E-Filed Document May 12 2014 14:25:52 2013-CA-01006 Pages: 18 2013-CA-01006 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI No.: 2013-CA-01006 C.H. MILES APPELLANT V. BRENDA C. MILES APPELLEE APPELLEE S PRINCIPAL BRIEF (ORAL ARGUMENT NOT REQUESTED) APPEAL FROM THE CHANCERY COURT FOR THE SIXTH JUDICIAL DISTRICT OF WINSTON COUNTY, MISSISSIPPI CALEB E. MAY (MSB#102593) Caleb E. May, Attorney At Law PLLC 422 Center Avenue P.O. Box 388 Philadelphia, Mississippi 39350 (601) 656-4830 calebemay@gmail.com Counsel for Appellee
V. C.H. MILES IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI No.: 2013-CA-01006 BRENDA C. MILES CERTIFICATE OF INTERESTED PARTIES APPELLANT APPELLEE The undersigned counsel of record to the Appellees certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order for the Justices of the Supreme Court and/or the Judges of the Court of Appeals to evaluate possible disqualification or recusal. 1. The Appellee, Brenda C. Miles. 2. The Appellant, C.H. Carlos Miles, deceased. 3. Appellant s trial counsel, Taylor Tucker. 4. Appellee s trial counsel, J. Max Kilpatrick 5. Appellee s appellate counsel, Caleb E. May. 6. Appellant s appellate counsel, Jefferey J. Hosford. 7. Honorable Joseph D. Kilgore, Chancery Judge of the Sixth Judicial District. This the 12th day of May 2014. RESPECTFULLY SUBMITTED, CALEB E. MAY (MSB#102593) Caleb E. May, Attorney At Law PLLC 422 Center Avenue P.O. Box 388 Philadelphia, Mississippi 39350 (601) 656-4830 calebemay@gmail.com s/caleb E. May BY: CALEB E. MAY Attorney for the Appellee i.
TABLE OF CONTENTS CERTIFICATE OF INTEREST PARTIES TABLE OF CONTENTS TABLE OF AUTHORITIES... STATEMENT OF THE ISSUES STATEMENT OF THE CASE. I. Course of Proceedings. II. III. IV. Evidence.. Argument A. WHETHER THE CHANCELLOR ERRED BY FINDING CONTEMPT AND AWARDING ATTORNEY S FEES?.. 1. Standard of Review. 2. Impossibility... 3. Statute of Limitations. Conclusion. CERTIFICATE OF SERVICE i ii iii 1 1 1 2 5 5 5 6 11 11 13 ii.
TABLE OF AUTHORITIES CASES: Carite v. Carite, 841 Miss. 1148 (Miss. App. 2002).. 9, 11 Dorr v. Dorr, 797 So. 2d 1008 (Miss. App. 2001)..6, 7, 10 Johnson v. Black, 469 So. 2d 88 (Miss.1985)..... 5, 6 McIntosh v. Dept. of Human Services, 886 So. 721 (Miss. 2004)....6, 7 Nichols v. Funderburk, 883 So. 2d 554 (Miss. 2004)..5 iii.
V. C.H. MILES IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI No.: 2013-CA-01006 BRENDA C. MILES STATEMENT OF THE ISSUES This contempt case involves the following issue on appeal: APPELLANT APPELLEE 1. Whether the Chancellor erred by finding the husband in contempt and awarding attorney s fees? I. Course of the Proceedings STATEMENT OF THE CASE On June 12, 2013, the Appellant, C.H. Miles, hereinafter Carlos, noticed his appeal of the Judgment of Contempt issued by the Chancery Court of Winston County, Mississippi. The Judgment was issued on May 17, 2013, by Chancellor Joseph Kilgore. The Chancellor held in favor of the Appellee, Brenda C. Miles, hereinafter Brenda, and found that Carlos had violated the terms of the Property Settlement Agreement executed by the parties and incorporated into their Final Judgment of Divorce entered on February 15, 2000 by the Chancery Court of Winston County, Mississippi. (R. E. 1-16) Brenda filed a Motion For Contempt on October 16, 2012 citing violation of Paragraph IX of the Property Settlement Agreement. Paragraph IX states: Husband shall place Wife s name on his Individual Retirement Account (IRA) Certificate of Deposit at Bank of Mississippi, as a joint tenant with full rights of survivorship. The Motion for Contempt further cited that: The Respondent (Carlos) has willfully, contemptuously, and intentionally refused (sic) to place her name on the IRA account. 1
Further, Movant (Brenda) would show that the IRA account at Bank of Mississippi has been closed. Brenda sought repayment of one half of $57,859.44, which represented the amount within the subject IRA account before Carlos withdrew all the funds and closed the account. (R.E. 32-35) Chancellor Joseph Kilgore held a trial on the Motion for Contempt on May 1, 2013, issued his bench opinion and findings on that day, and entered a Judgment of Contempt on May 17, 2013. In the Judgment the Chancellor ruled, for the reasons stated within his Bench Opinion, that Carlos s Affirmative Defenses were denied, that Carlos was in civil contempt of Court for failure to place the name of Brenda on his IRA Certificate of Deposit as a joint tenant with full rights of survivorship as required by the Judgment of Divorces and Property Settlement Agreement, that Carlos was to pay Brenda $26,086.53, and that Brenda was awarded $1,000.00 in attorneys fees plus all costs of Court to be paid by Carlos within sixty days of the Judgment. (T. 55-68 and R.E. 2-3, 18-31) II. Evidence Within the February 2000 Property Settlement Agreement executed by the parties, the following paragraphs are applicable to the case at hand: Paragraph IX states: Husband shall place Wife s name on his Individual Retirement Account (IRA) Certificate of Deposit at Bank of Mississippi, as a joint tenant with full rights of survivorship. (R.E. 12) Paragraph XIV states: 2
Husband and Wife shall execute any deeds, bills of sale, titles or other documents necessary to accomplish the intent of the parties and carry out the terms of this Agreement. (R. E. 13-14) Paragraph XVI states: Each party acknowledges that he or she is financially capable of performing the obligations set forth in this agreement. (R.E. 14) Paragraph XVII states: This written document constitutes the entire agreement between the parties. Each party acknowledges and fully understands that no oral representations made by either party will be considered binding on either party and that this agreement may be changed or modified only by written agreement of the parties or by an Order from any Court having jurisdiction over this matter. The terms of this Agreement may be incorporated in a Final Judgment of Divorce entered by the Chancery Court of Winston County, Mississippi. (R.E. 14-15) Only Carlos and Brenda testified at the hearing held on May 1, 2013. Carlos admitted that he did not place Brenda s name on the IRA Certificate of Deposit. (T. 13-16) Neither Carlos nor Brenda disputed that $52,173.05 was taken out of the IRA Certificate of Deposit between September 2, 2004 to January 4, 2010. (T. 12, 16, 35-41) Both Carlos and Brenda testified concerning an out-of-court conversation and meeting at the Bank of Mississippi that took place almost immediately after the February 2000 Final Judgment of Divorce and Property Settlement Agreement was entered. The parties disagreed as to who was present at the meeting, but each agreed that they spoke to each 3
other concerning what was said by the bank officer. (T. 7-9, 41-44) The Chancellor, in his Bench Opinion, disregarded any agreement the parties may have had outside the bank, especially since there s some dispute as to what actually took place at this meeting. (T. 59) Carlos raises two issues within his one statement of issues; however, both issues raised by Carlos hinge upon whether it was impossible to carry out the provisions of Paragraph IX of the Property Settlement agreement. Further in his Bench Opinion, the Chancellor states: He (Carlos) stated that he was told that he couldn t be listed as a joint tenant on an IRA. The only testimony regarding impossibly that Carlos presented was based on hearsay testimony of Ilene Estes that he could list his then ex-wife as a joint tenant on this account. Brenda felt that her name could be added at maturity of the IRA, and the Court's not going to use any of its own outside knowledge of those issues. The Court finds that Carlos has not met his burden that it was impossible to comply with this court order because the bank in question is only feet away from where we're sitting right now. The Court just doesn't have sufficient evidence in front of it to know that it was impossible to list Brenda's name on that. (T. 60) 4
III. Argument A. WHETHER THE CHANCELLOR ERRED BY FINDING THE HUSBAND IN CONTEMPT AND AWARDING ATTORNEY S FEES? 1. Standard of Review The Appellant s argument consists entirely of a request for the Appellate Court to conduct de novo review and reweigh the evidence. Such review and reweighing is prohibited by the applicable Standard of Review. Even after review of the Trial Judge s decision and further review of the evidence contained within the record and trial transcript, there is no apparent error committed by the Trial Judge in his decisions and final ruling. With no manifest error, the Appellate Court should not reverse the ruling and decisions of the Trial Judge. In his brief, Carlos does not quote the Standard of Review. The importance of the Standard of Review is reiterated time and again in the opinions of the Mississippi Appellate Courts. The applicable standard states that The Court will reverse only when the Chancellor s determinations were manifestly wrong, clearly erroneous, or when the Chancellor applied an incorrect legal standard. Nichols v. Funderburk, 883 So. 2d 554, 556 (Miss. 2004) If substantial evidence supports the chancellor's fact-findings, this Court must affirm, even though we might have found otherwise as an original matter. Id. It requires little familiarity with the institutional structure of our judicial system to know that this Court does not sit to redetermine questions of fact. Our scope of review is severely limited...suffice it to say that we have no authority to grant appellant any relief if there be substantial credible evidence in the record undergirding 5
the determinative findings of fact made in the chancery court. Johnson v. Black, 469 So. 2d 88, 90 (Miss.1985) In his failure to mention or discuss the Standard of Review, Carlos asks that the Standard of Review be ignored. The Standard of Review restricts the Appellate Court from de novo review of evidence. Under the guiding light of the applicable Standard of Review, Carlos s issues of appeal are seen for their true nature, that true nature being a request for de novo review and a reweighing of the evidence by the Appellate Court. We will return to the Standard of Review often within the following arguments. 2. Impossibility In his Summary of the Argument, Carlos assigns error to the Chancellor s decision on the basis that compliance with the Paragraph IX of the Property Settlement Agreement is impossible as a matter of law. (Appellant s Brief 5) Although the third paragraph under subsection I. of his II. Argument on pages 9-10 of the Appellant s brief states part of the law concerning a defense against contempt, the Appellant leaves out what the Chancellor noted in his bench opinion: Failure to comply with a court order is prima facie evidence of contempt, according to McIntosh versus Department of Human Services. Carlos admission that he has not complied with the order is the prima facie evidence of his contempt. He then had the burden of showing an inability to pay, which was not applicable since he was not ordered to pay as a part of this provision; that his default was not willful; that the provision violated was ambiguous; or that the performance was impossible or some other defense, according to Dorr versus Dorr. (T. 58-59) 6
McIntosh v. Dept. of Human Services, 886 So.2d 721, 724 (Miss. 2004); Dorr v. Dorr, 797 So.2d 1008, 1017 (Miss.App. 2001) Carlos uses the first paragraph under subsection I. of his II. Argument on page 8 of his brief to explain how he would have written Paragraph IX of the Property Settlement Agreement. In the second paragraph of that subsection he misquotes hearsay testimony in an attempt to argue that Carlos s compliance with Paragraph IX of the Property Settlement Agreement was impossible because it was illegal as a matter of law. Carlos states: Both the Husband and the Wife testified at the contempt hearing that they became aware of the defect in Paragraph IX of the settlement agreement the day in 2000 the final judgment was entered because, the bank officer of the then Bank of Mississippi told them they could not legally put the Wifes name on the IRA certificate of deposit. (emphasis added) (Appellant s Brief 9) Let s review the two versions of hearsay testimony that were presented by Brenda and Carlos. Brenda testified that the bank officer said: She told us that we couldn't have two names on our IRA; that we could take it out, but if we took it out, we would be charged so much penalties and so much interest on it that we would lose probably over half of it on penalties and taxes. And she recommended to us that we leave it until it matured or until he got closer to retirement age, and there wouldn't be any penalties, and at that time, we could take it out, divide it, and put it in two different names. (T. 8-9) Carlos testified that the bank officer said: And she said, "What can I do for you today?" I said -- and I laid the document on her desk. I said, "I want to put Brenda's name on that IRA," and she pulled it up on the 7
computer, started shaking her head. She said, "You can't put two names on an IRA." I said, "Well, I'm just -- it's on -- in the divorce settlement that I was to do it," and she looked at it -- looked at the divorce settlement. She said, "Who did this?" And I told her the lawyer that did it. She said, "Well, you cannot." And she explained to me -- she said, "An IRA means exactly what it says: individual retirement account." And she said, "You're an individual. You can't put two names on it. (T. 43) In neither version of the testimony does the third party state the whether the action was legal. Further, we must reiterate the fact that Carlos rests his illegality/ impossibility as a matter of law argument on testimony of decade old hearsay statements of a third party of whom no proof was offered that said third party was qualified as an expert in the legalities and illegalities of banking and finance law. In reviewing this specific testimony the Chancellor stated: The Court finds that Carlos has not met his burden that it was impossible to comply with this court order because the bank in question is only feet away from where we're sitting right now. (T. 60) More evidence was literally feet away, yet Carlos asks that the evidence he presented is sufficient to overturn the Chancellor s ruling. The Chancellor did not err in the weight he gave to the evidence presented, and he certainly did not commit a substantial err in his decision considering what was presented. In another attempt to draw attention away from the request to reweigh evidence, the Appellant closes the second paragraph with another statement of how he would have handled Brenda s problems with Carlos s failure to abide by Paragraph IX. 8
Carlos remained responsible to comply with Paragraph IX from the date the Agreement was made a part of the Courts Order unto the present. The Appellant s brief states that a Motion to Clarify or Modify the Property Settlement Agreement could have been brought. Certainly it could have, and it was Carlos s duty to bring such Motion if he thought that his performance of Paragraph IX was impossible. In his Bench Opinion, the Chancellor quotes Carite v. Carite, 841 So. 2d 1148, stating.that the original divorce judgment and property settlement agreement required Mr. Carite to take the initiative in giving her her interest. The Chancellor continues citing to the Carite case when he says: The chancery court found that the settlement agreement required the husband to initiate the apportioning of pension benefits (T. 62-63) Carite v. Carite, 841 Miss. 1148 (Miss. App. 2002) Based on the language of Carite it remained Carlos s duty to perform the requirement of Paragraph IX to place Brenda s name on the IRA. He didn t perform his obligation, and he didn t take any initiative to clarify or modify his obligation if he thought it was impossible. He continued to do noting even though he agreed to do something, and Carlos knew that Brenda would never get the benefit or potential if he did nothing. Neither party can argue that they agreed to Paragraph IX with the intention of no potential benefit to Brenda. The provision would give Brenda rights to the IRA account, and Carlos s failure to put her name on the account and his subsequent withdrawal of all the money in the IRA extinguished any and all potential benefit to which he agreed to give Brenda. Carlos was in contempt, Brenda met her burden of proving that he was in contempt, and we must return to the question of impossibility and the proof thereof. 9
On page 10 of his brief, Carlos returns to the testimony that was presented. He quotes his testimony, he paraphrases Brenda s testimony to his liking, and then he demands the Appellate Court to look again at how he would have drafted the Property Settlement Agreement. Without returning to the reliability of the evidence presented, Carlos attempts to hang his hat on the argument that he was frustrated in his initial attempt to comply with Paragraph IX, and, therefore, it was impossible to comply with Paragraph IX. Carlos then blatantly misstates the burden of proof on page 11 of his brief. He blames the lack of evidence of impossibility presented as just as much the Wife s failure as it is the Husband s. (Appellant s brief 11) Neither party questions whether Carlos put Brenda s name on the IRA. Carlos admits to never putting her name on the IRA. That shows knowing, willful, and intentional disobedience of the Court s order in the Property Settlement Agreement, and the burden of proving contempt was met. The burden of proving impossibility shifts to Carlos. Dorr, 797 So.2d at 1017 Carlos acknowledges that the only evidence presented as to impossibility was hearsay testimony, and he is correct that Brenda did not object to this testimony. (Appellant s brief 11) He does fail to acknowledge that the Chancellor considered this testimony and found it unreliable, which was completely within his discretion. (T. 60) The Chancellor despite what Carlos argues does not have to accept the testimony of hearsay statements as true. At the risk of sounding repetitive we will reiterate that the testimony was of decade old statements made by a third party over whom the Court could not qualify as an expert because that person was not present at trial. This was a 10
matter of the absence of facts of impossibility, and the Chancellor rightfully found such absence of facts. 3. Statute of Limitations Carlos does not specifically argue a violation of the Statute of Limitations in his appeal. On page 13 of his brief, Carlos states his Statute of Limitations argument: If the Husband in this case had been able, as a matter of law, to perform the action agreed to as in the settlement, he would have no argument. However, the issue returns to the condition of impossibility. Instead of returning to the impossibility arguments we have made in subsection 2. of this brief, I ask that those arguments be reincorporated in this subsection as if reprinted herein. Because Carlos only argues impossibility as grounds to deny based on the Statute of Limitation, we will rest our argument on our previous arguments made within this brief and upon the findings of the Chancellor as to the Statute of Limitations to the extent that those findings go beyond such impossibility argument. IV. CONCLUSION Paragraph IX of the Property Settlement Agreement was specific, and Carlos failed to comply with it. Carlos admitted his failure to comply. He continued to be responsible for his compliance as required by Carite unless he met the burden of proving impossibility. The Appellate Courts give Chancellors the benefit of the doubt concerning the reliability of the evidence presented at trial and will not overturn or reweigh evidence unless there is a clear abuse of discretion. There is no abuse of discretion, and the Chancellor should be confirmed. 11
This the 12th day of May 2014. RESPECTFULLY SUBMITTED, CALEB E. MAY (MSB#102593) Caleb E. May, Attorney At Law PLLC 422 Center Avenue P.O. Box 388 Philadelphia, Mississippi 39350 (601) 656-4830 calebemay@gmail.com s/caleb E. May BY: CALEB E. MAY Attorney for the Appellee 12
CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that a true and correct copy of the Appellee s Principal Brief has been forwarded via first class mail to the following persons, postage pre-paid, to the following addresses: Appellants Counsel Jeffrey J. Hosford 115-A S. Lafayette St. Starkville, MS 39759 Trial Judge Honorable Joseph Kilgore P. O. Box 1006 Philadelphia, MS 39350 Appellee s Trial Counsel J. Max Kilpatrick P.O. Box 520 Philadelphia, MS 39350 Respectfully Submitted this the 12th day of May 2014. s/caleb E. May CALEB E. MAY Attorney for the Appellee 13
CERTIFICATE OF SERVICE I, Caleb E. May, attorney for the Appellee, do hereby certify that on this day I electronically filed the foregoing brief in the matter C.H. Miles (Appellant) v. Brenda C. Miles (Appellee), case number 2013-CA-01006 for filing with the Clerk of the Supreme Court/Court of Appeals using the MEC system. I have filed the Appellee s Record Excerpts as an attachment to this brief using the MEC system. This the 12th day of May 2014. s/caleb E. May CALEB E. MAY Attorney for the Appellee 14