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Shumake v. Shumake

Supreme Court of Mississippi

May 25, 2017

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

          DATE OF JUDGMENT: 10/15/2015

         DESOTO COUNTY CHANCERY COURT HON. ROBERT L. LANCASTER

          ATTORNEYS FOR APPELLANT: LESLIE B. SHUMAKE, JR. (PRO SE) A. E. (RUSTY) HARLOW, JR.

          ATTORNEY FOR APPELLEE: T. JACKSON LYONS

          BEFORE DICKINSON, P.J., KITCHENS AND COLEMAN, JJ.

          KITCHENS, JUSTICE

         ¶1. Leslie Shumake appeals the judgment of the Chancery Court of DeSoto County that found him in contempt for failure to pay his alimony obligations, denied his motion to modify alimony, and placed an equitable lien on his law practice to secure the payment of future alimony. Mr. Shumake argues that the chancellor erred by imposing the equitable lien, abused his discretion by failing to grant the motion to modify alimony, erred by rejecting his inability-to-pay defense to the contempt action, erred in the award of attorney fees, and erred by awarding Ms. Shumake the unpaid balance of the arrearage on the parties' former first mortgage.

         ¶2. We affirm on all issues except the chancellor's award of attorney fees for Ms. Shumake's successful contempt action. We reverse the attorney fee award and remand for the chancellor to subtract the fees attributable to Ms. Shumake's defense of Mr. Shumake's modification action.

         FACTS

         ¶3. The parties were divorced by a final judgment entered on February 20, 2009. Shumake v. Shumake, 156 So.3d 900, 902 (Miss. Ct. App. 2013). The chancellor ordered Mr. Shumake to pay Ms. Shumake permanent periodic alimony in the amount of $5, 750 per month. Id. On March 12, 2009, Ms. Shumake filed a complaint for citation of contempt, arguing that Mr. Shumake had failed to pay the amount of alimony ordered. Id. Mr. Shumake answered, counterclaimed for contempt, and filed a complaint for modification, arguing that his bankruptcy filing was a material change in circumstances. Id.

         ¶4. After several hearings and various orders, on April 12, 2012, the chancellor ordered Mr. Shumake to pay his former wife $3, 250 per month until the completion of his Chapter 13 bankruptcy payments. Id. After completion of the bankruptcy payments, Mr. Shumake's periodic alimony payments would be raised to $4, 225 per month. Id. The chancellor noted that, because the bankruptcy payments were approximately $4, 000 per month, Mr. Shumake would have an additional $4, 000 available to meet his alimony obligations once his bankruptcy payments concluded. The chancellor also found Mr. Shumake in arrears in his alimony payments in the amount of $58, 550, and ordered him to pay an additional $1, 500 per month, following the completion of his bankruptcy payments, until he had fully paid the arrearage. Id.

         ¶5. Mr. Shumake appealed from the order of April 12, 2012, and this Court assigned his appeal to the Court of Appeals. The Court of Appeals reversed and rendered the chancery court's order for Mr. Shumake to pay the $58, 550 arrearage. Id. at 905. This Court granted Ms. Shumake's petition for certiorari, reversed the judgment of the Court of Appeals, and reinstated the chancery court's order. Shumake v. Shumake, 147 So.3d 352, 356 (Miss. 2014). We held that the chancellor did not abuse his discretion by ordering Mr. Shumake to pay the alimony arrearage. Id.

         ¶6. On November 14, 2014, Ms. Shumake filed a complaint for citation of contempt, claiming that Mr. Shumake was in arrears in the amount of $38, 600 on his periodic alimony payments. She also complained that, despite Mr. Shumake's completion of his bankruptcy payments, he had not increased his alimony payments to $4, 225 and had failed to pay the additional $1, 500 per month toward the $58, 550 arrearage as ordered. Further, Ms. Shumake claimed that Mr. Shumake had not paid the current arrearage of $10, 467.49 on the parties' first mortgage on the marital domicile as ordered in the divorce judgment. She requested interest on the arrearages as well as attorney fees and costs.

         ¶7. Mr. Shumake filed an answer and a countercomplaint for modification of his alimony obligations. He admitted that he had not paid the full amounts ordered by the court, but asserted that he was not in wilful contempt because he had been unable to pay the sums ordered. He argued that the bankruptcy order discharged his responsibility for the amount in arrears on the first mortgage. He argued also that his ...


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