Ask the Answer Man

August 16, 2017 § Leave a comment

Dear A.M.: I keep seeing PSA’s , including mine, that require the parties to pay for “extra-curricular activities.” Does anybody know what that includes?

A.M.: The COA does! In Thomas v. Crews, 203 So.3d 701 (Miss. App. 2016), the COA held that the term refers to activities sponsored by and usually held at a school, but that are not part of the standard curriculum. By that I take it that playing on the school basketball team would be covered, but that playing on a City Parks and Recreation basketball team would not be.

Dear A.M.: My chancellor will not make modification of child support retroactive to the date of filing. Isn’t that required now (I’m not talking about DHS cases)?

  A.M.: Upward modification is entirely discretionary with the chancellor, per MCA 43-19-34(4), which states that “An upward retroactive modification may be ordered back to the date of the event justifying the upward modification.” That word “may” means “entirely discretionary.” The same section prohibits retroactive downward modification.

Dear A.M.: In a trial recently after everyone rested the chancellor kept the record open and appointed a local appraiser, saying she was dissatisfied with the parties’ testimony about valuation of a business. Can she do that?

A.M.: Are you serious? She did, so she surely can. Does she have the authority to do it? Yep. Lacoste v. Lacoste, 197 So.3d 897 (Miss. App. 2016).

Dear A.M.: I need to register a foreign custody order in Mississippi. Which is the proper court?

A.M.: If you register it in any court other than chancery, it won’t be effective. Edwards v. Zyla, 207 So.3d 1232 (Miss. App. 2016).

Dear A.M.: My client wants me to file for modification to allow him to claim the children as dependents for tax purposes because it will free up income so he can pay his child support, which is in arrears. Is there a case that supports his position?

A.M.: There is a case that says he doesn’t have a leg to stand on: Neelly v. Neelly, 213 So.3d 539 (Miss. App. 2016).

Dear A.M.: Does emancipation have to be pled as an affirmative defense in a contempt case?

A.M.: Affirmative defenses do not have to be pled, per MRCP 81. Oster v. Ratliff, 205 So.3d 1149 (Miss. App. 2016).

Dear A.M.: I settled a case a couple of weeks ago, and the attorneys and clients signed off on the agreed judgment. Now the attorney on the other side has filed a notice of appeal from that judgment. That doesn’t sound kosher to me.

A.M.: I’m not sure about kosherbility; however, absent fraud or something similar, a party may not complain of an order to which he agreed. Patrick v. Patrick, 204 So.3d 854 (Miss. App. 2016).

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All of the above is from the Bell seminar material.

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