Dupre v. Dupre
| Docket Number: | 2010-CA-00496-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 09-27-2011 Opinion Author: Griffis, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contempt - Insurance settlement - Child support - Termination of alimony Judge(s) Concurring: Lee, C.J., Irving, P.J., Myers, Barnes, Roberts, Carlton and Maxwell, JJ., concur. Ishee and Russell, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 02-12-2010 Appealed from: Jackson County Chancery Court Judge: G. Charles Bordis, IV Disposition: FOUND LANCE IN WILLFUL CONTEMPT OF COURT FOR FAILURE TO PAY CHILD SUPPORT, ORDERED HIM INCARCERATED FOR NINETY DAYS, TERMINATED FUTURE ALIMONY OBLIGATIONS, DETERMINED AMOUNT OF PAST-DUE AND OWING ALIMONY AND CHILD SUPPORT, AND SET TERMS FOR PAYMENT OF SAME Case Number: 2004-0909CB |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Lance Ericson Dupre |
CALVIN D. TAYLOR |
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| Appellee: | Pamela Denise Dupre | WILLIAM MICHAEL KULICK | ||
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 - Insurance settlement - Child support - Termination of alimony |
| Summary of the Facts: | Lance and Pamela Dupre were divorced in 2004. They entered into an agreement on the issues of child custody, child support, alimony, and property division. Pamela was awarded full custody of the couple’s child. Lance was to pay $1,000 a month in child support and $200 per month in permanent alimony. He also had to make the car payments on Pamela’s 2003 Chevrolet Malibu until the loan was paid off. The marital home was awarded to Lance, but Pamela could continue to live in it for six months. In August 2005, Hurricane Katrina hit Pascagoula and rendered the marital home unliveable. Pamela and her son moved in with Pamela’s boyfriend. One year later, the son, who was sixteen-years old at the time, moved back into the dilapidated house in Pascagoula by himself. Lance provided him with a stove and refrigerator and paid the mortgage and utility bills. Pamela provided him with a window-unit air conditioner, made frequent trips to Pascagoula to check on him, and gave him cash for various expenses. After the son graduated from high school, Lance quit making the mortgage payments, and the house went into foreclosure. Following the divorce, Lance did not abide by the terms of the divorce decree. Specifically, he did not pay the $1,000 a month in child support. He did not pay the $200 a month in alimony. And he did not make the car payments on the Malibu. Pamela filed a petition for contempt based on Lance’s noncompliance with the divorce decree. Lance answered the petition and counterclaimed for, among other things, termination of his alimony obligation. The chancery court found Lance in willful contempt of court, ordered his incarceration for ninety days, terminated future alimony obligations, determined the amount of past-due and owing child support and alimony, and set terms for repayment. Lance appeals. |
| Summary of Opinion Analysis: | Issue 1: Insurance settlement According to Pamela, Lance was injured at a hotel when a framed painting or picture fell on him. He eventually settled with the hotel’s liability insurer for $6,720.75. He gave Pamela the settlement check. Pamela testified that she used the check to pay off a large part of the debt on the Malibu. The chancellor found that because Lance had given Pamela the settlement check and that she had used the check to pay off the debt on the car, Lance was not in contempt on this issue. Lance now argues that the chancellor did not give him credit for the settlement check but makes no effort to explain why the chancellor’s application of the check to the debt on the Malibu was improper. Thus, this issue is without merit. Issue 2: Child support The chancellor determined that $62,000 in unpaid child support had vested. He subtracted from that amount various contributions to the care of the couple’s son that Lance had made over the years. After making those deductions, the chancellor determined that Lance owed Pamela $30,701.96 in past-due child support. Lance argues that his son was emancipated when, at the age of sixteen, he returned to the Pascagoula house to live by himself. Lance argues that his child-support obligation ceased at that time. However, Lance did not plead this issue or present it to the chancellor for a decision. Therefore, this issue is procedurally barred. Issue 3: Termination of alimony The chancellor determined that Lance’s obligation ceased on the date he filed his counterclaim that sought termination of alimony – January 23, 2007. As a result, the chancellor determined that $5,800 in unpaid alimony had accrued and vested between the entry of the divorce decree and January 23, 2007. Lance argues that his obligation ceased on the date Pamela moved in with her boyfriend. That exact date is unclear, but it was sometime in September 2005. Cohabitation by the payee spouse creates a presumption that a material change in circumstances has occurred justifying termination of alimony. The payee spouse then bears the burden to prove no mutual support between cohabitants. With regard to past alimony, the general rule is that permanent alimony payments vest when due and cannot be modified. This general rule has been qualified to give chancellors discretion to modify retroactively back to the date the petition to terminate or modify the alimony was filed. That is exactly what the chancellor did in this case. |
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