MAKING AN END RUN AROUND PIERCE

February 7, 2012 § Leave a comment

In Pierce v. Pierce, 42 So.3d 658 (Miss. App. 2010), the chancellor in a divorce had ordered the husband to pay the wife’s mortgage note until her child by a previous relationship graduated from high school. The COA remanded the case on other grounds, but instructed the chancellor not to tie the payment of the mortgage to any life event of the daughter, since she was not the payor’s offspring. In essence, the order amounted to an improper award of child support.

But what about where the child is the child of the payor? And what about where the payment is not any form of child support?

In Brooks v. Brooks, decided by the COA on December 13, 2011, the payor, Brandon, argued à la Pierce that the trial court had improperly converted payment of the mortgage note into additional child support when the judge tied Brandon’s obligation for mortgage payments to his youngest child’s attainment of the age of 18. He contended that the trial court’s actions were in violation of Pierce.

The COA rejected the argument that Pierce was applicable on the basis that there was no dispute that the child in question was his.

The court went beyond that point to add some significant language:

¶11. We cannot find that the mortgage payment was a form of additional child support. The award in the chancellor’s order was given under the heading, “Equitable Distribution,” and it was ordered after a discussion of the Ferguson factors. The chancellor ordered that when the house is sold, Brandon should receive 60% of the equity, and Dawn should receive 6 40%. The chancellor reasoned that “Brandon’s larger percentage will reflect his payment of debt, taxes[,] and hazard insurance over the next sixteen or so years . . . .” The upkeep and maintenance of the property are Dawn’s responsibility, except for repairs in excess of $1,000, which are the equal responsibility of both parties. Since the mortgage payment was part of the equitable distribution of the assets and Brandon will receive a portion of the equity back when the house is sold, the house payment is not the equivalent of child support. This issue is without merit.

The significance of this language is that it points a direction around Pierce via equitable distribution. If you can persuade your judge to consider mortgage payment as part of the equitable distribution, you can tie the payment to any life event of anyone. This can be helpful in a step-child situation as in Pierce itself, or where there are other child-related obligations not related to children of the parties. And just how do you pitch it? Offer the court through your client’s testimony a balance sheet showing your proposed equitable distribution. The judge might buy it.

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