KENNETH K. STALLINGS v. MEEKA MORGAN ALLEN
NO. 2014-CP-00818-COA
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
02/09/2016
DATE OF JUDGMENT: 05/16/2014
HON. E. VINCENT DAVIS
COURT FROM WHICH APPEALED: CLAIBORNE COUNTY CHANCERY COURT; ATTORNEY FOR APPELLANT: KENNETH
BEFORE IRVING, P.J., BARNES AND ISHEE, JJ.
BARNES, J., FOR THE COURT:
¶1. Kеnneth Stallings, appearing pro se, appeals the judgment of the Chancery Court of Claiborne County. The chancellor upwardly modified Kenneth‘s child support, and found him in contempt for failure to provide dental insurance for his minor child and failure to pay medical expenses nоt covered by insurance. Meeka Allen, the mother of the child, was awarded a judgment against Kenneth of $774.60 for her payment of dental-insurance premiums for the child, and $5,835.14 for her payment
¶2. Kenneth appeals, raising numerous issues, including the chancellor‘s award of a judgment to Meeka for dental insurance and medical expenses, as well as the finding of contempt. Kenneth also claims he was prejudiced by the denial of his motion for a continuance at the hearing. Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶3. Kenneth and Meeka are the natural parents of the minor child, Kendrique Morgan, who was born out-of-wedlock in December 1994. In May 2000, after a paternity test, Kenneth was determined to be Kendrique‘s natural father and was ordered to pay child support, provide health and dental insurance, and pay all medical, dental, orthodontic, and eye-care expenses not covered by insurance.
¶4. In February 2014, Meeka filed a petition for contempt and request to modify child support. Meeka complained that Kenneth wаs in contempt of the court‘s May 2000 court order because he had failed to provide health and dental insurance for his son, and was not paying the child‘s other medical, dental, orthodontic, and eye-care expenses not covered by insurance. On February 24, 2014, a
¶5. After a hearing on the merits, each party submitted proposed findings of fact and conclusions of law. On April 16, 2014, the court entered an amended memorandum opinion and final judgment. The chancellor modified Kenneth‘s child-support payment from $300 per month to $509 per month. Kenneth was found in cоntempt of the court‘s May 14, 2000 order because he failed to provide dental insurance for his son. The court also found Meeka paid $774.60 for her son‘s dental insurance, which Kenneth had been ordered to pay, and thus entered a judgment against Kenneth for the same amount. Additionally, the court found Kenneth failed to pay all of his son‘s medical, dental, orthodontic, and eye-care expenses, and ordered Kenneth to pay Meeka the sum of $5,835.14 for these expenses she had incurred. There were also outstanding balances owed to many of the child‘s healthcare providers; so Kenneth was ordered to pay the balances (a sum of approximately $3,163.15) directly to the providers. Further, Kenneth was ordered to provide Meeka with a copy of the dental and insurance cards for their son.
¶6. Kenneth filed a motion to reconsider the final judgment, which was denied. He timely appealed, claiming numerous errors, including the grant of the judgment of $5,835.14 to Meeka for their son‘s various medically related expenses. He also challenges the denial of his motion for a continuance, the contempt finding, and the adoption of Meeka‘s рroposed findings of fact and conclusions of law.
ANALYSIS
I. Continuance
¶7. Kenneth claims the chancery court “[stood] in the way of justice” by denying his ore tenus motion for a continuance at the beginning of the hearing on the
¶8. The grant or denial of a continuance is within the discretion of the chancery court. A denial of a continuance will only be overturned when “manifest injustice” occurs. Pool v. Pool, 989 So. 2d 920, 924 (¶12) (Miss. Ct. App. 2008) (citing In re Profilet, 826 So. 2d 91, 93 (¶6) (Miss. 2002)). Prejudice must have resulted from the denial of a continuance in order for this Court to reverse. Id. at 925-26 (¶13) (citation omitted).
¶9. Kenneth failed to present any evidence of prejudice due to the denial of his request for a continuance. He was properly served by a Rule 81 summons on Meeka‘s petition for contempt and modification on February 24, 2014, approximately twenty-one days before the hearing date of March 24, 2014. Under
II. Verbatim Adoption of Meeka‘s Proposed Findings of Fact and Conclusions of Law for Final Judgment
¶10. Kenneth complains that the chancery court abused its discretion in adopting Meeka‘s proposed findings of faсt and conclusions of law verbatim. After the hearing, the chancellor asked both parties to submit their proposed orders. As Kenneth notes, the record does not include Meeka‘s proposed order, but Meeka does not deny that the chancery court adopted her doсument verbatim. However, this action did not prejudice Kenneth and is not error, as he claims.
¶11. Kenneth cites in support of his argument Rice Researchers Inc. v. Hiter, 512 So. 2d 1259 (Miss. 1987);1 however, this case held, and the Mississippi Supreme Court has repeatedly reiterated, that “a trial court may adopt verbatim, in whole or part, the findings of fact and conclusions of law of a party.” Id. at 1266; Chamblee v. Chamblee, 637 So. 2d 850, 858 (Miss. 1994); Omnibank v. United S. Bank, 607 So. 2d 76, 82-83 (Miss. 1992). Such action is within the trial court‘s discretion and is not “reversible error in and of itself.” Hiter, 512 So. 2d at 1265 (citations omitted). The usual standard of review applies: “This Court
will not disturb the findings of the chancellor when supported by substantial evidence unless the chancellor has abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Thomas v. Scarborough, 977 So. 2d 393, 397 (¶9) (Miss. Ct. App. 2007) (quoting Sanderson v. Sanderson, 824 So. 2d 623, 625-26 (¶18) (Miss. 2002)). Further, the “heightened scrutiny” standard cited by Meeka no longer applies. The supreme court has held “our duty requires us in every case to be as careful and as sensitive to error as we can be, and we cannot сondone a standard that allows us to be less sensitive to error in one case than
¶12. Here, there was no procedural error for the chancery court to adоpt verbatim Meeka‘s proposed findings of fact and conclusions of law. As stated in the past, “[t]his Court recognizes the complexities and nuances of individual cases, which in addition to crushing trial court caseloads necessitate substantial reliance upon the on submissions of trial cоunsel. Id. (citing Hiter, 512 So. 2d at 1266).
III. Contempt Finding
¶13. The chancery court found Kenneth in contempt for failing to provide dental insurance for his son and failing to pay all of his son‘s medical, dental, orthodontic, and eye-care expenses not covered by insurance. Kenneth claims this finding was in error.
¶14. The primary purpose of а civil-contempt order is to enforce compliance with a court order. Evans v. Evans, 75 So. 3d 1083, 1087 (¶14) (Miss. Ct. App. 2011) (citing Dennis v. Dennis, 824 So. 2d 604, 608 (¶8) (Miss. 2002)). Contempt is determined by the facts and left to the chancellor‘s discretion. Milam v. Milam, 509 So. 2d 864, 866 (Miss. 1987). “Failure to comply with a court order is prima facie evidence of contempt.” Evans, 75 So. 3d at 1087 (¶14) (citing McIntosh v. Dep‘t of Human Servs., 886 So. 2d 721, 724 (¶11) (Miss. 2004)). “To rebut a prima facie case of contempt, a defendant must show an ‘inability to pay, that the default was not willful, that the provision [violated] was ambiguous, or that performance was impossible.‘” Id. (citing Deborah H. Bell, Bell on Mississippi Family Law § 11.05(1)(a) (1st ed. 2005)). An adjudication of civil contempt must be proven by clear and convinсing evidence. Id. (citations omitted). The standard of review for civil contempt on appeal is manifest error, meaning “the factual findings of the chancellor are affirmed unless manifest error is present and apparent.” Purvis v. Purvis, 657 So. 2d 794, 797 (Miss. 1994).
¶15. Kenneth argues that he had no knowledge of any unpaid mediсal bills prior to the hearing. Further, he claims all of his and Meeka‘s exchanges regarding payment of medical bills were oral requests for money from Meeka; so there were no receipts.
¶16. Kenneth‘s arguments are without merit. The chancery court found that Kenneth provided no proof of any payments he made for Kendrique‘s medical, dental, orthodontic, and eye-care expenses. Meeka, on the other hand, provided outstanding medical billing statements for services provided, showing Kenneth had not made payments on them. She also provided numerous medicаl-related billing statements, testifying she had paid these service providers directly. Kenneth defended his admitted failure to pay orthodontic expenses by claiming, in his opinion, his son did not need orthodontic treatment. Yet the original order of May 2000 specifically stated Kenneth must pay all “orthоdontic” expenses. Further, Kenneth did not provide any proof of dental-insurance benefits for the child. Moreover, he failed to rebut Meeka‘s prima facie showing of contempt – he did not provide proof that he could not pay for the medical expenses or dental-insurance premiums, or prove his lack of payment was not willful. We conclude that the chancery court did not abuse its discretion in finding Kenneth in contempt.
¶17. Kenneth makes several arguments related to the chancery court‘s ruling on insurance coverage and payment of medical еxpenses. The standard of review regarding a chancellor‘s determinations is well established. “A chancellor‘s findings will not be disturbed unless he was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Nichols v. Funderburk, 883 So. 2d 554, 556 (¶7) (Miss. 2004) (quoting In re Estate of Johnson, 735 So. 2d 231, 236 (¶24) (Miss. 1999)). If substantial evidence supports the chancellor‘s findings, the reviеwing court cannot disturb them. Id.
¶18. Regarding insurance coverage, Kenneth claims the chancery court did not give him “credit” for his payment of health-insurance premiums. However, he does not specify what type of “credit” he seeks. Under the initial court order, Kenneth was required to provide Kendrique‘s health insurance. Kenneth was not found in contempt for failure to pay health-insurance premiums – only for failure to pay dental-insurance premiums and medical expenses. Therefore, there was no dispute regarding provision of Kendrique‘s health insurance.2
¶19. Regarding dental- and visiоn-insurance coverage, Kenneth argues the chancery court erred in not acknowledging he provided it, as shown by his payroll records submitted into evidence. The chancellor did not make a finding about provision of vision insurance, only payment of vision expenses. Regarding dental insurаnce, Kenneth did provide payroll receipts from his employer, Alcorn State University, from January 2013 through November 2013, which show a deduction from his gross pay of $68.76 for “CDental,” among other items. However, Kenneth failed to prove at the hearing that this dental-insurance deduction was for his son‘s dentаl insurance. The chancery court found Kenneth submitted no proof that he had provided dental insurance for his son, while Meeka submitted documents showing she had paid $774.60 for dental insurance through her federal employer for Kendrique from January 2008 until the time of the final judgment in April 2014.
¶20. Regarding health, dental, orthodontic, and vision expenses, Kenneth argues Meeka should have to share in any future expenses. However, Kenneth never made this request during the chancery-court proceedings. “It is well-established that a party is not allowed to raise an issue for the first time on appeal, because to do so prevents the lower court from addressing the alleged error.” Ory v. Ory, 936 So. 2d 405, 409 (¶9) (Miss. Ct. App. 2006) (citation omitted). Therefore, Kenneth has waived this issue. Likewise, Kenneth argues that the chancery court erred in “not applying the Mississippi statute of limitations to old bills”
presented by Meeka at the hearing. As Kenneth did not raise this affirmative defense before the chancery court, he has waived this argument on appeal.
¶21. He also contends Meeka “sat on her rights” by not timely submitting hard copies of past expenses to him, and she should be barred from reimbursement, citing in support the supreme cоurt‘s Milam decision. In Milam, the supreme court held that even though the ex-husband was ordered by a divorce decree to provide medical care for the children, when the ex-wife failed to consult with him before medical
¶22. Kеnneth also generally complains that the chancery court erred in assigning more credibility to Meeka‘s testimony and evidence about notifying Kenneth of any medical expenses. However, “it is the chancellor‘s duty to weigh the evidence“; the chancellor “is in a better position [than the appellate court] to judge the veracity of witnesses and credibility of evidence.” Lee v. Lee, 798 So. 2d 1284, 1291 (¶29) (Miss. 2001). In reviewing the record, there was substantial evidence to support the chancellor‘s findings; therefore, this argument is without merit.
¶23. In conclusion, all of the chancery court‘s findings are supported by substantial evidence. Accordingly, the chancery court did not abuse its discretion.
¶24. **THE JUDGMENT OF THE CHANCERY COURT OF CLAIBORNE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE****APPELLANT.**
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR AND WILSON, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. GREENLEE, J., NOT PARTICIPATING.