The Better Chancery Practice Blog

A judgment modifying child support upward may be effective on the date that the petition is filed, or on a later date “within the sound discretion of the trial court.”  Lawrence v. Lawrence, 574 So.2d 1376, 1384 (Miss. 1991).  In Frazier v. Burnett, 767 So.2d 263, 268 (Miss. App. 2000), the court stated that the “best practice” is to make the modification retroactive to the date of filing.

A judgment modifying child support downward or terminating it may not be retroactive because each child support payment vests when and as due, and may not be forgiven.  Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss. 1990).  

§ 43-19-35 (4), MCA, effective July 1, 2010, and repealed automatically July 1, 2011, includes the following curious language:

(4)  “Any order for support of minor children … shall not be subject to a downward retroactive modification.  An upward retroactive mofidication may be ordered back to the date of the event justifying the upward modification.” [Emphasis added]

What exactly is the date of the event that would justify the upward change is not defined, nor have there been any cases construing the statute.

The question arises from time to time whether the court may order retroactivity without a request therefor in the pleading.  Chancellors in my experience are split, some taking the position that it must be pled, some saying that it need not be since it is in the discretion of the trial judge.  My own position is that it is a simple Fifth Amendment due process matter.  You are trying to take someone else’s money, and because you are, you are required to put that person on notice and afford the opportunity to defend.  In my opinion, the opposing party needs to be put on notice of whatever relief you are seeking, including retroactive modification, and that without that notice, the court can not grant your client that relief.

Clearly the safest position is to include a prayer for retroactive relief in every petition to modify child support.  Get in your computers and add that language to your petition for modification of child support.

Tagged: Child Support, retroactive modification