IN THE SUPREME COURT OF MISSISSIPPI

NO. 1998-CA-01636-SCT

CHRISTINE GONZALO (DEGEORGE)

v.

MARK OAKES

DATE OF JUDGMENT: 09/22/1998

TRIAL JUDGE: HON. JASON H. FLOYD, JR.

COURT FROM WHICH

APPEALED:

HARRISON COUNTY CHANCERY

COURT

ATTORNEY FOR APPELLANT: BRENT M. BICKHAM

ATTORNEY FOR APPELLEE: WILLIAM W. DREHER, JR.

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION: AFFIRMED - 08/19/1999

MOTION FOR REHEARING

FILED:

MANDATE ISSUED: 09/09/99

BEFORE PITTMAN, P.J., McRAE AND SMITH, JJ.

SMITH, JUSTICE, FOR THE COURT:

¶1. This case comes to this Court on appeal from the Chancery Court of Harrison

County concerning alleged child support arrearage. We agree that the chancellor was

correct. Considering the substantial evidence standard of review, we decline to overturn

the chancellor's decision.

FACTS

¶2. A judgment of paternity was entered by the Chancery Court in 1995, and Appellant

Christina Gonzalo (who has since become Christina DeGeorge) was awarded custody
of Brandon Oakes, the minor child of Christine and Mark Oakes, the Appellee. On

March 25, 1997, Mark filed a Motion for Modification of Final Judgment of Paternity

and requested physical custody of Brandon, alleging that Christina and her new

husband abused Brandon. Christine filed an Answer and Counterclaim asking the

Court to hold Mark in contempt for failing to pay child support.

¶3. On November 25, 1997, Hon. Jason H. Floyd, Jr. heard the case and made a ruling

denying a change of custody and deferring all child support issues to the Harrison

County Department of Human Services. He based this finding of fact on information

from the Department of Human Services (DHS) and on the testimony of both parties

regarding money they had paid to each other for expenses such as medical bills and

insurance. The judgment was drafted by Christina's attorney and filed on December

29, 1997. The Chancellor's judgment stipulated that "The Court defers all child

support issues in this cause to the Harrison County Department of Human Services

who are handling the child support issues."

¶4. On March 11, 1998, Mark filed a Motion to Correct Judgment to reflect that he was

not in arrears in child support, and to adjust the amount of child support Mark was

obligated to pay in light of the extra cost calculations determined earlier during the court

proceedings. The Chancellor entered this corrected judgment on April 3. On April 6,

Christina filed a Motion for Relief under M.R.C.P. 60(b), alleging that the Chancellor's

decision was based on "mistake and/or misrepresentation by the Plaintiff." She claimed

that the evidence clearly showed that Mark was in arrears of child support payments.

On September 22, 1998, the Chancellor denied Christina's motion for relief regarding

the corrected judgment. This was the sole issue on which she based her appeal.

I. DID THE CHANCELLOR COMMIT REVERSIBLE ERROR AND

MAKE AN INCORRECT FINDING OF FACT REGARDING CHILD

SUPPORT ARREARAGE WHEN DENYING APPELLANT'S MOTION

FOR RELIEF OF JUDGMENT UNDER M.R.C.P. 60(B)?

LEGAL ANALYSIS

¶5. Both parties acknowledge that the Court's standard of review in this appeal, and

for all appeals in domestic relations cases, is well-established. "Our scope of review in

domestic relations matters is limited by our familiar substantial evidence/manifest error

rule." Magee v. Magee, 661 So. 2d 1117, 1122 (Miss. 1995). An appellate court may

reverse a chancellor's finding of fact only when there is not "substantial, credible

evidence" justifying his finding. Williams v. Rembert, 654 So. 2d 26, 28 (Miss. 1995)

(quoting Snow Lake Shores Property Owners Corp. v. Smith, 610 So. 2d 357, 360
(Miss. 1992)). Appellate review of a motion for relief under Rule 60 (b) is limited to

whether the trial court abused its discretion by ordering or denying relief. Iuka Guar.

Bank v. Beard, 658 So. 2d 1367, 1373 (Miss 1995).

¶6. Christina's Motion for Relief under M.R.C.P. 60(b) alleges that the Chancellor

either had a mistaken understanding of the evidence presented in the case, or that he

was a victim of fraud or misrepresentation of the facts by the Plaintiff. In Christina's

brief, she relies on information offered by the Harrison County Department of Human

Services. The copies of various DHS financial records indicate outstanding balances at

different points during 1997. Because of this existing balance in total arrears according

to DHS, Christina claims that the Chancellor could not have entered a Corrected

Judgment for Mark Oakes and in effect "zeroed out" the balance he owed in back child

support. She claims in her brief that by doing this the Chancellor acted outside his

authority and freed Mark from his obligation to pay the back child support.

¶7. Mark does not deny that DHS calculated the balance that he owed in back child

support. However, he claims that the amount determined by DHS is not the only figure

that the Chancellor considered when assessing whether Mark was in arrears. Mark

refers to evidence he presented at testimony about premiums that he paid for

Brandon's health insurance. He claims that Christina agreed to reimburse him for half

the amount of the premiums, and Christina does not deny that is true. He also offered

evidence at trial of payments made toward back child support that had not been

recorded by DHS. Mark argues that the combination of all the financial information

presented to the Chancellor indicating how much Mark owed Christina and how much

Christina owed Mark, led him to conclude that the amounts cancelled each other out;

therefore, the Chancellor did not forgive any child support.

¶8. Mark argues in the alternative, that even if he were in arrears in his child support

obligation, the Chancellor still made the correct finding of fact, because Christina did

not present evidence sufficient to contradict and outweigh the evidence that Mark

presented. He claims that Christina's appeal is an attempt to get "a second bite of the

apple," which has consistently been denied by this Court. Peaster v. David New

Drilling C o., Inc., 642 So. 2d 344 (Miss. 1994)(affirming judgment in favor of

employer without allowing plaintiff to develop and present more evidence that injury

was a result of intentional tort and outside scope of workers' compensation). "The law

provides instead that for every award for damages, the plaintiff must prove some loss

or damages." Alldread v. Bailey, 626 So. 2d. 99, 103 (Miss. 1993.) Mark also points

out that the amount Christina seeks in this appeal is significantly larger than the amount

she claimed he was in arrears during the trial. The Chancellor also made reference to the

lack of evidence presented when speaking to Christina's attorney: "If the court has not

been properly presented evidence to support the theory or arrearages, it cannot find

arrearages. It [the court] obviously was not presented that evidence." Christina did not
meet her burden of proof.

CONCLUSION

¶9. The Harrison County Chancellor, when deciding this case, had to deal with

jumbled, disorganized evidence that was not well presented and with two parties

whose testimony conflicted and neither of whom could offer a clear presentation of the

financial affairs concerning their child. However, the chancellor came to a reasonable

conclusion of fact, given the evidence he could take into consideration at trial.

Regardless, given the substantial evidence, this Court may overturn the chancellor's

ruling only if it is clear that he must have disregarded glaringly obvious evidence

conflicting with his ruling. The trial testimony of both parties suggests that this was not

the case. The information presented by both parties appears to be valid, but is

nonetheless of the "he said, she said" variety. The chancellor's judgment is affirmed.

¶10. JUDGMENT AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE,

MILLS, WALLER AND COBB, JJ., CONCUR.