Can Supersedeas Stay a Child-Support Order?

March 5, 2018 § Leave a comment

Kasey Hamp sued Bernardrick McKinney through DHS for paternity and child support. McKinney, a professional NFL player, was adjudged to be the father of Hamp’s child and was ordered to pay child support. Later, after McKinney received a signing bonus and increased income, Hamp filed for modification.

Following a hearing, the chancellor ordered an increase in child support and a lump-sum back-payment. McKinney appealed and posted a supersedeas bond. On advice of counsel, he continued paying the pre-modification amount of child support and Hamp filed a contempt action. In his defense, McKinney asserted the supersedeas bond. The chancellor found that the bond was not effective to stay the contempt proceeding because: (a) the ongoing child-support obligation was not a money judgment as provided in MRAP 8(a); and (b) McKinney’s bond was for $28,434.73, which the judge found to be some $8,000 less than the rule’s 125% requirement. McKinney appealed.

On the issue whether a supersedeas bond stays an ongoing obligation to pay child support, the MSSC held that it does not in the case of McKinney v. Hamp decided February 8, 2018. Justice Maxwell wrote for the majority:

¶37. This Court has held that “[t]he amount of a supersedeas bond should be sufficient to protect the appellee in his judgment; therefore, it should insure the payment of the judgment and interest, and any waste that could occur pending the appeal.” In re Estate of Taylor, 539 So. 2d 1029, 1031 (Miss. 1989). And when a supersedeas bond for appeal is approved, execution on the underlying judgment or decree is suspended. Lindsey v. Lindsey, 219 Miss. 720, 723, 69 So. 2d 844, 844-45 (1954).

¶38. In a judicial-performance case, this Court has made very clear that a supersedeas bond stays execution of a child-support-modification order. Miss. Comm’n on Judicial Performance v. Littlejohn, 172 So. 3d 1157, 1160 (Miss. 2015). Indeed, this Court found a chancellor abused his power and committed misconduct by holding a parent in contempt for not paying a support order he had appealed with a supersedeas bond. Id. That chancellor was suspended without payor disregarding “the clear wording” of Rule 8(a) and this Court’s application of it in Lindsey. Littlejohn, 172 So. 3d at 1160, 1163.

¶39. There is, however, a significant distinction between Littlejohn and this case. That distinction is the difference in the type of child-support payments appealed. In Littlejohn, a child-support order was modified and the father was required to pay $15,000 for an automobile for his child and $1,750 in attorney’s fees—together, a definitive money judgment. And rather than pay this sum, the father secured a supersedeas bond under Rule 8(a). But here, we are dealing with prospective, monthly, child-support obligations, not a definitive money judgment. And this Court has never squarely addressed whether prospective, monthly, child-support obligations can be stayed by a supersedeas bond under
Rule 8(a).

¶40. This Court has, however, recognized the need for continued, monthly, child-support payments to provide support for the child during the pendency of an appeal. Petersen v. Petersen, 238 Miss. 190, 118 So. 2d 300, 304 (1960). In Petersen, the chancellor entered a decree awarding monthly, child-support payments but stated that such payments “should remain in effect pending the appeal with supersedeas . . . .” Petersen, 238 Miss. at 198-99, 118 So. 2d at 304. And this Court held the chancellor was clearly justified in requiring continued, monthly, child-support payments pending an appeal with supersedeas. Id. But until today, this Court has not addressed whether prospective, monthly child-support
payments can be stayed as money judgments by a Mississippi Rule of Appellate Procedure 8(a) supersedeas bond. [Fn 8]

[Fn 8] The Court of Appeals has previously concluded, in an unpublished opinion, that prospective, monthly-child support payments are not money judgments and therefore cannot be stayed by a Rule 8(a) supersedeas bond. See Bland v. McCord, 94-CA-00947-COA, 94-CA-01158-COA (Miss. Ct. App. Sep. 17, 1996).

¶41. Under Mississippi law, child-support payments become fixed and vested when the payments become due and unpaid. Brand v. Brand, 482 So. 2d 236, 237 (Miss. 1986). And as each payment comes due, it becomes “a judgment” against the noncustodial parent. Id. (citations omitted). Once fixed and vested, those judgments cannot be modified. See Hambrick v. Prestwood, 382 So. 2d 474, 476 (Miss. 1980); see also Cunliffe v. Swartzfager, 437 So. 2d 43, 45-46 (Miss. 1983). So, because child-support arrearages and other definitive, one-time, child-support payments can be reduced to money judgments, a Rule 8(a) supersedeas bond can protect an appellee. But that is not necessarily the case for prospective,
monthly, child-support obligations. We find these are not money judgments and cannot be stayed by a Rule 8(a) supersedeas bond.

¶42. But this does not necessarily mean McKinney could not have sought a supersedeas bond. However, to do so, he would have had to make an application to the chancellor for a stay under Mississippi Rule of Appellate Procedure 8(b). [Fn omitted] And the chancellor, not the clerk, would have to decide whether to approve the bond, in light of an opposing party contesting the bond.

¶43. Turning to this case, we find the chancellor’s order modifying the monthly child support award could not be stayed by a Rule 8(a) supersedeas bond. Accordingly, McKinney was required either to apply for and be granted a supersedeas bond under Rule 8(b) or to make the increased, monthly, child-support payments. But, as to the retroactive child-support award, it was a definitive, one-time payment of a monetary sum. So a Rule 8(a) supersedeas bond would adequately protect Hamp, and ultimately K.M., during the appeal.

¶44. We therefore affirm the chancellor’s ruling that prospective, monthly, child-support obligations are not money judgments that can be stayed by a Rule 8(a) supersedeas bond. However, we reverse and render the chancellor’s decision that a Rule 8(a) supersedeas bond could not stay execution on the retroactive child support.

The court went on to reverse the chancellor’s contempt findings based on McKinney’s belief that he was protected by the supersedeas bond.

Some highlights:

  • This case confirms what most chancellors have considered MRAP 8 to mean: that ongoing child support obligation is not stayed by supersedeas.
  • This case also confirms what most chancellors have considered MRAP to mean vis a vis money judgments for a fixed sum: that a supersedeas bond will, indeed, stay judgment.
  • If there is no agreement between the parties over the amount of the bond or whether it should be granted at all, the matter must be resolved by the chancellor. The clerk’s approval of a bond in that circumstance would be ineffective (See ¶42, above).
  • Don’t put too much stock in the majority’s reversal of the contempt finding in this case. There were some particular facts that led to that conclusion (See ¶¶45-48). Justice Beam’s dissent (¶¶54-65) eloquently spells out the ample authority that casts considerable doubt on the defense of “I was Only Relying on my Attorney’s Advice.”

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