Kelley v. Day


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Docket Number: 2005-CA-01029-COA

Court of Appeals: Opinion Link
Opinion Date: 09-18-2007
Opinion Author: MYERS, P.J.
Holding: Affirmed

Additional Case Information: Topic: Child support - Retroactive support - Section 93-9-49 - Section 93-9-11 - Credit for support - Contempt - Attorney’s fees - Modification of support - Recusal of judge
Judge(s) Concurring: KING, C.J., CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ.
Dissenting Author : IRVING, J.
Dissent Joined By : LEE, P.J. AND BARNES, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 04-22-2005
Appealed from: Harrison County Chancery Court
Judge: Sanford R. Steckler
Disposition: MOTION TO MODIFY CHILD SUPPORT DENIED; APPELLANT FOUND IN CONTEMPT
Case Number: 04-00912-3
  Consolidated: CONSOLIDATED WITH NO. 2006-CA-00522-COA: EDWARD BRUCE KELLEY, APPELLANT v. JULIE ANN DAY, APPELLEE

  Party Name: Attorney Name:  
Appellant: EDWARD BRUCE KELLEY




WILLIAM W. DREHER



 

Appellee: JULIE ANN DAY DAMON SCOTT GIBSON  

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Topic: Child support - Retroactive support - Section 93-9-49 - Section 93-9-11 - Credit for support - Contempt - Attorney’s fees - Modification of support - Recusal of judge

Summary of the Facts: Edward Kelley and Julie Day are the parents of a minor child conceived out of wedlock. When the child was approximately two and one-half years of age, Day filed a complaint seeking to establish paternity and to determine child custody and child support. The court ordered temporary child support payments; however, Kelley failed to make any payments. Day moved to have Kelley found in contempt and sought an award of attorney’s fees. The chancellor found Kelley in contempt. A new order was entered adjudicating paternity, ordering support and continuing the finding of contempt. Kelley satisfied his child support arrearage until he appealed the judgment. While awaiting adjudication of his appeal, Kelley again discontinued paying his child support obligations and filed a motion in the chancery court for downward modification. Day filed another complaint for contempt which was granted. Kelley appeals both judgments.

Summary of Opinion Analysis: Issue 1: Retroactive support In formulating the temporary order for child support, the chancellor retroactively awarded support from one year prior to the date that Day filed the paternity and child support complaint against Kelley. Kelley argues that the chancellor erred in backdating the order of child support, because he and Day had contractually agreed upon a child support arrangement prior to Day’s filing the complaint in the chancery court. Section 93-9-49 provides that an agreement of settlement with the alleged father is binding only when approved by the court. Therefore, a contract between the mother and an alleged father of an illegitimate child cannot, without judicial scrutiny and approval, preclude future paternity proceedings for purposes of child support. Moreover, a chancellor has the authority under section 93-9-11 to retroactively award child support one year before the filing of paternity action. Issue 2: Credit for support Kelley argues that the chancellor erred in failing to give him credit for child support paid prior to Day’s filing of the complaint. A chancellor has the authority to give a parent credit for his previous child support contributions made. But, the authority to credit a parent for sums paid prior to the effective date of the order is limited to the same amount of time the order effectively extends. Thus, the chancellor did not err in failing to give Kelley credit for sums of child support paid prior to the date to which the child support order extends. Kelley also argues that the chancellor failed to take his reduction in income into consideration when determining his child support obligation. Because this issue of downward modification due to Kelley’s reduction in income was never brought before the chancellor, the chancellor will not be found in error. Issue 3: Contempt Kelley argues that the chancellor erred in finding him in contempt and in ordering him to pay Day’s attorney’s fees. A prima facie case of contempt has been established when the party entitled to receive support introduces evidence that the party required to pay the support has failed to do so. In this case, the undisputed evidence presented a prima facie case of contempt. Further, the award of attorney’s fees is statutorily automatic under section 93-9-45 in a paternity action where an order of filiation is entered. However, precedent dictates that the awarded attorney’s fees in a filiation case must be reasonable. Because the record reflected that Day provided an attorney billing invoice reflecting amassed attorney’s fees in an amount more than $4,000, the award of attorney’s fees was reasonable. With regard to the second contempt judgment, the facts under which the chancellor held Kelley in contempt are sufficient to support his decision on appeal. Evidence adduced at the contempt hearing demonstrated that Kelley accumulated a significant amount of cash, from which he could have paid his child support obligations. Issue 4: Modification of support The chancellor found that because Kelley requested modification with unclean hands, he could not receive a modification of his child support obligations. Kelley argues that downward modification was warranted because, since the order, he suffered a heart attack and subsequently became unemployed and financially constrained, receiving only limited income in the form of Social Security disability payments. The clean hands doctrine prevents a parent from receiving a modification of child support order when that parent is guilty of willful contempt of the order mandating the support. During the hearing on the matter, Kelley admitted that during the time period he failed to pay child support, he received cash in excess of $52,692, compiled from the sale of his house, unemployment benefits, and from the withdrawal of funds from his investment account. Thus, there is no error in the chancellor’s holding that Kelley had unclean hands, thus barring him from receiving the requested modification of his child support obligations. Issue 5: Recusal of judge Kelley submitted a motion for the chancellor to recuse himself, which was denied. Kelley cites to the judge’s action in ordering Kelley out of the courtroom, the judge’s statements made during a hearing, and the judge’s various rulings in support of his position that recusal was warranted. None of the actions of the chancellor of which Kelley complains demonstrates any prejudice on the part of the chancellor toward Kelley.


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