Finch v. Finch
| Docket Number: | 2011-CT-00306-SCT Linked Case(s): 2011-CA-00306-COA ; 2011-CA-00306-COA ; 2011-CT-00306-SCT ; 2011-CT-00306-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 01-16-2014 Opinion Author: Pierce, J. Holding: Affirmed in part, reversed in part and remanded. |
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| Additional Case Information: |
Topic: Contempt - Fraud - M.R.C.P. 60(b) motion raised sua sponte - Notice - Clear and convincing standard - Fluctuation of income - Retroactive modification of child support - Interest on child support payments - Retroactive alimony Judge(s) Concurring: Lamar, Kitchens and Chandler, JJ. Concur in Part, Concur in Result 1: Randolph, P.J., Without Separate Written Opinion Concur in Part, Dissent in Part 1: Dickinson, P.J., With Separate Written Opinion Concur in Part, Dissent in Part Joined By 1: Waller, C.J., King and Coleman, JJ.; Chandler, J., Joins In Part. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 02-16-2011 Appealed from: LAMAR COUNTY CHANCERY COURT Judge: DEBORAH J. GAMBRELL Disposition: REDUCED AMOUNT OF ALIMONY AND CHILD SUPPORT OWED BY APPELLEE Case Number: 2008-0138-GN-DJG |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Rosemary Finch |
JAMES L. ROBERTSON, JR., ALFRED J. LECHNER, JR. |
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| Appellee: | Stewart Finch | S. CHRISTOPHER FARRIS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Contempt - Fraud - M.R.C.P. 60(b) motion raised sua sponte - Notice - Clear and convincing standard - Fluctuation of income - Retroactive modification of child support - Interest on child support payments - Retroactive alimony |
| Summary of the Facts: | Rosemary Finch and Stewart Finch were granted a divorce. Rosemary later filed a contempt petition claiming that Stewart had failed to pay alimony and child support, failed to obtain life insurance, failed to make COBRA payments, and failed to disclose his present address and telephone number. Stewart filed an answer and counter-petition for contempt, alleging that Rosemary had failed to pay the balance on a vehicle and failed to provide him with personal property from their marital home pursuant to the divorce judgment. Later, Stewart filed an amended counter-petition for contempt and modification alleging that Rosemary had fraudulently represented to the chancery court that she had continued to pay all of the marital debts, just as she had through the marriage, but in reality, she had failed to make payments on an American Express credit card that was in his name. The chancellor found that there had been a material change in circumstances since the original divorce decree had been entered. The chancellor, sua sponte, raised a Rule 60(b) motion finding Rosemary had committed a fraud upon the court. The chancellor retroactively reduced alimony from $4,000 to $2,000 per month based on Rosemary’s failure adequately to disclose social security payments, additional debts, and a joint account with her mother, and Stewart having to pay for both Rosemary’s and his daughter’s vehicles in order to transfer title pursuant to the divorce judgment. The chancellor retroactively reduced child support from $1,300 to $900 per month and further relieved Stewart of the obligation to pay any of his son’s educational expenses. Rosemary appealed, and the Court of Appeals affirmed. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Issue 1: Fraud While a judge may raise an M.R.C.P. 60(b) motion sua sponte, the court must provide adequate notice and an opportunity for a hearing. Rosemary argues that she was blindsided by the judgment because she did not receive fair notice that the chancellor would consider issues not listed in Stewart’s counter-petitions, and as a result, she was unable to take discovery to defend against the allegations. However, the record shows that even though the alleged undisclosed debts were not brought forth in the initial petitions, they were brought forth during a later hearing, in Stewart’s subsequent proposed findings of facts and conclusions of law, and during oral arguments. Thus, the chancellor did not abuse her discretion in addressing the fraud sua sponte pursuant to Rule 60(b). Rosemary argues that the chancellor failed to apply the clear and convincing standard when determining that the facts supported a finding of fraud on the court. However, the judgment clearly shows the chancellor’s application of the clear and convincing standard. In addition, there is evidence to support the chancellor’s ruling. The chancellor determined that it was clear that Rosemary knew of the existence of the additional debts, her access to additional bank accounts, and her entitlement to social security benefits, and that those disclosures prevented the court from equitably dividing the assets and liabilities of the marriage. The chancellor also concluded that it was clear that Rosemary had failed to disclose two additional bank accounts and her entitlement to receive social security benefits. Thus, there is no error. Issue 2: Findings by chancellor The record shows that Stewart’s income fluctuates from year-to-year. Thus, the case requires reversal for a further factual determination regarding whether Stewart’s income had declined so that the court can properly determine the appropriate amount of child support and alimony to be awarded. The chancellor erred in allowing a retroactive downward modification to Stewart’s child-support obligation dating back to the August 2010 hearing. Thus, Stewart was required to continue $1,300-per-month payments until the judgment ordering modification was entered in February of 2011. Rosemary also argued that Stewart should be required to pay interest on the months when he ceased making child-support payments. Because interest accrues on unpaid child-support payments at the time each payment becomes due, Stewart should be required to pay the interest. While the chancellor did not err in finding that Stewart was no longer required to pay for his son’s college expenses, the chancellor did err in requiring the son to maintain a “C” average to continue receiving child support, because child-support modifications are to be considered in light of the best interest of the child, including a determination of the parent’s ability to provide for those needs, not the child’s ability to prove worthy of support. On remand, the chancellor should determine the appropriate amount of child support to be awarded until the son is ruled emancipated. Rosemary argues that the chancellor did not have the authority to reduce her alimony retroactively to the date of the August 2010 hearing. Alimony may be reduced retroactively at the discretion of the chancellor to the date the petition to modify was filed. This issue is without merit, because Stewart first requested that the court modify Rosemary’s alimony in June 2010. |
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