R.K. v. J.K.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-CA-01267-SCT
R.K.
v.
J.K.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
06/24/2005
HON. DENISE OWENS
HINDS COUNTY CHANCERY COURT
THOMAS W. CROCKETT
JOHN BENTON CLARK
BRANDI N. SMITH
THOMAS RAY JULIAN
CIVIL - DOMESTIC RELATIONS
ON DIRECT APPEAL: AFFIRMED IN
PART; REVERSED AND REMANDED IN
PART. ON CROSS APPEAL: AFFIRMED 01/04/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2006-CA-00411-SCT
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
02/27/2006
HON. DENISE OWENS
HINDS COUNTY CHANCERY COURT
THOMAS W. CROCKETT
JOHN BENTON CLARK
BRANDI N. SMITH
THOMAS RAY JULIAN
CIVIL - DOMESTIC RELATIONS
ON DIRECT APPEAL: AFFIRMED IN
PART; REVERSED AND REMANDED IN
PART. ON CROSS APPEAL: AFFIRMED 01/04/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1.
Before this Court are two domestic relations cases which have been consolidated on
appeal from the Hinds County Chancery Court. Both cases concern the Property Settlement
and Child Custody and Support Agreement (Agreement) between Plaintiff R.K. and
Defendant J.K. In the first case, R.K. appeals the November 15, 2004 and February 18, 2005
decisions in which the chancery court required R.K. to resume monthly periodic alimony
payments and to pay arrears to J.K. He contends that the court erred (1) in not enforcing the
liquidated damages provision, (2) in not enforcing the section allowing him to deduct onehalf of his attorney’s fees from his monthly alimony payments, and (3) in not granting him
relief from those errors under Rule 60(b). J.K. cross appeals the February 2005 decision
asserting that the chancery court erred (1) in not finding R.K. in contempt for violating the
Agreement and (2) in not awarding her attorney’s fees. In the second case, R.K. appeals the
February 27, 2006 decision of the Hinds County Chancery Court ordering him to continue
child support payments and pay arrears. He argues that the court erred in requiring him to
continue child support payments when his minor daughter attends an out-of-state boarding
school. We affirm the Chancellor on all issues, except the denial of relief under Rule 60(b),
which we reverse. Accordingly, this Court affirms in part and reverses and remands in part.
2
FACTS
Case 1: Property Settlement
¶2.
R.K. and J.K. married in 1976. They had two children, L.K. and B.K., and the family
resided in Hinds County, Mississippi until 2001 when the couple separated and R.K.
subsequently filed for a divorce. J.K. planted a recording device in R.K.’s car, which
recorded R.K. talking during various conversations with other health professionals
concerning patients and with lawyers regarding his personal legal matters as well as the
matters of others in which he served as a medical expert. Upon learning of these recordings,
R.K. filed a Motion for Injunctive and Other Relief and subsequently a Motion to Quash,
both in May 2002, to prevent J.K. from ever using or divulging the information on the tapes.
Later that May the trial court granted in part R.K.’s motion for injunctive relief instituting
a preliminary injunction enjoining J.K. from admitting as evidence any of the recorded
communications protected by the doctor-patient privilege. While the court did not quash the
recorded communications, the court enjoined J.K. from using any of the recordings until the
court determined whether the communications should be quashed pursuant to 18 U.S.C.
§2511(1)(b)(i). R.K. filed a motion to reconsider, which the court denied. Thus, the parties
agreed on their own terms as to the regulation of the information on the tapes in the divorce
settlement agreement.
¶3.
The court issued a final judgment of divorce on August 29, 2002 on the grounds of
irreconcilable differences, which included the parties’ agreement for property settlement and
child support. In section 3 of the Agreement, titled “Child Support,” R.K. agreed to provide
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$5,000 monthly in child support for B.K. “as long as [B.K.] lives at home with [J.K.] or until
[B.K.] reaches 21 years of age, whichever is first.”
¶4.
Additionally, section 11, titled “Installment Payments,” provided in the first paragraph
that R.K. would pay J.K. periodic alimony for four months, commencing as monthly
payments of $5,000 on September 1, 2002, and thereafter, a lump sum property distribution
in monthly payments of $5,000, commencing on January 1, 2003, for 56 months totaling
$280,000. The second paragraph of section 11 allowed R.K. to “deduct one half of his cost
of defending, settling, or discharging claims arising from his actions which took place prior
to the date of the divorce.” One of the three types of claims to which this deduction privilege
applied was for “any litigation that may arise as a result of J.K.’s instigation, encouragement,
or in which J.K. provides assistance, directly or indirectly.”
¶5.
Further, section 19 of the agreement, titled “Additional Covenants,” required, inter
alia, that J.K.:
(2) will return to [R.K.] all tapes, photos, and any other evidence or material
she has in her possession concerning [R.K.]’s or any of his associates’ conduct,
and all copies, transcripts thereof or other reproductions thereof, (3) will keep
confidential and not divulge to anyone any of the content or evidence derived
from the use of the materials listed in clause (2), and promptly advise him of
any accidental disclosure, (4) agrees not to pursue any litigation, civil or
criminal relative to his relationship with other women, and in general will
refrain from making any comments to anyone concerning [R.K.’s] alleged
marital misconduct, except in counseling which is confidential.
Later in the same paragraph, J.K. and R.K. additionally agreed to the following:
J.K. warrants that she will not divulge the contents of the tapes to anyone . . .
If Defendant breaches this Agreement in regards to the tapes, she will pay in
liquidated damages the greater of (1) all amounts remaining due hereunder, or
(2) One Hundred Thousand Dollars ($100,000).
4
¶6.
On December 17, 2002, C.G., longtime friend and legal counsel to R.K., filed suit
against J.K. for wiretapping fraud alleging that her recordings included his conversations
with R.K. On December 12, 2003, J.K. filed a Petition to Re-Open and Modify Divorce
Settlement and Court Order for a Limited Purpose in chancery court requesting that the court
modify the Agreement in such a manner as to allow her to defend herself. R.K. filed a
Motion to Dismiss, Answer to Petition and Counter-claim for Contempt and Specific
Performance on March 12, 2004. The counterclaim requested that the court find J.K. in
contempt, inter alia, for violating section 19 by disclosing the contents of the tapes and
consequently, that the court order specific performance of the liquidated damages provision
in section 11, which would require J.K. to forfeit the remaining $215,000 due of the property
distribution lump sum. R.K. offered no evidence of his actual damages. The chancery court
denied J.K.’s motion on March 31, 2004, finding that the tapes were certainly discoverable
but leaving the determination as to whether J.K. could disclose the contents to the federal
district court who was in the best position to decide what information was necessary for
disclosure in the wiretapping suit. The court did not address R.K.’s counterclaim for breach
of contract at that time.
¶7.
J.K. counterclaimed in federal court against C.G. on April 2, 2004, for conspiracy,
abuse of process, and conversion, and R.K. intervened in the suit on April 12, 2004,
consequently making him subject to J.K.’s counterclaim as well. On July 7, 2004, J.K. filed
in the federal district court a Motion for Partial Summary Judgment as to the admissibility
of certain tapes, treated by the court as a Motion in Limine. J.K. asked the court to rule that
the Agreement could not be used to prevent her from defending herself in the wiretapping
5
suit. On September 14, 2004, the federal district court granted J.K.’s motion. J.K. was the
only person the court was certain knew the content of the tapes, and thus her testimony was
crucial in defense to the wiretapping suit. Since the wiretapping suit was based upon the
content of the tapes, it was necessary for J.K.’s defense that she be able to discuss the
information on the tapes. Thus, the court granted J.K.’s motion, holding that, solely within
the context of that trial, J.K. could discuss the tapes in order to defend herself in the
wiretapping suit. The court would address matters concerning evidentiary privileges as the
need arose. The court did not decide whether J.K.’s arguments could be construed as “uses”
or “disclosures” in violation of the Agreement and left that issue to be decided by the
chancery court. On February 17, 2005, the jury found that J.K. proved two of her claims,
conversion and abuse of process.1 The jury also found that she suffered actual damages as
a result of R.K.’s actions and consequently awarded her $242,000.
¶8.
R.K.’s attorney wrote J.K. a letter in May 2004 stating that he advised R.K. to
discontinue monthly property distribution payments in order to recoup his legal fees pursuant
to Section 11 of the Agreement. On May 21, 2004 J.K. filed a Motion for Contempt and for
Specific Performance of Property Settlement Agreement requesting that R.K. be found in
contempt for ceasing monthly property distribution payments and that he be required to
provide specific performance of his duty per the Agreement to pay arrears and continue
payments.
¶9.
On November 15, 2004, the chancery court responded to J.K.’s motion for contempt
and specific performance and R.K.’s counterclaim for breach of contract. The court found
1
Her claim of conspiracy was finally dismissed with prejudice.
6
R.K. in contempt for willfully and intentionally violating the Agreement by failing to make
the $5,000 monthly payments. The court did not enforce the liquidated damages provision
in section 19. She enforced the provision as a termination clause, finding “[J.K.] did not
commit a material breach” as any disclosure was for a limited purpose among parties who
were already aware of the content, and because of the necessity of participating in her own
defense, her breach was not willful and thus not contemptuous. The court was thus
unconvinced by R.K.’s argument that he withheld the payments because J.K. violated
sections 11 and 19 of the Agreement by divulging the contents of certain tapes and making
comments concerning R.K.’s alleged marital misconduct.
The court found no actual
damages shown by R.K. as a result of the disclosure and found the One Million dollar
amount excessive. R.K. was ordered to pay $35,000 in arrears and to continue the $5,000
monthly payments as provided by the Agreement. Additionally, because R.K. was found
to be in contempt, the court granted J.K. attorney’s fees as she requested.2
¶10.
On November 22, 2004, R.K. filed a Motion for Clarification And/Or Reconsideration
of November 15, 2004 Opinion claiming that J.K. should be found in contempt, the
liquidated damages provision in the Agreement enforced, and R.K. awarded attorney’s fees
pursuant to the Agreement. He contended that the penalty upon breach of the Agreement
applied to each breach, eleven total cited, totaling his claimed damages at 1.1 million dollars.
R.K. contended that because it was his contract right to deduct one-half of his attorney’s fees
from the balance of any sum due J.K., he should not be found in contempt. In response to
2
The chancery court awarded attorney’s fees to each party relative to the court’s contempt
findings. In addition to deeming R.K.’s cease of payments as contemptuous, the court also found
J.K. in contempt for failing to inform R.K. of certain medical needs of L. K., their child.
7
R.K.’s motion the court, on February 18, 2005, reversed its finding that R.K. was in contempt
for deviating from the Order by discontinuing his $5,000 monthly payments to J.K. citing to
the inequitable result of imposing a finding of contempt and award of attorney’s fees against
him and not her. The Court also reversed the order for R.K. to pay J.K.’s attorney’s fees.
¶11.
On March 25, 2005, R.K. filed a Motion For Rule 60(b) Relief From November 15,
2004 Order And/Or Stay of Execution Of Order Pending Appeal requesting, inter alia, that
the court alter its November 15, 2004 order to award him liquidated damages pursuant to
Section 19 and allow him to recoup half of his attorney’s fees pursuant to Section 11. In the
alternative, he requested that the court stay the execution of the November 2004 and
February 2005 orders awaiting the resolution of the action in federal district court or pending
the appeal of the matter to this Court. On June 10, 2005, the chancery court issued a Final
Order and Opinion of the Court in response to J.K.’s Motion for Citation For Contempt and
on R.K.’s Motion For Rule 60(b) Relief From November 15, 2004 Order And/Or Stay of
Execution Of Order Pending Appeal. After having heard testimony and considered the
motions, the court stated that R.K. provided inadequate grounds to warrant alteration or
amendment to the opinion and reiterated its findings in the February 18, 2005, Order that
R.K. was not in contempt for discontinuing payments to J.K. but must pay arrears and
continue payments.
¶12.
R.K. appealed the court’s November 2004 and February 2005 orders on June 28, 2005
and J.K. filed a cross appeal in response to the same orders on July 12, 2005.
¶13.
In the first case, R.K. presents the following five issues on appeal:
8
I.
II.
The trial court erred in applying the legal standard applicable to
terminating a contract for material breach rather than the legal
standard applicable to enforcing a liquidated damages clause.
III.
The trial court erred in that its findings were not supported by
competent evidence
IV.
The trial court erred in denying R.K.’s claim to deduct one-half of
his legal fees in defending J.K.’s petition to modify the settlement
agreement to allow her to discuss the content of his conversations
she recorded
V.
¶14.
The trial court erred in failing to enforce the liquidated damages
clause in the settlement agreement.
The trial court erred in denying R.K.’s motion under M.R.C.P.
60(b) to stay execution of the judgment and other relief.
On cross appeal, J.K. presents the following two issues:
I.
The trial court erred in failing to hold R.K. in contempt for
unilaterally ceasing payments under the agreement
II.
The trial court erred by failing to award her attorney’s fees
Case 2: Child Support
¶15.
As aforementioned, in section 3 of the Agreement, titled “Child Support,” R.K. agreed
to provide $5,000 in child support for B.K. “as long as [B.K.] lives at home with [J.K.] or
until [B.K.] reaches 21 years of age, whichever is first.” In September 2005, soon after the
Parties’ daughter B.K. began to attend boarding school in New Jersey, R.K. stopped the
$5,000 monthly child support payments required by the Agreement. On October 4, 2005,
R.K. filed an Emergency Petition for Declaratory Relief requesting termination of his child
support obligation. On February 27, 2006, the chancery court denied R.K.’s motion and
9
required R.K. to pay arrears with interest and to continue child support payments. On March
9, 2006, R.K. appealed that decision.
¶16.
In the second case, R.K. presents three issues on appeal:
I.
The trial court erred in holding that the state of mind of a person
was an essential element in determining where that person lived.
II.
The trial court erred in holding that when the parties’ child was
physically in New Jersey during the school year that she was still
“living at home with [J.K.].”
III.
The trial court erred in holding that R.K. still owed the full child
support payment for the months the child was physically present
in the boarding school in New Jersey.
DISCUSSION
Standard of Review
¶17.
Our scope of review in domestic relations matters is limited by the familiar substantial
evidence/manifest error rule. Mizell v. Mizell, 708 So. 2d 55, 59 (Miss. 1998). This Court
will not disturb the findings of a chancellor unless the chancellor was manifestly wrong,
clearly erroneous or an erroneous legal standard was applied. Id. Particularly in the areas of
divorce and child support, this Court must respect a chancellor’s findings of fact which are
supported by credible evidence and not manifestly wrong. Id.
Property Settlement
Liquidated Damages Provision
¶18.
In his first issue, R.K. argues that he should not have been required to pay arrears and
to continue periodic alimony payments because the chancery court should have enforced the
liquidated damages provision in the Agreement. We also address his second and third issues
10
regarding the application of an erroneous legal standard and insufficiency of evidence,
respectively, since our resolution of his first issue depends on our finding regarding the
second and third issues.
¶19.
R.K. claims the trial court applied an erroneous legal standard because the liquidated
damages provision, as it is so named in the Agreement, should be enforced as such. J.K.
contends the “liquidated damages” provision is a penalty. Since the chancery court based its
decision on neither of these, instead looking to the equity of the situation, this Court will
review solely whether the chancery court erred in its employment of equity.
¶20.
Previously, when considering the enforcement of a liquidated damages provision, this
Court has stated that it views property settlement agreements as quasi-contracts. Varner v.
Varner, 666 So. 2d 493, 496 (Miss. 1995). “[W]here a property settlement agreement is
entered into in contemplation of a divorce on the grounds of irreconcilable differences, there
is more at work than general contract law.” Id. (citing Grier v. Grier, 616 So. 2d 337, 340
(Miss. 1993)). Notwithstanding the Court’s view that property settlement agreements are
contractual in nature and should be treated as such, “courts of equity have certain
discretionary power in the matter of decreeing the specific performance of contracts and they
may and should make equitable modifications in the form of relief granted where to do
otherwise would result in undue hardship or injustice.” Dalton v. Dalton, 874 So. 2d 967,
971 (Miss. 2004)
¶21.
Pursuant to the Agreement both parties requested specific performance, J.K.
requesting payments to continue and R.K. requesting that they terminate and he be awarded
liquidated damages. In deciding whether and how to order specific performance, the
11
chancery court found it necessary to make equitable modifications to the Agreement in order
to prevent undue hardship or injustice against J.K.. Both courts agreed that the attempt to
enforce the Agreement in such a manner as to halt J.K.’s defense has “prevented J.K. from
fully defending herself in this action, and it has prevented [the federal district] Court and the
parties from being fully informed of all relevant facts.” The chancery court found that
“without some limited disclosure, [J.K.] would be prevented from fully defending herself in
[the wiretapping] action.” The court found this position one of “extreme hardship” on J.K.
and thus that the circumstances forced her to “breach the agreement in some degree to defend
herself.” The court found that J.K. did not breach as a result of negligence or willfulness.
Diligently attempting to protect the confidentiality of the tapes, J.K. sought a modification
of the Agreement for the limited purpose of her defense and disclosed information only in
the context of trial among parties who previously had access to, or knew the contents of, the
information.
¶22.
While the chancery court found that J.K. attempted with all good faith to uphold the
agreement, it found the converse regarding R.K. Both the chancery and federal district courts
found that R.K. assisted in creating a situation which presented J.K. with a Hobson’s choice.3
3
The district court judge stated:
It would be patently unfair to preclude [J.K.] from testifying about
the contents of the tapes, or, more to the point, that [C.G.’s] voice is
not audible on them. Such an action would allow [C.G.] to maintain
an action on the basis that his voice was actually recorded, when he
has not even listened to the tapes nor presented any evidence that his
voice was actually recorded, and then preclude [J.K.] from discussing
the tapes, when she has heard the tapes. [J.K.] should be able to
defend herself in this federal action by discussing the tapes, which
form the foundation for this entire suit. [J.K.] and [R.K.] are the only
12
She could act in such a manner possibly perceived as a breach of the Agreement, or she could
sit idly by, defenseless, while R.K.’s close, long time friend, ultimately joined by R.K.,
charged her with violation of a federal statute. According to the chancery court, R.K., on the
other hand, not only participated in a suit that prevented J.K. from carrying out her part of
the agreement, but also self-modified his obligation to abide by the very provision he wanted
the chancery court to enforce when he and his attorney decided to discontinue making
monthly property distribution payments to J.K. as the provision requires. In light of R.K.’s
participation in the federal action against J.K. and R.K.’s own violation of the section he
seeks to enforce, the chancery court properly considered equity in examining the dispute.
¶23.
Next, R.K. refutes the competence of the evidence supporting the Court’s refusal to
enforce the liquidated damages provision. “Equity will enforce a contract for liquidated
damages if such liquidated damages can be found to be reasonable and proper in the light of
the circumstances of the case.” Maxey v. Glindmeyer, 379 So. 2d 297, 301 (Miss. 1980).”
¶24.
“[T]he principles of equity and righteous dealing [are] the purpose of the very
jurisdiction of the [chancery] court to sustain.” Shelton v. Shelton, 477 So. 2d 1357, 1358-59
(Miss. 1985). It is one of the oldest and most well known maxims that one seeking relief in
equity must come with clean hands or face refusal by the court to aid in securing any right
or granting any remedy. Id.; See also Cole v. Hood, 371 So. 2d 861, 863-64 (Miss. 1979)
(those who seek equitable relief must do so with clean hands); Thigpen v. Kennedy, 238 So.
persons with direct knowledge as to the contents of the tapes. That
evidence is relevant to this case. [C.G.] cannot have this cause of
action based on the content of the tapes and prohibit [J.K.’s]
testifying as to those contents.
13
2d 744, 746 (Miss. 1970) (same); Taliaferro v. Ferguson, 205 Miss. 129, 143, 38 So. 2d 471,
473 (1949) (same). In other words, whenever a party seeks to employ the judicial machinery
in order to obtain some remedy and that party has violated good faith or some other equitable
principle, “the doors of the court will be shut against him” and “the court will refuse to
interfere on his behalf, to acknowledge his right, or to award him any remedy.” Shelton, 477
So. 2d at 1359.
¶25.
The chancery court stated that R.K. and C.G.
allege that [J.K.] has violated their rights and then in the next breath, argue that
the Agreement prevents [J.K.] from uttering a word regarding contents of the
tape. (quoting the federal district court opinion on the admissibility of the
tapes). The Chancery Court is a court of equity and the doctrine of clean hands
is a legitimate concern. This Court cannot find that [R.K.] comes into court as
“the helpless victim in this ordeal, as he portrays.”
Having the discretion to refuse R.K. a remedy due to his “unclean hands”, the chancery court
decided the equitable remedy would be to award him actual damages for any disclosure. The
court noted that the disclosures were in court or related to the suit and could be sealed,
placing R.K. in almost the identical position he would have been in had the contract been
performed in its entirety. Additionally, it is undisputed that R.K. failed to present evidence
of any actual damages. Having found none through examination of the facts presented, the
chancery court awarded R.K. nothing and ordered him to pay arrears and to continue the
monthly property distribution payments to J.K. Considering the evidence drawn upon by the
chancellor, this Court finds that the chancery court did not abuse its discretion.
¶26.
The chancery court applied the correct legal standard of equity and found sufficient
evidence to warrant a refusal to award R.K. the “liquidated damages” provided for in section
14
19. Therefore, the court acted within its discretion, and R.K.’s first three issues are without
merit.
Attorney’s Fees
¶27.
Fourth, R.K. asserts that the chancery court erred in refusing to allow him, pursuant
to the Agreement, to deduct one-half of his legal fees spent in defending J.K.’s petition to
modify the settlement agreement.
¶28.
Section 11 of the Agreement provides in the first paragraph for R.K. to pay J.K. a
lump sum property distribution and periodic alimony, both by monthly payments. The second
paragraph says “[R.K.] may deduct one half of his cost of defending, settling, or discharging
claims arising from his actions which took place prior to the date of the divorce.” The section
includes three types of claims. In dispute is the second type of claim consisting of “any
litigation that may arise as a result of [J.K.’s] instigation, encouragement, or in which [J.K.]
provides assistance.”
¶29.
The language of the contract is unambiguous. R.K. and J.K. agreed that R.K. would
pay J.K. a set amount as alimony and property distribution and that R.K. could deduct from
these monthly payments one-half of the cost of defending particular claims. The parties
dispute the applicability of that language in this case, particularly, (1) whether R.K. is
defending a claim or is the originator of the claim and (2) whether the claim arises out of
actions by R.K. prior to the divorce. If the answer is negative to either of these, R.K. cannot
deduct attorney’s fees from his monthly payments.
¶30.
The federal district court remarked as to who sued whom in the following manner:
15
The Agreement became an issue in this federal action when [C.G.] initially
sued [J.K.] for wiretapping fraud. It is an issue because the only action [C.G.]
has against [J.K.] is for an actual interception, and for [C.G.] to prove an actual
interception this Court and the jury must know what is or is not on the tape.
Regarding R.K.’s role in both the state and federal suits, the district court said:
[R.K.] argues he “has been placed in a very difficult position as a direct result
of defending claims made against him by [J.K.] in both state and federal
courts” . . . Perhaps this statement would carry some weight had [J.K.] sued
[R.K.]. But she did not. [R.K.] argues he was “forced” to join this case and file
an action because [J.K.] “sued” him. . . Because of [J.K.’s] petition for
modification [R.K.] claims he was “sued” and had to join this action. That is
a very generous definition of being sued. . . It would be one thing if [R.K.]
simply sought to enjoin [J.K.] in this action, but he did not. He sought to enjoin
her and sue for damages. All of this makes it somewhat hard to believe he is
the helpless victim in the ordeal as he portrays.
This Court agrees with the essence of the federal district court’s remarks. The underlying
claim here is not one in which R.K. finds himself a victim defending against a suit instigated
by J.K. The underlying claim at the heart of all these disputes regarding the property
settlement agreement is the claim brought by C.G. against J.K., a suit in which R.K. joined
as a plaintiff. As for the proposition that R.K.’s attorney’s fees were incurred defending a suit
brought against him by J.K., R.K.’s first argument fails.
¶31.
The dispute of whether the claim arises from R.K.’s actions prior to divorce is easily
resolvable. There are situations where such language as “arising from” or “arising out of” has
been construed by this Court as broad language, reaching far in its effect. MS Credit Ctr. v.
Horton, 926 So. 2d 167, 176 (Miss. 2006). However, to connect a modification dispute to
R.K.’s communications prior to the divorce as R.K. suggests would require this Court to
endorse a reading that effectively encompasses all claims, as J.K. says, including those
having any tenuous relationship to any pre-divorce conduct of R.K.. This Court has not and
16
will not extend such language to be all-encompassing, applicable to every claim between the
signatories of the agreement. The “arising from” language only extends broadly concerning
circumstances that meet the qualifying language following the “arising from”.
¶32.
Accordingly, for section 11 of the Agreement to take effect, J.K.’s petition for
modification must have arisen from R.K.’s actions prior to the divorce. The petition for
modification arose solely from the actions of C.G. who filed suit against J.K. after the
divorce. Apparently, the petition for modification arose from actions other than R.K.’s, which
occurred after the divorce, and thus, R.K. is not entitled to deduct attorney’s fees pursuant
to Section 11 which only applies to claims arising from R.K.’s actions before the divorce.
¶33.
Clearly, lacking either requisite to prompt the application of Section 11, R.K.’s claim
for attorney’s fees as provided for by section 11 of the Agreement is without merit, and the
chancery court properly refused to allow R.K. to succeed in his self-termination of property
distribution payments.
M.R.C.P. Rule 60(b) Motion for Relief
¶34.
R.K. submits as his fifth issue that the chancery court erred in denying his motion
under M.R.C.P. 60(b) to stay execution of the judgment and for other relief. After hearing
testimony and considering R.K.’s motion, the chancery court found that R.K. failed to
provide adequate reasoning as to why the court should alter or amend its previous Order. The
question this court must answer is whether the chancery court abused its discretion in finding
R.K.’s arguments inadequate to warrant relief under Rule 60.
¶35.
This Court reviews denial of a Rule 60 request for relief for abuse of discretion.
M.A.S. v. Miss. Dep’t of Human Servs., 842 So. 2d 527, 530 (Miss. 2003). Relief is afforded
17
pursuant to M.R.C.P. 60(b)(6) under extraordinary and compelling circumstances. Id. The
Rule is a grand reservoir of equitable power to do justice in a particular case. Id. However,
Rule 60 is not a means for those who had procedural opportunity for remedy under other
rules and failed, without cause, to pursue such avenues. Id. The considerations for
determination of Rule 60(b) motions are:
(1) that final judgments should not be lightly disturbed; (2) that the Rule 60(b)
motion is not to be used as a substitute for appeal; (3) that the rule should be
liberally construed in order to achieve substantial justice; (4) whether the
motion was made within a reasonable time; (5) [relevant only to default
judgments]; (6) whether if the judgment was rendered after a trial on the merits
the movant had a fair opportunity to present his claim or defense; (7) whether
there are any intervening equities that would make it inequitable to grant relief;
and (8) any other factors relevant to the justice of the judgment under attack.
Id.
¶36.
R.K. submits to this Court as extraordinary circumstances J.K.’s double recovery.
Within four months of the chancery court’s order, R.K. filed for relief, asserting he should
be relieved of paying the same judgment twice - the arrears and remaining payments due per
the Agreement as ruled by the chancery court and the federal jury award to J.K., an amount
largely based on J.K.’s claim for conversion of the remaining property distribution payments
18
when R.K. ceased payments.4 J.K. contends that the two claims are different because one is
a contract claim, and the other is a tort claim.
¶37.
It is well known that this state does not endorse double recovery. Judgments involving
property settlement agreements are also subject to this policy. Double recovery is a tort
doctrine that prevents unjust enrichment by precluding a recovery of the same damages
multiple times or beyond 100% of the judgment. (emphasis added). See Medlin v. Hazlehurst
Emergency Physicians, 829 So. 2d 496, 499 (Miss. 2005) (holding that a plaintiff may only
recover once for his damages). The theory of double recovery is not defeated simply by
bringing claims under two different areas of law as J.K. suggests. Instead, the inquiry in this
case in determining whether the theory of double recovery applies is simply whether the
claimant is attempting to obtain payment of her monetary loss more than once. Clearly,
allowing J.K. to recover the chancery court judgment for property distribution payments as
well as the federal court judgment for conversion of those same payments would be contrary
to this state’s policy against multiple recoveries for the same damages. Construed in order
4
The district court cited as J.K.’s damages:
payments due her per the divorce settlement which [R.K.] stopped
paying; mental anguish and emotional distress, for which she
obtained medical treatment; missing approximately five days of work
because of this federal case, for which she lost wages of
approximately $1050; incurring attorney’s fees, which had reached
approximately $45,000 by the end of April 2004; and, paid $500 to
a process server due to [R.K.’s] dodging process.
While this information from the district court opinion indicates J.K.’s claim of damages for
conversion indeed consisted of the monies due as property distribution payments, beyond
the jury’s verdict and award of $242,000, this Court has no information in the record as to
the amount awarded for each individual claim for damages.
19
to achieve substantial justice, Rule 60(b) requires relief from one of the judgments as to the
portion attributable to the property distribution payments.
¶38.
At this time the occurrence of J.K.’s double recovery is uncertain. As alternative
relief, R.K. requests from this Court a stay of the execution of the judgment in chancery court
until the appeal in the Fifth Circuit is resolved. We grant that request. The execution of the
chancery court order should have been stayed until the Fifth Circuit issued a decision. If the
district court award is affirmed, the chancery court must grant R.K. relief from its judgment
in order to prevent double recovery, and conversely, upon reversal the chancery court must
deny R.K. relief and require payment. Accordingly, the chancery court erred in its denial of
relief to R.K. under Rule 60(b).
Cross Appeal
Contempt
¶39.
A chancellor has substantial discretion in deciding whether a party is in contempt.
Lahmann v. Hallmon, 722 So. 2d 614, 620 (Miss. 1998). Contempt is an issue of fact to be
decided on a case-by-case basis. Mizell, 708 So. 2d at 64. Regarding a determination of
contempt, a trial court due to its temporal and physical proximity to the parties “is infinitely
more competent to decide the matter.” Cumberland v. Cumberland, 564 So. 2d 839, 845
(Miss. 1990).
¶40.
J.K. submits for application by this Court the burden shifting scheme in Lahmann.
In that case this Court held that in a contempt action involving unpaid child support, a prima
facie case is achieved when the party entitled to receive child support introduces evidence
that the party required to pay the support has failed to do so. Lahmann, 722 So. 2d at 620.
20
Then the burden shifts to the party who failed to pay to show an applicable defense, and this
proof must be clear and convincing. Id. This method of reviewing contempt decisions has
been employed by this Court numerous times. See McIntosh v. Dep’t of Human Servs., 886
So. 2d 721, 724-25 (Miss. 2004); Fancher v. Pell, 831 So. 2d 1137, 1143 (Miss. 2002).
Since R.K. concedes the fact that he stopped making child support payments in September
2005, a prima facie case has been established, leaving the question of whether R.K. has a
valid defense for his action. Id.
¶41.
This Court has held that contempt can only be willful. Mizell, 708 So. 2d at 64. “A
contempt citation is proper only when the contemnor has willfully and deliberately ignored
the order of the court.” Id. (citing Cooper v. Keyes, 510 So. 2d 518, 519 (Miss. 1987)). “It
is a defense to a contempt proceeding that the person was not guilty of willful or deliberate
violations of a prior judgment or decree.” Id. (citing Dunaway v. Busbin, 498 So. 2d 1218
(Miss. 1986)). J.K. contends that R.K. clearly willfully violated the Agreement, but R.K.
asserts his cessation of payments was not a willful violation because he thought his actions
were appropriate per advice of his counsel. The question then becomes whether one who
ceases support payments to his spouse upon the advice of his attorney has acted willfully.
¶42.
This Court has previously held in Mizell that a chancellor was within its discretion in
not finding in contempt a father who ceased child support payments on the grounds that his
attorney advised such action. 708 So. 2d at 64. As in this case, the father claimed he did not
act willfully in stopping child support payments because he did so upon the advice of a
lawyer. Id. After initially holding R.K. in contempt because he ceased making payments as
required by the Agreement, upon examination the chancery court decided that R.K. did not
21
act willfully and deliberately since he acted in accordance with his attorney’s advice. We find
no manifest error in the court’s final determination that R.K. was not in contempt.
Attorney’s Fees
¶43.
In a divorce case, generally, an award of attorney’s fees is left to the sound discretion
of the trial court. Pittman v. Pittman, 652 So. 2d 1105, 1111 (Miss. 1995) (citing Cheatham
v. Cheatham, 537 So. 2d 435, 440 (Miss. 1988)). This Court is reluctant to disturb that
discretionary determination. Id. (citing Ferguson v. Ferguson, 639 So. 2d 921, 937 (Miss.
1994)).
¶44.
J.K. contends that had R.K. been in contempt, she should be awarded attorney’s fees,
but this Court has upheld an award of attorney’s fees both when the trial court reached a
finding of contempt, as well as when the trial court did not reach a finding of contempt.
Compare Lahmann, 722 So. 2d at 623 (holding that success on a motion for contempt made
the movant eligible for attorney’s fees) with Mizell, 708 So. 2d at 65 (holding that contempt
is not necessary for the moving party to be awarded attorney’s fees). Thus, precedent
indicates that an award of attorney’s fees is not contingent on a finding of contempt.
¶45.
J.K. further asserts that the McKee factors supply the appropriate standard for
attorney’s fees and that a balance of those factors would favor her. McKee v. McKee, 418 So.
2d 764, 767 (Miss. 1982). This Court has applied different standards in different cases. In
2002, the last time this Court dealt with this exact issue it promulgated two decisions. The
first, Chesney v. Chesney, 840 So. 2d 860, 863 (Miss. 2002) applied the McKee factors, but
the second, Hensarling v. Hensarling, 824 So. 2d 583, 592 (Miss. 2002) cited the Pittman
ability to pay standard, however, finding that regardless of the movant’s ability to pay, the
22
movant would be awarded attorney’s fees for reimbursement of extra legal costs incurred
as a result of the defendant’s conduct.
¶46.
Though this Court has differed previously in its statements as to the mandatory
considerations before a trial court awards attorney’s fees, each standard was followed by an
indication that the ultimate decision is within the discretion of the trial court. See Hensarling
(citing Pittman, 652 So. 2d at 1112, for the proposition that while the movant’s ability to
pay is the general rule, a chancellor has great discretion in the matter and may appropriately
award attorney’s fees without satisfying that general rule). Therefore, absent an apparent
abuse of discretion, this Court will assume the chancellor considered the appropriate factors
in awarding attorney’s fees. See Sarver v. Sarver, 687 So. 2d 749, 755 (Miss. 1997)
(overruled on other grounds). We find no error in the chancellor’s final decision to not
award attorney’s fees to J.K..
Child Support
¶47.
The last three issues R.K. raises regard his child support obligation while his daughter
B.K. attends boarding school in New Jersey. The contentions of R.K. and J.K. regarding his
unauthorized cessation of child support payments revolve around the meaning of the phrase
“lives at home with [J.K.].” R.K. suggests B.K. does not “live” with J.K. while she is at
boarding school, relieving him of his obligation to pay J.K. child support payments, while
J.K. argues the converse as to the interpretation and resulting obligation. The issues R.K.
submits regarding his child support obligation are all resolved by determining when, if ever,
the duty to pay child support to a minor child can be terminated in compliance with a divorce
settlement agreement.
23
¶48.
The Court has considered a similar question and decided the noncustodial parent is
prohibited from contracting to cut off child support before the child reaches the age of
twenty-one, unless the child is emancipated. Lawrence v. Lawrence, 574 So. 2d 1376, 1381
(Miss. 1991). In Lawrence the Court considered whether a parent can contract to end child
support before his or her child reaches majority. Id. “The duty to support children is a
continuing duty on both parents and is a vested right of the child. Applying [this principle],
it follows that parents cannot contract away rights vested in minor children. Such a contract
would be against public policy.” Id. (citing Calton v. Calton, 485 So. 2d 309, 310 (Miss.
1986)). “Further, while a property settlement agreement, judicially approved, is always
given great weight by this Court, the agreement and weight given may not extinguish the
rights of a minor child and cut off child support prior to the emancipation, all to the detriment
and interest of the child.” Id. Thus, as in Lawrence, this Court holds that a child support
agreement which ends support for a child before that child reaches the age of twenty-one or
is otherwise emancipated, is unenforceable. Id.
¶49.
Therefore, R.K.’s contentions that the trial court erroneously interpreted the phrase
“lives at home” in the Agreement are irrelevant to whether he must pay child support. As
precedent requires, R.K. must continue paying child support despite B.K.’s attendance at a
New Jersey boarding school. This obligation continues regardless of how the trial court
interprets what it means to “live at home with [J.K.].” The Court need not resolve the proper
interpretation of the phrase but merely to reiterate what it has previously said. The last three
issues R.K. raises are resolved by Lawrence. R.K. and J.K. cannot contract to terminate
B.K.’s right of support.
24
¶50.
With regard to R.K.’s decision to stop child support payments before seeking the
court’s permission, it is clear that a parent seeking a change in child support payments must
file a motion for modification with the proper court and show a material change in the
circumstances of one or more of the interested parties. Sumrall v. Munguia, 757 So. 2d 279,
282 (Miss. 2000). A parent obligated to pay child support cannot reduce child support
payments without a court order, and when such event happens the parent who deviated from
his obligation must pay accrued child support. Williams v. Rembert, 654 So. 2d 26, 29 (Miss.
1995). Thus, the trial court properly required R.K. to pay arrears and to continue child
support payments.
CONCLUSION
¶51.
As for the case which concerned the property settlement distribution, the chancery
court is affirmed with regard to issues I-IV. However, Issue V, denial of M.R.C.P. Rule 60(b)
relief, is reversed and remanded, and after the Fifth Circuit renders its decision, the chancery
court is instructed to proceed in accordance with this opinion. On cross appeal, the chancery
court is affirmed as to both issues. Lastly, in the child custody case, the judgment of the
chancery court is also affirmed as to the three issues raised.
¶52. ON DIRECT APPEAL: AFFIRMED IN PART;
REMANDED IN PART. ON CROSS APPEAL: AFFIRMED.
REVERSED AND
WALLER AND COBB, P.JJ., EASLEY, DICKINSON AND RANDOLPH, JJ.,
CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT
SEPARATE WRITTEN OPINION. DIAZ AND CARLSON, JJ., NOT PARTICIPATING.
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