Bosarge v. Bosarge


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Docket Number: 2003-CA-00604-COA

Court of Appeals: Opinion Link
Opinion Date: 07-27-2004
Opinion Author: Chandler, J.
Holding: Affirmed

Additional Case Information: Topic: Contempt - Attorney’s fees - Child support - Section 43-19-101
Judge(s) Concurring: King, C.J., Bridges and Southwick, P.JJ., Lee, Myers and Griffis, JJ.
Concurs in Result Only: Irving, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CUSTODY

Trial Court: Date of Trial Judgment: 02-10-2003
Appealed from: Perry County Chancery Court
Judge: Sebe Dale, Jr.
Disposition: PETITION FOR CITATION OF CONTEMPT GRANTED, PRIMARY CUSTODY OF CHILD CHANGED.
Case Number: 98-0057-D

  Party Name: Attorney Name:  
Appellant: Alfred Bosarge, III




DAVID JEFFREY WHITE



 

Appellee: Cheryl Bosarge ALBERT LIONEL NECAISE  

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Topic: Contempt - Attorney’s fees - Child support - Section 43-19-101

Summary of the Facts: Alfred Bosarge, III filed a petition to modify child custody and support, based on both a claim that the eldest of three children had moved from the household of his former wife, Cheryl, to his household, as well as a claim that his earnings had decreased and he was unable to continue paying the support that was required by a previous settlement agreement. Cheryl counterclaimed alleging Alfred was in contempt for unpaid child support. The court denied Alfred's petition and found him to be in contempt of court. Alfred appeals.

Summary of Opinion Analysis: Issue 1: Contempt Alfred argues that the court erred in finding him in contempt because he was unable to pay the child support after his injury. At the time the court made its ruling, Alfred testified that he had recovered from his injury and was earning approximately $600 per week, yet he had made no effort to pay any amount towards the arrearage. Credible evidence supported the court's finding that Alfred was in contempt failure to pay the child support. Issue 2: Attorney’s fees Alfred does not contend that the award of $1,000 as a contribution towards the total of Cheryl's fees was an abuse of discretion but bases his argument on the finding of contempt. Since the court did not err in finding Alfred to be in contempt, there can be no basis for finding the court abused its discretion in ordering Alfred to pay a portion of Cheryl's attorney’s fees. Issue 3: Child support Alfred argues that the court erred in not allowing him a credit towards the arrearage for support he directly provided the eldest daughter who came to reside with him in January of 2001, and in failing to reduce the amount of child support he paid to Cheryl. The court found that the settlement agreement's provision of $400 per month support was within guidelines of section 43-19-101. Pursuant to this statute, the $400 per month figure is presumed to be reasonable, and no evidence overcame that presumption. Alfred also argues that the court erred in altering the physical custody of the eldest daughter without altering the child support provisions of the settlement agreement by ordering Cheryl to pay support for this child. Alfred came to equity without having met his obligations under the settlement agreement, and without making a timely appeal to the court to modify his obligations in light of his injury. While there is obvious merit to Alfred's argument, the record also factually supports the chancery court's decision.


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