The Ups and Downs of Modification
October 30, 2017 § 2 Comments
Modification of child support can get confusing. In one case, you ask for upward modification retroactive to the date of filing and you get modification beginning at the date of judgment. In another the judge grants upward retroactivity to the date of the parent’s increase in income. And in yet another the court does order upward retroactivity to the date of filing. What is the rule?
A good starting point is MCA 43-19-34(4), which reads:
Any order for the support of minor children, whether entered through the judicial system or through an expedited process, shall not be subject to a downward retroactive modification. An upward retroactive modification may be ordered back to the date of the event justifying the upward modification.
Downward: never retroactive. This comports with long-standing Mississippi law that each child support payment vests when and as it comes due, and it can not be forgiven. In Howard v. Howard, 968 So.2d 961, 977 (Miss. App. 2007), the court said:
¶ 41. Child support payments vest in the child as they become due. Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992). Each payment that becomes due and is unpaid becomes a judgment against the supporting parent. Id. A court cannot modify or forgive vested child support obligations. Id. Accordingly, when a payor moves for downward modification of child support, the payments due continue to vest during the pendency of the motion. Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990). Any modification granted will take effect on the date of the judgment granting the modification. Id. However, when an appellate court reverses and remands a child support modification appeal to the chancery court for redetermination of the issue, the effective date of any downward modification granted is the date of the judgment from which the appeal was taken. Setser v. Piazza, 644 So.2d 1211, 1216 (Miss.1994) (reversing and remanding the chancellor’s denial of abatement of child support for further consideration and holding that the effective date of any downward modification granted would be the date of the order that erroneously denied modification.); Cook v. Whiddon, 866 So.2d 494, 500(¶ 22) (Miss.Ct.App.2004) (stating that the chancellor could make any order entered on remand that reduced child support retroactive to the effective date of the judgment cleansing the payor’s hands and reviving the modification issue); Lane, 850 So.2d at 127(¶ 14) (noting that the Court was not at liberty to modify child support retroactively, and stating that on remand, if modification was granted, it would be retroactive only to the date of the judgment from which the appeal was taken).
Howard pre-dates 43-19-34(4).
What about emancipation? It sometimes happens that a modification action has to be filed to terminate a withholding order or for some other reason. Do those support payments that come due after emancipation vest so that they can not be undone, or does the liability continue to accrue while the action is pending? “Child support payments vest when due, and retroactive termination is an impermissible form of ‘downward retroactive modification….’ See Howard v. Howard, 968 So.2d 961, 977 (Miss.Ct.App.2007).” AML v. JWL, 98 So.3d 1001, 1016-17 (Miss. 2012)
In my opinion, if the emancipation is automatic by statute, such as attainment of age 21 or marriage or conviction of a felony, then the obligation terminated at that event, and no further obligation existed or vested, so it is not truly a retroactive modification but rather a judicial recognition of the termination as of the date of the event. MCA 93-11-65(9) is consistent with this reasoning.
If, on the other hand, the emancipation turns on a finding of fact, such as whether the child established independent living, then the obligation continues until the court’s order is entered.
Upward: In the court’s discretion. Id. at 1017 (¶43). The modification may be made retroactive to the event that triggered the modification action, such as a raise in pay. There are no cases of which I am aware interpreting this 2009 statute. My interpretation of the statute is that upward retroactivity may be to any point between the triggering event and the date of judgment. If you really want retroactivity, you should put on some persuasive proof about why it should be.
What about a circumstance where a child went to live with the noncustodial parent. Could the court not find that the non-custodial parent satisfied his obligation by supporting the child in his home? Arguably, this would not actually be a downward modification. Also, wouldn’t there be an unjust enrichment claim against the parent receiving child support even though the child no longer lives with her.
There are cases that say that the parent gets a pro data credit for those months. Varner v Varner I believe is one such case.