY WALKER MARTIN.

BARNES, J., FOR THE COURT. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 1040

NATURE OF THE CASE: CIVIL - OTHER

BARNES, J.

¶1. Tracie McBeath Fairley and Gregory Dailey had a child born out of wedlock on November 25, 1992. On May 31, 2001, Tracie filed a petition for custody and other relief. The parties entered into an agreed order on September 6, 2001, wherein Tracie was granted primary physical and legal custody of the child, and Gregory was ordered to pay $334 per month in child support (retroactive to August 2, 2001), $1,750 in back child support, and one-half of the child's reasonable medical expenses not covered by insurance.

¶2. However, Gregory became extremely delinquent on the ordered child support, and Tracie filed a petition for modification and contempt on December 5, 2005, followed by an amended petition for modification and contempt filed on June 19, 2006. A bench warrant was also issued for Gregory at that time. A third amended petition for modification and contempt was filed by Tracie on November 12, 2009.

¶3. On February 5, 2010, Gregory was found in contempt and ordered to pay a purge amount of $5,000, and the chancery court reset " this matter" for a later date. On April 21, 2010, the chancery court found Gregory in " willful, wanton[,] and contumacious contempt" of the 2001 order, stating:

[Gregory] never pays his support on time. He has only paid his support when he has been summoned to [c]ourt. He has failed to follow [Uniform Chancery Court] Rule 8.06 and give his change of address to the [c]ourt[,] and the [c]ourt finds that he has on numerous occasions avoided process although he has come to court when served. He has only paid[,] in the last nine years, $9,000.00 towards the support of this now 17 year old child. The support amount that he was ordered to pay in the amount of $334.00 a month certainly is a meager amount to support a 17 year old child. The matter of raising support is not before the [c]ourt.

The chancellor, therefore, granted Tracie a judgment of $35,695 ($27,486 in past child support, $7,000 in attorney's fees, $900 in investigative fees to locate Gregory, and $309 in court costs), plus eight percent interest from the date of the order. The chancery court also ordered Gregory incarcerated until he paid a purge amount of $11,898.33, which he promptly paid. Gregory was ordered to pay an additional $200 on top of his monthly child-support payments

Page 1041

of $334 to reduce the remaining arrearage.

¶4. On June 21, 2011, Tracie filed another petition for modification and contempt, asserting that since the first contempt proceeding a year prior, Gregory had only paid $1,600 in child support, and he had paid nothing towards the arrearage. She also claimed that a modification of child support was warranted due to a material change in circumstances, specifically the increased needs of the child, such as " college expenses, car insurance, and extracurricular activities."

¶5. A hearing on the petition was held April 19, 2012. Tracie's counsel asserted a motion to compel discovery, claiming that when she had finally received an answer from Gregory a week prior to the hearing, there was no proper documentation (tax returns, check stubs, etc.) included. She also claimed that Gregory had purposely eluded investigators, giving them false information, and that he was hiding assets. Gregory failed to appear at the hearing. His counsel, however, was present and acknowledged that Gregory had not filed tax returns for the last seven years. Gregory's counsel ...


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