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IN THE COURT OF APPEALS 12/03/96 OF THE STATE OF MISSISSIPPI
NO. 93-CA-01230 COA WILLIAM E. SKINNER APPELLANT v. MARY B. SKINNER APPELLEE THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. MICHAEL L. CARR JR. COURT FROM WHICH APPEALED: ADAMS COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: WALTER BROWN ATTORNEY FOR APPELLEE: JOHN E. MULHEARN JR. NATURE OF THE CASE: DOMESTIC TRIAL COURT DISPOSITION: MOTION FOR CONTEMPT SUSTAINED, MOTION FOR MODIFICATION DENIED, $4500 ATTORNEYS FEES AWARDED

BEFORE FRAISER, C.J., BARBER, AND SOUTHWICK, JJ. SOUTHWICK, J., FOR THE COURT:

William Skinner appeals the decisions of the Adams County Chancery Court finding him in willful contempt for failure to pay alimony, denying his motion to reduce his alimony obligations, and awarding Mary Skinner, his former wife, $4,500 in attorney's fees. Finding no error, we affirm. FACTS Mrs. Skinner was awarded a divorce in 1985 on the ground of habitual cruel and inhuman treatment. The chancellor awarded alimony of $2,158 per month until Mrs. Skinner died or remarried. At age sixty-five, Mrs. Skinner was to be paid $75,000. Mr. Skinner appealed. The court affirmed the award of periodic alimony, but reversed and ordered the $75,000 lump-sum award to be paid immediately, and the monthly award to continue until her death or remarriage. See Skinner v. Skinner, 509 So. 2d 867, 869 (Miss. 1987). Mr. Skinner subsequently has been held in contempt of court three times. The first motion was filed in November 1990. In response, Mr. Skinner moved the court to reduce his alimony payments on the basis of a significant change in his financial condition. The chancellor held Mr. Skinner in contempt, denied his request for modification, and ordered him to pay past due alimony. Mr. Skinner paid the amount ordered by the court. Mrs. Skinner's second contempt motion was filed in November of 1991, and was granted. Mr. Skinner paid his alimony in full. The third motion was filed in June of 1992, and Mr. Skinner, to avoid a third judgment of contempt, paid his obligations on the eve of trial. A fourth motion for contempt was filed in November of 1992, and is the subject of this appeal. Mr. Skinner responded to the motion by asking the court to reduce his payments. The court granted Mrs. Skinner a judgment in the amount of $11,309.64, found Mr. Skinner in contempt, denied his request for modification, and awarded Mrs. Skinner $4,500 in attorney's fees. DISCUSSION I. Contempt Mr. Skinner contends that the judgment finding him in contempt was an error because he proved his financial inability to meet his obligations and also proved that his failure to pay was not willful or deliberate. This Court will not reverse a chancellor's finding of contempt where it is supported by substantial credible evidence. See Varner v. Varner, 666 So. 2d 493, 496 (Miss. 1995), (citing Shipley v. Ferguson, 638 So. 2d 1295, 1297 (Miss. 1994)). Generally speaking, contempt matters are committed to the substantial discretion of the court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to the matter than we are.

Cumberland v. Cumberland, 564 So. 2d 839, 845 (Miss. 1990). Failure to comply with an alimony decree is prima facie proof of contempt. Rainwater v. Rainwater, 110 So. 2d 608, 611 (Miss. 1959). The decree which stated the terms of Mr. Skinner's obligations and the undisputed proof that he had not met them, established a prima facie case for contempt of court. See Collins v. Collins, 158 So.

914 (Miss. 1935).

Mr. Skinner's first defense to the contempt cha his obligations was impossible because of hi condition. The general rule is that a defendan contempt if he can prove that he is without the pr his obligations. Varner, 666 So. 2d at 496, (citin 627 So. 2d 823, 826 (Miss. 1993)). The burden show inability to pay with particularity, and n Varner, 666 So. 2d at 496, (citing Morreale v 1264, 1267 (Miss. 1994)). His inability must be doubts is not sufficient. Sappington v. Sappingto (Miss. 1962). In order for a party to exonerate inability to pay, he must show:

That he earned all he could, that he lived economically and paid all surplus money above a living on th wife. And such proof must be made with particularity and not in general terms. In such a case he mus were and what his living expense was, including that of those legally dependent on him, but not of any o of other debts or expenses will not excuse or justify his default, unless such payment was necessary business or occupation, because the wife's right to alimony is a prior and paramount claim on his earnin his earnings were insufficient to support himself and pay alimony exonerate him if he has other money o make the payments, even though it may be exempt.

Kincaid v. Kincaid, 57 So. 2d 263, 265 (Miss. 1952).

At trial, Mr. Skinner exhibited a continuing lack of knowledge of his own financial affairs. When questioned about his personal finances, he answered that his present wife paid all the bills and handled all the finances, that he simply gave her money each month, and she took care of it. When asked about specific payments, he indicated complete lack of knowledge. When questioned about his business finances, he repeatedly answered that he was not qualified to answer questions and to ask his accountant. He offered proof through his accountant and by financial statements, which included debts owed to the Internal Revenue Service, the Mississippi State Tax Commission, the Small Business Administration, his employee's trust fund obligations, judgment creditors, and "a myriad of other pressing, emergency and necessary financial obligations." The testimony of Mr. Skinner's accountant, Mr. Switzer, showed the disarray of Mr. Skinner's finances. The question to be addressed is not whether Mr. Skinner's finances were in bad shape, but whether he could pay the alimony which was due, and if not, whether he paid all money above necessary living and business expenses toward his alimony obligations. Mr. Skinner's defense of inability to pay failed the Kincaid test: The evidence showed that he had property he could have used to pay the debt, and he had expenses which were clearly not necessary living or business expenses. See Kincaid, 57 So. 2d at 265.

Taking Mr. Skinner's assertion that his earnings were not sufficient to pay the alimony to be true, he still will not be excused if he owns property or has any other means of paying the debt which could have been used. The proof showed that Mr. Skinner owned a one-third interest in several hundred acres of family property in North Mississippi, and that he could have used his interest, which was valued at approximately $300,000, to pay alimony. Mr. Skinner admitted he owned the property and legally could sell the property to pay alimony, but explained that many years ago he had promised his mother, who lived on the land, that he would not sell the property. To Mr. Skinner, that promise takes precedent over his legal obligation to his former wife. He admitted that selling his interest in the land would not leave his mother destitute, but maintained that he would not sell it while his mother was alive. Mr. Skinner argues on appeal that he is also unable to do anything with the property because of a lien created by a 1987 chancery court judgment. The 1987 judgment was one of the other proceedings in which he was brought into court to pay past-due alimony. The court held Mr. Skinner in contempt, and gave Mrs. Skinner a lien on the family property to secure payment of alimony owed to her at that time as well as in the future. The judgment stated: There is, by this Judgment, impressed upon the interest of William E. Skinner in real property in DeSoto County, Mississippi hereinafter described a lien in favor of Mary B. Skinner to secure payment of the Judgment granted herein and to also secure and insure all future payment of alimony, Mary B. Skinner is hereby granted the right to apply to this Court for foreclosure of said lien and to application of the proceeds arising therefrom to discharge payment of said obligations.

Mr. Skinner argues that because of the court's order, "this is not a source he can call upon." He claims that, in an effort to satisfy his debts, he tried to get a loan with this property as security but the bank would not lend him the money because it did not conclude he would be able to pay it back. In one case, the lower court imposed a lien on the husband's property to insure payment of alimony. On appeal, the husband argued that such a lien was a prejudgment seizure of property in violation of his due process rights. Morgan v. Morgan, 397 So. 2d 894, 896 (Miss. 1981). The supreme court disagreed, holding that "[t]he lien in no way restricts [the husband's] right to dispose of the land or use it except that it will remain as security until he fully discharges his obligation to his former wife or makes other arrangements to secure payments by some reasonable means acceptable to the lower court." Morgan, 397 So. 2d at 897. Mr. Skinner's argument that this lien prevents him from doing the very thing the lien was designed to secure, i.e. make payments of alimony, is without merit. Mr. Skinner's testimony made clear that he simply refuses to sell the land. If in fact some practical problems have been caused by the existence of the lien, they may be addressed by the chancellor, particularly if foreclosure proceedings are commenced. In addition to the family property, Mr. Skinner has a note for $24,000, arising from the sale of his business, payable in monthly installments of $3,000. Mrs. Skinner argues that he has not attempted to collect this debt, and if collected, the monthly installments would be more than his monthly alimony

obligation. Mr. Skinner argues that this note is uncollectible. When asked what steps he was taking to enforce the note, which was eight months past due at the time of trial, he replied that "I think the attorneys have been talking," but he could not be more specific. He did not prove compliance with the Kincaid test: That he "earned all he could," and used all means available to pay alimony. Mrs. Skinner also argues that numerous other expenses paid by Mr. Skinner were neither necessary to the continuation of his business nor were they necessary living expenses for himself or his dependants. These expenses include financial support of his two adult married daughters. The evidence revealed that he paid the note on a car that his daughter drove, paid the insurance on the other daughter's car, and paid a veterinary bill for one of his daughter's. Mr. Skinner argues that one of the cars was in his name and that he paid his daughter's insurance while she was in the hospital suffering an alcohol abuse problem, and that these payments are "an act of kindness and only involved $500." Because these expenses are not living or business expenses and Mr. Skinner's two daughters were no longer his legal dependants at the time the expenses were incurred, Mr. Skinner did not meet the requirement of Kincaid that he pay all money over necessary living and business expenses to his former wife. There is sufficient evidence in the record that Mr. Skinner could have paid the debt owed to his wife. While Mr. Skinner did offer proof that he had substantial debts in addition to alimony, he did not offer evidence with sufficient particularity that he was in fact unable to pay the alimony to relieve him of contempt on the basis of inability to pay. Mr. Skinner's second defense was that his failure to pay was not willful or deliberate. If a defendant can show that his violation of the court's order was not willful or deliberate and that he attempted to comply to the maximum of his ability, then he will not be found in contempt of court. Mr. Skinner argues that his partial payments of amounts less that the amount owed was evidence that he honestly tried to pay. In light of Mr. Skinner's testimony that he refused to use available property to satisfy the debt, his testimony that used his funds for expenses other than those necessary for living and continuing his business, and in light of his admitted lack of attention to his personal as well as business finances, there was substantial credible evidence to support the chancellor's finding that Mr. Skinner's failure to pay was willful. Therefore, the judgment of contempt is affirmed. II. Modification In September of 1993, Mr. Skinner, in response to the latest motion for contempt, filed his second request for modification. The chancellor denied his request. Mr. Skinner contends that the chancellor's denial was against the overwhelming weight of the evidence in that he showed a significant change in circumstances. A chancellor is afforded broad discretion in the area of modification, and this Court will reverse only when the chancellor was manifestly in error in a finding of fact or if there has been an abuse of discretion or when an erroneous legal standard was applied. McEwen v. McEwen, 631 So. 2d 821, 823 (Miss. 1994).

Authority for the modification of alimony is set by statute: When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching . . . or any allowance to be made to her or him . . . . The court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require.

Miss. Code Ann.

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