Roland Weeks v. Deborah W. Weeks , 2016 Miss. App. LEXIS 114 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-00807-COA
ROLAND WEEKS APPELLANT/CROSS-
APPELLEE
v.
DEBORAH W. WEEKS APPELLEE/CROSS-
APPELLANT
DATE OF JUDGMENT: 12/06/2013
TRIAL JUDGE: HON. CARTER O. BISE
COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: THOMAS W. CROCKETT JR.
HENRY LAIRD
ATTORNEYS FOR APPELLEE: ANDREW AUSTIN CLARK
RUSSELL S. GILL
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: DENIED DOWNWARD MODIFICATION OF
ALIMONY; AWARDED BACK CHILD
SUPPORT; DENIED ATTORNEY’S FEES;
AND DENIED MOTION TO SET ASIDE
PRIOR ORDER DENYING UPWARD
MODIFICATION OF ALIMONY
DISPOSITION: AFFIRMED ON DIRECT APPEAL;
AFFIRMED IN PART AND REVERSED
AND REMANDED IN PART ON CROSS-
APPEAL: 03/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., CARLTON AND FAIR, JJ.
FAIR, J., FOR THE COURT:
¶1. Roland and Deborah Weeks were married in 1978, and they separated in 1992.
Litigation has continued since their divorce in 2001. In Weeks v. Weeks, 832 So. 2d 583(Miss. Ct. App. 2002), this Court found that the chancery court had erred in not awarding
Deborah alimony after she had been given about a third of their considerable marital assets.
The chancery court subsequently ordered Roland to pay approximately $3,900 per month,
between periodic alimony, health insurance, and life insurance. In Weeks v. Weeks, 29 So.
3d 80 (Miss. Ct. App. 2009) (Weeks II), we largely affirmed the subsequent judgment, but
remanded again for the chancellor to reconsider aspects of the child support and attorney’s
fee awards.
¶2. The instant appeal arises from several motions: Roland’s March 2012 motion to
reduce his alimony obligation; Deborah’s January 2013 motion to pursue the child support
and attorney’s fees previously remanded; and Deborah’s August 2013 motion to set aside a
2006 order denying an upward modification of alimony, which she claimed was induced by
a fraud on the court.
¶3. The chancery court denied Roland’s motion to reduce his alimony obligation, finding
that both his and Deborah’s health and assets had declined as they aged, but that Roland was
still capable of paying the award. He appeals. The chancellor awarded back child support
to Deborah, but denied her request for attorney’s fees, which he found to be both
unreasonable and within her ability to pay. The judge also denied Deborah’s motion to set
aside the 2006 order. Deborah cross-appeals. We agree with Deborah that the chancellor
should have awarded her interest on the unpaid child support and that the chancellor erred
in finding she was able to pay that portion of her attorney’s fees accumulated prior to Weeks
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II. This Court decided in Weeks II that she was unable to pay them; we had remanded only
for the chancery court to consider the McKee factors. Weeks II, 29 So. 3d at 92-93 (¶¶58-
59); see also McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). We again remand for the
chancery court to determine the appropriate amount of those attorney’s fees. We otherwise
affirm the judgment.
STANDARD OF REVIEW
¶4. “When [an appellate court] reviews a chancellor's decision in a case involving divorce
and all related issues, [the court’s] scope of review is limited by the substantial
evidence/manifest error rule.” Yelverton v. Yelverton, 961 So. 2d 19, 24 (¶6) (Miss. 2007).
A chancellor’s factual findings will not be disturbed unless manifestly wrong, clearly
erroneous, or an erroneous legal standard was applied. Carambat v. Carambat, 72 So. 3d
505, 510-11 (¶24) (Miss. 2011). As long as substantial evidence supports the chancellor’s
findings, an appellate court is without authority to disturb them, even if it would have found
otherwise as an original matter. Joel v. Joel, 43 So. 3d 424, 429 (¶14) (Miss. 2010).
Additionally, if the chancellor has made no specific findings, we generally proceed on the
assumption that he resolved all such fact issues in favor of the appellee. Ferrara v. Walters,
919 So. 2d 876, 881 (¶8) (Miss. 2005) (citing Newsom v. Newsom, 557 So. 2d 511, 514
(Miss. 1990)). Questions of law, on the other hand, are reviewed de novo. Irving v. Irving,
67 So. 3d 776, 778 (¶11) (Miss. 2011).
DISCUSSION
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1. Downward Modification of Alimony
¶5. Roland contends that the chancellor erred in refusing to relieve him of some or all of
his alimony and associated obligations to Deborah, which totaled about $3,900 per month,
and would apparently increase somewhat in the future with the cost of his life insurance.
¶6. In deciding whether to modify alimony, the chancellor must consider the familiar
Armstrong factors, “comparing the relative positions of the parties at the time of the request
for modification in relation to their positions at the time of the divorce decree.” Steiner v.
Steiner, 788 So. 2d 771, 776 (¶16) (Miss. 2001) (citing Armstrong v. Armstrong, 618 So. 2d
1278, 1280 (Miss. 1993)).
¶7. The chancellor found that although both parties had diminishing assets, were suffering
from declining health as they aged, and were no longer able to work, Roland continued to
have sufficient income from his pensions and Social Security – approximately $14,000 per
month – to pay the alimony, while Deborah’s income from non-alimony sources was just
$1,200 per month. The chancellor did not make specific findings regarding the value of the
parties’ estates, and so on appeal, Roland and Deborah each claim poverty while accusing
the other of hiding substantial assets. They also debate whether Roland was required to
prove a material change of circumstances, as the chancellor had included language in the
alimony order to the effect that it would be reexamined once Deborah reached an age to
withdraw some of her retirement funds without penalty. We find that regardless of whether
Roland had to prove a material change of circumstances, the chancellor had sufficient
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evidence to deny his request for modification. Roland’s advancing age and declining health
were not unexpected, nor did they impact his continuing retirement income, which greatly
exceeded Deborah’s. Roland continues to be in a significantly better financial position even
after the alimony. We find no abuse of discretion in the denial of Roland’s motion to modify
alimony.
2. Back Child Support
¶8. At issue are the child support amounts owed for the final two years prior to the
Weeks’ daughter reaching the age of majority. At the time, the daughter was attending
college out of state. Roland made significantly more than the then-$50,000 limit for the
mandatory application of the child support guidelines. Initially, the chancellor had ordered
Roland to pay the percentage of his income specified by the guidelines (fourteen percent or
$1,890) in the form of expenses related to the child’s college education, including tuition,
transportation, food, health insurance, and the like. Roland would pay the difference, if any,
directly to the child for living expenses not covered directly by the award. During the
summer, if the daughter resided with Deborah, Roland would instead pay Deborah the “pro
rata share” of the $1,890. Exactly what this meant was a point of contention, with the
chancellor subsequently allowing Roland to offset the summer support with money he paid
for the child’s education. For the final year, the chancellor allowed Roland to pay Deborah
the entire monthly amount, every month, minus the cost of the daughter’s car insurance. But
Deborah would have to pay the education expenses with that money.
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¶9. In Weeks II, this Court found that “[t]he structure of the chancellor's [interpretation
of the] child support order allows Roland to pay Deborah far less than the statutory child
support of $1,890 per month during the summer.” Weeks II, 29 So. 3d at 87-88 (¶¶26-35).
We found this to be error and reversed and remanded “this issue for the chancellor to
reconsider the appropriate amount of child support that should be paid, consistent with the
terms of this opinion.” Id.
¶10. On remand, the chancery court ordered Roland to pay Deborah $1,890 for each of the
summer months, as direct child support, minus what Roland had already paid to her for those
months.
¶11. Roland argues that this was in error because he had exceeded the support obligation
with money paid to the child directly – by paying her college expenses, which included things
like food, clothing, and shelter. His arguments are brief and cursory, and they appear to be
little more than an attempt to relitigate an issue we decided in Weeks II, where we held that
Roland’s paying his daughter’s college expenses did not diminish Deborah’s need to
maintain the family home, for which child support was required. The child “live[d] with
Deborah when she [was] home from school during the summer and various weekends
throughout the school year.” Id. at 88 (¶34). Roland’s arguments on direct appeal are
without merit.
¶12. On cross-appeal, Deborah also seeks to relitigate issues we resolved in Weeks II. She
contends that the chancellor should have found that Roland had failed to pay her child
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support for the entire twenty-five-month period at issue. She further seeks a finding of
contempt and attorney’s fees, as well as interest for back child support.
¶13. In Weeks II, we faulted the chancery court for allowing Roland to offset the summer
child support payments with money he had spent on the daughter’s education. But this
concerned only the portion of the support Roland was required to pay to Deborah – for the
summer months. While we did observe that Deborah would have to maintain the house
throughout the year, we did not find that she was entitled to child support payments at the full
guidelines percentage for every month throughout the year; the issue before this Court was
whether Roland had complied with the original order. See Weeks II, 29 So. 3d at 87-88(¶¶26-35). Separately, we found no error in the chancellor’s refusal to retroactively modify
the child support award. Id. at 88-89 (¶¶36-40).
¶14. On the issue of interest, Deborah is correct that the chancery court should have
awarded it, as is required for child support arrearages. Ladner v. Logan, 857 So. 2d 764,
772-73 (¶30) (Miss. 2003). As to contempt, it is true that failure to pay child support makes
a prima facie case for contempt. Fancher v. Pell, 831 So. 2d 1137, 1143 (¶30) (Miss. 2002).
But we noted in Weeks II that the ambiguity of the order made it “virtually impossible for
Roland to be held in contempt.” Weeks II, 29 So. 3d at 88 (¶32). Deborah has presented
nothing new on that point, and so we find no error in the refusal to find Roland in contempt.
¶15. We remand for the chancery court to award interest on the child support arrearages.
Otherwise we affirm the chancery court’s judgment on the child support issues.
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3. Attorney’s Fees
¶16. On cross-appeal, Deborah argues that the chancellor erred in denying her motion for
attorney’s fees. She contends that Roland should pay her legal fees since the divorce, in
2001, which she pegs at more than $311,000 – after adjustments for certain fees she concedes
were unreasonable.
¶17. The chancellor noted that Deborah admitted she had already paid the attorney’s fees
– or the vast majority of them. The chancellor noted that Deborah had been awarded
substantial assets, and he expressed doubt at her claims regarding the extent to which they
had been diminished or offset by liabilities. The chancellor noted that Deborah had been
shuffling money around while rebuilding her home1 to obscure her true assets. The
chancellor had the “firm conviction that neither [Deborah’s Uniform Chancery Court Rule
8.05 disclosure] nor her testimony can be relied upon to show what her assets or her needs
are, but it is clear that she has $900,000 in assets, considering the money she shows.”
¶18. In summary, the chancellor found that Deborah was able to pay her own attorney’s
fees. But in Weeks II, this Court concluded that Deborah was unable to pay her attorney’s
fees. Weeks II, 29 So. 3d at 92-93 (¶¶56-59). Our instructions on remand were for the
chancery court to consider whether an award of attorney’s fees was proper under the McKee
1
The former marital home had been destroyed by Hurricane Katrina, and Deborah
had received substantial money to rebuild it, which she claimed she had expended paying
her attorneys. She admitted that the replacement house was to be more valuable at about
$700,000.
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factors, i.e., whether and to what extent the fees sought by Deborah were reasonable – not
whether she was able to pay them. Id. at 93 (¶59); see also Upchurch Plumbing Inc. v.
Greenwood Util. Comm'n, 964 So. 2d 1100, 1114-15 (¶36) (Miss. 2007); McKee v. McKee,
418 So. 2d 764, 767 (Miss. 1982). On remand, Deborah submitted detailed proof touching
on all of the McKee factors. The chancellor clearly found that some of the fees Deborah
requested were unreasonable, as Deborah had gone through at least twelve attorneys, who
had charged “an inordinate amount of money for little courtroom time,” largely due to the
amount of work that had to be duplicated. But the chancellor did not make specific findings
as to the reasonable amounts; and so we again remand for the chancery court to award
attorney’s fees in an amount it determines to be reasonable for Deborah’s legal fees
accumulated to the point addressed in our judgment in Weeks II.
¶19. Our finding of Deborah’s inability to pay reasonable attorney’s fees accumulated prior
to Weeks II is res judicata, but whether she is now able to pay the fees incurred since is a
separate issue. This question was entrusted to the sound discretion of the chancellor. Powell
v. Powell, 644 So. 2d 269, 276 (Miss. 1994). As the chancellor noted, Deborah’s financial
situation remains strong, and penalties associated with withdrawing from her substantial
retirement accounts are no longer the same impediment they were at the time of Weeks II.
See Weeks II, 29 So. 3d at 92-93 (¶58). As Deborah possesses significant liquid assets, we
can find no abuse of discretion in the chancellor’s finding that she is able to pay own her
attorney’s fees for representation since this Court last considered her circumstances.
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Therefore, we affirm the judgment to the extent it denies attorney’s fees accumulated since
Weeks II.
4. Rule 60(b)(6) Motion
¶20. Deborah sought to set aside a 2006 order denying her an increase in alimony. She
argued that Roland fraudulently misrepresented the value of an investment in an apartment
complex. He had “estimated” it to be worth $200,000 in his Rule 8.05 statement, and he
testified (with even more qualification) to the same value at trial. Deborah alleges that, the
day before Roland’s testimony, he had deposited a $300,000 return on the investment, and
he had reported a $520,000 capital gain on the investment on his taxes for 2006. Roland
testified at the hearing that he had qualified his statements of the investment’s value and that
he did not remember making the deposit. He denied that the handwriting on the deposit slip
was his.
¶21. The chancellor found that Deborah had failed to show a fraud on the court, and he
further found that she failed to bring her allegations in a timely fashion – the motion to set
aside the judgment was filed more than seven years after Roland’s alleged misrepresentations
and not within the six-month limit for fraud on a party, nor within a reasonable time as
required by Mississippi Rule of Civil Procedure 60(b)(6). The chancellor found that
valuation of the investment had been a known issue at the 2006 hearing, and Roland’s
testimony there on cross-examination supports this finding. Regarding the value of this
investment, Roland had testified: “I don’t know exactly what [it is], but I believe I put down
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$200,000. [It] may be worth more than that. I just don’t know.” Deborah offers no real
explanation for the seven-year delay in filing the motion, and so we cannot find an abuse of
discretion in the chancellor’s finding that Deborah failed to bring her claim within a
reasonable time as required by Rule 60(b)(6).
5. Content of Record
¶22. In her final issue, Deborah contends that because Roland was the first to file an
appeal, he was required to pay for additional parts of the record that she designated.
However, her argument on this point is cursory, and she fails to distinguish between portions
of the record necessary for responding to issues raised by Roland in his appeal and those she
designated as an appellant in her own right (i.e., the cross-appeal). See M.R.A.P. 10.
Consequently we find that she has failed to demonstrate error on this point, and we deny
relief.
¶23. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY
IS AFFIRMED ON DIRECT APPEAL AND AFFIRMED IN PART AND REVERSED
AND REMANDED IN PART ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO THE APPELLANT/CROSS-APPELLEE.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, JAMES AND
WILSON, JJ., CONCUR. ISHEE AND GREENLEE, JJ., NOT PARTICIPATING.
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