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Elkins v. Elkins

Court of Appeals of Mississippi

February 6, 2018


          DATE OF JUDGMENT: 02/10/2015





          BARNES, J.

         ¶1. Robert and Kimberlana Elkins were granted a judgment of divorce by the Hancock County Chancery Court on February 10, 2015. Robert filed a motion to reconsider the awards for contempt and attorney's fees to Kimberlana. Granting Robert's motion in part, the chancery court modified the award for contempt. The award of attorney's fees was upheld. Asserting numerous issues, Kimberlana filed an appeal of the chancery court's judgment of divorce, including the chancellor's modification of the contempt award.

         ¶2. Finding no error, we affirm.


         ¶3. Robert and Kimberlana were married on September 11, 1999. The couple had two children: a female, born in 1998; and a male, born in 2008. The couple separated on January 31, 2010, and Kimberlana filed a complaint for divorce against Robert on July 13, 2010, citing irreconcilable differences.

         ¶4. On July 22, 2011, the Hancock County Chancery Court entered a temporary order, granting Kimberlana temporary custody of the minor children and exclusive use of the marital home. Robert was ordered to pay $350 in monthly temporary child support, the children's medical expenses, plus the mortgage, maintenance, and expenses for the marital residence. The issue of alimony was held in abeyance. Robert filed a motion to set aside the temporary order on August 16, 2011, asserting he was never notified of the court hearing regarding the temporary support.

         ¶5. On August 25, 2011, Kimberlana filed a motion for contempt of court, claiming Robert was $3, 150 in arrears for child support and $8, 659.95 in arrears for the mortgage and home maintenance. On November 15, 2011, the parties appeared before the chancery court, agreeing to have the court review and resolve all claims. But although Robert filed a motion to enforce the agreed judgment of divorce on December 29, 2011, the proposed property-settlement and child-custody agreement was never executed or filed. Kimberlana subsequently filed a handwritten property-settlement agreement, requesting money from an alleged inheritance to be received by Robert.

         ¶6. On February 7, 2012, Kimberlana filed a second motion for contempt, reasserting her argument that Robert failed to pay the mortgage and temporary child support. She filed another motion for citation of contempt on July 2, 2012, claiming Robert "ha[d] failed to meet his financial obligations under the [t]emporary [o]rder and ha[d] placed the marital home at risk for foreclosure" and that his additional failure to pay support and expenses had caused her and the minor children financial hardship.

         ¶7. Kimberlana filed an amended complaint for divorce on March 11, 2013, asserting claims of adultery; habitual cruel and inhuman treatment; and willful, continued, and obstinate desertion for one year; or in the alternative, irreconcilable differences. She requested child support, the children's educational (college) expenses, alimony, and exclusive use and ownership of the marital home. She filed a second amended complaint on May 1, 2013. Robert filed no response to the complaints.

         ¶8. Kimberlana filed a motion for emergency relief, modification, and other relief, on July 26, 2013, requesting an increase in child support and for Robert to pay "all household expenses . . . to include travel to and from [their daughter's] medical providers, " as a recent medical condition had resulted in "excessive medical expenses" for the daughter. Robert responded with a motion to set aside the temporary order, again claiming he had not received notice of the hearing. On December 17, 2013, the chancery court found Robert to be in contempt of the chancery court's temporary order of July 22, 2011, "but not in wilful and contumacious contempt." Because the evidence reflected Robert's inability to pay the temporary support, the court granted an equitable lien on the marital residence for the total arrearage of $42, 604.47. Noting a substantial and material change in circumstances since the temporary order, the chancellor also modified the child support to $415.15 per month, making it retroactive to the date of the filing of the motion for emergency relief.

         ¶9. On February 10, 2015, the chancery court entered a judgment of divorce. The court granted Kimberlana a divorce on the ground of adultery, noting that although Robert did not admit to adulterous behavior prior to the couple's separation, he had "openly admitted to extramarital relations after the date of separation." The chancellor awarded joint legal custody to both parents and primary physical custody to Kimberlana. As to child support, the court determined Robert's monthly adjusted gross income to be $1, 904.33 and ordered him to pay $381 per month in accordance with the statutory child-support guidelines. See Miss. Code Ann. § 43-19-101 (Rev. 2015). As the marital residence was subject to a mortgage and an unsecured (home disaster) loan through the Small Business Administration (SBA), [1] the chancery court ordered that the home be sold and the proceeds used to pay off the debts. As to Kimberlana's motion for contempt, the court determined that the total arrearage owed by Robert was $65, 895.96. He ordered Robert to pay $250 per month for any arrearage due after the proceeds of the sale of the house had been applied to the arrearage. The chancellor denied Kimberlana's request for alimony and homeschooling expenses of $1, 500 per year for their daughter.

         ¶10. Robert filed a motion on February 18, 2015, asking the court to reconsider the awards of contempt and attorney's fees. Kimberlana filed a notice of appeal from the chancery court's judgment of divorce on March 6, 2015.[2] On June 5, 2015, the chancery court ruled on Robert's motion for reconsideration, finding that the chancery court had no authority to order Robert to pay "temporary child or spousal support because no such request was made by [Kimberlana] in her initial complaint." Thus, the court determined that the temporary order was "void ab initio" and granted Robert's motion in part, deducting $42, 604.47 from the arrearage owed by Robert for support. However, it denied the motion with respect to the remaining arrearage ($23, 291.49) and the award of $3, 700 in attorney's fees to Kimberlana.

         ¶11. Kimberlana argues on appeal that the chancery court erred: (1) by failing to consider Robert's extra-marital affairs in its determination of the equitable distribution of the marital assets; (2) in calculating Robert's income for the purposes of child support, specifically its failure to consider Robert's alleged inheritance; (3) by decreasing the amount of child support from the December 17, 2013 order; (4) in not ordering Robert to pay tuition for the daughter's online-school program; (5) by not awarding Kimberlana the marital residence; (6) by not awarding Kimberlana lump-sum or rehabilitative alimony; (7) in modifying the award of contempt in its order on Robert's motion for ...

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