Trying to Tie the Chancellor’s Hands

September 10, 2014 § 6 Comments

Lawyers frequently try to add language to PSA’s and agreed judgments to the effect that some event shall constitute a material change in circumstances warranting modification. In essence, it is an attempt to take that issue away from the judge — to tie her hands.

In the case of Frazier v. Frazier, 136 So.3d 1068 (Miss. App. 2013), the parties had agreed to language in a PSA that, if Paul Frazier lost his job, that would constitute a material change in circumstances justifying modification of his obligation. Judge Fair addressed the issue for the court:

¶ 14. The parties did concur in their pleadings and in the transcripts of hearings, which were made part of the record, that the property settlement provided that Paul’s loss of his job would be a “material change in circumstances” justifying, apparently in their minds, a possible modification in his contempt-enforceable obligations for monthly child support. Generally, for a modification of either ordered or contractual child support to be appropriate, there must have been an “unanticipated” change in circumstances of the paying parent that results in inability to honor his obligations toward his children, particularly those obligations he has voluntarily contracted to pay. See Evans v. Evans, 994 So.2d 765, 770 (¶¶ 16–17) (Miss.2008). However, contracts that anticipatorily mandate the effect of material changes in circumstances have been held unconscionable and void by the courts. See Houck v. Ousterhout, 861 So.2d 1000, 1001–02 (¶ 8) (Miss.2003).

In Frazier, the chancellor did not rely on the agreement, but rather made his own independent finding that Paul’s unemployment was a material change in circumstances. That saved the trial court’s ruling from reversal.

You can include language such as that in Frazier in your agreements if you like, but you have to understand, and should so advise your client, that the language is void; not voidable, but void. meaning that it is unenforceable. The proscription has been held to apply not only to child support, but also to alimony and child custody. You simply can’t pre-decide those issue — it’s for the judge to decide.

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§ 6 Responses to Trying to Tie the Chancellor’s Hands

  • Bob Wolford says:

    Good stuff here guys- I’m working on a case right now where the information in this post may be quite useful, if for no other reason than to keep me from looking like a complete bumbling fool down the road.

  • hale1090 says:

    Isn’t there a problem of having void language in a judgment to which the client might rely even after they are told it won’t work?

    • Larry says:

      Absolutely. That’s why I said if you’re going to include such, you’d better advise your client up front that it won’t work. And, yes, you are likely buying your client a ticket back to court.

  • thusbloggedanderson says:

    In the sole such pleading I’ve drafted, that language was meant more as a signal to the noncustodial parent – “move a 100 miles farther away, and risk having visitation curtailed.”

    • Larry says:

      I wonder whether this would pass muster: “So long as the parents live within 100 miles of each other, the following visitation shall apply …” (or words to that effect). That would force a modification action. Of course, the chancellor could also refuse to approve it without language specifying what would happen of they did not live within 100 miles.

      • Ben Robinson says:

        That’s what I was thinking about. We just had the case that made it easier to do escalator provisions for child support, so we know that a PSA can contain conditional provisions. The parties can agree to submit some issues to the court as part of a PSA.

        If the term in the PSA was along the lines of “Child support according to this schedule as long as the payor is employed. If the payor is unemployed for more than one month, child support in a reduced amount to be determined by the Court for as long as the payor is unemployed,” the chancellor could either tell the parties to go agree on something before approving the PSA, fill in an amount at the time of approving the PSA, or approve it as is and let the parties file something if the situation arises.

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