IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00807-COA ROLAND WEEKS APPELLANT/CROSSAPPELLEE

v. DEBORAH W. WEEKS APPELLEE/CROSSAPPELLANT

DATE OF JUDGMENT: 12/06/2013 TRIAL JUDGE: HON. CARTER O. BISE COURT FROM W HICH APPEALED: HARRISON COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: THOMAS W . CROCKETT JR. HENRY LAIRD ATTORNEYS FOR APPELLEE: ANDREW AUSTIN CLARK RUSSELL S. GILL NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: DENIED DOW NW ARD MODIFICATION OF ALIMONY; AW ARDED BACK CHILD SUPPORT; DENIED ATTORNEY’S FEES; AND DENIED MOTION TO SET ASIDE PRIOR ORDER DENYING UPW ARD MODIFICATION OF ALIMONY DISPOSITION: AFFIRMED ON DIRECT APPEAL; AFFIRMED IN PART AND REVERSEDAND REMANDED IN PART ON CROSSAPPEAL: 03/01/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., CARLTON AND FAIR, JJ. FAIR, J., FOR THE COURT: ¶1. Roland and D e b o r a h We e k s w e r e m arried in 1978, and they separated in 1992. Litigation has continued since t heir divorce in 2001. I n W e eks v. W eeks , 8 3 2 So. 2d 583(Miss. Ct. App. 2002), this Court f ound that the chancery c o u r t h a d erred in not awarding Deborah a lim ony af

ter she had been given about a third of their considerable m arital assets. The chancery court subsequentl y o r d e red Roland to pay approxim ately $ 3,900 per m onth, between periodic alim o ny , health insurance, and lif e insurance. In W

eeks v. W eeks , 29 So. 3d 80 (Miss. Ct. App. 2009) ( W eeks II ), we largely af

f irm ed the subsequent judgm ent, but

rem anded again f

or the chancellor to reconsider aspects of the child support and attorney ’s f ee awards. ¶2. The instant app e a l a r i s e s f r o m s e veral m otions: Roland’s March 2012 m otion to reduce his alim o ny obligation; Deborah’s January 2013 m otion to pursue the child support and attorney ’s f

ees previously rem anded; a nd Deborah’s August 2013 m otion to set aside a 2006 order deny ing an upward m o dif ication of alim ony , which she claim ed was induced by a f raud on the court. ¶3. The chancery court denied Roland’s m otion to reduce h is alim ony obligation, f inding that both his and Deborah’s health and assets had declined as they a ged, but that Roland was still c apable of pay i ng the award. He appeals. The chancellor awarded b ack child support
to Deborah, but denied h er r equest f or a t torney ’s f

e es, which he f

o und to be both unreasonable and within her ability t o pay . The judge also denied Deborah’s m otion to set aside the 2006 order. D e b o r a h c r oss-appeals. W e a g ree w ith Deborah that the chancellor should have awarded h er interest on the unpaid child support and that the chancellor erred in f inding she was able to pay that portion of her attorney ’s f ees accum

ulated prior to W

eeks

2II. This Court decided in W eeks II that she was unable to p ay them ; we h ad rem a nded only f or the chancery

court to consider the McKee f actors. W eeks II , 29 So. 3d at 92-93 (¶¶58- 59); see also McKee v. McKee , 4 18 So. 2 d 764, 767 (Miss. 1982). W e again rem and f or the chancery court t o d e term ine the appropriate am ount of those attorney ’ s f ees. W e o therwise af f irm the judgm e nt. STANDARD OF REVIEW ¶4. “W hen [ a n appellate court] reviews a chancellor' s decision in a case involving divorce and all related i ssues, [ t he court’s] scope of r eview is lim ited by t he s u bstantial evidence/m anif

est error r ule.” Y elverton v. Y

e lverton , 961 So. 2d 19, 24 (¶6) (Miss. 2007).
A chancellor’s f

actual f indings will not be d isturbed unless m a nif estly wrong, clearly

erroneous, or an erroneous legal s t a n d a r d w a s applied. Carambat v. Carambat , 72 So. 3d 505, 510-11 (¶24) (Miss. 2011). As long as substantial evidence supports the chancellor’s f indings, an appellate c ourt i s w ithout authority to disturb them , even if it would have f ound otherwise as an original m a tter. Joel v. Joel , 43 So. 3d 424, 429 (¶14 ) ( M i s s . 2 010). Additionally , if the chan c e l l o r has m a de no specif ic f indings, we generally proceed on the

assum ption that he r esolved all such f act issues in f

avor of the appellee. Ferrara v. W alters , 919 So. 2 d 876, 881 (¶8) (Miss. 2005) ( citing Newsom v. Newsom , 557 So. 2d 511, 514 (Miss. 1 990)). Questions of law, on the other hand, are reviewed d e n ovo
. Irving v. Irving , 67 So. 3d 776, 778 (¶11) (Miss. 2011). DISCUSSION

31. Dow nw ard Modification of Alim ony

¶5. Roland contends that the chancellor erred in ref using to r elieve him of som e or all o f his a lim o ny and associated obligations to Deborah, which totaled about $3,900 per m onth, and would apparently

increase som ewhat in the f uture with the cost of

his lif e insurance. ¶6. In de c i d i n g w h e t her to m odif y alim o ny , t he chancellor m ust consider the f

am iliar Armstrong f

actors, “com

paring the relative p ositions of t he p arties a t the tim e of the request f or m odif i cation in relation to their p ositions at the tim e of the divorce d ecree. ” Steiner v. Steiner , 788 So. 2d 771, 776 (¶16) (Miss. 2001) (citing Armstrong v. Armstrong , 618 So. 2d 1278, 1280 (Miss. 1993)). ¶7. T h e c h a

n c e l l o r f ound that although both parties had d im i nishing assets, were su ffe r i n g f rom declining health as they aged, and were no longer able to work, Roland continued to have s uf f icient i ncom e f

rom his pensions and S ocial Security – a pproxim a tely $14,000 per

m onth

– t o p a y the alim o n y , while Deborah’s incom e f rom non-alim ony sources was just $1,200 p er m onth. The chancellor did not m ake specif ic f indings regarding the value of the parties’ estates, and so on appeal, Roland a n d D e b orah e ach claim poverty w hile accusing the other of hiding substantial a sset s. They also debate whether Roland was required to
prove a m aterial change of ci r c u m s t a n c es, a s the chancellor had included language in the alim ony order to the ef

f ect that it would b e r eexam ined once De b o r ah reached an age to withdraw som e of her r etirem ent f unds w ithout penalty

. W e f i nd that regardless o f whether Roland had to prove a m aterial change o f circ u m stances, the chancellor had suf f icient

4evidence to deny his request f o r m odif ication. R oland’s advancing age and d eclining health

were not unexpected, nor did they im pact his continuing retireme n t incom e, which greatly exceeded Deborah’s. Roland c ontinues to be in a s ignif icantly better f

inancial position even af ter the alim ony . W e f

ind no abuse of discretion in the denial of R oland’s m otion to m odif y alim ony . 2. Back Child Support ¶8. At issue are the child support am ount s o w e d f o r t h e f inal two y e a rs prior to the
W e eks’ d a

ughter reaching the age of m ajority

. At the tim e, t he daughter was attend i n g college out of state. Roland m a de signif icantly m o re th an the t hen-$50,000 lim it f or the

m andatory application of the child support guidelines. I nitially , the chancellor had ordered Roland to pay the percentage o f his incom e s pecif ied b y the g uidelines (f

ourteen percent or $1,890) in the f

orm of expenses r elated to the child’s college educat i o n, including tuition, transportation, f

ood, health insurance, and the like. Roland would pay the dif f erence, if any , directly t o the child f

o r living expenses not covered d i r e c t l y b y the award. During the

sum m er, if the daughter r esided with Deborah, Roland would instead pay D eborah the “pro

rata sha r e ” o f t h e $ 1 , 890. Exactly what this m eant was a point of contention, with the chancellor subsequently allowing Roland to of f set the sum m er support with m oney he paid f or the child’s education. For the f inal y ear, the chancellor allowed Roland to pay Deborah the entire m onthly am ount, every m onth, m inus the cost of the daughter’s car insurance. But Deborah would have to pay the education expenses with that m oney .

5¶9. In W eeks II , this C ourt f

ound that “[ t]he structure o f the chancellor' s [ interpretation of the] child support order a l l o w s R o l a n d to p ay Deborah f ar l ess than the s tatutory child support of

$1,890 per m onth during the sum m e r.” W eeks II , 29 So. 3d at 87-88 (¶¶26-35).
W e f ound this to be error and reversed and rem a nded “ this issue f or the chancellor to reconsider the appropriate am ount of child support that should be paid, consistent with the

term s of this opinion.” Id. ¶10. On rem and, the chancery court ordered Roland to pay Deborah $1,890 f o r each of the

sum m er m onths, as direct child support, m i nus what Roland h ad already paid to her f or those

m onths. ¶11. Roland argues that this was in error because he had exceeded the support obligation with m o ney paid to the c hild directly – b y pay ing her college expenses, which included things like f ood, clothing, and shelter. His argum ents are brief and c ursory , and they appear to be little m ore than an a ttem

p t to relitigate an issue we decided in W eeks II , where we held that Roland’s pay ing his daughter’s college e x p e nses did not dim i nish Deborah’s need to

m aintain the f

a m i ly hom e, f

o r which child suppo r t w a s r e q u i red. The child “live[ d] with Deborah when she [ was] hom e f rom school during the sum m er and various wee k ends throu g h o ut the school y ear.” I d. at 88 (¶34). Roland’s argum ents on direct appeal are without m erit. ¶12. On cross-appeal, Deborah a lso seeks to relitigate i ssues w e resolved in W e eks II

. She contends that the chancellor should have f o und that Roland ha d f

a i l e d t o pay her child

6support f

or the entire twenty -f

ive-m o nth period at issue. S h e f urther seeks a f

inding of

contem pt and attorney ’s f

ees, as well as interest f

or back child support. ¶13. In W

e eks II , we f aulted the chancery court f or a llowing Roland to of

f s et the sum m er child support pay

m ents with m on e y h e h a d spent on t he daughter’s e ducation. But this concerned only

the portion of the support Roland was required to pay to Deborah – f

or the

sum m er m onths. W h ile we did observe that D e borah w ould have to m a intain the house throughout the y ear, we did not f ind that she was entitled t o child s upport pay m ents at the f

ull guidelines percentage f

or e very m onth throughout the y ear; the issue bef o re t his Court was

w h e t h e r R o land had com plied with the original order. See W eeks I I , 29 So. 3 d at 87

- 8 8 (¶¶26-35). Separately , we f o und no error in the chancellor’s ref usal to retroactively m odif y the child support award. Id. at 88-89 (¶¶36-40). ¶14. On the issue o f interest, D eborah is co r r e c t t h a t t h e c h a n c e r y c o urt s hould have awarded it, as is r equired f or child support arrearages . Ladner v
. Logan , 857 So. 2d 764, 772-73 (¶30) (Miss. 2 003). As to contem p t, it is true that f

ailure to pay c hild s upport m akes

a prim a f acie case f

or contem pt. Fancher v. P ell , 8 31 So. 2d 1137, 1143 ( ¶30) (Miss. 2002).
But we noted i n We e ks I

I t hat the am

biguity of t he order m ade it “virtually im possible f or Roland to be held in contem pt.” We e k

s I I , 29 So. 3d at 88 (¶32). Deborah has presented nothing new on that point, and so we f ind no error in t he ref

u sal to f ind R oland in contem

pt. ¶15. W e rem and f

or the chancery

court to award interest on the child support arrearages. Otherwise we af

f i rm the chancery

court’s judgm ent on the child support issues.

73. Attorney ’s Fees

¶16. On cross-appeal, Deborah argues that the chancellor erred in deny ing her m otion f or attorney ’s f

e es. She contends that Roland should p ay her legal f ees since the divorce, in 2001, which she pegs at m ore than $311,000 – af t er adjustm ents f

or certain f

ees s he concedes were unreasonable. ¶17. The chancellor noted that Deborah adm itted she had already p aid t he attorney ’s f ees

– or the vast ma

j o r i t y of them

. The chancellor noted that Deborah had b een awarded substantial a ssets, and he expressed doubt a t her claim s regarding the extent to which they had been dim inished or o f f set b y liabilities. The chanc e l l or noted t hat Deborah had been shuf f ling m oney around while rebuilding her hom e 1 to obscure her true assets. The chancellor had the “f

irm conviction that neither [ Deborah’s Unif orm Chancery Court Rule 8.05 disclosure] nor her testim ony can be relied upon to show what her assets or her needs are, but it is clear that she has $900,000 in assets, considering the m o ney she shows.” ¶18. In sum m ary , the chancellor f ound that Deborah was able to pay her o wn a t torney ’s f ees. But in W

eeks I I , this Court c oncluded that Deborah was unable to pay her a t t o r n e y ’s f ees. We e k

s II , 29 So. 3d a t 92-93 (¶¶56-59). Our instructions o n rem and were f or the chancery court to consider whether an award of attorney ’s f ees was proper under the McKee

1 T h e f o rm er m arital h o m e h ad b een d e s t r o y ed b y H u rrican e K atrin a, an d D eb o r ah h a d r eceiv ed s u b stan tial m o n ey to reb u ild it, w h ich sh e c laim ed sh e h ad ex p en d ed p ay i n g h er atto rn ey s. S h e ad m i tted th a t th e rep l acem en t h o u se w as t o b e mo r e v alu ab le at ab o u t $ 7 0 0 ,0 0 0

. 8f

actors, i.e., whether and to what extent t he f ees sought by D e b orah were reasonable – not whether she w a s a b l e t o pay them

. Id. at 93 (¶59); see also Upchurch Plumbing Inc. v. Greenwood Util. Comm'n , 964 So. 2d 1100, 1 114-15 (¶36) (Miss. 2007); McKee v. McKee , 418 So. 2d 764, 767 (Miss. 1982). On rem and, Deborah subm itted detailed proof touching

on all of the McKee f

actors. The chancellor clearly f ound that som e of the f

ees Deborah requested were unreasonable, as Deborah had gone through at l e a s t t w elve attorney s, who had charged “an i nordinate am ount of m oney f or little courtroom tim e,” l argely d u e t o t h e

am ount o f work that had to be duplicated. But t he chancellor d id not m ake specif ic f indings

as to the reasonable am ounts; a nd so we a gain rem a n d f or t he chancery court to award

a t torney ’s f

ees in an am o unt it determ i nes to be reasonable f or Deborah’s legal f

e e s

accum ulated to the point addressed in our judgm ent in W eeks II. ¶19. O u r fi nding of D eborah’s inability t o pay reasonable attorney ’ s f ees accum u la t e d p r i o r
to W eeks II is res judicata, but w hether she is now a b l e t o p a y t h e f ees incurred since is a separate i ssue. This q

uestion was entrusted to t he s ound discretion of the chancellor. Powell

v. P owell , 644 So. 2 d 269, 276 ( Miss. 1994). As the c h ancellor noted, Deborah’s f inancial situation r em ains strong, and penalties a s s o c i ated with w ithdrawing f rom her s u

bstantial retirem ent accounts are no l ong e r the sam e im pedim ent they were a t the tim e o f W eeks II

. See W eeks II , 29 So. 3 d at 9 2 -93 (¶58). As Deborah possesses signif i cant liquid assets, we

can f ind no abuse of discretion in the chancellor’s f i nding that she i s able to pay own her attorney ’s f

ees f or representation since t his Court last cons i d e r e d h er circum stances.

9Theref

ore, we af f irm the judgm ent to the extent i t d enies attorney ’ s f ees accum

ulated since
W eeks II. 4. Rule 60(b)(6) Motion ¶20. Deborah sought to set aside a 2006 order den y i n g h e r a n increase in alim ony . She argued that Roland f

raudulently m isrepresented the value o f an investm ent in an apartm ent

com plex. He had “estim ated” i t to be worth $ 200,000 i n hi s R u l e 8

. 0 5 statem ent, and he testif i ed (with even m ore qualif ication) to t he sam e value at trial. Deborah alleges that, the day bef ore Roland’s testim ony , he had deposited a $300,000 return on the i nvestm ent, and he ha d r e p o r ted a $520,000 capital gain on the investm ent on his taxes f or 2006. Roland testif i ed at the hearing that he h ad qualif ied his statem e n ts of the investm e nt’s value and that he did not rem em

ber m aking the deposit. He denied that the handwriting on the deposit slip was his. ¶21. T h e c h a n cellor f

ound t hat Deborah h ad f

ailed to show a f

raud on the court, and h e f urther f ound that she f

ailed to bring her allegations in a tim ely f ashion – the m otion to set aside the j u d g m e n t was f

iled m o re than seven y e ars af ter Roland’s a lleged m isrepresentations and not w ithin t he six-m onth lim it f o r f r a u d o n a party , nor within a reasonable tim e as required b y M ississip p i R u l e o f Civil Procedure 60(b)(6). The c hancellor f ound that valuation of the investm e nt h ad been a known issue at the 2006 hearing, and Roland’s testim o ny the r e o n cross-exam i nation supports this f inding. Regarding t he value of this investm ent, Roland had t estif ied: “I don’t know exactly what [ it is], but I believe I put down

1 0$200,000. [ It] m ay b e worth m ore than that. I just don’ t k n o w . ” Deborah of f e rs no real explanation f

o r the seven-y ear delay in f iling the m otion, and so w e cannot f ind an abuse of discretio n i n t h e c h ancellor’s f i nding t hat Deborah f

ailed to bring her claim within a reasonable tim e as required by Rule 60(b)(6). 5. Content of Record ¶22. I n h e r f

inal issue, D eborah contends that because Roland was the f irst t o f i l e a n

a p peal, he was required to pay f or additional parts of the record that she designated

. However, her argum ent on this p oint i s cursory , and she f ails to distinguish between portions of t he record n ecessary f

or responding to issues raised by Roland in h is appeal a nd those she designated as an appellant in her own r i g h t ( i.e., the cross-appeal). See M.R.A.P. 10. Consequently we f

ind that s he h as f

ailed to dem onstrate error o n this point, a n d w e deny relief

. ¶23. THE JUDGMENT OF THE C HANCERY COURT OF HARRISON C OUNTY IS AFFIRMED ON D IRECT APPEAL AND AFFIRMED I N P A R T A N D REVERSED AND REMANDED IN PART ON CROSS-APPEAL. A LL C OSTS OF T HIS APPEAL ARE ASSESSED TO THE APPELLANT/CROSS-APPELLEE. LEE, C.J., I RVING AND GRIFFIS, P .JJ., B ARNES, CARLTON, JAMES AND WILSON, JJ., CONCUR. ISHEE AND GREENLEE, JJ., NOT PARTICIPATING.

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