Caldwell v. Caldwell

823 So. 2d 1216, 2002 WL 1839961
Court of Appeals of Mississippi·Decided August 13, 2002·No. 2000-CA-01747-COA·Published·Cited by 8 cases

Opinion

823 So.2d 1216 (2002)

Herbert Peter CALDWELL, Appellant
v.
Linda Ann McGee CALDWELL, Appellee.

No. 2000-CA-01747-COA.

Court of Appeals of Mississippi.

August 13, 2002.

*1218 David M. Sessums, Vicksburg, for appellant.

Felecia Perkins, Jackson, for appellee.

Before KING, P.J., BRIDGES, and CHANDLER, JJ.

BRIDGES, J., for the Court.

Procedural History and Factual Summary

¶ 1. The parties received a divorce on March 20, 1992. Two children, Daytron (date of birth April 29, 1975), and Cheree (date of birth March 15, 1980), were born of the union. Mrs. Linda Caldwell (Linda) was granted custody of the minor children and Mr. Herbert Caldwell (Herb) was ordered to pay the sum of $500 per month in child support. This order did not break down the specific amount to be paid per child. The divorce decree additionally granted Linda a cash property settlement of $6,000, to be paid in monthly installments.

¶ 2. Several motions were filed throughout the prior proceedings. Linda filed her first motion for modification and for contempt on January 24, 1996, alleging Herb was behind in his court ordered obligations. He responded on February 20, 1996. The Chancery Court of Warren County found Herb in contempt for past due child support in the sum of $4,250 and for past due property settlement payments in the sum of $4,898.12. The chancellor also awarded Linda attorney's fees in the amount of $800. That order was signed on July 18, 1996.

¶ 3. The record indicates that Herb brought his child support payments up to date, but that he chose to not pay the attorney's fees and cash property settlement. On November 8, 1996, Herb filed a "motion to re-set child support" [sic][1] based on Daytron reaching the age of twenty-one on April 29, 1996. However, Herb continued to pay the ordered child support of $500 per month. Herb never brought this so-called motion for hearing and on June 19, 2000, Linda filed her response to Herb's filing, claiming that Herb should not be heard because he entered court with unclean hands for his failure to comply with the July 18, 1996 contempt order.

¶ 4. On July 10, 2000, Herb filed a "motion to terminate child support" [sic][2] and requested credit or reimbursement for payments after Daytron's legal emancipation *1219 on April 29, 1996. He further alleged Cheree had become emancipated no later than December 31, 1999, based on the fact that she was over the age of eighteen years, had dropped out of school, did not have a good relationship with her father and had her first child in May of 2000. On July 10, 2000, the date said motion was filed, Cheree was twenty years old, to turn twenty-one on March 15, 2001. Also on July 10, 2000, Herb filed his response to the allegations dating back to 1996 that he was still in contempt and owed the sum of $5,698.12 for the cash property settlement and attorney's fees. Thereafter, on August 16, 2000, Linda filed a motion for contempt against Herb for his failure to pay the delinquent property settlement and attorney's fees and her response to his motion of July 10, 2000.

¶ 5. A hearing was held on September 11, 2000, finding Herb in contempt for failure to pay the past due cash property settlement of $4,898.12 and failure to pay the formerly awarded $800 in attorney's fees in 1996. Herb was also ordered to pay another $750 for attorney's fees associated with the September 2000 hearing. The chancery court also entered an order on September 11, 2000, terminating all child support for Daytron and Cheree, finding Cheree emancipated as of July 1, 2000.

¶ 6. Aggrieved, Herb perfected his appeal and comes before this Court citing the following issues:

I. Did the lower court err as a matter of law in determining that the daughter, Cheree Caldwell, was not effectively emancipated as of December 31, 1999;
II. Did the lower court err in not giving Herbert Peter Caldwell credit for overpayments made after the parties' son, Daytron Caldwell, reached the age of majority on April 29, 1996;
III. Did the lower court err in failing to give Herbert Peter Caldwell credit for damages to the former marital domicile and whether or not said issue was precluded by prior order of the court;
IV. Did the lower court err in assessing $750 in attorney's fees against Herbert Peter Caldwell; and
V. Whether the judgment of the lower court is supported by the credible evidence.

¶ 7. Finding error, we affirm in part and reverse and remand in part.

Standard of Review

¶ 8. This Court's scope of review of the findings of a chancellor in domestic relations matters is limited. Pearson v. Pearson, 761 So.2d 157, 162(¶ 14) (Miss. 2000). The findings of the chancellor will be overturned on appeal only if "manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard." Id. No finding will be disturbed or set aside if supported by "substantial, credible evidence." Id.

Legal Analysis

I. Did the lower court err as a matter of law in determining that the daughter, Cheree Caldwell, was not effectively emancipated as of December 31, 1999?

¶ 9. Herb argues Cheree was effectively emancipated on December 31, 1999, and the lower court was in error for failing to recognize this fact. He bases his argument on Cheree's decision not to continue her education after the fall 1999 semester, Cheree's decision to have a child out of wedlock, the lack of communication between father and daughter and Cheree's receipt of child support from the father of her child.

*1220 ¶ 10. Linda argues that Cheree was not emancipated because she was only twenty years of age, was living with and primarily supported by her mother and only had limited employment. She further argues that the lower court was correct because Herb chose to continue to pay child support even after he claims Cheree was emancipated and that child support payments are vested with the child and "cannot be modified or forgiven by the courts," following Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992).

¶ 11. Our supreme court defined emancipation in Caldwell v. Caldwell, 579 So.2d 543, 549 (Miss.1991) (citing Pass v. Pass, 238 Miss. 449, 454, 118 So.2d 769, 771 (1960)), as follows:

Emancipation, as employed in the law of parent and child, means the freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent's legal obligation to support it.

¶ 12. The statutes governing emancipation are found in sections 93-5-23 and 93-11-65 of the Mississippi Code, which both state in pertinent part:

The duty of support of a child terminates upon the emancipation of the child. The court may determine that emancipation has occurred and no other support obligation exists when that child:
(a) Attains the age of twenty-one years, or
(b) Marries, or
(c) Discontinues full-time enrollment in school and obtains full-time employment prior to attaining the age of twenty-one (21) years, or
(d) Voluntarily moves from the home of the custodial parent or guardian, and established independent living arrangements and obtains full-time employment prior to attaining the age of twenty-one (21) years.

Miss.Code Ann.

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