Clayton John Hickey v. Melissa Crenshaw Hickey

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CA-01540-COA

CLAYTON JOHN HICKEY APPELLANT

v.

MELISSA CRENSHAW HICKEY APPELLEE

DATE OF JUDGMENT: 08/27/2013
TRIAL JUDGE: HON. MITCHELL M. LUNDY JR.
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: JERRY WESLEY HISAW
H.R. GARNER
ATTORNEY FOR APPELLEE: LEIGH A. RUTHERFORD
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: FOUND APPELLANT IN CONTEMPT,
DECLINED TO FIND APPELLEE IN
CONTEMPT, MODIFIED CHILD SUPPORT,
AND MODIFIED LEGAL CUSTODY
DISPOSITION: AFFIRMED IN PART, REVERSED AND
RENDERED IN PART - 12/16/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., ROBERTS, MAXWELL AND FAIR, JJ.

ROBERTS, J., FOR THE COURT:

¶1. Clayton Hickey appeals the Desoto County Chancery Court’s judgment finding him

in contempt for his failure to pay his ex-wife, Melissa Crenshaw Hickey, child support for

their six-year-old son and their two-year-old daughter. Clayton claims that the chancellor

erred because he was only obligated to pay for one-half of his children’s undefined needs,

and he had disagreed that the children needed to be in daycare. Clayton also claims that the

chancellor should have found Melissa in contempt because she had not fulfilled her
obligation to file a joint tax return for 2011. Additionally, Clayton claims that the chancellor

erred by modifying his child-support obligation, and awarding Melissa sole legal custody of

the children.

¶2. After careful consideration, we find that the chancellor erred by awarding Melissa sole

legal custody of the children when there was no evidence that the children had been

adversely affected by the joint-legal-custody arrangement that Clayton and Melissa had

agreed to when they divorced. However, we find no merit to Clayton’s other claims on

appeal. Accordingly, we affirm the chancellor’s judgment in part and reverse and render in

part.

FACTS AND PROCEDURAL HISTORY

¶3. Clayton and Melissa were married on July 17, 2004, and divorced on January 9, 2012.

They have two children. When Clayton and Melissa divorced, they entered into a property-

settlement agreement. The agreement provided that Melissa would have primary physical

custody of the children, but she and Clayton would share joint legal custody of them. The

agreement also provided Clayton visitation with the children. According to the agreement,

Clayton’s visitation included “flexible” periods during weekdays “from time to time.”

Clayton also received weekend visitation during the first and third weekends of each month.

Clayton and Melissa were to split visitation of the children equally during holidays

“according to [Clayton’s and Melissa’s] work schedules.” The agreement also addressed

Clayton’s summer visitation with the children, and visitation on specific holidays and events.

¶4. As for child support, the agreement provided:

Due to the great disparity in incomes and current financial situations of the

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parties, the parties hereby request that there be no child support ordered at this
time from [Clayton]; However, should his income ever become equal to that
of [Melissa,] then the parties agree that child support should be paid by
[Clayton] as per Mississippi [s]tate guidelines.

The agreement went on to state that “[u]ntil such time, the parties agree to split any and all

needs of the minor children 50/50.” Additionally, the agreement stated that Clayton and

Melissa would file joint tax returns for 2011, but Melissa would claim both children as

dependents for income-tax purposes after 2011. Neither party received alimony under the

agreement.

¶5. The agreement also addressed the marital home. Clayton received use of it, but he

agreed that he would be solely responsible for the mortgage payments, taxes, and insurance.

Clayton also agreed to pay Melissa $32,000 for her share of the equity in the marital home.

In the final judgment of divorce, the chancellor found that “the [p]roperty [s]ettlement

[a]greement . . . is adequate and sufficient to settle all property issues and child custody and

support issues.”

¶6. Approximately eight months after the divorce, Melissa filed a “petition for citation

of contempt[,] modification[,] and other relief.” Melissa claimed that Clayton was in

contempt because he had failed to split the expenses related to the needs of the children.

According to Melissa, Clayton owed her approximately $5,700. Melissa also claimed that

the chancellor should modify the provision of the judgment of divorce and award her sole

legal custody of the children. Melissa’s reasoning was based on her allegation that she and

Clayton can not “agree on anything,” and Clayton “only wants to argue.” Melissa also

alleged that Clayton “has caused problems at the [children’s] school.” Melissa requested that

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the chancellor eliminate Clayton’s right to visitation with the children during the week.

Additionally, Melissa asked the chancellor to order Clayton to pay a specific amount of child

support.

¶7. Clayton filed a counterclaim and alleged that Melissa was in contempt because she

had not quitclaimed her ownership in the marital home, and she did not file a joint tax return

for 2011. Clayton also claimed that a large portion of the expenses that Melissa sought were

related to daycare expenses that were unnecessary, because he could take care of the children

during the day.

¶8. Clayton and Melissa went before the chancellor on May 30, 2013. Clayton and

Melissa both testified. After the hearing, the chancellor held that Clayton was in willful

contempt because he had not paid half of the children’s daycare expenses, which qualified

as a need. The chancellor noted that in the seventeen months that followed the divorce,

Clayton paid a total of $1,400 toward the needs of the children. The chancellor also noted

that the children had both been in daycare from the time that Melissa’s maternity leave had

ended. The chancellor also mentioned that Clayton worked nights and slept during the day.

The chancellor found that Clayton owed Melissa approximately $9,000 for his half of the

children’s daycare expenses. The chancellor also awarded Melissa $3,500 in attorney’s fees

related to Clayton’s contempt.

¶9. The chancellor declined to find that Melissa was in contempt. The chancellor’s

reasoning was based on the fact that Melissa had given Clayton a quitclaim deed related to

her rights to the marital home. Although Melissa had not filed a joint tax return for 2011, the

chancellor noted that she had done so based on the advice of the person who had prepared

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her tax return. However, the chancellor held that Clayton was entitled to one-half of the

return that Melissa had received. Consequently, the chancellor reduced the amount that

Clayton owed Melissa by approximately $3,000.

¶10. Next, the chancellor found that it was appropriate to award Melissa sole legal custody

of the children. The chancellor found that there had been a material and substantial change

in circumstances adverse to the children’s best interest, but the chancellor did not elaborate

regarding the nature of that change in circumstances. Likewise, the chancellor did not

specify how the children had been adversely affected by that unspecified change in

circumstances.

¶11. Finally, the chancellor modified Clayton’s child-support obligation. Rather than

paying one-half of the children’s undefined needs, the chancellor ordered Clayton to pay

Melissa $420 per month in child support. The chancellor noted that the monthly figure was

a deviation from the statutory guideline for two children, but the deviation was necessary

because of the children’s daycare and after-school-care expenses. Clayton appeals.

ANALYSIS

I. CONTEMPT

¶12. Clayton argues that the chancellor should not have found him in contempt for not

paying half of the children’s daycare expenses. He notes that he and Melissa initially had

joint legal custody of the children, and he was required to pay half of the costs for the

children’s needs. He was not expressly obligated to pay for half of daycare expenses.

Clayton’s position was that he was available to care for the children during the day, so

daycare expenses were unnecessary. Clayton further notes that Melissa wrote off the daycare

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expenses on her taxes. He reasons that the chancellor should not have held him in contempt

because he was not in willful violation of an obligation. According to Clayton, because the

chancellor had to first find that daycare expenses were a need, the agreement was ambiguous,

and he should not have been held in contempt because he did not fulfill an ambiguous

obligation. Clayton concludes that the chancellor should not have ordered him to pay

Melissa approximately $6,000 in daycare expenses.

¶13. Whether a party is in contempt is a question of fact to be decided on a case-by-case

basis. R.K. v. J.K., 946 So. 2d 764, 777 (¶39) (Miss. 2007). A chancellor has substantial

discretion in deciding contempt matters because of the chancellor’s “temporal and visual

proximity” to the litigants. Mabus v. Mabus, 910 So. 2d 486, 491 (¶20) (Miss. 2005). This

Court “will not reverse the chancellor’s findings if they are supported by substantial credible

evidence.” Doyle v. Doyle, 55 So. 3d 1097, 1110 (¶44) (Miss. Ct. App. 2010).

¶14. “A citation for contempt is proper when the contemner has willfully and deliberately

ignored the order of the court.” Id. “The purpose of a civil contempt order is to coerce a

part[y’s] compliance with a court order.” Id. at (¶46). “The burden then shifts to the

defendant who may rebut the prima facie case by proving inability to pay, lack of willfullness

regarding the contempt, ambiguity in the order's provisions, or impossibility of

performance.” Id. at 1111 (¶46). “Civil contempt, such as here, must be proven by clear and

convincing evidence.” Id. “[B]efore a person may be held in contempt of a court judgment,

the judgment must be complete within itself – containing no extraneous references, leaving

open no matter or description or designation out of which contention may arise as to the

meaning.” Wing v. Wing, 549 So. 2d 944, 947 (Miss. 1989). “Nor should a final decree

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leave open any judicial question to be determined by others, whether those others be the

parties or be the officers charged with execution of the decree.” Id.

¶15. Although the agreement did not require that Clayton pay regular child support,

Clayton was required to pay one-half of the children’s needs. In approximately eight months

since the divorce, Clayton had paid Melissa roughly $1,400 toward the children’s needs.1

The chancellor noted that the children had been in daycare from the time that Melissa’s

maternity leave had ended. The children were in daycare during the marriage, and they were

in daycare when Clayton and Melissa divorced. The chancellor also recognized that Clayton

worked nights as an emergency medical technician (EMT), and he slept during the day. It

was reasonable for the chancellor to find that Clayton was not available to provide regular

child care during the week. It was also reasonable for the chancellor to find that because the

children had been consistently in daycare for the vast majority of their lives, which included

the time before Clayton and Melissa’s divorce, daycare qualified as a “need” contemplated

by the agreement. It follows that the chancellor could have reasonably found Clayton in

contempt because he did not pay one-half of the children’s needs.

¶16. Next, Clayton claims that the chancellor erred when he found that Melissa was not in

contempt because she did not file a joint tax return for 2011. Melissa testified that she did

not file a joint tax return for 2011 because the person who prepared her taxes advised her that

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Clayton had two mortgages on the former marital home. One of those mortgages
required a monthly payment roughly equal to the total amount of support that Clayton had
paid Melissa since the divorce.

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because she was divorced, she could not file a joint tax return.2 Clayton places great

emphasis on one sentence of Melissa’s cross-examination, when she testified that

“[o]bviously, I didn’t file . . . jointly because I didn’t want to - - .” Clayton interprets

Melissa’s testimony as though she simply chose not to file a joint tax return. However,

Clayton’s interpretation is a self-serving mischaracterization of the transcript, which can be

interpreted as though Melissa’s testimony was incomplete. That is, by including two dashes

at the end of the sentence, the court-reporter who transcribed Melissa’s testimony indicated

that Melissa had not finished explaining why she did not file a joint tax return. Throughout

the rest of her testimony, Melissa consistently explained that she did not file a joint tax return

for 2011 because the person who had prepared her taxes advised her that she could not do

so. Furthermore, there was testimony that Clayton never presented a joint tax return for

Melissa to sign. Additionally, the chancellor ordered Melissa to pay Clayton one-half of the

amount of the tax return that she received for 2011, thus mitigating the need to find her in

contempt. We find that the chancellor acted within his discretion. Therefore, we find no

merit to this issue.

II. ATTORNEY’S FEES

¶17. Clayton argues that the chancellor should not have ordered him to pay Melissa $3,500

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The chancellor signed the original judgment of divorce on December 20, 2011.
However, the judgment was not filed until January 9, 2012, and it was not entered on the
general docket until February 6, 2012. It appears as though Melissa’s tax preparer advised
her that she could not file a joint tax return for 2011 because the tax preparer concluded that
the effective date of the divorce occurred during 2011, rather than 2012. We note that “[a]
judgment shall be effective only when entered as provided in [Rule] 79(a)” of the
Mississippi Rules of Civil Procedure. M.R.C.P. 58. The comment to Rule 79(a) states that
an entry relates to the date “on which the entries are made in the general docket.”

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in attorney’s fees. Clayton’s reasoning is dependent on our finding merit to his claim that

the chancellor erred by finding him in contempt. Because we found no merit to that claim,

we find no merit to his claim that he should not have been required to pay Melissa $3,500

in attorney’s fees.

III. CHILD SUPPORT

¶18. Next, Clayton claims that the chancellor erred when he calculated Clayton’s modified

child-support obligation. That is, Clayton does not argue that the chancellor erred by

modifying his child-support obligation. Instead, Clayton claims that the chancellor erred

when he deviated from the statutory child-support guidelines.

¶19. “The amount of child support to be awarded in Mississippi is controlled by statute

with some discretion left to the chancellor.” McGehee v. Upchurch, 733 So. 2d 364, 371

(¶37) (Miss. Ct. App. 1999). “Decisions regarding modification of child support are within

the discretion of the chancellor, and [an appellate court] will reverse only where there is

manifest error in findings of fact, or an abuse of discretion.” Powell v. Powell, 644 So. 2d

269, 275 (Miss. 1994). Furthermore, “[t]he process of weighing evidence and arriving at an

award of child support is essentially an exercise in fact-finding, which customarily

significantly restrains [an appellate court’s] review.” Gillespie v. Gillespie, 594 So. 2d 620,

622 (Miss. 1992). A chancellor may modify child support if there has been “a substantial or

material change in the circumstances of one or more of the interested parties: the father, the

mother, and the child or children, arising subsequent to the entry of the decree to be

modified.” Garcia v. Garcia, 97 So. 3d 109, 112 (¶12) (Miss. Ct. App. 2012) (quoting

Edmonds v. Edmonds, 935 So. 2d 980, 987 (¶19) (Miss. 2006)). We will reverse a

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chancellor’s decision to modify child support if the chancellor abused his discretion. Moulds

v. Bradley, 791 So. 2d 220, 226 (¶14) (Miss. 2001).

¶20. Clayton notes that he presented evidence that his monthly adjusted gross income was

approximately $1,680. Relying on the guideline for the support of two children as set forth

in Mississippi Code Annotated section 43-19-101(1) (Supp. 2014), Clayton states that he

should have to pay Melissa no more than twenty percent of his adjusted gross income in child

support. Clayton reasons that his monthly child-support obligation should be $337 per month

– not $420 per month. Clayton also argues that it is inequitable to require him to pay $420

per month based on his own living expenses, including the $300 in arrearages that he must

pay Melissa related to his being in contempt. Finally, Clayton claims that it is inequitable

to require him to pay $420 per month in child support because Melissa earns more money

than him.

¶21. There is a rebuttable presumption that a noncustodial parent should pay twenty

percent of his or her adjusted gross income in support of two children. Miss. Code Ann. §

43-19-101(1). A chancellor may deviate from the guidelines set forth in section 43-19-

101(1) if the chancellor finds that additional child support is necessary because of “[p]ayment

by the obligee of child care expenses in order that the obligee may . . . retain employment .

. . .” Miss. Code Ann. § 43-19-103(i) (Supp. 2014). The chancellor specifically held that

“after[-]school [care], daycare[, and] other expenses necessitate[] an upward deviation of

support.” There was evidence that Clayton had additional sources of income other than his

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earnings as an EMT.3 It was within the chancellor’s discretion to find that child-care

expenses required an upward deviation in Clayton’s child-support obligation. We find no

merit to this issue.

IV. LEGAL CUSTODY

¶22. Next, Clayton argues that the chancellor erred when he modified legal custody of the

children and awarded Melissa sole legal custody. According to Clayton, “[t]he record is

utterly void of any ‘adverse affect’ on the minor children.” Clayton reasons that it is

necessary to reverse the chancellor’s judgment.

¶23. At the outset, we note that this issue solely pertains to the legal custody of the

children. When Clayton and Melissa divorced, they agreed to share joint legal custody of

the children. Parents who have joint legal custody are obligated “to exchange information

concerning the health, education[,] and welfare of [their children], and to confer with one

another in the exercise of decision-making rights, responsibilities[,] and authority.” Miss.

Code Ann. § 93-5-24(5)(e) (Supp. 2014). Mississippi Code Annotated section 93-5-24(4)

(Supp. 2014) “creates a presumption in favor of joint custody where the parents have agreed

to it.” Lowery v. Lowery, 25 So. 3d 274, 296 (¶54) (Miss. 2009). When parents have joint

legal custody of children, that custody is modifiable if one of the parents demonstrates “that

a material change in circumstances has occurred.” Miss. Code Ann. § 93-5-24(6) (Supp.

2014). Furthermore, the material change in circumstances must adversely affect the best

3
As an adverse witness, Clayton was confronted with his 2012 tax return, which
indicated that he had earned approximately $4,400 from his lawn service, which Clayton
minimized as merely “cutting [his] Dad’s yard.” Clayton also admitted that he had a
“bunch” of different jobs during 2012.

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interest of the children. Touchstone v. Touchstone, 682 So. 2d 374, 377 (Miss. 1996). The

best interest of the children is always the foremost consideration. Shepherd v. Shepherd, 769

So. 2d 242, 245 (¶11) (Miss. Ct. App. 2000) (citing Riley v. Doerner, 677 So. 2d 740, 744

(Miss. 1996)).

¶24. In making this determination, the totality of circumstances must be considered. Ash

v. Ash, 622 So. 2d 1264, 1266 (Miss. 1993). Resolution of factual disputes is always a matter

entrusted to the sound discretion of the chancellor. Carter v. Carter, 735 So. 2d 1109, 1114

(¶19) (Miss. Ct. App. 1999). We may reverse only if the chancellor abused his discretion,

or the decision was manifestly wrong or clearly erroneous. Horn v. Horn, 909 So. 2d 1151,

1159 (¶20) (Miss. Ct. App. 2005). “The word ‘manifest,’ as defined in this context, means

‘unmistakable, clear, plain, or indisputable.’” Lowrey v. Lowrey, 919 So. 2d 1112, 1118

(¶21) (Miss. Ct. App. 2005) (citation omitted).

¶25. The chancellor’s July 2013 order states “that there is a material and substantial change

in the circumstances of the parties that adversely affect[s] the best interests and welfare of

the children . . . .” However, approximately one month later, the chancellor entered an

opinion and stated:

It is very obvious from the testimony that subsequent to the divorce of the
parties[,] substantial changes in circumstances have occurred that adversely
affect the welfare of the child[,] and such require a modification of joint legal
custody. Disagreements as to [the] needs of the children, daycare, pick up at
school, etc. (including involving the police at one instance) show[] this court
that modification is necessary to ensure order and eliminate controversy
involving the children.

Although the chancellor said that there had been material or substantial changes that

adversely affected the children, the chancellor never elaborated regarding how the children

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had been adversely affected. The chancellor mentioned that modification of Clayton and

Melissa’s joint legal custody was necessary “to ensure order and eliminate controversy

involving the children.” But that is not the applicable legal standard.

¶26. What is more, the chancellor apparently based his decision on the fact that Clayton

and Melissa had “[d]isagreements as to [the] needs of the children, daycare, pick up at

school, etc. (including involving the police at one instance)[.]” According to the record, the

only disagreement “as to [the] needs of the children” was whether daycare qualified as a

“need” as defined in the agreement. By modifying Clayton’s child-support obligation, the

chancellor completely eliminated the possibility that Clayton and Melissa will disagree in the

future as to what qualifies as a “need” that they must equally fund.

¶27. Additionally, the record indicates that Clayton and Melissa got into an argument at

their son’s school because Clayton would not agree to allow Melissa’s boyfriend to pick up

the children unless Melissa reciprocated and allowed Clayton’s girlfriend to do so.

According to Melissa, Clayton provoked her and caused her to use profanity toward him.

A law-enforcement officer was within earshot. According to Clayton, the officer intervened

and asked him whether he wanted to have Melissa arrested. Clayton declined. Although the

chancellor’s use of “etc.” indicates that Clayton and Melissa had other disagreements, the

record indicates that those disagreements were relatively minor, and none of them had an

adverse affect on the children.4

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Melissa testified that Clayton had eaten lunch with their son at school without
telling her. Because they can only visit their son a finite number of times each month,
Melissa did not have an opportunity to discuss the fact that she wanted to visit their son at
school. Melissa also testified that Clayton became angry when he went to visit their son at

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¶28. There is simply no evidence in the record to support a conclusion that either child had

been adversely affected by the two disagreements that the chancellor specifically mentioned.

In fact, there was no evidence that either child was even aware of the two disagreements.

Clayton and Melissa’s son, John, was six years old when his parents argued at his school.

However, he was not present during Clayton and Melissa’s argument, because he was in

class. Clayton and Melissa’s two-year-old daughter, Sarah, was nearby during the argument,

but there was no evidence that she was aware of it. There was certainly no evidence that she

suffered an adverse affect because of it.

¶29. In Goudelock v. Goudelock, 104 So. 3d 158 (Miss. Ct. App. 2012), this Court

reviewed a chancellor’s decision to modify joint physical and legal custody of a child.

Approximately seven months after the divorce, the ex-wife sought to obtain sole physical and

legal custody of the child. Id. at 160 (¶3). The chancellor found that it was in the child’s

best interest for the ex-wife to have sole physical and legal custody of the child. Id. at 162

(¶17). This Court found no merit to the ex-husband’s claim that the chancellor had erred.

Id. at 164 (¶25). We noted that “the parties had not agreed on which school [the child] would

attend,” and the ex-husband’s “failure to consent to certain dental procedures resulted in the

premature extraction of [the child’s] tooth.” Id. at (¶23). The child’s dentist had

recommended measures to avoid further decay of teeth that would lead to extraction without

school, and he discovered that their son had stayed home because of an illness. According
to Melissa, Clayton was upset because she had not informed him that their son was sick
before Clayton went to visit him during lunch. There was also testimony that Clayton did
not confer with Melissa before he signed up their son for basketball during the summer.
There was no evidence that either of the children were aware of any of those disagreements.

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treatment. Id. at 161 (¶12). Because the child suffered from hemophilia, an extraction was

potentially dangerous. Id. The ex-husband refused to allow the child to obtain treatment in

Jackson, so the child’s teeth remained untreated for approximately seven months. Id.

Consequently, the tooth decay progressed to the point that the child had to undergo an

extraction. Id.

¶30. Here, there is no evidence that the children had any unusual medical needs, and there

was no evidence that the children’s medical needs had been neglected in any way. The

supreme court has held that isolated incidents do not justify a change of custody.

Touchstone, 682 So. 2d at 378 (quoting Smith v. Jones, 654 So. 2d 480, 487 (Miss. 1995)).

“[I]t must be the overall circumstances in which a child lives, likely to remain unchanged in

the foreseeable future and adversely impacting a child, to warrant a change of custody.” Id.

(quoting Tucker v. Tucker, 453 So. 2d 1294, 1297 (Miss. 1984)). In Lipsey v. Lipsey, 755

So. 2d 564, 565 (¶4) (Miss. Ct. App. 2000), this Court held that a chancellor erred when he

modified child custody. We based our decision on the fact that “the chancellor gave no

reason for modifying custody except for citing the parties’ inability to cooperate with one

another.” Id. at 566 (¶7). This Court stated that it “will not . . . allow a change in custody

when the child has exhibited no adverse impact and [the child] is equally cared for by both

parties.” Id. at 567 (¶8).

¶31. Based on the record before us, there is no evidence that the children had been

adversely affected by the fact that their parents had joint legal custody. The record is simply

silent in that regard. Nothing in the record indicates that the children were unhappy, or that

any of their needs had been neglected. Because the chancellor did not find that the children

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had been adversely affected in any way by Clayton and Melissa’s disagreements, we are

compelled to follow the supreme court’s precedent and reverse the chancellor’s judgment.

Consequently, we render a judgment reinstating Clayton and Melissa’s joint legal custody.

¶32. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS
AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS
OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE PARTIES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART
WITHOUT SEPARATE WRITTEN OPINION.

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