The Case of the Illusory Agreement

September 11, 2013 § 3 Comments

How enforceable is an extra-judicial agreement to reduce child support? And just what constitutes an agreement?

Those questions were at the heart of the dispute between Donald Brewer and his ex-wife, Penny Holliday. Donald had agreed in a PSA for Penny to have custody of the children, and to pay her $1,185 per month in child support. That agreement was incorporated into a judgment of divorce entered June 7, 2005.

In August, 2005, Donald filed a contempt and modification action asking to change custody. Penny counterclaimed that Donald was unfit for custody. There were several continuances. In July, 2006, the parties engaged in voluntary mediation, at the conclusion of which they entered into an agreed order and memorandum of understanding that effected a change of custody of one of the children and reduced Donald’s child support to $600 a month.

The agreed order was never submitted to the chancellor, but Donald nonetheless reduced his child support to the agreed amount, and Penny responded with a contempt action immediately after the first reduced payment. Penny stated that she “withdrew from the agreed order” because Donald “rejected certain financial obligations” and harassed her.

Donald filed for bankruptcy, and Penny had to file a claim with the bankruptcy court to continue to pursue her action to recover the child-support arrearage.

In February, 2008, after he enlisted in the military, Donald filed yet another modification action, asking to reduce his child support from $1,185 to $737. His pleading made no mention of the mediation agreement.

In July, 2009, Donald filed a pleading seeking to have the agreed mediation order entered nunc pro tunc. He alleged that the order had not been entered due to inadvertence and oversight, and that it had been misplaced by one of the several attorneys who had represented him in this now-epic litigation. The chancellor overruled the motion on November 5, 2009.

At last, on June 14, 2011, nearly six years after the initial filing, the case went to trial. The chancellor found Donald in contempt and entered a judgment against him for $34,515 in child-support arrearage. Donald appealed, claiming that the chancellor erred in not entering the agreed mediation judgment.

The COA, in Brewer v. Holliday, affirmed on March 12, 2013.

In response to Donald’s argument that Penny should be held bound by her agreement, the court pointed out that Donald himself had filed pleadings that asked for a reduction from $1,185 to $737, indicating that the parties had not conformed to the agreement. Penny also filed claims in the bankruptcy, which the COA noted should have tipped Donald off that Penny did not consider the agreement to have taken effect.

As for Donald’s argument that he should not be found in contempt because he paid the amount he reasonably believed was due under the never-entered agreed mediation order, the court looked to the bankruptcy proceedings as an indication that he was aware of Penny’s claims and non-acquiescence in any agreement. Judge Griffis, for the court:

¶25. A party, such as Brewer, “who extra-judicially modifies or eliminates child support payments acts ‘at his peril.’” Rogers v. Rogers, 662 So. 2d 1111, 1115 (Miss. 1995) (quoting Varner v. Varner, 588 So. 2d 428, 434 (Miss. 1991)). “[C]ourt-ordered child support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid.” Varner, 588 So. 2d at 434. “[A] court cannot relieve the civil liability for support payments that have already accrued.” Thrift v. Thrift, 760 So. 2d 732, 737 (¶16) (Miss. 2000) (citation omitted).

¶26. Even after Holliday filed claims in Brewer’s bankruptcy action for child-support arrearages, Brewer continued to pay only $600, contrary to the only order that obligated him to pay child support. The fact of the matter is that Brewer paid only $600 when there was sufficient evidence to indicate that he was aware that his obligation had not been reduced. We find that there was substantial evidence before the chancellor to find Brewer in willful contempt.

So, to wrap this up:

  • If you get an agreed judgment, get it signed by the judge and entered right away. It happens every day that parties agree to one thing at the court house and then have “buyer’s remorse” later, after talking to aunt Susie and every other legal scholar in the family, and want to back out.
  • Good luck getting a judge to enforce an out-of-court agreement. The only exceptions off the top of my head are: (1) where the parties reached an agreement and it was undisputedly not entered by oversight, and the parties acted in accordance with the agreement, as in Wright v. Wright, 737 So.2d 408 (Miss. App. 1998); and (2) where the court treats unpaid child support as having been “paid” in the situation where one or more of the children has lived with the paying parent by agreement, as in Varner, cited above. In this case, I suppose the only reason that the trial court did not consider Donald’s situation to be within the holding in Varner is that he did not ask for that relief or raise that issue.
  • In my opinion it helped Penny’s case to file a contempt action immediately when Donald first reduced his child support payments. That move was clear evidence to me that she did not consider that the parties had reached an agreement sufficient to submit it to the court for approval.

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§ 3 Responses to The Case of the Illusory Agreement

  • […] Only last September we read here about Donald Brewer and Penny Holliday, who had agreed to modify their divorce judgment vis a vis custody and support. They had lawyers incorporate their agreement into an agreed judgment, and they proceeded to conform to the agreement in nearly every respect for several years. Only problem is, no one ever saw to it that the agreed judgment was entered. Both Donald and Penny believed that it had been entered. When the parties had a falling out and wound up back in court, the chancellor refused to enforce the agreement, notwithstanding the course of compliance, and found Donald in contempt. The COA affirmed, as you can read in the previous post. […]

  • Ben Robinson says:

    Supreme Court has reversed and remanded.
    The basic principle that he who extrajudicially modifies child support payments acts at his peril stands, but the details have been softened a little.

    • Larry says:

      Thanks for the update. I have been on the bench all day and have not had the chance yet to pull up the appellate cases.

      Your comment does highlight another important point, though, and that is that I do not always go back and update posts from the past. Thus the need always to use them as a springboard into your own research into a given point, and not a destination.


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