Brewer v. Holliday
135 So. 3d 117
| Miss. | 2014Background
- 2005 divorce; Penny awarded custody of two children and Donald ordered to pay $1,185 monthly in child support.
- John moved in with Donald shortly after divorce, yet Donald continued paying the full $1,185 to Penny.
- After mediation, the parties executed a memorandum of understanding and an agreed order reducing Donald’s obligation to $600 while Donald retained custody of John.
- The agreed order was never submitted to a chancellor for entry, but the parties and counsel believed it had been entered and acted accordingly for years.
- Penny later learned of the non-entry during Donald’s bankruptcy and sought arrearage, contempt, and fees; the chancery court refused to admit the agreement and found contempt for the full arrearage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of extrajudicial modification without entry | Donald argues parties acted under the agreed order; nunc pro tunc entry should be allowed. | Penny contends modification never entered and unenforceable. | Not enforceable; modification not entered; remand for proper consideration. |
| Credit for direct support to John | Donald should receive equitable credit for providing direct support to John. | Credit should not exceed judicially sanctioned support obligation. | Equitable credit may apply; remand to determine the appropriate amount. |
| Willful contempt determination | Evidence shows lack of willful violation due to belief order existed. | Contempt requires willful disobedience regardless of belief. | Willfulness unresolved; remand to determine contempt on remand. |
| Admissibility of proffered evidence on agreement | Proffered evidence goes to core contempt issue. | Record should exclude non-admitted extrinsic modifications. | Chancellor should have admitted the proffered evidence on remand. |
Key Cases Cited
- Tucker v. Prisock, 791 So.2d 190 (Miss. 2001) (cites contamination of contempt or related evidentiary standards)
- Wright v. Wright, 737 So.2d 408 (Miss. Ct.App. 1998) (extrajudicial modification under good faith belief of entry)
- Alexander v. Alexander, 494 So.2d 365 (Miss. 1986) (credit for payments to beneficiary child, equitable relief)
- Varner v. Varner, 588 So.2d 428 (Miss. 1991) (credit for direct-to-child support to avoid unjust enrichment)
- Calton v. Calton, 485 So.2d 309 (Miss. 1986) (contracting away child rights; court modification required)
- Alexander, 494 So.2d 365, noted above (Miss. 1986) (see Alexander on ex post facto adjustments)