Leslie B. Shumake, Jr. v. Katarina Sitton Shumake , 233 So. 3d 234 ( 2017 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-CA-01622-SCT
LESLIE B. SHUMAKE, JR.
v.
KATARINA SITTON SHUMAKE
DATE OF JUDGMENT: 10/15/2015
TRIAL JUDGE: HON. ROBERT L. LANCASTER
TRIAL COURT ATTORNEYS: SABRINA D. HOWELL
L. C. JAMES
DANNA ALBERT O’BRIEN
A. E. (RUSTY) HARLOW, JR.
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: LESLIE B. SHUMAKE, JR. (PRO SE)
A. E. (RUSTY) HARLOW, JR.
ATTORNEY FOR APPELLEE: T. JACKSON LYONS
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART, REVERSED IN PART
AND REMANDED - 05/25/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE DICKINSON, P.J., KITCHENS AND COLEMAN, JJ.
KITCHENS, JUSTICE, FOR THE COURT:
¶1. Leslie Shumake appeals the judgment of the Chancery Court of DeSoto County that
found him in contempt for failure to pay his alimony obligations, denied his motion to modify
alimony, and placed an equitable lien on his law practice to secure the payment of future
alimony. Mr. Shumake argues that the chancellor erred by imposing the equitable lien,
abused his discretion by failing to grant the motion to modify alimony, erred by rejecting his
inability-to-pay defense to the contempt action, erred in the award of attorney fees, and erred
by awarding Ms. Shumake the unpaid balance of the arrearage on the parties’ former first
mortgage.
¶2. We affirm on all issues except the chancellor’s award of attorney fees for Ms.
Shumake’s successful contempt action. We reverse the attorney fee award and remand for
the chancellor to subtract the fees attributable to Ms. Shumake’s defense of Mr. Shumake’s
modification action.
FACTS
¶3. The parties were divorced by a final judgment entered on February 20, 2009.
Shumake v. Shumake, 156 So. 3d 900, 902 (Miss. Ct. App. 2013). The chancellor ordered
Mr. Shumake to pay Ms. Shumake permanent periodic alimony in the amount of $5,750 per
month. Id. On March 12, 2009, Ms. Shumake filed a complaint for citation of contempt,
arguing that Mr. Shumake had failed to pay the amount of alimony ordered. Id. Mr. Shumake
answered, counterclaimed for contempt, and filed a complaint for modification, arguing that
his bankruptcy filing was a material change in circumstances. Id.
¶4. After several hearings and various orders, on April 12, 2012, the chancellor ordered
Mr. Shumake to pay his former wife $3,250 per month until the completion of his Chapter
13 bankruptcy payments. Id. After completion of the bankruptcy payments, Mr. Shumake’s
periodic alimony payments would be raised to $4,225 per month. Id. The chancellor noted
that, because the bankruptcy payments were approximately $4,000 per month, Mr. Shumake
would have an additional $4,000 available to meet his alimony obligations once his
bankruptcy payments concluded. The chancellor also found Mr. Shumake in arrears in his
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alimony payments in the amount of $58,550, and ordered him to pay an additional $1,500 per
month, following the completion of his bankruptcy payments, until he had fully paid the
arrearage. Id.
¶5. Mr. Shumake appealed from the order of April 12, 2012, and this Court assigned his
appeal to the Court of Appeals. The Court of Appeals reversed and rendered the chancery
court’s order for Mr. Shumake to pay the $58,550 arrearage. Id. at 905. This Court granted
Ms. Shumake’s petition for certiorari, reversed the judgment of the Court of Appeals, and
reinstated the chancery court’s order. Shumake v. Shumake, 147 So. 3d 352, 356 (Miss.
2014). We held that the chancellor did not abuse his discretion by ordering Mr. Shumake to
pay the alimony arrearage. Id.
¶6. On November 14, 2014, Ms. Shumake filed a complaint for citation of contempt,
claiming that Mr. Shumake was in arrears in the amount of $38,600 on his periodic alimony
payments. She also complained that, despite Mr. Shumake’s completion of his bankruptcy
payments, he had not increased his alimony payments to $4,225 and had failed to pay the
additional $1,500 per month toward the $58,550 arrearage as ordered. Further, Ms. Shumake
claimed that Mr. Shumake had not paid the current arrearage of $10,467.49 on the parties’
first mortgage on the marital domicile as ordered in the divorce judgment. She requested
interest on the arrearages as well as attorney fees and costs.
¶7. Mr. Shumake filed an answer and a countercomplaint for modification of his alimony
obligations. He admitted that he had not paid the full amounts ordered by the court, but
asserted that he was not in wilful contempt because he had been unable to pay the sums
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ordered. He argued that the bankruptcy order discharged his responsibility for the amount in
arrears on the first mortgage. He argued also that his alimony obligations should be reduced
due to his bankruptcy, federal and state tax liabilities, and reduction in income.
¶8. After a hearing, the chancellor entered a judgment finding Mr. Shumake in wilful
contempt for failing to meet his alimony obligation. The chancellor found that Mr. Shumake
had not paid the full amount of periodic alimony that had been ordered. The chancellor
awarded Ms. Shumake a judgment in the amount of $65,300 for alimony arrearages covering
the period from April 11, 2011, through the date of the hearing, on October 6, 2015. Further,
the chancellor awarded Ms. Shumake $10,468 for the unpaid arrearage on the first mortgage.
The chancellor awarded three percent interest on those amounts from the date of the
judgment.1 The chancellor found also that the $58,550 alimony arrearage remained
unsatisfied in full. To secure Mr. Shumake’s payment of future alimony, the chancellor
ordered an equitable lien against all future gross income of his law practice. Finally, the
chancellor denied Mr. Shumake’s motion to modify his alimony obligation. Mr. Shumake
appeals.
STANDARD OF REVIEW
¶9. This Court reviews the findings of a chancellor for abuse of discretion. Heiter v.
Heiter ex rel. Sheffield, 192 So. 3d 992, 994 (Miss. 2016). We will leave a chancellor’s
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We note that, because periodic alimony payments vest when due and “each payment
bears legal interest from and after its due date, . . .” the chancellor erred by awarding interest
from the date of the judgment instead of from the respective dates on which the several
payments came due and were unpaid. Rubisoff v. Rubisoff, 242 Miss. 225, 235, 133 So. 2d
534, 537 (1961). But, because neither party has raised this issue on appeal, it is not properly
before the Court.
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findings undisturbed “unless the chancellor’s decision was manifestly wrong, clearly
erroneous, or applied an erroneous legal standard.” Lewis v. Pagel, 172 So. 3d 162, 172
(Miss. 2015).
I. WHETHER THE CHANCELLOR ERRED BY IMPOSING AN
EQUITABLE LIEN UPON THE GROSS PROCEEDS OF MR.
SHUMAKE’S LAW FIRM.
¶10. Mr. Shumake complains that the chancellor erred by imposing an equitable lien on his
law practice despite the fact that Shumake’s former wife, in her complaint for citation of
contempt, did not specifically request that relief. He contends that he was surprised because
he lacked notice that the chancellor might place an equitable lien on his law practice. He
argues that, had Ms. Shumake requested such a lien, he would have prepared a defense and
presented evidence. In response, Ms. Shumake argues that the chancellor committed no error
because the equitable lien was within her prayer for general relief.
¶11. As support for his argument, Mr. Shumake relies on Holleman v. Holleman, 527 So.
2d 90, 93 (Miss. 1988), in which the Court held that a chancery court may not impose a lien
to secure the payment of alimony unless such a lien specifically was requested in the
pleadings. The Court in Holleman held that the opposing party is surprised when a lien is
imposed that was not specifically pled. Id. As Ms. Shumake argues, Holleman was overruled
by Smith v. Smith, 607 So. 2d 122, 127 (Miss. 1992). In Smith, this Court recognized that,
in Holleman, “we failed to take cognizance of our changed pleading standards” under the
Mississippi Rules of Civil Procedure. Id. Under Rule 8, “a pleading which sets forth a claim
for relief . . . shall contain . . . a demand for judgment for the relief to which [the pleader]
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deems himself entitled.” M.R.C.P. 8(a)(2). Rule 54(c) provides that: “[e]very final judgment
shall grant the relief to which the party in whose favor it is rendered is entitled by the proof
and which is within the jurisdiction of the court to grant, even if the party has not demanded
such relief in his pleadings . . . .” M.R.C.P. 54(c). Applying these rules, the Court in Smith
held that the wife’s prayer for general relief was sufficient to have enabled the chancellor to
impose an equitable lien. Smith, 607 So. 2d at 127. Accordingly, Ms. Shumake’s prayer for
general relief was sufficient to have placed Mr. Shumake on notice that the chancellor could
impose any relief to which Ms. Shumake was “entitled by the proof” and which was “within
the jurisdiction of the court to grant.” It is well established that a chancellor is empowered
to impose an equitable lien to secure the payment of alimony, especially when the payor has
been delinquent. Morgan v. Morgan, 397 So. 2d 894, 897 (Miss. 1981). Therefore, this issue
is without merit.
II. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION BY
DENYING MR. SHUMAKE’S MOTION TO MODIFY THE AMOUNT OF
HIS ALIMONY OBLIGATION.
¶12. Because Mr. Shumake’s appellant’s brief is missing pages nine through eleven, his
brief includes only one page of argument on this issue.2 On this single page, Mr. Shumake
2
Although the pro se brief Mr. Shumake submitted to this Court was missing three
pages, it is apparent from the arguments in the appellee’s brief that Ms. Shumake had a
complete copy of the brief. On March 15, 2017, the writing justice ordered Mr. Shumake
to file a complete copy of the appellant’s brief electronically by 5:00 p.m. on March 20,
2017. Although the order was duly served on Mr. Shumake’s designated Mississippi
Electronic Courts recipients, the time expired with no response from Mr. Shumake. Ten days
after the due date, Mr. Shumake filed a complete copy of the brief with no explanation for
the delay. The brief was struck as untimely filed. Accordingly, the Court will address only
those portions of Mr. Shumake’s argument that have been briefed.
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argues that the chancellor erred by denying his motion for a downward modification of his
alimony obligation. Specifically, Mr. Shumake challenges the chancellor’s rejection of his
argument that fluctuations in the parties’ respective incomes constituted a material change
in circumstances.
¶13. “The chancellor has the authority to modify periodic alimony ‘upon a finding of a
substantial change in circumstances, regardless of any intent expressed by the parties to the
contrary.’” Holcombe v. Holcombe, 813 So. 2d 700, 703 (Miss. 2002) (quoting McDonald
v. McDonald, 683 So. 2d 929, 931 (Miss. 1996)). The change must be one the parties did not
anticipate at the time of the original alimony judgment. Holcombe, 813 So. 2d at 703. When
a material change in circumstances is found, the chancellor must consider the factors from
Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993), before ordering any
modification of periodic alimony. Steiner v. Steiner, 788 So. 2d 771, 776 (Miss. 2001).
¶14. The chancellor found that the divorce judgment reflected gross incomes of $222,922
for Mr. Shumake and $14,500 for Ms. Shumake. Mr. Shumake argued that his income from
his law practice had gone down to $194,352, while Ms. Shumake’s income had increased to
$40,376, and that these fluctuations constituted a material change that could not have been
anticipated at the time of the divorce. The chancellor found from Ms. Shumake’s tax returns
that she had earned $24,643 in 2012, $45,138 in 2013, and $32,763 in 2014. Her financial
statement showed a present annual income of $40,376. The chancellor accepted Ms.
Shumake’s testimony that, after she had filed her financial statement, her work hours as an
office manager at a hair salon were reduced from forty to thirty-two hours per week. The
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chancellor found that the parties’ income fluctuations since the divorce judgment reasonably
could have been anticipated at the time of the original judgment, and that no material change
in circumstances had occurred.
¶15. Mr. Shumake argues that the chancellor’s finding would preclude a future court’s
deciding that changes in income experienced by divorced parties could constitute a material
change. In support, he points to the chancellor’s statement that “it was and is reasonably to
be expected that the gross income for each party will on average increase over some years
and to further anticipate that the gross income may also occasionally dip down over the
course of a few years.” Considering that the chancellor’s decision rested upon the particular
facts of this case, Mr. Shumake’s concerns are unfounded.
¶16. Further, the chancellor did not abuse his discretion by finding that no material change
in circumstances had occurred. While Mr. Shumake’s law practice income had declined
somewhat, and Ms. Shumake’s income had increased minimally, the financial disparity
between the parties was not substantially different than it had been at the time of divorce, and
the majority of Ms. Shumake’s income came from alimony. See Hockaday v. Hockaday, 644
So. 2d 446, 449-50 (Miss. 1994). The chancellor did not clearly err by finding that the
income fluctuations were not so substantial that they reasonably could not have been
anticipated at the time of the divorce judgment. We find no abuse of discretion in the
chancellor’s denial of Mr. Shumake’s motion to modify alimony.
III. WHETHER THE CHANCELLOR’S FINDING THAT MR. SHUMAKE
WAS IN WI L F U L C O N T E M P T WAS BASED ON A
MISUNDERSTANDING OF THE FACTS.
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¶17. Because Mr. Shumake has presented no briefing on this argument, the Court does not
address it. O.W.O. Invs., Inc. v. Stone Inv. Co., Inc., 32 So. 3d 439, 446 (Miss. 2010).
IV. WHETHER THE AMOUNT OF ATTORNEY FEES AWARDED TO
MS. SHUMAKE WAS ERRONEOUS.
¶18. Ms. Shumake requested that the chancellor order Mr. Shumake to pay all the attorney
fees she had incurred during the proceedings. The chancellor held that, because Mr. Shumake
was in wilful contempt of court, Ms. Shumake was entitled to her reasonable attorney fees
incurred in prosecuting the contempt action. The chancellor found from the attorney fee bill
submitted by Ms. Shumake that she had incurred $5,460 prior to trial, plus $500 for the
motion to compel. Accordingly, the chancellor ordered Mr. Shumake to pay Ms. Shumake’s
attorney fees in the amount of $6,000.
¶19. In another incompletely briefed argument, Mr. Shumake contends that the chancellor
erred by awarding Ms. Shumake the total amount of attorney fees reflected by her attorney
fee bill because those fees were incurred not only in prosecuting the contempt action, but also
in defending his modification action. The fee bill submitted by Ms. Shumake primarily
includes charges for prosecuting the contempt action, but also lists some charges for
defending the modification action.
¶20. A former spouse who successfully prosecutes an action for contempt for failure to pay
alimony is entitled to attorney fees without a showing of need. Morreale v. Morreale, 646
So. 2d 1264, 1271 (Miss. 1994). However, in an alimony modification action, “[w]here a
party is financially able to pay her attorney’s fees, an award of attorney’s fees is not
appropriate.” Anderson v. Anderson, 692 So. 2d 65, 74 (Miss. 1997). “The award of attorney
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fees in divorce cases is left to the discretion of the chancellor, assuming he follows the
appropriate standards.” Rogillio v. Rogillio, 101 So. 3d 150, 156 (Miss. 2012). “[W]here the
record shows an inability to pay and a disparity in the relative financial positions of the
parties, there is no error in awarding attorney fees.” Id.
¶21. Because the basis for the attorney fee award was the success of Ms. Shumake’s
contempt action, Mr. Shumake contends, the chancellor should have determined the amount
of the fees attributable to defending his modification action and deducted those fees from Ms.
Shumake’s attorney fee award. He cites Tidmore v. Tidmore, 114 So. 3d 753, 759 (Miss. Ct.
App. 2013), in which the Court of Appeals reversed the chancellor’s award of attorney fees
in a successful contempt action because the chancellor had awarded the full amount of the
attorney fee bill without subtracting the fees attributable to a child support modification
action. Ms. Shumake argues that Tidmore does not apply because this case involves a motion
for alimony modification, not child support modification.
¶22. Ms. Shumake’s attempt to distinguish this case from Tidmore is unpersuasive. Given
the differing standards for awarding attorney fees in a contempt action and in a modification
action, Mr. Shumake is correct that the chancellor erred by failing to subtract the amount of
attorney fees Ms. Shumake incurred in defending the motion to modify alimony. Ms.
Shumake was not entitled to attorney fees for defending the modification action absent a
finding of inability to pay. Because the chancellor applied an incorrect legal standard, we
reverse in part and remand this case to the chancery court for a determination of attorney fees
due Ms. Shumake for the contempt proceedings. However, the chancellor, in his discretion,
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may award Ms. Shumake attorney fees for defending the modification action should he find
an inability to pay on Ms. Shumake’s part and relative financial disparity between the parties.
See Rogillio, 101 So. 3d at 156.
V. THE CHANCELLOR ERRED BY AWARDING MS. SHUMAKE THE
UNPAID BALANCE OF THE ARREARAGE OWED ON THE PARTIES’
FORMER FIRST MORTGAGE.
¶23. At the time of the divorce, the parties’ first mortgage on the marital domicile, with
lender Countrywide, was in arrears. In the divorce judgment, the chancellor ordered that
“[t]he current arrearage on the first mortgage shall be immediately paid and the mortgage
brought current by Leslie [Shumake].” The divorce judgment also provided that “Leslie
[Shumake] shall be responsible for, pay for, and hold Katerina [Shumake] harmless on the
following other marital debt,” and specified those debts.
¶24. At the hearing on Ms. Shumake’s contempt action, it was established that Mr.
Shumake never paid the arrearage on the first mortgage as ordered in the divorce judgment.
Mr. Shumake testified that, at the time of the divorce, the arrearage had been $14,845.20. He
testified that, in his bankruptcy, he had discharged his debt to Bank of America, the lender
which had assumed the first mortgage, by paying $4,377.71. Ms. Shumake testified that she
had been forced to refinance the marital home, and at that time the remaining arrearage had
been included in her current mortgage payments.
¶25. Mr. Shumake argued that his obligation to pay the first mortgage arrearage had been
discharged by his bankruptcy. The chancellor rejected that argument because 11 U.S.C. §
523(a) excepts domestic support obligations incurred in divorce actions from discharge. See
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11 U.S.C. § 523(a)(5) (2012). Finding that Mr. Shumake had provided no authority for his
argument that his bankruptcy plan had discharged the debt, the chancellor ordered Mr.
Shumake to pay Ms. Shumake the remaining arrearage of $10,468 for the first mortgage.
¶26. On appeal, Mr. Shumake renews his argument that his obligation to pay the first
mortgage arrears was discharged by the bankruptcy plan. Again, he cites no authority for this
proposition. Instead, he argues that, according to the terms of the divorce judgment, his
obligation to pay the first mortgage arrearage was an obligation to pay the lender, not to pay
Ms. Shumake. He contends that, although he was ordered to pay the first mortgage arrearage,
he was not ordered to hold Ms. Shumake harmless from that debt. He argues that the divorce
judgment ordered him to “be responsible, pay for, and hold Katerina [Shumake] harmless on
the following other marital debt” and that this list of debts did not include the first mortgage
arrearage.
¶27. We find no merit in Mr. Shumake’s argument that the divorce judgment merely
created an obligation to the lender rather than to Ms. Shumake. A review of the divorce
judgment indicates that the chancellor ordered Mr. Shumake to pay the first mortgage
arrearage “immediately.” Then, the judgment listed “other marital debt” from which Mr.
Shumake must hold Ms. Shumake harmless, and ordered Ms. Shumake to pay certain other
marital debts. Plainly, the chancellor’s intent was for Mr. Shumake immediately to pay the
first mortgage arrearage, and Ms. Shumake would not be responsible for that debt. In
conducting the equitable distribution, the chancellor’s obligation was to allocate
responsibility for the marital debts between the parties to the divorce. Mr. and Ms. Shumake
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already had a legal obligation to the lender. Mr. Shumake’s bankruptcy discharged his
obligation to the lender, but not his former wife’s. Because Ms. Shumake ended up paying
the debt to the lender, the chancellor did not err by ordering Mr. Shumake to reimburse her
for the debt he had failed to pay as ordered.
CONCLUSION
¶28. We hold that the chancellor’s imposition of an equitable lien on Mr. Shumake’s law
practice to secure the payment of future periodic alimony was not an abuse of discretion.
Further, the chancellor did not err by refusing to modify Mr. Shumake’s alimony obligation.
Nor did the chancellor err by awarding Ms. Shumake the remaining arrearage on the first
mortgage. However, the chancellor did err by awarding Ms. Shumake the attorney fees
reflected by her attorney fee bill without deducting the fees attributable to the defense of the
alimony modification action. Therefore, this Court affirms in part and reverses in part and
remands for the chancellor to determine the amount of attorney fees owed to Ms. Shumake
for her successful contempt action. The chancellor may award any additional attorney fees
for the modification action only upon a finding of inability to pay and relative financial
disparity between the parties.
¶29. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KING, COLEMAN
AND BEAM, JJ., CONCUR. MAXWELL AND CHAMBERLIN, JJ., NOT
PARTICIPATING.
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