Who’s to Blame?
June 2, 2015 § Leave a comment
This is from a PSA entered into between Joe Bryant and his then-wife, Adella Jones:
[Adella] will receive as property settlement[] fifty percent (50%) of [Joe’s] disposable retirement from the Unites States Marine Corps/Army National Guard and fifty percent [50%] of [Joe’s] disposable retirement from the Veterans Administration which will be paid directly to [Adella] by the United States Marine Corps/Army National Guard and the Veterans Administration.
Joe retired from the VA on November 1, 2008, and from the military on June 30, 2010, and began receiving 100% of his retirement from both. He never paid any of the amounts received to Adella.
In October, 2010, Adella submitted her application for her retirement benefits, unaware whether Joe had retired, and she began receiving her one-half in January, 2011.
After Joe had filed a futile modification action, and she learned that he had begun receiving 100% of his retirement benefits for a time before she received any, Adella filed a contempt action against Joe.
Following a trial, the chancellor ruled that it was the military, and not Joe, that was required to make the payments, and, therefore, that he was not in contempt. The judge did award Adella a judgment against Joe for one-half of the retirement he had received in the interim in the amount of $46,433. Adella appealed.
On April 7, 2015, the COA affirmed in Jones v. Bryant. Judge Carlton’s for a unanimous court explained:
¶15. In the July 2, 2013 order granting Adella’s motion to dismiss [Joe’s pleading for modification], the chancellor found that “after reviewing the property settlement agreement, . . . the provisions regarding military retirement are clear and unambiguous and should not be modified.” The chancellor later entered a final judgment on August 8, 2013, further holding that “the property settlement agreement requires Adella’s portion of the retirement to be paid by the United States Marine Corps/Army National Guard and the Veterans Administration rather than by Joe,” and as a result, “Joe is not in willful and contumacious contempt of the agreement.” We find Adella presented no evidence to support her claims that Joe willfully or intentionally violated any court order. The record reflects that the plain language of the property-settlement agreement in this case provides that Adella’s portion of Joe’s military retirement pay would be paid directly to her by the Marine Corps/Army National Guard and Veterans Administration.
¶16. The Uniformed Services Former Spouses’ Protection Act (USFSPA) provides former spouses, who are awarded a portion of military retirement pay in a divorce, with “a mechanism to enforce retired pay as property award by direct payments from the member’s retired pay.” See Defense Finance and Accounting Service, Frequently Asked Questions, http://www.dfas.mil/garnishment/usfspa/faqs.html; 10 U.S.C. § 1408 (2012). [Footnote omitted] The former spouse must complete and provide the required applications, relevant court order, and supporting documentation, as required by statute and regulations, to the designated Defense Finance and Accounting Service, and the language in the property award must also comply. [Footnote omitted]
¶17. After our review of the record, we find substantial evidence exists in the record to support the chancellor’s final judgment determining Joe was not in willful and contumacious contempt of the property-settlement agreement or any other court order. Accordingly, we also find no error in the chancellor’s denial of attorney’s fees to Adella. See Henderson v. Henderson, 952 So. 2d 273, 280 (¶23) (Miss. Ct. App. 2006).
How can you avoid a similar result for your client?
- Any duty that you want to be enforceable later in favor of your client needs to spelled out. Here, it would have been simple to spell out that Joe had the duty to notify Adella in writing within a specified time of his retirement. For example, he could have been required to send her a copy of his application for benefits simultaneously with its submission to the agency.
- Whenever a contract requires third-party payments on behalf of A, specify that A will be responsible to make the agreed payments himself to B until the third party begins making them. For instance, “Joe will pay one-half of any retirement benefits received by him directly to Adella until such time as the [agency] begins withholding her 50% portion” or words to that effect.
- You might want to read that Department of Defense material and incorporate some of it verbatim in your PSA. Agencies understand their own jargon better than yours or the court’s.
- Is it in your client’s interest to spell out whether the retirement is being paid as property division on the one hand, or as alimony on the other? It might be; you need to consider it.
- Know and understand how the retirement system works. Read the interpretive material. Study the website. Draft your PSA from a position of knowledge, not guesswork.
Right to Appointed Counsel in a TPR Case
June 1, 2015 § 5 Comments
If any area of family law has undergone what could unquestionably be considered an upheaval recently, it would have to be termination of parental rights (TPR), per MCA 93-15-101, et seq.
The first shot was fired in Chism v. Bright, about which we previously posted here. Chism is the MSSC case that interpreted MCA 93-15-103 to require that the statutory prerequisites be satisfied before the chancellor may consider whether any of the grounds for termination apply in the case. It was that case that caused us to question whether TPR as a private action between individuals was now extinct.
In Pritchett v. Pritchett, decided April 7, 2015, the COA took up the issue whether an indigent parent facing TPR is entitled to appointment of counsel. Judge Roberts, applying US Supreme Court precedent, concluded that such a right does exist. His reasoning:
¶9. As was outlined above, James claimed indigency and requested an attorney be appointed on three separate occasions, and the chancery court never addressed his requests, nor did it appoint an attorney to represent him. It is well established, through the Sixth Amendment to the United States Constitution, that an indigent defendant in a criminal case has a right to the assistance of counsel, specifically when a defendant’s loss of liberty may result; however, the case before us today is a civil case.
¶10. Nonetheless, it is also well established that “a parent’s desire for and right to ‘the companionship, care, custody[,] and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’” Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). Further, “[a] parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore[,] a commanding one.” Id. In footnote three of Lassiter, the Supreme Court noted that “[s]ome parents will have an additional interest to protect. Petitions to terminate parental rights are not uncommonly based on alleged criminal activity. Parents so accused may need legal counsel to guide them in understanding the problems such petitions may create.” The Supreme Court held in Lassiter that it would not be “‘prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary’ . . . since ‘the facts and circumstances are susceptible of almost infinite variation.’” Id. at 32 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). It also stated that “[i]nformed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel[,] not only in parental termination proceedings, but also in dependency and neglect proceedings[.]” Id. at 33-34. But the Supreme Court ultimately left the decision on whether to appoint counsel to be decided on a case-by-case basis by the state. At the time of Lassiter, statutes in thirty-three states and the District of Columbia provided for the appointment of counsel in termination cases. Id. at 34.
¶11. The termination of parental rights is a serious and permanent proceeding, one which effectively ends any ties between a parent and a child. The Mississippi Legislature recognized the seriousness of such an event and recommended that alternatives to the termination of parental rights be pursued “when, in the best interest of the child, parental contacts are desirable[.]” Miss. Code Ann. § 93-15-103(4). The Mississippi Supreme Court case of K.D.G.L.B.P. v. Hinds County Department of Human Services, 771 So. 2d 907, 909 (¶8) (Miss. 2000), also involved the question of whether a natural parent should be appointed an attorney in a termination-of-parental-rights proceeding. In K.D.G.L.B.P., the chancery court thoroughly questioned the natural mother about the lack of an attorney and whether she would represent herself. Id. at (¶9). She indicated that she would represent herself, she never asked for a continuance, and she did not indicate that she was unable to afford an attorney. Id. at 909-10 (¶¶9-10). The supreme court, in analyzing Lassiter, stated:
One of the most important factors to be considered in applying the standards for court[-]appointed counsel is whether the presence of counsel would have made a determinative difference. The Lassiter decision thus states that appointment of counsel in termination proceedings, while wise, is not mandatory and therefore should be determined by state courts on a case-by-case basis.
Id. at 910 (¶12). The supreme court went on to find that “the mother was granted a fair and adequate hearing.” Id. at 911 (¶14).
She was given ample notice of the proceeding in time for her to secure suitable counsel. At trial, she never asked for a continuance or for additional time to seek substitute counsel. Instead, she signified to the court that she intended to represent herself and that she was ready to proceed. Furthermore, on the day of trial, she did not even allude to the fact that her financial condition might have precluded her from being able to retain counsel. This argument was only raised in post-trial motions. Finally, the evidence supporting the chancellor’s decision to terminate the mother’s parental rights was so overwhelming that the presence of counsel would not have changed the outcome of the trial. Although the termination of parental rights is a serious judicial proceeding, a review of the record indicates that the chancellor’s actions ensured that the mother was provided a constitutionally adequate hearing as guaranteed by the Fourteenth Amendment.
Id.
¶12. The case before us is distinguishable from K.D.G.L.B.P. in that serious due-process concerns exist in this case that were not present in K.D.G.L.B.P. James claimed indigency in three letters filed with the chancery court and requested appointment of counsel. The record does not contain a response from the chancery court. Furthermore, James requested the chancery court assist him with securing transportation to the hearing. The only action taken by the chancery court was to “continue [the] matter for [James] to arrange transportation.” Since James was an inmate in MDOC custody, it appears disingenuous to say that he could arrange his own transportation. The hearing proceeded in James’s absence.
¶13. We simply are unable to conclude, based on the scant record we have, that the presence of counsel would not have made an outcome-determinative difference. As an illustration, James’s request to be present for the hearing could have been secured by his attorney filing a writ of habeas corpus ad testificandum, which would have required James’s presence at the hearing to testify. Such a common-law writ would command the custodian, MDOC, to bring James to the chancery court to testify. Mississippi Code Annotated section 9-1-19 (Rev. 2014) and Mississippi Code Annotated section 11-43-7 (Rev. 2012) provide chancery courts the authority to grant such writs as habeas corpus. Additionally, an attorney’s presence could have aided James with presenting the complex issue of the applicability of the section 93-15-103 to the present facts.
¶14. We reverse the chancery court’s decision and remand this case for the chancery court to determine the question of indigency and the necessity of appointment of counsel under Lassiter, and for the chancery court to make appropriate arrangements for James to be present and/or participate in the proceedings.
The message here is that TPR is serious and has constitutional implications that require heightened due-process requirements. The judge should inquire searchingly on the record whether the defendant understands the nature of the action and what is at stake, and whether the defendant is honestly capable of representing his or her own interests.
Carried to its logical extreme, I wonder whether any pro se party in any case is ever truly equipped to decide whether he or she should proceed without counsel? Is any lay person competent to make that determination without advice of counsel? No matter, all that is required under Lassiter and K.D.G.L.B.P. is a waiver on the record.
Courthouses of Mississippi
May 29, 2015 § 1 Comment
Simpson – Kathy Wilkinson
Yalobusha at Water Valley – LP
Hinds Chancery at Jackson – LP
Lamar – Kathy Wilkinson
Smith Chancery – LP
Greene – Kathy Wilkinson
Jackson – Kathy Wilkinson
Pearl River – Barbie Parham
Neshoba – LP
Status of the Courthouses Project
May 28, 2015 § 5 Comments
We are moving along in our quest to publish photos of all the courthouses and chancery buildings in the State of Mississippi. So far we’ve published 48 courthouses and a few separate chancery buildings. That means we’re about half-way to being done.
Here are the courthouses that have not yet been published, and for which I do not have a photo in stock:
NOTE: Updated through June 12, 2015 …
Bolivar at Rosedale, Clay, Copiah, Franklin, Jefferson, Lawrence, Lee, Lincoln, Marshall, Oktibbeha, Panola at Sardis, Pike, Pontotoc, Prentiss, Sharkey, Tate, Tishomingo, Walthall, Warren, Washington, Wilkinson, Yazoo.
You can add to the collection next time you’re around your friendly, neighborhood courthouse. Simply snap a photo with your smart phone and email it to me. The instructions are at this link.
Reprise: Avoiding an Expensive Error
May 27, 2015 § Leave a comment
Reprise replays posts from the past that you may find useful today.
AVOIDING AN EXPENSIVE ERROR
October 12, 2010 § Leave a comment
Imagine having this nightmare:
You represent the husband. He has $376,000 in his securities account. You negotiate a property settlement agreement by which the wife will receive $203,200 from the account, and he will own the remaining $172,800. Couldn’t be plainer or more clear-cut. A few months drag by before you finally get the QDRO drafted and approved by the court. You ship it off to the plan manager, who calls you and tells you that the account is now only worth $204,000, and what exactly is it that you would like her to do. At this point in the nightmare, you wake up in a cold sweat.
Unfortunately for the parties in In re Dissolution of Marriage of Wood, 35 So.3d 507 (Miss. 2010), the nightmare was all too real. The facts set out above are the facts in their case. The former Mrs. Wood sued to collect her entire amount due under the agreement, and Mr. Wood took the position that sticking with the numbers in the property settlement agreement was an impossibility, and to grant Mrs. Wood her relief would produce an unfair and inequitable result.
Chancellor Dorothy Colomb ruled that the parties had actually negotiated an agreement whereby Mrs. Wood would receive 54% of the account balance at the time of the divorce, and Mr. Wood would receive 46%.
In affirming the chancellor, the Supreme Court addressed valuation dates, impossibility of performance and canons of construction. You can read the decision to get an appreciation for the complexity of legal issues that the draftsmanship created in this case.
The cardinal point for practitioners, however, is best summed up in the court’s own language at page 515:
“As this case illustrates, incorporating an estimate of an asset’s value into a property settlement agreement can cause problems when the parties later try to divide the asset, and the estimate turns out to be incorrect or inaccurate. Therefore, we make the following recommendations for the benefit of the bar. Where the value of an asset must be estimated because of the inherently indefinite or fluctuating nature of the asset itself, we recommend the use of percentages when setting forth the asset’s intended distribution in a property settlement agreement. Where the value of an asset remains sufficiently concrete or static, however, we recommend the use of specific dollar amounts.”
Mrs. Wood expected to get $203,000, and that’s what she negotiated for. Instead, she got $110,160, or $93,000 less than what she expected. The lesson is to think about what you’re doing and what could or might go wrong, and how you can guard against it.
The MRCP 60(b) Appeal
May 26, 2015 § Leave a comment
The COA’s decision in Crossley, et al. v. Moore, et al., decided April 21, 2015, addresses an important distinction between an appeal on the merits and what is reviewable in an appeal from a court’s MRCP 60(b) ruling.
In that case, the chancellor had stricken Crossley’s (the collective name for the defendants that this post will apply) answer and counterclaim due to a prolonged and obstinate refusal to cooperate and obey court orders for discovery. The judge entered a default judgment against the defendants, and set a hearing on damages. At that hearing, he heard testimony and entered a judgment against the defendants for more than $760,000 in damages, which included $26,000 in attorney’s fees. Crossley did not appeal.
Five months after entry of the judgment, Crossley filed a motion pursuant to MRCP 60(b) to set aside the judgments, claiming (1) that they never received notice of the hearing on sanctions for discovery violations, and (2) that they never received notice of hearing on the damages issue. At hearing, however, the defendants admitted that they did receive notice of the sanctions hearing, but insisted that they had not as to the damages hearing. The chancellor overruled the motion as to the sanctions hearing, leaving the default judgment intact, but granted a rehearing on the issue of damages.
Crossley appealed, arguing that the trial judge was in error in dismissing their answer and counterclaim based on sanctions.
The COA affirmed. Judge Maxwell wrote for the majority:
¶13. We begin with the discovery sanction. And the first order of business is to determine just exactly what Crossley and Templet are appealing. From their brief, they seem to argue they are appealing the merits of the August 2009 decision to strike their answer. But that decision led to a default judgment—a judgment that became final in March 2010. And this final judgment was not appealed. Nor was this judgment set aside. While the chancellor did order a new hearing on damages, Crossley and Templet acknowledge in their brief that the chancellor “refused to set aside the judgment itself.”
¶14. With the underlying default judgment left undisturbed, what Crossley and Templet are in fact appealing is the denial of their Rule 60(b) motion to set aside. See Blackmon v. W.S. Badcock Corp., Inc., 342 So. 2d 367, 371 (Ala. Civ. App. 1977) (holding that a Rule 60(b) ruling to vacate a damages award and conduct a new hearing did not confer on the movant the right to address the merits of the underlying default judgment). As we recently reiterated, this court’s “review of the denial of a Rule 60(b) motion is extremely limited.” Davis v. Vance, 138 So. 3d 961, 963 (¶1) (Miss. Ct. App. 2014). We are “not allowed to inquire into the actual merits of the underlying judgment.” Id. This is because Rule 60(b) is not a vehicle to relitigate the merits of a trial judge’s decision. Woods v. Victory Mktg., LLC, 111 So. 3d 1234, 1237 (¶13) (Miss. Ct. App. 2013). So even if the chancellor had done something that may have been reversible error had Crossley and Templet timely appealed, the fact remains that they did not appeal. And Rule 60(b) cannot be used to get around this. See Williams v. New Orleans Pub. Serv., Inc., 728 F.2d 730, 736 (5th Cir. 1984).
¶15. This court reviews the denial of their Rule 60(b) motion for abuse of discretion. Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984).
That’s a critical point to grasp. You can not use R60(b) as a vehicle to open the merits of the underlying judgment to appellate review. Once the deadline for appeal has past, the judgment itself is final and not reviewable on the merits. The only issue on appeal is whether the trial judge abused his or her discretion in ruling on the R60(b) motion. In this particular case, the COA ruled that the chancellor had not abused his discretion.
Another take-away from this case is that continued obstinate evasion of discovery and failure to abide by court orders for discovery have painful consequences that can radically alter the landscape of a lawsuit.
Courthouses of Mississippi
May 22, 2015 § 1 Comment
Calhoun – LP
Harrison at Biloxi – Kathy Wilkinson
Choctaw – LP
Choctaw detail – LP
Rankin Chancery – LP
Rankin – LP
Jasper at Bay Springs – LP
Tallahatchie at Charleston – LP
Lafayette Chancery – LP
Webster two years after the fire – LP
Moving Beyond Thought
May 21, 2015 § 6 Comments
The law is a rational convention. No wonder, then, that it attracts thinkers — those among us who rely on thought and logic as our primary means of understanding and relating to the world in which we live.
In law school, we are taught to use thought and logic in our approach to the law.
But, it seems to me, thought and logic are only two of many approaches to grasping reality — approaches, not reality itself — and because reality has so many variables and is so complex, limiting ourselves to those approaches alone may not produce a complete comprehension of the truth. And isn’t grasping the truth what the law should be about?
When I ran across some passages from Eckhart Tolle’s Stillness Speaks, I found them enlightening and helpful in understanding the distinction between what we think we know, and what is real. I hope you find these passages of some use:
Most people spend their entire life imprisoned within the confines of their own thoughts. They never go beyond a narrow, mind-made, personalized sense of self that is conditioned by the past.
In you, as in each human being, there is a dimension of consciousness far deeper than thought. It is the very essence of who you are. We may call it presence, awareness, the unconditioned consciousness. In the ancient teachings, it is the Christ within, or your Buddha nature.
Finding that dimension frees you and the world from the suffering you inflict on yourself and others when the mind-made “little me” is all you know and runs your life. Love, joy, creative expansion, and lasting inner peace cannot come into your life except through that unconditioned dimension of consciousness.
If you can recognize, even occasionally, the thoughts that go through your mind as simply thoughts, if you can witness your own mental-emotional reactive patterns as they happen, then that dimension is already emerging in you as the awareness in which thoughts and emotions happen – the timeless inner space in which the content of your life unfolds.
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The stream of thinking has enormous momentum that can easily drag you along with it. Every thought pretends that it matters so much. It wants to draw your attention in completely.
Here is a new spiritual practice for you: don’t take your thoughts too seriously.
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How easy it is for people to become trapped in their conceptual prisons.
The human mind, in its desire to know, understand, and control, mistakes its opinions and viewpoints for the truth. It says: This is how it is. You have to be larger than thought to realize that however you interpret “your life” or someone else’s life or behavior, however you judge any situation, it is no more than a viewpoint, one of many possible perspectives. It is no more than a bundle of thoughts. But reality is one unified whole, in which all things are interwoven, where nothing exists in and by itself. Thinking fragments reality – it cuts it up into conceptual bits and pieces.
The thinking mind is a useful and powerful tool, but it is also very limiting when it takes over your life completely, when you don’t realize that it is only a small aspect of the consciousness that you are.
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Wisdom is not a product of thought. The deep knowing that is wisdom arises through the simple act of giving someone or something your full attention. Attention is primordial intelligence, consciousness itself. It dissolves the barriers created by conceptual thought, and with this comes the recognition that nothing exists in and by itself. It joins the perceiver and the perceived in a unifying field of awareness. It is the healer of separation.
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When you no longer believe everything you think, you step out of thought and see clearly that the thinker is not who you are.
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Prejudice of any kind implies that you are identified with the thinking mind. It means that you don’t see the other human being anymore, but only your concept of that human being. To reduce the aliveness of that other human being to a concept is already a form of violence.
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Become at ease with “not knowing.” This takes you beyond the mind because the mind is always trying to conclude and interpret. It is afraid of not knowing. So, when you can be at ease with not knowing, you have already gone beyond the mind. A deeper knowing that is nonconceptual then arises out of that state.
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In don’t know about you, but I find it liberating to understand that the rational approach that is so necessary to the law is not the only way to interact with the world. Indeed, it is not — and should not be — the only way to interact with the law. There are deeper ways of understanding, if we will only use them.
And I know that some pan Tolle for his eclecticism. I agree that he’s no Nietzsche, but we shouldn’t snub a valuable message because the messenger isn’t sophisticated enough.
I found these passages in the May issue of The Sun Magazine, which I commend to any of you who are seeking a deeper understanding of human nature, and not merely confirmation of your existing notions.
Some Useful Information on Civil Contempt
May 20, 2015 § Leave a comment
From Newell v. Hinton, 556 So.2d 1037, 1044 (Miss. 1990):
If the purpose of the proceedings is to coerce action or non-action by a party, the order of contempt is characterized as civil. This type contempt proceeding is ordinarily instituted by one of the parties to the litigation who seeks to coerce another party to perform or cease performing an act. The order of contempt is entered by the court for the private benefit of the offended party. Such orders, although imposing a jail sentence, classically provide for termination of the contemnor’s sentence upon purging himself of the contempt. The sentence is usually indefinite and not for fixed term. Consequently, it is said that the contemnor ‘carries the key to his cell in his own pocket.’ [citations omitted]
Jones v. Hargrove, 516 So.2d 1354, 1357 (Miss.1987). See also, Hinds County Bd. of Supervisors v. Common Cause, 551 So.2d 107, 120-21 (Miss.1989); Smith [v. Smith], 545 So.2d at 727 [(Miss. 1989)].
Even when there has been established a prima facie case of contempt, the defendant may avoid judgment of contempt by establishing that he is without present ability to discharge his obligation. Smith, supra at 727; see also, Prestwood v. Hambrick, 308 So.2d 82, 85 (Miss.1975). If the contemnor raises this as a defense, he has the burden of proving his inability to pay, and such showing must be made with particularity and not in general terms. Clements v. Young, 481 So.2d 263, 271 (Miss.1985) cited in Jones, 516 So.2d at 1357.
There are other defenses as well. For example, the defendant may show that he was not guilty of wilful or deliberate violation of the prior judgment or a decree. Dunaway v. Busbin, 498 So.2d 1218, 1222 (Miss.1986) (emphasis added); Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967). The burden of the defendant in raising this defense, however, is not nearly as great as the defendant who claims he is without ability to pay. Consequently, it is appropriate that this defense be viewed against the “extremely lenient view this Court and the courts of this state have taken of contempt proceedings in general.” Smith, 545 So.2d at 727. Furthermore, a contemnor also has available to him the traditional notion of “clean hands” as a defense. Vockroth v. Vockroth, 200 So.2d 459, 463 (Miss.1967) cited in Smith, supra. Vagueness or the lack of specificity of the decree gives the contemnor another avenue for defense as well. Id.
Even if the defendant cannot successfully raise a defense, the court’s power to commit a person to jail until he complies with the terms of a decree depends upon his present ability to pay. Wilborn v. Wilborn, 258 So.2d 804, 805 (Miss.1972) quoted in Jones, 516 So.2d at 1357. If the person has already been committed to jail, he is entitled to be discharged on proof of inability to pay. Id. at 1358. This contrasts with criminal contempt in that the purpose of incarceration is punitive and the contemnor is jailed regardless of an offer of payment or a present inability to make payment. Id.; see also 27C C.J.S. Divorce § 715 (1986).
In the case sub judice, although the chancellor may have been correct in granting summary judgment on the issue of contempt, he should have given Newell a meaningful opportunity to present her defense as to payment of the attorneys’ fees. There should have been a careful examination of her present ability to pay. It does not matter that the chancellor suspended his order of incarceration for sixty days giving Newell the time to satisfy the judgment. If she had failed to pay the amount within this time period, according to the chancellor, she would go to jail. And, she would remain in jail until she purged herself of the contempt. This was wrong.
This Court is fully aware of the constitutional problems implicated in the chancellor’s ruling. If for some reason Newell is unable to come up with the amount owed during her life time would that also mean imprisonment for life? This may well be the case. Ex Parte Raymer, 644 S.W.2d 889, 890 (Tex.App.1982); Jones, 516 So.2d at 1358.
In the case of Brown v. Brown, (1933), 205 Ind. 664, 187 N.E. 836 [the Supreme Court of Indiana] stated that when one has been imprisoned for failure to comply with an order … and where [the] defendant is able to show that he has not the actual ability to pay for any one of a number of valid reasons, then [the] defendant is entitled to be discharged. The Court went on to hold that a defendant cannot be imprisoned indefinitely because of failure to pay support money where it is shown that he does not have an ability to make such payments and cites such a practice as being unconstitutional on the grounds of cruel and unusual punishment.
Smith v. Indiana State Board of Health, 158 Ind.App. 445, 303 N.E.2d 50, 60 (1973) quoted in Jones, 516 So.2d at 1358. “The result of [Newell’s] inability to pay may well be an unfortunate one, and this Court appreciates the frustration possibly experienced by the trial judge, but the fact remains that one cannot be imprisoned where the failure to pay is due to an inability to comply.” Jones, 516 So.2d at 1358; see also, Murphy v. Murphy, 447 So.2d 798, 800 (Ala.Civ.App.1984).
Therefore, we must remand this case so that the chancellor can determine if Newell has the ability to reimburse Hinton as well as pay his attorneys fees in defending this case.
