Carlson v. Matthews
| Docket Number: | 2006-CA-01283-COA Linked Case(s): 2006-CA-01283-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-23-2007 Opinion Author: ISHEE, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Modification of child support - Rule 81 summons - Statute of limitations - section 15-1-59 - Section 15-1-43 Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 06-15-2006 Appealed from: Harrison County Chancery Court Judge: Carter Bise Disposition: DENIED RECONSIDERATION AS TO ATTORNEY’S FEES, CHILD SUPPORT AND AWARD TO WIFE FOR PAYMENT OF TAXES Case Number: 93-00814-102,998 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | DENIS FARRIS CARLSON |
JAMES F. THOMPSON
G. ERIC GEISS |
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| Appellee: | KATHRYN MYRA MATTHEWS (CARLSON) | WOODROW W. PRINGLE |
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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: | Modification of child support - Rule 81 summons - Statute of limitations - section 15-1-59 - Section 15-1-43 |
| Summary of the Facts: | In 1993, Denis and Kathryn Carlson agreed to a divorce based on irreconcilable differences. Concurrent with the divorce, the chancellor approved a property settlement between the parties. In 2001, the court ordered Denis to pay $773 in unpaid medical and dental bills and increased his child support payment to $880 per month. Denis subsequently lost his job for allegedly wrecking his company car while under the influence of alcohol. He then filed a motion to modify his child support payments due to the change in income brought about by his unemployment. The chancellor noted that Denis was months behind on his child support payments even though he had received $20,000 from BellSouth and $33,000 from a 401K, none of which he paid to Kathryn for child support. The order, therefore, denied Denis’s motion for modification and ordered him to pay $7,443.78 in unpaid child support, plus interest and costs. The chancellor signed a QDRO granting Kathryn an interest in Denis’s retirement for the value of unpaid child support and to secure future support. In 2004, the chancellor entered an order finding Denis in arrears in child support and in willful contempt of past orders. In 2006, the court refused to reconsider the award of attorney’s fees to Kathryn and ordered that Denis would not receive credit for the taxes that Kathryn had to pay on her interest in the retirement. Denis appeals. |
| Summary of Opinion Analysis: | Issue 1: Rule 81 summons Denis argues that the chancellor erred by proceeding with the hearing in the absence of service of process on him, as required by M.R.C.P. 81. However, the court treated the initiating action as Denis’s motion for modification of child support. It was in response to this motion by Denis that Kathryn filed an answer and a counterclaim for contempt. Issue 2: Statute of limitations Denis argues that any rights that Kathryn had in his retirement account as an alternate beneficiary were extinguished when the parties fully divided their property incident to divorce and that the action filed by Kathryn was barred by the seven-year statute of limitations for an action based on a domestic judgment. Pursuant to section 15-1-59, section 15-1-43 is tolled until the child reaches the age of twenty-one. As the children for whom Denis was obligated to pay support were all in their minority at the time he filed the initiating action, the statute of limitations had not yet begun to run. Denis admitted that he received $53,000 in 2002, from which he paid no child support. He also told the court that he would have cashed in his retirement, worth more than $200,000, if there had not been a lien against it. Ultimately, this was not a modification of the property settlement to which the parties agreed but a means of enforcing that agreement. |
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