Zweber v. Zweber


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Docket Number: 2010-CA-01629-COA
Linked Case(s): 2010-CA-01629-COA ; 2010-CT-01629-SCT ; 2010-CT-01629-SCT

Court of Appeals: Opinion Link
Opinion Date: 02-14-2012
Opinion Author: Griffis, P.J.
Holding: Affirmed

Additional Case Information: Topic: Contempt - College expenses - Attorney’s fees - M.R.C.P. 37(a)(4) - Appellate attorney's fees
Judge(s) Concurring: Barnes, Roberts, Maxwell and Russell, JJ.
Non Participating Judge(s): Fair, J.
Concurs in Result Only: Carlton, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 07-30-2010
Appealed from: DeSoto County Chancery Court
Judge: Mitchell M. Lundy, Jr.
Disposition: HELD TERESA ZWEBER IN CONTEMPT FOR FAILURE TO PAY $5,573.33 IN COLLEGE EXPENSES; AWARDED CHARLES ZWEBER $3,000 IN ATTORNEY’S FEES
Case Number: 05-08-1247

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Teresa De Jesus Zweber




JERRY WESLEY HISAW



 
  • Appellant #1 Brief
  • Supplemental Brief
  • Appellant #1 Reply Brief

  • Appellee: Everett Charles Zweber ADAM A. PITTMAN  

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    Topic: Contempt - College expenses - Attorney’s fees - M.R.C.P. 37(a)(4) - Appellate attorney's fees

    Summary of the Facts: In 2006, Teresa and Charles Zweber agreed to a divorce on the ground of irreconcilable differences. They asked the chancellor to resolve the issues of child custody, child support, property division, alimony, and attorney’s fees. The chancellor appointed a special master to preside over the matter. The special master then heard and decided the issues presented, the final terms of which were approved as to form by the parties’ attorneys, approved by the chancellor, and incorporated into the parties’ divorce judgment. Pursuant to the judgment, the parties received joint legal custody of their two children. Teresa was awarded primary physical custody of their son, and Charles was awarded primary physical custody of their daughter. Teresa was ordered to pay Charles $176.62 per month in child support, which represented “14%” of Teresa’s adjusted gross income; Charles was ordered to pay Teresa $539.43 per month in child support, which represented “14%” of Charles’s adjusted gross income. The chancellor also offset the amounts owed, and Charles’s monthly child-support payments were reduced to $362.81 with Teresa’s child support payments postponed until the son reached emancipation or the chancery court ordered otherwise. In 2009, Charles filed a motion for contempt and modification of the divorce judgment. Teresa filed an answer and a counter-motion for contempt. Teresa was found to be in contempt of court for her failure to pay the college expenses of her daughter. The chancellor denied Charles’ request to modify child support and awarded Charles legal fees in the sum of $1,000.00 for the motion to compel and $2,000 for Teresa’s contempt. Teresa appeals.

    Summary of Opinion Analysis: Issue 1: College expenses Teresa argues that the chancellor erred in his interpretation of the divorce judgment’s provision on the payment of college expenses. This issue is whether the daughter’s expenses for “flight lessons” are included in the definition of college expenses. The daughter’s enrollment in the commercial aviation program at Delta State required her to obtain flying lessons. The cost of her college education was not simply limited to meals, tuition, books, and room. Thus, the cost of her flying lessons, which were required by the university, were reasonable and necessary college expenses. Issue 2: Contempt Teresa argues that the chancellor’s finding of contempt was not appropriate because there was no willful violation of the court’s order. On cross-appeal, Charles argues that the chancellor abused his discretion by awarding only a portion of the attorney’s fees incurred. Based on the previous issue, there was substantial evidence to support the chancellor’s decision to hold Teresa in contempt. However, the chancellor did not abuse his discretion in awarding only $2,000 in attorney’s fees. Teresa also argues that the chancellor erred in not holding Charles in contempt, because Charles admitted he did not pay Teresa for amounts due on their son’s college expenses. The chancellor appears to have made the proper financial calculations and rendered a judgment based on the proper amounts owed after considering an offset. Teresa has not presented any authority that would lead the Court to find the chancellor abused his discretion in offsetting amounts owed between the parties. Issue 3: Attorney’s fees Teresa argues that the chancellor erred in awarding Charles $1,000 for his attorney’s fees incurred in bringing a motion to compel against Teresa to compel her production of credit card statements. The wording of M.R.C.P. 37(a)(4) makes the award of attorney’s fees mandatory. Therefore, the chancellor did not abuse his discretion here in the award of such sanctions. Issue 4: Appellate attorney’s fees Charles asked for an award of attorney’s fees in connection with this appeal. Generally, attorney’s fees on appeal are awarded in the amount of one-half of what was awarded in the lower court. Therefore, Charles is awarded $1,000.


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