Cook v. Whiddon
| Docket Number: | 2000-CA-01776-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 02-24-2004 Opinion Author: Irving, J. |
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| Additional Case Information: |
Topic: Custody - Temporary spousal support - Clean hands doctrine - School tuition - Attorneys’ fees - Computation of child support - Delays - Computation of costs - Entry of judgment Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Lee, Chandler and Griffis, JJ. Non Participating Judge(s): Thomas and Myers, JJ. Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 09-18-2000 Appealed from: Hancock County Chancery Court Judge: Donald Patterson Disposition: MODIFICATION JUDGMENT FAVORING APPELLEE ON CHILD SUPPORT AND CUSTODY; FINDING COST OF COPYING CHANCERY CLERK’S PAPERS $2 PER PAGE Case Number: 96-0143 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Henry J. Cook, III |
PRO SE |
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| Appellee: | Ginger Cook Whiddon | DAVID D. POWELL MICHAEL D. HAAS RICHARD LYNN DUCOTE |
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| Topic: | Custody - Temporary spousal support - Clean hands doctrine - School tuition - Attorneys’ fees - Computation of child support - Delays - Computation of costs - Entry of judgment |
| Summary of the Facts: | Henry Cook, III and Ginger Cook, now Ginger Whiddon, were divorced in June 1997. Thereafter, numerous motions for contempt and modifications were filed by both parties. The chancellor awarded Whiddon sole legal and physical custody of the couple’s children and found Cook in contempt for failure to pay past due temporary spousal support and child support. The chancellor also found Cook in arrears on child support due at the time of trial. The court held that a reduction in child support was inappropriate and awarded Whiddon $3,000 in attorney fees. Cook appeals. |
| Summary of Opinion Analysis: | Issue 1: Temporary spousal support Cook argues that the court erred in allowing Whiddon to recover $5,901.23 in temporary predivorce spousal support arrearage, because his pre-divorce obligation is unenforceable since the temporary support was not incorporated into the judgment of divorce. While Cook is correct in his contention that the temporary support order was not incorporated in the final judgment of divorce, that omission did not extinguish his then existing obligation to pay accrued pre-divorce support. Issue 2: Clean hands doctrine The chancellor held that unless Cook could show that he was current in his child support obligation, he would refuse to hear any request or evidence pertaining to modification of child support. The clean hands doctrine prevents a complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in the transaction at issue. The evidence supports the finding that Cook came into court with unclean hands since Cook was in arrears at the time he filed his motion for modification of child support which was not filed until after Whiddon had filed her motion seeking to have him held in contempt for failure to make child support payments. However, the entry of a final judgment for the amount of the arrearage, as opposed to payment of the arrearage, cleanses the hands of the defaulting obligor. Therefore, the final judgment with respect to finding that Cook was in arrears in September 1997 for child support in the amount of $3,430 and pre-divorce spousal support in the amount of $5,901.23 is affirmed, but the finding of child support arrearage for the entire period following the September 25, 1997 hearing is reversed and remanded for further consideration, since the entry of the judgment on May 22, 1998, effective retroactively to September 25, 1997, cleansed Cook's hands. Issue 3: School tuition Cook argues that he should have been given credit for the $4,880 in school tuition he paid for his children for the 1997-98 school year. Because Cook was not ordered to pay private school tuition by court order but voluntarily made the payments, he was not entitled to credit for the private school tuition payments. Issue 4: Attorney’s fees Cook argues that the court erred in awarding attorney’s fees to Whiddon. When the court denies a spouse’s petition for contempt, no award of attorney fees is warranted. Since there were two contempt hearings following the hearing in which Cook's hands were cleansed, and since the amount of attorney fees was not allocated on a per hearing basis, the award of attorney’s fees is reversed and remanded for further consideration. However, Whiddon is entitled to an award of attorney fees for the successful prosecution of her first motion for contempt. Issue 5: Computation of child support Cook argues that the court erred in its computation of child support in the final judgment of modification, because the court failed to consider previously paid support totaling $2,372. The record shows that Cook is mistaken in this regard. Issue 6: Delays Cook argues that the court erred in allowing extraordinary delays in the bringing of issues before the court which deprived him of joint custody of his children. His assertion is unsupported by the record. The chancellor found by clear and convincing evidence that it would be in the best interest of the children that joint legal custody be terminated. Issue 7: Computation of costs Cook argues that the court erred in computing costs associated with copying the chancery clerk’s papers, because the amount should have been 50 cents per page instead of the court ordered $2.00 per page. Though the only specific statute relating to making copies of final records and transcripts may be in a statute generally related to circuit clerks, the statute specifically provides that all other officers may be charged the same. Therefore, section 25-7-13(6) is the appropriate statute for the chancery clerk, and the chancellor did not err in requiring Cook to pay the statutorily required amount. Issue 8: Judgment Cook argues that the court erred in signing and allowing the entry of a judgment that was filled with errors and critical omissions, because the entered judgment differs from the opinion rendered from the bench. Only a final judgment is appealable. Since the bench opinion is not a final judgment, Cook has no basis for appealing from it. |
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