Do-It-Yourself Modification and Creation of a Child Support Obligation
May 20, 2020 § Leave a comment
Melvin and Karen Krohn were divorced, and Karen had custody of their daughter. The post-divorce period was contentious and litigious, but the parties did agree during one relatively peaceful period that the child could live with Melvin for a time, during which he would be relieved of his $1,500 a month child support obligation, but the informal arrangement was never reduced to a court order.
When the parties went back on the warpath, one of Melvin’s several claims was that Karen should be ordered to pay him child support for the time when the child was with him, and Karen should be held in contempt for not paying child support during that period. The chancellor denied that relief and Melvin appealed.
The COA affirmed in Krohn v. Krohn, on April 21, 2020. Here is how Judge McDonald’s majority opinion addressed the issue:
¶13. “A chancery court has discretion in determining an award of child support.” Gunter v. Gunter, 281 So. 3d 283, 285 (¶8) (Miss. Ct. App. 2019). “To justify the modification of the child-support provisions of a divorce decree, the moving party must show that there has been a material or substantial change in the circumstances of one of the parties.” Bruton v. Bruton, 271 So. 3d 528, 533 (¶14) (Miss. Ct. App. 2018). For irreconcilable-differences divorces, the parties’ private agreements entered into for the purposes in Mississippi Code Annotated section 93-5-2 (Rev. 2018) are “not enforceable, if not approved by the court.” Sullivan v. Pouncey, 469 So. 2d 1233, 1234 (Miss. 1985). “The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.” Smith v. Smith, 20 So. 3d 670, 674 (¶13) (Miss. 2009).
¶14. In this case, the parties mutually agreed that their minor daughter would reside with Melvin for several months. There was no court order entered concerning this change in custody. Nor did the court ever order Karen to pay Melvin support for those months. Thus, the court had no basis to find Karen in contempt or order her to pay child support retroactively. Although the court gave no reason for denying Melvin’s requested child support for the months the child was living with him, the court relieved him from his court ordered obligation to pay child support ($15,000.00) during these months. Accordingly, we find that the chancery court did not abuse its discretion when it failed to order Karen to pay child support for the months Melvin had the child.
Some ruminations:
- It’s pretty obvious that Karen could not be in contempt of an unenforceable DIY out-of-court arrangement that had never been approved by order of the court.
- Although the court cited no authority, the agreement for Melvin to have credit against his child-support obligation during the period when the child lived with him is actually authorized in our case law. In Varner v. Varner, 588 So.2d 428, 435 (Miss. 1991), the parties entered into a similar situation by informal agreement, during which the father reduced his child support by 1/3 because he had responsibility for 1/3 of the children. After the arrangement ended, the mother sued for the back child support. The MSSC acknowledged that the payments were vested when due, and thus could not simply be released. Instead, the court held that the father had in essence contributed the support directly to the child, and he was therefore entitled to a pro-rata credit (in this case 1/3 of the total child support) for that direct support. I posted about Varner in another context yesterday. Varner is a useful case to know; I used it a number of times in my practice.
No Child Support is a No-No
May 19, 2020 § 4 Comments
Only last week I had two PSA’s presented to me in which the parties agreed to waive child support for the non-custodial parent. I refused to sign the judgments. The reason is that the parties are not at liberty to enter into such an agreement. The law could not be clearer.
This is from the case of Varner v. Varner, 588 So.2d 428, 432-33 (Miss. 1991):
Courts award child support to the custodial parent for the benefit and protection of the child. Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss.1991); Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989); Alexander v. Alexander, 494 So.2d 365, 368 (Miss.1986). Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child. Sorrell v. Borner, [593 So.2d 986, 987 (Miss. 1991)]; Cumberland, 564 So.2d at 847; Alexander, 494 So.2d at 368; Trunzler v. Trunzler, 431 So.2d 1115, 1116 (Miss.1983). Such support obligations vest in the child as they accrue, and no court may thereafter modify or forgive them if they be not paid. Premeaux v. Smith, 569 So.2d 681, 685 (Miss.1990); Thurman v. Thurman, 559 So.2d 1014, 1016–17 (Miss.1990); Cumberland, 564 So.2d at 847; Brand v. Brand, 482 So.2d 236, 237 (Miss.1986); Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984); Hambrick v. Prestwood, 382 So.2d 474, 476 (Miss.1980). The only defense to an action therefor is payment.
No party obligated by a judicial decree to provide support for minor children may resort to self help and modify his or her obligation with impunity. The interest of children weighs in the judicial mind far heavier than those of either parent.
Cumberland, 564 So.2d at 847.
In Calton v. Calton, 485 So.2d 309, 310–11 (Miss.1986), this Court refused to recognize a contract between divorced parents, containing a covenant not to sue for child support. We agreed with the Florida court in Lang v. Lang, 252 So.2d 809, 812 (Fla.Dist.Ct.App.1971); that
[t]he basic right of the minor child to be supported by its parents is not affected by an agreement between the parties with respect to such obligations; “children are not chattels whose rights can be bargained away by parents”….
Calton, 485 So.2d at 310; see also, Lawrence v. Lawrence, 574 So.2d at 1381.
Negotiation to obtain a divorce is devilishly difficult in Mississippi because of the codified “divorce blackmail” that is engrafted into our law. I know that you have parties who say that if you will just draft it so that the party with the upper hand can walk away with no bothersome financial obligations and they can move on to the next chapter. But the children are entitled to be supported, and the parents can not do away with it by agreement.
The Requirement of Particularity in an Order or Judgment
May 6, 2020 § Leave a comment
It’s fundamental that, in order for an order or judgment to be enforceable, it must be complete on its face, and the obligation imposed must be specified. It can not require reference to extraneous information to determine the obligation. For example, an order that the obligor pay 14% of his adjusted gross income is unenforceable since it requires that we determine from extraneous sources what 14% of his income might have been.
The principle was brought to the fore in the COA’s decision reversing a chancellor’s adjudication of contempt in Lindsay v. Lindsay and Pickering, handed down April 7, 2020. Judge Lawrence wrote for the majority:
¶23. “Civil contempt orders enforce a private party’s rights or compel compliance with a court’s order.” Hanshaw v. Hanshaw, 55 So. 3d 143, 147 (¶13) (Miss. 2011). “Failure to comply with a court order is prima facie evidence of contempt.” Evans v. Evans, 75 So. 3d 1083, 1087 (¶14) (Miss. Ct. App. 2011). “Before a party may be held in contempt for failure to comply with a judgment, ‘the judgment must be complete within itself[,] leaving open no matter or description or designation out of which contention may arise as to meaning.’” Davis v. Davis, 829 So. 2d 712, 714 (¶9) (Miss. Ct. App. 2002) (quoting Wing v. Wing, 549 So. 2d 944, 947 (Miss. 1989)). “A contempt citation is proper only when the contemner has wilfully and deliberately ignored the order of the court.” Lewis v. Pagel, 172 So. 3d 162, 178 (¶39) (Miss. 2015) (quoting Gaiennie v. McMillin, 138 So. 3d 131, 136 (¶13) (Miss. 2014)). Further, “[t]his Court will not reverse a contempt citation where the chancellor’s findings are supported by substantial credible evidence.” Witters v. Witters, 864 So. 2d 999, 1004 (¶18) (Miss. Ct. App. 2004) (citing Varner v. Varner, 666 So. 2d 493, 496 (Miss. 1995)).
¶24. “A defendant may avoid a judgment of contempt by establishing that he is without the present ability to discharge his obligations. However, if the contemnor raises inability to pay as a defense, the burden is on him to show this with particularity, not just in general terms.” Varner, 666 So. 2d at 496 (citation omitted).
¶25. Here, the trial court held Bruce in contempt of the October 13, 2016 written temporary order entered nunc pro tunc to June 13, 2014. At the June 13, 2014 hearing, the court examined Bruce’s Rule 8.05 financial statement and heard testimony from both Bruce and Paula. At the close of the hearing, Judge Steckler indicated his ruling was not complete, stating, “But I want to meet again with both attorneys early next week and go over it and then we’ll finish this order.” He continued “[B]etween now . . . and the time that I enter another order, he is to continue to pay everything that he’s paying now.” (Emphasis added). His bench ruling made no mention of the exact amount of child support, the exact amount of spousal support, home mortgage notes, house maintenance for the pool or yard, or any other specific amount for a specific obligation that Bruce was to pay.
¶26. What Bruce was actually paying at the time of June 13, 2014 hearing is unclear from the record. His Rule 8.05 financial statement from that hearing shows he was paying over $14,000 per month in expenses despite only having $10,260.76 in net income. Further, his Rule 8.05 financial statement does not mention any amount of child support or spousal support, both of which he was later held in contempt for not paying. The vague nature of the
temporary order continued with the new chancery judge’s equally vague ruling—the October 3, 2016 written order—that Bruce “continue to pay an[y] and all debts, obligations and expenses he was paying prior to June 13, 2014.” The specific amounts for what specific obligations that Bruce was required to pay and for which he was held in contempt for not paying were not “complete within the judgment.” In other words, Bruce was held in contempt and incarcerated for not paying obligations that were never specifically set forth within the four corners of the oral ruling on June 13, 2014, or the written temporary order entered by a different judge on October 3, 2016. The written order simply used similar language given by Judge Steckler from the June 13, 2014 hearing. If we looked only to the temporary orders, it would be impossible to know what exactly Bruce had been ordered to pay and in what amounts. The orders are vague and confusing. At the second contempt proceeding on October 19, 2017, before he was ordered to be incarcerated, Bruce said as much when he argued pro se to the court the following:
My point, I guess, is that it’s certainly not willful. There’s a lack of money. Additionally, I think there was definitely confusion over this to this day, but there certainly was confusion through the different meetings, conferences . . . and hearings and no written order by Judge Steckler.
¶27. Simply put, the language in the oral order from the bench and the written order entered over two years later never mention any specific type of obligation or in what amount that obligation is to be paid. In fact, the words child support, spousal support, home mortgage, and lawn or pool maintenance, or any specific monetary amounts for any of those obligations, are never mentioned in either orders. At the June 13, 2014 hearing, the court simply said to “pay everything that he’s paying now[,]” and the October 3, 2017 written order simply stated, “[P]ay any and . . . all debts, obligations, and expenses he was paying prior to June 13, 2014.” This Court has made clear that the “judgment must be complete within itself[,] . . . leaving open no matter or description or designation out of which contention may arise as to meaning.” Davis, 829 So. 2d at 714 (¶9) (quoting Wing, 549 So. 2d at 947). The meaning of the oral order from the bench on June 13, 2014, and the written order trying to reduce to writing that oral order was not clear and certainly not “complete” within itself. Orders from courts, whether oral or written, should not be so vague as to prevent a reasonable person from understanding its clear legal effect or the potential for contempt in failing to abide by its terms. Those terms should be clearly defined within the four corners of the order in an effort to cause “contention [that] may arise as to meaning.” Id. The temporary orders in this case were overly vague, ambiguous, and unclear as to exactly what was required to be paid. Therefore, the order of contempt against Bruce in the amount of $105,470.67 is hereby reversed.
Lawyers have presented PSA’s and agreed orders with flaws similar to that spelled out above, and I have sent them back to the drawing board, although I do confess to signing off on a few when the lawyers whined enough to wear down my resistance. I did point out, however, that if it came back before me for enforcement, the obligation would clearly be unenforceable for the same reasons set out in Lindsay.
Quantifying Child Support
April 27, 2020 § 2 Comments
It is well-established in our law that a court-imposed life insurance obligation must be in an amount reasonably relative to the obligation secured by it. For instance, a $1,000,000 policy to secure a $500 monthly alimony obligation would be unreasonable.
In his divorce from Allison Gaskin, Tony Gaskin was ordered to keep in effect an existing life policy “with death benefits of at least $900,000 … to guarantee the support of the minor boys.” Was that reasonable? Tony didn’t think so, because he calculated child support to total only around $357,000. So he appealed.
In Gaskin v. Gaskin, handed down April 14, 2020, the COA affirmed. Judge Cory Wilson’s opinion for the unanimous court:
¶15. In the final judgment, the chancellor ordered Tony to maintain his existing Farm Bureau Life Insurance policy “with death benefits of at least $900,000 during the boys’ minority.” The chancellor required continuation of the policy “to guarantee the support of the minor boys,” specifying that the “boys shall be listed as the primary beneficiaries until both boys’ emancipation or until further order of [the court].” Tony contends that the chancellor’s ruling was in error. Tony reasons that because the life insurance was to “guarantee the support of the minor boys,” the policy’s death benefits should mirror the total amount of Tony’s remaining child support obligations. In monetary terms, Tony calculates that he should only have to maintain a policy with death benefits of $357,115.40, an amount equal to the child support Tony contends he will pay until the boys’ emancipations. [Fn 8] Tony thus contends that the chancellor abused his discretion by requiring that Tony maintain an insurance policy with death benefits in excess of the amount needed to support the boys in the event of his untimely death.
[Fn 8] At the time of the parties’ divorce, the minor boys were thirteen and sixteen years old. To calculate policy death benefits at $357,115.40, Tony posits that support for the older boy would continue for forty months and support for the younger boy would continue for ninety months, until their respective emancipations. Tony multiplies the current child support for the two boys by forty, which totals $96,686.40. He then adds the amount of child support that he would have to pay for his younger son, presumably half of the current amount, for the remaining fifty months until he is emancipated, which equals $60,429. He then adds $100,000 for each child to cover college expenses. These amounts yield Tony’s asserted $357,115.40 in outstanding child-support obligations.
¶16. In support of his position, Tony relies on Daniels v. Bains, 967 So. 2d 77 (Miss. Ct. App. 2007). In Daniels, the appellant contended that the county court erred in ordering him to purchase a $500,000 life insurance policy for the benefit of his daughter. Id. at 83 (¶20). Daniels argued that the $500,000 policy was excessive because he would only be paying $273,600 in support until his daughter’s emancipation. Id. But we found “Daniels’s attempt to quantify a father’s support [ ] unpersuasive” and determined that the chancellor did not abuse his discretion in ordering Daniels to maintain a life insurance policy for his minor daughter. Id. at 83-84 (¶¶21-22).
¶17. As in Daniels, we find Tony’s attempt to quantify his child support obligations unpersuasive. “Parents may be ordered to pay additional amounts over and above child support for additional expenses such as ‘health insurance, out-of-pocket medical and other health-related expenses, life insurance, and expenses of a college education.’” Id. at 83 (¶21) (quoting Deborah H. Bell, Bell on Mississippi Family Law § 10.07, at 309 (1st ed. 2005)). “[A] father’s support is not fully appreciable in a simple financial cost-benefit analysis”; to the contrary, “a father’s overall support transcends mere financial support.” Id. at 84 (¶22). We thus find that the chancellor did not abuse his discretion in ordering Tony to maintain a $900,000 life insurance policy prior to his boys’ emancipations.
In other words, a father’s support is more than a pay day, or is intended in our law to be. It is love, companionship, moral and character building, modelling fatherhood and family relationships, teaching skills, and even more. How do we place a value on that?
Alimony is a whole ‘nother ball of wax, as the court points out in footnote 9, page 9.
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).
The Better Chancery Practice Blog 