Hester v. Samples
| Docket Number: | 2010-CA-00582-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-11-2011 Opinion Author: Ishee, J. Holding: Affirmed. |
|
| Additional Case Information: |
Topic: Contempt - Motion for reconsideration - M.R.C.P. 60(b)(3) - M.R.C.P. 59(b) - Newly discovered evidence - Credit for child support payments - Attorney’s fees - M.R.A.P. 36 Judge(s) Concurring: Lee, C.J., Myers, Barnes, Roberts, Carlton and Russell, JJ. Concurs in Result Only: Irving and Griffis, P.JJ., and Maxwell, J., without separate written opinion Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
|
| Trial Court: |
Date of Trial Judgment: 11-20-2009 Appealed from: Newton County Chancery Court Judge: H. David Clark Disposition: DENIED RECONSIDERATION OF PRIOR JUDGMENT AGAINST HESTER FOR PASTDUE CHILD SUPPORT AND ATTORNEYS’ FEES Case Number: 14851 |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Percy D. Hester, Sr. |
JULIE ANN EPPS
E. MICHAEL MARKS |
|
|
| Appellee: | Sundra Samples | DONALD W. BOYKIN | ||
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. |
|
| Topic: | Contempt - Motion for reconsideration - M.R.C.P. 60(b)(3) - M.R.C.P. 59(b) - Newly discovered evidence - Credit for child support payments - Attorney’s fees - M.R.A.P. 36 |
| Summary of the Facts: | Percy Hester Sr. and Sundra Hester Samples were granted an irreconcilable differences divorce. The chancery court approved the couple’s property-settlement and child-custody agreement, which gave Samples primary legal and physical custody of the couple’s daughter, and Hester agreed to pay $200 a month in child support, along with certain medical expenses, half of the educational expenses, and health insurance for the daughter. After the divorce, Samples moved to Texas and remarried. When Samples and her daughter began having disagreements in 2004, Samples kicked her daughter out of her home and requested that Hester come to get her. Instead of moving to Mississippi, the daughter stayed in Texas and lived with her friend and friend’s mother from November 2004 until May or June 2005. During that time, Hester claims he made child support payments directly to his daughter for rent and for other living expenses. The daughter lived with Hester in Mississippi throughout the summer of 2005, but she moved back in with her mother in Texas once school resumed. After an argument with her stepfather in October 2005, the daughter moved into her own apartment in Texas. Hester claims that he made child-support payments in the form of rent directly to the daughter’s landlord through the end of July 2006 when she moved back to Mississippi to live with Hester and attend college. Around September 2007, Samples sought assistance from the Texas Attorney General’s Office to obtain past-due child-support payments she claimed she was owed. The case was subsequently referred to the Mississippi Department of Human Service and then to the Newton County Department of Human Services. DHS filed a contempt action in the chancery court on behalf of Samples, claiming that Samples had received services under Title IV-D of the Social Security Act; therefore, DHS was authorized to bring suit to collect the past-due child support payments from Hester. The complaint alleged Hester was in arrears of $18,850 for the nonpayment of child support from May 5, 1992, to June 30, 2008. Eventually, the chancellor allowed DHS to withdraw its suit on behalf of Samples, and he allowed Samples to refile a contempt petition in her own name against Hester. In her complaint, Samples initiated the same request to recoup the past-due child support, claiming Hester had not paid any child support since the initial court order in 1992, owing her over $29,000. She also asserted that Hester owed $510 in medical and insurance co-pay costs; $2,171 in dental costs; $3,200 in pre-K and kindergarten costs; $5,607.56 in health-insurance costs; and owed her attorneys’ fees. The chancery court held Hester in contempt for his willful failure and refusal to pay child support in the sum of $23,761 for the period of May 1, 1992, through December 31, 2006. The chancellor ruled that Hester had failed to pay any child support from May 1992 through December 2004. However, because the daughter had failed out of college, the chancellor ordered that she was deemed emancipated in December 2006. Therefore, Hester was only responsible for child-support payments from May 1992 through December 2006. The order also stated that Hester must pay $2,500 for Samples’s attorneys’ fees and pay the court costs associated with the case, plus interest. The chancellor credited Hester for payments he claimed to have made in 2004, and for the time the daughter lived with him in 2006, but not for payments he made directly to the daughter while she lived with her friend from December 2004 to May 2005. Hester appeals. |
| Summary of Opinion Analysis: | Issue 1: Motion for reconsideration Hester filed a motion for reconsideration of the final judgment. Hester had received a fax from the former attorney for DHS, which included an affidavit from the Texas Attorney General’s Office. The affidavit, signed by Samples in 2007, appeared to contradict her previous testimony that Hester did not pay child support from 1992 through 2005. Hester argues that his motion for reconsideration should have been granted because the chancery court erred by deeming Samples’s Texas affidavit inadmissible as not being newly discovered evidence and lacking the accuracy customary to Mississippi proceedings. Pursuant to M.R.C.P. 60(b)(3), relief from a judgment or order may be granted based on newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under M.R.C.P. 59(b). The party seeking a motion for a new trial must file not later than ten days after the entry of judgment. The ten-day deadline also applies to motions to alter or amend judgments. A motion based upon newly discovered evidence may not be granted unless it can be shown that the evidence was discovered following the trial; due diligence on the part of the movant to discover the new evidence is shown or may be inferred; the evidence is material and not cumulative or impeaching; and the evidence is such that a new trial would probably produce a new result. Hester admitted at trial that he knew about the Texas affidavit well before the trial commenced. Yet Hester never filed a subpoena to the Mississippi DHS, Newton County DHS, or the Texas Attorney General’s Office to obtain the document. Moreover, the majority of Hester’s arguments concern misrepresentations he alleges were made by the Newton County DHS attorney involved in the initial action. But he neglected to subpoena the attorney to testify at the hearing on the motion for reconsideration. Thus, the Texas affidavit cannot be shown to be newly discovered evidence. Also, Hester fails to establish that the Texas affidavit is material and that its admission at trial would have produced a different result. Issue 2: Credit Hester argues that the chancellor failed to give him full credit for payments made for his daughter’s rent and living expenses while she was living on her own, as well as failure to give him credit for money he paid for her college tuition. Hester did not raise the issues of the chancellor’s failing to give him credit for these payments in his motion for reconsideration. Therefore, he is procedurally barred from raising these claims now on appeal. Issue 3: Attorney’s fees Hester argues that the Court should remand this case to the chancery court for the imposition of sanctions in the form of attorneys’ fees and costs against Samples and her attorney. Hester cites generally to M.R.A.P. 36. Rule 36(a) states in pertinent part that if a case is reversed on appeal, the appellee shall pay the costs associated with the appeal, unless the court orders otherwise. Because there is no reversible error in this case, Hester’s request is moot. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
