Decisions – MSSC – 1/25/18

Larry D. Christmas, Jr. v. State of Mississippi timeliness of appeal from county court –  In December  2015, Christmas was found guilty in county court of failing to have proof of liability insurance (he won the charge of making an improper turn).  The final judgment was entered January 13, 2016.  On February 12, 2016, Christmas mailed a notice of appeal and a $166 money order to the Harrison County Circuit Clerk. Due to President’s Day being the following Monday, the post office did not deliver the mailing until Tuesday, February 16, 2016. Christmas’s notice was stamped filed on February 17—five days the 30 days for filing an appeal had passed. The circuit court asked Christmas to show cause as to why the appeal should not be dismissed.  Christmas argued that it was timely because it was filed on February 12—the date he mailed it. The circuit court dismissed the appeal. Christmas appealed and the COA affirms. “The circuit court dismissed Christmas’s appeal as untimely. Because the motion to vacate was not filed within ten days of the final judgment, it had not tolled the thirty-day time period to file an appeal. See M.R.A.P. 4(e); URCCC 10.05. Thus, Christmas had until February 12, 2016, to file—not mail, but file—his notice of appeal.”

Deveaux Carter v. Allen Davisattorneys fees on contempt – Deveaux and Allen were divorced in 1993.  They agreed Deveaux would have custody of the two children.  In 1998, they agreed to child support of $400 a month and Allen was to pay an arrearage of over $22,000. In 2013, Devaux filed a motion for contempt claiming that Allen was in arrears for back child support of over $23,000, interest of over $35,000, $88,000 in college expenses, $12,000 in medical expenses, etc.  At trial, the court credited Allen with payments made by his mother to the tune of $197,911.  That left $3,276.66 owed by Allen along with $7500 in attorneys fees.  Deveaux appealed arguing that Allen should not be given credit for payments made by his mother.  However, the mother testified she would not have made those payments if Allen had been able to.  She also argues that Allen should not have been given credit for direct payments he made to his daughters.  The COA finds no error.  Allen cross appeals arguing that he was not in willful contempt. The COA agrees and finds that Allen should not have been ordered to pay Deveaux’s attorneys fees.  Devaux filed a cert petition. The Miss.S.Ct. granted cert on the issue of whether the COA was correct to reverse on attorneys fees. The Miss.S.Ct holds that the trial court’s order awarding attorneys fees to Dedeaux should have been affirmed.

The chancellor did not have to find Davis in willful contempt to award her attorney’s
fees. Instead, we have long held that, when there has been a default in child support, the party seeking to enforce the decree is entitled to attorney’s fees, even when nonpayment was not due to willful contempt. Mizell v. Mizell, 708 So. 2d 55, 65 (Miss. 1998); Moore v. Moore, 372 So. 2d 270, 272 (Miss. 1979), overruled on other grounds by Dep’t of Human Servs., State of Miss. v. Fillingane, 761 So. 2d 869, 871 (Miss. 2000); Pearson v. Hatcher, 279 So. 2d 654, 656 (Miss. 1973). “Otherwise, the responsibility of support would be reduced by the amount the party seeking to enforce the decree would be required to pay an attorney to enforce the decree.” Moore, 372 So. 2d at 272 (citing Pearson, 279 So. 2d at 656).

 

 

 

Carl Smith v. Lisa Doeattempt to set aside divorce settlement agreement – Carl Smith and Lisa Doe divorced in February 2010.  The divorce decree incorporated a property-settlement agreement that was very favorable to Lisa. This fact was  acknowledged by Carl in the settlement agreement.  Apparently Carl had been caught engaging in all sorts of sexual activities with same sex partners and there were allegations of pedophilia (the names of the parties have been changed to hide their identity). Two and a half years  later he filed a motion to modify the agreement or set it aside. After five days’ of testimony, the chancellor denied relief finding that the 60(b) motion was not filed promptly and the terms were not unconscionable.  Carl Smith appealed. The Miss.S.Ct. affirms. As for the promptness, that was a call for the chancellor to make and he did not abuse his discretion in finding that it was not prompt. “[W]e also see no error in the
chancellor’s finding Carl was not overly browbeaten or otherwise coerced into signing a
procedurally or substantively unconscionable agreement.”

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