Carroll v. Carroll


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Docket Number: 2005-CA-01770-COA
Linked Case(s): 2005-CA-01770-COA ; 2005-CT-01770-SCT

Court of Appeals: Opinion Link
Opinion Date: 05-01-2007
Opinion Author: ISHEE, J.
Holding: Affirmed in Part, Reversed and Remanded in Part

Additional Case Information: Topic: Divorce: Adultery - M.R.C.P. 81 summons - M.R.C.P. 5(b) - Withdrawal of attorney - Alimony - Child support - Attorney’s fees - Inability to pay
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ROBERTS AND CARLTON, JJ.
Concurs in Result Only: GRIFFIS, J.
Procedural History: Jury Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 02-01-2005
Appealed from: MONROE COUNTY CHANCERY COURT
Judge: Talmadge Littlejohn
Disposition: DIVORCE DECREE ENTERED.
Case Number: 2003-490-48-L

  Party Name: Attorney Name:  
Appellant: ROGER A. CARROLL




JOY B. WOLFE JOHN F. PERRY



 

Appellee: ANNA F. CARROLL CARTER DOBBS  

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Topic: Divorce: Adultery - M.R.C.P. 81 summons - M.R.C.P. 5(b) - Withdrawal of attorney - Alimony - Child support - Attorney’s fees - Inability to pay

Summary of the Facts: Anna Carroll was granted a divorce from Roger Carroll on the ground of adultery. The chancellor awarded Anna the use and possession of the marital home, ordered Roger to pay off two mortgages on the home, awarded Anna one-half of the proceeds of Roger’s sand and gravel business, awarded Anna a 2001 Nissan Xterra after determining it had been a gift from Roger to her, ordered Roger to pay alimony of $4,000 per month, ordered Roger to pay child support of $500 per month, and ordered Roger to pay Anna’s attorney’s fees of $42,890. Roger appeals.

Summary of Opinion Analysis: Issue 1: Rule 81 summons On January 26, 2004, an agreed temporary order was entered providing for, inter alia, temporary alimony and child support. On February 23, 2004, Anna filed a motion for contempt. The record is replete with more motions and orders setting, and then continuing, the contempt matter. On December 1, 2004, the contempt matter was set for hearing, but on that day, Roger’s second attorney announced in open court that he felt he had an ethical conflict in representing Roger. While Roger did not attend the December 1, 2004 hearing, he later testified he had actual knowledge that the hearing was set for that date. The chancery court continued the contempt matter to December 14, 2004. A motion to withdraw was filed on December 2, 2004, and notice was mailed to Roger that same day. After repeated attempts at personal service, including telephone calls between the attorney and Roger, personal service of the motion to withdraw was completed upon Roger on December 13, 2004. Further, while personal service of the motion to withdraw was completed, Roger successfully avoided personal service by the Monroe County Sheriff’s Department of notice of the resetting of the contempt motion for December 14, 2004. The sheriff’s department did, however, inform him of that date by telephone. On December 14, 2004, Roger’s counsel appeared in chancery court, and the court granted leave to withdraw. Roger did not make an appearance. Following Anna’s December 14 presentation of evidence, the chancery court entered orders finding Roger in contempt for failing to comply with discovery by not answering a second set of interrogatories and for failure to pay, inter alia, temporary support and house payments. Roger argues that this order was improper, because a M.R.C.P. 81 summons had not issued concerning this hearing. At the December 14 hearing the chancellor also set February 1, 2005 as the date for a trial on the merits. Roger also argues there was error in failing to issue a M.R.C.P. 81 summons for that date as well. A summons under M.R.C.P. 81 serves to provide due process and notify a party of a new dispute. Where there has been no final judgment upon a complaint for divorce, M.R.C.P. 5(b) notice is all that is required for setting a hearing in the process for reaching the final judgment. Moreover, the entry of an appearance in a proceeding where M.R.C.P. 81 notice has not been given serves to waive any error. Therefore, a M.R.C.P. 81 summons was not necessary for the December 14, 2004 hearing on whether Roger was in contempt for failing to comply with the agreed temporary order for support. Further, Roger’s attorney’s appearance at the December 1, 2004 hearing waived any error. Issue 2: Withdrawal of attorney Roger argues that the chancellor erred in allowing his second attorney to withdraw six weeks prior to the trial, and that this error prejudiced him by forcing him to proceed pro se. Two weeks’ notice of an attorney’s withdrawal has been held to be sufficient to allow a party opportunity to retain new counsel. In this case, Roger had, at a minimum, four weeks notice of his second attorney’s withdrawal. Issue 3: Alimony Roger argues that there was no valuation of the marital assets. The record discloses that the assets found to be marital property were valued by the parties’s discovery disclosures and testimony. The record does not disclose the exact amount Roger has paid to Anna since the chancellor entered the final decree, but it appears to be in excess of $50,000, and additionally it appears he has paid-off at least one of the two mortgages on the marital home, which the chancellor awarded to Anna. However, the chancellor stated that the alimony will continue until a subsequent order of the chancery court decrees otherwise. Therefore, the award resembles an award of permanent alimony. The record does not show that the chancellor’s ruling was calculated to eliminate Anna’s need for periodic alimony and eliminate future frictional contact between the parties. It also does not show whether Roger has transferred the marital property as ordered. Neither the bench opinion nor the final decree granting the divorce indicates that the chancellor considered the Armstrong factors for awarding periodic alimony. Therefore, the case is reversed and remanded for a determination of whether permanent periodic alimony is justified. From the record it is impossible to see why Anna would need $4,000 per month in periodic alimony under an Armstrong analysis, unless the award was meant as an equitable distribution. Issue 4: Child support Roger was ordered to pay $500 per month in child support. The record indicates that he did so and that the minor child is now emancipated. This issue is moot. Issue 5: Attorney’s fees At the time the chancellor made the award of some $42,890 in attorney’s fees, Anna had no income, and Roger was refusing to pay the agreed temporary alimony unless it was extracted by incarceration. Moreover, the chancellor’s bench opinion lists with detail how he arrived at this figure. If Roger had complied with discovery and avoided multiple motions for contempt, and the setting and resetting of hearings on these motions, along with necessitating Anna’s attorney to attend the hearings, the figure would be much lower. Given the egregious facts of this case, the award is not an abuse of discretion. Issue 6: Inability to pay The facts of this case indicate Roger had, shortly before trial, over $500,000 in his personal possession, a working farm, a helicopter, and a mistress with whom he continued to live and financially support after the divorce. The chancellor was not manifestly wrong or clearly erroneous in his decision to award the support.


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