Dunn v. Dunn

695 So. 2d 1152, 1997 WL 312541
CourtMississippi Supreme Court
DecidedJune 12, 1997
Docket94-CA-00795-SCT
StatusPublished
Cited by19 cases

This text of 695 So. 2d 1152 (Dunn v. Dunn) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunn v. Dunn, 695 So. 2d 1152, 1997 WL 312541 (Mich. 1997).

Opinion

695 So.2d 1152 (1997)

Michael Hosea DUNN
v.
Danne Carole DUNN.

No. 94-CA-00795-SCT.

Supreme Court of Mississippi.

June 12, 1997.

Gary L. Roberts, Pascagoula, for appellant.

Earl L. Denham, Levi & Denham, Ocean Springs, for appellee.

Before DAN LEE, C.J., and McRAE and SMITH, JJ.

McRAE, Justice.

Here we are asked to consider whether the chancellor below abused his discretion by upholding, after remand from this Court for reconsideration, a previous order for a father to pay child support. Because we find that the chancellor below had substantial evidence to support his decision not to follow statutory *1153 guidelines for awarding child support, we affirm the chancellor's decision.

I.

This appeal arises from the Chancery Court of Jackson County, where Chancellor William Myers refused to decrease the amount of child support paid by Michael Hosea Dunn (Michael) to Danne Carol Dunn (Danne) on behalf of their two children, Ashley and Matthew. Danne and Michael married in Jackson County, Mississippi, on September 13, 1981, and this union bore two children, Ashley and Matthew. From a previous relationship, Michael also has a son, Kelly, and a daughter, Amy. The original divorce decree for the Dunns was entered on June 13, 1991 by Chancellor Robert H. Oswald. The chancellor there granted custody of Michael and Danne's two children to Danne. Danne was also awarded equitable liens against the marital homestead, Michael's business, and a jointly owned commercial lot. The chancellor required Michael to pay child support, along with the note, taxes, and insurance on the home, because the proceeds from the home mortgage had been used for his business.

Michael appealed the initial divorce judgment to this Court on June 14, 1991. On December 10, 1992, this Court affirmed the final judgment on all issues except child support, where we reversed and remanded. Dunn v. Dunn (Dunn I), 609 So.2d 1277, 1286 (Miss. 1992). Before we handed down Dunn I though, on June 19, 1992, Michael filed a petition to modify the divorce decree, which alleged that a material change in circumstances had occurred. By the time a hearing was convened, Chancellor Oswald had returned to private practice. On November 23, 1992, Chancellor Myers conducted a hearing on the petition in which Michael and Danne presented testimony and evidence in support of their respective claims. At this November hearing, the parties agreed to accept a sale of their jointly owned commercial lot for $35,000, to be used to reduce the principal amount of the second mortgage on the marital homestead. Michael also claimed that he could not afford to pay for child support, house notes, taxes and insurance. Contrastingly, Michael gave testimony that he took money from his business, Mike Dunn Auto Sales, to cover his personal bills and expenses, which he never reported as income. Eventually, he depleted the funds of the business, sold all but one of the automobiles in his inventory, and closed the business. Michael testified that he had moved out of his own rental home because of his inability to pay the rent and moved in with his father in August of 1992.

Michael did not inform Danne that he was closing the business, but he indicated that he told her that he was not going to meet his obligations for very long. After he closed Mike Dunn Auto Sales, Michael began working for his father, making $1500 to $1600 per month. Michael blamed the closing of the business on his continuous loss of money, which was caused by the combination of a poor economy and the presence of new car dealers. Danne received none of the proceeds from the liquidation of the business. When asked to explain how his pay from his father's business was determined, Michael responded that it was based upon commissions and fees for buying, selling, and detailing cars.

Although Michael listed the monthly note of $1500 for the second mortgage on the marital homestead as his expense on his financial declaration, the payments were made from the funds deposited with the court after the sale of the commercial property by Michael and Danne; Michael himself actually made only two payments. Michael also listed a $100 per month payment for taxes on the house, but he later testified at a July 1993 hearing that he was not paying the taxes. Rather, he stated that the money came from the funds deposited with the court. Michael believed that since the funds were coming from the proceeds of the sale a lot that he and Danne had jointly owned, he was paying for the taxes. The tax payments came out of the deposited fund however, not from Michael's personal income.

The financial declarations by Michael for the November 23, 1992, hearing indicate that Michael's gross monthly income was at least $1500, while his total monthly expenses were $3769.26. For Danne, the situation was just *1154 as bad, with gross monthly income of $2025 (net $1077), and total monthly expenses of $1638.

On December 22, 1992, the chancellor ordered both parties to apply proceeds from the sale of the jointly owned commercial lot to reduce the principal of the second mortgage on the house. In addition, due to the amount of time that passed between the November 1992 hearing and this Court's ruling on December 10, 1992, the chancellor ordered another hearing, scheduled for July 6, 1993, to supplement the testimony and evidence.

In the interim, on January 7, 1993, the chancellor canceled Danne's lien of $20,000 against the commercial lot, ordering her and Michael to place the sales proceeds in the county registry. After discovering that Michael had not paid taxes on the house for three years, Danne filed a motion to reconsider on January 21, 1993, seeking the court's allowance of part of the sale proceeds of the lot to be utilized to pay the past due taxes on the house. On February 26, 1993, the chancellor agreed to distribute part of the proceeds to pay past due taxes of $3415.18 and $4500 in overdue notes on the house, which Michael also had failed to pay. On June 7, 1993, the chancellor granted an emergency ore tenus motion where the parties sought disposition of $4500 in sales proceeds to prevent foreclosure on the house.

At the July 6, 1993, hearing, Michael testified that his gross monthly income had increased somewhat, to $1550. Michael claimed a debt to his father, but he did not testify that he was making any payments on it at the time of either hearing. There is no promissory note or other paper to provide for the repayment of this debt, and Michael's father was not called to provide corroborative proof of the existence of the debt. Michael testified then that he lived with his new wife in her house[1] and that he does not pay rent or a mortgage note. His claimed payments for food, telephone, medical, dental and television expenses increased between the hearing on November 23, 1992, and the hearing on July 6, 1993.

Michael was also paying at least $611 per month on behalf of his son Kelly, for school, car note and car insurance. In the November 1992 hearing, Michael testified that he could not continue to pay for Kelly's expenses; however, at the July 1993 hearing, Michael testified that he was paying those expenses, incidentally, at the cost of not paying the house note and taxes on the marital homestead, as had been required in the divorce decree. Regarding the child support payments for Ashley and Matthew, as of July 1993, Michael was in arrears $845. Between the November and July hearings, Michael also ceased paying the $149.50 per month for his other daughter, Amy, to attend college, since she had not decided where she was going at the time.

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Cite This Page — Counsel Stack

Bluebook (online)
695 So. 2d 1152, 1997 WL 312541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-dunn-miss-1997.