Martin v. Martin

254 So. 2d 530, 1971 Miss. LEXIS 1257
CourtMississippi Supreme Court
DecidedNovember 15, 1971
DocketNo. 46374
StatusPublished
Cited by1 cases

This text of 254 So. 2d 530 (Martin v. Martin) 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
Martin v. Martin, 254 So. 2d 530, 1971 Miss. LEXIS 1257 (Mich. 1971).

Opinion

INZER, Justice:

This is an appeal by T. L. Martin from a decree of the Chancery Court of Wayne County adjudging him in contempt of that court for failure to abide by a decree of that court ordering him to pay alimony and to deliver certain personal property to the appellee, Tabitha Martin.

The record in this case reveals that these parties were divorced by a decree of the chancery court rendered on November 25, 1968. By the terms of that decree appellee was awarded a divorce, the custody of the minor child, an automobile and the use of a personal residence so long as she remained single and personally resided therein. Appellant was directed to pay alimony and child support in the amount of $350 [531]*531per month and to do certain other things relative to the upkeep of the residence and the care of the child. By an agreement made a part of the decree, appellant was allowed to remove from the residence his personal property and enough furniture to furnish an apartment.

On petition of appellant the divorce decree was modified on May 19, 1969, so as to award the custody of the child, a boy then over the age of twelve years, to the appellant and to reduce the alimony payments to $150 per month.

On June 7, 1969, an agreed decree was entered into between the parties further modifying the divorce decree. This decree contained the following finding:

That since there has been a change of circumstances and that Tabitha Martin has sold her interest in the said residence and for certain considerations bestowed upon her by T. L. Martin, desires to vacate and move from the same and desires to forever release T. L. Martin from the obligation and responsibility of furnishing her a place to reside, except that if she vacates and moves from the said residence prior to July 1st, 1969, that T. L. Martin shall pay the rent on an apartment on the East side of Highway #45 North in Waynesboro, Wayne County, Mississippi, for her use, for a period of one (1) year beginning July 1st, 1969, or in the event that she does not desire to live in the said apartment, T. L. Martin shall furnish and pay unto her, instead and in lieu thereof, the sum of Eighty ($80.00) Dollars per month for the .said year, and that at the end of said year, T. L. Martin shall be released from the obligation and responsibility of furnishing Tabitha Martin a place to reside. It is further found that the parties have mutually agreed that if Tabitha Martin has not vacated the said residence by July 1st, 1969, that this Decree provides that she be ordered to immediately vacate the said place forthwith and that Tabitha Martin shall have forfeited the right to demand that T. L. Martin furnish her the aforesaid apartment for one (1) year or the sum of Eighty Dollars ($80.00) per month for one (1) year after July 1st, 1969, and that T. L. Martin shall then be forever released from the obligation and responsibility of furnishing Tabitha Martin a place in which to reside.

After the rendition of this decree Mrs. Martin decided to move to the Coast, and a dispute arose between the parties as to the furniture in the house. Mrs. Martin claimed that all the furniture in the house belonged to her by virtue of the divorce decree and agreement that was made as part of the decree. Mr. Martin claimed that the purchase of her interest in the home included all the furniture. Mrs. Martin was prohibited by Mr. Martin from removing the major part of the furniture. Thereafter Mr. Martin paid the $150 per month, plus the $80 for rent for the year, but failed to pay Mrs. Martin any alimony after November 1, 1969. On April 25, 1970, Mrs. Martin filed this petition asking that Mr. Martin be cited for contempt of court for failure to abide by its decree. The petition charged:

The petitioner would show that the defendant has totally failed to pay the $150.00 per month alimony as ordered by this Honorable Court; that he was in arrears of paying the alimony previously awarded and for which he has not been relieved, and that he has failed to deliver to the petitioner certain personal properties that were hers as a result of the divorce.

Mr. Martin answered the petition and admitted that he was in arrears in the payment of alimony and charged he had been wholly unable to pay it because of financial reverses and the condition of his health and that the condition of his health was such that he could not work. He denied that there was any order of the court requiring him to deliver any personal properties. His answer was made a cross bill wherein he charged that due to a material change of circumstances, the decree order[532]*532ing him to pay alimony should be modified so as to relieve him from the payment of any alimony, or the alimony should be materially reduced.

The hearing was had and the court found the appellant was in arrears in the payment of alimony in the sum of $1,200, and he had failed to deliver the remaining items of personal property accumulated during the marriage. The court found the appellant was in contempt of court for failure to pay the alimony and ordered him incarcerated in jail until he paid the amount of alimony in arrears, plus an attorney’s fee of $350. The court further found that appellant was also in contempt of court for failure to deliver the items of personal property accumulated during the marriage. The court further found appellant was entitled to have the alimony payments reduced to $100 per month to become effective when appellant had purged himself of contempt.

Appellant gave notice of appeal and filed a motion for a stay of execution thereon with supersedeas pending the appeal. The court entered an order staying the decree and any execution thereon upon the filing of a supersedeas bond in the sum of $2,500. The bond was posted as required, hence this appeal.

Appellant contends (1) that the decree adjudging him in contempt for failure to pay alimony is contrary to the law and against the overwhelming weight of the evidence, and (2) that the chancellor was in error in holding that he was in contempt for failure to deliver certain personal property because there was never any prior decree of the court ordering him to deliver to appellee any personal property and for other reasons.

Insofar as the second contention is concerned, our review of the record convinces us the chancellor was in error in holding the appellant in contempt for failure to deliver to appellee the items of personal property. As we construe the divorce decree it did not award title to the household furnishings to appellee. It awarded the use of the home, which carried with it the use of the household furnishings, except those items which appellant was allowed to remove to furnish an apartment. The decree provided the appel-lee was to have the use of the house so long as she remained single and resided therein. If there was any separate agreement between the parties as to the ownership of furniture, it was not incorporated in the decree. The divorce decree ordered appellant to give possession of the home to the appellee, which he did. There was attached to the decree an agreement whereby appellant was allowed to remove from the home certain items set out therein as a part of the property settlement, but this agreement did not say the appellee was to have title to the other items of household furnishings. The agreed decree modifying the divorce decree was silent as to whether appellee could remove the household furnishings or whether they were to remain in the home.

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Bluebook (online)
254 So. 2d 530, 1971 Miss. LEXIS 1257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-martin-miss-1971.