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.
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] acknowledgment 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).
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.
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.
¶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.
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[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?
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.
January 30, 2019 § 2 Comments
Tammy and Dennis Ratcliff were divorced in 2009. Tammy got custody of the parties’ daughter, SDR, and Dennis was ordered to pay child support.
In 2016, Tammy (now Hubbard), filed a contempt action against Dennis for unpaid child support. Dennis counterclaimed that SDR was emancipated and for termination of support.
Following a hearing, the chancellor found no one in contempt, and ruled that SDR was emancipated on August 1, 2016. She ordered that Dennis would get a credit for child support he paid after the emancipation date, and that Tammy would have to repay him for it. Tammy appealed.
The COA reversed and rendered on the emancipation date, but affirmed on all other points in Hubbard v. Ratliff, handed down December 11, 2018. On the issue of the emancipation date, here is how Judge Tindell discussed the court’s holding:
¶2. Although the chancery court set SDR’s emancipation date at August 1, 2016, there is insufficient record evidence to support her emancipation on this date. Based on Hubbard’s testimony, the chancery court understood that SDR took some summer classes after graduating high school. The start and end dates of these classes do not appear in the record. Whether SDR was enrolled as a full-time or part-time student is not apparent. What is clear from the record is that SDR joined the military in November 2016.
So, SDR was emancipated as of November, 2016, by entry into military service, but Tammy continued to collect child support that was being withheld from Dennis’s pay check. The chancellor found that Tammy had to pay it back to him, but Tammy argued on appeal that she had no duty to do so. Here’s what the COA said:
¶12. Substantial evidence supports the chancery court’s factual findings regarding the payments made by Ratliff in support of SDR. The record shows child-support payments consistently being subtracted from Ratliff’s pay, and testimony supports the amounts of medical-insurance and dental-insurance payments also withdrawn twice a month. Further, the chancery court found Hubbard knew SDR was emancipated and yet allowed Ratliff’s payments to continue.
¶13. The supreme court has permitted a credit for child-support payments made after a child’s emancipation. See Dep’t of Human Servs. v. Fillingane, 761 So. 2d 869, 872 (¶13) (Miss. 2000); Sumrall v. Munguia, 757 So. 2d 279, 284 (¶28) (Miss. 2000). In Fillingane, the chancery court reduced a father’s arrearages to reflect the emancipation of his children. Fillingane, 761 So. 2d at 870 (¶6). In Sumrall, the father argued that the chancery court erred when it failed to reduce retroactively his child-support payments to the date his son entered college. Sumrall, 757 So. 2d at 284 (¶26). The Sumrall court agreed with the father’s contention that the chancery court should have retroactively reduced his child-support payments to the date his son entered college and ordered a retroactive modification. Id. at 284 (¶28). Furthermore, the Sumrall court stated that non-custodial parents should be allowed to prove that they should receive credit for child-support payments made from “the point in time where the changes occurred. . . .” Id. at 284 (¶27). “It would be unwise to unduly restrict a chancellor’s ability to make an equitable ruling” when “child[-]support payments were made on behalf of a child subsequent to that child’s emancipation.” Fillingane, 761 So. 2d at 872 (¶13).
¶14. Given the precedent that allows a chancery court the discretion to grant a parent credit for child support paid after a child’s emancipation, we find the chancery court did not abuse its discretion in crediting Ratliff for the payments made after his obligation terminated. To hold otherwise would “unduly restrict a chancellor’s ability to make an equitable ruling.” Andres v. Andres, 22 So. 3d 314, 319 (¶17) (Miss. Ct. App. 2009) (quoting Fillingane, 761 So. 2d at 872 (¶13)).
Given the court’s ruling that the emancipation date was some three months later than that found by the chancellor, what effect did that have on the court’s order for credit and repayment? Here:
¶15. Following the supreme court’s holding in Fillingane, the chancery court should have the discretion to “grant an obligor parent a credit for child-support payments which were made on behalf of a child subsequent to that child’s emancipation.” Fillingane, 761 So. 2d at 872 (¶13); see also Caldwell v. Caldwell, 823 So. 2d 1216, 1221 (¶19) (Miss. Ct. App. 2002). Although the chancery court specifically awarded Ratliff a judgment for nine months of reimbursement, that amount is hereby modified to six months of payments totaling $3,204.2 Sufficient support for these amounts are shown in Ratliff’s employer payment summary for the child-support payments, and through Ratliff’s sworn testimony for the medical and dental insurance paid monthly. We affirm the remainder of the chancery court’s order.
November 19, 2018 § 2 Comments
An endearing and prevalent romantic custom is to bestow a ring on one’s sweetheart. Quite often the ring is an emblem of engagement in the expectation of marriage. When the expectation is not realized, the gift is said to be conditional and remains the property of the donor, as in the Cooley case, which we discussed at this link. When the expectation does ripen into marriage, the ring is a gift to the donee as in the Lomax and Neville cases, which we discussed here.
A recent case presents a scenario somewhere between those two.
During the time that Dr. Christopher Cummins was separated from his wife, he became romantically involved with one of his employees, Leah Jordan (later Goolsby). Although Cummins had not divorced his wife, and never did at any time relevant to this case, he and Jordan began living together, and even became engaged, which Cummins memorialized with a gift of rings. Later, Jordan broke off the engagement and kept the rings. After Jordan filed a paternity suit against him, Cummins counterclaimed for the rings that he claimed were worth $11,435. He asked the court to order that the rings be returned, or that he have a credit for their value against court-ordered child support. He argued Cooley — that the conditional gift was never completed by marriage, and so had to be returned to the donor.
The chancellor ruled that the rings were a completed inter vivos gift because Cummins had never divorced his wife, rendering the condition impossible due to the fact that he could not legally marry Jordan. Cummins appealed.
In Cummins v. Goolsby, decided October 18, 2018, the MSSC affirmed. Justice Maxwell wrote the opinion for a unanimous court (Justice Coleman specially concurring):
¶9. Dr. Cummins argues that the chancellor failed to follow the Cooley v. Tucker decision. In that case, the Court of Appeals applied the following test to determine whether an engagement ring was a completed inter vivos gift: “(1) a donor competent to make a gift[;] (2) a voluntary act of the donor with donative intent[;] (3) the gift must be complete with nothing else to be done[;] (4) there must be delivery to the donee[; and] (5) the gift must be irrevocable.’” Cooley, 200 So. 3d at 476 (quoting Johnson v. Collins, 419 So. 2d 1029, 1030 (Miss. 1982)). Looking specifically at the third factor, the Cooley Court held that the engagement ring was an inter vivos gift, but it was conditioned upon the parties’ getting married. Id. And because the parties did not get married, the condition was unfulfilled and the gift was incomplete. Id. Thus, the former boyfriend was entitled to the return of the ring. Id. Dr. Cummins argues that, because he and Jordan did not get married, he is in the same position as the boyfriend in Cooley. He claims the third element of a completed inter vivos gift—that the gift was complete and nothing was left to be done—had not been met. So, he was entitled to the return of the rings.
¶10. But this case is not like Cooley.
¶11. First, we would note that the context is different. Cooley involved a replevin action filed by the former boyfriend after the dating relationship had ended. In this case, it was only after Jordan sued Dr. Cummins to establish paternityand to receive financial support for their child that Dr. Cummins asserted his counterclaim to the rings and specifically plead that the value of the rings should be credited against any financial obligation he owed to Jordan as their child’s father. Although the child-support issue is not before this Court on appeal, we find it worth noting that child-support benefits belong to the child, not to the custodial parent who receives the benefits under a fiduciary duty to use them for the benefit and protection of the child. Edmonds v. Edmonds, 935 So. 2d 980, 986 (Miss. 2006) (citing Caldwell v. Caldwell, 579 So. 2d 543, 549 (Miss. 1991)). So, even if Dr. Cummins had a right to the rings or to the rings’ value, by no means is he entitled to the ultimate remedy he seeks — a reduction in child support based on the broken engagement.
¶12. Second, and more importantly, unlike the boyfriend in Cooley, Dr. Cummins was married when he gave Jordan the rings. In fact, he was still married when he asked the chancery court to order Jordan to give them back. As the chancellor recognized, Dr. Cummins’s marriage is significant because he conditioned his gift on something he legally could not do—marry Jordan. See Miss. Code Ann. § 97-29-13 (Rev. 2014). And now he argues this very condition — or the failure thereof — is what entitles him to the rings.
¶13. “[O]ne of the maxims of equity is, ‘He who comes into equity must come with clean hands.’” Thigpen v. Kennedy, 238 So. 2d 744, 746 (Miss. 1970). And conditioning a gift on marriage when one cannot lawfully marry violates public policy and constitutes unclean hands. See, e.g., Morgan v. Wright, 133 S.E.2d 341, 343 (Ga. 1963) (holding that an action to recover an engagement ring given to a married woman was barred by the doctrine of unclean hands). Dr. Cummins could not legally marry Jordan at the time he gave her the rings. So, he cannot now bring an action for the rings to be returned because the condition of marriage never occurred. See Lipschutz v. Kiderman, 76 A.D.3d 178, 184 (N.Y. App. Div. 2010) (“[W]here a party gives an engagement gift to another with knowledge that an impediment to a lawful marriage exists, whether the impediment is on the part of the donor or the recipient, no action will lie to compel a return of the property on the ground that the condition of marriage did not take place.”).
¶14. Because, unlike the boyfriend in Cooley, Dr. Cummins had no right to have the rings returned as part of his paternity dispute with Jordan, the chancellor did not err when she awarded the rings to Jordan. We affirm the chancellor’s judgment.
Justice Coleman’s specially concurring opinion, joined in part by Beam, Ishee, and Randolph, points out that the law of promise to marry in Mississippi is governed by contract law, rather than by the law of gifts. It’s worth a read.
A few points:
- With this decision, we now have law covering the most common ring-gift situations: (1) the uncompleted gift conditioned on marriage, Cooley; (2) the gift completed by marriage, Lomax and Neville; and (3) the gift that was intended originally to be conditional, but cannot be completed due to impossibility, Cummins.
- Kudos to the court for invoking the maxims of equity.
- If you’re going to take up with someone else while separated from your spouse, for Pete’s sake don’t get engaged, and by all means don’t get carried away with engagement rings.
October 8, 2018 § 3 Comments
Lawyers try to get me to approve agreements for no child support, and usually exhaust themselves unsuccessfully in the effort. Here is the basis for my resistance:
Chroniger v. Chroniger, 914 So.2d 311, 316 (Miss. App. 2005):
¶ 17. Generally, the chancellor has wide discretion regarding modification of child support. Brawdy, 841 So.2d at 1178 (¶ 9). However, “[t]he welfare of children and their best interest is the primary objective of the law, and the courts must not accord to contractual arrangements such importance as to turn the inquiry away from that goal.” McManus v. Howard, 569 So.2d 1213, 1215–16 (Miss.1990). Further, “[c]hancellors should be reluctant to enter orders that do not require a non-custodial parent to pay an appropriate amount of child support,” and such orders “should be entered only in rare circumstances.” Brawdy, 841 So.2d at 1179 (¶ 16). The chancellor must additionally include detailed findings when entering an order denying child support from a noncustodial parent. See id.; cf. White v. White, 722 So.2d 731, 737 (¶ 41) (Miss.1997) (“This Court has consistently required chancellors to justify any departure from the statutory guidelines when setting child support awards in a detailed, written findings of fact and conclusions of law”). A substantial or material change in circumstances “not reasonably anticipated at the time of the previous agreement” may warrant modification of a child support award. Id. at 1178–79 (¶ 11).
Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss. 1991):
“There is another question here, apparently of first impression, as to whether the noncustodial parent can contract, under § 93–5–2, to end child support before his or her child reaches majority. Both parties cite Nichols v. Tedder, 547 So.2d 766, 770 (Miss.1989), which stated that “it is well recognized that a parent is relieved of the legal duty to support their child once the child is emancipated, by attaining the age of majority or otherwise.” Nichols found that this age of majority, for purposes of child care and maintenance orders issued pursuant to §§ 93–5–23 and 93–11–65, was twenty-one (21). Nichols did not mention § 93–5–2, though it did recognize the ability of parents to contract to provide support beyond the age of 21. Nichols, 547 So.2d at 770. This Court did state, in Calton v. Calton, 485 So.2d 309, 310 (Miss.1986), that “[t]he duty to support children is a continuing duty on both parents and is a vested right of the child. Applying [this principle], it follows that parents cannot contract away rights vested in minor children. Such a contract would be against public policy.” A limited exception is a paternity action such as found in Atwood v. Hicks by Hicks, 538 So.2d 404 (Miss.1989).
“To hold that a parent may contract to cut off child support at age 18 would conflict with the language of § 93–5–2 and the public policy supporting it. See Bell v. Bell, 572 So.2d 841 (Miss.1990) (provision of divorce decree mandating children’s residence in certain town until children reach majority is unenforceable). We do acknowledge that a child may not have a right to support to age 21, depending on the acts or activity of the child, but certainly parents cannot by contract terminate any of the rights of the child. It is accepted that an agreed final decree may be modified. Further, while a property settlement, judicially approved, is always given great weight by this Court, the agreement and weight given may not extinguish the rights of a minor child and cut off child support prior to emancipation, all to the detriment and interest of the child. As the Court stated in Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990), “[c]hild support is awarded to the custodial parent for the benefit and protection of the child. Child support benefits belong to the child, and not the parent who, having custody, receives such benefits under a fiduciary duty to hold and use them for the benefit of the child.” We hold that a child support agreement, submitted to the court pursuant to § 93–5–2, which ends support for a child before that child reaches the age of twenty-one or is otherwise emancipated, is unenforceable as to the rights of the child.”
September 12, 2018 § Leave a comment
Inability to pay is often asserted as a defense in contempt actions. All too often, though, it fails for insufficient proof.
The burden of establishing inability to pay is on the one claiming the defense. It must be shown “with particularity, and not in general terms.” That is the phrase used by the MSSC in McIntosh v. DHS, 886 So.2d 721, 725 (Miss. 2004), in which the court said:
¶ 13. McIntosh contends that he lacked the financial capability to pay his support obligation. He relies upon our decision in Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967), where we held that a husband may exonerate himself from failure to make alimony or child support payments because of his inability to pay. Yet while “a husband may exonerate himself from failure to make … child support payments as ordered, because of his inability to pay … his evidence must be made with particularity and not in general terms.” Id. at 278; see also Bailey v. Bailey, 724 So.2d 335, 337 (Miss.1998). In Hooker, the husband provided documents showing that his business and property had been foreclosed, that there were judgments for over $87,000 entered against him, [Fn omitted] and that he was unable to find employment. Hooker, 205 So.2d at 277. Such a dramatic change in circumstances was sufficient to protect Hooker from contempt of court. Id. at 278. [Fn 3]
[Fn 3] While a parent behind on child support payments may avoid contempt of court, they can never avoid the ultimate debt. For “[o]nce [child support rights] become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts.” Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992).
¶ 14. In contrast with Hooker, McIntosh provided no evidence of his inability to pay but merely described in general terms that he had no income or assets. McIntosh provided no medical records to support his alleged disability. He also provided no evidence to sustain his continued inability to seek employment. “Willful refusal to support one’s children is not the same as inability to pay.” Bailey, 724 So.2d at 337. Therefore, the chancery court did not err in finding McIntosh in contempt.
Financial difficulty does not constitute inability to pay. As Professor Bell points out, ” … [C]ontempt may be avoided only on proof that the payor lived economically, paid only bare living expenses, and used all remaining funds to satisfy the support obligation.” Bell on Mississippi Family Law, 2d Ed., § 14.05[a]. In Lane v. Lane, 850 So.2d 122, 125-126 (Miss. 2002), the court addressed the appellant’s proof at trial of inability to pay:
¶ 8. The chancellor found that Jimmy had failed to pay the $9,350 judgment rendered against him in September 1999, for accrued support and alimony obligations. Also, the court found that he had discontinued alimony and reduced child support payments which resulted in an arrearage of $7,800. The proof is uncontradicted that Jimmy had failed to pay these amounts. His defense was that he was unable to pay because he had suffered a reduction in income.
¶ 9. Further, Jimmy asserts that he had made good faith efforts to uphold his monthly obligations despite his reduction in income to $852 per month. He failed to show with particularity that he was earning all he could, that he lived economically, and paid all surplus money above living expenses to Dixie and Heather. During the hearing, he spoke of his present wife’s ailments and his surgeries as factors which required him to accept early retirement. Yet, he did not provide proof with particularity of these surgeries, his wife’s sickness, nor testimony of how these factors have hindered him from earning all he could. Regardless, Jimmy’s financial obligation to Dixie is paramount to the financial obligations he has as a result of his second marriage.
¶ 10. Moreover, Jimmy did not show that he earned all he could. There was no proof that he had searched for other employment within his town which would supplement his retirement and enable him to pay alimony and child support. Also, Jimmy had purchased a new Dodge pickup truck during the time he was claiming an inability to pay his alimony and child support. Seemingly, he used his surplus from expenses to pay himself instead of Dixie and Heather. Thus, absent Jimmy’s showing with particularity that he was earning all that he could, that he lived economically, and paid all surplus to Dixie, we find that the chancellor did not abuse her discretion in determining that Jimmy was in contempt for failing to pay the September 1999 judgment as well as the amounts which came due and payable thereafter. He cannot claim the benefit of a reduction in income because he did not appeal from the chancellor’s decision in 1998 that he voluntarily caused a reduction in his income. The record substantially supports the chancellor’s decision; therefore, we affirm her finding of contempt.
Notice the language ” … absent Jimmy’s showing with particularity that he was earning all that he could, that he lived economically, and paid all surplus to Dixie … .” That’s what it takes to establish inability to pay.
As Jimmy Lane also learned in his unsuccessful trial and appeal, liability for other debts does not excuse non-payment of support. In the ancient case of Kincaid v. Kincaid, 213 Miss. 451, 466-467, 57 So.2d 263, 265 (1952), the court laid out the rule, which is still good law 66 years later:
In Amis on Divorce and Separation in Mississippi, Section 206, the rule is stated that a husband may not ask for modification of the original decree without showing that he has performed it or that its performance has been wholly impossible, and in Section 279 the author discusses the rules laid down in Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 14 A.L.R. 712 on which both parties here rely, and points out that if the husband undertakes to exonerate himself because of his inability to pay his proof must conform to those rules, namely: ‘That he earned all he could, that he lived economically and paid all surplus money above a living on the alimony decreed to the wife. And such proof must be made with particularity and not in general terms. In such a case he must show what his earnings were and what his living expense was, including that of those legally dependent on him, but not of any other person. The payment of other debts or expenses will not excuse or justify his default, unless such payment was necessary in order to continue his business or occupation, because the wife’s right to alimony is a prior and paramount claim on his earnings. Nor will the fact that his earnings were insufficient to support himself and pay alimony exonerate him if he has other money or property which he could sell or encumber to get money with which to make the payments, even though it may be exempt.’ See also Millis v. State, 106 Miss. 131, 63 So. 344, and Hamblin v. Hamblin, 107 Miss. 113, 65 So. 113. The foregoing views are not in conflict with what was said in Dickerson v. Horn, 210 Miss. 655, 50 So.2d 368, on which appellant relies and which case is clearly distinguishable from the case at bar.
Whether the obligation was child support or alimony, the rules for proving inability to pay are the same.
Keep in mind the US Supreme Court’s ruling in Turner v. Rodgers, about which I posted at this link. You must put the contempt defendant on notice that his ability to pay may be an issue at the hearing, and you must provide a template (such as an 8.05 form) for him to provide the information necessary to his defense. And the court must make a finding of ability to pay before imposing incarceration.