Markofski v. Holzhauer

799 So. 2d 162, 2001 Miss. App. LEXIS 420, 2001 WL 1225301
CourtCourt of Appeals of Mississippi
DecidedOctober 16, 2001
DocketNo. 1999-CA-00855-COA
StatusPublished
Cited by3 cases

This text of 799 So. 2d 162 (Markofski v. Holzhauer) 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
Markofski v. Holzhauer, 799 So. 2d 162, 2001 Miss. App. LEXIS 420, 2001 WL 1225301 (Mich. Ct. App. 2001).

Opinions

KING, P.J.,

for the Court:

¶ 1. On May 4, 1994, Rita H. Holzhauer Markofski (Markofski) and James L. Hol-zhauer were granted a divorce based on irreconcilable differences. The parties executed a child custody, support and property distribution agreement. Pursuant to that agreement, the couple shared joint custody of the one child born during the marriage with primary physical custody given to Ms. Markofski. In August 1997, Mr. Holzhauer filed a petition for citation of contempt against Ms. Markofski for failure to abide by the agreement. Ms. Mar-kofski responded with a counterclaim for contempt and modification of child support. In a judgment entered on April 5, 1999, the chancellor granted Ms. Markof-ski the sum of $23,906 with costs and interest as compensation for medical expenses incurred as a result of Mr. Hol-zhauer’s failure to provide her with comparable medical insurance as required by their agreement. The chancellor denied Ms. Markofski’s request for contempt citation against Mr. Holzhauer for failure to transfer title to a Camaro vehicle to her daughter, Alexa Scroggins, and for nonpayment of college expenses for the same daughter.

¶ 2. Aggrieved by the chancellor’s ruling, Ms. Markofski has appealed and raised the following issues, which we quote verbatim from her brief: (1) Whether the chancellor abused her discretion in failing to apply the child support guidelines based upon Rita H. Holzhauer Markofski’s counterpet-ition for modification of child support; (2) Whether the chancellor committed manifest error, was clearly erroneous, or applied an erroneous legal standard in failing to order James Holzhauer to turn over the title of the 1993 Camaro to Rita’s daughter, Alexa Clay Scroggins; (3) Whether the chancellor committed manifest error, was clearly erroneous, or applied an erroneous legal standard in failing to order James to pay the college expenses of Rita’s daughter, Alexa Clay Scroggins; and (4) Whether the chancellor committed manifest error, was clearly erroneous, or applied an erroneous legal standard in failing to award Rita attorney fees.

¶ 3. Mr. Holzhauer has also appealed and raised the following issues, which we quote verbatim from his brief: (1) The trial court erred as a matter of law and fact in refusing to temporarily suspend James’ obligation to support his son; (2) The trial court erred on dismissing the alienation of affection claim; (3) The chancellor erred in overruling the request for [164]*164damages for intentional infliction of emotional distress; and (4) The chancellor erred in not allowing cross appellant his attorney fees.

¶ 4. This Court affirms in part and reverses and remands in part.

FACTS

¶ 5. The Holzhauers were married on January 2, 1982, in Little Rock, Arkansas. They lived together until their separation on January 1, 1994, in Lowndes County, Mississippi. Ms. Markofski had two children from a previous marriage, Alexa Scroggins and Sara Scroggins, neither of whom was adopted -by Mr. Holzhauer. Mr. Holzhauer initially agreed to pay Ms. Markofski $1,000 per month for child support. On March 25, 1997, an agreed order was entered raising the child support to $1,500 per month.

¶ 6. On August 8, 1997, Mr. Holzhauer petitioned the chancery court to cite Ms. Markofski for contempt and other relief. Things requested included custody of his son along with damages for alienation of the son’s affection and intentional infliction of emotional distress by Rita Holzhauer, and attorney’s fees.

¶ 7. On December 4,1997 and January 8, 1998, Ms. Markofski filed responses to Mr. Holzhauer’s requests and filed counterclaims for citation for contempt and for modification of former decree where she requested an increase in child support, $5,000 for college expenses for Alexa, delivery of title to the Mazda now in Alexa’s possession, comparable health insurance to that which existed on the date of the divorce, and reasonable attorney fees.

¶ 8. On April 23, 1998, Ms. Holzhauer Markofski filed an amended counterclaim for citation for contempt, modification of former decree and other relief to include an amount of $20,000 for Alexa’s college expenses.

¶ 9. On June 23rd, 24th, and 29th, 1998, the chancellor conducted a hearing on both parties’ motions. During the hearing, the son testified that while he loved his father, he did not want to live with him and would not stay with his father even if ordered to do so by the court. Subsequently, Mr. Holzhauer abandoned his request for a change in custody and asked the court to temporarily suspend his obligation to pay child support. During the course of the proceeding, the son amended his testimony by stating that he loved his father, but did not want to visit or live with him, but he would do so if ordered by the court.

¶ 10. After considering all of the evidence, the chancellor ordered the following:

(1) That Mr. Holzhauer should continue to pay $1,500 per month as child support for the support and maintenance of the minor child;
(2) That Mr. Holzhauer should have visitation with his son for two weeks in the summer and one week at Christmas each year. He should also have visitation during spring break from school and for Thanksgiving holidays in odd numbered years, with additional visitation as agreed to by the parties;
(3) That Ms. Holzhauer Markofski be awarded $23,906 with costs and interest to compensate her for medical expenses she incurred as a result of Mr. Hol-zhauer’s failure to provide her with a comparable medical insurance policy as agreed to in their separation agreement;
(4) That Mr. Holzhauer continue to be required to provide comparable medical insurance for Ms. Holzhauer Markofski according to the terms of the parties’ separation agreement;
(5) That there was insufficient evidence presented at trial that Ms! Holzhauer Markofski did not timely respond to re[165]*165quests for information regarding her medical insurance coverage, as would es-top her from asserting her claims for reimbursement of medical expenses;
(6) That there was insufficient cause for a finding of contempt against Mr. Hol-zhauer regarding not transferring title to a Camaro vehicle or for his nonpayment of college expenses for Ms. Hol-zhauer Markofski’s daughter, Alexa Scroggins;
(7) That Mr. Holzhauer’s claims for damages for intentional infliction of emotional distress and alienation of affection of his relationship with his son are without merit and should be denied; and
(8) That both parties’ request for attorneys fees should be denied, as each is capable of paying his or her own attorney’s fees.

ISSUES AND ANALYSIS

STANDARD OF REVIEW

¶ 11. When a domestic relations case is on appellate review, a chancellor’s factual findings will not be disturbed unless the court’s actions were manifestly wrong, the court abused its discretion, or applied an erroneous legal standard. Wright v. Wright, 737 So.2d 408 (¶ 5) (Miss.Ct.App.1998) (citing Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997)); Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994); Crow v. Crow, 622 So.2d 1226, 1228 (Miss.1993); Gregg v. Montgomery, 587 So.2d 928, 931 (Miss.1991).

I.

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799 So. 2d 162, 2001 Miss. App. LEXIS 420, 2001 WL 1225301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markofski-v-holzhauer-missctapp-2001.