Failed to comply with the terms of divorce decree

Mississippi Reports

STRIBLING v. STRIBLING, 2005-CA-00467-COA
(Miss.App. 1-2-2007) LINDA STRIBLING, APPELLANT v. CARL WILLIAM STRIBLING, APPELLEE. NO. 2005-CA-00467-COA.
Court of Appeals of Mississippi. January 2, 2007.

TRIAL JUDGE: HON. JANACE H. GOREE, DATE OF JUDGMENT: 2/9/2005.

DISPOSITION: THE JUDGMENT OF THE CHANCERY COURT OF MADISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

ATTORNEY FOR APPELLANT: JOHN W. CHRISTOPHER.

ATTORNEYS FOR APPELLEE: MARK A. CHINN, DAR KENYA W. WALLER, W. MATTHEW THOMPSON.

BEFORE MYERS, P.J., SOUTHWICK AND GRIFFIS, JJ.

MYERS, P.J., FOR THE COURT.

¶ 1. Linda Stribling appeals the judgment of the
Madison County Chancery Court finding her in contempt of a
divorce decree and ordering her incarcerated until she
purged herself of the contempt by compliance. Mrs.
Stribling defended against the contempt order by claiming
inability to perform according to the dictates of the order
and inability to obey the order due to vagueness; however,
both of her defenses were rejected by the chancellor.
Finding no reversible error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. This Court has reviewed this divorce case once
before. Stribling v. Stribling, 906 So.2d 863 (Miss.Ct.App.
2005), reh’g denied, 2003-CA-00731-COA (Miss.Ct.App. Apr.
5, 2005), cert. denied, 904 So.2d 184 (Miss. 2005). There,
we affirmed the chancellor’s grant of periodic alimony,
division of marital assets, and award of attorney’s fees to
Carl William “Bill” Stribling. Since the divorce and the
final decision entered by this Court, Mrs. Stribling has not
paid, save a small amount, towards the judgment entered
against her.

¶ 3. While awaiting the result of the former appeal
in this Court, Mr. Stribling filed a motion seeking to have
Mrs. Stribling cited for contempt. Mrs. Stribling then
filed motions for modification of the decree and to stay
the execution of the judgment pending this Court’s
decision, as well as responded to Mr. Stribling’s contempt
motion. The chancery court then held hearings on Mrs.
Stribling’s motion for modification and motion to stay, and
Mr. Stribling’s motion for contempt in March and August of
2004.[fn1] Mrs. Stribling’s motion to stay was denied and
the court entered its original order granting Mr.
Stribling’s motion for contempt on November 8, 2004. Mrs.
Stribling then filed her motion for reconsideration. On
February 9, 2005, the chancellor issued an amended order
granting, in part, Mrs. Stribling’s motion to reconsider
and amending the original order due to calculation errors.
This amended order, however, denied Mrs. Stribling’s other
claims of error, continuing to find Mrs. Stribling in
contempt. The amended order of the chancellor, as it now
stands, holds Mrs. Stribling in contempt with a judgment of
incarceration until she purges herself of the contempt.
Mrs. Stribling now appeals this order of contempt, seeking
review of the following issues:

I. THE CHANCELLOR COMMITTED MANIFEST ERROR IN FINDING THAT
MRS. STRIBLING HAD THE PRESENT ABILITY TO PURGE HERSELF OF
CONTEMPT AND ORDERING HER INCARCERATED.

II. THE ORDER OF CONTEMPT INCARCERATING MRS. STRIBLING IS
AMBIGUOUS AS TO THE AMOUNT MRS. STRIBLING MUST PAY TO BE
RELEASED FROM INCARCERATION AND IS THEREFORE VOID.

DISCUSSION

¶ 4. “A prima facie case of contempt has been
established when the party entitled to receive support
introduces evidence that the party required to pay the
support has failed to do so.” McIntosh v. Dep’t of Human
Servs., 886 So.2d 721, 724 (¶ 11) (Miss. 2004). Here,
neither party contests the fact that Mrs. Stribling has
failed to comply with the terms of the divorce decree and,
therefore, a case of contempt has been established.

¶ 5. Once a party is held in contempt, that party
may defend upon several grounds. Dunaway v. Busbin, 498
So.2d 1218, 1222 (Miss. 1986). Mrs. Stribling defended
herself by asserting an inability to pay and by arguing
that the contempt order is vague so that she cannot perform
due to the ambiguity. It is well established that one may
avoid contempt by showing that their violation of an order
is not willful or contumacious, but rather a product of
their honest inability to comply with the order. Id.
Another valid defense to contempt exists where a party
establishes that their inability to conform to a judgment
is due to the order’s vagueness or because of insufficient
detail. Id.

STANDARD OF REVIEW

¶ 6. Both of Mrs. Stribling’s issues on appeal
concern the chancellor’s rejection of her defenses to the
contempt citation and are controlled by the same standard
of review. This Court is required to give substantial
deference to the chancellor’s finding of fact, particularly
in the areas of divorce and child support, overturning the
determination only if it is manifestly wrong. Fancher v.
Pell, 831 So.2d 1137, 1140 (¶ 15) (Miss. 2002). “In
the absence of manifest abuse of discretion, coupled with
the presence of substantial credible evidence, we should
not disturb the learned chancellor’s decision substituting
our judgment for that of the chancellor.” Mabus v. Mabus,
910 So.2d 486, 488 (¶ 6) (Miss. 2005). “We must
consider the entire record before us and accept all those
facts and reasonable inferences therefrom which support the
chancellor’s findings.” Madden v. Rhodes, 626 So.2d 608,
616 (Miss. 1993).

I. PRESENT ABILITY TO PURGE CONTEMPT AND ORDER OF
INCARCERATION

¶ 7. This Court is to decide whether the chancellor
committed manifest error or abused her discretion in
finding that Mrs. Stribling was, at the time of the
contempt hearing, able to pay the judgment and alimony to
Mr. Stribling. In our review, this Court defers to the
chancellor’s ability to view the witnesses, to determine
their credibility and to review the exhibits before the
chancery court. Wesson v. Wesson, 818 So. 2d 1272, 1279
(¶ 20) (Miss.Ct.App. 2002).

¶ 8. At the hearings, Mrs. Stribling sought to
excuse her failure to comply with the divorce decree by
presenting testimony and exhibits reflecting various bank
account information, her company’s financial records,
foreclosure notices, outstanding bills and promissory
notes. Notwithstanding Mrs. Stribling’s defense
presentation, the chancellor issued an order on February 9,
2005, addressing both Mrs. Stribling’s motion for
reconsideration and Mr. Stribling’s motion for contempt.
The chancellor found that the original November 8, 2004
order contained calculation errors. The order was reissued
and found that between February 1, 2003, and July 31, 2004,
Mrs. Stribling’s business accounts reflected total deposits
of $971,051.81 and that the business expenses during that
time were only $643,852.85, leaving Mrs. Stribling with the
disposable income of $327,198.96. While some of Mrs.
Stribling’s arguments charging miscalculation prevailed,
the chancellor noted that Mrs. Stribling’s other
assignments of error were not valid, stating:

As to other claims of error by [Mrs. Stribling], this
Court finds that such errors are not valid since the Court
discovered at least 19 times that [Mrs. Stribling]
manufactured figures that did not exist, and had
understated her income . . . which leads this Court to
believe that any evidence presented by [Mrs. Stribling] is
not credible.

After making this finding regarding Mrs. Stribling’s motion
to reconsider, the chancellor in the next paragraph of the
order found Mrs. Stribling in contempt and ordered her
incarcerated until she purged herself of the contempt. Mrs.
Stribling argues that a judgment of incarceration is
improper because she established at the hearing and through
her exhibits that she was without the present ability to pay
the amount of the judgment to Mr. Stribling.

¶ 9. Should a party refuse to comply with the terms
of a divorce decree, a chancellor unquestionably has the
power to commit the contemner to jail until he or she
complies. See Miss. Code Ann. ¶¶ 9-5-87 (Rev.
2002); 9-1-17 (Rev. 2002). However, “[i]t is also a
well-settled rule in this state that the court’s power to
commit a person to jail until he complies with the terms of
a decree depends upon his present ability to comply with
the decree.” Wilborn v. Wilborn, 258 So.2d 804, 805 (Miss.
1972). “[T]he [contemner] may avoid judgment of contempt by
establishing that he is without present ability to discharge
his obligation, but he has the burden of proving his
inability to pay, and such a showing must be made with
particularity and not in general terms.” Jones v. Hargrove,
516 So.2d 1354, 1357 (Miss. 1987). This assertion of
inability to pay must be proven by a preponderance of the
evidence. Miss. Code Ann. ¶ 11-51-12(4) (Rev. 2002).

¶ 10. In the case sub judice, it is apparent that
the chancellor chose not to believe Mrs. Stribling’s
testimony concerning her inability to pay because the
judgment of contempt continued, even after the defenses
were presented. Reading the chancellor’s order as a whole,
we find that the chancellor’s decision not to believe Mrs.
Stribling was based, in part, on the finding that Mrs.
Stribling had previously “manufactured figures” and
“understated” her income. The chancellor found in her order
of contempt that Mrs. Stribling’s disposable income of
$327,198.96 still existed as of the day of the contempt
hearing, and discredited Mrs. Stribling’s testimony
regarding her inability to pay the judgment. The
chancellor’s disbelief of Mrs. Stribling’s assertions
regarding her inability to pay is evinced by the
chancellor’s continuing order of contempt and
incarceration.

¶ 11. We must review the chancellor’s order of
contempt by considering whether the chancellor had a
reasonable basis not to believe Mrs. Stribling’s testimony
regarding her inability to pay and thereby holding Mrs.
Stribling in contempt. “Generally speaking, 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 are we.” Cumberland v.
Cumberland, 564 So.2d 839, 845 (Miss. 1990). Furthermore,
we are mindful of the supreme court’s command that “[t]he
chancellor, being the only one to hear the testimony of
witnesses and observe their demeanor, is to judge their
credibility.” Madden v. Rhodes, 626 So.2d 608, 616 (Miss.
1993). ” [The chancellor] is best able to determine the
veracity of their testimony, and this Court will not
undermine the chancellor’s authority by replacing [her]
judgment with its own.” Id.

¶ 12. Our thorough review of the record reflects
that although the lower court might have found from the
evidence that Mrs. Stribling’s argument concerning her
inability to pay was well-taken, there is also sufficient
basis in the evidence, we think, for the court’s conclusion
that Mrs. Stribling was not credible and failed to establish
that she was unable in good faith to make the prescribed
payments. We note that other proceedings in this divorce
have been before the same chancellor. The chancellor’s
order stated that in these previous proceedings Mrs.
Stribling had presented false statements to the court, at a
minimum, nineteen times. The chancellor is better situated
than we to determine from the evidence heard by her whether
Mrs. Stribling is credible in her testimony as to her
ability to make the payments as ordered. For these reasons,
we affirm the chancellor’s findings and order of contempt.

II. VAGUENESS IN THE ORDER OF CONTEMPT

¶ 13. Mrs. Stribling’s second defense to the
contempt order was premised on her inability to obey an
order that she claims was vague or insufficiently specific.
Mrs. Stribling contends that the language of the order
finding her in contempt was unclear as to the exact amount
that she must pay to rid herself of contempt. She cites to
several different paragraphs, pointing out alleged
inconsistencies in the amounts. Mr. Stribling contends that
the order of the chancellor is clear in its language,
ordering Mrs. Stribling to remedy the arrearage owed to Mr.
Stribling for the periodic alimony. We are charged with
determining whether the chancellor’s order of contempt was
clear enough for interpretation of the amounts Mrs.
Stribling would owe to purge herself of contempt.

¶ 14. In Balius v. Gaines, 908 So.2d 791, 798
(¶ 16) (Miss.Ct.App. 2005), this Court considered
whether a provision of a child visitation order was
ambiguous. We stated: “`[w]hen questions of meaning arise’
as to a judgment, `answers are sought by the same rules of
construction which appertain to other legal documents.'”
Id. at (¶ 16) (quoting Estate of Stamper v. Edwards,
607 So.2d 1141, 1145 (Miss. 1992)). In determining whether
an order is ambiguous, we focus on the intent of the
chancery court and read the judgment as a whole. Id. at
(¶ 16). However, we decline interpreting or
construing an order if the language of a judgment is
unambiguous. Id.

¶ 15. Paragraph eight of the contempt order states:

The Sheriff of Madison County is hereby directed to
immediately take physical custody of the Plaintiff, Linda
Stribling, and incarcerate her in the Madison County Jail
or such other holding facility as may be designated by the
County, until such time as she has purged herself of her
contempt by the payment of the aforementioned sums or
until further order of this Court.

(emphasis added). A reading of the entire order results in
this Court’s finding that the aforementioned sums the
chancellor addressed in paragraph eight was the sum of the
periodic alimony arrearage. Paragraph five states that at
the time of the chancellor’s order, Mrs. Stribling was in
arrears of this periodic alimony for twenty-five months in
the amount of $125,000. No further construction need be
made by this Court, as the order is unambiguous. We thus
find no error in the chancery court’s overruling Mrs.
Stribling’s defense to the contempt due to vagueness in the
order.

CONCLUSION

¶ 16. Upon our review of the entire record before
us, and considering all applicable law, we cannot find that
the chancellor committed manifest error in holding Mrs.
Stribling in contempt. In our review of the chancellor’s
order, we accept all those facts and reasonable inferences
therefrom which support the chancellor’s findings. We find
that the chancellor had a substantial basis, and that the
power was within her confine, for disbelieving Mrs.
Stribling’s assertion regarding her present ability to
conform to the divorce decree, and that no error was
committed in so doing. Further, we find Mrs. Stribling’s
assertion of ambiguity in the order unavailing and dismiss
this assignment of error.

¶ 17. THE JUDGMENT OF THE CHANCERY COURT OF MADISON
COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLANT.

[fn1] The hearings held on the various motions are
collectively referred to as “hearings” hereinafter.

KING, C.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND
ROBERTS, JJ., CONCUR. LEE, P.J., DISSENTS WITH SEPARATE
WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.

LEE, P.J., DISSENTING:

¶ 18. With respect for the majority, I am
nevertheless compelled to dissent.

¶ 19. There is little doubt that Linda Stribling has
failed to comply with the judgment of the Madison County
Chancery Court, and it certainly should be to no one’s
surprise. How could she? There simply was no justification
for the chancellor to award such amounts based on the
financial conditions of the parties.

¶ 20. When the original Stribling v. Stribling, 906
So.2d 863 (Miss.Ct.App. 2005), was before this Court I
likewise dissented which I repeat in full:

With respect to the majority, I dissent. After reading
the record, I cannot find that substantial evidence
existed to support the chancellor’s award of periodic
alimony in the amount of $5,000 per month or the award of
$221,229.37 as half of the marital assets. Although some
amount of alimony may be appropriate in this case, I fail
to see the justification for an award of that amount.
Furthermore, I would cite to In re: Dissolution of the
Marriage of Profilet, 826 So.2d 91 (Miss. 2002), where the
supreme court found that the husband’s financial status
was misrepresented in the chancellor’s findings and, as a
result, the chancellor erred in calculating the amount of
alimony. In the case at bar I am not convinced that the
chancellor either relied on Linda’s net income or took
into account her debts in determining alimony payments or
equitable distribution. Therefore, I would reverse and
remand on this issue for the chancellor to determine a
more appropriate award of alimony, if any, and likewise,
equitable distribution.

Id. at 874 (¶ 47).

¶ 21. I could not fathom how such an award could be
granted by the chancellor. The financial statements
certainly did not support it, and I could only conclude
that the chancellor looked at the gross income and totally
ignored any indebtedness or liabilities. To award such
large amounts based solely on gross income is a recipe for
disaster. For example, in In re: Dissolution of the
Marriage of Profilet, 826 So.2d at 96 (¶ 17), the
supreme court noted “that the chancellor apparently
confused the gross receipts from William’s medical practice
with his net income. She also relied on his personal total
assets without taking his liabilities into account.” That
is exactly what happened in the case sub judice.

¶ 22. “It is well established that in domestic
relations cases, when a party has demonstrated a prima
facie case of contempt, the contemnor may avoid the
judgment of contempt by establishing that he is without the
present ability to pay his obligations.” Kennedy v.
Kennedy, 650 So.2d 1362, 1366 (Miss. 1995). In Riser v.
Peterson, 566 So.2d 210, 211-12 (Miss. 1990), the supreme
court emphatically stated:

We do not know how to over-emphasize that the law in
Mississippi is INABILITY TO CURRENTLY DISCHARGE AN
OBLIGATION IN A CIVIL CONTEMPT CASE IS A DEFENSE TO A
JUDGMENT OF CONTEMPT. The defendant does have the burden
of proving inability to pay and that showing must be in
particular terms. . . . For the benefit of the bench and
bar, let us attempt to state clearly that a litigant may
be incarcerated for civil contempt for failure to pay a
judgment but THAT LITIGANT IS ALWAYS ENTITLED TO OFFER
EVIDENCE OF INABILITY TO PAY AS A DEFENSE, NOT TO THE
CONTEMPT, but to the incarceration.

See also Howard v. Howard, 913 So.2d 1030, 1040 (¶
22) (Miss.Ct.App. 2005).

¶ 23. Linda Stribling has been unable to comply with
the terms of the judgment and will continue to be unable to
do so simply because the judgment is so out of proportion
to her financial condition that payment by her is
unattainable.