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Dixon v. Dixon

Court of Appeals of Mississippi

February 6, 2018


          DATE OF JUDGMENT: 05/20/2016




         EN BANC.

          WILSON, J.

         ¶1. William Tracy Dixon (Tracy) filed a motion (1) to terminate or modify his duty to pay alimony to his ex-wife Sandra Michelle Dixon (Michelle) and (2) to terminate his duty to pay child support for his daughter Amanda, whom he alleged was emancipated because she was cohabiting with her boyfriend. The chancellor found that Amanda was not emancipated and that Tracy was not entitled to any modification. We find no reversible error and affirm.


         ¶2. Michelle and Tracy married in 1992 and had twin girls, Ashton and Amanda, in 1996. They separated and divorced in 2012. The divorce decree granted Michelle physical custody of their daughters with joint legal custody and liberal visitation for Tracy. Tracy was ordered to pay child support of $770 per month to Michelle and to pay other specified expenses, including private school tuition. Tracy was also required to maintain health insurance for his daughters and pay two-thirds of their non-covered medical expenses. Finally, Tracy was ordered to pay Michelle $2, 000 per month in permanent periodic alimony.

         ¶3. On September 16, 2014, Tracy filed a complaint to modify his child support and alimony obligations. He alleged that there had been material changes in circumstances since the divorce judgment was entered in that Amanda and Ashton had graduated from high school and moved out of Michelle's home, Amanda was cohabiting with her boyfriend, Ashton was attending community college on a softball scholarship, and Michelle's income had increased so that she could "support herself." Tracy asked the court to declare Amanda emancipated and to terminate his obligation to pay child support for her, to permit him to pay Ashton's child support directly to her, and to terminate or decrease his obligation to pay alimony to Michelle.

         ¶4. On January 29, 2015, the court held a hearing on the issues of emancipation and child support. Amanda testified that, over both of her parents' objections, she moved in with her boyfriend, Will, after she graduated from high school in May 2014. Will bought a car for her to use and began paying for her cell phone. Amanda was on scholarship at Jones County Junior College (JCJC) and was studying to be a nurse practitioner. However, she testified that she still relied on her mother for support. Her mother bought her clothes, bought her lunch or dinner two or three times a week, and gave her money for gas. Amanda also testified that she would need more help from her parents after she transferred to the University of Southern Mississippi.

         ¶5. Amanda testified she had a good relationship with her father until she told him that she planned to attend JCJC and did not want to play softball anymore. Tracy wanted her to play softball with her sister on a scholarship at Southwest Mississippi Community College, and they "had a big argument" about it. They argued again in May 2014 when Amanda told Tracy that she was moving in with Will, and they had visited only once since. However, Amanda testified that she loved her father and desired to have a relationship with him.

         ¶6. Michelle testified that she still bought Amanda meals and clothes and still gave her money for gas. Michelle also testified that she regularly gave Ashton cash or transferred money to her checking account. Ashton was on scholarship at Southwest but intended to transfer to JCJC and move back in with Michelle at the end of the school year. Michelle testified that her daughters both kept clothes at her house and could move back into their rooms at any time.

         ¶7. Tracy testified that he wanted to mend his relationship with Amanda, but she had ignored his many phone calls, texts, and invitations. He testified that he visited with Ashton regularly, bought her meals, and gave her money for gas. He also testified that he was current on his child support and alimony obligations.

         ¶8. At the conclusion of the hearing, the chancellor (1) denied Tracy's request to declare Amanda emancipated; (2) declined to terminate Amanda's child support under Hambrick v. Prestwood, 382 So.2d 474 (Miss. 1980); and (3) denied Tracy's request to permit him to pay Ashton's child support to her directly.

         ¶9. The next hearing in the case was held one year later on January 26, 2016. In the interim, Tracy's income decreased, and he was laid off of work on August 12, 2015. Tracy then unilaterally reduced his alimony payments, eventually stopped paying alimony altogether, and also fell behind on his child support payments. In response, Michelle served Tracy with a complaint for contempt. Michelle failed to file the complaint until the day of the hearing, but Tracy did not object to proceeding on the issue of contempt. Indeed, Tracy's attorney told the court that the issues of contempt and modification should "both be tried at the same time" because both involved "the same evidence, " i.e., Tracy's ability to pay.

         ¶10. At the time of the parties' divorce, Tracy was employed by Weatherford Fishing and Rental as a fishing tool supervisor[1] with a total monthly income of $18, 516 and a net monthly income of $13, 054. Tracy testified that by May 2015, the number of active oil and gas rigs had fallen off dramatically, and his monthly income had decreased to $6, 218 (total) and $4, 974 (net) due to a loss of bonus pay. Then, on August 12, 2015, Tracy was laid off by Weatherford with five weeks of severance pay. After he was laid off, Tracy went to work for his neighbor as a carpenter, and his monthly income decreased further to $2, 880 (total) and $2, 319 (net). Tracy testified that there had been numerous layoffs in the local oil industry, and he claimed that no one in the industry was hiring. Tracy also testified that he had cashed out his 401(k) account to pay debts and to continue to pay for insurance and that he was no longer able to pay his alimony and child support obligations. He had not made his full alimony payment in a year, he had not paid any alimony in over six months, and he was three months behind on his child support payments.

         ¶11. Tracy testified that First Financial Bank had approved him for a $1, 400, 000 loan to build chicken houses and begin operations in the poultry business. In his deposition, he testified that he did not want to go back to work in the oil industry, that he preferred his work as a carpenter, and that he would not take a job in the oil industry if it was offered to him. He acknowledged that he had worked in the oil industry for twenty years and knew all along that was an "up and down" business.

         ¶12. Tracy also admitted that he received $49, 276 when he cashed out his retirement account, but he did not use any of the money to pay child support or his alimony arrearage. Instead, he used the money to pay other debts, including a $19, 731 loan on his camper, a $9, 172 loan on his Polaris Ranger utility vehicle, and credit card debt. He also used the money to pay for his current wife's car tag, to pay his current wife's OB-GYN, and to pay for renovations to his home and furniture for a new nursery.[2]

         ¶13. As of January 2016, Michelle was employed as a secretary with a gross monthly income of $2, 000 and net monthly income of $1, 606.[3] She owned a home with an estimated value of $135, 000 and a $96, 000 mortgage. She had a retirement account with a balance of $130, 440. She testified that she had to take out a loan to pay her attorney and had incurred credit card debt to help her daughters pay expenses. Ashton had moved back in with Michelle in May 2015, and Amanda had transferred to USM and moved to Hattiesburg. Michelle testified that Amanda went out to eat with Tracy or visited him at his house a couple of times a month in addition to talking to him on the phone and texting with him. Finally, Michelle testified that, as of the hearing, Tracy's total alimony arrearage was $22, 644.63, and his total child support arrearage was $2, 968.

         ¶14. At the conclusion of the hearing, the chancellor announced his ruling from the bench. He first observed that "the entire case ha[d] changed since the time [Tracy's motion to modify child support and alimony] was filed" in September 2014. Tracy's motion addressed Michelle's increased income and alleged ability to support herself and Amanda's cohabitation with her boyfriend. Tracy's loss of income and employment occurred months later. The chancellor also explained that because Tracy was behind on child support and alimony, the court first had to "resolve this issue of whether or not [Tracy was] in contempt" and "how [he could] purge himself." As the chancellor put it, Tracy had "to wash his hands" before he could obtain any modification.

         ¶15. The chancellor found that Tracy's total arrearage (alimony and child support) was $25, 612.63. He then stated that he was "going to . . . fashion a remedy" that he thought would be fair and equitable, although he "assure[d], " "guarantee[d], " and "promise[d]" the parties "that the Court of Appeals [would] reverse" it. The chancellor ruled that Tracy could purge himself of contempt by paying $12, 800 of the arrearage at a rate of $500 per month, beginning February 1, 2016.[4] The chancellor then reduced Tracy's child support to $464 per month, [5] suspended his obligation to pay alimony (other than the arrearage) for one year, and reduced alimony to $750 per month effective February 1, 2017. Finally, the chancellor awarded Michelle attorney's fees of $1, 250 based on Tracy's contempt. The chancellor's rulings were memorialized in a final judgment of contempt and modification entered February 10 nunc pro tunc January 26, 2016.

         ¶16. Tracy then hired a new lawyer and filed a "Motion for Reconsideration, Correction of Judgment, or, in the Alternative, a New Trial."[6] On March 30, 2016, the court entered a "Post-Trial Order" granting Tracy a "new trial" on the issues of contempt, his arrearage, alimony, and attorney's fees. However, the order did not address the merits of those issues, and no "new trial" was held. The chancellor later explained that he signed the "Post-Trial Order" granting a "new trial" in error. He did not intend to grant a new trial, as the case had been tried fully, the parties had ample opportunity to present evidence on all issues, and no new or additional evidence was necessary. The chancellor only intended to reconsider his prior findings and rulings in an amended final judgment.

         ¶17. On May 9, 2016, the court entered a detailed "Revised and Amended Opinion of the Court." The court's revised opinion again found that Tracy was in contempt for not paying alimony and child support. The court emphasized Tracy's failure to use any of the $49, 276 that he withdrew from his retirement account to pay down his arrearage. The court noted that Tracy used some of those funds to pay off a loan on his Polaris Ranger, which he still owned and valued at $13, 000. The court further noted that Tracy had been approved for a $1, 400, 000 loan to start a poultry business. The court found that Tracy had funds available to pay alimony and child support "irrespective of any reduction in his salary" but "chose not to do so." Therefore, he was "in willful, contumacious contempt of court."

         ¶18. The court then ruled that Tracy could purge himself of contempt by paying Michelle (a) $13, 000 of his arrearage by May 20, 2016, which he could do "by selling or pledging his unencumbered Polaris Ranger"; (b) the balance of the arrearage ($12, 612.63) by August 1, 2016; and (c) attorney's fees of $2, 500 for his contempt. The court further found that Tracy had "unclean hands" and was not entitled to any modification of alimony or child support until he purged himself of his contempt. Finally, the court found that Tracy was not entitled to a modification for the additional reason that there had "been no unanticipated substantial and material change in circumstances." On May 24, 2016, the court then entered an amended final judgment of contempt and modification, which summarized and implemented the rulings in the court's revised opinion.

         ¶19. Tracy again hired a new lawyer and filed a motion attacking the revised opinion and amended final judgment.[7] The court denied Tracy's motion on July 5, 2016, and Tracy filed a timely notice of appeal. On appeal, he alleges that the chancery court erred by finding that Amanda should not be emancipated, by not reducing his child support, and by not terminating his alimony. He also alleges that the chancellor exceeded his authority under the Mississippi Rules of Civil Procedure-specifically, Rule ...

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