Credit for Post-Emancipation Child Support Payments

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from Ratliff’s pay, and testimony supports the amounts of medical-insurance and dental-insurance payments also withdrawn twice a month.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.

A Familiar Ring

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.

The Duty of Child Support or Not

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.”

Too Broke to Pay

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[2][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.

Emancipation Confuseration

June 4, 2018 § 1 Comment

Tracy Dixon sued his ex, Sandra, on several counts, one of which was to declare that their then-19-year-old daughter Amanda to be emancipated. The proof established that the child moved in with her boyfriend Will after she graduated from high school, despite the objections of both parents. Will bought her a car and provided a cell phone. Amanda enrolled at Jones County Junior College studying nursing, and relied on her mother for support, including clothes, meals, and gas. The support continued after Amanda transferred to USM. To top it off, Tracy and Amanda had a disagreement and stopped communicating, although Amanda testified that she loved her dad and wanted to have a relationship with him. Tracy said that he wanted to have a relationship with Amanda, but it was she who refused to answer or return his phone calls, texts, and invitations.

After a hearing, the chancellor denied Tracy’s petition to declare Amanda emancipated, and Tracy appealed.

In Dixon v. Dixon, decided February 6, 2018, the COA affirmed. Judge Wilson wrote for the 5-4 majority:

¶21. Citing Mississippi Code Annotated section 93-11-65(8)(b)(iii) (Rev. 2013), Tracy argues that Amanda’s cohabitation with her boyfriend required the chancellor to find that she was emancipated and terminate Tracy’s obligation to pay child support for her. We disagree.

¶22. Section 93-11-65(8)(a) provides that unless the underlying child support judgment states otherwise, “emancipation shall occur when the child” turns twenty-one, marries, commences full-time military service, or is convicted of a felony and sentenced to a term of two or more years’ incarceration. Miss. Code Ann. § 93-11-65(8)(a) (emphasis added). In contrast, section 93-11-65(8)(b) provides that a “court may determine that emancipation has occurred and no other support obligation exists when the child,” inter alia, “[c]ohabits with another person without the approval of the parent obligated to pay support.” Id. § 93-11-65(8)(b)(iii) (emphasis added). “A basic tenet of statutory construction is that ‘shall’ is mandatory and ‘may’ is discretionary.” Khurana v. Miss. Dep’t of Revenue, 85 So. 3d 851, 854 (¶9) (Miss. 2012) (quoting Franklin v. Franklin ex rel. Phillips, 858 So. 2d 110, 115 (¶15) (Miss. 2003)). Thus, subparagraph (8)(b)(iii) applies in this case, but it did not require the chancellor to declare Amanda emancipated or terminate child support for her. Rather, this provision merely gave the chancellor discretion. See Wesson v. Wesson, 818 So. 2d 1272, 1282 (¶25) (Miss. Ct. App. 2002) (discussing the chancellor’s “discretionary decision concerning . . . emancipation”); Deborah H. Bell, Mississippi Family Law § 13.09[2], at 452 (2d ed. 2011) (explaining that in circumstances enumerated in subsection (b) “a court has discretion to determine that a child is emancipated”).

¶23. Moreover, Amanda and Michelle both testified that Amanda is a full-time student, that she does not have a job, and that she still relies on Michelle’s support to some extent. They also testified that her need for support would increase once she transferred to USM, which she subsequently did. We cannot say that the chancellor abused his discretion by not finding that Amanda was emancipated. See Andrews v. Williams, 723 So. 2d 1175, 1178-79 (¶¶12-14) (Miss. Ct. App. 1998) (affirming the chancellor’s discretionary ruling that child was not emancipated where child was “unable to support himself independently” and desired to attend college but needed help with college expenses).

Discretion — aside from being the better part of valor according to an old saw — is the factor that can have chancery practitioners pulling their hair out over how to advise their clients. The statute clearly leaves it up to the chancellor to decide whether emancipation has occurred in connection with those may scenarios. Discretion = case by case, and as long as the chancellor’s decision is supported by substantial evidence, the COA ” … cannot say that the chancellor abused his [or her] discretion.”

There are cases going every which way on the issue. In Rennie v. Rennie, 718 So.2d 1091, 1093 (Miss. 1998), a case with facts similar to those here, the MSSC affirmed a chancellor’s ruling that the child was emancipated, and held that once emancipation occurs, it can not be undone. A similar holding was reached in a case where the daughter had a baby but continued to live with and receive support from her mother. Caldwell v. Caldwell, 823 So.2d 1216, 1121 (Miss. App. 2002). Cases going the opposite way include: Andrews v. Williams, 723 So.2d 1175, 1179 (Miss. App. 1998); Carite v. Carite, 841 So.2d 1148, 1154 (Miss. App. 2002); and Wesson v. Wesson, 818 So.2d 1272, 1282 (Miss. App. 2002).

I think the best advice for your client is that, except for the situations (such as marriage and turning 21) mandated by statute, it is within the trial court’s discretion to declare a child emancipated, and that is done on a case-by-case basis. You can offer your best judgment based on your experience with the proclivities of your particular chancellor, but there is no clearcut result dictated by the law.

Parental Rights of the Anonymous Sperm Donor

May 30, 2018 § 4 Comments

The law has always had to scurry along in the wake of technology, tidying up and redefining legal relationships affected by advances in science and medicine.

The latest instance arises out of the field of assisted reproductive technology, and addresses the issue of the parental rights of the anonymous sperm donor in the custody of a child born as a result of artificial insemination (AI).

Christina Strickland and Kimberly Day were married to each other in Massachusetts in 2009, and their marriage was later recognized in Mississippi, where they had taken up residence. In 2011, Kimberly was artificially inseminated and gave birth to a son, ZS. They separated in 2013, and were divorced in 2016, with custody of ZS being a contested issue. Following a hearing, the chancellor ruled that the child was born during the marriage, but that the parental rights of the natural father had not been terminated, thus precluding Christina’s claim to custody. Christina appealed.

In the case of Strickland v. Day, a case of first impression, a plurality of the MSSC held on April 5, 2018, that an anonymous sperm donor has no parental rights. Justice Ishee wrote for the plurality:

¶15. The chancery court’s decision, finding Christina not the legal parent of Z.S., turned largely on its determination that the sperm donor was the “natural father,” whose parental rights were subject to termination. On appeal, Christina argues that this finding is not supported by the evidence and is an erroneous conclusion of law. We agree.

¶16. At the outset, we are cognizant of the fact that we never before have determined what parental rights, if any, anonymous sperm donors possess in the children conceived through the use of their sperm. As such, this is an issue of first impression.

¶17. In searching our state’s existing law, the only law that even addresses AI is the disestablishment-of-paternity statute—Mississippi Code Section 93-9-10(2)(d) (Rev. 2013). And while Section 93-9-10(2)(d) does not address anonymous sperm donors’ parental rights directly, we find it useful as it illustrates the Legislature’s intent on such rights. Indeed, under Section 93-9-10(2)(d), a father cannot seek to disestablish paternity when the child was conceived by AI during the marriage to the child’s mother. Reading this provision, in light of the context before us, the logical conclusion—while not explicit—is that the Legislature never intended for an anonymous sperm donor to have parental rights in a child conceived
from his sperm—irrespective of the sex of the married couple that utilized his sperm to have that child.

¶18. How, on one hand, can the law contemplate that a donor is a legal parent who must have his rights terminated, while at the same time prohibiting the nonbiological father of a child conceived through AI from disestablishing paternity? These two policies cannot coexist. And for one to make such a logical leap effectively would say that the child has three legal parents: the mother who birthed the child, the natural father who donated his sperm, and the person who was married to the child’s mother (and is statutorily prohibited from disestablishing paternity). Three parents—that cannot be what the Legislature intended. Indeed, even the chancery court here said that cannot be possible.

¶19. In making its determination, the chancery court seemed to place great weight on the biological connection between the anonymous sperm donor and Z.S. Yet the Supreme Court of the United States has held that “[p]arental rights do not spring full-blown from the biological connection between the parent and child. They require relationships more enduring.” Lehr v. Robertson, 463 U.S. 248, 260, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983) (quoting Cuban v. Mohammed, 441 U.S. 360, 397, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979) (Stewart, J., dissenting)) (emphasis added). In a similar vein, we too have held that a biological connection alone is not enough to establish parentage. See Griffith v. Pell, 881 So. 2d 184, 186 (Miss. 2004) (finding that a biological father does not have any paternity rights where “he fails to establish that he has had a substantial relationship with the child”).

¶20. As a broader policy consideration, we find that requiring parents of a child conceived through the use of AI to terminate parental rights of the donor would not be in the best interest of the child—to say nothing of the expense and time it would require. When children are involved, we consistently have held that “the polestar consideration . . . is the best interest and welfare of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).

¶21. The consequences of assigning rights to donors, who do not engage in an act of procreation but provide biological material with no intention to act as a parent, would disrupt the familial relationships and expectations of Mississippians who have conceived children through the use of AI. For one, it would elevate the rights of a donor—who is a complete stranger to the child, and likely never will be identified—over the rights of a person who has known and cared for the child. Make no mistake—affirmance here arguably would impose parentage, and all its responsibilities, on anonymous sperm donors who contribute sperm to assist families in achieving pregnancy—perhaps creating a chilling effect on sperm donation. Furthermore, it effectively would leave many children conceived through this method with one legal parent. And in the tragic situation in which a mother dies during childbirth or before a proper termination proceeding—it would leave the child an orphan. Such a notion is untenable and certainly contrary to the public policy of this state.

¶22. On appeal, Kimberly’s position is that all of the nonbiological parents of children conceived through AI should be required to terminate the sperm donor’s parental rights and then establish parentage through the adoption process. We disagree. As a practical matter, the process of requiring one under these circumstances to adopt her own child (one which she intentionally agreed to bring into the family) would be intrusive, time-consuming, and expensive. In fact, it would require: parents who use AI with anonymous sperm donation to file a petition and wait thirty days to seek a hearing; a guardian ad litem to be appointed by the court at the parents’ expense; and a hearing to be held to determine whether an
unknowable sperm donor has abandoned the child. See Miss. Code Ann. § 93-15-107 (Rev. 2013).

¶23. One of the rationales behind termination statutes no doubt is to safeguard the rights of any potential parent-child relationship. Indeed, this Court has held that “[p]arents have a liberty interest, more precious than any property interest, in the care, custody, and management of their children and families.” G.Q.A. v. Harrison Cty. Dep’t Of Human Res., 771 So. 2d 331, 335 (Miss. 2000) (citing Santosky v. Kramer, 455 U.S. at 753–54, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)). The seriousness of the action is reflected in the fact that termination of such rights requires clear and convincing evidence of the statutory grounds for termination. Chism v. Bright, 152 So. 3d 318, 322 (Miss. 2014) (citing Kramer, 455 U.S. at 754).

¶24. But with anonymous sperm donors there is no reason to protect the donor, as the donor has no intention or desire to act as a father. In reaching its conclusion in this case, the chancery court found that the donor was merely an “absent father,” but in reality, the donor is a nonexistent father. For the child could never find the donor, much less have a meaningful relationship with him. It is one thing for a child to cling to the hope of a possibility of discovering and eventually building a relationship with an absent father; it is quite another thing for a child to know that he has a natural father that he has no possibility of ever discovering, let alone having a relationship with. That is, short of perhaps a court order mandating the disclosure of the donor’s identity, it is arguably factually and legally impossible for the child ever to obtain the identity of the donor.

¶25. The impracticality and futility of applying the termination statute in this context is clear. Under Section 93-15-107, the natural father is a necessary party to such termination action, but here, or with any anonymous donor, whose identification cannot be known, compliance with the statute arguably is impossible. One cannot serve a party with no information to act upon and which likely never can be acquired.

¶26. To that end, Kimberly argues that Christina, and nonbiological parents alike, can effectuate this service though publication. To be sure, the text of the statute does allow for publication of service of a “necessary party whose address is unknown after diligent search[.]” Miss. Code Ann. § 93-15-107(1)(b) (Rev. 2013) (emphasis added.) Publication in this instance is for a party whose address is unknown, not a party whose identity is
unknown. (Emphasis added). What is more, how can it be evaluated whether there was a diligent search for the party, if the party is unknown? The chancery court itself conceded that it is unlikely that the donor ever could be hailed before the court. The chancery court also conceded that this donor’s identification likely would never be known. And with an absence of identification, publication practically cannot be effectuated in every case in which a couple utilizes AI to bring a child into the family. Indeed, publication under the statute presupposes that, while one may not know the exact location of the party, one at least knows, at a minimum, the identity of the party. This is not to say that, under these circumstances, service by publication could not be accomplished; it is, however, to say that, as a matter of public policy, we find it unwise to demand that it must be accomplished.

¶27. And so, we ask, would it not be futile for the chancery court to require parties to comply with a statute the chancery court itself admits cannot be satisfied due to reasons beyond the control of the parties? Though this exact question is not before us here, we find it demonstrative of the impracticability and futility of requiring compliance with Section 93-15-107(1)(b) in this context.

¶28. Aside from our determination that anonymous sperm donors, in general, do not possess parental rights in the children conceived through the use of their sperm, we also find that there is no other vehicle which allows us to conclude that the anonymous sperm donor here is Z.S.’s parent. The donor was not married to the mother at the time of Z.S.’s conception or birth, he has not executed a voluntary acknowledgment of paternity, and he has not been adjudicated to be the child’s “natural” father under state law. Miss. Code Ann. § 93-9-28 (Rev. 2013).

¶29. In sum, we find that the chancery court erred in finding that an anonymous sperm donor was Z.S.’s parent whose parental rights had to be terminated. Indeed, we find that there is no legal or policy basis to find that an anonymous sperm donor is a parent in this specific context.

Some thoughts:

  • This decision has limited precedential value since it is a plurality decision. But a majority broadly agree that the chancellor erred in ruling that the parental rights of the sperm donor had to be terminated as a prerequisite to a custody contest between the parties, so I would surmise that future litigation over the same issue will result in an outcome similar to this.
  • Justice Waller’s separate opinion points out that the legislature needs to address this issue. He’s right, since there is no statute directly on point.
  • I am uncomfortable with the language in the opinion that talks about the impracticality of requiring process on the sperm donor. Our court should not put a price, so to speak, on due process. Notice and an opportunity to defend are required in a wide range of cases — including those involving unknown fathers — without regard to the difficulty or impracticality of process. I agree that a sperm donor should not be required to be made a party to the litigation in AI cases; however, impracticality of process would not be a component of my rationale were I called upon to decide the case.
  • What cost the plurality a majority is the plurality’s treatment of equitable estoppel in the opinion beginning at ¶30. The dissenters take the position that since the equitable estoppel issue was never squarely presented to the chancellor, it is improper to take it up on appeal. On this I agree with Justice Coleman that it was unnecessary to address it. I would have ended the opinion at ¶29.
  • I found it interesting that the fact that this case arose out of a same-gender marriage was only mentioned in passing and played no part in the ultimate outcome. That is an indication that Obergefell has been absorbed into our law.

If You Want it You Have to Ask for It

February 26, 2018 § 1 Comment

Aside from the fact that it illustrates what a forlorn and hapless task it can be to file and prosecute one’s own appeal, the COA’s decision in Elkins v. Elkins, handed down February 6, 2018, is a reminder that your pleadings must include ” … a short and plain statement of the relief to which he deems himself entitled …” and ” … a demand for judgment for the relief to which he deems himself entitled.” (MRCP 8(a)(1) and (2)).

Kimberlana Elkins, representing herself, appealed from a judgment of divorce that included an adjudication of contempt against her ex-husband, Robert. On a R59 motion, the trial judge had reduced the adjudicated contempt arrearage, and Kimberlana claimed on appeal that the reduction was error. Judge Barnes wrote for a unanimous court:

¶26. In the judgment of divorce, the chancellor found that Robert owed an arrearage of $42,604.47. He further held that Robert failed to pay sums accruing from the order of contempt; so a judgment of $65,895.96 was entered, with an interest rate of 3% annually until paid in full. Robert filed a motion to reconsider the judgment, and the court determined that because Kimberlana had not requested temporary child support in her initial complaint for divorce filed in July 2010, the court did not have the authority to order such and the temporary order was void ab initio. Therefore, the judgment was modified, and the amount of arrearage owed by Robert was decreased to $23,291.49. Kimberlana now claims the court erred in not enforcing the December 27, 2013 order, which awarded her the $42,604.47 in arrearage, and decreasing the amount of arrearage owed.

¶27. “Child support may not be awarded unless it is requested in the pleadings, tried by consent, or the court notifies the parties that the issue will be addressed.” Deborah H. Bell, Bell on Mississippi Family Law § 19.02[1][b][ii], at 468 (2005). As the chancery court noted in its order, Kimberlana’s complaint did not contain any plea for child support or maintenance. In her July 2010 complaint, Kimberlana simply requested that the chancery court grant her a divorce based on irreconcilable differences and additionally stated: “If mistaken in the relief prayed, [she] prays for such further general relief and equitable relief to which she is entitled to receive.” Furthermore, the record reflects that Robert was not provided an opportunity to object to the chancellor’s award of temporary support, as he was not present at the hearing. A month after the order was entered, Robert filed a motion to set aside the temporary order, claiming that he was not notified of the proceedings. In Massey v. Huggins, 799 So. 2d 902, 910-11 (¶¶33-34) (Miss. Ct. App. 2001), we reversed a chancery court’s award of child support, as the appellant “was not provided notice that she ‘might be required to defend a claim of child support’ nor was there a ‘suggestion in the record that support payments from [the appellant] were even being contemplated by the court on its own or asked for by’ [the appellee].” (Quoting Morris v. Morris, 359 So. 2d 1138, 1139 (Miss. 1978); but cf. Lee v. Stewart, 724 So. 2d 1093, 1095 (¶4) (Miss. Ct. App. 1998) (Although child support was not requested in the pleadings, the award of child support was affirmed, as the record indicated the father did not object to the issue at trial, “but instead elected to argue on its merits”; thus, “th[e] issue was tried with [his] implied consent.”).

¶28. We find no error in the chancery court’s findings, as child support was not included in the pleading, and there was no evidence that the issue was tried by consent.

In simple terms: Robert could not be held liable for sums that he never had notice to defend against. That’s the due-process side of the coin. And I agree in this case that the chancellor could not go back and create a retroactive obligation absent a prayer for that relief and an opportunity to defend.

To change the facts slightly, I wonder whether a claim for child custody, standing alone, is not enough to support a claim for the support and maintenance that would be in the best interest of and for the benefit of the child. Say in a divorce complaint, all that is prayed for is custody; there is no prayer for child support. May the chancellor, over objection, award child support, medical support, and maintenance? I think MCA 93-5-23 authorizes it. See also Steen v. Steen, 641 So.2d 1167, 1171 (Miss. 1994); Robinson v. Robinson, 554 So.2d 300, 304 (Miss. 1990).

Another Joint Custody Award in a Non-Divorce Case

December 13, 2017 § Leave a comment

In previous posts that you can read here and here, we talked about awards of joint custody in cases that did not involve divorce. The former link was a paternity case; the latter was a third-party custody dispute between grandparents.

In yet another paternity case the chancellor awarded joint custody and his decision was affirmed in Rayner v. Sims, handed down October 17, 2017, by the COA.

The case is not particularly noteworthy, except to add it to your stockpile of authority supporting awards of joint custody in non-divorce cases.

The COA’s decision does include a discussion of one way that a chancellor may calculate child support in a shared-custody arrangement. Here’s what Judge Griffis’s opinion had to say about it:

¶29. Mackie further claims the chancellor “engaged in his own computation of the child support obligation that is not supported by or authorized by statute.” We disagree. The chancellor ordered that Chance would have physical custody three days per week, and Mackie would have physical custody four days per week. The chancellor found that child support for the minor child would be based “upon 14 percent of each party’s adjusted-gross income” and that each party “shall pay child support in proportion to their periods of shared custody and their incomes.” [Fn 6] We find statutory support for the chancellor’s decision.

[Fn 6] The chancellor stated he would leave it up to the attorneys to “do the math.”
Counsel subsequently submitted an exhibit, which outlined the child-support calculation.

¶30. Mississippi Code Annotated section 43-19-101(1) (Rev. 2015) provides that 14% of a party’s adjusted gross income should be awarded for the support of one child. Pursuant to section 43-19-101(2), the percentage outlined in subsection (1) applies unless the court “makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in section 43-19-103.” Under Mississippi Code Annotated section 43-19-103(g) (Rev. 2015), the “particular shared parental arrangement” is a factor the chancellor may consider in his adjustment of the statutory guidelines established by section 43-19-101(1). Miss. Code Ann. § 43-19-103(g).

¶31. Here, the record shows that the chancellor found the statutory percentage, as outlined in section 43-19-101(1), should be adjusted based on the parties’ joint custody arrangement, “in proportion to their periods of shared custody.” The chancellor further ordered that Chance shall continue to provide insurance for Frances. Such decision is supported and authorized by statute. Accordingly, we find no error and affirm.

We have all seen this apportionment of child support process handled a hundred different ways. I am sure you have seen some creative ways yourself. As long as the result comports with the statutory percentages and takes into account the shared custody arrangement, the judge’s decision would likely be affirmed.

The Ups and Downs of Modification

October 30, 2017 § 2 Comments

Modification of child support can get confusing. In one case, you ask for upward modification retroactive to the date of filing and you get modification beginning at the date of judgment. In another the judge grants upward retroactivity to the date of the parent’s increase in income. And in yet another the court does order upward retroactivity to the date of filing. What is the rule?

A good starting point is MCA 43-19-34(4), which reads:

Any order for the support of minor children, whether entered through the judicial system or through an expedited process, shall not be subject to a downward retroactive modification. An upward retroactive modification may be ordered back to the date of the event justifying the upward modification.

Downward: never retroactive. This comports with long-standing Mississippi law that each child support payment vests when and as it comes due, and it can not be forgiven. In Howard v. Howard, 968 So.2d 961, 977 (Miss. App. 2007), the court said:

¶ 41. Child support payments vest in the child as they become due. Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992). Each payment that becomes due and is unpaid becomes a judgment against the supporting parent. Id. A court cannot modify or forgive vested child support obligations. Id. Accordingly, when a payor moves for downward modification of child support, the payments due continue to vest during the pendency of the motion. Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990). Any modification granted will take effect on the date of the judgment granting the modification. Id. However, when an appellate court reverses and remands a child support modification appeal to the chancery court for redetermination of the issue, the effective date of any downward modification granted is the date of the judgment from which the appeal was taken. Setser v. Piazza, 644 So.2d 1211, 1216 (Miss.1994) (reversing and remanding the chancellor’s denial of abatement of child support for further consideration and holding that the effective date of any downward modification granted would be the date of the order that erroneously denied modification.); Cook v. Whiddon, 866 So.2d 494, 500(¶ 22) (Miss.Ct.App.2004) (stating that the chancellor could make any order entered on remand that reduced child support retroactive to the effective date of the judgment cleansing the payor’s hands and reviving the modification issue); Lane, 850 So.2d at 127(¶ 14) (noting that the Court was not at liberty to modify child support retroactively, and stating that on remand, if modification was granted, it would be retroactive only to the date of the judgment from which the appeal was taken).

Howard pre-dates 43-19-34(4).

What about emancipation? It sometimes happens that a modification action has to be filed to terminate a withholding order or for some other reason. Do those support payments that come due after emancipation vest so that they can not be undone, or does the liability continue to accrue while the action is pending? “Child support payments vest when due, and retroactive termination is an impermissible form of ‘downward retroactive modification….’ See Howard v. Howard, 968 So.2d 961, 977 (Miss.Ct.App.2007).” AML v. JWL, 98 So.3d 1001, 1016-17 (Miss. 2012)

In my opinion, if the emancipation is automatic by statute, such as attainment of age 21 or marriage or conviction of a felony, then the obligation terminated at that event, and no further obligation existed or vested, so it is not truly a retroactive modification but rather a judicial recognition of the termination as of the date of the event. MCA 93-11-65(9) is consistent with this reasoning.

If, on the other hand, the emancipation turns on a finding of fact, such as whether the child established independent living, then the obligation continues until the court’s order is entered.

Upward: In the court’s discretion. Id. at 1017 (¶43). The modification may be made retroactive to the event that triggered the modification action, such as a raise in pay. There are no cases of which I am aware interpreting this 2009 statute. My interpretation of the statute is that upward retroactivity may be to any point between the triggering event and the date of judgment. If you really want retroactivity, you should put on some persuasive proof about why it should be.


The Extracurricular Trap

October 3, 2017 § 3 Comments

Divorcing parents often want to haggle over who will pay for Junior to participate in Youth Soccer Premier League, gymnastics, and all of the other manifold interests and activities that occupy nearly every waking hour of today’s children. When at last the lawyers have gotten their clients to agree, the lawyers without a lot of thought produce a provision like this for the PSA:

The parties agree that they will each pay one-half of the cost for Junior to participate in extracurricular activities.

That thorny issue settled, the lawyers then turn their attention to more substantial matters — like who will get custody of the cocker spaniel.

Now, we know that the parties above want Junior to participate in youth soccer and gymnastics, but is that what they agreed to in that language above?

Before we go on, remember that when you call upon the judge to interpret the parties’ agreement, she is bound by the language contained in its four corners. She may not receive parol evidence to understand what was intended unless she first finds that the language is ambiguous. The language above is heartbreakingly unambiguous. So the parties are stuck with its plain meaning.

And what is its plain meaning?

The COA answered that question in the case of Thomas v. Crews, 203 So.3d 701, 706-7 (Miss. App. 2016). In that case, the chancellor had been called upon to resolve a dispute between the parties over the meaning of the term “extracurricular activities.” Here is what the court said:

¶ 22. The chancellor’s clarification of the term “extracurricular” is also supported by substantial credible evidence in the record. The chancellor clarified that “extracurricular expenses are those incurred through school. … [S]chool volleyball is different than competitive volleyball [.] … [I]f the Father wants to pay, that will be up to the Father.” [Fn 2] At times, Thomas’s hearing testimony made the same distinction that the court’s order does, but, at other times, Thomas’s testimony equated school volleyball and competitive volleyball as “extracurricular.” This confusion justified the chancellor’s clarification.

¶ 23. When first discussing the volleyball teams, Thomas clearly made a distinction between school volleyball as extracurricular and competitive volleyball as different. Thomas referred to “school volleyball” as “the first real extracurricular activity that [Lunden] was interested in.” Thomas then testified that Lunden expressed an interest in competitive volleyball. Detailing Thomas and Crews’s decision to allow Lunden to play competitive volleyball, Thomas testified, “[Crews] and I talked about it and … we agreed that we would split the expenses of the—the training fee and uniforms.” Thomas also made this distinction between the two types of volleyball when discussing Lunden’s volleyball schedule. In contrast, Thomas, on cross-examination, referenced competitive volleyball as an extracurricular activity, stating that Lunden’s “extracurricular activities are expanding. So if she’s playing volleyball in Hot Springs, Arkansas, if you want to see her then that’s where we have to go.” In light of this testimony, the chancellor did not abuse his discretion when he simply “remind[ed] both parties that extracurricular expenses are those incurred through school.”

[Fn 2] Extracurricular is defined as “outside the normal curriculum.” Extracurricular, The Oxford English Dictionary (2d ed. 1989). Extracurricular activities “are those sponsored by and usually held at school but that are not part of the standard academic curriculum.” Extracurricular Activities,

So, to return to our hapless parties, the shared expenses “are limited to those that are those sponsored by and usually held at school but that are not part of the standard academic curriculum.” Not exactly what they intended at the time. At the end of the day, one party leaves happy, the other mad.

If the parties intend to include certain activities, then spell them out. Don’t rely on a catch-all phrase that might have unintended consequences.

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