DocketNumber： No. 2011-CA-01401-SCT
Citation Numbers： 110 So. 3d 307, 2013 WL 1339401, 2013 Miss. LEXIS 144
Judges： Chandler, Coleman, Dickinson, King, Kitchens, Lamar, Pierce, Randolph, Waller
Filed Date： 4/4/2013
Status： Precedential
Modified Date： 10/19/2024
for the Court:
¶ 1. After a lengthy battle regarding child custody, visitation, and child support, a chancellor granted Frankie Reasor custody of his teenage daughter. But the chancellor found Reasor in arrears on child-support payments, held him in contempt, and entered a judgment in favor of Rose Jordan for back child support. This appeal concerns a subsequent hearing in which a second chancellor determined the amount of arrears, entered a fifty-five-percent withholding order to collect the judgment, and ordered Reasor to pay Jordan’s attorney’s fees.
¶ 2. Reasor raises five issues on appeal: I. Whether the chancellor erred by proceeding with trial without Reasor’s counsel present.
*309 II. Whether the chancellor erred in finding Reasor in contempt without the requisite Rule 81(d) notice.
III. Whether the chancellor erred by conducting a hearing on Jordan’s motion for status conference.
IV. Whether the chancellor erred by not considering other issues pending before the court.
V. Whether the chancellor erred by entering a fifty-five-percent withholding order.
On the first four issues, we affirm the chancellor’s rulings. However, we find the chancellor erred by entering a fifty-five-percent withholding order.
FACTS AND PROCEDURAL HISTORY
¶3. According to Reasor, Jordan had denied him visitation. Thus, in 2000, he filed a complaint to establish visitation rights with his daughter. Reasor also had requested the court determine his child-support obligation. On June 14, 2001, the chancellor entered an order which granted Reasor visitation and ordered him to pay $283 per month in child support and $78.40 toward the child’s medical insurance.
¶ 4. In 2005, Reasor filed a complaint to obtain custody of his daughter. In his complaint, Reasor stated that Jordan had denied him visitation because of his failure to pay child support. This complaint later was dismissed for want of prosecution.
¶ 5. In 2008, Jordan filed a petition for contempt against Reasor, claiming that he had failed to make child-support and medical-insurance payments. She submitted a support-collections ledger with her petition, which showed that Reasor’s last payment had been made February 24, 2004. In response, Reasor filed an answer and counterclaim for custody of their teenage daughter, alleging a material change in circumstances.
It is further considered, ordered, and adjudged that a judgment will be entered in favor of the Petitioner for the arrearage as requested in her Petition for Contempt and at such time as the Court reviews the financial information, the undersigned Chancellor shall enter an order as to the issue of contempt as it relates to the arrearage.
¶ 6. Years went by without any formal action in the case.
I was told by Judge Thomas that I was supposed to provide a financial statement, and once we both did that, within two weeks we would decide how much I was supposed to pay ... I never got it, so I don’t know what I’m supposed to pay. I’m here because I thought that was what I was here for, to find out what I was supposed to pay. It was already determined I was in arrears. This was not forced child-support. I put myself on child-support, and I cut it off. I did. Maybe I shouldn’t have, but I thought the same thing about not being able to see my child, not being able to talk to her. I felt like that was wrong too, and I cut if off. I did. So I realize that I do owe some money....
Jordan testified that, since the 2008 hearing, Reasor had not paid toward the judgment.
¶ 8. The chancellor questioned Reasor about his finances, employment, and living expenses. On August 19, 2011, the chancellor entered judgment for Jordan and ordered Reasor to pay $24,428.37 in arrears and $2,000 in attorney’s fees. The chancellor also entered an order to withhold fifty-five percent of Reasor’s monthly income until the judgment was paid in full. The chancellor reserved his ruling on contempt and reset the matter to be reviewed during the next term of court Aggrieved, Reasor, now represented by counsel, timely filed his notice of appeal.
ANALYSIS
I. Due Process: Right to Counsel
¶ 9. Because the chancellor proceeded with the hearing absent Reasor’s attorney, Reasor argues that he was denied due process.
¶ 10. A party is not entitled to a lawyer in a civil proceeding of this nature. Goodin v. Miss. Dep’t of Human Servs., 772 So.2d 1051, 1055 (¶12) (Miss.2000) (finding chancellor did not err by requiring defendant to represent himself in back-child-support action). In fact, the Mississippi Constitution grants litigants the right to represent themselves. Miss. Const. art. 3, § 26. “[CJounsel should be appointed only in cases in which, if the unrepresented party loses, he ‘may be deprived of his physical liberty.’ ” Goodin, 772 So.2d at 1055 (¶ 12) (quoting Lassiter v. Dep’t of Soc. Servs. of Durham County, N.C., 452 U.S. 18, 26-27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640, 649 (1981)).
¶ 11. In 2008, the chancery court had entered a judgment against Reasor, finding him in arrears, but the order did not state the amount owed. After Rea-sor’s attorney had filed the motion to withdraw as counsel, Reasor had ten months to
¶ 12. During the 2011 hearing, Reasor admitted he had not paid his arrears; he knew he owed something; but he was waiting for the court to provide that information. In the 2011 hearing, the chancellor did exactly this — performed a mechanical computation to determine the amount owed by Reasor to Jordan. The chancellor declined to address the contempt issue, setting the case for review at a later date.
¶ 13. We find that the chancellor did not err by allowing Reasor to proceed pro se. Also, because the chancellor did not address contempt in the 2011 hearing, we find Reasor was not denied due process. This issue is without merit.
II. Due Process: Notice
¶ 14. Reasor claims that he was not served properly with notice of the 2008 and 2011 hearings pursuant to Mississippi Rule of Civil Procedure 81(d).
¶ 15. Following the 2008 hearing, the parties reached an agreement regarding custody and the child-support arrearage.
¶ 16. Jordan filed her “Motion for Status Conference” and requested the court to determine the amount Reasor owed her. At no time did she request that Reasor be held in contempt. During the 2011 hearing, Reasor indicated “I’m here because I thought that was what I was here for, to find out what I was supposed to pay. It was already determined I was in arrears. This was not forced child-support. I put myself on child-support.” The chancellor determined the amount of arrears owed but did not rule on any contempt claims,
¶ 17. This Court is not obliged to review issues unless they are properly preserved for appeal. Dennis v. Dennis, 824 So.2d 604, 611 (¶ 18) (Miss.2002). When a person elects to proceed pro se, he “is bound by the same rules of practice and procedure as an attorney.” Bullard v. Morris, 547 So.2d 789, 790 (Miss.1989). Because Reasor failed to claim insufficient service of process at both hearings, we find the issue has been waived and is barred procedurally from review. See Dennis, 824 So.2d at 611 (¶ 18) (the defendant voluntarily appeared before the court, allowed the chancellor to adjudicate his claims, and failed to raise the alleged insufficiency of process below). Furthermore, because both chancellors declined to rule on contempt issues, setting the issues for review at a later date, Reasor did not suffer any prejudice. This issue is without merit.
III. Motion for Status Conference
¶ 18. Reasor complains that Jordan was granted relief on a motion which did not exist. Specifically, Reasor argues that Jordan’s “Motion for Status Conference” was insufficient to grant her relief. Jordan claims her “Motion for Status Conference” was properly noticed and that it specifically advised Reasor of the relief being sought — a determination of arrears.
¶ 19. Mississippi Rule of Civil Procedure 7(b)(1) provides that:
An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
M.R.C.P. 7(b)(1). As mentioned previously, Jordan filed her “Motion for Status Conference” to have the 2008 judgment, which found Reasor in arrears, made final. In her “Motion for Status Conference,” Jordan stated to the court:
On December 23, 2008, this Court entered a Judgment in this matter. The Judgment is silent as to a determination of child-support arrearage to be assessed against the Defendant, Frankie L. Reasor. This Court should review this file and matter and make a determination as to the amount of arrearage which should be assessed against the Defendant ... [and Jordan] respectfully requests this Honorable Court to set this matter for a Status Conference on its next available date.
Jordan served this motion twice upon Rea-sor and his attorney of record.
¶ 20. Under Rule 7(b)(1), we find that Jordan’s motion was sufficient and that it specifically advised Reasor of the relief sought. Thus, the chancellor did not err by granting Jordan relief on this motion. This issue is without merit.
IV. Pending Issues
¶21. During the 2011 hearing, Reasor raised his custody and support of the child to oppose Jordan’s request for arrears. Jordan objected, stating that the issue was not properly before the court.
¶ 22. According to Reasor, the chancellor erred by refusing to consider pending issues before the court — specifically a modification of his child-support obligation — which he claims he raised during the 2008 hearing.
¶ 28. The Court considered this precise issue in Goodin v. Department of Human Services, 772 So.2d 1051 (Miss.2000). In Goodin, the Department of Human Services, on behalf of the mother, sued the defendant for back child support. Goodin, 772 So.2d at 1053 (¶ 1). Based on his recent job loss and back injury, the defendant requested the chancellor reduce his past-due and future child-support payments. Id. at 1056 (¶ 19). The chancellor declined. Id. On appeal, the Court affirmed the chancellor’s ruling, holding that “First, Goodin filed no petition for modification of support. As a result, the issue of modification was not properly before the trial court, and any statements relating to the cause of termination are irrelevant to the case.” Id. at 1056-57 (¶¶ 20-21).
¶ 24. Likewise, because Reasor failed to file a petition to modify child support in the trial court, the issue was not properly before the chancellor. Thus, the chancellor properly denied Reasor’s request. This issue is without merit.
V. Withholding Order
¶ 25. Reasor argues that the chancellor’s fifty-five-percent withholding order is oppressive and contrary to law. Because Jordan no longer had custody of their child, Reasor claims that his wages cannot be garnished more than twenty-five percent. Conversely, Jordan contends that the law supports a fifty-five-percent withholding, and the chancellor did not err.
¶ 26. Mississippi Code Section 85-8-4 addresses the execution of garnishments. In pertinent part, Section 85-3-4 limits most garnishments to twenty-five percent of disposable income.
¶ 27. The Court has addressed this issue previously in Sorrell v. Borner, 593 So.2d 986 (Miss.1992). In Sorrell, the parents divorced, the mother was awarded custody, and the father was ordered to pay child support. Id. at 986. Later, the father sought a change in custody. Id. In response, the mother filed a counterclaim for past-due child support. Id. The chancellor awarded the father custody but held him in arrears, entering a judgment in favor of the mother for back child support. Id. The mother obtained a sixty-five percent garnishment on the father’s wages. Id. at 988. Aggrieved, the father filed a petition to modify the order (by offsetting his arrearage by the mother’s child-support obligation), and the chancellor denied his petition. Id. at 986-87.
¶28. On appeal, the father challenged the order, arguing that the garnishment should have been limited to twenty-five percent. Id. at 988. Although the father failed to attack the garnishment in his pleadings, the Court noted that the father made an oral objection at the hearing. Id. at 989. Reviewing the applicable statutes, the Court determined that:
The judgment awarded was for past due child-support, but [the mother] no longer had custody of the children. In our opinion, the legislature did not contemplate the exception language to be used in this situation, and [we] are of the opinion that the restriction listed in § 85-3-4(2)(a) should apply to the garnishment here.
Id. at 988. Accordingly, the court reversed and remanded the chancellor’s judgment. Id. at 988-89.
¶ 29. Applying the Court’s reasoning in Sorrell, the withholding restriction in Section 85 — 3—4(2)(a)(i) should apply to Reasor as well. Like Sorrell, Reasor complained about the amount of the garnishment during his hearing. Also, when the judgment was awarded for past-due child support, Jordan no longer had custody of the child. Thus, the chancellor erred by ordering a fifty-five-percent withholding. Instead, the garnishment should have been limited to twenty-five percent of Reasor’s disposable income. Accordingly, we vacate the order and remand for a proper determination of withholding.
¶ 30. Because the chancellor did not address contempt in the 2011 hearing, we find Reasor was not denied due process. Also, the chancellor did not err by allowing Reasor to proceed pro se.
¶ 31. Because Reasor failed to raise a claim of insufficient service of process below, the claim is procedurally barred from review. Also, because the chancellors declined to rule on contempt issues, resetting the issues for review at a later date, Rea-sor suffered no prejudice.
¶ 32. Jordan’s “Motion for Status Conference” was sufficient and specifically advised Reasor of the relief sought — a determination of back child support. Thus, the chancellor did not err by granting Jordan relief on this motion.
¶ 33. Because Reasor failed to file a petition to modify child support below, the issue was not properly before the chancellor. Thus, the chancellor did not err by denying Reasor’s request.
¶ 34. When the judgment was awarded for past-due child support, Jordan no longer had custody of the child. Thus, the chancellor erred by entering a fifty-five-percent order for withholding. The garnishment should have been limited to twenty-five percent of Reasor’s disposable income. Accordingly, we affirm the judgment in part, vacate the order, and remand the case for further proceedings consistent with this opinion.
¶ 35. AFFIRMED IN PART, VACATED IN PART AND REMANDED.
. Reasor claimed that Jordan's new husband had threatened him and had physically and mentally abused his daughter.
. During that time, Jordan sent the chancellor at least three ex-parte letters, requesting the court order Reasor to pay the back child support.
.The case was noticed for hearing on April 20, 2011, and June 30, 2011. Each time, the notice set forth the specific date, time, and location of the hearing. The notice also stated the purpose of the hearing — to determine the amount of child-support arrears owed by Reasor.
. On October 12, 2010, Reasor's trial counsel had filed a motion to withdraw and requested a sixty-day continuance for Reasor to find other counsel. The motion was never ruled upon. Pursuant to Mississippi Professional Conduct Rule 1.16, trial counsel remained Reasor's lawyer until the chancery court approved his withdrawal. See Miss. Rule of Prof'l Conduct 1.16. But also, the hearing was not held until April 2011, giving Reasor several months to find other counsel.
. Regardless, we review a chancellor’s decision to grant or deny a continuance for an abuse of discretion. J.C.N.F. v. Stone County Dep’t of Human Servs., 996 So.2d 762 (Miss.2008) (finding an indigent mother, facing a termination of parental rights, neither was entitled to appointed counsel nor entitled to a continuance to obtain counsel). Thus, Reasor would not automatically have been entitled to a continuance.
. In a contempt proceeding, due process requires that a defendant be given adequate notice pursuant to Rule 81(d). Vincent v. Griffin, 872 So.2d 676, 678 (¶¶ 6-8) (Miss.2004). Under Rule 81 (d), the defendant must be served with a summons, along with the petition, which instructs the defendant to appear and defend the petition at a specific time and place and informs the defendant that an answer is not necessary. See M.R.C.P. 81(d)(5) cmt. But, ”[t]he due process rights to notice and hearing prior to a civil judgment are subject to waiver.” Dennis v. Dennis, 824 So.2d 604, 610 (¶ 14) (Miss.2002) (quoting D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185-86, 92 S.Ct. 775, 782, 31 L.Ed.2d 124 (1972)).
.The parties read the agreement into the record and specifically agreed "that a judgment will be entered in favor of the mother on the arrearage spoken of in the petition.”
. Reasor and his attorney were served on April 20, 2011. The chancellor assigned to the case recused, and the case was reset for hearing. The case was assigned to a new chancellor. Thereafter, Jordan served Reasor and his attorney with a second notice of hearing on June 30, 2011.
. During the 2008 hearing, Reasor did not request child support from Jordan. In the event the chancellor declined to grant Reasor custody, Reasor requested the chancellor place the child in an aunt’s care. Reasor requested the chancellor order Jordan to pay child support to the aunt, not himself.
. Section 85 — 3—4(2)(a)(i—ii) provides that:
(2) After the passage of the period of thirty (30) days described in subsection (1) of this section, the maximum part of the aggregate disposable earnings (as defined by section 1672(b) of Title 15, United States Code Annotated) of an individual that may be levied by attachment, execution or garnishment shall be:
(a) In the case of earnings for any workweek, the lesser amount of either,
(i) Twenty-five percent (25%) of his disposable earnings for that week, or
(ii) The amount by which his disposable earnings for that week exceed thirty (30) times the federal minimum hourly wage (prescribed by section 206(a)(1) of Title 29, United States Code Annotated) in effect at the time the earnings are payable;....
Miss.Code Ann. § 85 — 3—4(2)(a)(i—ii) (Rev. 2011).
.Section 85-3-4(3)(a)(i) provides that:
The restrictions of subsection (1) and (2) of this section do not apply in the case of: (i) Any order for the support of any person issued by a court of competent jurisdiction or in accordance with an administrative procedure, which is established by state law, which affords substantial due process, and which is subject to judicial review....
Miss.Code Ann. § 85-3-4(3)(a)(i) (Rev.2011).
. Section 85 — 3—4(3)(b)(i—iii) allows for an increase in withholding to enforce an order of support for another person:
(b) Except as provided in subparagraph (b)(iii) of this subsection (3), the maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed:
(i) Where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), fifty percent (50%) of such individual's disposable earnings for that week; and
(ii) Where such individual is not supporting such a spouse or dependent child described in subparagraph (b)(i) of this subsection (3), sixty percent (60%) of such individual’s disposable earnings for that week;
(iii)With respect to the disposable earnings of any individual for that workweek, the fifty percent (50%) specified in subpara-graph (b)(i) of this subsection (3) shall be deemed to be fifty-five percent (55%) and the sixty percent (60%) specified in subpar-agraph (b)(ii) of this subsection (3) shall be deemed to be sixty-five percent (65%), if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the period of twelve (12) weeks which ends with the beginning of such workweek.
Miss.Code Ann. § 85 — 3—4(3)(b)(i—iii) (Rev. 2011).