Gary v. Gary


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Docket Number: 2010-CA-02057-COA
Court of Appeals: Opinion Link
Opinion Date: 03-27-2012
Opinion Author: Maxwell, J.
Holding: Affirmed
Additional Case Information: Topic: Contempt - Motion to reconsider - M.R.C.P. 59 - Consent decree - Amended divorce decree
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts and Fair, JJ.
Dissenting Author : Carlton, J.
Concurs in Result Only: Russell, J., concurs in result only without separate written opinion
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS
Trial Court: Date of Trial Judgment: 11-15-2010
Appealed from: DeSoto County Chancery Court
Judge: Vicki Cobb
Disposition: APPELLANT FOUND IN CONTEMPT AND ORDERED TO PAY $35,938 IN CASH AND $2,500 IN ATTORNEY’S FEES
Case Number: 07-09-1888
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Michael Gary, Sr.




 JAMES D. MINOR SR.



  
  • Appellant #1 Brief
    		•
    Appellee: Wanda Woods Gary PRO SE  
    Synopsis provided by:

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    Topic: Contempt - Motion to reconsider - M.R.C.P. 59 - Consent decree - Amended divorce decree
    Summary of the Facts: Michael Gary Sr. and Wanda Woods Gary’s original divorce decree ordered Michael to transfer $35,938 in retirement funds to Wanda through a Qualified Domestic Relations Order. Before the transfer but after he lost his job, Michael moved his retirement funds to an individual retirement account. Learning Michael’s 401(k) and pension had no money, Wanda moved for contempt, which resulted in a consent decree that ordered Michael to pay Wanda $35,938 “at his own expense.” But Michael did not pay, arguing he should be able to transfer money from his IRA using a QDRO. The chancellor found Michael in contempt for not complying and ordered him to pay Wanda $35,938 in cash and $2,500 in attorney’s fees. Michael appeals.
    Summary of Opinion Analysis: Because Michael filed his motion to reconsider five days before the November 29, 2010 entry of the nunc pro tunc order, his motion for reconsideration is considered to be a motion for new hearing or, alternatively, to amend or alter the judgment under M.R.C.P. 59. The consent decree clearly ordered Michael to pay Wanda $35,938 at his own expense. Michael argues that he should be permitted to pay Wanda through a QDRO because to award Wanda otherwise would violate the intent of the original divorce decree. Because the funds were no longer in the DHL 401(k) and pension fund, both parties acknowledged it was impossible to comply with the original decree. So a new consent decree was entered on March 3, 2010. The chancellor rightly found this later decree “changed the character” of the award. The original divorce decree was no longer the law of the case—the consent decree and resulting amended divorce decree now controlled. The consent decree ordered Michael to withdraw $35,938 “at his own expense” and made no reference to a QDRO. The later-filed amended divorce decree also awarded Wanda $35,938.00 “to be transferred from the IRA assets” also without mentioning a QDRO. Michael entered into a consent decree in March 2010 in which he was ordered to withdraw $35,938 immediately and at his own expense but then refused to do so, requiring Wanda to reassert her motion for contempt. Based on these facts, the chancellor did not manifestly err in finding Wanda met her burden to show civil contempt.


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