Durr v. Durr

912 So. 2d 1033, 2005 WL 757349
CourtCourt of Appeals of Mississippi
DecidedApril 5, 2005
Docket2003-CA-01673-COA
StatusPublished
Cited by16 cases

This text of 912 So. 2d 1033 (Durr v. Durr) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Durr v. Durr, 912 So. 2d 1033, 2005 WL 757349 (Mich. Ct. App. 2005).

Opinion

912 So.2d 1033 (2005)

James D. DURR, Jr., Appellant
v.
Beverly DURR (Hale), Appellee.

No. 2003-CA-01673-COA.

Court of Appeals of Mississippi.

April 5, 2005.

*1035 Luther Putnam Crull, attorney for appellant.

Willard L. McIlwain, Greenville, attorney for appellee.

Before KING, C.J., IRVING and BARNES, JJ.

IRVING, J., for the Court.

¶ 1. James Durr and Beverly Durr, now Beverly Hale, were divorced in July 1986.[1] Thereafter, Hale filed a petition for contempt, alleging that Durr had failed to abide by certain terms of the judgment of divorce. Hale specifically alleged that Durr had failed to maintain a life insurance policy with the parties' son as beneficiary, and had failed to pay certain medical and educational expenses in accordance with the judgment of divorce. The chancellor entered an order finding Durr in contempt and ordered him to pay Hale's attorney fees. Aggrieved by the chancellor's decision, Durr appeals and asserts that the chancellor erred in (1) failing to find Hale's claim for payment of private school tuition and expenses barred under the doctrines of equitable estoppel and/or laches, (2) finding him in contempt for failure to pay private school tuition and expenses, (3) finding him in contempt for failure to pay certain medical expenses, (4) *1036 failing to find Hale in contempt for failure to abide by the visitation provision in the judgement of divorce, and (5) ordering him to pay Hale's attorney fees. Finding no reversible error, we affirm the chancellor's findings.

FACTS

¶ 2. In 1986, Durr and Hale were granted a divorce on the ground of irreconcilable differences. The parties were granted joint legal custody of their minor son, James Waid, with Hale having physical custody and Durr having reasonable visitation.[2] The judgment of divorce provided that Durr maintain Waid as the beneficiary of a life insurance policy and pay one-half of Waid's educational and medical expenses.

¶ 3. In March 2003, Hale filed a petition for contempt against Durr alleging that Durr was in arrears on his obligations under the judgment of divorce. Hale also requested an award of attorney fees. In response to the petition, Durr filed an answer and counterclaim alleging that Hale's claims against him were barred under the doctrines of laches and/or equitable estoppel. Durr also alleged that Hale's claim was barred under the "clean hands" doctrine because she had failed to abide by the visitation provision in the judgment of divorce.[3]

¶ 4. In June 2003, a contempt hearing was held on the issues presented to the court. After hearing testimony from both parties and considering evidence presented to the court, the chancellor dismissed Durr's claim of contempt against Hale, but found Durr in contempt of the judgment of divorce. The chancellor also found that Durr was in arrears on his obligation to pay his share of the minor child's medical and educational expenses.[4] The chancellor further awarded Hale $1,500 in attorney fees. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 5. "[This Court's] scope of review in domestic relations matters is limited." Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997). "[We] will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Id. (quoting Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss.1994)). "In other words, on appeal [we] are required to respect the findings of fact by the chancellor supported by credible evidence and not manifestly wrong." Sandlin, (699 So.2d at 1203) (citing Ferguson, 639 So.2d at 930).

(1) Private School Tuition

¶ 6. We combine for discussion Durr's first two issues since they are interrelated. Durr's first argument is that Hale's claim for payment of Waid's private school tuition and expenses is barred under the doctrines of equitable estoppel and/or laches. Durr argues that Hale waited more than ten years before filing a claim demanding the tuition payments.

¶ 7. At the time of the parties' divorce, Waid was three years old and was enrolled *1037 in a private preschool. The record reveals that the agreement, which the parties executed pursuant to their obtainment of a divorce on the ground of irreconcilable differences and which was incorporated into the judgment of divorce, provides for the following with respect to Waid's education:

The child will start nursery school in the fall and the husband agrees to be responsible for one-half of all fees and expenses related to nursery school and shall further be responsible for one-half of all educational costs for each school that the child attends thereafter.

¶ 8. During the contempt hearing, Hale testified that although Durr paid his share of Waid's nursery school tuition, he failed to pay his one-half share of Waid's tuition while the child was enrolled in private school in the fourth through twelfth grades. Both parties presented conflicting testimony as to when Hale first demanded that Durr assist with Waid's tuition. Hale testified that she first approached Durr regarding the tuition payments when Waid first began attending private school in the fourth grade. Durr, however, testified that Hale did not request that he help pay Waid's private school tuition, and her attorney did not demand payment of the tuition while Waid was enrolled in private school. Durr testified that he first received a letter from Hale's attorney demanding payments for the tuition payments in October 2002, when Waid was in his second year of college.[5]

¶ 9. We first note that the chancellor did not specifically rule on the affirmative defenses raised in Durr's answer following the conclusion of the contempt hearing, and Durr failed to bring the matter to the chancellor's attention. After the chancellor entered her order disposing of Hales's petition for contempt and Durr's counterclaim for contempt, Durr again failed to bring to the chancellor's attention that she had not addressed the affirmative defenses raised by him. Under this state of the facts, we find that Durr has waived any right to argue these issues on appeal. See Rushing v. State, 711 So.2d 450, 456(¶ 17) (Miss.1998) (holding that failure to obtain a ruling from the court on motions constitutes a waiver of same); Allgood v. Allgood, 473 So.2d 416, 423 (Miss.1985) (holding that "[a]s a prerequisite to obtaining review [on appeal] it is incumbent upon a litigant that he not only plead but press his point in the trial court"). However, assuming arguendo that the issues are preserved for appellate review, we find no merit in them as will be explained later in this opinion.

¶ 10. The law is clear that "child support payments vest in the child as they accrue, [and] [o]nce they have become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts." Houck v. Ousterhout, 861 So.2d 1000, 1002(¶ 9) (Miss.2003) (citing Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992)). "Each payment that becomes due and remains unpaid `becomes "a judgment" against the supporting parent.'" Id. (quoting Tanner, 598 So.2d at 786). "The only defense thereto is payment." Houck, 861 So.2d at 1002 (citing Tanner, 598 So.2d at 786).

¶ 11.

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Bluebook (online)
912 So. 2d 1033, 2005 WL 757349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durr-v-durr-missctapp-2005.