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IN THE COURT OF APPEALS 05/21/96 OF THE STATE OF MISSISSIPPI
NO. 95-CA-00752 COA JOSEPH ROBERT ACOSTA APPELLANT v. ELEANOR HARDEMAN ACOSTA APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. HARVEY T. ROSS COURT FROM WHICH APPEALED: LEFLORE COUNTY CHANCERY COURT ATTORNEY(S) FOR APPELLANT: STEPHEN E. WALDRUP ATTORNEY(S) FOR APPELLEE: WILLIAM LARRY LATHAM NATURE OF THE CASE: DOMESTIC RELATIONS - MODIFICATION OF DIVORCE DECREE; PETITIONS TO ENFORCE JUDGMENT; CITATIONS FOR CONTEMPT TRIAL COURT DISPOSITION:FORMER HUSBAND FOUND IN CONTEMPT OF COURT AND ORDERED TO BE INCARCERATED UNTIL PURGED OF DELINQUENCY OF $23,692.00.

BEFORE THOMAS, P.J., BARBER, AND PAYNE, JJ. PAYNE, J., FOR THE COURT: This case involves multiple petitions and motions by both Joseph Robert Acosta and Eleanor

Hardeman Acosta based upon their original Tennessee divorce. The Leflore County Chancery Court ultimately found Joseph in willful contempt of court for failure to pay Eleanor $23,692.00 for child support, an educational trust fund, alimony, and medical expenses. It ordered Joseph's incarceration until he purged himself of contempt by paying that debt. We find that the court was not manifestly wrong or in error and affirm on all issues, except one. We reverse and remand for the sole and limited purpose of the chancery court's determination of proper attorneys' fees pursuant to the McKee v. McKee factors. FACTS Joseph and Eleanor were divorced in Tennessee in May 1993. The court order provided that Eleanor would have custody of their three minor children and that Joseph would have visitation rights. Joseph was ordered to pay monthly alimony and child support. One-third of the alimony was to be placed in an educational trust fund for their minor children. Finally, Joseph was to pay, also as alimony, all marital debts. Both Joseph and Eleanor subsequently moved to Greenwood. In December 1994, Joseph filed a petition for modification of the original decree. In January 1995, Joseph filed an amended petition to enforce judgment and citation for contempt, modification, and other relief. In February 1995, Chancellor Barnwell ordered that the court had jurisdiction to rule on issues such as child custody and support, visitation, and enforcement of the original Tennessee divorce decree. He further stated that all other issues were pretermitted until a hearing on the merits which was set for June 7, 1995. In May 1995, Eleanor filed a petition to enforce judgment and citation for contempt against Joseph. On June 7, 1995, Chancellor Barnwell entered an order based on a temporary hearing on Joseph's amended petition. That order reaffirmed that custody of the parties' three minor children would remain with Eleanor and only modified visitation rights. It stated that the order regarding visitation would be temporary and reserved the right to modify custody and visitation in the future if equitable and necessary to do so. Finally, the order stated that all other issues not addressed would be held for further adjudication, and that all other provisions of the original Tennessee decree not modified would remain fully binding upon the parties. Also on June 7, Eleanor filed a notice of hearing on her petition to enforce judgment and citation for contempt against Joseph. The hearing was set for June 21, 1995. On June 14, Joseph filed a motion for continuance of the June 21 hearing, requesting a continuance until July 12, or as soon thereafter as possible. On July 13, the court filed an agreed order (dated June 26) rescheduling the hearing on Eleanor's petition to July 12 in response to Joseph's motion for continuance. On June 26, Joseph filed a motion to make more definite and certain the allegations in Eleanor's petition to enforce judgment and citation for contempt. On June 26, he also filed a motion to consolidate his amended petition with Eleanor's petition against him. The court did not rule on Joseph's motion to make more definite and certain. However, on July 11 Joseph's counsel, in a telephone conference with another chancellor, Harvey T. Ross, moved ore tenus for a continuance of the scheduled July 12 hearing. The court denied his request for a continuance. Also on July 11, Eleanor filed a response to Joseph's motion to make more definite and certain. On July 12, Chancellor Ross held the scheduled hearing in Coahoma County. Eleanor, Eleanor's counsel, and Joseph's counsel were present, but Joseph did not appear. The court heard testimony

from Eleanor and ultimately found Joseph in willful contempt of court. It ordered him to be incarcerated until he purged himself of contempt by paying Eleanor $23,692.00. Joseph now appeals that order. ANALYSIS STANDARD OF REVIEW The Mississippi Supreme Court has held that, on appellate review, a chancellor's findings of fact will not be disturbed if substantial evidence supports those factual findings. Brooks v. Brooks, 652 So. 2d 1113, 1124 (Miss. 1995) (citations omitted). In a domestic relations context, an appellate court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong or clearly erroneous, or if an erroneous legal standard was applied. Setser v. Piazza, 644 So. 2d 1211, 1215 (Miss. 1994) (citations omitted); see also Steen v. Steen, 641 So. 2d 1167, 1169 (Miss. 1994) (citation omitted) (appellate review is limited since the court will not disturb chancellor's findings unless manifestly wrong or clearly erroneous, or if erroneous legal standard was applied); Crow v. Crow, 622 So. 2d 1226, 1228 (Miss. 1993) (citations omitted) (appellate court is required to respect findings of fact made by chancellor that are supported by credible evidence and not manifestly wrong, particularly regarding divorce and child support matters). An appellant court is required to respect a chancellor's findings of fact that are supported by credible evidence, particularly in the areas of divorce and child support. Steen, 641 So. 2d at 1169 (citations omitted). I. DID THE CHANCERY COURT ERR IN RULING ON ELEANOR'S CONTEMPT ACTION AND IN THE MANNER THAT IT HEARD IT?

Joseph argues that Chancellor Barnwell, a chancellor in the Seventh Chancery Court District, subdivision 7-2, should have heard all matters concerning the parties because he had initially been assigned to hear them. He contends that Chancellor Barnwell had already heard some matters in the case, and that no record evidence existed to justify transferring the case to Chancellor Ross in the Seventh Chancery Court District, subdivision 7-1. He believes that Chancellor Ross should have declined to hear the case, and that the case should be remanded for a trial before Chancellor Barnwell. Mississippi statutory law provides for a seventh chancery court district composed of the counties of Bolivar, Coahoma, Leflore, Quitman, Tallahatchie, and Tunica. Miss. Code Ann.

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