Charles Irvin Bruton, Jr. v. Allison Hipwell Bruton

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-CA-00124-COA

CHARLES IRVIN BRUTON JR. APPELLANT

v.

ALLISON HIPWELL BRUTON APPELLEE

DATE OF JUDGMENT: 12/30/2016
TRIAL JUDGE: HON. M. RONALD DOLEAC
COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: DAVID NEIL MCCARTY
ATTORNEY FOR APPELLEE: ALBERT RALPH JORDAN IV
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
DISPOSITION: AFFIRMED IN PART; REVERSED AND
RENDERED IN PART; AND VACATED IN
PART: 10/30/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

TINDELL, J., FOR THE COURT:

¶1. On May 9, 2013, the Lamar County Chancery Court entered an opinion and final

judgment granting Allison Bruton a divorce from Charles (Chuck) Bruton. Chuck filed a

petition to modify the judgment. In his petition, Chuck challenged the requirement that he

pay private-school tuition and health-insurance premiums for his minor children, and he

requested that the chancellor allow him to claim one of the children as his dependent for

income-tax purposes. In addition, Chuck filed a civil-contempt claim against Allison. In

response, Allison sought increased child support and filed a counter-claim for civil contempt

against Chuck. Except for a ten-percent decrease in the amount Chuck was to contribute to
the children’s private-school fees and extracurricular expenses, the chancellor denied

Chuck’s claims for modification. The chancellor also granted Allison’s request for an

increase in child support and her claim for contempt and related attorney’s fees.

¶2. On appeal, we find the chancellor erred in holding Chuck in contempt. We therefore

reverse and render that portion of the chancellor’s judgment and vacate the award to Allison

of her attorney’s fees related to the contempt proceedings against Chuck. As to all the

remaining issues raised in this appeal, we affirm the chancellor’s judgment.

FACTS

¶3. Chuck and Allison married on August 3, 2002. They separated in January 2012 about

four days after the birth of their second son. On April 24, 2012, Allison filed a divorce

complaint on the grounds of adultery and cruel and inhuman treatment or, alternatively,

irreconcilable differences. Chuck responded and requested an irreconcilable-differences

divorce. He agreed that Allison was fit and suitable to have full legal and physical custody

of the parties’ children and that he should pay child support.

¶4. On May 8, 2012, the chancellor entered an agreed temporary order that (1) granted

Allison exclusive use and possession of the marital home; (2) ordered Chuck to pay the

insurance, taxes, and homeowner’s dues for both the home and an unimproved lot the parties

owned; (3) ordered Chuck to pay $1,000 a month in child support pursuant to Mississippi

Code Annotated section 43-19-101 (Rev. 2009); (4) ordered Chuck to pay the taxes and

insurance on the parties’ vehicles, the children’s daycare expenses, and various other

household expenses; and (5) granted Chuck visitation rights. On November 20, 2012, the

2
parties entered into a temporary agreed order on custody and visitation. Pursuant to the

agreed order, the chancellor granted the parties joint legal custody, with Allison receiving

sole physical custody and Chuck receiving reasonable visitation rights. The remaining

provisions of the May 8, 2012 temporary order remained in effect. The parties submitted all

other issues, including child support, equitable distribution, alimony, and attorney’s fees to

the chancellor for determination.

¶5. Following a one-day trial, the chancellor entered his opinion and final judgment on

May 9, 2013. Through his trial attorney, Chuck admitted that he had committed uncondoned

adultery. The chancellor therefore granted Allison a divorce on that ground. The chancellor

ordered Chuck to maintain health insurance for the children and to pay their daycare

expenses and sixty percent of their private-school tuition and fees.1 In calculating child

support, the chancellor determined Chuck’s adjusted gross income exceeded $50,000.

Section 43-19-101(1) creates a “rebuttable presumption . . . regarding the awarding or

modifying of child support” that the noncustodial parent should pay twenty percent of his or

her adjusted gross income for two children. Section 43-19-101(4), however, requires the

chancellor to make “written finding[s] in the record as to whether or not the application of

the guidelines established in this section is reasonable” when adjusted gross income is greater

than $50,000.2 After concluding the statutory guidelines were “not reasonable, just[,] or

1
Although the parties’ sons both attended daycare at the time the chancellor entered
his final judgment, the oldest son was scheduled to enroll in elementary school later that
year.
2
Effective July 1, 2013, the Legislature amended section 43-19-101(4) to require
written findings as to whether the guidelines are reasonable if the noncustodial parent’s

3
appropriate . . . due to the children’s expenses that Chuck will be responsible for in addition

to child support[,]” the chancellor ordered Chuck to pay $834 a month in child support (or

twenty percent of $50,000).

¶6. With regard to the equitable distribution of the marital estate, the chancellor awarded

Allison the marital home and awarded Chuck the parties’ unimproved lot. Finding that

Allison had no debt, had received a larger share of the marital assets, and would have her

own separate income and estate, the chancellor refused to award alimony. The chancellor

also denied Allison’s request for attorney’s fees after finding she had the ability to pay them.

¶7. Chuck filed a subsequent motion to amend the chancellor’s judgment as to the

following: (1) the requirement that he pay expenses for the children in excess of child

support (i.e., daycare costs, school tuition and fees, health insurance and uninsured medical

costs, and life-insurance premiums); (2) the chancellor’s decision to allow Allison to claim

both children as dependents for tax purposes; and (3) the chancellor’s acceptance of Allison’s

valuation of the unimproved lot. Although the chancellor amended his judgment to clarify

that “school tuition” included “primary and secondary private[-]school tuition[,]” he

otherwise denied Chuck’s motion.

¶8. In 2015, Chuck filed a petition to modify the chancellor’s May 9, 2013 opinion and

final judgment. Chuck asserted a modification was justified because (1) his income had

decreased; (2) he now supported the nine-month-old child he had with his girlfriend, Katie;

(3) Allison had moved from Hattiesburg, Mississippi, to Baton Rouge, Louisiana, and

adjusted gross income exceeds $100,000 or falls below $10,000.

4
enrolled the children in a more expensive private school; and (4) Allison’s income had

increased.3 Chuck also asked the chancellor to sanction Allison for her failure to inform him

of her address change, as required by Uniform Chancery Court Rule 8.06, and to

communicate with him regarding the children’s health, education, and extracurricular

activities.

¶9. Allison responded and filed a counter-complaint for modification and citation of

contempt. According to Allison, Chuck “ha[d] willfully and contumaciously refused to abide

by” the chancellor’s order against having an unrelated overnight guest in the children’s

presence. Specifically, Allison alleged Chuck had: (1) moved in with his girlfriend, Katie;

(2) fathered a child out of wedlock; and (3) taken the parties’ children on vacations with

Katie. Allison also claimed Chuck’s increased income and the “increased needs and costs

of raising the [now] older minor children” amounted to a substantial and material change in

circumstances that justified an increase in Chuck’s child-support obligation.

¶10. Following a hearing on their motions, the parties entered into an agreement on

September 19, 2016, to modify the chancellor’s prior visitation order. On October 13, 2016,

the chancellor entered an opinion and final judgment on contempt, modification, and the

parties’ other requested relief. In accordance with the 2013 amendment to section 43-19-

101(4), the chancellor increased Chuck’s monthly child-support payment to $1,026 (or

twenty percent of Chuck’s entire monthly adjusted gross income). The chancellor also

dismissed Chuck’s claim for contempt but granted Allison’s contempt claim and awarded her

3
Due to changes with her job in Hattiesburg, Allison had accepted a new job at a
school in Baton Rouge.

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$2,750 in attorney’s fees related to the contempt proceedings.

¶11. Chuck filed a posttrial motion, which the chancellor partially granted. The chancellor

amended his prior calculation of both the children’s private-school tuition and fees and

Allison’s net monthly income. The chancellor further ordered the parties to equally divide

the children’s private-school and extracurricular expenses. After reviewing the parties’ 2015

tax returns, the chancellor denied Chuck’s request for a downward modification of his child-

support obligation and upheld the award of attorney’s fees to Allison. Aggrieved, Chuck

appeals.

DISCUSSION

I. Whether the chancellor’s order violated the statutory guidelines for
child support.

¶12. In his May 9, 2013 opinion and final judgment, the chancellor noted that the parties’

children attended daycare at a monthly cost of $1,030 and that their older son was

preregistered to attend a private school with an annual tuition of $4,700, annual fees of $600,

and an after-school rate of $8 an hour. The chancellor ordered Chuck to pay the children’s

monthly child-care expense of $1,030 until the parties’ older son started attending private

school, at which time Chuck was to pay $585 per month for the younger son’s child care.

The chancellor further ordered Chuck to pay sixty percent of the private-school tuition and

fees, including extracurricular expenses.

¶13. In the October 13, 2016 order for modification, the chancellor increased Chuck’s

monthly child-support obligation to $1,026 (or twenty percent of Chuck’s adjusted gross

income). However, the chancellor denied Chuck’s request to modify the provisions as to the

6
payment of daycare and school expenses and upheld his order that Chuck pay sixty percent

of the private-school tuition and fees.4 In response to Chuck’s motion to reconsider, though,

the chancellor modified his order so that the parties equally split the school and

extracurricular expenses, and he acknowledged a slight error in his prior calculation of

Allison’s net income and the school fees.

¶14. “[T]o justify the modification of the child[-]support provisions of a divorce decree,

the moving party must show that there has been a material or substantial change in the

circumstances of one of the parties.” Hopson v. Hopson, 851 So. 2d 397, 400 (¶10) (Miss.

Ct. App. 2003). Affording the chancellor “broad discretion in the modification of child

support, . . . we will reverse only when he is manifestly wrong in his finding of facts or has

abused his discretion.” Id. (internal quotation mark omitted). Here, the chancellor

determined in his order for modification that “a number of changes in circumstances [had

occurred] since the divorce” to warrant a modification of child support, including Allison’s

move to Baton Rouge to take a better job and to be closer to her family. Neither party

contests the chancellor’s finding of a material change in circumstances.

A. Private-School Tuition and Fees

¶15. Chuck contends the chancellor’s order that he pay half the children’s school tuition,

in addition to child support, constitutes reversible error because the chancellor exceeded the

statutory guidelines for child support. Chuck alleges his ordered contributions would equal

4
The chancellor noted that, as of June 2016, there was no longer any daycare expense
for the parties’ younger son. Thus, the chancellor found moot Chuck’s request to be
relieved of paying for daycare.

7
$4,950 a year in addition to his existing monthly obligations.

¶16. The Mississippi Supreme Court has held that private-school tuition is considered part

of child support. Southerland v. Southerland, 816 So. 2d 1004, 1006 (¶11) (Miss. 2002).

Under section 43-19-101(1), the percentage of Chuck’s adjusted gross income that should

be awarded for the support of two children is twenty percent. Prior to the modification,

Chuck was paying only twenty percent of the first $50,000 of his income, plus a sixty-percent

share of the children’s private-school tuition and fees.5 Therefore, the chancellor’s modified

order that Chuck pay twenty percent of his adjusted gross income, plus fifty percent of the

children’s private-school tuition and expenses, does constitute an upward deviation of the

statutory guidelines for child support. However, the modification was to Chuck’s child-

support obligation, not those additional contributions he was previously ordered to pay, and

the chancellor later reduced the percentage of the extra contributions from sixty percent to

fifty percent.

¶17. Allison raises no dispute that the chancellor deviated from the statutory guidelines,

but she claims the chancellor satisfied the statutory requirements by making detailed findings

to justify any deviation. Section 43-19-101(2) provides:

The guidelines provided for in subsection (1) of this section apply unless the
judicial or administrative body awarding or modifying the child[-]support
award makes a written finding or specific finding on the record that the
application of the guidelines would be unjust or inappropriate in a particular
case as determined under the criteria specified in [s]ection 43-19-103.

(Emphasis added). The criteria specified in Mississippi Code Annotated section 43-19-103

5
Chuck failed to timely appeal this order.

8
(Rev. 2015) include:

(a) Extraordinary medical, psychological, educational[,] or dental
expenses.

(b) Independent income of the child.

(c) The payment of both child support and spousal support to the obligee.

(d) Seasonal variations in one or both parents’ incomes or expenses.

(e) The age of the child, taking into account the greater needs of older
children.

(f) Special needs that have traditionally been met within the family budget
even though the fulfilling of those needs will cause the support to
exceed the proposed guidelines.

(g) The particular shared parental arrangement, such as where the
noncustodial parent spends a great deal of time with the children
thereby reducing the financial expenditures incurred by the custodial
parent, or the refusal of the noncustodial parent to become involved in
the activities of the child, or giving due consideration to the custodial
parent’s homemaking services.

(h) Total available assets of the obligee, obligor[,] and the child.

(i) Payment by the obligee of child[-]care expenses in order that the
obligee may seek or retain employment, or because of the disability of
the obligee.

(j) Any other adjustment which is needed to achieve an equitable result
which may include, but not be limited to, a reasonable and necessary
existing expense or debt.

¶18. The chancellor found that, when the parties lived in Hattiesburg, they agreed to enroll

the children in private school. Chuck disputes this finding. He claims he was opposed to

sending the children to private school and should therefore not be required to contribute

9
toward the tuition costs.6 Our supreme court has previously stated that, “even where parents

agree to send children to private school, support awards made in consideration of this

expense must also be reasonable in light of both parents’ financial means.” Southerland, 816

So. 2d at 1006 (¶11). Here, however, the chancellor did not base his determination solely on

his finding that the parties had agreed to send their children to private school. The chancellor

also conducted a thorough analysis of the elements enumerated in Adams v. Adams, 467 So.

2d 211, 215 (Miss. 1985), as potentially “supportive” of a financial modification of a child-

support decree. The elements addressed by the chancellor included: (1) the increased needs

arising from the children’s advanced age and maturity; (2) an increase in expenses; (3) the

inflation factor; (4) the parties’ relative financial conditions and earning capacities; (5) the

children’s physical and psychological health and special medical needs; (6) the parties’ health

and special medical needs; (7) the paying party’s necessary living expenses; (8) the estimated

amount of income taxes the respective parties must pay on their incomes; (9) the free use of

a residence, furnishings, and automobile; and (10) any other factors and circumstances that

bear on the support subject shown by the evidence. Id.

¶19. With regard to the children’s ages, an increase in expenses, and their health and

special needs, the chancellor noted the following: (1) the children were now older; (2) the

younger son would soon attend school with his older brother and no longer need daycare; (3)

they would “cost more to rear and support”; and (4) both children were in speech therapy,

with those expenses covered under Chuck’s medical insurance.

6
The chancellor’s order for Chuck to contribute to private-school tuition was in the
original opinion and final judgment, which Chuck failed to properly appeal.

10
¶20. The chancellor also made detailed findings concerning the parties’ financial

conditions and earning capacities and concluded that, although Chuck’s net monthly income

had decreased and Allison’s net income had increased, Chuck still had “a significantly higher

monthly income than . . . Allison.”7 In considering both parties’ lifestyles post-divorce, the

chancellor commented that Chuck was now married to Katie and paying for their child’s

care. Further observing that Chuck had “enjoyed more social activities, time, travel, and

expense, than has Allison,” the chancellor noted Chuck had spent money gambling at casinos

and traveling with Katie.

¶21. The chancellor analyzed the cost difference between the schools in Hattiesburg and

Baton Rouge, and ultimately, he based his decision on the children’s best interest. In so

doing, the chancellor stated:

In considering the private[-]school expense for [the children], and the
differences presented in what the costs would be if the boys were still at
Sacred Heart in Hattiesburg as opposed to Our Lady of Mercy in Baton Rouge,
the [c]ourt finds that the best interests of [the children] must continue to
prevail as the primary consideration in the educational costs and needs for their
support.

¶22. We find no abuse of discretion in the chancellor’s findings. In McEachern v.

McEachern, 605 So. 2d 809, 814 (Miss. 1992), the supreme court held: “When entering a

child[-]support decree, the chancellor should consider all circumstances relevant to the needs

of the children and the capacities of the parents. The reasonable needs of the children are

7
The chancellor determined that Chuck’s net monthly income at that time was
$5,669, compared to $5,772 at the time of the divorce trial, and that Allison’s net monthly
income had increased from $3,353 to $4,206.90. Chuck raises no dispute as to the
chancellor’s calculation of his income.

11
obviously the beginning point in such inquiry.” See also Adams, 467 So. 2d at 215 (“The

underlying principle regarding child support is the legal duty owed by the parents to the child

for the child’s maintenance and best interests.” (Emphasis added)); Tedford v. Dempsey, 437

So. 2d 410, 417 (Miss. 1983) (holding that, in matters involving the modification of child

support “the best interests of the children are[,] as always[,] our touchstone”). Allison

testified that the boys loved their new school and were “thriving.” Because her family

attends Our Lady of Mercy church and the boys’ cousins attend the same school, she testified

the children have a good support system in Baton Rouge. She also testified that, when the

children begin high school, her job at St. Joseph’s could afford them a tuition discount.8

B. Calculation of Allison’s Net Monthly Income in
Determining the Parties’ Financial Obligations

¶23. Although Chuck does not expressly challenge the chancellor’s calculation of his net

income and the modification of his monthly child-support obligation to $1,026, he contends

the chancellor erred in his calculation of Allison’s net income. The chancellor determined

that Allison’s net monthly income had increased from $3,353 to $4,206.90 (as reported in her

Uniform Chancery Court Rule 8.05 financial declaration). In the amended order, the

chancellor allowed the parties to submit their 2015 tax returns, and Allison’s net monthly

income was recalculated as $4,534. Chuck argues that Allison’s net monthly income should

have been $5,442.28 because she received approximately $9,000 in 2015 federal and state

8
In the order for modification, the chancellor erroneously stated that Allison’s
employee discount would afford a tuition discount at Our Lady of Mercy. The chancellor
corrected this finding in his subsequent order and decreased Chuck’s contribution to the
children’s tuition and expenses to fifty percent.

12
tax refunds. Chuck asserts that the chancellor ignored Allison’s tax withholdings, which he

claims “distorted her actual monthly income,” and that this “manifest error” resulted “in a

lopsided analysis of obligations.”

¶24. In calculating adjusted gross income for support purposes, section 43-19-101(3)(b)

requires the court to subtract the following legal deductions:

(i) Federal, state[,] and local taxes. Contributions to the payment of taxes over
and beyond the actual liability for the taxable year shall not be considered a
mandatory deduction;

(ii) Social [S]ecurity contributions;

(iii) Retirement and disability contributions except any voluntary retirement
and disability contributions[.]

In the order for modification, the chancellor considered “the financial declarations and tax

returns of the parties in evidence and that each has received [f]ederal and [s]tate income tax

refunds, and/or anticipates such, for each year including the year of their divorce, 2013.” The

chancellor later reviewed the parties’ 2015 tax returns and found that the recalculated net-

monthly incomes did not “warrant amendment” of his order for modification “as to Chuck’s

monthly child[-]support obligation.”9 In determining the parties’ support obligations, we find

the chancellor made an accurate and thorough analysis of the evidence.

¶25. Regarding Allison’s 2015 tax return, we note that Allison deducted $4,705 in moving

expenses, which would be a one-time, nonrecurring credit. She also received tax credits for

claiming the children as dependents, which is in accordance with the chancellor’s order.

9
The chancellor noted he could not include any deductions for Allison for Social
Security or Medicare because she submitted no W-2 or pay stubs into evidence.

13
Furthermore, Allison’s Rule 8.05 financial declaration indicated that her expenses left her

with a monthly deficit of $1,216.02 (over $14,000 annually). Even if Allison had decreased

her withholding to eliminate any tax refund, she still would have been left with a deficit.

Chuck challenges neither Allison’s monthly expenses nor the chancellor’s finding that Chuck

spent more on leisure activities. Thus, we cannot find that Allison’s refund should have any

effect on Chuck’s financial obligations.

¶26. Accordingly, we conclude the chancellor made sufficiently detailed findings to

warrant the upward deviation from the child-support guidelines. Furthermore, the chancellor

granted a slight modification to Chuck’s contribution—from sixty percent to fifty

percent—based on his recalculation of Allison’s income and the school’s tuition and fees.

We therefore find this issue lacks merit.

II. Whether the chancellor improperly denied Chuck’s request to
modify his obligation to pay his children’s health-insurance
premiums.

¶27. Chuck next challenges the chancellor’s denial of his “request for a credit against the

monthly child[-]support obligation in the amount of insurance premiums paid on behalf of

[the children].”

¶28. In relevant part, Mississippi Code Annotated section 93-5-23 (Rev. 2013) provides:

[T]he court may[,] at its discretion, having regard to the circumstances of the
parties and the nature of the case, as may seem equitable and just, make all
orders touching the care, custody[,] and maintenance of the children of the
marriage. . . . [W]here proof shows that both parents have separate incomes or
estates, the court may require that each parent contribute to the support and
maintenance of the children of the marriage in proportion to the relative
financial ability of each. In the event a legally responsible parent has health
insurance available to him or her through an employer or organization that may

14
 extend benefits to the dependents of such parent, any order of support issued
against such parent may require him or her to exercise the option of additional
coverage in favor of such children as he or she is legally responsible to
support.

Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2015) also confers jurisdiction

with the chancery court “to entertain suits for the custody, care, support[,] and maintenance

of minor children and to hear and determine all such matters.”

¶29. In Nichols v. Tedder, 547 So. 2d 766, 769 (Miss. 1989), the supreme court held:

In the context of child[-]care and maintenance orders, regular child support
refers to the sums of money which the particular parent is ordered to pay for
the child’s basic, necessary living expenses, namely food, clothing, and
shelter. . . . Still other items [that] may properly be awarded pursuant to a valid
child[-]care and maintenance order are health[-]related expenses such as
reasonable and necessary medical, dental, optical, and psychiatric/
psychological expenses. A parent can also be required to absorb insurance
expenses such as maintaining medical and hospitalization insurance on the
child, and maintaining a life[-]insurance policy on his/her own life with the
child named as beneficiary.

(Emphasis added and citations omitted).

¶30. We find no abuse of discretion in the chancellor’s denial of Chuck’s request to credit

his child-support payments in the amount of the children’s health-insurance premiums.

Additionally, in calculating Chuck’s adjusted gross income for purposes of child support, the

chancellor allowed for a health-insurance tax deduction. Thus, this issue lacks merit.

III. Whether Chuck should have been allowed to claim one of his minor
children on his tax return.

¶31. Because Allison had primary physical custody of the children, the chancellor held she

could claim both as dependents on her tax returns. In his petition for modification, Chuck

unsuccessfully requested that the chancellor allow him to claim one of the children as a

15
dependent for state and federal tax purposes.

¶32. In Nichols, our supreme court determined a chancellor has the discretion to award to

a noncustodial parent when necessary the right to claim tax exemptions for dependent

children, especially where the custodial parent waives the right to that exemption. Nichols,

547 So. 2d at 771. However, “[w]hen the request to transfer a tax exemption is pursuant to

a request to modify a prior decree, a material and adverse change in circumstances must

occur to transfer to one parent a tax exemption that was previously awarded to the other

parent.” Neelly v. Neelly, 213 So. 3d 539, 542-43 (¶10) (Miss. Ct. App. 2016). We find

Chuck alleged no material change in circumstances to warrant modification of the tax

exemption. Instead, he merely asserted that he “simply wanted a modest break on his taxes

. . . to offset growing costs.” In addition, as the chancellor noted, Chuck had another minor

child he could claim as a dependent, and his new wife, Katie, was expecting their second

child. Therefore, we find no error in the chancellor’s denial of Chuck’s request to modify

which parent could claim the parties’ children as a dependent on their tax returns.

IV. Whether the chancellor erred in dismissing Chuck’s claim for civil
contempt against Allison.

¶33. Chuck brought a civil-contempt claim against Allison. The chancellor dismissed the

claim with prejudice after finding Chuck’s evidence “in support of his contempt claims [did]

not rise to the level of preponderance of the evidence.” On appeal, Chuck argues Allison

knowingly violated the chancellor’s judgment by failing to inform him that she had moved

to Baton Rouge and enrolled the children in a new private school. Chuck claims Allison also

failed to inform him of the children’s doctor visits, specifically citing one instance when

16
Allison waited three hours to contact him after she had taken their younger son to the

emergency room (ER).

¶34. “The primary purpose of a civil-contempt order is to enforce compliance with a court

order.” Stallings v. Allen, 201 So. 3d 500, 504 (¶14) (Miss. Ct. App. 2016). The “[f]ailure

to comply with a court order is prima facie evidence of contempt.” Vincent v. Rickman, 239

So. 3d 501, 504 (¶13) (Miss. Ct. App. 2017) (quoting Evans v. Evans, 75 So. 3d 1083, 1087

(¶14) (Miss. Ct. App. 2011)). A chancellor’s determination of contempt is “fact specific”

and left to his discretion. Id. This Court will not interfere with a chancellor’s findings unless

the chancellor was “manifestly wrong or clearly erroneous, or applied an erroneous legal

standard.” Id. at 504-05 (¶13).

¶35. Although Chuck claimed Allison violated Rule 8.06 by failing to notify him of her

change of address, the chancellor noted Chuck’s admission that he knew where Allison and

the boys were living and that there had been no visitation issues since she moved to Baton

Rouge. We therefore find the record supports the chancellor’s findings.

¶36. With regard to Allison’s alleged failure to apprise Chuck of the children’s doctor

visits, the chancellor’s order required the parties to “notify the other if any emergency occurs

with the children such that medical treatment is sought.” When discussing the younger son’s

trip to the ER, Allison admitted she should have immediately contacted Chuck upon her

arrival at the ER. Allison provided the following reason for waiting three hours:

[T]his was right after we had been in court in [November 2013] where a lot of
things had come out. Chuck had said he was going to drive to Baton Rouge
and shoot my father in the head, and things were not going well with us, and
so I wanted . . . to make sure that something was really wrong with [our son],

17
 and I know now that I will not make that mistake again.

....

I mean, [Chuck] has even literally told me—when I explained about my new
job—I won’t say the word, but I hate your F’ing guts. You know, I mean there
is really—it is not a question about does he hate me. He expresses it a lot, in
text message[s], e-mails[,] and verbally. And I am afraid of him[,] . . . [w]hich
makes it difficult to turn to somebody in unpredictable situations.[10]

Allison even felt the need to have Chuck’s mother and sister come to the ER to diffuse any

conflict between them.

¶37. We find no abuse of discretion in the chancellor’s determination that Chuck failed to

establish a prima facie case of contempt against Allison. The court-ordered provision simply

required Allison to notify Chuck if an emergency occurred; it did not indicate any specified

time frame for the notification. Allison only waited three hours to inform Chuck that their

son was in the ER, and she contacted him when she knew their son’s medical diagnosis.

Chuck also acknowledged that Allison sent him text messages if one child was sick or had

to miss school. We therefore find this issue lacks merit.

V. Whether the chancellor erred in finding Chuck in contempt.

¶38. The chancellor found that Allison established a prima facie case for civil contempt

against Chuck by showing that he willfully, knowingly, and deliberately violated the morality

provision contained in the May 9, 2013 opinion and final judgment. The chancellor further

found that Chuck failed to present clear and convincing evidence of a defense for his

conduct. As noted, we review civil-contempt orders for manifest error. Hanshaw v.

10
Chuck explained that the chancellor had instructed the parties to communicate only
through texts, emails, and social media, indicating the ongoing strife between them.

18
Hanshaw, 55 So. 3d 143, 147 (¶13) (Miss. 2011). A chancellor is afforded “wide discretion

in ‘exerting his coercive powers to enforce his decrees.’” Id. (quoting Matthews v. Matthews,

227 Miss. 358, 360, 86 So. 2d 462, 462 (1956)).

¶39. In his May 9, 2013 opinion and final judgment, the chancellor included a morality

provision that prohibited both parties from having “overnight guests of the opposite sex not

related by blood or marriage in the presence of the minor children.” (Emphasis added).

Although Allison asserts Chuck violated this provision by living with Katie, Chuck contends

he did not because Katie was not an “overnight guest.” Even though Chuck married Katie,

which prevented him from being in future contempt of the chancellor’s order, the chancellor

concluded that Chuck, nonetheless, “willfully, deliberately, knowingly[,] and intentionally”

violated the terms of the order to the “children’s detriment.”

¶40. In relevant part, the Concise Oxford American Dictionary defines a “guest” as (1) “a

person who is invited to visit the home of or take part in a function organized by another[,]”

and (2) “a person lodging at a hotel or boardinghouse[.]” Concise Oxford American

Dictionary 398 (Erin McKean ed., 2006).11 Based on such a definition and the facts of this

case, we find Katie was not Chuck’s overnight guest.

¶41. Chuck and Katie purchased a home together in September 2014. They had a daughter

together in October 2014 and then married in April 2016. When asked about the morality

clause at the trial in July 2016, Chuck offered the following testimony: “[T]he morality

clause talks about overnight guests[,] and . . . she is not a guest. . . . [W]e are in a committed

11
Black’s Law Dictionary, Merriam-Webster, and the American Heritage College
Dictionary all provide a substantially similar definition of a “guest.”

19
relationship. We are married. We have a family together. She was not living at my place

. . . because we bought a home together. I didn’t consider her . . . a guest.”

¶42. Allison herself acknowledged that, “when Chuck moved from his parents’ home to

the home that he and Katie now share, that was . . . right before the baby was born. I knew

that he was moving . . . .” That was because, in June 2014, Chuck advised Allison that he

and Katie intended to move in together prior to the birth of their new child.12 When Allison

raised the morality clause, Chuck informed her then that he did not interpret Katie to be a

“guest” under the morality clause, and he stated they could argue to the chancellor the

meaning of a “guest.”

¶43. The chancellor’s original opinion and final judgment is a legal text, and when

questions of meaning arise, answers are sought by “the same rules of construction which

appertain to other legal documents.” Estate of Stamper v. Edwards, 607 So. 2d 1141, 1145

(Miss. 1992). “Courts must give the prior decree the most coherent and principled reading

its words will bear.” Id. The words of the text itself are the most credible source for what

was intended. Cooper v. Crabb, 587 So. 2d 236, 241 (Miss. 1991). As such, we must look

to “the meaning of the language used, not the ascertainment of some possible but

unexpressed intent . . . .” Cherry v. Anthony, Gibbs, Sage, 501 So. 2d 416, 419 (Miss. 1987).

¶44. In his original opinion and final judgment, the chancellor chose to use the words

“overnight guest” when restricting who could stay overnight in the presence of the children.

12
The morality clause also provided that “[b]oth parties agree to inform each other
prior to introducing the minor children to anyone with whom they are romantically
involved.”

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Indeed, our own caselaw delineates between “cohabitation” and “overnight guest.”

Bresnahan v. Bresnahan, 818 So. 2d 1113, 1120 (¶18) (Miss. 2002) (“There can be many

situations involving overnight guests which do not rise to the level of cohabitation . . . .”);

Ellis v. Ellis, 651 So. 2d 1068, 1072 (Miss. 1995) (finding the record unclear as to whether

the ex-wife cohabited with another man even though he was a frequent overnight guest).

Based upon the foregoing, Katie was clearly not Chuck’s “overnight guest.” We therefore

find the chancellor manifestly erred by holding Chuck in contempt. As a result, we reverse

and render that portion of the chancellor’s judgment.

VI. Whether Allison should be awarded attorney’s fees.

¶45. Allison contends this Court should award her attorney’s fees related to this appeal.

She asserts that she does not know how her fees “will get fully paid” and contends that the

fees “are an extreme hardship, daunting[,] and unnecessary.” Chuck argues that Allison is

not entitled to attorney’s fees because she has not proven an inability to pay.

¶46. Allison was awarded $2,750 in attorney’s fees related to the contempt proceedings

against Chuck. Because we find the chancellor erred by holding Chuck in contempt, we

vacate the chancellor’s award of attorney’s fees to Allison related to the contempt

proceedings. In addition, because Allison has failed to prove an inability to pay, we further

decline to award her attorney’s fees related to this appeal.

CONCLUSION

¶47. We reverse and render the portion of the chancellor’s judgment finding Chuck in

contempt of the morality provision contained in the original opinion and final judgment, and

21
we vacate the award to Allison of attorney’s fees related to the contempt proceedings against

Chuck. As to all other issues raised on appeal, we affirm the chancellor’s judgment.

¶48. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; AND
VACATED IN PART.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR AND WILSON,
JJ., CONCUR. WESTBROOKS, J., CONCURS IN PART AND IN THE RESULT
WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY FAIR AND
TINDELL, JJ. BARNES, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION, JOINED BY GREENLEE, J. GREENLEE, J.,
CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN
OPINION.

WESTBROOKS, J., CONCURRING IN PART AND IN RESULT:

¶49. Riddick v. Riddick, 906 So. 2d 813 (Miss. Ct. App. 2004), seems to have dealt with

the same circumstances in this case. It is a 2004 Court of Appeals case where this Court

agreed with the chancellor who opted not to find the ex-wife in contempt for violating the

morals clause although she had technically violated it. It is my opinion that the majority is

consistent with Riddick. I believe that Chuck technically violated the morality clause by

living with Katie, but he should not have been held in contempt. I agree with the majority

that the chancellor erred by holding Chuck in contempt because the record does not show that

there was an adverse effect on the boys. The record reflects that the youngest son came home

and reiterated what his dad and Katie told them—that they were getting married in two

weeks. Allison chose to explain that people can have children when they are not

married—which could mean that she was upset about adjusting her parenting versus the

relationship having an adverse effect on the boys. At the time of the hearing, Katie and

Chuck were engaged and shared an 18-month-old child. The pictures provided in the record

22
show two boys happily interacting with their sibling and seemingly adjusting to a blended

family that included Katie. Accordingly, I see no legitimate purpose or benefit in holding

Chuck in contempt. Id. at 824 (¶37) (“This Court can see no benefit in rendering a judgment

of contempt against the alleged contemnor, even though it would be appropriate under the

law.”). For these reasons, I concur in part and in the result.

FAIR AND TINDELL, JJ., JOIN THIS OPINION IN PART.

BARNES, J., CONCURRING IN PART AND DISSENTING IN PART:

¶50. I dissent from the majority’s determination that Katie could not be classified as an

overnight “guest” because she and Chuck purchased their house together. The provision, as

read by the majority, is neither “coherent” nor “principled.” See Estate of Stamper v.

Edwards, 607 So. 2d 1144, 1145 (Miss. 1992).

¶51. The majority’s emphasis on the term “guest” renders a portion of the remaining

provision meaningless. If the person staying overnight is related to the parent “by marriage,”

he or she most probably would not be a “guest” in the home. Therefore, under the majority’s

interpretation, the phrase “not related by . . . marriage” is superfluous.

¶52. Further, as only “guests” are prohibited under the majority’s analysis, Chuck would

not have been in contempt of the order had he hired a prostitute to spend the night with the

children present. She would, of course, have been an “invitee” rather than a “guest.”13

¶53. I submit that the true focus and “principle” of the provision is to prevent the parties

from engaging in improper behavior in the presence of the children. The parties agreed to

13
See Evans v. Hodge, 2 So. 3d 683, 686 (¶6) (Miss. Ct. App. 2008) (“Social guests
are licensees. Business visitors are invitees.” (Citations omitted)).

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the provision in the temporary order, and the chancery court incorporated the provision into

the final order, which was not appealed. The majority has not explained how Katie’s status

as a co-owner of the house affects the propriety of the situation.

¶54. Chuck freely admitted that he and Katie—members of the “opposite sex not related

by blood or marriage”—spent the night together in the children’s presence. Additionally, as

Allison argues, the “court found Chuck’s blatant violation to have had a negative impact on

the children as [she] was forced to explain mature issues to the children.” When her son

informed Allison that Katie was pregnant, Allison testified that she had to explain to him

(aged seven at the time of trial and educated in parochial school), “that sometimes people can

have a baby when they are not married.”14 Confronted by Allison about the morality

provision, Chuck responded: “Deal with it. . . . I’m doing it.”

¶55. The chancery court dealt with it, and I would affirm.

GREENLEE, J., JOINS THIS OPINION.

14
See Morrow v Morrow, 591 So. 2d 829, 833 (Miss. 1991) (finding no error in
chancery court’s modification of divorce decree, restricting the mother’s visitation with her
child in the presence “of any male to whom she is not married or to whom she is not
related,” as the court observed that the “seven year old child was unable, with her present
lack of maturity and understanding, to evaluate the import of her mother’s action[,]” i.e., her
“‘illicit’ relationship with her male friend while her daughter reside[d] with her”).

24