Vincent v. Griffin


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Docket Number: 2001-CA-01439-COA
Linked Case(s): 2001-CT-01439-SCT ; 2001-CT-01439-SCT ; 2001-CA-01439-COA

Court of Appeals: Opinion Link
Opinion Date: 01-28-2003
Opinion Author: Myers, J.
Holding: Affirmed

Additional Case Information: Topic: Contempt - Notice - M.R.C.P. 81(d)(5) - Child support - Attorneys’ fees
Judge(s) Concurring: Thomas, Lee and Chandler, JJ.
Non Participating Judge(s): Griffis, J.
Dissenting Author : Irving, J.
Dissent Joined By : King and Southwick, P.JJ. and Bridges, J.
Concurs in Result Only: McMillin, C.J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 04-06-2001
Appealed from: DeSoto County Chancery Court
Judge: Percy L. Lynchard, Jr.
Disposition: JUDGMENT OF CONTEMPT AND MODIFICATION AWARDING APPELLEE PAST DUE CHILD SUPPORT, FULL LEGAL AND PHYSICAL CUSTODY OF MINOR CHILDREN AND ATTORNEY’S FEES.
Case Number: 95-12-1376L

  Party Name: Attorney Name:  
Appellant: David H. Vincent




D. RUSSELL JONES MARY LYNN WILLIAMS DAMARE’



 

Appellee: Joan (Hankins) Vincent Griffin PHILLIP GREGORY MEEK  

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Topic: Contempt - Notice - M.R.C.P. 81(d)(5) - Child support - Attorneys’ fees

Summary of the Facts: David and Joan Vincent were granted a divorce, and both parents were awarded joint legal and physical custody of their three minor children. Three years later, Joan filed a petition for contempt seeking to compel David to pay three years of back child support. At the trial, Joan obtained a judgment for contempt and modification awarding her $21,560 in past due child support, sole legal and physical custody of the parties’ three minor daughters, and attorney’s fees of $6,080. David appeals.

Summary of Opinion Analysis: Issue 1: Procedural due process David argues that he did not receive procedural due process, because he did not receive notice of the order assigning a trial date. M.R.C.P. 81(d)(2) provides that actions for modification or enforcement of child support and child custody are triable seven days after completion of service of process or thirty days after publication where service is by publication. The Rule also provides that no further notice is required once a defendant has been served with a Rule 81 summons. In this case, Joan served David with a Rule 81 summons and David appeared at the ordered date and time at which time the chancellor continued the matter. At that hearing, an initial trial date was set. On the date of trial, the chancellor decided to reassign the case to the chancellor who had originally granted the divorce. The reassignment order directed Joan’s attorney to contact the court administrator to set a date. Therefore, the chancellor complied with Rule 81(d)(5). David was served with proper notice of the original trial date and was present when the case was transferred. He had every opportunity to check with the chancery clerk’s office and Joan’s attorney regarding the case’s status, and his failure to do so is not relieved because he chose to represent himself. Issue 2: Child support David argues that he and Joan had agreed that no child support would be due since the children would visit with him Thursday through Monday. Child support vests as it accrues and cannot then be modified or forgiven by the courts. Even if David and Joan agreed for their daughters to visit with David for approximately half of each week, the child support payments were still payable each month to Joan for the daughters’ benefit. Issue 3: Attorneys’ fees David argues that the court erred by awarding attorney’s fees to Joan, because she had the ability to pay her own fees. A chancellor may award attorney’s fees that are incurred in pursuing a contempt motion. Because David was in contempt for violating the court’s order with regard to paying child support, the court properly awarded attorneys’ fees.


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