E-Filed Document Oct :50: CA Pages: 16 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI

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1 E-Filed Document Oct :50: CA Pages: 16 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI PATRICK W. DECKARD VS. LESA M. DECKARD APPELLANT CAUSE NO CA APPELLEE BRIEF OF APPELLEE FROM THE CHANCERY COURT OF WARREN COUNTY CIVIL ACTION NO GN David M. Sessums, MSB #6714 ATTORNEYS FOR Lesa M. Deckard, APPELLEE VARNER, PARKER & SESSUMS 1110 Jackson St. Vicksburg, MS Ph: (601)

2 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI PATRICK W. DECKARD VS. LESA M. DECKARD APPELLANT CAUSE NO CA APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following have an interest in this action. These representations are made so that the Justices of this Court may evaluate possible disqualification or recusal: 1. Honorable Vicki Roach Barnes Chancery Court Judge Warren County Chancery Court P. O. Box 351 Vicksburg, MS Michael R. Bonner, Esquire Attorney for Appellant 914 Grove Street Vicksburg, MS David M. Sessums, Esquire Attorney for Appellee 1110 Jackson Street Vicksburg, MS Patrick W. Deckard, Appellant 330 Rooster Ridge Road Vicksburg, MS Lesa M. Deckard, Appellee 2010 Highpoint Drive, Apt. 336 Brandon, MS i

3 Respectfully submitted, By: /s/ David M. Sessums DAVID M. SESSUMS MSB #6714 OF COUNSEL: DAVID M. SESSUMS, MSBN 6714 Varner, Parker & Sessums, P.A. Post Office Box Jackson Street Vicksburg, Mississippi Telephone: 601/ Facsimile: 601/ ii

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES TABLE OF CONTENTS TABLE OF AUTHORITIES i iii iv SUMMARY OF THE ARGUMENT ARGUMENT CASES CITED BY APPELLANT UNJUST ENRICHMENT EXTRA JUDICIAL AGREEMENTS ATTORNEY FEES SUMMARY CERTIFICATE OF SERVICE iii

5 TABLE OF AUTHORITIES 1. Brewer v. Holliday, 135 So. 3d 117 (Miss. 2014) 2. Davis v. Paepke, 3 So. 3d 131 (Miss. App. 2009) 3. Harrell v. Duncan, 593 So. 2d 1 (Miss. 1991) 4. holliday v. Stockman, 969 So. 2d 136 (Miss. Ct. App. 2007) 5. Manning v. Tanner, 594 So. 2d 1164 (Miss. 1992) 6. Roberts v. Roberts, 110 So. 3d 820 (Miss. 2013) 7. Rogers v. Rogers, 662 So. 2d 1111 (Miss. 1995) 8. Smith v. Smith, 20 So. 3d 670 (Miss. 2009) 9. Threft v. Threft, 760 So. 2d 732 (Miss. 2000) 10. Whiting v. University of Southern Mississippi, 62 So. 3d 907 (Miss. 2011) 11. Wiles v. Williams, 845 So. 2d 709 (Miss. App. 2003) 12. Williams v. Rembert, 654 So. 2d 26 (Miss. 1995) 13. Varner v. Varner, 588 So. 2d 428 (Miss. 1991). iv

6 SUMMARY OF THE ARGUMENT Before Patrick Deckard can claim unjust enrichment he must first have provided satisfactory proof, by clear and convincing evidence, that he actually paid something to someone. Beyond the credits given him for actual payment the record is entirely devoid of any payments made by Patrick Deckard which would support a claim of unjust enrichment. The extra judicial agreements alleged by Patrick Deckard, being unsupported by any payment or forbearance by Patrick Deckard, fail for lack of consideration. Patrick Deckard was correctly found to be in contempt and under settled law was properly assessed with attorneys fees in the trial court and should be further assessed with attorneys fees before this Court. ARGUMENT CASES CITED BY APPELLANT Appellant completely misses the point and does not support his position and argument as demonstrated below. Harrell v. Duncan, 593 So. 2d 1 (Miss. 1991) cited by Appellant was strictly an action between a former husband and wife and did not involve the issue of third party unjust enrichment. In Harrell William Duncan simply asked for credits for payments made directly by him to Marsha Harrell, his former wife. Appellant s citation of Harrell v. Duncan, supra, stands only for the proposition that child support is awarded for the use and benefit of the 1

7 child and belongs to the child but otherwise has nothing to do with the facts and law of the instant matter. Manning v. Tanner, 594 So. 2d 1164 (Miss. 1992) cited by Appellant, involved a matter where the facts showed that Ervin Bryant Tanner had never resided with his mother, notwithstanding entry of a court s order so providing. Based upon the facts of that case the court found that neither the mother nor anyone else had ever had custody of Ervin Tanner Bryant to the exclusion of the father. On that basis the Court found that the mother had been unjustly enriched by overpayments made by the father. The court there held that because the child continued to live with his father that the father was entitled to credit in order to prevent an unjust enrichment to the mother with whom the child had never lived. The facts in the present matter show that Taylor, the child in question, did not live with Patrick Deckard. This being the case Patrick Deckard can claim no credit as he did not feed, cloth or take care of Taylor. Patrick Deckard can not claim a setoff or credit for child support or maintenance he did not render. Appellant also cites Williams v. Rembert, 654 So. 2d 26 (Miss. 1995). This case too involved a direct unjust enrichment action between two (2) parents. In Williams, Ursula left the mother s household on February 19, 1989, at which time the father reduced his child support payments with out court modification. The Williams v. Rembert Court stated: Here, in contrast, there is no information demonstrating that Julius was paying child support to Ursula for the period from 1989 when she allegedly left Shirley s household, to 1992 when Shirley filed her motion for contempt. 654 So. 2d at Page 30 2

8 The Williams Court further held: This Court has held that a parent s receipt of child support where the child is self-sufficient was unjust enrichment 654 So. 2d a Page 30 In this case Patrick Deckard has made no direct payments to Taylor nor has he shown that he made any payments to Taylor s grandparents or to anyone else. Wiles v. Williams, 845 So. 2d 709 (Miss. App. 2003) cited by Appellant involved a case where the lower court held that a former husband was not entitled to retroactive modification of child support or of child support arrearage based on the emancipation of his daughter and, further, that the husband was not entitled to credit for moneys he paid directly to his son or daughter or for the benefit of the children. On appeal the decision of the lower court was affirmed. The Wiles facts showed Robert and Deonne were divorced in April 1998 and were the parents of two (2) children, Amanda, born July 12, 1979, and BJ, born July 8, The facts further demonstrated that Amanda was married January 2, 1996, and tha BJ became emancipated July 8, The decree under which support was paid did not provide for support, per month per child, but instead provided for a lump sum payment each month for both children. The same is true in the present case. In affirming on appeal the Wiles court held: When a parent is ordered to pay a specified amount periodically for the benefit of more than one child, the emancipation of one child does not automatically reduce the ability of the parent for the full amount. 845 So. 2d at Page 711 3

9 UNJUST ENRICHMENT The Chancellor in her lengthy and well reasoned Memorandum Opinion and Final Judgment of March 6, 2014, took specific note of Lesa Deckard s claim that Patrick Deckard was behind in child support in the sum of $123, when the complaint was filed on August 21, 2013, also noting the allegation that Patrick Deckard had not paid his one-half of the children s medical bills. The Court noted Lesa Deckard s testimony that in 2005, Patrick told her that $ a month was all he could pay. When Lesa was faced with such a fait accompli Taylor moved in with Patrick s parents. After noting the testimony of the parties the Court then turned its attention to the case of Smith v. Smith, 20 So. 3d 670 (Miss. 2009) which case, citing long established Mississippi law, held that court awarded child support to the custodial parent is for the benefit of the minor children and that once child support payments accrue they become vested and may not thereafter be modified or forgiven. The Chancellor further noted that under Mississippi law equity may at times approve, ex post facto, extra-judicial adjustments relating to particular fact situations where child support payments have actually been made and where a non-custodial parent may be entitled to credits which have been demonstrated by satisfactory proof to the trial court. (Memorandum Opinion and Final Judgment, Pg. 11) The Chancellor also took note of Holliday v. Stockman, 969 So. 2d 136 (Miss. Ct. 4

10 App. 2007) and took into consideration the principles of unjust enrichment as articulated both in the Stockman opinion itself and the cases cited therein. Listening carefully to the facts of the present matter the Chancellor as fact finder went on to correctly apply existing Mississippi law regarding unjust enrichment and alleged extrajudicial agreements by succinctly noting and finding: The Court finds that Mr. Deckard did not present any evidence that he provided support to his parents for Taylor. (Memorandum Opinion and Final Judgment, Pg 22) The Court went on to further specifically find and hold: The Court finds that there was no other documented evidence presented which allows Mr. Deckard to receive a credit for any other child support payments, other than is noted below. The Court is unable to give Mr. Deckard credit for undocumented child support payments. (Memorandum Opinion and Final Judgment, Pg. 23) At trial Lesa Deckard, through counsel, freely conceded and asked the Court to give Patrick Deckard credit for any payments he could document, including questionable ones that were not actually and sufficiently documented. Patrick argues, incorrectly, that Lesa was unjustly enriched basing his argument on payments that he did not make. For someone to be unjustly enriched someone must pay something or someone must receive something. Patrick has paid nothing. The Chancellor found as fact that he presented no proof of payment over that for which he received credit. Lesa s burden at trial was to show what Patrick did not pay as ordered by the Court and once she had made out her prima facia case the burden then shifted to Patrick to show 5

11 what he had actually paid. The Chancellor at page 22 of her Opinion found that Deckard did not present any evidence that he had provided support for Taylor to his parents. At Page 23 the Chancellor found that Patrick had presented no documented evidence which would allow him to receive credit for alleged child support payments made by him. Possibly Patrick s parents might have a potential claim for unjust enrichment for what measure of support, if any, they may or may not have provided to Taylor. Those grandparents would first have to assert such a claim, which to date they have not. Once such claim, if any, was asserted they would only be able to recoup from Lesa that amount which she had collected from Patrick who to date is in arrears in a rather significant amount of money. While the instant matter does not involve emancipation, the principle remains the same. If Patrick felt that Lesa was not providing support to Taylor his remedy was to go back to court and seek a court ordered reduction in his payment of child support which he admittedly did not do. Wiles, supra does not involve a factual situation where support was allegedly being provided by a third parties such as grandparents. Roberts v. Roberts, 110 So. 3d 820 (Miss. 2013) cited by Appellant is a case where the mother brought contempt actions against the father. The chancellor s finding was found not to constitute an abuse of discretion where the evidence showed that the mother agreed to take one-half (½) of the child support contemplated by the child custody agreement and 6

12 the facts showed the parties minor son moved in with the father. What the Court in Roberts v. Roberts, did say was: In a contempt action concerning past-due child support, when the custodial parent introduces into evidence that the non-custodial parent who is required to pay the support has failed to do so, a prima facia case of contempt has been made... the burden then shifts to the defending party, who may avoid being found in contempt by demonstrating by clear and convincing evidence that there was payment or some other defense. 110 So. 3d at 826 The Roberts Court also stated: Stephanie proved that Scott was required to pay child support and that he had failed to do so. Accordingly, Scott bore the burden of proving, by clear and convincing evidence that he was not in contempt. 110 So. 3d at Page 826 In the present case Patrick Deckard has not shown, by clear and convincing evidence or any other standard, that he paid support for Taylor or anyone else and the Chancellor correctly so found. It is beyond argument he did not pay it to Lesa Deckard and he has produced no evidence to any payments to his parents. Instead he claims credit for alleged sums that he himself has not paid. * * * Finally Appellant s citation of Brewer v. Holliday, 135 So. 3d 117 (Miss. 2014) was also a direct action between a former husband and wife and did not involve any attempt to claim credit for payments allegedly made by or to third parties. However, the court in Brewer v. Holliday, supra, did reaffirm the rule that: The general rule is that court-ordered support obligations may not be modified extra-judicially, but proposed modifications must be submitted for court approval. 7

13 * * * A party, such as Brewer, who extra-judicially modifies or eliminates child support payments acts at his peril. Rogers v. Rogers, 662 So. 2d 1111 (Miss. 1995) (Quoting: Varner v. Varner, 588 So. 2d 428 (Miss. 1991). [Courtordered child support payments vest in the child as the accrue and may not thereafter be modified or forgiven, only paid. Varner, 588 So. 2d at 434. A court can not relieve the civil liability for support payments that have already accrued. Threft v. Threft, 760 So. 2d 732 (Miss. 2000) EXTRA JUDICIAL AGREEMENTS The underlying reason for the above distinguishment of the cases cited by Patrick becomes obvious when one recalls that all agreements (ie: contracts) to be valid must be supported by consideration. Whiting v. University of Southern Mississippi, 62 So. 3d 907 (Miss. 2011) (contract not formed absent essential elements of offer, acceptance and consideration), Davis v. Paepke, 3 So. 3d 131 (Miss. App. 2009) (one of the six (6) elements of a valid contract is consideration.) Turning to Appellant s argument to support his claim of a valid extra judicial contract or agreement, what consideration did Patrick Deckard give for his end of the alleged agreement(s)? Patrick was under obligation, both moral and court ordered, to support Taylor. He was to tender payment of this obligation to Lesa. He came to Lesa stating that he was only going to pay $ and faced with this fait accompli Taylor went to live with his grandparents. Patrick however was still under a legal obligation ordered by the Court to tender payment of his obligation to Lesa. Had he done so perhaps Taylor would not have had 8

14 to live with his grandparents or Lesa could have in turn paid the grandparents. By forcing this alleged agreement on Lesa and foisting his parental and court mandated obligations off on Taylor s grandparents, what consideration did Patrick give or forgo? The obvious answer is none and this is why the cases cited by Patrick are not applicable to the facts of this case. Each of the cases cited by Patrick involved a non-custodial parent giving consideration in the form of taking on a financial responsibility not ordered by a court. In each of the cases cited by Patrick equity gave the non-custodial parent relief from having to pay twice. Patrick Deckard has never even paid once for the credit he claims, either by supporting Taylor himself or paying child support to either Lesa or Taylor s grandparents. Patrick is not equitably able to claim any benefit of any alleged extra judicial agreements as he has given no consideration for same. Patrick produced no evidence of his alleged extra judicial agreements and certainly did not do so to the satisfaction of the Chancellor who sat as the trier of fact. ATTORNEYS FEES Roberts v. Roberts, supra, also stands for the rule that when a party is held in contempt for a violating a valid judgment of the court, attorneys fees should be awarded to the party that has been forced to seek the court s enforcement of its judgment and that when a party has been held in contempt attorneys fees may be properly assessed against the offending party without regard to the recipient s inability to pay. 110 So. 3d at Page 828 9

15 It is further the rule that, this court has generally awarded attorneys fees on appeal in the amount of one-half of what was awarded in the trial court. Roberts v. Roberts, 110 So. 3d at Page 828. SUMMARY When the Complaint against him was filed Patrick Deckard knew all of the alleged facts he now argues to this Court. He knew of the amount and terms of the Court ordered support for all of his children, including Taylor. He knew the amount of the arrearage alleged by Lesa. He had personal knowledge of what amounts he had paid and not paid. He had personal knowledge of Taylor s residency from the time of the divorce onward. Despite all this knowledge Patrick did not call Taylor s grandparents, Patrick s own parents, to come forth and testify at trial to substantiate any alleged support of Taylor. The proof before the Chancellor and the record before this Court is devoid of any factual evidence to support Deckard s claim and the Chancellor so found and specifically held as the trier of fact. Under the facts and law the Chancellor could do nothing else. In the end what the Chancellor found was that Patrick Deckard had provided no evidence to support his claim (ie: he failed to meet his burden) and she then applied well settled law to the facts before her then and now before this Court. th Respectfully submitted this the 20 day of October, BY: LESA DECKARD /s/ David M. Sessums DAVID M. SESSUMS 10

16 OF COUNSEL: VARNER, PARKER & SESSUMS, P.A Jackson Street Vicksburg, MS Telephone: Facsimile: CERTIFICATE OF SERVICE I, DAVID M. SESSUMS, do hereby certify that I have this date mailed via United States Mail, postage prepaid, MEC Electronic Mailing and/or hand delivered a true and correct copy of the above and foregoing document to the following counsel: Honorable Vicki Roach Barnes Chancery Court Judge Warren County Chancery Court P. O. Box 351 Vicksburg, MS Michael R. Bonner, Esquire Attorney for Appellant 914 Grove Street Vicksburg, MS th THIS the 20 day of October, /s/ David M. Sessums DAVID M. SESSUMS 11