Martin Howard, Jr. v. Teresa Howard


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Docket Number: 2003-CA-01129-COA
Linked Case(s): 2003-CA-01129-COA
Oral Argument: 11-17-2004
 

 

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Additional Case Information: Topic: Contempt - Jurisdiction - M.R.A.P. 25 - M.R.A.P. 4(d) - Inability to pay - Modification of child support - Unclean hands

  Party Name: Attorney Name:  
Appellant: Martin Howard, Jr.




Ronald Alford Herrington, Jr.



 

Appellee: Teresa Howard Earl Wayne Smith  

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Topic: Contempt - Jurisdiction - M.R.A.P. 25 - M.R.A.P. 4(d) - Inability to pay - Modification of child support - Unclean hands

Summary of the Facts: Martin Howard, Jr. was divorced from Teresa Howard in 1995. In 2000, Martin’s child support obligations for his three children were increased from $2,100 per month to $2,500 per month; both before and after the modification, Martin was also ordered to pay the mortgage on the marital home in which Teresa and the children continued to reside and the reasonable educational expenses of the three children, including but not limited to private school tuition. These amounts totaled apparently $5,100 per month. In 2001, Martin petitioned the chancery court for modification of child support. The court denied his request for modification. Martin took no appeal from the chancellor’s ruling and acknowledges that he is currently bound by the decision. The chancery court held Martin in contempt twice during 2002. Martin filed no appeal seeking review of these orders. Martin subsequently sought protection under Chapter 13 of the United States Bankruptcy Code and moved the chancery court to withdraw all arrest warrants based upon contempt until the bankruptcy stay was lifted. Following dismissal of the bankruptcy petition, the chancery court issued an order to arrest and incarcerate Martin until he purged himself of contempt. Following his arrest, Martin filed a motion to modify/suspend support obligation and motion for release from incarceration. Teresa filed a motion for citation for contempt. The court ruled that Martin’s failure even to attempt to pay any part of his child support or other obligations from January 2003 to April 2003 constituted wilful contempt of the court; incarceration was, however, suspended for a period of twenty-one days to allow Martin to purge himself of the contempt by paying $10,000, being the arrearage in child support which had accrued since January 2003. As to modification, the court rejected Martin’s request that his obligations be reduced. The court determined, however, that despite the lack of entitlement to any modification, Martin’s obligations to Teresa should be reduced to $2,500 per month. Martin filed a notice of appeal, and Teresa filed a motion for reconsideration. The court granted Teresa’s motion and reversed its ruling regarding the reduction of child support. Martin appeals.

Summary of Opinion Analysis: Issue 1: Jurisdiction Martin argues that the lower court lacked jurisdiction to reconsider the order of May 19, 2003, because he had placed his notice of appeal in the mail on May 27, 2003, prior to Teresa’s filing her motion for reconsideration on May 29, 2003. Teresa’s motion for reconsideration was actually stamped filed by the clerk approximately one hour before Martin’s notice of appeal was stamped filed by the clerk. Pursuant to M.R.A.P. 25, Martin’s notice of appeal was not filed on the date of mailing but upon the date it was actually received by the clerk of the trial court at which time the clerk had already received and stamped Teresa’s motion for reconsideration. Teresa argues that Martin’s appeal, filed May 29, 2003, was untimely under M.R.A.P. 4(d) because the trial court’s last order was not entered until July 2, 2003, and Martin did not file a subsequent notice of appeal. However, Rule 4(d) now provides that while a notice of appeal filed before disposition of specified post-trial motions is ineffective pending disposition of said motions, the notice ripens into an effective appeal upon disposition of the post-trial motions. Issue 2: Contempt Martin argues that the court’s continued finding of contempt and refusal to allow him to assert a defense was, and continues to be, an abuse of the court’s discretion. When a party is unable to pay court ordered support, the proper action for him to take is to promptly file for a modification of support. When this course of action is followed, a finding of contempt is not proper. The record clearly shows that the court found Martin in willful contempt solely based upon his failure to pay or even attempt to pay any part of his child support. Martin’s only explanation for failing to make any payments for the first four months of 2003 was not inability to make any payment but his belief that he was current until the middle of the summer. Martin argues generally that he cannot be incarcerated for inability to pay. The record shows that Martin dissolved his retirement account in November 2001; and thereafter used $22,589.83 to pay the debt on his car. Martin further failed to account for the $5,179.81 shown as a balance of the retirement distribution. Therefore, Martin did not prove inability to pay in April 2003. Regardless of whether Martin had the financial ability to pay the $10,000 in April 2003, the court must, upon proper motion, revisit the issue at the time the order is executed. At the time the order of incarceration is executed, Martin may file a motion with the chancery court attempting to prove, with particularity, his present inability to pay. Issue 3: Modification of child support The three reasons identified by the chancery court for denying Martin’s request for modification were that the court had considered Martin’s position in 2001, that Martin was before the court with unclean hands, and that Martin had not taken reasonable steps to try to correct his financial situation. Where a parent has litigated to conclusion a motion for modification of child support, that parent is precluded from relitigating a claim that could have been presented in her original motion to modify. The terms of child support are, however, inherently modifiable upon a showing of a material change in circumstances. While Martin is precluded from relitigating any claim which was or could have been presented in his original motion to modify support obligations, he is not precluded from showing a material change in circumstances occurring subsequent to the November 2001 opinion. Therefore, the chancery court should have considered any evidence of events occurring subsequent to the November 2001 opinion to determine whether a substantial and material change had occurred justifying modification of Martin’s support obligations. The chancellor correctly found that Martin came into court with unclean hands; however, the chancellor’s order adjudicating the amount of Martin’s total arrearage had the effect of cleansing Martin’s hands so as allow modification of his child support obligations, should the chancery court otherwise find modification to be warranted.


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