Crieg Alen Oster v. Consuelo Moreno Ratliff , 2016 Miss. App. LEXIS 229 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-00534-COA
CRIEG ALEN OSTER APPELLANT/CROSS-
APPELLEE
v.
CONSUELO MORENO RATLIFF APPELLEE/CROSS-
APPELLANT
DATE OF JUDGMENT: 04/01/2014
TRIAL JUDGE: HON. EDWARD E. PATTEN JR.
COURT FROM WHICH APPEALED: LINCOLN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: M. JUDITH BARNETT
ATTORNEYS FOR APPELLEE: GARY L. HONEA
MICHAEL V. RATLIFF
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: FOUND THAT TWO OF THE PARTIES’
CHILDREN WERE NOT LEGALLY
EMANCIPATED ON JUNE 1, 2012, AND
THAT APPELLANT/CROSS-APPELLEE
WAS NOT IN WILLFUL CONTEMPT;
AWARDED APPELLEE/CROSS-
APPELLANT $2,500 IN ATTORNEY’S
FEES; AND ORDERED APPELLEE/CROSS-
APPELLANT TO PAY ONE-HALF OF THE
COSTS OF A VEHICLE DRIVEN BY ONE
OF THE MINOR CHILDREN
DISPOSITION: AFFIRMED IN PART AND REVERSED
AND REMANDED IN PART – 04/19/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., BARNES AND ISHEE, JJ.
IRVING, P.J., FOR THE COURT:
¶1. Crieg Oster appeals, and his ex-wife, Consuelo Ratliff, cross-appeals, from the
judgment of the Chancery Court of Lincoln County that disposed of issues presented in post-
divorce petitions for citations of contempt filed by them against each other. On appeal, Crieg
raises one issue: whether the chancellor erred in finding that his and Consuelo’s children,
Maria and Patrick Oster, were not legally emancipated on June 1, 2012. On cross-appeal,
Consuelo asserts that the chancellor erred in failing to (1) find Crieg in contempt of court;
(2) award her sufficient attorney’s fees; and (3) award her interest on the judgment. She also
asserts that the chancellor erred, under Rule 8(c) of the Mississippi Rules of Civil Procedure,
in allowing Crieg to argue that his failure to meet his child-support obligations was a result
of Maria’s and Patrick’s legal emancipation. Also, she insists that the chancellor erred in
requiring her to pay one-half of the costs of a car provided to Maria by Crieg.
¶2. We find that the chancellor did not err in (1) allowing Crieg to pursue his
emancipation argument, (2) failing to find Crieg in contempt, (3) awarding Consuelo only
$2,500 in attorney’s fees, and (4) ordering Consuelo to pay one-half of the costs of the car
that Crieg provided for Maria. However, we find that the chancellor erred in not awarding
Consuelo post-judgment interest on the award. Therefore, we affirm in part, reverse in part,
and remand for the assessment of post-judgment interest.
FACTS
¶3. Crieg and Consuelo have four children: Marcus Oster, born May 22, 1983; Nicholas
Oster, born April 11, 1988; Patrick Oster, born September 6, 1991; and Maria Oster, born
May 27, 1994. On April 20, 2007, Crieg and Consuelo were divorced, and in the judgment
of divorce, the chancery court awarded Consuelo primary physical custody of Patrick and
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Maria.
¶4. On March 11, 2013, after Crieg and Consuelo had made extrajudicial arrangements
concerning child support and child custody, Crieg filed a petition for a citation of contempt
against Consuelo. In his petition, Crieg alleged that Consuelo had failed to pay one-half of
the costs of the vehicles driven by Maria and Patrick, one-half of their college costs and
expenses, and child support. Crieg also alleged that Consuelo had failed to provide him with
documentation reflecting the children’s medical expenses. On June 10, 2013, Consuelo filed
her responsive pleading, in which she petitioned the chancery court for a citation of contempt
against Crieg. She alleged that Crieg had failed to meet his child-support obligations and
payment of one-half of the children’s medical expenses.
¶5. At the hearing in this matter, the chancellor, over Consuelo’s objection, allowed Crieg
to argue that his failure to meet his child-support obligations was due, in large part, to the
fact that Maria and Patrick were legally emancipated on June 1, 2012, when they moved out
of Consuelo’s house and into an apartment. After the hearing, the chancellor found that (1)
Maria and Patrick were not emancipated on June 1, 2012; (2) Crieg was not in contempt; and
(3) Consuelo was required to pay one-half of the costs of the car provided to Maria by Crieg
for the time that Maria used the car as her only source of transportation. The chancellor also
found that Consuelo was entitled to back child support for Maria and Patrick and future child
support for Maria. The chancellor further found that Consuelo was entitled to $2,500 in
attorney’s fees due to Crieg’s discovery violations.
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DISCUSSION
¶6. The standard of review in domestic-relations cases is well settled: “[Appellate courts]
will not disturb the findings of a chancellor in domestic[-]relations matters unless the
chancellor’s decision was manifestly wrong [or] clearly erroneous[] or [unless the chancellor]
applied an erroneous legal standard.” Lewis v. Pagel, 172 So. 3d 162, 172 (¶16) (Miss. 2015)
(citation omitted). “Chancellors are afforded wide latitude in fashioning equitable remedies
in domestic[-]relations matters, and their decisions will not be reversed if the findings of fact
are supported by substantial credible evidence in the record.” Id. (citation omitted). “We
review questions of law de novo.” Id. (citation omitted).
I. Emancipation
¶7. As stated, Crieg argues that Maria and Patrick were legally emancipated on June 1,
2012, when they moved out of Consuelo’s house and into an apartment, where they lived as
roommates. According to Crieg, both children’s emancipation is evidenced by the fact that
they filed independent tax returns, obtained full-time employment, and supported themselves
financially. He insists that Maria’s emancipation is also evidenced by the fact that she, as
discussed later in this opinion, purchased a car. In response, Consuelo argues that Crieg
waived his emancipation argument because he failed to properly plead it as an affirmative
defense under Rule 8, and she insists that the chancellor should not have allowed him to
pursue this argument during the hearing. In the alternative, Consuelo insists that the
chancellor did not err in finding that Maria and Patrick were not emancipated on June 1,
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2012.
¶8. Rule 81 of the Mississippi Rules of Civil Procedure applies to, among other things,
child custody, child support, and contempt actions. M.R.C.P. 81(d)(1), (2). It provides:
Complaints and petitions filed in the actions and matters enumerated in
subparagraphs (1) and (2) above[, which includes child custody, child support,
and contempt actions,] shall not be taken as confessed.
. . . No answer shall be required in any action or matter enumerated in
subparagraphs (1) and (2) above but any defendant or respondent may file an
answer or other pleading or the court may require an answer if it deems it
necessary to properly develop the issues. A party who fails to file an answer
after being required so to do shall not be permitted to present evidence on his
behalf.
M.R.C.P. 81(d)(3), (4).
¶9. So under Rule 81, Crieg was not required to respond to Consuelo’s petition without
being ordered to do so, and the record does not establish that the chancellor ordered him to
respond. Therefore, Consuelo’s assertion—that the chancellor erred in allowing Crieg to
argue emancipation during the hearing despite his failure to raise the argument in his
responsive pleadings—is misplaced. It necessarily follows that Crieg also was not required
to raise any arguments or plead any defenses prior to the hearing. Consequently, we find that
the chancellor did not err in allowing Crieg to pursue his emancipation argument.
¶10. As noted, the chancery court awarded Consuelo primary physical custody of Maria
and Patrick. They lived with Consuelo in her home until on or around June 1, 2012, when
they moved into an apartment. During the hearing in this matter, Maria and Patrick both
testified that before they moved into the apartment, Crieg helped them establish utility
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services by putting the services in his name and paying the respective deposits. According
to Patrick, he and Maria were unable to establish the service in their names due to credit
issues. Crieg, Maria, and Patrick each testified that while Maria and Patrick were living in
the apartment, they were both full-time college students,1 who maintained full-time
employment. Testimony revealed that after Maria and Patrick moved into the apartment,
both Crieg and Consuelo assisted them financially. Crieg also testified that he planned to
continue assisting the children financially. After hearing the testimony, the chancellor found
that the evidence did not support a finding that Maria was emancipated. The chancellor also
found that Patrick was not legally emancipated until September 5, 2012, his twenty-first
birthday. See Miss. Code Ann. § 93-11-65(8)(a)(i) (Rev. 2013).
¶11. Under Mississippi Code Annotated section 93-11-65(8)(b) (Rev. 2013), a minor child
is legally emancipated when he or she does one of the following:
(i) Discontinues full-time enrollment in school having attained the age of
eighteen . . . years, unless the child is disabled, or
(ii) Voluntarily moves from the home of the custodial parent or guardian,
establishes independent living arrangements, obtains full-time
employment[,] and discontinues educational endeavors prior to
attaining the age of twenty-one . . . years, or
(iii) Cohabits with another person without the approval of the parent
obligated to pay support[.]
¶12. Crieg argues that under section 93-11-65(8)(b)(ii), Maria and Patrick were legally
1
Maria was a full-time student at Jones County Junior College, and Patrick was a
full-time student at the University of Southern Mississippi.
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emancipated because they moved out of Consuelo’s house and obtained full-time
employment. However, Maria and Patrick were both full-time students during the entire time
that they lived in the apartment. And during that time, they had not established independent
living arrangements, as even Crieg admitted that he assisted them financially. As such, there
was substantial evidence to support the chancellor’s finding that Maria and Patrick were not
emancipated on June 1, 2012. Therefore, it necessarily follows that the chancellor did not
err in his finding that Maria’s and Patrick’s June 1, 2012 move into a shared apartment did
not result in their emancipation. This issue is without merit.
II. Contempt
¶13. Consuelo argues that the chancellor erred in failing to find Crieg in contempt based
upon Crieg’s failure to pay child support after June 1, 2012, and his failure to pay one-half
of Maria’s and Patrick’s health-insurance premiums after that date. In response, Crieg argues
that the chancellor did not err because his failures to pay were not willful.
¶14. Testimony presented during the hearing revealed that before Maria and Patrick moved
into the apartment, Consuelo and Crieg had several discussions regarding an extrajudicial
child-custody modification. During a discussion that took place in or around April 2012,
Consuelo informed Crieg that she would not oppose a petition for modification of child
custody filed by him if, by June 1, 2012, he provided Maria and Patrick with transportation,
along with car insurance and health insurance, and helped them secure an apartment. So, as
previously discussed, Crieg helped the children secure their apartment, and as discussed
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below, he purchased Maria a car and obtained health insurance for both children. Crieg
testified that he failed to pay child support from June 1, 2012, until the time of the hearing
because he believed that, as a result of his complying with Consuelo’s terms, he had been
granted custody of the children. So he believed that he had been relieved of his duty to pay
child support. Although Crieg admitted that he had failed to pay one-half of the costs of
Maria’s and Patrick’s medical-insurance premiums, he testified that he had been under the
impression that those costs were being deducted from his paycheck pursuant to an order of
withholding issued by the chancery court. During her testimony, Consuelo admitted that she
and Crieg had made extrajudicial arrangements concerning child support and child custody,
but she denied informing Crieg that he was Maria and Patrick’s custodial parent. Further,
she testified that she did not pay child support to Crieg because there was no court order
requiring her to do so.
¶15. While Patrick and Maria were living in the apartment, Maria received medical
treatment at St. Dominic Hospital and GI Associates, both located in Jackson, Mississippi.
During the hearing, the parties stipulated that Consuelo had failed to provide Crieg with
copies of the children’s medical bills, with the exception of the invoices for the treatment that
Maria had received at St. Dominic’s and GI Associates. Also, Consuelo admitted that Crieg
had not failed to pay one-half of the costs of that treatment. Instead, she testified that as a
result of some insurance issues, she and Crieg were awaiting a determination by his and her
insurance companies as to exactly how much they owed and that after that determination was
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made, she and Crieg would both pay one-half of the remaining balance.
¶16. After hearing the evidence, the chancellor ruled from the bench that Crieg was not in
willful contempt of court. In the final judgment, the chancery court ordered the parties to
take the necessary steps to have their respective insurance policies pay for the treatment
Maria received at St. Dominic’s and GI Associates and to each pay one-half of the remaining
balance. The court also ordered Crieg to pay one-half of the children’s medical-insurance
premiums. The court further ordered Crieg to pay back child support for Patrick from June
2012 to September 2012, to resume paying child support for Maria, and also to pay back
child support for her from June 2012.
¶17. In Ellis v. Ellis, 840 So. 2d 806 (Miss. Ct. App. 2003), this Court set forth the standard
of review for contempt proceedings. There, we stated:
Contempt matters are committed to the substantial discretion of the trial court
which, by institutional circumstance and both temporal and visual proximity,
is infinitely more competent to decide the matter than we are. If the contemnor
has willfully and deliberately ignored the order of the court, then the finding
of contempt is proper. This Court will not reverse a contempt citation where
the chancellor’s findings are supported by substantial credible evidence.
Id. at 811 (¶16) (internal citations and quotation marks omitted).
¶18. Applying this standard of review and considering the evidence before the chancellor,
we cannot say that the chancellor’s findings are not supported by substantial credible
evidence. Therefore, we do not find that the chancellor erred in failing to find Crieg in
willful contempt. To be clear, we give no credence to the extrajudicial arrangements made
by Crieg and Consuelo. Rather, our decision is based solely on our standard of review of the
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chancellor’s findings. This issue is without merit.
III. Attorney’s Fees
¶19. Consuelo argues that the chancellor should have awarded her attorney’s fees because
Crieg was in willful contempt. If the chancellor had found Crieg in contempt for his failure
to pay the court-ordered child support, Consuelo would be correct. In Evans v. Evans, 75 So.
3d 1083, 1090 (¶27) (Miss. Ct. App. 2011) (citing Mount v. Mount, 624 So. 2d 1001, 1005
(Miss. 1993)), we noted that “[a]ttorney’s fees are properly assessed against a party found
to be in contempt.” Here, there was substantial evidence supporting the chancellor’s decision
not to assess attorney’s fees against Crieg because, as discussed, the chancellor did not find
Crieg in contempt. This issue is without merit.
¶20. Before the hearing in this matter, the chancery court ordered Crieg several times to
respond to certain discovery requests filed by Consuelo. In the final judgment, as a sanction
for Crieg’s failure to comply with discovery, the chancery court ordered him to pay $2,500
in attorney’s fees, but did not award any attorney’s fees for his failure to make the child-
support payments after June 2012. We find no error here.
IV. Judgment Interest
¶21. Consuelo argues that under Mississippi Code Annotated section 75-17-7 (Rev. 2009),
the chancellor erred in failing to award post-judgment interest on the judgment against Crieg.
In response, Crieg argues that this issue is barred because Consuelo failed to raise it during
the hearing. In the alternative, he argues that an award of interest on the judgment would
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have been punitive in nature and would have resulted in a windfall for Consuelo.
¶22. In the final judgment, the chancery court did not award Consuelo interest on the
judgment. Section 75-17-7 provides, in relevant part: “All other judgments or decrees shall
bear interest at a per annum rate set by the judge hearing the complaint from a date
determined by such judge to be fair but in no event prior to the filing of the complaint.”
Under that section, “it is error, as a matter of law, for a chancellor not to award interest on
a judgment for past-due support.” Caplinger v. Caplinger, 108 So. 3d 992, 999 (¶25) (Miss.
Ct. App. 2013) (citation omitted). Under a different set of circumstances, we would agree
with Crieg that the issue is procedurally barred because Consuelo failed to raise this issue for
resolution by the chancery court (see Scally v. Scally, 802 So. 2d 128, 131 (¶¶27-28) (Miss.
2001) (citations omitted)), but because this involves child support, which cannot be waived,
we see no reason why interest on it should be waived. Moreover, section 75-17-7 makes it
clear that a judge should award interest at a per annum rate on judgments such as this one.
The chancery court rendered a judgment in favor of Consuelo for $7,819.50 in past-due child
support and insurance premiums and $2,500 in attorney’s fees, which were incurred in
attempting to collect past-due child support from Crieg. Interest should be calculated on
these amounts.
V. Payments for the Optima
¶23. Consuelo insists that the chancellor erred in finding that she owes Crieg for one-half
of the costs of a 2012 Kia Optima that Crieg purchased for Maria because he purchased it
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without Consuelo’s input. In the alternative, she argues that the chancellor should have
found that Crieg was required to pay one-half of the costs of a 2012 Nissan Maxima that
Maria purchased after Crieg took the Optima from her.
¶24. Testimony presented during the hearing established that while Maria was in high
school, Consuelo purchased her a 2010 Nissan Altima to drive during her senior year of high
school and during her college years. However, Maria’s use of the car was conditioned upon
her living on campus or with Consuelo during college. At some point, Maria made it clear
that she preferred to live in an apartment, so Consuelo prohibited her from driving the
Altima. After that, Maria and Patrick moved into the apartment.
¶25. Crieg testified that based on his and Consuelo’s discussions regarding child custody,
he purchased the Optima for Maria on May 24, 2012. The Optima was financed in Crieg’s
wife’s name, and Maria used it as her only source of transportation until on or around July
31, 2013. After an argument between Crieg and Maria, she informed him that she no longer
wished to drive the Optima. Crieg later apologized to Maria and offered to let her keep the
car, but she refused, and she later purchased the Maxima, which she had financed partially
in her name. Consuelo’s husband co-signed for that car, but Maria was financially
responsible for the car payments.
¶26. Consuelo failed to pay one-half of the costs of the Optima and the insurance premiums
for it. During the hearing, Crieg testified that the notes for the Optima were $350 per month,
and he asked the chancellor to order Consuelo to reimburse him for one-half of those costs
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and the costs of the insurance premiums for the Optima for the time that Maria drove it.
Crieg failed to submit evidence showing the costs of the insurance premiums. Also during
the hearing, Consuelo asked the chancellor to order Crieg to pay one-half the costs of the
Maxima, including the insurance premiums for it.
¶27. During the hearing, in ruling from the bench, the chancellor stated:
Now, under the terms of the [p]roperty [s]ettlement [a]greement, each [party]
is responsible for one-half of the transportation, and the court finds that
[Consuelo] owes $2, 275 for the [Optima]. Now, there is no evidence of the
amount of [the] insurance or the tag, and that claim is denied and is now barred
for failure to present evidence on that issue[.]
Now, [Consuelo] . . . has a different claim, and that involves . . . [the] Maxima.
...
The court finds that [Crieg] complied with the . . . [a]greement when he
offered the use of the Kia to Maria. When she rejected the vehicle, she
relieved him of [his] responsibility to pay for a vehicle of her own choosing.
Providing “transportation” does not encompass purchasing an asset to be
owned by the minor.
¶28. In the final judgment in this matter, the chancery court ordered Consuelo to pay
one-half of the costs of the Optima for the time that Maria used it for transportation and
ordered each party to pay one-half of the costs of the insurance premiums for the Maxima.
Because Crieg had failed to establish the amount of the insurance premiums for the Optima,
the court did not order Consuelo to pay one-half of those insurance costs.
¶29. The property-settlement agreement provided:
[Crieg] and [Consuelo] agree that should [Maria] and [Patrick] show an
inclination and talent to attend college, [then Crieg] and [Consuelo] each agree
to pay for one-half . . . of the college tuition. [They] further agree to each pay
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one-half . . . of the expenses[,] including but not limited to books, activity fees,
transportation, food, board and other expenses incurred while [Maria] and
[Patrick] attend college.
The record reveals that before Maria purchased the Maxima, she had the option of driving
the Optima. This is because Crieg had not physically confiscated the Optima, and even after
Maria informed Crieg that she no longer wished to drive the car, he informed her that he
wished for her to have it. Maria’s decision to purchase the Maxima — although one her
mother clearly supported for some reason — was not one of necessity, as there was no need
for her to create a new debt in order for her to have transportation. So we do not find that
the chancellor abused his discretion in ordering Consuelo to pay one-half of the costs of the
Optima for the time that it was used as Maria’s source of transportation or in failing to
require Crieg to pay one-half of the costs of the Maxima. This issue is without merit.
¶30. In conclusion, we find substantial evidence supporting the chancellor’s findings
regarding emancipation, contempt, attorney’s fees, and the Optima; so we affirm on those
issues. However, because we find that the chancellor erred as a matter of law in failing to
award Consuelo interest on the judgment, we reverse and remand for a determination of post-
judgment interest.
¶31. THE JUDGMENT OF THE CHANCERY COURT OF LINCOLN COUNTY
IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL
COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE
APPELLANT/CROSS-APPELLEE AND ONE-HALF TO THE APPELLEE/CROSS-
APPELLANT.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, JAMES, WILSON
AND GREENLEE, JJ., CONCUR. FAIR, J., NOT PARTICIPATING.
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