MAKING CHILD SUPPORT RETROACTIVE

March 13, 2012 § Leave a comment

Until 1991, the only way to get child support for a period predating your judgment was under MCA § 93-9-11, which allows the court to assess past education and necessary support and maintenance for a child for “one (1) year next preceding the commencement of an action” of paternity.

That changed with the case of Lawrence v. Lawrence, 574 So.2d 1376, 1384 (Miss. 1991), which held that the chancellor may make an upward modification of child support effective as of the date of filing of the pleading seeking modification. Downward modification is effective as of the date of the judgment of modification.

In the case of Strong v. Strong, 981 So.2d 1052, 1054-55 (Miss.App. 2008), the parties entered into a consent for divorce on the sole ground of irreconcilable differences and submitted the following matters for adjudication by the court:

“The parties submit all other issues relating to the extent of the Husband’s visitation with the children, child support, the existence of temporary child support arrearage, health insurance coverage for the children, payment of medical expenses not covered by insurance, life insurance with the children as beneficiaries, claiming the children as dependants for tax purposes, payments of college expenses; and all other related child visitation and support issues to the Court for adjudication.” [Emphasis added]

The court of appeals held that language adequate to uphold the chancellor’s decision to award temporary child support for the twelve months preceding the temporary order in the case, where the payor did not object to presentation of proof on the point. The court said:

“¶ 13. In order to obtain child support, it must be requested in the pleadings or be tried by the consent of the parties. Lee v. Stewart, 724 So.2d 1093, 1095-96 (¶¶ 3-4) (Miss.Ct.App.1998). Lee is instructive to this particular case. There, the chancellor awarded one year of past-due support even though the issue was never raised in the original or amended complaints. Id. at 1095(¶ 3). This Court held that since Lee failed to make a contemporaneous objection when the evidence was introduced on the issue at trial, the issue was tried with Lee’s implied consent. Id. at 1096(¶ 4) (citing Atkinson v. Nat’l Bank of Commerce of Miss., 530 So.2d 163, 166 n. 2 (Miss.1988)).”

It is interesting that both Strong and Lee turn on either a pleading for relief or trial of the issue without objection. The clear implication is that if you include a prayer in your pleading for past child support, it will open the door to that relief by the court.

Whether to grant retroactivity is discretionary with the court. Weeks v. Weeks, 29 So.3d 80, 89 (Miss. App. 2009). I take the position that you must include a specific request for retroactivity in your pleading, or I will not grant it. My rationale is that you are trying to take money (i.e., property) from the other party, and that requires due process under the Fifth Amendment, which in turn requires adequate notice and opportunity to be heard.

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