Howard v. Howard
| Docket Number: | 2006-CA-00350-COA Linked Case(s): 2006-CA-00350-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-13-2007 Opinion Author: CHANDLER, J. Holding: Affirmed in Part, Reversed and Remanded in Part |
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| Additional Case Information: |
Topic: Modification of child support - Res judicata - Unclean hands - Contempt - Attorney’s fees Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, 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: 02-14-2006 Appealed from: PIKE COUNTY CHANCERY COURT Judge: Debbra K. Halford Disposition: FOLLOWING REMAND, CHANCERY COURT DENIED MARTIN'S REQUEST FOR MODIFICATION AND FOUND MARTIN TO BE IN CONTEMPT Case Number: 94-645 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | MARTIN HOWARD, JR. |
JOHN R. REEVES
JOHN JUSTIN KING |
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| Appellee: | TERESA HOWARD | WAYNE SMITH |
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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 - Res judicata - Unclean hands - Contempt - Attorney’s fees |
| Summary of the Facts: | In Howard v. Howard, 913 So. 2d 1030 (Miss. Ct. App. 2005), the Court reversed the denial of Martin Howard, Jr.'s petition for modification of child support and remanded for reconsideration. After hearing more evidence on remand, the chancellor dismissed the modification petition. The chancellor found that the four identities of res judicata were met and that the grounds for relief asserted by Martin were previously litigated at the earlier proceeding. Additionally, the court found that Martin had not shown a material change in circumstances since October 2001, that he was guilty of a continued failure to take reasonable steps to correct his financial situation, that he had misrepresented his assets to the court, and that he had voluntarily worsened his financial position. The court also found Martin had unclean hands and was in willful contempt of court for his failure to pay sums due under prior court orders. Martin appeals. |
| Summary of Opinion Analysis: | Issue 1: Modification of child support Martin argues that the chancellor erred by dismissing the petition for modification on the bases of res judicata and unclean hands. He argues that because the terms of a child support order are inherently modifiable upon a showing of a material change in circumstances, the issue of whether Martin could engage in the practice of surgery was not finally settled by the letter opinion of the court and that the medical opinions to the effect that Martin's hand problems have rendered him unable to practice surgery constitute additional facts that arose after the letter was issued. Martin was precluded from relitigating any issue that was litigated or could have been litigated in the proceedings on his prior petition for modification that culminated in the letter opinion. At that prior proceeding, the evidence showed Martin had a carpal tunnel release surgery. The chancellor held that Martin's decision to quit his surgical practice was voluntary because the only medical evidence was the opinion of Dr. Lucas that Martin's decision was premature and he should seek a second opinion if he could not return to surgery. On remand, the new chancellor found that the issue of Martin's disability from his hand condition had been litigated to conclusion at the hearing and that the only way Martin could claim a material change in circumstances concerning the hand condition was to prove a physical worsening resulting in disability. However, the Court of Appeals specifically stated that the evidence considered on remand could include a second opinion as to Martin's hand condition. Thus, the chancellor erroneously determined that res judicata foreclosed this medical evidence from consideration. While the matters of the extent of Martin's disability and his decision to quit practicing surgery were res judicata, Martin was permitted to show with his subsequent modification petition that, though his decision not to practice surgery was voluntary, surgical practice was no longer an option for him. Martin was not precluded from demonstrating that Dr. Meyer's new assessment of his hand condition was a material change in circumstances justifying a reduction in child support. Therefore, the case is remanded for the chancellor to further consider the issue of modification. Issue 2: Unclean hands The chancellor found that Martin came into court with unclean hands. Martin argues this finding was contradicted by the evidence. The clean hands doctrine prevents a complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in the transaction at issue. The purpose of the remand was for the chancellor to adjudicate the modification issue. No new modification petition was before the court and the proceedings on remand simply were a continuation of the April 2003 proceedings instigated by Martin's January 16, 2003 petition for modification. Accordingly, the chancellor manifestly erred by again finding that the modification issue was barred from consideration by the unclean hands doctrine. Issue 3: Contempt Martin argues that he was entitled to a modification of his child support obligations as of April 2003, and that the question of whether he was in contempt for non-payment of his obligations after April 2003 is contingent upon whether the appellate court finds he was entitled to modification at that time. The effective date of any modification granted on remand would have been the date of the judgment appealed from, which was May 19, 2003. But on remand, instead of reconsidering the modification issue based upon the evidence introduced in the prior proceedings, the chancellor heard new evidence pertaining to modification. That evidence was not before the court on May 19, 2003. Therefore, any modification granted based upon the new evidence could not be made retroactive to May 19, 2003. The court entered its judgment on February 14, 2006, after considering the new evidence. Therefore, the effective date of any modification granted on remand will be February 14, 2006, presuming the chancellor does not hear more evidence. The chancellor found Martin to be in contempt because he continued his standard of living without providing his children with the court-ordered funds. The chancellor noted that Martin had continued to buy houses while claiming inability to pay and had most recently bought a house located on a golf course. The court also found that Martin had willfully reduced his income in an effort to avoid his obligations to his children by leaving the Pathology Lab and accepting a lower-paying job at UMMC. The evidence cited by the chancellor substantially supported her finding that Martin did not show inability to pay. Issue 4: Attorney’s fees Martin argues that the court erred in awarding attorney's fees of $19,213.17 to Teresa, because he was not in contempt and because the statement of attorney's fees submitted by Teresa was insufficiently definite to enable the chancellor's determination of the reasonableness of the fees. The chancellor awarded attorney's fees based in part on Teresa's successful prosecution of her petition for citation of contempt. A spouse who successfully prosecutes a petition for citation of contempt is entitled to attorney's fees. The chancellor also awarded Teresa attorney's fees based on her inability to pay and the fact that she successfully defended Martin's petition for modification. Teresa was not entitled to attorney's fees for winning the modification action, but only if she was financially unable to pay her attorney. The record substantially supports the finding that Teresa was unable to pay her attorney. A vocational report admitted into evidence showed that her annual income for the year 2004 at that job was $16,005, with a $6,000 mileage reimbursement. There was no evidence that she had any other assets from which to pay her attorney. Teresa testified that she could not pay her attorney and had depleted her personal resources by using them to support the children and to pay the $2510 per month house note because of Martin's continual failure to pay the sums ordered by the court. Teresa submitted an itemized statement of her attorney's time and work performed to the quarter-hour, and the chancellor was within her discretion in relying on this statement in awarding attorney's fees. Teresa requests that the Court award her attorney's fees for defending the appeal in an amount equal to one-half of what was awarded by the chancery court. One-half of the $19,213.17 awarded below, or $9,606.59, is excessive for handling this appeal, and Teresa has submitted no evidence of the amounts actually expended. Moreover, Teresa is not fully successful in this appeal because the case is being remanding for reconsideration of the modification issue. For these reasons, Teresa’s request for attorney's fees on appeal is denied. |
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