Adella Marie Bryant Jones v. Joe Gary Bryant

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-02154-COA
ADELLA MARIE BRYANT JONES APPELLANT
v.
JOE GARY BRYANT APPELLEE
DATE OF JUDGMENT: 11/22/2013
TRIAL JUDGE: HON. JAYE A. BRADLEY
COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: WAYNE L. HENGEN
ATTORNEY FOR APPELLEE: HENRY BERNARD ZUBER III
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: PETITION FOR CONTEMPT DENIED
DISPOSITION: AFFIRMED - 04/07/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., ISHEE AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1. Adella Jones appeals the Jackson County Chancery Court’s final judgment finding no
willful or intentional contempt by her ex-husband, Joe Bryant, regarding the payment of Joe’s
military retirement benefits to Adella. Adella claims that the chancellor erred by: (1) failing
to find Joe in contempt of the property-settlement agreement included in Joe and Adella’s
final judgment of divorce and (2) failing to award attorney’s fees to Adella.
FACTS
¶2. On April 3, 2001, the Jackson County Chancery Court granted Joe and Adella a
divorce on the ground of irreconcilable differences. The final judgment of divorce included
a property-settlement agreement, which provided:
[Adella] will receive as property settlement[ ] fifty percent (50%) of [Joe’s]
disposable retirement from the United States Marine Corps/Army National
Guard and fifty percent [50%] of [Joe’s] disposable retirement from the
Veterans Administration which will be paid directly to [Adella] by the United
States Marine Corps/Army National Guard and the Veterans Administration.
¶3. Joe retired from the Veterans Administration on November 1, 2008, and the military
on June 30, 2010. Joe began receiving one hundred percent of his retirement from the
Marine Corps/Army National Guard, as well as one hundred percent of his retirement from
the Veterans Administration. Joe claims that he executed and turned in paperwork and
applications pursuant to all military rules and regulations for his benefits and also for Adella
to receive her one-half of his benefits. Adella claims that Joe never delivered fifty percent
of his retirement from either service to her; instead, he kept the full amount.
¶4. Adella claims that she obtained applications and filed for her portion of both the
Marine Corps/Army National Guard and Veterans Administration retirements in October
2010, unaware of whether or not Joe had retired. She began receiving her portion of Joe’s
retirement pay from the Marine Corps/Army National Guard in January 2011, and from the
Veterans Administration in May 2011. These payments included cost-of-living adjustments.
¶5. On September 19, 2012, Joe filed a motion for modification, seeking a recalculation
of his retirement pay regarding the amount to which Adella is entitled. Joe also asserted in
the motion that Adella remarried and thus no longer possessed entitlement to a survivor
annuity from Joe. On October 29, 2012, Adella filed a motion to dismiss, a response to the
motion for modification, and a counterclaim, asking the chancellor to find Joe in contempt
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for intentionally “fail[ing] and refus[ing]” to deliver to her the portion of his retirement to
which she was entitled. Adella also requested attorney’s fees. On March 12, 2013, Joe filed
an amended motion for modification and contempt. Adella filed her motion to dismiss,
response to the amended motion for modification and contempt, and counterclaim on March
26, 2013.
¶6. At a trial held July 1, 2013, Joe argued that the original property-settlement agreement
concerning military benefits violated federal law. Joe also asserted that his retirement
benefits, and the percentage provided to Adella via the property-settlement agreement,
constituted a “property settlement,” and therefore the amount should have been calculated
at the time of the divorce judgment. The chancellor entered an order granting Adella’s
motion to dismiss, stating that “after reviewing the property settlement agreement, . . . the
provisions regarding military retirement are clear and unambiguous and should not be
modified.” The chancellor also entered a final judgment on August 8, 2013, providing that
“the property settlement agreement requires Adella’s portion of the retirement to be paid by
the United States Marine Corps/Army National Guard and the Veterans Administration rather
than by Joe,” and as a result, “Joe is not in willful and contumacious contempt of the
agreement.” Despite finding no contempt by Joe, the chancellor found that Adella “is
entitled to a judgment for her one-half of the retirement,” and awarded Adella a monetary
judgment of $46,433 for her one-half portions of the Veterans Administration and Marine
Corps/Army National Guard retirements.
¶7. On August 16, 2013, Adella filed a motion to alter or amend, upon which the
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chancellor heard arguments from the parties on November 22, 2013. After the hearing, the
chancellor entered her order partially granting the motion to alter or amend, amending the
final judgment to correct a typographical error and reflect a different judgment amount as
well as to include post-judgment interest. The chancellor denied Adella’s request that Joe
be held in contempt of the judgment of divorce and also denied her request for attorney’s
fees.
¶8. Adella now appeals the August 8, 2013 final judgment and also the November 22,
2013 order partially granting the motion to alter and amend; specifically, the chancellor’s
finding of no contempt by Joe and the denial of attorney’s fees.
STANDARD OF REVIEW
¶9. “A chancellor's findings will not be disturbed when supported by substantial evidence
unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or
applied an erroneous legal standard.”• Faerber v. Faerber, 150 So. 3d 1000, 1005 (¶11)
(Miss. Ct. App. 2014).
¶10. The Mississippi Supreme Court has established that “[a] citation for contempt is
determined upon the facts of each case and is a matter for the trier of fact.” Milam v. Milam,
509 So. 2d 864, 866 (Miss. 1987). A citation for contempt is proper where a party “has
willfully and deliberately ignored the order of the court.” Strain v. Strain, 847 So. 2d 276,
278 (¶4) (Miss. Ct. App. 2003). This Court will affirm the factual findings of the chancellor
in civil contempt cases unless manifest error is present. Id. “Contempt matters are
committed to the sound discretion of the trial court, and we will not reverse where the
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chancellor's findings are supported by substantial credible evidence.” Id.DISCUSSION
¶11. Adella argues that the chancellor erred in failing to hold Joe in willful and
contumacious contempt of the property-settlement agreement included in the final judgment
of divorce. She asserts that Joe failed to show that he possessed a genuine inability to pay
the retirement benefits as ordered by the chancellor. Adella also argues that she is entitled
to an award of attorney’s fees due to Joe’s contempt.
¶12. Joe argues that the property-settlement agreement, as ultimately found by the
chancellor, was clear and unambiguous, requiring that the benefits “would be paid directly
to the wife by the United States Marine Corps/Army National Guard and Veterans
Administration.” Joe maintains that he did everything required of him to ensure payment of
his retirements benefits, and he claims that Adella failed to assert her rights to the benefits
until years later. Joe argues that Adella possessed the affirmative obligation to turn in her
application within one year from the date of divorce, and she failed to fulfill this obligation
until years later.
¶13. We recognize that a citation for contempt is proper where a party “has willfully and
deliberately ignored the order of the court.” Strain, 847 So. 2d at 278 (¶4). “In contempt
actions, attorney's fees are awarded to make the plaintiff whole.” Bounds v. Bounds, 935 So.
2d 407, 412 (¶18) (Miss. Ct. App. 2006). “When a party is held in contempt for violating a
valid judgment of the court, then attorney's fees should be awarded to the party that has been
forced to seek the court's enforcement of its own judgment.” Elliott v. Rogers, 775 So. 2d
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1285, 1290 (¶25) (Miss. Ct. App. 2000). “ In civil contempt actions, the trial court's findings
are affirmed unless there is manifest error.” Riley v. Wiggins, 908 So. 2d 893, 897 (¶7)
(Miss. Ct. App. 2005).
¶14. The property-settlement agreement before us provided:
[Adella] will receive as property settlement[ ] fifty percent (50%) of [Joe’s]
disposable retirement from the United States Marine Corps/Army National
Guard and fifty percent [50%] of [Joe’s] disposable retirement from the
Veterans Administration which will be paid directly to [Adella] by the United
States Marine Corps/Army National Guard and the Veterans Administration.
(Emphasis added).
¶15. In the July 2, 2013 order granting Adella’s motion to dismiss, the chancellor found
that “after reviewing the property settlement agreement, . . . the provisions regarding military
retirement are clear and unambiguous and should not be modified.” The chancellor later
entered a final judgment on August 8, 2013, further holding that “the property settlement
agreement requires Adella’s portion of the retirement to be paid by the United States Marine
Corps/Army National Guard and the Veterans Administration rather than by Joe,” and as a
result, “Joe is not in willful and contumacious contempt of the agreement.” We find Adella
presented no evidence to support her claims that Joe willfully or intentionally violated any
court order. The record reflects that the plain language of the property-settlement agreement
in this case provides that Adella’s portion of Joe’s military retirement pay would be paid
directly to her by the Marine Corps/Army National Guard and Veterans Administration.
¶16. The Uniformed Services Former Spouses’ Protection Act (USFSPA) provides former
spouses, who are awarded a portion of military retirement pay in a divorce, with “a
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mechanism to enforce retired pay as property award by direct payments from the member’s
retired pay.” See Defense Finance and Accounting Service, Frequently Asked Questions,
www.dfas.mil/garnishment/usfspa/faqs.html; 10 U.S.C. § 1408 (2012).1 The former spouse
must complete and provide the required applications, relevant court order, and supporting
documentation, as required by statute and regulations, to the designated Defense Finance and
1
10 U.S.C. § 1408(d) provides:
Payments by Secretary concerned to (or for benefit of) spouse or former
spouse.--(1) After effective service on the Secretary concerned of a court
order providing for the payment of child support or alimony or, with respect
to a division of property, specifically providing for the payment of an amount
of the disposable retired pay from a member to the spouse or a former spouse
of the member, the Secretary shall make payments (subject to the limitations
of this section) from the disposable retired pay of the member to the spouse
or former spouse (or for the benefit of such spouse or former spouse to a State
disbursement unit established pursuant to section 454B of the Social Security
Act or other public payee designated by a State, in accordance with part D of
title IV of the Social Security Act, as directed by court order, or as otherwise
directed in accordance with such part D) in an amount sufficient to satisfy the
amount of child support and alimony set forth in the court order and, with
respect to a division of property, in the amount of disposable retired pay
specifically provided for in the court order. In the case of a spouse or former
spouse who, pursuant to section 408(a)(3) of the Social Security Act (42
U.S.C. 608(a)(4)), assigns to a State the rights of the spouse or former spouse
to receive support, the Secretary concerned may make the child support
payments referred to in the preceding sentence to that State in amounts
consistent with that assignment of rights. In the case of a member entitled to
receive retired pay on the date of the effective service of the court order, such
payments shall begin not later than 90 days after the date of effective service.
In the case of a member not entitled to receive retired pay on the date of the
effective service of the court order, such payments shall begin not later than
90 days after the date on which the member first becomes entitled to receive
retired pay.
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Accounting Service, and the language in the property award must also comply.2
¶17. After our review of the record, we find substantial evidence exists in the record to
support the chancellor’s final judgment determining Joe was not in willful and contumacious
contempt of the property-settlement agreement or any other court order. Accordingly, we
also find no error in the chancellor’s denial of attorney’s fees to Adella. See Henderson v.
Henderson, 952 So. 2d 273, 280 (¶23) (Miss. Ct. App. 2006).
¶18. THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.
2
See Dep't of Def. Fin. Mgmt. Reg. 7000.14–R, vol. 7B, ch. 29, para. 2901 (Feb.
2009) (application process).
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