Barry R. Artz v. Shannon C. Artz , 2015 Miss. App. LEXIS 255 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-00290-COA
BARRY R. ARTZ APPELLANT
v.
SHANNON C. ARTZ NORRIS APPELLEE
DATE OF JUDGMENT: 01/31/2014
TRIAL JUDGE: HON. DOROTHY WINSTON COLOM
COURT FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: BLEWETT W. THOMAS
ATTORNEY FOR APPELLEE: J. DOUGLAS FORD
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: DENIED APPELLEE’S REQUEST FOR
MODIFICATION OF CHILD SUPPORT,
FOUND APPELLANT IN CONTEMPT FOR
FAILURE TO PAY CHILD SUPPORT AND
CHILD’S MEDICAL-INSURANCE
PREMIUMS, ORDERED APPELLANT TO
PAY APPELLEE $5,236 FOR UNPAID
CHILD SUPPORT AND $8,832 FOR
UNPAID MEDICAL-INSURANCE
PREMIUMS, AND AWARDED APPELLANT
$11,007.19 IN ATTORNEY’S FEES
DISPOSITION: AFFIRMED - 05/12/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., ROBERTS AND JAMES, JJ.
LEE, C.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1. Barry R. Artz and Shannon C. Artz Norris obtained a divorce in Lowndes County,
Mississippi, in 2002. Barry was initially granted custody of the couple’s minor son, Caleb,
who was born in 1994. Shannon had moved to Ohio during the course of the proceedings,
and several years after the divorce became final, she filed a petition to modify custody. In
2006, the trial court granted her request, awarded Barry reasonable visitation, and ordered
him to pay $181 per month in child support.
¶2. On January 16, 2007, Shannon filed a complaint for contempt and petition to modify.
The parties entered into an agreed order on September 4, 2007, in which Barry agreed to pay
Shannon $4,000 in back child support and reimburse her for Caleb’s health-insurance
premiums and one-half of Caleb’s outstanding medical bills. The agreed order also provided
for an increase in Barry’s child-support obligation to $308 per month. Barry was given the
choice to pay Shannon $192 per month for the cost of Caleb’s health insurance or provide
Caleb with health insurance that was substantially similar to the insurance Shannon had
already obtained for Caleb, and that would be accepted by the doctors and hospitals where
Caleb lived in Ohio.
¶3. The agreed order also provided for the manner in which visitation was to be exercised,
and who was to pay for Caleb’s airfare. Barry was to give Shannon thirty days’ notice of
when he would like to exercise visitation, and Shannon was to purchase a round-trip ticket.
Barry was then required to reimburse Shannon for one-half of the airfare. If Barry wanted
to fly Caleb to a destination other than Birmingham, Alabama, Barry agreed to book the
flight, but the airfare had to be reasonable and comparable to a round-trip ticket from
Louisville, Kentucky, to Birmingham, Alabama.1
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Barry remarried and now lives in Long Beach, Mississippi.
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¶4. The agreed order also contained the following clause: “[I]n the event [Barry] fails to
abide by the terms of this Order or the remaining unmodified terms of the original decree,
he shall be responsible for and pay to [Shannon] all attorney’s fees and costs incurred by
[Shannon] since August 15, 2006.”
¶5. Shannon filed a contempt action on November 14, 2012, alleging that Barry had failed
to pay child support since May 2012 and that he had failed to pay Caleb’s monthly medical-
insurance premiums. She also sought enforcement of the order, including payment of
attorney’s fees for having to bring this action, and an increase in child support. Barry filed
his answer and counterclaim, denying that he had violated the agreed order and seeking credit
or reimbursement for Caleb’s travel expenses.
¶6. Regarding his failure to pay child support, Barry testified at trial that while he had not
paid child support directly to Shannon since May 2012, he had opened up a bank account in
or about August 2012 for Caleb’s benefit. Barry testified that he made monthly deposits into
this bank account, amounts that exceeded what he was required to pay in child support, and
that at the time of trial, he had deposited between $7,000 and $8,000 total. Barry testified
that the account was set up in his name only, but Caleb had a signature card, which he used
to make purchases. At the time of trial, Barry only had bank statements dating back to
December 2012.
¶7. Regarding his failure to pay Caleb’s monthly medical-insurance premiums, Barry
testified that he obtained insurance for Caleb effective December 2007, and maintained that
health insurance until August 2009. Shannon testified that she tried using the insurance
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Barry obtained for Caleb, but his claims were denied. She testified that when she called to
verify Caleb’s insurance coverage, she could not. In July 2009, Shannon emailed Barry and
informed him that she still had coverage for Caleb and that a month’s supply of Amnesteem,2
an acne medication, would only cost $10 as opposed to $488 under the insurance that Barry
had obtained. When it came time for Caleb to undergo Amnesteem treatment, the parties
discussed flying Caleb to Mississippi every two to four weeks to meet with the dermatologist
there. After informing Barry that Caleb was still covered by the policy obtained through her
husband’s business, Shannon further stated in her email:
Now, since this will help you out tremendously, I think it will be fair to have
you pay for Caleb’s return flights to visit the dermatologist each month. I am
more than willing to take him to a lab for blood work or whatever I need to do
on my end. . . . We will keep the insurance for Caleb until the [A]mnesteem
is over and done with.
Shannon testified that the arrangement she and Barry discussed never occurred. Caleb did
not fly back and forth to Mississippi, but met with a dermatologist in Ohio. Barry was asked
on cross-examination whether Caleb ended up flying back and forth to see the dermatologist
in Mississippi, to which he answered, “I don’t recall.” He testified that Caleb made several
flights to Mississippi to see the dermatologist, and that Caleb was obtaining treatment in
Mississippi until Shannon decided to seek treatment in Ohio. In one last reply email to
Shannon regarding the Amnesteem treatment, Barry admitted, “I did retain insurance[;] . .
. it just seems it may have sucked.”
¶8. The chancellor found Barry in contempt for failure to pay child support and Caleb’s
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Amnesteem and Accutane are used interchangeably throughout the record.
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monthly medical-insurance premiums, awarded Shannon a judgment against Barry for the
amount of her attorney’s fees and costs, but declined to increase Barry’s child-support
obligation. The chancellor further found that the bank account Barry opened for Caleb was
not opened until after Shannon filed this action, and that Caleb withdrew approximately $200
per month from this account. Barry filed a motion to amend the judgment, which the trial
court denied. Attached to this motion was an exhibit that contained bank statements dating
back to September 11, 2012.
¶9. Barry now appeals, asserting that (1) the chancellor erred in finding Barry in contempt
for failing to abide by the terms of the agreed order, (2) Shannon should be estopped from
denying the existence of an agreement in which Shannon agreed to pay Caleb’s medical-
insurance premiums in exchange for Barry’s payment of Caleb’s travel expenses, (3) the
chancellor erred in failing to credit Barry with the child-support payments paid directly to
Caleb while he was attending college away from home, (4) the chancellor erred in failing to
consider that Shannon’s husband’s corporation, and not Shannon, paid Caleb’s medical-
insurance premiums, and (5) the judgment against Barry for attorney’s fees and costs should
be reduced because Shannon was not entitled to all of the relief she was granted.
STANDARD OF REVIEW
¶10. In domestic-relations cases, we “will not disturb the findings of a chancellor when
supported by substantial evidence unless the chancellor abused his discretion, was manifestly
wrong [or] clearly erroneous[,] or [applied] an erroneous legal standard[.]” In re Dissolution
of Marriage of Wood, 35 So. 3d 507, 512 (¶8) (Miss. 2010) (citations omitted). We review
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questions of law de novo. Id.
DISCUSSION
I. CONTEMPT
II. ESTOPPEL
¶11. The purpose of civil contempt is to enforce a court order. Lahmann v. Hallmon, 722
So. 2d 614, 620 (¶19) (Miss. 1998) (citations omitted). “In a contempt action involving
unpaid child support, when the party entitled to receive support introduces evidence that the
party required to pay the support has failed so to do, a prima facie case of contempt has been
made.” Id. (citing Guthrie v. Guthrie, 537 So. 2d 886, 888 (Miss. 1989)). To rebut a prima
facie case of contempt, a defendant must show, by clear and convincing evidence, an
“inability to pay, that the default was not willful, that the provision violated was ambiguous,
or that performance was impossible.” Evans v. Evans, 75 So. 3d 1083, 1087 (¶14) (Miss. Ct.
App. 2011) (citation omitted); Lahmann, 722 So. 2d at 620 (¶19). “Whether a party is in
contempt is left to the [c]hancellor’s substantial discretion.” Lahmann, 722 So. 2d at 620
(¶19) (citation omitted).
¶12. Barry argues that his failure to pay child support was not willful because he paid his
monthly child-support obligation directly to Caleb by depositing money into a bank account
used only by Caleb. Barry also argues that his failure to pay $192 per month for medical
insurance or otherwise provide comparable medical insurance was not willful because he and
Shannon had agreed that rather than splitting the costs of Caleb’s travel expenses and
medical insurance, Barry would pay for Caleb’s travel to and from Mississippi and Shannon
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would pay for his medical insurance.
¶13. The chancellor found that “[t]he parties [had] entered into a clear, unambiguous
agreed order in 2007.” While the chancellor commended Barry for providing support
directly to Caleb, she found that he had willfully violated the terms of the order in an
“attempt to rewrite the same to his own benefit, without prior [court] approval.” We do not
find that this was an abuse of discretion.
¶14. “Child support is awarded to the custodial parent for the benefit and protection of the
child, the underlying principle being the legal duty owed to the child for the child’s
maintenance and best interest.” Alexander v. Alexander, 494 So. 2d 365, 368 (Miss. 1986)
(citation omitted). Even though Caleb was attending college in Indiana, Shannon was still
the custodial parent, and the agreed order requiring payment of $308 per month for Caleb’s
benefit was to remain in effect until Caleb’s emancipation. If Barry wished to pay his
support obligation directly to Caleb while he was attending college away from home, he
should have petitioned the court to modify the prior decree. See Varner v. Varner, 588 So.
2d 428, 434 (Miss. 1991) (citing Alexander, 494 So. 2d at 367-68). “[A] party [who makes]
an extra[]judicial modification does so at his [own] peril.” Id.
¶15. Regarding Barry’s failure to provide medical insurance, the chancellor found Barry’s
explanation unpersuasive. Shannon denied that their extrajudicial agreement was ever
implemented, and the emails make clear that Shannon only intended the agreement to last for
the course of the Amnesteem treatment. “A chancellor’s finding on conflicting evidence will
not be disturbed on appeal unless it is manifestly wrong.” Strack v. Sticklin, 959 So. 2d 1,
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5 (¶12) (Miss. Ct. App. 2006) (citing Milam v. Milam, 509 So. 2d 864, 866 (Miss. 1987)).
Because the chancellor’s finding was not manifestly wrong, Barry’s claim is without merit.
¶16. Barry also argues that Shannon should be equitably estopped from denying that she
and Barry had an agreement that she would pay for Caleb’s medical insurance if Barry would
cover the cost of Caleb’s travel expenses. He argues that because Shannon has not
reimbursed him for one-half the cost of Caleb’s airline tickets, he believed the agreement to
be in full force and effect.
¶17. Equitable estoppel has been defined as “the principle by which a party is precluded
from denying any material fact, induced by his words or conduct upon which a person relied,
whereby the person changed his position in such a way that injury would be suffered if such
denial or contrary assertion was allowed.” Koval v. Koval, 576 So. 2d 134, 137 (Miss. 1991).
This Court has found equitable estoppel to be inappropriate in child-support matters. Durr
v. Durr, 912 So. 2d 1033, 1038 (¶14) (Miss. Ct. App. 2005). “[C]hild support is for the
benefit of the minor. The custodial parent is only a conduit for the support. Therefore, it
follows that no action or inaction on the part of the custodial parent can relieve the defaulting
parent of that parent’s obligation to pay support.” Id.
¶18. Furthermore, we have already found that the chancellor’s findings regarding this
extrajudicial agreement were not in error. The emails were clear that the agreement was
temporary in nature, and was only to occur during the course of Caleb’s Amnesteem
treatment. Barry could not have relied on this agreement when he purchased Caleb’s airline
tickets, and should have submitted receipts to Shannon for reimbursement. This issue also
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lacks merit.
III. CREDIT FOR CHILD-SUPPORT PAYMENTS
¶19. Barry argues that the chancellor erred in failing to give him credit for the $7,351.99
that he deposited into the bank account used by Caleb. In Crow v. Crow, 622 So. 2d 1226,
1231 (Miss. 1993), the supreme court stated the rule as follows:
[A noncustodial parent] may receive credit for having paid child support
where, in fact, he paid the support directly to or for the benefit of the child,
where to hold otherwise would unjustly enrich the [custodial parent]. This
principle applies, however, only where the [non-custodial parent] proves by a
preponderance of the evidence that he has, in fact, paid the support to the child
under circumstances where the support money was used for the child for the
purposes contemplated by the support order, that is, to provide shelter, food,
clothing, and other necessities for the child.
Id. (internal citations omitted).
¶20. The chancellor found that while Barry did not establish the bank account that Caleb
used until after Shannon filed suit, she found that Caleb admitted to having access to the
account, and that he withdrew approximately $200 per month. Furthermore, the chancellor
commended Barry for “maintaining his relationship and support directly to Caleb,” but the
order is silent regarding credit to Barry for monies paid.
¶21. Barry’s bank statements for the account that Caleb used were admitted into evidence.
When Barry was questioned on cross-examination regarding who made the purchases listed
on the bank statements, the chancellor found that because the purchases were made in
Indiana, the inference to be drawn was that the purchases were made by Caleb. The
chancellor acknowledged that Barry was seeking credit for the purchases listed on the bank
statements. Barry testified that Caleb exercised reasonable discretion in using the card, and
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that he has used it for gas, to take his grandmother out to lunch, to make purchases at
Walmart, and to rent a hotel room in Mississippi for him and his friends. Barry testified that
he found his son’s purchases of weight-gain supplements questionable and that he has talked
with Caleb about being responsible with the money in the account. Shannon testified that,
given “free reign on money,” Caleb will purchase things he does not need. She testified that
he will spend money on his girlfriend, buying her clothes, and take his friends out to eat.
Shannon testified that Caleb bought his girlfriend a pet hamster. She testified that this is the
reason the child support should be paid directly to her and not to Caleb, to ensure the
necessities are covered first.
¶22. Based on the evidence, we cannot say the chancellor erred in not granting Barry credit
for the money paid directly to Caleb. While Caleb would regularly draw from the account
established by Barry for Caleb’s use, Barry has failed to meet his burden of showing that the
support money was used to provide food, shelter, clothing, and other necessities for Caleb.
While the bank statements that were admitted into evidence show that Caleb has made
purchases at Walmart and various restaurants, it is not clear for what or for whom those
purchases were made. Shannon testified that Caleb takes his friends out to eat, and there is
evidence in the bank statements to support that. For example, on January 7, 2013, there is
a charge of $107.02 to Cracker Barrel in Richmond, Indiana. Absent a receipt or some other
evidence, one can only assume that such a charge was not for the cost of Caleb’s meal alone.
Furthermore, many of the other charges do not appear to be for Caleb’s support. For
example, Caleb made several purchases at Vitamin Shoppe, and Barry testified that he did
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not approve of Caleb’s purchase of weight-gain supplements. If that is the case, he cannot
now seek credit for the money spent on such. Since Barry failed to show how the money he
paid Caleb was used for his support, this issue is without merit.
IV. UNJUST ENRICHMENT
¶23. Barry argues that Shannon is not entitled to $8,832 for unpaid medical-insurance
premiums because Shannon did not pay for Caleb’s medical insurance; her husband’s
corporation did. This argument is without merit. The 2007 agreed order requiring payment
of $192 per month for the cost of Caleb’s medical insurance states in pertinent part:
Should [Barry] be able to secure and pay for health insurance for the minor
child that is substantially similar in benefits and deductibles to that insurance
now being provided by [Shannon] for the minor child and which will be
accepted by all physicians and hospitals where the minor child resides with
[Shannon], [Barry] may procure and pay for same and thereby discontinue
paying to [Shannon] the cost of health insurance being provided by [Shannon]
through her husband’s business.
(Emphasis added). Barry knew when he entered into the agreed order that Caleb’s medical
insurance was being provided by Shannon’s husband’s corporation. He cannot now object
to what he ultimately agreed to. If Barry did not want to pay Shannon $192 per month for
the cost of Caleb’s medical-insurance premiums, he could have obtained medical insurance
for Caleb that was substantially similar to the medical insurance obtained by Shannon for
Caleb’s benefit. He failed to do so.
V. ATTORNEY’S FEES
¶24. Barry argues that because Shannon is not entitled to all the relief she was granted, the
amount of attorney’s fees awarded should be reduced. “In a civil contempt proceeding, the
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trial court has discretion to award reasonable attorney[’s] fees to make the plaintiff whole and
to reinforce compliance with the judicial decree.” Hinds Cnty. Bd. of Supervisors v. Common
Cause of Miss., 551 So. 2d 107, 125 (Miss. 1989). “Where a party’s intentional misconduct
causes the opposing party to expend time and money needlessly, then attorney[’s] fees and
expenses should be awarded to the wronged party.” Mabus v. Mabus, 910 So. 2d 486, 489
(¶8) (Miss. 2005) (citation omitted). Because Barry was found to be in contempt, it was not
error for the chancellor to award Shannon attorney’s fees. Furthermore, the agreed order
provided for an award of attorney’s fees if Barry failed to abide by its terms. This issue is
therefore without merit.
¶25. THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL
AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE
WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.
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