New v. Comola
| Docket Number: | 2003-CA-01626-COA | |
| Oral Argument: | 05-12-2004 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-31-2004 Opinion Author: Myers, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contempt - Child support - Escalation clause - Unclean hands - Continuance Judge(s) Concurring: King, C.J., Bridges, P.J., Lee, Chandler and Griffis, JJ. Non Participating Judge(s): Barnes, J. Concurs in Result Only: Irving, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 04-30-2003 Appealed from: Hinds County Chancery Court Judge: Stuart Robinson Disposition: DEFENDANT ORDERED TO PAY SEVENTEEN PERCENT OF HIS GROSS INCOME MONTHLY AS CHILD SUPPORT, $600 PER MONTH TOWARD CHILD SUPPORT ARREARAGE IN THE AMOUNT OF $33,050.22; $7,000 TO COMPLY WITH A PERSONAL PROPERTY SETTLEMENT AND TO PROVIDE PLAINTIFF CURRENT PAY STUBS EVERY SIX MONTHS Case Number: U-94-379R/1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Frederick Alan New |
MARK A. CHINN
PATRICIA R. WILLIAMS |
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| Appellee: | Sabrina Comola | CYNTHIA A LANGSTON |
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| Topic: | Contempt - Child support - Escalation clause - Unclean hands - Continuance |
| Summary of the Facts: | Frederick New and Sabrina Comola were granted a divorce based on cruel and inhuman treatment by the New York State Supreme Court in 1991. Comola was granted sole custody of the couple's minor child. Both a settlement agreement and an amendment regarding child support were incorporated into the order of the court. When New failed to make child support payments and provide current pay stubs, Comola sought legal recourse in the Hinds County Chancery Court. Although New was properly served, he failed to appear. The court heard the case in his absence and found that New had failed to pay Comola seventeen percent of his gross income as child support, New was in child support arrears of $19,889.45, New had not paid Comola $7,000 as directed by the property settlement agreement and New failed to provide Comola current pay stubs every six months in violation of the New York court order. New was ordered to pay child support arrearage of $19,889.45 within thirty days of the entry of the order and to pay Comola $7,000 as directed by the property settlement agreement and seventeen percent of his gross income as child support. New failed to respond to and comply with the subpoena duces tecum issued by the court. Comola filed a motion to hold New in contempt and to amend the order to reflect true arrearage. The court found New in willful contempt of court and amended the prior order to reflect the true child support arrearage as being $33,050.52. The court ordered New to pay to Comola the delinquency of $40,050.52 (child support arrearage plus the $7,000 as per the property settlement agreement) plus 9.25% interest. A withholding order was issued by the court ordering New’s employer to pay Comola seventeen percent of New’s income and to provide pay stubs to her every six months. Another hearing was held at which New appeared without counsel. New requested a continuance in order to obtain counsel, but the request was denied. The chancellor ordered that in addition to paying seventeen percent of his monthly gross income to Comola, New was required to pay $600 per month towards the arrearage owed to Comola. New moved for a new trial which the court denied. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Escalation clause New argues that the child support provision contained in the property settlement agreement agreed to and signed by he and Comola is unenforceable and void because it contains an invalid escalation clause. While escalation clauses must be tied to a number of factors, New’s argument fails due to his willful failure to comply with court orders. New admits that he owes money to Comola for child support arrearage and for personal property but he has not paid. Because he comes before the court with unclean hands due to his willful contempt, the chancellor’s order was in accordance with the maxims of equity. Issue 2: Continuance New argues that the chancellor abused his discretion by denying his motion for a continuance. The record shows that the chancellor gave New an opportunity to obtain counsel and New chose to appear before the court without an attorney. Therefore, the chancellor did not abuse his discretion by denying New’s motion for a continuance. |
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