Modifiability of an Agreed Judgment

March 31, 2020 § Leave a comment

In 2012, Elizabeth Pumroy and her ex-husband, Michael Sisco, presented an agreed judgment to the chancellor. It modified the child support provision of the parties’ divorce judgment and included the following language:

” [the amount] is based upon [Sisco’s] current income … and shall not be modified absent a substantial decrease in [Sisco’s] income through no fault of his own.”

In 2018, DHS sued for downward modification due to emancipation of the oldest of the three children. Pumroy objected on the basis that their 2012 agreement was a binding contract. Following a trial, the chancellor did modify the child support based on a finding that one of the three children was, indeed, emancipated. Elizabeth appealed.

In Pumroy v. Sisco, handed down March 17, 2020, the COA affirmed. Judge Cory Wilson wrote the opinion for a unanimous court:

¶12. Pumroy renews her contention that the parties’ 2012 agreement could not be modified because it was a binding contract. She asserts that under the “clear and unambiguous” terms of the contract, Sisco was obligated to pay $500.00 per week in child support “until such time as the minor children are emancipated by the laws of the state of Mississippi.” Pumroy contends that under the language of the 2012 agreed order, no modification is proper until
all of the children are emancipated, as opposed to when each of the children is emancipated. The chancellor declined to read the prior order this way, stating that the court would not “read anything more into their agreement,” so as “not [to] allow a modification when one of the children has become emancipated.”

¶13. We find no error in the chancellor’s determination that a modification in child support was warranted in this case. “[S]upport obligations most certainly can be modified when there is a finding of a material change in circumstances, which was not foreseeable at the time of the judgment of divorce.” Short v. Short, 131 So. 3d 1149, 1151-52 (¶¶7-8) (Miss. 2014) (finding that language in the parties’ divorce agreement stipulating that father should never pay less than $3,000 per month in child support was modifiable upon showing that a material change in circumstances had occurred); see also Collado v. Collado, 282 So. 3d 1239, 1242 (¶9) (Miss. Ct. App. 2019) (stating that court-approved child support agreement is subject to modification when a party seeking modification shows a material change in circumstances). “Our supreme court has also made it clear that ‘a parent is relieved of the
legal duty to support his child once the child is emancipated whether by attaining the age of majority or otherwise.’” Andres v. Andres, 22 So. 3d 314, 317 (¶7) (Miss. Ct. App. 2009) (quoting Houck v. Houck, 812 So. 2d 1139, 1142 (¶9) (Miss. Ct. App. 2002)); see also Miss. Code Ann. § 93-11-65(8)(a) (Supp. 2008).

¶14. As in Short, we find that the parties’ 2012 agreement, as embodied in the chancery court’s October 3, 2012 order, was indeed modifiable upon a showing that a material change in circumstances had occurred. In 2017, Sisco requested that DHS file a “Petition to Modify Final Judgment,” alleging a material change in circumstances because of the parties’ eldest child’s emancipation. Pumroy did not dispute that their child had been emancipated; instead, she simply contended that the chancery court could not modify the 2012 agreement until all of their children were emancipated. Based on the undisputed fact that the parties’ eldest child was emancipated, the chancellor granted Sisco’s requested modification and held that “the child support obligation of [Sisco] be reduced to the statutory guidelines.” Based upon the record before us, we find that the chancellor was not manifestly wrong in so ordering. We therefore affirm the child support modification.

Thoughtlings:

  • Don’t forget that child support may either be global (one amount for all children) or per-child (a set amount for each child). When the child support is global, whether to decrease child support on emancipation of one child is discretionary with the judge. The chancellor could find that the remaining children still need the same amount and refuse to decrease it.
  • Judgments for child support and alimony are modifiable, period. It matters not whether they were agreed. The chancellor probably wished he had a do-over in approving that 2012 agreed judgment. But sometimes, being human, we need to approve things we’d rather not after the parties have negotiated away a day of trial and everyone wants to go home.

Upward Modification of Child Support

March 10, 2020 § Leave a comment

A recent COA decision reminds of us of what the chancellor is supposed to consider when deciding whether an increase in child support is warranted.

In Best v. Oliver, decided February 11, 2020, the court affirmed a chancellor’s decision to increase child support. Judge McCarty wrote for the unanimous court, Carlton not participating:

¶8. Charles argues the increased expenses associated with K.O.B.’s advanced age and his increased income do not constitute a material change in circumstances warranting modification. He contends Kimberly failed to provide sufficient evidence of the increased expenses, and therefore the increase must be reversed.

¶9. A parent seeking modification of child support must show “a substantial or material change in the circumstance[s]” not reasonably foreseeable at the time of the most recent support decree. Id. at (¶6). Our Supreme Court has noted “[t]hat children’s expenses generally will increase as they get older, that the father and mother’s earning capacity will generally increase from year to year, and that inflation will continue at some level and will partially affect both the children’s expenses and the parents’ earning capacity.” Tedford v.
Dempsey, 437 So. 2d 410, 419 (Miss. 1983) (emphasis omitted).

¶10. While it is foreseeable that expenses increase with the natural growth of a child, the amount of the increase is not. Kilgore [v. Fuller], 741 So. 2d [351] at 353 (¶6). “As the Mississippi Supreme Court has recognized, rare is the child whose financial needs do not increase with age.” Id. (internal quotation marks omitted) (quoting Varner v. Varner, 588 So. 2d 428, 433 (Miss. 1991)). It would be unfair to require under the foreseeability test that the initial child-support award include anticipated future increased expenses. Id. Because it is impossible for a court to foresee in the initial support award what allowances to make for a child years into the future, we leave that for modification proceedings. Id.

¶11. When determining whether modification of child support is warranted, the chancery court may consider the factors provided in Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985). [Fn 2] “Possible factors which may constitute a material change in circumstances are
increases in the children’s expenses; a substantial increase in the financial resources of the non-custodial parent; and inflation since the original decree.” Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). Evidence of a child’s increased “academic achievements and educational needs together with their extracurricular activities” may be considered in order to justify an increase in child support. Havens v. Broocks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).

[Fn 2] In determining whether a material change has occurred, chancery courts may consider “(1) the increased needs caused by advanced age and maturity of the children[,] (2) increase in expenses,[] (3) inflation factor[,] . . . (4) the relative financial condition and earning capacity of the parties, (5) the health and special medical needs of the child, both physical and psychological, (6) the health and special medical needs of the parents, both physical and psychological, (7) the necessary living expenses of the [paying party], (8) the estimated amount of income taxes that the respective parties must pay on the incomes, (9) the free use of residence, furnishings, and automobile and (10) such other facts and circumstances that bear on the support as shown by the evidence.” [Adams] Id. (citations omitted).

¶12. We are satisfied that the chancery court’s factual findings were supported by substantial, credible evidence. As evidenced in its order, the chancery court considered all of the Adams factors. The chancery court found that the combination of increased expenses
associated with raising K.O.B., Charles’ substantial increase in income, Kimberly’s changed financial position, and inflation constituted a material change warranting a modification of child support. Furthermore, the chancery court rejected Kimberly’s request for the most part, tailoring the support increase to $1,000 per month rather than the requested $3,000 per month. We find that the chancery court did not abuse its discretion. Accordingly, we affirm.

¶13. Charles also argues that Kimberly’s new husband’s income should be a factor in determining the amount of support to award. However, “[w]e know of no reason in law, morality or common sense why a father’s obligation to support his children should be
minimized because his ex-wife remarries well.” Tedford, 437 So. 2d at 420.

¶14. Because the chancery court’s decision was within its discretion, we affirm.

High Income and College Support

February 24, 2020 § 3 Comments

In the COA case, Descher v. Descher, rendered January 14, 2020, the court considered Jeffrey Descher’s argument that the chancellor had erred in ordering him to pay college support for his two children. Judge Lawrence wrote the 7-2 affirming opinion (Tindell not participating) on the issue:

¶15. Jeff next argues that it was manifest error to require him to be obligated for all of the children’s college tuition and related expenses. The chancellor’s judgment stated in part:

Jeff shall be responsible for the reasonable cost and expense of both [the children’s] college or university education, to include tuition, room and board, meals, laboratory fees, books, sorority or fraternity dues and expenses, automobile expenses, and any other cost generally associated with attendance at a four-year public or private college or university, either in-state or out-of-state. . . .

Jeff believes that this exposes him to an endless list of expenses that are unforeseeable. Additionally, Jeff argues the chancellor erred and failed to consider a reduction of his child support obligation once the children enter college.

¶16. The Mississippi Supreme Court has held that the chancery court may require a parent to pay for college tuition and expenses “when a [parent’s] financial ability is ample to provide a college education and the child shows an aptitude for such. . . .” A.M.L. v. J.W.L., 98 So. 3d 1001, 1020 (¶54) (Miss. 2012) (quoting Saliba v. Saliba, 753 So. 2d 1095, 1101 (¶21) (Miss. 2000)). This authority, however, is not absolute and should be taken on a case by-case basis “dependent upon the proof and circumstances [presented].” Saliba, 753 So. 2d at 1102 (¶24).

¶17. Jeff first claims that because the chancellor failed to set a dollar amount on the award of college support and because the judgment did not require that the children attend an in-state college or university, he is open to insurmountable costs that the chancellor could not properly consider at the time of the trial. Jeff cites the supreme court’s holding in A.M.L. and claims that the law requires the chancellor make what Jeff describes as “specific findings on the record to support an award for expenses.” In A.M.L., however, the supreme court remanded the case for the chancellor to make a specific determination of what college expenses were required only because the chancellor had noted in her order that “[a]ll other aspects of the college expenses as set out in the original [Agreement] shall remain in full force and effect.” A.M.L., 98 So. 3d at 1021 (¶¶57-58). In this case, the chancellor was specific as to the exact expenses that Jeff was required to fulfill. Further, Jeff acknowledged that he had already created trust funds for the children’s college education.

¶18. More in line with the facts of this case is the holding in Saliba v. Saliba, in which the supreme court determined that a father was required to pay for college expenses for his daughter even if the child chose an out-of-state college or university. Saliba, 753 So. 2d at 1103 (¶27). The court noted that when a parent is financially able, a child “is entitled to attend college in accord with [the child’s] family standards.” Id. at 1102 (¶27) (emphasis omitted) (quoting without reference Rankin v. Bobo, 410 So. 2d 1326, 1329 (Miss. 1982)) (citing Wray v. Langston, 380 So. 2d 1262 (Miss. 1980)). The Mississippi Supreme Court reasoned that David Saliba was wealthy and able to provide a college education to any institution his daughter chose. Id. at 1103 (¶27). Specifically, the supreme court stated that “[the father] is able and should be required to contribute to the college education at an institution of his daughter’s choice, commensurate with her parents’ station in life.” Id. Based on the record before this Court, Jeff is more than able to provide his children with collegiate education “commensurate with [their] parents’ station in life” and, in fact, has
already set up and partially funded college-expense trust funds for the children.

¶19. While Jeff argues that the chancellor failed to make a detailed finding regarding whether the college-expense support obligation minimizes his child support obligation, the laws of this State say differently: “payments toward education are seldom used to offset child support ‘as they do not diminish the child’s need for food, clothing and shelter.’” Weeks v. Weeks, 29 So. 3d 80, 88 (¶34) (Miss. Ct. App. 2009) (quoting Fancher v. Pell, 831 So. 2d 1137, 1142 (¶23) (Miss. 2002)). There is no guarantee that the children will not live with April during the summer or at any other time when their respective universities are closed for the holidays, meaning that April will need to provide food and maintain the home, among
other things.

¶20. Jeff preemptively argues for a modification of his child support obligation before the children are of the age to go to college. “To obtain a modification in child support payments, there must be a ‘substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought to be modified.’” McEwen v. McEwen, 631 So. 2d 821, 823 (Miss. 1994) (quoting Gillespie v. Gillespie, 594 So. 2d 620, 623 (Miss. 1992)). Jeff earns $71,377.67 per month after taxes and now owns either a half or full interest (without a split for the marital estate) in thirteen McDonald’s restaurants, an apartment complex, a car wash, and an office complex; he is certainly capable of paying future college expenses without causing a financial hardship. Jeff has also added a new McDonald’s restaurant to his portfolio since April filed for divorce. The record is silent as to any material change that Jeff may have suffered at this point or how the payments of college expenses would be a financial hardship on Jeff, especially considering that the children had college-expense trust funds established before the divorce. Therefore, the chancellor did not commit manifest error in obligating Jeff to pay for his children’s college expenses.

 

High Income and Child Support

February 12, 2020 § Leave a comment

When April and Jeffrey Descher were divorced, the chancellor ordered Jeffrey to pay April $7,500 a month in child support, even though the evidence was that the children’s monthly expenses did not exceed $3,400. Jeffrey appealed, arguing that the child support was excessive.

In a January 14, 2020, ruling the COA affirmed. Judge Lawrence’s opinion on this issue in Descher v. Descher follows:

¶10. Based on April’s Rule 8.05 financial statement, the children have estimated monthly expenses of $3,402.33. That sum includes $1,208.33 in health and dental insurance and other out-of-pocket medical expense, which the chancellor ordered Jeff to pay. Following the chancellor’s order, the children’s total estimated monthly expense would be $2,194 per month. The chancellor awarded a total of $7,500 in monthly child support. Jeff claims that the award is excessive because the children’s stated expenses are less than half of what the chancellor ordered. Additionally, Jeff claims that the chancellor erred because he did not make a “specific finding” to support the award as required by Mississippi Code Annotated section 43-19-101(4) (Rev. 2015).

¶11. The statute indicates that for two children the chancellor could award twenty percent of the parent’s adjusted gross income (AGI) for support. Id. § 43-19-101(1). Where the parent makes more than $100,000 annually, however, the chancellor may deviate from the statutory guidelines by making a “written finding in the record as to whether or not the application of the guidelines . . . is reasonable.” Id. § 43-19-101(4). An upward deviation by the chancellor of a child-support obligation may be valid if the increase provides for the children in a manner in which they have become accustomed. Crittenden v. Crittenden, 129 So. 3d 947, 959 (¶42) (Miss. Ct. App. 2013).

¶12. The chancellor found that Jeff’s adjusted net income was $71,377.67 per month or $856,532.04 per year. That amount would have produced a monthly child-support obligation of $14,274.33 if the chancellor had applied the statutory guidelines in subsection 43-19-101(1). The chancellor made a downward deviation of under twenty percent in Jeff’s favor. Jeff, however, still complains to this Court that the amount is too much.

¶13. This Court has previously rejected “the argument that equates reasonable support with subsistence” and adopted the view that “the ‘reasonable needs’ of the child ought to be viewed at least as broadly as the reasonable needs of a wife seeking alimony.” Ali v. Ali, 232 So. 3d 770, 777 (¶21) (Miss. Ct. App. 2017). The monthly expenses provided for in a party’s Rule 8.05 financial statement do not set a cap on an award of child support. Even if a child’s basic needs are met, “[i]t is not an abuse of discretion for the chancellor to consider the standard of living to which the child is accustomed in deciding what amount of support is reasonable.” Ali, 232 So. 3d at 777 (¶21) (citing Moulds v. Bradley, 791 So. 2d 220, 228-29 (¶24) (Miss. 2001) (Diaz, J., concurring)). Even though April claimed less than $4,000 in monthly expenses for the children, her Rule 8.05 declaration did not cap out the maximum amount of child support the chancellor could grant. Jeff’s monthly income and his earning potential far surpass April’s. As Justice Diaz said in his concurring opinion in Moulds, “[t]he trial court should not limit the amount in child support to the child’s ‘shown needs,’ because a child is not expected to live at a minimal level of comfort while the non-custodial parent is living a life of luxury.” Moulds, 791 So. 2d at 229 (¶26) (Diaz, J., concurring) (citing People ex rel. Graham v. Adams, 608 N.E.2d 614, 616 (Ill. App. Ct. 1993)). The Rule 8.05 financial statement is not a locked-in-time child support determination. The children were accustomed to a standard of living where their father made $71,377.67 per month. They are now living on $7,500 per month.

¶14. This Court is not a finder of fact, nor do we apply our own discretion in place of the chancellor’s. The chancellor issued a thirty-two page judgment that clearly articulated his findings of fact from the evidence presented and the correct legal standards. This Court only reverses the decision of a chancellor if his decision is not supported by the record, results in manifest error, or is an abuse of discretion. Here, the chancellor’s award of child support is supported by the record, and his decision was not manifest error, nor an abuse of discretion.

Interesting. There are cases as this does that say the statutory “guidelines” are just that, and that the chancellor must apply some discretion for the best interest of the children. And there are cases that require strict application; in one case I was reversed solely to correct my arithmetic in calculation because I had rounded up.

It is What it is

December 2, 2019 § Leave a comment

When it comes to contract interpretation, the first rule is that, if the language is unambiguous, the judge is bound by the language in the four corners of the document. The language there is what the parties agreed to, and that is what will be enforced. Settlement agreements incorporated into divorce judgments are contracts subject to the rule.

Jerry Collado and his wife Jennifer (now Tyndall) got an irreconcilable differences divorce. Their settlement agreement included this language:

“Husband agrees to continue to pay for the minor children’s private school education, so long as the parties jointly agree for the children to be enrolled in private school, including tuition and registration fees, continuing through each child obtaining a high school diploma … “

When Jerry decided that he no longer agreed for all of the children to attend private school, Jennifer filed a petition to modify seeking an order requiring Jerry to continue to pay private school expenses for all of the children. At hearing, Jerry testified that he had agreed to the language in the agreement because he wanted to pay the private school expenses as long as he was able, but overtime had become uncertain and his expenses had increased, so that he suggested only the two older children finish at the private school.

The chancellor ruled that the children had always attended the private school, Jerry had always paid, and his financial statement did not support his claim that he was financially unable to pay. He ordered Jerry to pay, and Jerry appealed.

In Collado v. Tyndall, decided October 8, 2019, the COA reversed and rendered. Judge Jack Wilson wrote the opinion for a unanimous court:

¶6. On appeal, Chris argues that the chancellor erred by modifying the clear and unambiguous terms of the parties’ child custody and property settlement agreement. He argues that the chancellor should have applied principles of contract law to the agreement and should not have considered his ability to pay. In contrast, Jennifer argues that a provision requiring a party to pay private school tuition is in the nature of child support and therefore is subject to modification.

¶7. We will affirm a chancellor’s findings of fact as long as they are supported by substantial evidence and are not clearly erroneous. Campbell v. Campbell, 269 So. 3d 426, 430 (¶13) (Miss. Ct. App. 2018), cert. denied, 258 So. 3d 285 (Miss. 2018). Our standard of review on pure issues of law is de novo. Id.

¶8. When, as in this case, the parties have complied with the irreconcilable differences divorce statute, their agreement concerning matters of custody, support, alimony, and/or property division “becomes a part of the final decree for all legal intents and purposes.” Switzer v. Switzer, 460 So. 2d 843, 845 (Miss. 1984). With respect to the division of marital property, the agreement “is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” East v. East, 493 So. 2d 927, 931-32 (Miss. 1986). Therefore, “when parties in a divorce proceeding have reached an agreement that a chancery court has approved, . . . we take a dim view of efforts to modify [provisions regarding the division of property] just as we do when persons seek relief from improvident contracts.” Ivison v. Ivison, 762 So. 2d 329, 334 (¶14) (Miss. 2000).

¶9. However, provisions of the agreement regarding child support are treated differently. A court-approved agreement to pay child support is subject to modification, and the rules governing its modification “are the same as if the chancellor had made a support award after a contested divorce trial.” Tedford v. Dempsey, 437 So. 2d 410, 417 (Miss. 1983). That is, the party seeking a modification of the agreement to pay child support bears the burden of proving “a material change in circumstances” that was “not foreseeable prior to the time of the agreement.” Finch v. Finch, 137 So. 3d 227, 237 (¶33) (Miss. 2014).

¶10. Jennifer is correct that “private-school tuition is considered part of child support.” Bruton v. Bruton, 271 So. 3d 528, 534 (¶16) (Miss. Ct. App. 2018) (citing Southerland v. Southerland, 816 So. 2d 1004, 1006 (¶11) (Miss. 2002)); accord, e.g., Gunter v. Gunter, No. 4 2017-CA-01767-COA, 2019 WL 1529265, at *2 (¶11) (Miss. Ct. App. Apr. 9, 2019); Elkins v. Elkins, 238 So. 3d 1204, 1211 (¶21) (Miss. Ct. App. 2018); Moses v. Moses, 879 So. 2d 1043, 1048 (¶14) (Miss. Ct. App. 2004). Therefore, provisions of a settlement and judgment concerning the payment of private school tuition are subject to modification.

¶11. However, Jennifer failed to prove any “material change in circumstances” that was “not foreseeable prior to the time of the agreement.” Finch, 137 So. 3d at 237 (¶33). The only thing that changed was Chris’s position as to where two of his four children should go to school. Chris’s decision that two of his children should attend public school was a change in circumstances, but it was a change that the parties’ court-approved settlement agreement expressly contemplated. The agreement requires Chris to pay private school tuition only “so long as the parties jointly agree for the children to be enrolled in private school.”

¶12. This Court recently addressed an analogous issue in Campbell, supra. There, we held that the emancipation of one of the parties’ four children did not support a court-ordered modification of child support because the parties’ original child support agreement specifically provided for a $1,250 reduction in child support upon the child’s emancipation. Campbell, 269 So. 3d at 430-31 (¶¶14-16). We explained that when the parties’ agreement already provides for the possibility of a specific change in circumstances, that “exact situation” cannot be deemed “unforeseen” or “unanticipated”—and,therefore, cannot support a modification of support. Id. The same reasoning applies in this case. The parties’ court approved agreement specifically contemplated that Chris might decide that some or all of his children should no longer attend private school. Thus, Chris’s decision was foreseeable and is not a basis for a modification of support.

¶13. Under the terms of the parties’ agreement, Chris is not required to continue to pay private school tuition if he does not agree that his children should continue to attend a private school. The chancellor disagreed with Chris’s claim that he could not afford to continue to send all four of his children to private school. However, the parties’ court-approved agreement did not require Chris to persuade the court of the reasons for his decision regarding his children’s schooling. And Jennifer failed to prove any material, unforeseen change in circumstances that would have supported a modification of the agreement. Therefore, the chancellor erred by ordering Chris to continue to pay tuition for children that
Chris preferred to send to public school.

Can’t think of anything to add to that.

Authentication of an Acknowledgment of Paternity and the Notary’s Duty to Record

October 15, 2019 § 1 Comment

When Lora Ledet was 8 or 9 months pregnant, she began dating Spencer Diaz. When her son was born no father was listed on the birth certificate, and the child’s surname was that of his mother.

Lora and Spencer began living together, and, in April, 2014, an acknowledgment of paternity was filed per MCA 93-9-28 showing Spencer as the child’s father. The Department of Vital Records issued a revised birth certificate showing Spencer as the father and changing the child’s last name to Diaz.

After Lora and Spencer separated in October, 2015, DHS filed a complaint for child support. Spencer answered that the complaint was the first knowledge he had that he had been added to the child’s birth certificate, and that the acknowledgment was a forgery. He asked the court to disestablish paternity and terminate parental rights. Following a hearing, the chancellor denied him relief.

Spencer appealed, and two issues he raised were that the chancellor erroneously admitted the acknowledgment into evidence, and that its notarization was ineffective due to the notary’s failure to record the transaction.

On September 10, 2019, the COA affirmed in Diaz v. DHS and Ledet. Judge Westbrooks first laid out the standard to be applied when reviewing a trial judge’s ruling on admissibility of evidence:

¶6. “The admission of evidence is within the discretion of the chancellor, and reversal is not warranted unless judicial discretion is abused.” Sproles v. Sproles, 782 So. 2d 742, 749 (¶29) (Miss. 2001) (citing Smith v. Jones, 654 So. 2d 480, 486 (Miss. 1995)).

She then turned her attention to Spencer’s arguments on admission of the document into evidence and notary’s record-keeping:

¶7. Under Mississippi Code Annotated section 41-57-9 (Rev. 2013), “[a]ny copy of the records of birth, sickness or death, when properly certified to by the state registrar of vital statistics, to be a true copy thereof, shall be prima facie evidence in all courts and places of the facts therein stated.”

¶8. Moreover, the simple acknowledgement of paternity form was submitted in accordance with Mississippi Code Annotated section 93-9-28. There is a method for an alleged father to voluntarily acknowledge a child as his own. In In re Estate of Farmer ex rel. Farmer, 964 So. 2d 498, 499-500 (¶4) (Miss. 2007), the Mississippi Supreme Court held that “Mississippi Code Annotated Section 93-9-28 (Rev. 2004) establishes a procedure by which the natural father of a [child born out of wedlock] may voluntarily acknowledge the child as his own.” “[T]he execution of [an] acknowledg[]ment of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child.” Id. (alteration in the original). Section 93-9-28(1) provides:

The Mississippi State Department of Health in cooperation with the Mississippi Department of Human Services shall develop a form and procedure which may be used to secure a voluntary acknowledgement of paternity from the mother and father of any child born out of wedlock in Mississippi. The form shall clearly state on its face that the execution of the acknowledgement of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child. The form shall also clearly indicate the right of the alleged father to request genetic testing through the Department of Human Services within the one-year time period specified in subsection (2)(a)(i) of this section and shall state the adverse effects and ramifications of not availing himself of this one-time opportunity to definitively establish the paternity of the child. When such form has been completed according to the established procedure and the signatures of both the mother and father have been notarized, then such voluntary acknowledgement shall constitute a full determination of the legal parentage of the child. The completed voluntary acknowledgement of paternity shall be filed with the Bureau of Vital Statistics of the Mississippi State Department of Health. The name of the father shall be entered on the certificate of birth upon receipt of the completed voluntary acknowledgement.

¶9. Here, Diaz maintains that the notary’s failure to have the parties sign the book under Mississippi Code Annotated section 25-33-5 (Rev. 2010) prohibits the admittance of the acknowledgment and reissued birth certificate. This Code section provides that “[e]very notary public shall keep a fair register of all his official acts, and shall give a certified copy of his record, or any part thereof, to any person applying for it and paying the legal fees therefor.” The statute requires only that the notary keep a record of all of [the] official acts. The section does not outline how to maintain that record. But Title 1 of the Mississippi Administrative Code, part 5, rule 5.16(B) (Nov. 30, 2011) provides that “[i]f the principal is not personally known to the notary, the notary may require, the signature of the principal . . . .” (Emphasis added).

¶10. Our Mississippi Supreme Court has held that the mere failure to strictly follow form will not render an acknowledgment void. See Estate of Dykes v. Estate of Williams, [Fn omitted] 864 So. 2d 926, 931 (¶20) (Miss. 2003); see also in re Jefferson, No. 11-51958-KMS, 2015 WL 359901, at *5 (Bankr. S.D. Miss. Jan. 26, 2015) (holding that Mississippi Code Annotated section 25-33-5 (Rev. 2010) does not indicate that a notarization not properly recorded in the notary’s log book is void, nor does it indicate that the notarized document is rendered defectively acknowledged due to the recordation failure).

¶11. In accordance with Mississippi caselaw, we find that lack of logbook entry does not deem the acknowledgment void. The chancery court considered all the testimony presented during the trial and followed the statutory procedures set forth in admitting the documents into evidence. Accordingly, we find no error.

A couple of thoughts:

  • Paragraph 6 is a reminder that it is awfully tough to reverse a chancellor on admission of evidence in a bench trial, which is understandable because there is no jury to protect from harmful influences.
  • The most complicated aspect of this case is the confuseration of spelling between “acknowledgment” and “acknowledgement.” Both are correct; however, the version with no “e” after the “g” is the preferred American usage, and the other is preferred in the UK, like “judgment” (American) and “judgement” (British).

Voluntary Reduction in Income

July 31, 2019 § 2 Comments

During a period when he was earning between $186,000 and $229,000 working in foreign countries, David Martin entered into an agreed judgment in 2014 to pay his ex, Wendy Borries, $2,000 a month in child support.

Martin’s employment contract ended in May, 2015, and he relocated from overseas to Mississippi. Unable to find employment at his former level of income, he took a job at Ingalls Shipbuilding as an electrician earning $4,200 a month.

In April, 2016, Martin filed a petition for downward modification of support, citing his reduction in income. Borries counterclaimed to require Martin to pay half of the oldest child’s college expenses.

Following a hearing, the special chancellor denied Martin’s request for modification and ordered him to pay half of college, with a small reduction in his child support. Martin appealed, claiming error in the court’s refusal of his modification request.

In Martin v. Borries, handed down June 18, 2019, the COA affirmed. Chief Judge Barnes wrote for the court:

¶8. The chancery court denied Martin’s petition for modification, finding he had “failed to prove to the [c]ourt a substantial and material change in circumstances since the February 28, 2014, [a]greed [j]udgment of [m]odification.” In its findings, the court placed “great weight” in Martin’s earning capacity and concluded that his reduction in income was voluntary.

¶9. “There can be no modification of a child support decree absent a substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought to be modified.” Evans v. Evans, 994 So. 2d 765, 770 (¶16) (Miss. 2008) (quoting Gillespie v. Gillespie, 594 So. 2d 620, 623 (Miss. 1992)). One factor to be considered in assessing whether a material change in circumstances has occurred warranting modification of child support “is the relative financial condition and earning capacities of the parties.” Bailey v. Bailey, 724 So. 2d 335, 337 (¶7) (Miss. 1998) (citing Caldwell v. Caldwell, 579 So. 2d 543, 547 (Miss. 1991)). But “[t]he change must be one that cannot have been reasonably anticipated at the time of the original decree and one that reasonably affects the parties’ ability to abide by the original decree.” Howard, 968 So. 2d at 972 (¶24) (citing Poole v. Poole, 701 So. 2d 813, 818 (¶¶19, 21) (Miss. 1997)). Martin claims that he suffered a material change in circumstances that was unforeseeable and “came through no fault of his own.” Therefore, he argues that the court’s findings were “manifestly wrong.”

¶10. In Tingle v. Tingle, 573 So. 2d 1389, 1391 (Miss. 1990), the chancery court granted a father’s petition to reduce his child-support obligation after the father quit a steady, wellpaying job to attend college full-time. The Mississippi Supreme Court noted that when the father entered into the divorce decree awarding child support—only six months before filing the petition for modification—“it [was] reasonable to believe that this action . . . was anticipated.” Id. at 1392. The supreme court, therefore, concluded that “under the facts of the case at bar, the unilateral acts of the appellee do not justify a reduction in his child support obligation” and reversed the chancery court’s decision. Id. at 1393. Subsequently, in Bailey, the supreme court reversed and remanded a chancellor’s decision to reduce a mother’s child-support obligation after she left her employment to stay at home with a new baby. Bailey, 724 So. 2d at 337 (¶6). Concluding that the mother’s actions constituted a voluntary reduction in income, the Bailey Court reasoned that it would be inequitable for one parent to quit his or her job by choice and expect the other parent “to pick up the slack” without having any vote in the matter. Id. at 338 (¶10).

¶11. At trial, Martin testified that he had worked offshore in project management for eight years and that his adjusted gross income in 2013 was $186,782 and $229,000 in 2014. He earned $184,716 from January to June 2015. When Martin entered into the agreed order in 2014, he was aware that his project assignment had a finite duration. Furthermore, although Martin claims that the job market was “difficult” and that he was unable to find equivalent employment to his prior job, there was testimony that there were job opportunities available to him, which for his own personal reasons, he found unappealing.

Q. And you would admit to His Honor there are postings now on Rigzone that you certainly would be qualified for?

A. There are postings on Rigzone that I would certainly be qualified for.

. . . .

But what I do know is there are various countries in this world that I absolutely will not work in because of the nature that our world is in right now . . . they’re high-risk areas.”

As the chancery court observed, it was Martin’s decision “not to return to his high paying career unless he [could] choose the country to which he would go,” and Martin admitted before the court that taking the job at Ingalls for less pay was “a choice that I have made.” Our Court has held that a minor child “should not suffer a diminution in support because of [the father’s] unilateral act based upon personal preferences about his workplace.” Pullis v. Linzey, 753 So. 2d 480, 485 (¶11) (Miss. Ct. App. 1999). Martin also acknowledged that three months after his contract ended, he bought his wife a new Mercedes for $38,223.

¶12. Borries also testified that Martin had been planning to quit working offshore for a while:

A. He has told me for years that he was going to quit his job and come work at Ingalls, and I wasn’t going to be getting the child support that I was getting.

Q. What did he describe it as? What was the word he used to describe his payments to you?

A. The gravy train.

Q. Okay. So [Martin] said that he was going to quit working overseas, come work at the shipyard, and that, quote, the gravy train–what would happen to the gravy train?

A. It was going to stop.

Q. Okay. And so he told you he was going to do this?

A. He has told me numerous times over the years. He told me he was going to quit his job as soon as . . . he married this woman.

. . . .

So he has told me that when [his wife] gets her citizenship and she–he moves her over here, he’s going to quit working offshore and find a job here, and he wasn’t going to be paying child support because the gravy train was going to stop. And he has told me that so many times it’s not even funny.

In Leiden v. Leiden, 902 So. 2d 582, 585 (¶¶12, 14) (Miss. Ct. App. 2004), this Court affirmed a chancellor’s decision to deny modification of child support when the father’sactions in terminating his employment were voluntary and the evidence showed that he “had planned to take an early retirement.”

¶13. We find this case similar. The evidence reflects that Martin planned to quit his overseas job and return to Mississippi for less pay. These actions were voluntary and anticipated. Finding no manifest error in the chancery court’s determination that Martin voluntarily reduced his income, we affirm the court’s denial of the petition for modification.

Don’t you wish you had a crystal ball that would reveal all of your prospective client’s statements against interest before you decided to get into the case? Gravy train, indeed.

Child Support Plus

April 29, 2019 § 3 Comments

Henry and Elizabeth Gunter consented to a divorce on the sole ground of irreconcilable differences, agreeing that they would share joint legal custody, and that Elizabeth would have physical custody of their three children. They submitted the issues of child support, private-school costs, extracurricular expenses, and uninsured medical expenses to the court for adjudication.

The chancellor ordered Henry to pay monthly child support in the sum of $918, which was 22% of his AGI. She also ordered the parties to pay one-half each of private-school tuition, daycare expense, extra-curricular activities, and non-covered medical expenses. Henry appealed, complaining that guideline support plus the additional payments amount to 43.2% of his monthly AGI, and, therefore, are excessive and erroneous.

In Gunter v. Gunter, handed down April 9, 2019, the COA affirmed in part and reversed and remanded in part. Judge Greenlee wrote for the unanimous court:

¶8. A chancery court has discretion in determining an award of child support. Harden v. Scarborough, 240 So. 3d 1246, 1255 (¶26) (Miss. Ct. App. 2018). And this Court will not find an abuse of discretion when “the required support [is] equal to the amount that is presumptively correct under the child-support guidelines.” Mosher v. Mosher, 192 So. 3d 1118, 1126 (¶38) (Miss. Ct. App. 2016).

¶9. Henry indicated in an affidavit that his adjusted gross income was $4,173.84 per month. The chancery court awarded Elizabeth 22% of this amount, or $918 per month. This is the percentage detailed by our code for the support of three children. Miss. Code Ann. § 43-19-101(1) (Rev. 2015). But the chancery court continued with additional monetary awards that included private-school tuition, daycare, extracurricular expenses, and uninsured medical expenses. Although the chancery court does not explicitly state so in the judgment, these additional inclusions depart from the statutory guidelines. Under the chancery court’s judgment, Henry would make all of the following monthly payments to Elizabeth: $918 for child support, $550.42 for private-school tuition, [Fn omitted] $260 for daycare, [Fn omitted] and $75 for uninsured medical expenses. This amounts to monthly payments of $1,803.42, or 43.2% of Henry’s adjusted gross income. [Fn omitted]

¶10. The guidelines are, however, merely guidelines, and they “do not control per se the amount of an award of child support.” Clausel v. Clausel, 714 So. 2d 265, 267 (¶8) (Miss. 1998). Because the chancery court “has special knowledge of the actual circumstances,” McEachern v. McEachern, 605 So. 2d 809, 814 (Miss. 1992), a departure is permissible when the chancery court “mak[es] a written finding on the record that the application of the guidelines would be unjust or inappropriate . . . .” Dunn v. Dunn, 695 So. 2d 1152, 1155 (Miss. 1997).

I. Private-School Tuition

¶11. Our caselaw indicates that private-school tuition costs should be treated as a part of child support and should not be “calculated separately from and in addition to the support award.” Southerland v. Southerland, 816 So. 2d 1004, 1006 (¶11) (Miss. 2002). Our own court has held that “[r]equiring [an ex-spouse] to pay half of the tuition over and above the statutory [amount] without a written or specific finding by the chancellor as to why the deviation is needed renders the award inappropriate.” Moses v. Moses, 879 So. 2d 1043, 1048 (¶14) (Miss. Ct. App. 2004). And we have followed this precedent. E.g., Davis v. Davis, 983 So. 2d 358, 363 (¶22) (Miss. Ct. App. 2008) (“Thus, the private school tuition normally must be considered as child support.”). The judgment from the chancery court does not include the pertinent information as to why the deviation is needed.

¶12. The transcript, however, reveals the chancery court’s reasoning was that the children had attended private school nearly all their lives and Elizabeth wanted to continue to send them to private school. Although such a ruling may be permissible, see In re C.T., 228 So. 3d 311, 316 (¶10) (Miss. Ct. App. 2017) (holding that the chancery court did not abuse its discretion in “allocating to [parent with primary physical custody] the decision-making authority in regard to where the child attends school”), reh’g denied (Oct. 17, 2017), the chancery court must make “a written or specific finding” as to why that deviation is required. Therefore, this Court reverses and remands the specific issue of private-school tuition to the chancery court for further proceedings for findings consistent with this opinion.

II. Daycare

¶13. Henry also disputes the inclusion of daycare costs beyond his monthly child support payments. The chancery court found “it . . . only fair that [Henry] pay one half of the day care expenses so that the mother can go to work.” This is a justifiable deviation from the guidelines. E.g., Marin v. Stewart, 122 So. 3d 153, 157 (¶12) (Miss. Ct. App. 2013) (“The chancellor’s reasoning properly falls under section 43-19-103(i) [Supp. 2012], as the child must go to daycare in order for Stewart to retain employment. Therefore, there is sufficient evidence to justify the chancellor’s determination that the application of the guidelines were inappropriate.”). Henry’s contention is meritless, and therefore we affirm the chancery court’s judgment on this issue.

III. Medical Expenses

¶14. Finally, Henry disputes the inclusion of uninsured medical costs, but he still recognizes that “the Court may consider and order him to pay one-half of the medical expenses of the minor children without running afoul of the guidelines.” He is correct; the chancery court’s judgment is in accordance with our caselaw. E.g.,Kilgore v. Fuller, 741 So. 2d 351, 356 (¶16) (Miss. Ct. App. 1999) (holding that health expenses are not included in the statutory guidelines). Again, his contention is meritless, and we affirm the chancery court’s judgment on this issue.

That’s some helpful authority for what it takes to support deviation from the child support guidelines.

Nowadays, it is absurd to believe that a child can be provided food, shelter, clothing, other necessities, education, transportation, physical activities, and entertainment for 14% of the payor’s AGI. For two children, that percentage becomes 10% each, and for three it’s a paltry 7 1/3% apiece. The children’s best interest demands deviation. Undivorced parents devote much more than 40% of their income to maintaining a household for the children. It’s not uncommon for parents to spend all they make and then load up credit cards for family vacations and amenities.

If you are representing the parent who will be receiving child support, you must make a record that will justify the court’s findings of fact that call for deviation. If you don’t, your client may have to settle for the statutory minimums.

Phantom Income and its Impact on Child Support

March 27, 2019 § 1 Comment

We continue in this trifecta of posts to dissect the immensely instructive MSSC case Williams v. Williams today, turning our attention to child support.

Although it has been famously said that the 8.05 financial statement is the “gold standard” of financial proof in chancery court (you can read about that here), the fact is that chancellors must often go beyond the 8.05 to make financial awards.

That’s what happened in the divorce between Tracy and Brent Williams. Tracy had claimed $1,010 in income on her 8.05, but the chancellor ordered her to pay $1,000 a month in child support. Tracy appealed, arguing that the trial court was in error.

The MSSC unanimously affirmed in Williams v. Williams, handed down January 17, 2019, in which Justice Beam wrote for the court:

¶12. “This Court has said that an award of child support is a matter within the discretion of the chancellor and that determination will not be reversed unless the chancellor was manifestly wrong in his finding of fact or manifestly abused his discretion.” Clausel v. Clausel, 714 So. 2d 265, 266 (Miss. 1998) (quoting Gillespie v. Gillespie, 594 So. 2d 620, 622 (Miss. 1992)). Furthermore, “[t]he process of weighing evidence and arriving at an award of child support is essentially an exercise in fact-finding, which customarily significantly restrains this Court’s review.” Id. at 266-67.

¶13. At the trial of this matter, Tracy alleged her adjusted gross income was $1,010.87 in her Uniform Chancery Court Rule 8.05 financial statement, so $1,000 in child support would consume all of her income. Tracy owns a daycare, Kaco’s Kids, and, according to the tax returns admitted into evidence at the trial, Tracy’s 2013 self-employment earnings were $152,090; her gross earnings were $242,763 per year, or $20,230.25 per month, in 2013. She testified that she paid over $15,000 to pay off the note on Tennessee property that she and Brent owned. She purchased a new home in October 2015. She refused to allow Brent to sell timber on the Tennessee property in order to pay the Tennessee’s property’s remaining debt and instead paid the note herself. Tracy’s daughter Kaitlyn testified that Tracy told her she had purchased an airplane and a boat.

¶14. While the standard for child support for one child is 14 percent of the adjusted gross income, pursuant to Mississippi Code Section 43-19-101 (Rev. 2015), a court may impute income to a payor whose reported income is clearly inadequate to support his or her actual lifestyle. See Deborah H. Bell, [… Bell on Mississippi Family Law] § 10.04[4][c] (1st ed. 2005). In Dunn v Dunn, on remand, a chancellor found that a father was not being honest about his ability to pay child support. Dunn v Dunn, 695 So. 2d 1152, 1156 (Miss. 1997). “The record reflects circumstances which do substantiate doubts about Michael’s inability to pay . . . his willingness to partake in various entertainment activities . . . .” Id. This Court affirmed the ruling of the chancellor, because the child support amount exceeded the statutory guidelines. Id.

¶15. The Court in Dunn analogized Grogan v. Grogan, in which this Court had held that a child-support award in excess of the statutory guidelines is appropriate when the chancellor is unsure about the father’s true earning potential. Dunn, 695 So. 2d at 1157 (citing Grogan v. Grogan, 641 So. 2d 734, 741 (Miss. 1994)). The Grogan Court had found that the chancellor did not err in imputing income to the father when evidence showed that he was not being truthful about his finances. Id.

¶16. Here, the chancellor found that “Mom is obviously . . . she is making quite a great deal of money.” Based on the evidence, the record does not support her claim that her adjusted gross income is $1,010.87; therefore, the chancellor properly imputed additional income to Tracy.

¶17. Tracy makes other arguments to contest the child-support award, but this Court finds these are without merit. Tracy argues that Kendall has no expenses. Although Kendall has a full scholarship to attend IMG Academy, which costs $78,000 a year, Brent is still responsible for $4,600 of Kendall’s other expenses, and the court found that Tracy should contribute. From the date Brent and Tracy separated, Tracy has not paid any child support for Kendall. Tracy argues that child support can be suspended during college and/or forfeited due to the child’s conduct; however, the chancellor already determined that Tracy would not be required to pay half of the college expenses if the child does not have a viable relationship with her. The Court is unpersuaded by Tracy’s attempt to argue that she needs a visitation schedule while simultaneously arguing she should not have to support the child who does not want to visit her. Accordingly, the chancellor did not err in requiring Tracy to pay child support in the amount of $1,000 per month.

Does anybody go over their clients’ 8.05’s with them for accuracy before going to trial anymore?

Agreements Against Public Policy

March 11, 2019 § Leave a comment

In a recent case, the COA was confronted with the question whether an agreement between the parties for lump-sum child support, incorporated into an irreconcilable differences divorce judgment, was enforceable. Lump sum child support is not allowable in Mississippi. Pittman v. Pittman, 909 So.2d 148, 152-53 (Miss. App. 2005). All of the authorities on Mississippi family law agree.

Kevin McCall filed a petition to modify his lump sum child support and added a R60 motion arguing that the provision was void as against public policy.

In McCall v. McCall, a January 29, 2019, decision, the COA ruled that the issue was no properly before the court because Kevin McCall had never appealed the 2014 divorce judgment that approved the agreement (interesting question: how does one appeal from an agreed judgment?). The opinion, penned by Judge Griffis, went on to add:

¶20. … Instead, this Court recognizes that “property settlement agreements are contractual obligations.” In re Estate of Hodges, 807 So. 2d 438, 442 (¶20) (Miss. 2002). The provisions of a property-settlement agreement executed prior to the dissolution of marriage must be interpreted by courts as any other contract. Id. at 445 (¶26). In East v. East, 493 So. 2d 927, 931-32 (Miss. 1986), the supreme court held that “[a] true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” [Fn omitted]

¶21. Although this Court does not authorize the award of lump sum child support, we recognize that circumstances may arise between divorcing parties, such as here, where the divorcing parties may determine that there is a just and a reasonable basis for a non-custodial parent to agree to pay the custodial parent a lump sum amount to satisfy child support obligations.

In a dissent, Judge McCarty took the position that the agreement was void as against public policy, and that the issue was properly before the COA via the R60 motion. Judge Westbrooks joined in the dissent.

It is well-settled in our law that the parties may agree to terms in an irreconcilable differences divorce that no judge could order in a contested case. For instance, they may agree that support for the child will continue beyond age 21, or that child support will exceed the guidelines. Or they may agree to forms of alimony that no judge could order. They may agree that lump sum alimony terminates on death.

It’s difficult to determine where the line is between what the chancellor may approve and what is void whether the chancellor approves it or not. I’ll post some thoughts tomorrow on provisions that our appellate courts have held to be unenforceable.

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