Braswell v. Braswell

336 So.3d 1121

Thomas Kevin BRASWELL, Appellant

v.Ladonna Jo BRASWELL, Appellee

NO. 2020-CA-01090-COA

Court of Appeals of Mississippi.

November 9, 2021

Rehearing Denied April 12, 2022

ATTORNEYS FOR APPELLANT: A. E. (RUSTY) HARLOW JR., KATHI CRESTMAN WILSON, Grenada

ATTORNEYS FOR APPELLEE: A. LEE ABRAHAM JR., Greenwood, JACOB MICHAEL JENKINS

BEFORE WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. Thomas Kevin Braswell appeals the judgment of the Grenada County Chancery Court denying his petition to modify his child support and alimony obligations, and finding Kevin in contempt for the arrearages he owed. Upon a review of the record, we reverse the chancery court's judgment and remand for further proceedings.

Facts

¶2. Kevin and Ladonna Braswell were married on May 27, 1989. At the time of their divorce, they had three children; two were emancipated and one was a minor. At the time of the proceedings relevant to this appeal, the minor had been living with Kevin and attending college.

¶3. Kevin initiated the divorce action on December 18, 2015. He agreed to a temporary order obligating him to pay all household expenses, Ladonna's car payment, all credit card payments, home insurance payments, all other bills of the parties, $400 per week in child support and $400 per week in alimony. Although Ladonna counterclaimed for divorce on fault grounds, they later agreed to an irreconcilable-differences divorce. The divorce judgment incorporated a property settlement agreement providing that Kevin must pay Ladonna $2,500 per month in child support, and $4,500 per month in alimony. At the time of the divorce, Kevin was working as an ophthalmologist and earning $280,000 per year. Kevin was to continue paying Ladonna alimony until she remarried, cohabited, or reached the age of sixty-two.¹

¶4. After the divorce, Kevin bought his own home, which he financed with a loan from the Department of Veterans Affairs. Ladonna ultimately moved to Louisiana. She had been and remained unemployed at the time of the hearing on the matter that is at issue in this appeal.² In March 2020, the minor child moved in with Kevin.

¶5. In 2018, Kevin started experiencing financial problems. His brother, a practicing dentist with whom he shared an office building, unexpectedly moved his practice, leaving Kevin solely responsible for all of the building's expenses. Kevin testified that he struggled but he paid his child support and alimony "off the top" of the income from his practice through August 2018. He said that he had "to rob Peter to pay Paul" after his brother pulled out and the stress of unpaid bills grew heavier and heavier. According to Kevin, he did not handle it well and started self-medicating with alcohol. Even so, he testified that it did not interfere with his performance on the job.

¶6. In September 2018, law enforcement stopped and ticketed Kevin for driving under the influence. The charge was ultimately dismissed for lack of evidence, but the medical licensing board began an investigation. Kevin was required to suspend his practice while he was being evaluated. The Mississippi Physicians Health Program then required that Kevin attend an inpatient treatment program at Bradford Health Services or lose his license. Kevin attended the eight-week program from September 16, 2018 through November 15, 2018. Kevin was unable to work during that time and he had no partner to carry on the practice. As a result, he had no income during that time. Thereafter, the licensing board required that he sign a contract which limited his work hours to four days a week for five years.

¶7. On October 3, 2018, Kevin filed a motion to modify the divorce judgment by reducing the amount of alimony and child support that he was required to pay. He also sought relief of other financial obligations under the divorce judgment. On October 25, 2018, Ladonna answered the motion and counterclaimed for contempt.

¶8. Between December 2018 and April 2019, Kevin faced continuing financial difficulties. Upon his return from treatment, the clinic was out of money and he had to fire several employees. He fell behind on the clinic note and other bills, including his federal taxes and his own house note. Kevin finally filed a Chapter 7 bankruptcy on March 13, 2019. Based on the pendency of his bankruptcy, he successfully sought to stay the chancery court modification and contempt proceedings. The bankruptcy was completed in September 2019. As a result, Kevin lost the clinic building and the home he had purchased.

¶9. After his bankruptcy, Kevin had to move his practice to a new office space. He had to pay the bank $13,000 to allow him to stay in the clinic that it had taken over while he found a new location. He also had to close his office for two weeks to accomplish the move, which cost him between $5,000 and $6,000. He had no income for the time the office was closed. He was able to reopen in October 2019, but business was slow through that December because many patients were unaware of his new location.

¶10. In 2020, Kevin's business suffered another financial blow due to COVID-19. Pursuant to a notice from the state medical board, he had to totally shut down his office from March 18, 2020 to the beginning of April 2020, unless a patient experienced an emergency. He was allowed to reopen in a limited capacity during April and May 2020. And due to hospital restrictions, he was unable to perform elective surgeries that previously provided a supplemental source of income. He testified that he was not eligible to receive any funds from the CARES Act Paycheck Protection Program, a federal emergency assistance program for small businesses affected by the pandemic. Kevin drew unemployment for approximately a month in June 2020. He applied for additional work at the G.V. (Sonny) Montgomery VA Medical Center and the University of Mississippi Medical Center in Jackson, as well as with several private practices, but he was unable to find other employment. He could not "moonlight" at an emergency room because, as an eye doctor, he did not have the skill set required for that kind of practice.

¶11. During this time, Kevin remarried. His wife worked as his office manager despite the fact that she had not been paid after October 2019. They lived in a home that his wife and her grandmother co-signed to purchase; Kevin's name did not appear on the title. Kevin's mother-in-law gifted them with the $3,000 down payment for the house. Their monthly note on the 1100 square foot home was $600. Kevin testified that he and his wife had not taken any vacations, and they had attended only one concert, paying $200 for the tickets.

¶12. At the time of the 2016 divorce, Kevin testified that he was making approximately $280,000 per year. His adjusted gross income on his 2017 tax return was $180,529. In 2018, it dropped to $165,570.³ In 2019, it was $54,363. The testimony established that through August 2018, Kevin was current on both his child support and alimony payments. In September 2018, he paid the $4,500 alimony payment, but nothing in child support. In October, he paid $2,500 in child support, but nothing in alimony. He made no further payments in 2018. In 2019, he made no alimony payments and only one child-support payment. Through July 2020, he paid a total of $4,000 in child support.

¶13. On June 2, 2020, the chancery court entered a Qualified Domestic Relations Order that affirmatively established Ladonna's right to $200,000 of Kevin's PERS deferred compensation benefits plan. It further ordered the Plan Administrator to establish a separate account for Ladonna and transfer Ladonna's $200,000 share to that account.

¶14. The chancery court heard the parties’ motions on July 13, 2020, with Kevin appearing via Zoom because he was quarantined due to exposure to COVID-19.

¶15. At the time of the hearing, Kevin was behind on the rent for the clinic and on the lease payments for the clinic's equipment. During his quarantine, Kevin saw no patients and generated no income. He testified that he had received a $1,200 stimulus check that he used to make a partial payment on the child support that he owed. He owned no real property and had no assets other than his deferred compensation plan, which had a $400,000 balance in which Ladonna held a half interest per the divorce judgment.⁴ He testified that he would gladly access that to help resolve the matter. He had paid his 2017 taxes, but not his 2018 or 2019 taxes, which his wife estimated to be approximately $50,000 to $60,000.

¶16. During the hearing, the chancery court questioned Kevin about some of his obligations and the genesis of his problems.

THE COURT: Okay. Would you agree with me that everything that has come about has been the result of your drinking then as far as your financial is concerned, except for the COVID here lately?

THE WITNESS: Well, for the most part, Your Honor, I think, you know, like I alluded to earlier, the problem really started when my brother left the practice and left me with, like I said, you know, his end of the businesses which doubled my overhead basically.

THE COURT: All right. Explain that to me because - -

THE WITNESS: It was a snowball effect that started it all, quite frankly.

THE COURT: Well, I understand from your testimony, you're not an optometrist but an ophthalmologist; is that correct?

THE WITNESS: Yes, sir.

THE COURT: And he was a dentist?

THE WITNESS: Yes, sir.

THE COURT: So what overhead did you share? It wasn't equipment or anything, obviously. Was it employees? Obviously, it was either a mortgage or rent. What were your shared expenses, and how much were they?

THE WITNESS: Our shared expenses remained in the building, utilities. I think just my electrical bill was $500. I don't know how much it was together. But we had -- it was almost a 5,000 square foot building. We had taxes and insurance. I don't remember what insurance was. All of that, yes, sir.

THE COURT: And that led to your drinking which

...