Emancipation Confuseration
June 4, 2018 § 1 Comment
Tracy Dixon sued his ex, Sandra, on several counts, one of which was to declare that their then-19-year-old daughter Amanda to be emancipated. The proof established that the child moved in with her boyfriend Will after she graduated from high school, despite the objections of both parents. Will bought her a car and provided a cell phone. Amanda enrolled at Jones County Junior College studying nursing, and relied on her mother for support, including clothes, meals, and gas. The support continued after Amanda transferred to USM. To top it off, Tracy and Amanda had a disagreement and stopped communicating, although Amanda testified that she loved her dad and wanted to have a relationship with him. Tracy said that he wanted to have a relationship with Amanda, but it was she who refused to answer or return his phone calls, texts, and invitations.
After a hearing, the chancellor denied Tracy’s petition to declare Amanda emancipated, and Tracy appealed.
In Dixon v. Dixon, decided February 6, 2018, the COA affirmed. Judge Wilson wrote for the 5-4 majority:
¶21. Citing Mississippi Code Annotated section 93-11-65(8)(b)(iii) (Rev. 2013), Tracy argues that Amanda’s cohabitation with her boyfriend required the chancellor to find that she was emancipated and terminate Tracy’s obligation to pay child support for her. We disagree.
¶22. Section 93-11-65(8)(a) provides that unless the underlying child support judgment states otherwise, “emancipation shall occur when the child” turns twenty-one, marries, commences full-time military service, or is convicted of a felony and sentenced to a term of two or more years’ incarceration. Miss. Code Ann. § 93-11-65(8)(a) (emphasis added). In contrast, section 93-11-65(8)(b) provides that a “court may determine that emancipation has occurred and no other support obligation exists when the child,” inter alia, “[c]ohabits with another person without the approval of the parent obligated to pay support.” Id. § 93-11-65(8)(b)(iii) (emphasis added). “A basic tenet of statutory construction is that ‘shall’ is mandatory and ‘may’ is discretionary.” Khurana v. Miss. Dep’t of Revenue, 85 So. 3d 851, 854 (¶9) (Miss. 2012) (quoting Franklin v. Franklin ex rel. Phillips, 858 So. 2d 110, 115 (¶15) (Miss. 2003)). Thus, subparagraph (8)(b)(iii) applies in this case, but it did not require the chancellor to declare Amanda emancipated or terminate child support for her. Rather, this provision merely gave the chancellor discretion. See Wesson v. Wesson, 818 So. 2d 1272, 1282 (¶25) (Miss. Ct. App. 2002) (discussing the chancellor’s “discretionary decision concerning . . . emancipation”); Deborah H. Bell, Mississippi Family Law § 13.09[2], at 452 (2d ed. 2011) (explaining that in circumstances enumerated in subsection (b) “a court has discretion to determine that a child is emancipated”).
¶23. Moreover, Amanda and Michelle both testified that Amanda is a full-time student, that she does not have a job, and that she still relies on Michelle’s support to some extent. They also testified that her need for support would increase once she transferred to USM, which she subsequently did. We cannot say that the chancellor abused his discretion by not finding that Amanda was emancipated. See Andrews v. Williams, 723 So. 2d 1175, 1178-79 (¶¶12-14) (Miss. Ct. App. 1998) (affirming the chancellor’s discretionary ruling that child was not emancipated where child was “unable to support himself independently” and desired to attend college but needed help with college expenses).
Discretion — aside from being the better part of valor according to an old saw — is the factor that can have chancery practitioners pulling their hair out over how to advise their clients. The statute clearly leaves it up to the chancellor to decide whether emancipation has occurred in connection with those may scenarios. Discretion = case by case, and as long as the chancellor’s decision is supported by substantial evidence, the COA ” … cannot say that the chancellor abused his [or her] discretion.”
There are cases going every which way on the issue. In Rennie v. Rennie, 718 So.2d 1091, 1093 (Miss. 1998), a case with facts similar to those here, the MSSC affirmed a chancellor’s ruling that the child was emancipated, and held that once emancipation occurs, it can not be undone. A similar holding was reached in a case where the daughter had a baby but continued to live with and receive support from her mother. Caldwell v. Caldwell, 823 So.2d 1216, 1121 (Miss. App. 2002). Cases going the opposite way include: Andrews v. Williams, 723 So.2d 1175, 1179 (Miss. App. 1998); Carite v. Carite, 841 So.2d 1148, 1154 (Miss. App. 2002); and Wesson v. Wesson, 818 So.2d 1272, 1282 (Miss. App. 2002).
I think the best advice for your client is that, except for the situations (such as marriage and turning 21) mandated by statute, it is within the trial court’s discretion to declare a child emancipated, and that is done on a case-by-case basis. You can offer your best judgment based on your experience with the proclivities of your particular chancellor, but there is no clearcut result dictated by the law.
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Judge, this was a great analysis on a confounding issue. Once again, it is the lawyer. on the front end, who should be proactive, rather than finding herself in the position of trying to predict a Chancellor’s inherent discretionary choice.