Kenneth D. Talley v. Kenya K. Talley

• Court: Court of Appeals of Mississippi
• Decided: June 13, 2023
• Docket: 2022-CA-00005-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CA-00005-COA

KENNETH D. TALLEY APPELLANT

v.

KENYA K. TALLEY APPELLEE

DATE OF JUDGMENT: 12/21/2021 TRIAL JUDGE: HON. JACQUELINE ESTES MASK COURT FROM WHICH APPEALED: MONROE COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: A. E. (RUSTY) HARLOW JR. KATHI CHRESTMAN WILSON MORGAN KAY JACKSON ATTORNEYS FOR APPELLEE: STEPHEN P. SPENCER WILLIAM C. SPENCER JR. NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS DISPOSITION: AFFIRMED - 06/13/2023 MOTION FOR REHEARING FILED:

BEFORE CARLTON, P.J., McDONALD AND EMFINGER, JJ.

EMFINGER, J., FOR THE COURT:

¶1. On December 21, 2021, the Monroe County Chancery Court entered an opinion and

final judgment awarding Kenya Talley a monetary judgment against Kenneth Talley in the

amount of $48,786.69 ($3,148.36 for unpaid medical expenses; $7,649.38 for unpaid vehicle

expenses; $29,229.29 for unpaid college expenses; $5,259.66 for unpaid extracurricular

expenses; and $3,500 for Kenya’s attorney’s fees). The chancellor determined that both

children were emancipated and relieved Kenneth of certain obligations contained in their

divorce agreement, but the chancellor did not relieve Kenneth from his obligation to maintain

life insurance until the parties’ youngest child reached age twenty-five. Aggrieved by the chancery court’s decision, Kenneth appealed.

FACTS AND PROCEDURAL HISTORY

¶2. Kenneth and Kenya were married on February 14, 1987. They had two children,

Nathaniel (born in 1992) and Joseph (born in 1998).1 Kenya filed a complaint for divorce

on February 27, 2012. On June 4, 2014, the chancery court entered an order allowing the

withdrawal of fault grounds. A “Judgment of Divorce – Irreconcilable Differences” and

“Child Custody, Property Settlement, and Separation Agreement” (Agreement) were also

entered that same day.

¶3. On May 23, 2019, Kenneth filed a “Petition for Emancipation, or in the Alternative,

for Termination of Child Support.” Kenya filed an answer to Kenneth’s petition as well as

a counter-petition for a citation of contempt on September 4, 2019. Kenya’s counter-petition

requested the chancery court to hold Kenneth in contempt for failing to pay his portion of

medical bills, a purchased vehicle and maintenance costs, extracurricular activity expenses,

and college expenses on behalf of their children pursuant to their divorce Agreement.2

Kenneth filed an answer to Kenya’s counter-petition on September 5, 2019. At trial, Kenneth

claimed that Kenya rarely provided him with receipts or timely documentation of charges

incurred and records of payments made in each category of disputed expenses on behalf of

the children. Kenneth further claimed that many times he did not have the money to pay for

1 At the time that the divorce agreement was entered, Nathaniel was already twenty- one years old. 2 Kenneth’s obligation to pay for medical bills, vehicle expenses, and extracurricular activities only pertained to Joseph. However, his obligation to pay for college expenses extended to Nathaniel as well.

2 the expenses, and he was not consulted about certain expenses before they were incurred.

Kenneth admitted that he had not paid many of the expenses pursuant to the parties’

Agreement. But Kenneth claimed that because of Kenya’s actions, the ambiguity of the

divorce Agreement, and his inability to pay, he should not be held in willful contempt.

Kenya, Kenneth, and Joseph were the only three witnesses to testify at trial. After two days

of trial, each party filed subsequent motions for attorney’s fees on October 7, 2021, and

October 11, 2021. Kenya filed a response to Kenneth’s motion on October 12, 2021. The

chancery court entered an “Opinion and Judgment” on December 21, 2021.

¶4. In its opinion and judgment, the chancery court held that both children were

emancipated, and therefore Kenneth was “relieved of his current obligations in paragraphs

I, III, IV, V, VI and VII of their divorce agreement.” Further, the court held that “the

credible proof failed to demonstrate a material and substantial change” in connection with

Kenneth’s obligation to maintain a life insurance policy. Therefore, Kenneth had not been

relieved of his obligation to maintain the insurance. The chancery court granted Kenya a

monetary judgment in the amount of $48,786.69 for Kenneth’s portion of the expenses

related to the children to be paid at a rate of $400 per month with interest at five percent per

annum until satisfied. The court noted that Kenneth was given credit for certain payments

that he made toward his obligations. The court also outlined charges that were disallowed

despite Kenya’s request. More specifically, those charges were for private high school

tuition and purchases related to Joseph’s farm animals. Finally, the chancery court granted

Kenya’s request for attorney’s fees in the amount of $3,500. Kenneth filed his notice of

3 appeal on December 22, 2021.

STANDARD OF REVIEW

¶5. “The scope of review in domestic cases is limited.” Bounds v. Bounds, 935 So. 2d

407, 410 (¶6) (Miss. Ct. App. 2006). This Court will not reverse the finding of the trial court

unless it abused its discretion, was manifestly wrong or clearly erroneous, or applied an

erroneous legal standard. Id. (citing Denson v. George, 642 So. 2d 909, 913 (Miss. 1994)).

In Riley v. Riley, 196 So. 3d 1159, 1162 (¶9) (Miss. Ct. App. 2016), we explained:

“Contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than are we.” Williamson v. Williamson, 81 So. 3d 262, 266 (¶11) (Miss. Ct. App. 2012) (citing Morreale v. Morreale, 646 So. 2d 1264, 1267 (Miss. 1994)). “Contempt is to be determined upon the facts of an individual case and is a matter for the trier of fact.” Id. at 266-67 (¶11) (citing Milam v. Milam, 509 So. 2d 864, 866 (Miss. 1987)). “This Court will not reverse a contempt citation where the [trial court’s] findings are supported by substantial credible evidence.” Witters v. Witters, 864 So. 2d 999, 1004 (¶18) (Miss. Ct. App. 2004) (citing Varner v. Varner, 666 So. 2d 493, 496 (Miss. 1995)).

ANALYSIS

I. Did the chancery court err by failing to modify the life insurance provision of the parties’ divorce Agreement?

¶6. Kenneth claims that the chancery court erred by failing to modify the parties’ divorce

Agreement and terminate his obligation to maintain life insurance. Paragraph VIII of the

parties’ divorce Agreement stated, “Husband will maintain a life insurance policy of at least

One Hundred Fifty Thousand Dollars ($150,000.00) with Wife named as beneficiary until

such time as the parties’ youngest child reaches twenty-five (25) years of age.”

¶7. Kenneth’s original petition did not plead with any specificity the relief he requested

4 concerning life insurance. His petition more generally requested that “all financial

obligations on behalf of the parties’ minor children of the Plaintiff to the Defendant, should

be terminated and/or modified.” At trial, Kenneth testified, “I have to pay for this life

insurance until . . . the youngest one is 25. . . . And I just think that’s a mighty long time to

do that. . . . I want to pay it because I want to, not because I’m forced to in court. If I want

to buy them that or if I want to get more for them or whatever, that’s my prerogative, but I

just wanted to get it into my control rather than her control.” Kenneth did not provide the

chancery court with any further information about the current life insurance policy, including

the premium amount, or his ability or inability to pay it. Nor did Kenneth provide any

caselaw or legal authority to support his position that his obligation to carry the policy should

be terminated.

¶8. Furthermore, the provision of the parties’ divorce Agreement concerning life

insurance is governed by contract law and will be interpreted according to contract

principles. In Lestrade v. Lestrade, 49 So. 3d 639, 642-43 (¶10) (Miss. Ct. App. 2010), this

Court held:

“A true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” East v. East, 493 So. 2d 927, 931-32 (Miss. 1986). These agreements are “fixed and final, and may not be modified absent fraud or [a] contractual provision allowing modification,” Weathersby v. Weathersby, 693 So. 2d 1348, 1352 (Miss. 1997), or where, because of a scrivener’s error, the instrument does not reflect the actual agreement of the parties, Ivison v. Ivison, 762 So. 2d 329, 335-36 (¶21) (Miss. 2000). “[W]hen parties in a divorce proceeding have reached an agreement that a chancery court has approved, we will enforce it, absent fraud or overreaching, and we take a dim view of efforts to modify it just as we do when persons seek relief from improvident

5 contracts.” Id. at 334 (¶14) (citing Bell v. Bell, 572 So. 2d 841, 844 (Miss. 1990)).

Kenneth does not allege fraud or any other extenuating circumstance that would warrant the

modification of the parties’ divorce Agreement. Therefore, this argument that the chancery

court’s ruling should be reversed is without merit.

II. Did the chancery court err by finding Kenneth in contempt?

¶9. Kenneth claims that the chancery court erred by finding him in willful contempt for

failing to pay his portion of certain expenses incurred on behalf of the children, including

medical expenses, vehicle expenses, college expenses, and extracurricular expenses.

Kenneth claims that the evidence Kenya presented at trial was insufficient to support the

judgment.

¶10. In McIntosh v. Department of Human Services, 886 So. 2d 721, 724-25 (¶11) (Miss.

2004), the Mississippi Supreme Court explained:

In contempt actions involving unpaid child support, a prima facie case of contempt has been established when the party entitled to receive support introduces evidence that the party required to pay the support has failed to do so. Guthrie v. Guthrie, 537 So. 2d 886, 888 (Miss. 1989). At this point, the burden shifts to the paying party to show an inability to pay or other defense; this proof must be clear and convincing and rise above a simple state of doubtfulness. Shelton v. Shelton, 653 So. 2d 283, 286-87 (Miss. 1995). Whether a party is in contempt is left to the chancellor’s substantial discretion. Id. at 286. Moreover, the chancery court should be affirmed unless manifest error is present and apparent. Premeaux v. Smith, 569 So. 2d 681, 683 (Miss. 1990).

A. Medical Expenses

¶11. Paragraph III of the parties’ divorce Agreement stated:

Wife shall maintain health insurance coverage on the parties’ minor child so

6 long as it is available through her employer and the parties’ shall each pay for one-half (½) of all medical, dental, optical, hospital and pharmaceutical bills incurred by the minor child that are not covered by insurance. Husband will be given thirty (30) days to pay his one-half (½) of said expenses or will make arrangements to pay via a payment plan for larger sums.

At trial, Kenya testified that Kenneth owed $3,148.36 for his portion of Joseph’s medical

expenses pursuant to the parties’ agreement. In conjunction with her testimony, Kenya

referred to Exhibit 9, a detailed summation of expenses that she prepared with attached proof

of payment including copies of checks, credit card statements, and receipts. Kenya testified

that she had numerous verbal conversations with Kenneth about Joseph’s medical expenses

as they were incurred. While Kenya testified that she provided some bills to Kenneth via text

message and email, Kenneth made it extremely difficult for her to provide him with

information concerning expenses, and for that reason some bills were not sent to him.

According to Kenya, Kenneth stated that he did not want her to send bills by email, and he

refused to provide her with a working email address. Kenya also testified that she could no

longer retrieve all the sent text messages concerning medical expenses from her old phone

because the battery exploded, and a cell phone technician determined there was nothing that

could be done to retrieve those documents. Neither party disputed that Kenneth was present

at Joseph’s numerous surgeries and some doctors’ appointments and was aware those

expenses were being incurred. However, Kenneth failed to pay his portion of the medical

expenses listed in Exhibit 9 in full.

¶12. Kenneth argues that Kenya did not provide him with the majority of Joseph’s medical

bills and that he was unaware of what he actually owed after the insurance portion was paid.

7 At trial, Kenneth admitted that he did not make any effort to contact any medical providers

to inquire about the status of his son’s accounts even after knowing that services had been

rendered. Kenneth testified that all the medical expenses listed in Kenya’s Exhibit 9 seemed

reasonable and further stated, “I would think that she paid it if it’s listed here.” Finally, in

his brief, Kenneth claims that twelve of the medical bills listed in Exhibit 9 predated the

divorce Agreement and should be disallowed by the court; however, Kenneth did not dispute

the charges on that basis at trial. “In Southern v. Mississippi State Hosp., 853 So. 2d 1212,

[1214-15 (¶5)] (Miss. 2003), we reiterated the important procedural tenet that ‘[a] trial judge

cannot be put in error on a matter not presented to him.’” Chantey Music Pub. Inc. v. Malaco

Inc., 915 So. 2d 1052, 1060 (¶28) (Miss. 2005). “Precedent mandates that this Court not

entertain arguments made for the first time on appeal as the case must be decided on the facts

contained in the record and not on assertions in the briefs.” Id. (citing Parker v. Miss. Game

& Fish Comm’n, 555 So. 2d 725, 730 (Miss. 1989)). Because Kenneth failed to set forth this

argument at trial, it is waived and procedurally barred on appeal. Nonetheless, given the

proof and testimony presented at trial and Kenneth’s failure to contest the expenses that

predated the divorce agreement, we find no error in the chancery court’s ruling that held

Kenneth in willful contempt for unpaid medical bills in the amount of $3,148.36.

B. Vehicle Expenses

¶13. Paragraph IV of the parties’ divorce Agreement stated:

The parties shall equally divide the cost of a suitable automobile for the parties’ minor child when he reaches legal driving age, not to exceed Eight Thousand Dollars ($8,000.00) and each party shall pay for one-half (½) of all maintenance, repairs and insurance on said vehicle until such time as the minor

8 child completes college or reaches twenty-one (21) years of age, whichever occurs first.

At trial, Kenya testified that Kenneth owed $7,649.38 for his portion of Joseph’s vehicle and

the associated maintenance pursuant to the parties’ Agreement. In conjunction with her

testimony, Kenya again referred to Exhibit 9, which made specific reference to the vehicle

expenditures and the proof of the expenses. According to Kenya, Kenneth did not make any

payments toward any of Joseph’s vehicle expenses with the exception of two tires, which

Kenya claimed were a Christmas present. Much like the medical expenses previously

discussed, Kenya testified that she and Kenneth had multiple conversations both orally and

through text messages about the vehicle expenses, but Kenneth never provided any financial

assistance. Joseph also testified that his father was aware that he had a vehicle but other than

the two tires, Kenneth did not contribute to its initial purchase or upkeep.

¶14. Kenneth argues that the evidence at trial was insufficient for the chancellor to find

him in willful contempt for not paying the vehicle expenses and claims that he was not

consulted about the expenditures. He alleges that he was unaware of the expenses and was

learning about them for the first time during the chancery court proceeding. He further

argues that the court should have given him credit for the tires that he purchased for the

vehicle. However, Kenneth did not present any proof regarding the cost of the tires, and

Kenya testified that the tires were a Christmas gift to Joseph. Much like the medical

expenses, Kenneth admitted that he did not make any payments toward Joseph’s vehicle

expenses other than the tires. Given the proof and testimony presented at trial, we find no

error in the chancery court’s holding Kenneth in contempt for unpaid vehicle expenses in the

9 amount of $7,649.38.

C. College Expenses

¶15. Paragraph V of the parties’ divorce Agreement stated:

Each party will be responsible for payment of one-half of all tuition, room, board, books and other college expenses for both of the parties’ children to attend college until such time as the children reach twenty-one (21) years of age or obtains a bachelor’s degree, whichever occurs first.

At trial, Kenya testified that Kenneth owed $29,229.29 for his portion of Joseph’s and

Nathaniel’s college expenses pursuant to the parties’ Agreement. In conjunction with her

testimony, Kenya again referred to Exhibit 9, which specifically referenced the college

expenditures and the proof of the expenses. Exhibit 9 included an itemized list of expenses

for Joseph, including tuition, books, food, gas, and student loans for both Joseph and

Nathaniel. According to Kenya, Joseph did not have a food plan while attending college,

which necessitated all the expenditures listed for food. It is undisputed that Kenneth made

a single contribution to Joseph’s college tuition in the amount of $987.

¶16. According to Kenneth, the evidence at trial was insufficient to show that he owed

$29,229.29 in college expenses. He argues that Kenya did not provide him with any proof

that the expenses were incurred before Joseph and Nathaniel turned twenty-one pursuant to

the divorce Agreement, or that Kenya had paid her half of the student loans. Finally, he

alleges that he should not have been held in contempt because Paragraph V of the divorce

Agreement was ambiguous, and he did not believe that many of the expenditures that Kenya

listed in Exhibit 9, specifically the charges for food, could be considered college expenses.

There was no proof at trial that Kenneth made any attempts to contact the school or find out

10 what expenses were outstanding for either child’s college expenses. It was undisputed at trial

that prior to the parties’ divorce, they had a certificate of deposit (CD) (valued at

approximately $2,500) set aside for Joseph’s education; however, because of Kenneth’s

failure to comply with certain debt obligations pursuant to their divorce agreement, a bank

seized the CD as collateral. The chancery court held that each party should be responsible

for half of each child’s student loan balance and that Kenneth was in willful contempt for his

failure to pay for his portion of the remainder of the college expenses incurred and detailed

in Exhibit 9.

¶17. In Wray v. Langston, 380 So. 2d 1262, 1264 (Miss. 1980), the Mississippi Supreme

Court held that “[t]he duty of a parent to provide a college education for his or her child

contemplates support in addition to tuition and college costs, without which, provision for

the college education would be in vain.” In the case at hand, the parties’ divorce Agreement

specifically provided for “all tuition, room, board, books and other college expenses.”

(Emphasis added). Kenya testified that each of the expenses listed in Exhibit 9 were

reasonable and contemplated in paragraph V of the parties’ divorce Agreement. Given the

proof and testimony presented at trial, we find no error in the chancery court’s holding

Kenneth in contempt for unpaid college expenses in the amount of $29,229.29.

D. Extracurricular Expenses ($5,259.66)

¶18. Paragraph VI of the parties’ divorce Agreement stated:

Each party shall pay one-half of the cost of extracurricular activities for the parties’ minor child until such time as the minor child reaches twenty-one (21) years of age. Husband shall have sixty (60) days to reimburse Wife for said expenses once he receives notice of same.

11 At trial, Kenya testified that Kenneth owed $5,259.66 for his portion of Joseph’s

extracurricular expenses pursuant to the parties’ agreement. In conjunction with her

testimony, Kenya again referred to Exhibit 9, which specifically referenced the

extracurricular expenditures and the proof of the expenses. Exhibit 9 included an itemized

list of Joseph’s expenses, including private school tuition, church trips, basketball, robotics,

farm animals, graduation, prom, and other various expenses. According to Kenya, Joseph

was very active in school and church activities, and Kenneth was aware of these expenses

and schedules. Kenya claimed that Kenneth told her many times that he did not have the

money to help out with Joseph’s extracurricular expenses. However, Kenneth testified that

he had access to money to pay off his personal expenses that he had incurred including

improvements to the home that he shared with his current wife. Kenneth made a contribution

toward a church ski trip, but the memo line of the check referenced the payment as a

Christmas present. Ultimately, the chancellor disallowed Kenya’s request for half of private

school tuition and expenses related to Joseph’s farm animals but held Kenneth in willful

contempt for not paying the remaining expenses in Exhibit 9.

¶19. Similar to Kenneth’s arguments regarding all the other issues of contempt, he claims

that the evidence was insufficient to support the chancellor’s finding that he was in willful

contempt for failing to pay for Joseph’s extracurricular expenses. He claims that the divorce

Agreement was ambiguous as to what expenses were covered in paragraph VI of the

Agreement, and therefore he should not be held in contempt. He again claimed that he was

not provided with receipts for the payments that Kenya is now seeking reimbursement.

12 Kenneth admitted that he did not pay for all the expenses incurred for Joseph’s

extracurricular activities. Given the documented proof and testimony presented at trial, we

cannot conclude that the chancery court erred by finding Kenneth in willful contempt of the

parties’ divorce Agreement.

III. Did the chancery court err by awarding Kenya attorney’s fees?

¶20. Kenneth argues that because the chancellor’s judgment of contempt was improper, so

too was the award for attorney’s fees associated with it. “‘[A]n award of attorney’s fees in

a contempt case is proper . . . [and] is largely entrusted to the sound discretion of the

chancellor.’ . . . The chancery court must first consider whether a party willfully violated the

court’s order.” Price v. Price, 5 So. 3d 1151, 1158 (¶19) (Miss. Ct. App. 2009) (citing In re

Hampton, 919 So. 2d 949, 958 (¶37) (Miss. 2006)). Because the chancery court did not err

in finding Kenneth in willful contempt for failing to pay expenses on behalf of the minor

children pursuant to the parties’ divorce Agreement, the chancery court did not err in

awarding Kenya attorney’s fees.3

3 In her brief on appeal, Kenya also requested that this Court award her attorney’s fees associated with this appeal pursuant to Grant v. Grant, 765 So. 2d 1263, 1268 (¶19) (Miss. 2000). In a similar case, Latham v. Latham, 261 So. 3d 1110,1115-16 (¶23) (Miss. 2019), the Mississippi Supreme Court held:

While the Court has declared that the better practice would be for a party seeking attorney’s fees on appeal to file a motion in the Court, we now clarify that Rule 27(a) of the Mississippi Rules of Appellate Procedure requires it. Here, Michele did not file a motion requesting attorneys’ fees on appeal; rather she buried a one sentence request in her brief. Such requests do not comport with the Mississippi Rules of Appellate Procedure.

Because Kenya’s request for appellate attorney’s fees does not comport with Rule 27, we decline to consider her request at this time.

13 CONCLUSION

¶21. After reviewing the record, we find that the chancery court did not err by failing to

modify the life insurance provision of the parties’ divorce Agreement. Further, we find that

the chancery court did not err by finding Kenneth in willful contempt for his failure to pay

his one-half portion of medical expenses, vehicle expenses, college expenses, and

extracurricular expenses for the parties’ children pursuant to their divorce Agreement.

Finally, we find no error in the chancellor’s award of attorney’s fees to Kenya. However, we

decline to consider Kenya’s request for appellate attorney’s fees at this time.

¶22. AFFIRMED.

CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND SMITH, JJ., CONCUR. BARNES, C.J., NOT PARTICIPATING.