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English v. Davenport

Court of Appeals of Mississippi

August 9, 2018

TAMMY ENGLISH APPELLANT
v.
RICHARD D. DAVENPORT APPELLEE

          DATE OF JUDGMENT: 03/04/2016

          WARREN COUNTY CHANCERY COURT HON. JANE R. WEATHERSBY TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: B. BLAKE TELLER GEORGE PHILIP SCHRADER IV

          ATTORNEYS FOR APPELLEE: DAVID M. SESSUMS PENNY B. LAWSON J. MACK VARNER

          BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.

          GREENLEE, J.

         ¶1. After finding that Tammy English was in contempt for failing to pay Richard Davenport lump-sum alimony, the Warren County Chancery Court ordered her to satisfy the arrearage in installments. The chancellor held that English would be incarcerated if she failed to do so. English appeals and claims the chancellor erred by (1) finding her in willful and contumacious contempt of her alimony obligation; and (2) ordering that she would be incarcerated. But it was within the chancellor's discretion to find that English failed to prove that she was unable to satisfy her lump-sum alimony obligation. And English's inability to pay as a defense to incarceration is not properly before us. Thus, we affirm the chancellor's judgment.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Incident to their 2012 divorce, English was ordered to pay Davenport approximately $8, 400 per month in lump-sum alimony for 180 months.[1] Davenport v. Davenport, 156 So.3d 231, 235 (¶11) (Miss. 2014). The award was intended to avoid dividing a number of companies that the former couple owned, including Good Samaritan Physical Therapy, Inc. Id. at (¶10). English appealed, and the Mississippi Supreme Court retained the case.

         ¶3. Meanwhile, English and Davenport were in practically constant litigation related to English's lump-sum alimony obligation. English was held in contempt after she failed to make the September through November 2012 alimony payments, among other things.[2] She apparently satisfied that contempt judgment, but she was later found in contempt again after she did not pay alimony from December 2012 through March 2013. She satisfied that judgment after she sold her home to her father.

         ¶4. Next, English failed to pay alimony from September through December 2013. English sold her lake house and became current through January 2014. However, she did not pay any alimony from January to May 2014. On May 13, 2014, the chancellor entered a judgment in Davenport's favor for more than $42, 000. The chancellor held that English would be incarcerated if she did not become current on her alimony by May 30, 2014.

         ¶5. In November 2014, the supreme court affirmed the chancellor's divorce judgment. Id. at 241 (¶36). The supreme court also upheld the chancellor's valuation of the business, the equitable distribution of the marital property, and the lump-sum alimony award. Id. The supreme court found no merit to English's claim that she was unable to pay approximately $8, 400 per month in lump-sum alimony. Id. at (¶35).

         ¶6. In March 2015, Davenport filed another contempt petition. At that time, English had not satisfied the previous contempt judgment, and she had failed to pay alimony from June 2014 through February 2015. English responded with an emergency motion to stay an arrest warrant and to modify her alimony obligation. She claimed she was unable to make the lump-sum alimony payments, so she should not be held in contempt. After hearing evidence over the course of three days, the chancellor found no merit to English's request to modify her alimony obligation. The chancellor also found that English was again in contempt. Consequently, the chancellor awarded Davenport a judgment for approximately $114, 000. The chancellor held that English had to pay Davenport $50, 000 by March 1, 2016.[3] She then had to pay him another $50, 000 on June 1, 2016. The remaining balance was due on August 1, 2016. The chancellor held that English would be incarcerated if she failed to make any of the payments. English also had to continue making alimony payments as they became due. After filing an unsuccessful motion for reconsideration, English appeals.[4]

         STANDARD ...


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