Bobby Scott Culberson v. Tammi Letitia Culberson ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-01465-COA
BOBBY SCOTT CULBERSON APPELLANT
v.
TAMMI LETITIA CULBERSON APPELLEE
DATE OF JUDGMENT: 09/09/2014
TRIAL JUDGE: HON. JOHN S. GRANT III
COURT FROM WHICH APPEALED: RANKIN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: CHRISTOPHER A. TABB
ATTORNEY FOR APPELLEE: M. JUDITH BARNETT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: ORDERED ATTORNEY’S FEES PAID FOR
BACK CHILD SUPPORT; DENIED OTHER
CONTEMPT MOTIONS; DENIED
MODIFICATION OF CHILD SUPPORT;
MODIFIED VISITATION
DISPOSITION: AFFIRMED: 03/15/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., CARLTON AND FAIR, JJ.
FAIR, J., FOR THE COURT:
¶1. Scott and Tammi Culberson were divorced in 2005, with Tammi getting physical
custody of their two daughters. In 2013, Tammi filed a contempt petition alleging that Scott
was in arrears as to child support and various education expenses he had been required to
help pay. The petition also sought to increase those obligations. Scott filed his own petition
for contempt, alleging that Tammi had denied him visitation, and he also sought to terminate
his child support obligation because he alleged the girls – who were sixteen and nineteen at
the close of the trial – would no longer speak to him.
¶2. The hearing was held on three separate days over almost a year. On the second day,
in January 2014, the chancellor accepted a proffered agreement of the parties that Scott and
his daughters would attend counseling to repair their relationship. The parties also settled
some of their initial financial disputes, and they agreed to suspend Scott’s legally binding
child support obligations, based on the daughters’ statements that they believed Scott only
helped provide for them because he was required to do so by court order. The chancellor
instructed Tammi’s attorney to prepare an order implementing these agreements, but one was
never entered. Apparently, it was expected that Scott would continue to pay the support
voluntarily, but after the agreement he ceased paying for many of the things he had
previously been ordered to pay, including monthly child support paid directly to Tammi.
¶3. On the third hearing date, in August 2014, it was reported that the attempts to
reconcile Scott to his daughters had met only limited success – they had attended counseling,
but separately at the daughters’ request. They had met for lunch about once a month, at the
counselors’ suggestion, but continued to have little contact and no overnight visitation. The
older daughter testified that she still hoped for a relationship with her father, but she faulted
him for a lack of initiative and enthusiasm, and she admitted she would prefer a gradual
reintroduction. At trial, Scott asked either that the court order his daughters to visit or that
his support obligation be terminated based on their refusal to visit with him.
¶4. The chancellor found Scott in contempt for his failure to pay certain child support
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obligations in a timely fashion, and he awarded Tammi $2,500 in attorney’s fees for that
portion of the action. The chancellor otherwise declined to find either party in contempt and
denied Scott’s request to find Tammi in contempt for her failure to force their daughters to
participate in visitation. Next, the chancellor ordered that the visitation schedule be modified
so that visitation would be allowed at any time, as long as both Scott and the children agreed.
The chancellor also found that because no order was entered modifying the child support
obligation, Scott was responsible for paying the child support to Tammi during the time they
had agreed it would be voluntary.
¶5. Scott has appealed. We find no error and affirm.
STANDARD OF REVIEW
¶6. “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,
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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
1. Contempt
¶7. Scott contends that the chancellor erred in finding him in contempt for not paying
child support after the February 2014 temporary agreement that it would be voluntary. This
argument appears to be based on a misunderstanding of the chancellor’s decision; the
chancellor found Scott in contempt for failing to pay child support that was due prior to
Tammi’s initial contempt motion. The chancellor expressly declined to find Scott in
contempt regarding the support due after the February 2014 agreement. Announcing his
ruling from the bench, the chancellor said:
Is Mr. Culberson in contempt for failure to pay child support since February
of 2014, and for failure to pay medical bills, and for failure to pay that $1,000
that was due for extra curricular activities? The answer is no, he’s not in
contempt. He didn’t think he owed it; but there was never an order entered.
The written judgment that followed also expressly declined to find Scott in contempt. We
find no merit to this issue.
2. Back Child Support
¶8. Next, Scott argues that the chancellor erred in requiring him to pay the monthly child
support that came due during the time he and Tammi had agreed paying it would be
voluntary. The agreement was announced in open court and approved by the chancellor; but
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no order was ever entered. Scott argues on appeal that the chancellor should have entered
the order nunc pro tunc, so that it would have retroactive effect.
¶9. This issue is procedurally barred, because so far as the record reveals, this entire issue
has been raised for the first time on appeal. Scott never submitted an order implementing the
agreement, much less asked that it be entered nunc pro tunc, the relief he now seeks. Before
the chancery court, Scott’s argument was brief and unclear, but he appears to have argued
only that the agreement to end child support should be incorporated into the final judgment,
ending child support going forward from the August 2014 hearing date – not for an order
implementing the agreement retroactively.
¶10. The Mississippi Supreme Court “has long held that it will not consider matters raised
for the first time on appeal.” Fowler v. White, 85 So. 3d 287, 293 (¶21) (Miss. 2012)
(citation omitted). This is because the “practice would have the practical effect of depriving
the trial court of the opportunity to first rule on the issue, so that we can then review such
trial court ruling under the appropriate standard of review.” Id. (citation omitted). This
issue is procedurally barred.
¶11. Notwithstanding the procedural bar, it is clear that under Mississippi law, the
chancellor was correct in his determination that, absent an order entered on the minutes, the
child support obligation continued. “Only the court can grant a judgment to modify a parent's
support obligation; thus, a party making an extrajudicial modification does so at his peril.”
Brewer v. Holiday, 135 So. 3d 117, 121 (¶15) (Miss. 2014) (citations and internal quotation
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marks omitted). When the chancery court does not enter an order implimenting an agreement
of the parties, it does not err in refusing to enter it later, nunc pro tunc. Id.; see also Shumake
v. Shumake, 147 So. 3d 352, 356 (¶14) (Miss. 2014).
3. Modification of Visitation
¶12. Finally, Scott argues that the chancellor erred in modifying the visitation schedule.
The initial order had called for regular overnight visitation, holidays, and so forth, but the
testimony at trial was that it had not been followed for years. At the second day of the
hearing, the chancellor ordered Scott and his daughters to attend counseling, which met with
limited success.
¶13. Scott blamed his daughters, and they apparently blamed him; but the daughters had
also continuously expressed a desire to mend their relationship. At the hearings, Scott
vacillated between arguing that the court should require the daughters to visit him and asking
that the court terminate his child support based on their refusal to do so. On appeal, he
argues only that the chancellor erred in modifying the visitation schedule – the chancellor
ordered that visitation be allowed at any time it was requested by the children, but that they
would not be compelled to go.
¶14. “When modifying a visitation order, it must be shown that the prior decree for
reasonable visitation is not working and that a modification is in the best interest of the
child[ren].” Ellis v. Ellis, 840 So. 2d 806, 812 (¶25) (Miss. Ct. App. 2003).
¶15. There can be no doubt that the prior visitation schedule was not working. The
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testimony was that visitation had not occurred as scheduled for years, and that during that
time Scott had limited contact with the girls. He had essentially given up on visitation for
many months at a time, and he never acted to enforce the visitation order until after Tammi
sued him for contempt.
¶16. Furthermore, although the chancellor only used the magic words “best interest of the
children” once, it is clear he considered it at length. The chancellor spoke about the
relationship between Scott and the children, the problems they had had, and what he believed
was a path to reconciliation. The chancellor found that the girls had a sincere desire to
reconnect with their father, but because they were nearing adulthood (and the oldest was
already attending college away from home) it would be counterproductive to try to force
them along faster than they were comfortable doing on their own. The chancellor thus
allowed Scott unlimited communication and visitation, with the only condition being that the
children agreed to it. “[W]e are mindful that a court is not bound by the wishes of a child as
to visitation rights with a parent,” but given the facts of this case, we can find no abuse of
discretion in the chancellor’s finding that this visitation arrangement was in their best
interest. See Ross v. Segrest, 421 So. 2d 1234, 1236 (Miss. 1982).
¶17. THE JUDGMENT OF THE CHANCERY COURT OF RANKIN COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
JAMES AND WILSON, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.
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