Do-It-Yourself Modification and Creation of a Child Support Obligation

May 20, 2020 § Leave a comment

Melvin and Karen Krohn were divorced, and Karen had custody of their daughter. The post-divorce period was contentious and litigious, but the parties did agree during one relatively peaceful period that the child could live with Melvin for a time, during which he would be relieved of his $1,500 a month child support obligation,  but the informal arrangement was never reduced to a court order.

When the parties went back on the warpath, one of Melvin’s several claims was that Karen should be ordered to pay him child support for the time when the child was with him, and Karen should be held in contempt for not paying child support during that period. The chancellor denied that relief and Melvin appealed.

The COA affirmed in Krohn v. Krohn, on April 21, 2020. Here is how Judge McDonald’s majority opinion addressed the issue:

¶13. “A chancery court has discretion in determining an award of child support.” Gunter v. Gunter, 281 So. 3d 283, 285 (¶8) (Miss. Ct. App. 2019). “To justify the modification of the child-support provisions of a divorce decree, the moving party must show that there has been a material or substantial change in the circumstances of one of the parties.” Bruton v. Bruton, 271 So. 3d 528, 533 (¶14) (Miss. Ct. App. 2018). For irreconcilable-differences divorces, the parties’ private agreements entered into for the purposes in Mississippi Code Annotated section 93-5-2 (Rev. 2018) are “not enforceable, if not approved by the court.” Sullivan v. Pouncey, 469 So. 2d 1233, 1234 (Miss. 1985). “The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.” Smith v. Smith, 20 So. 3d 670, 674 (¶13) (Miss. 2009).

¶14. In this case, the parties mutually agreed that their minor daughter would reside with Melvin for several months. There was no court order entered concerning this change in custody. Nor did the court ever order Karen to pay Melvin support for those months. Thus, the court had no basis to find Karen in contempt or order her to pay child support retroactively. Although the court gave no reason for denying Melvin’s requested child support for the months the child was living with him, the court relieved him from his court ordered obligation to pay child support ($15,000.00) during these months. Accordingly, we find that the chancery court did not abuse its discretion when it failed to order Karen to pay child support for the months Melvin had the child.

Some ruminations:

  • It’s pretty obvious that Karen could not be in contempt of an unenforceable DIY out-of-court arrangement that had never been approved by order of the court.
  • Although the court cited no authority, the agreement for Melvin to have credit against his child-support obligation during the period when the child lived with him is actually authorized in our case law. In Varner v. Varner, 588 So.2d 428, 435 (Miss. 1991), the parties entered into a similar situation by informal agreement, during which the father reduced his child support by 1/3 because he had responsibility for 1/3 of the children. After the arrangement ended, the mother sued for the back child support. The MSSC acknowledged that the payments were vested when due, and thus could not simply be released. Instead, the court held that the father had in essence contributed the support directly to the child, and he was therefore entitled to a pro-rata credit (in this case 1/3 of the total child support) for that direct support. I posted about Varner in another context yesterday. Varner is a useful case to know; I used it a number of times in my practice.

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