A Caveat About Joint Custody Arrangements
May 1, 2017 § Leave a comment
When Suresa and Derrium Todd got an irreconcilable-differences divorce, they agreed that they would share joint legal and physical custody. Only thing is, their agreement did not spell out a schedule for how that custody would be shared. Notwithstanding that omission, the chancellor who granted the divorce found the agreement “adequate and sufficient,” and granted the divorce.
Two years after the divorce they were back in court over Derrium’s allegations that Suresa was not properly caring for the child. His proof at trial, however, was that the child was happy and well-cared for. There was no proof of a material change and adverse effect; however, the proof was that the custody arrangement was unworkable absent a specific schedule. So the chancellor conducted an Albright analysis and awarded Derrium sole custody. Suresa appealed.
Now, you can probably guess that the COA reversed. They did, in Todd v. Todd, handed down April 18, 2017. Judge Irving’s opinion reiterated the familiar rule that there can be no modification absent a showing of material change and adverse effect.
What I found interesting was what the COA expects chancellors to do when confronted by a joint custody arrangement that has proven to be unworkable due to the lack of a schedule, or due to a change in the parties’ schedules, or maybe due to the fact that the child was an infant when the agreement was entered into but is now school age. Do we still require a material change coupled with an adverse effect, or do we apply a lesser standard such as we do in visitation cases? Whatever the standard, it is clear in these cases that something has to be done for the best interest of the child.
Judge Irving spoke to the issue:
¶11. One final matter bears discussion. If, on remand, the chancellor finds no merit to Derrium’s complaint or Suresa’s counterclaim [for modification of custody], Derrium and Suresa will still have joint physical custody of their child. It will be necessary to determine a custody schedule, as it was probably error to find that the parties’ agreement was “adequate and sufficient” without one. See Selman v. Selman, 722 So. 2d 547, 554 (¶33) (Miss. 1998) (holding that plain error resulted where a chancellor’s child-support award was ambiguous, and it was necessary to remand the issue for clarification “to prevent friction between the parties”). Derrium and Suresa could resolve the issue through an agreement that the chancellor finds “adequate and sufficient” before incorporating it into an amended divorce judgment. See Miss. Code Ann. § 93-5-2(2) (Rev. 2013). Alternatively, they could allow the chancellor to resolve the issue for them. See Miss. Code Ann. § 93-5-2(3) (Rev. 2013). Under either circumstance, a joint physical-custody schedule should provide each parent with “significant periods of physical custody . . . in such a way so as to assure [their] child of frequent and continuing contact with both parents.” See Miss. Code Ann. § 93-5-24(5)(c) (Rev. 2013). But that does not necessarily mean that each parent would have to get equal time with their daughter. See Collins v. Collins, 20 So. 3d 683, 692 (¶44) (Miss. Ct. App. 2008).
So, yes, the chancellor, short of modification of custody, may proceed to clarify the original custody arrangement so as to eliminate friction between the parties.
But note Judge Irving’s caution that “it was probably error to find that the parties’ agreement was ‘adequate and sufficient’” without a custody schedule. To that, I say Amen. But in saying that I am not being critical of the chancellor who granted the divorce. I have been in those shoes many times, with lawyers imploring me that “these are good people, judge; they will work it out.” Or, “Judge, we had a hard time reaching a final agreement, and there was a lot of give and take; we had to leave this the way it is or we would not have an agreement at all.”
Hindsight is always cataract-free and eagle-eyed. It always sees in sharp focus what a thoughtful person either (a) should have seen at the time, or (b) deluded himself or herself into thinking all would turn out peachy keen despite the flaws in the agreement.
When you bid your client farewell after the judgment is entered, that client believes that you covered all the bases and protected him or her from further litigation. If you kick the can down the road, it does not mean that the can has disappeared. It’s still there for someone to trip over later and get cut on the rough edges.
When Another State has Jurisdiction Over Your Custody and Support Case
March 20, 2017 § 2 Comments
John Hamilton and Kidron Young were divorced from each other in Muskingham County, Ohio. The 2010 judgment granted custody of the parties’ daughter to Young.
Young moved to Mississippi with the child and registered the Ohio divorce judgment with the Lee County Chancery Court per MCA 93-25-81 and 83, as a prelude to making the Ohio judgment enforceable to the same extent as a Mississippi judgment. The July 30, 2013, nunc pro tunc to July 15, 2013, court order accepting the Ohio judgment recited that the court took jurisdiction “of all matters relating to the minor child, including, but not limited to: custody, visitation and support, pursuant to Section 93-25-101.” The order directed that it was to be “spread upon the minutes” of the Ohio court.
Hamilton, meanwhile, had filed an action to modify aspects of custody in the Ohio court. On August 21, 2013, that court entered an order ruling that, because Hamilton still resided in Muskingham County, Ohio, that court retained jurisdiction over the custody issues. The court approved an agreed judgment between the parties.
In November, 2014, the court amended the judgment again on recommendation of the Muskingham County Department of Job and Family Services to reduce Hamilton’s child support.
Young then filed a complaint in Lee County Chancery Court for modification of the September, 2013, and November, 2014, Ohio judgments. Hamilton responded with a timely motion to dismiss based on Ohio’s exercise of continuing, exclusive jurisdiction and his continued residence in that state. Following a hearing the chancellor ruled against Hamilton because: (1) the chancellor had had a conversation with an Ohio judge prior to entry of the July, 2013, order in which the Ohio judge had relinquished jurisdiction; (2) Lee County had granted full faith and credit and assumed jurisdiction based on the conversation; and (3) the Ohio court’s August, 2013, ruling that it continued to have jurisdiction was undated, and, therefore, not proper.
Hamilton filed for an interlocutory appeal. In Hamilton v. Young, decided February 16, 2017, the MSSC reversed and rendered, sending the case for adjudication back to Ohio.
You can read Justice Beam’s decision, which is an excellent exposition of the law of jurisdiction in these cases, for yourself.
I just want to make a few points:
- Jurisdictional issues in custody and child support cases can be complex and confusing. My advice is to (1) read the statutes, and (2) Go to a source such as Bell on Mississippi Family Law for enlightenment. Although the law is fairly clear, how to apply it to the facts at hand is often anything but clear.
- To make a long story short, UIFSA provides that, if one of the parents continues to reside in the state that issued a child-support order, that state has continuing, exclusive jurisdiction as long as the parent continues to live there, unless the parties agree to let the state of the other parent assume jurisdiction. In this case, since there was no agreement, Ohio retained jurisdiction, even though the child no longer resided there.
- As for the UCCJEA, Ohio continued to have jurisdiction to modify its own judgments because Hamilton continued to live there. In order to have jurisdiction in Mississippi, the Ohio court would have had to have determined that Mississippi was the more convenient and proper forum, considering the factors in Ohio Code § 3127.21 (counterpart to MCA 93-25-207). Since that was never done, it was not proper for Mississippi to unilaterally assume jurisdiction.
- What about that conversation between the two judges alluded to by the chancellor in his ruling? At ¶21, the court points out that there is nothing in the record recording that conversation, and written findings are required by MCA 93-25-101(b). That sort of informal discussion without the proper, written findings is simply not enough. Hint: if the judge doesn’t do it, you need to volunteer to do it for him or her.
- The mere fact that you record a foreign judgment, even if no contest to the recording is made, is not enough to confer jurisdiction (¶¶22-25).
Lump Sum Alimony and Child Support
February 13, 2017 § Leave a comment
When Suzann and Greg Davis went to court on modification issues, the chancellor ruled that Suzann had to pay Greg a sum of child support. In calculating the amount, the chancellor included lump-sum alimony payments she was receiving as part of her adjusted gross income. Suzann appealed.
In the case of Davis v. Davis, decided January 24, 2017, the COA affirmed.
¶13. Suzann also argues that the chancellor erred in including lump-sum alimony as part of her income when calculating her child-support obligation, because lump-sum alimony is not the type of alimony contemplated in the statute. [Fn 1] She points to Neville v. Neville, 734 So. 2d 352 (Miss. Ct. App. 1999), and Dickerson v. Dickerson, 34 So. 3d 637 (Miss. Ct. App. 2010), to support her argument. In Neville, this Court held that lump-sum alimony payable in installments is not “‘alimony’ necessarily includable” when calculating a parent’s adjusted gross income. Neville, 734 So. 3d at 359 (¶31). In Dickerson, this Court simply detailed the connection between lump-sum alimony and the division of property. Dickerson, 34 So. 3d at 645 (¶32). Neither of these cases prohibits a chancellor from considering lump-sum alimony as income under section 43-19-101(3)(a). Thus, we find that a chancellor retains the discretion to classify lump-sum alimony as income when calculating child support. We find no abuse of discretion in the present case.
[Fn 1] Section 43-19-101(3)(a) provides that alimony is a potential source of income that may be considered when determining a parent’s adjusted gross income.
Not much to comment on. I thought this was something useful to have in your arsenal when you have a similar case.
An Attempted Paternal Disappearance
January 9, 2017 § Leave a comment
Danny Hicks fathered a child by Jakeida Carter in January, 2007. In October of that year, Danny agreed to be listed as the father of the child, Janiyah, on her birth certificate. Around one year later, Danny entered into a stipulated agreement with DHS admitting paternity and agreeing to pay $202 a month in child support. The agreement was approved by court order. Things rocked gently on in domestic bliss thereafter. Janiyah called Danny “Daddy.” He was involved in Janiyah’s life, was active in her schooling, and, by all accounts was a good father. What could possibly go wrong?
Well, in 2015, a DNA test disclosed that Danny was not Janiyah’s biological father.
Danny filed a petition in chancery court to disestablish paternity and to terminate child support; he also wanted to be reimbursed $1,800 for the unhappy DNA results. Following a hearing, the chancellor responded no, no, and no, citing MCA 93-9-10(3)(c). Danny appealed.
The COA affirmed on December 6, 2016, in a four-page opinion by Judge Fair that was, in my opinion, lengthier than necessary. The words, “Affirmed per MCA 93-9-10(3)(c),” would have sufficed for me. You can read the COA’s opinion at this link.
As I pointed out in detail a previous post, in order to disestablish paternity since 2013, your client’s case must meet the criteria of the statute. In Danny’s case, he failed because, once a court approved a stipulation or acknowledgment of paternity, it was unassailable unless he had filed a petition to set it aside within the time specified in MCA 93-9-9. Danny waited ten years to petition, which is ‘way more than a tad too long.
Danny also argued that the chancellor committed reversible error by not seeing to it that Jakeida was sworn in before she testified. The COA pointed out that he waived that issue by not making a contemporaneous objection at trial.
Another, more substantial, point raised by Danny was that he should have been granted MRCP 60 relief because, he claimed, Jakeida committed fraud in claiming that he was the father. Other than his assertion, there was no evidence in the record of actual fraud. Moreover, the COA held, since he never filed a R60 motion with the trial court, he could not raise the issue for the first time on appeal.
Related note: In Finch v. Finch, 137 So.3d 227, 233 (Miss. 2014), the MSSC held that a chancellor may raise fraud on the court sua sponte in the course of a trial; however, there is no authority for the proposition that a chancellor is obligated to do so. It would have been improvident for the chancellor in this case to do so in the absence of clear and convincing evidence.
Before you go thundering off into court to vindicate a dad in a situation similar to Danny’s, be sure you familiarize yourself with MCA 93-9-10. You might save yourself and your client some grief … and money.
Can You Garnish SS Benefits for Child Support and Alimony?
January 5, 2017 § 7 Comments
Conventional wisdom is what is generally accepted as the truth when no one has bothered to research the actual truth. Conventional wisdom has long dictated that you can’t garnish Social Security benefits to collect child support or alimony.
But here’s a direct quote from the Social Security Administration (SSA) FAQ site on the point:
Can my Social Security benefits be garnished for alimony, child support or restitution?
We can withhold Social Security benefits to enforce your legal obligation to pay child support, alimony or restitution. State laws determine a valid garnishment order. By law, we garnish current and continuing monthly benefits. We do not make retroactive adjustments.
You cannot appeal to Social Security for implementing garnishment orders. If you disagree with the garnishment, contact an attorney or representative where the court issued the order.
From that, I take it that: (1) the garnishment is limited to current benefits, and lump-sum payments for past benefits are apparently not garnishable; (2) the garnishment is done according to state law, and is subject to the federally-imposed limits (which are high for child support, as pointed out below); and (3) if you think the garnishment order is wrong procedurally or substantively, your remedy is in the state court that issued it, and Social Security will decline to help you with that.
Side note: I wonder whether a lump-sum benefit expected but not yet received is subject to garnishment? In other words, SSA will not reach back and retroactively “adjust” a lump-sum benefit already paid, which is understandable; but if that lump-sum payment is in process but has not yet been paid, may it, too, be garnished?
It’s not stated above, but I understand that neither alimony nor child support may be taken from an SSI check.
Federal law limits garnishment in most cases to 25% of disposable income. When it comes to child support, though, garnishment may be as much as 50-60%. A previous post discussing child-support garnishment is at this link.
In a recent case in another district, the ex-husband did not appear for his divorce hearing, and was ordered by the chancellor in the divorce judgment to pay $200 a month alimony to his ex. The wife’s attorney had the court enter an “Order for Withholding” contemporaneously with the judgment. The withholding order specifically directed that the alimony be withheld from the husband’s SS benefits. It also directed withholding by “any payer of the obligor.” A certified copy of the order was sent to SSA.
Two weeks later SSA sent a letter to the attorney documenting that the amount directed was to be withheld from the husband’s SS benefits, effective in the following month. Although the SSA did agree to withhold the amount directed by the court, it did point out that the amount withheld is limited by federal law. What that means to you is that the 25% limitation for alimony, and 50-60% limitation for child support, may mean a smaller recovery for you in relatively big-dollar cases.
Note that the lawyer in this case prepared and presented a withholding order rather than a formal writ of garnishment, and SSA honored it. That tells me that if you obtain a court-ordered withholding order in any form SSA will honor it. It’s up to the obligor to complain to the state court about the procedure that was used.
Oh, and for those of you who haven’t dealt with SSA recently, their response time in my experience is lightning-fast in all but disability cases, and accurate. It’s a far cry from even 10 years ago when SSA took forever to respond with inaccurate and confusing information that would take months to correct. Your experience may vary.
Here is yet another avenue available to you to make your clients happy. Remember: when you save or make your clients money, they love you; when you cost them money, they hate you. Whether they love or hate you, they will tell all their friends and relatives about it. You get to decide what kind of news they spread around about you.
Thanks to Attorney Christopher Tabb of Brandon for the factual information; the editorial comments are my own
The Joint Legal Custody Mirage
October 18, 2016 § Leave a comment
One of the most effective ways to help ease your client into an agreement package that includes ceding physical custody to the other party is to sell the concept of joint legal custody.
What’s not to like? Joint legal custody, as defined in MCA 93-5-24(5)(e), requires that the parents or parties …
” … share the decision-making rights, responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.”
That sounds pretty straightforward. It sounds like when the parties share joint legal custody, there will be a process of shared decision-making and authority.
That’s the concept that brought Edwin Clyde Neely to the COA. A Special Chancellor had found him in contempt of a divorce judgment for not reimbursing his ex-wife, Lisa, for medical and college expenses incurred for the children. Edwin had defended on the basis that he had not been consulted on certain expenses, including a car, a laptop, and an off-campus apartment, despite the fact that the parties had joint legal custody. The chancellor swept past that argument, and Edwin appealed.
In the case of Neely v. Neely, decided October 11, 2016, the COA affirmed. Judge Greenlee wrote for a near-unanimous court, with the now-customary one judge “concurs in part and in the result without separate written opinion,” or the like. Here is what Judge Greenlee said on the point:
¶12. Edwin argues that Lisa’s refusal to involve him in the decision-making process on major expenses violates an implicit duty of sharing joint legal custody. In Laird, this Court affirmed the chancellor’s refusal to order the noncustodial parent to reimburse the custodial parent for various expenses incurred on behalf of the child, including clothing, school supplies, and a bicycle. Laird, 788 So. 2d at 851 (¶14). In that case, the original decree required consultation and mutual agreement between the parties prior to incurring expenses for education and similarly important matters. Id. The parties did not communicate concerning the expenses, and many of the expenses were duplicated between the two households. Id.
¶13. Here, the Agreement between Lisa and Edwin does not explicitly require consultation and mutual agreement between the parties prior to incurring the expenses. With the exception of reasonable college expenses, each expense is divided equally between the two parties. The chancellor heard testimony concerning whether each expense was reasonable, and held in Edwin’s favor that he did not have to pay the entirety of the expense of his freshman daughter renting an apartment off-campus, even though the original decree provided that Edwin would be solely responsible for all reasonable college expenses. We cannot find that the chancellor abused his discretion in finding Edwin in contempt and ordering him to reimburse the qualified expenses of $14,073.92. [Emphasis added]
That first sentence of ¶13 is somewhat of a head-scratcher. MCA 93-5-24(5)(e) specifically “obligates” the parties to confer (or consult, if you prefer), in the very kind of decisions involved in this case, and to share as well in the decision-making authority. There would not need to be a specific provision to that effect in the PSA or judgment because the statute specifically imports that duty into it via its definition of the term “joint legal custody.” I do agree that the statute does not require “mutual agreement” before incurring the expense, and there was no such requirement between the parties in this case. There was, however, a statutory duty to confer in the decision-making leading up to the expenses, and a statutory duty to share in the decision-making authority.
So, in light of a decision like this, how do you advise your clients when drafting an agreement or when confronted with a client complaining that he or she was left out of the decision-making loop? I guess the best tactic on the front end is to spell out in specific language what the duties of each parent shall be, and do not rely on the language of the statute. Professor Bell points out at § 12.04[1][a] of Bell on Mississippi Family Law, 2d Ed., that the MSSC ” … characterized joint legal custody as approximating the authority of an intact nuclear family” (citing Rutledge v. Rutledge, 487 So.2d 218, 219 (Miss. 1986)). That’s all well and good, but you’d best spell out just what that entails.
As for that chagrined client who was left out of the conferring and decision-making process, I don’t think the cases or the statutes point a clear direction. In many cases that come to trial, the mere fact that there was no conferring does not overcome the fact that the expenses were clearly necessary for the benefit of the child. I think you have to take it on a case-by-case basis, with the necessity for and the reasonableness of the expenses, with the parties’ relative financial situations, being the main considerations.
In this district, we will approve joint-legal-custody arrangements only where there is a tie-breaker provision. You can read about that at this link.
Temporary Support in a Paternity Case
December 2, 2015 § 2 Comments
Is there a right to a temporary hearing in a paternity case? If so, by what authority?
We know that chancellors in divorce cases may grant temporary relief per MCA 93-5-17(2), which allows the judge to make orders for “temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.”
In paternity cases, however, you can search high and low in Title 93, Chapter 9, dealing with paternity actions, and you will not find a similar statute conferring temporary authority. So, does that mean you can’t have a temporary hearing in a paternity action?
In a word, no.
The answer is in MCA 93-11-56(10), which states:
Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic tests or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.
I have had a lawyer argue that if paternity is uncontested, then there is no pending determination, so temporary relief should be denied. I disagree for the reason that I believe the “determination of parentage” means a final judgment. If there is no final judgment, then I think temporary relief is appropriate, as it would be in a divorce.
So, is the court limited by the language of the statute to temporary support only, leaving the parties to play tug-of-war with the child until a final hearing can be had? I think that would be an absurd result. Section 93-11-65 gives the court general authority to hear custody determinations. Chancery courts are charged to do what is in the best interest of the child. In my opinion, the court must act.
Next time you are asked by a chancellor by what authority you are asking for temporary relief in a paternity case, cite MCA 93-11-65(10). You won’t find it among the paternity statutes.
As a side note, our legislature has amended the custody and support statutes repeatedly to accommodate requests by DHS to address issues they have faced. As a result, we have a mish-mash of conflicting and unclear language, some of which is difficult to harmonize with standard practice in chancery court. One of many examples is the TPR statute that was clearly amended to address DHS concerns, but as a result became inoperable between private parties as a result, as pointed out in this post on the MSSC’s decision in Chism v. Bright. It would be great if some commission could study these statutes, clarify them, distinguish between chancery and county court actions where appropriate, and remove the ambiguities.
The Disappearing Child Support Arrearage
November 12, 2015 § 3 Comments
Occasionally some lawyer will approach me and ask that I sign an Agreed Judgment, signed off by all concerned, that settles a contempt issue. The petition charged that the respondent had something like a $3,500 arrearage, but now the judgment says he is current. “What happened to the arrearage?” I ask. The answer is something like, “Oh, we agreed to let that go if he would agree to supervised visitation from now on,” or “He really owes $3,500, but we agreed to forgive that if he would just pay on time in the future.”
Well, you just can’t do that, not even by agreement.
In the recent COA decision in Caldwell v. Atwood, handed down November 3, 2015, the court noted at ¶20 that, “While the law allows for credit to be made for child-support payments through additional physical support by the noncustodial parent, it does not permit those payments to simply be ‘purged,’ whether by an agreement or order.”
This is a subject about which I have posted here before. You simply can’t contract away an arrearage, and, for that matter, you can’t contract away your minor children’s right to future support.
In Caldwell, the chancellor had found Thomas Atwood in arrears in child support, but did not adjudicate an amount, or order him to pay it. Instead, the chancellor ordered him to “purge” himself of contempt by paying future support equal to 14% of his adjusted gross income. The COA reversed, holding that it was error for the judge in essence to forgive the arrearage. As the court went on to say in its decision:
¶19. It is well settled that “court-ordered child-support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid.” [Harrington v. Harrington, 648 So.2d 543, 545 (Miss.1994) … at (¶14) (quoting Varner v. Varner, 588 So. 2d 428, 434 (Miss. 1991)). “Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child.” Id. at (¶13) (quoting Smith v. Smith, 20 So. 3d 670, 674 (¶13) (Miss. 2009)).
The COA remanded the case for the trial court to determine the amount of arrearage owed to Caldwell, and to formulate a payment plan.
On a related point, there seems to be a vogue whereby the divorcing parents agree to joint legal and physical custody, and they use that arrangement to justify no child support, I guess due to the “shared custodial arrangement.” I do not believe in most cases that this is in the best interest of the children. To me, the custody arrangement is being driven not by what the parents truly believe is best for the children, but rather by the desire to create a mechanism that the judge will approve that will eliminate child support. I look at these with great skepticism. The parents have to convince me that the arrangement is genuinely in the best interest of the children. And, if there is a discrepancy in income, I require the parent with greater income to pay child support based on the difference. When parties learn that there is a way to get out of paying, they will exploit that loophole to gain an advantage in divorce negotiations that can have a negative effect on the children.
What does it Take to Forfeit the Right to Support?
October 30, 2015 § Leave a comment
Ever since the MSSC’s 1980 decision in Hambrick v. Prestwood, it has been the law in Mississippi that a parent’s duty to support a college-age child is dependent on the child maintaining a good relationship with the payor.
That principle has been extended and clarified over the years. The COA’s September 29, 2015, decision in Lowrey v. Simmons included a concise explanation of the current state of the law on point. Judge Wilson for the court:
¶23. Under Mississippi law, a child generally will not forfeit support from a non-custodial parent unless his or her actions toward the parent are “clear and extreme.” See Caldwell v. Caldwell, 579 So. 2d 543, 548 (Miss. 1991). However, where the child is college-aged, a “lesser finding” that the child’s actions have caused a deteriorated relationship with the parent is sufficient to justify termination of support obligations, including obligations to pay for college. Stasny v. Wages, 116 So. 3d 195, 197-98 (¶11) (Miss. Ct. App. 2013). Under Hambrick v. Prestwood, 382 So. 2d 474, 477 (Miss. 1980), a parent’s duty to support and pay college expenses of a college-aged child “is dependent, not only on the child’s aptitude and qualifications for college, but on whether the child’s behavior toward, and relationship with the father, makes the child worthy of the additional effort and financial burden that will be placed on him.” Although Hambrick involved court-ordered support and college expenses, we have since applied its holding to cases, such as this one, involving obligations to which a parent has agreed as part of a comprehensive and voluntary divorce settlement. See Stasny, 116 So. 3d at 198, 199 (¶¶14-15, 17); but see Markofski v. Holzhauer, 799 So. 2d 162, 170 (¶38) (Miss. Ct. App. 2001) (McMillin, C.J., joined by Southwick, P.J., and Thomas and Lee, JJ., concurring in part and dissenting in part) (criticizing the extension of Hambrick’s holding to an obligation voluntarily undertaken as part of a contractual divorce settlement).
¶24. In this case, the chancellor did not cite Hambrick or any of its progeny as the basis for his ruling. Instead, he cited a “substantial and material change in circumstances”—the erosion of the parent-child relationship and failure to reconcile—as his reason for terminating Ryan’s obligations. Nevertheless, the chancellor’s decision appears to track the underlying rationale of the Hambrick line of cases, and Ryan has defended it on that basis in this appeal. Cf. Finch v. Finch, 137 So. 3d 227, 231, 237-38 (¶¶5, 35) (Miss. 2014) (chancellor found son’s “animosity toward his father” was a “material change in circumstances” justifying termination of father’s obligation to pay educational expenses; Supreme Court affirmed under Hambrick). Therefore, we will apply the applicable Hambrick standard.
¶25. Although the Hambrick standard is by no means a bright-line rule, it has never been applied to terminate a parent’s support obligations in a case such as this, where the chancellor has found, with substantial support in the record, that the parent is the primary cause of the erosion of the parent-child relationship—indeed, that the parent is guilty of “inexcusable parental neglect”—and the child’s essential fault is in failing to respond to a neglectful, absentee parent’s belated efforts at reconciliation. For example, in Hambrick, the daughter had no contact with her father for six or seven years, she acknowledged that her dislike of him bordered on hatred, there was a strong inference that the mother was partially to blame for her animosity, and “[t]here [was] nothing in this record that would justify [the daughter’s] attitude toward her father.” Hambrick, 382 So. 2d at 477 (emphasis added). In contrast, in Polk v. Polk, 589 So. 2d 123, 131 (Miss. 1991), the Supreme Court applied Hambrick and reversed a chancellor’s decision not to order the father to pay the daughter’s college expenses because “the problems [between them] appear[ed] to be partly [the father’s] fault” and the father “seem[ed] to have abandoned [the daughter], either emotionally or financially.” (Emphasis added). In light of the father’s partial fault and prior abandonment of the child, the Court remanded the issue for further consideration, even though the daughter’s conduct toward her father was egregious. She had written letters to her father’s family that accused him of immoral acts and stated that he would “rot in hell” and that she would no longer acknowledge him as her father, and she had attempted to persuade local newspapers to publish her accusations, which the Court found “disturbing.” See id. at 130 31; id. at 131-32 (Lee, C.J., dissenting) (“[T]he attitude and actions of Kawanis [Polk] toward her father . . . have been much more egregious than that in Hambrick.“).
¶26. Thus, under Hambrick and Polk, a father is not entitled to full relief from otherwise valid obligations to pay for the support and college expenses of his child — here, obligations that he voluntarily accepted as one component of a comprehensive divorce settlement —based on an estrangement that is in large measure of his own making. Here, as the chancellor found, Ryan neglected his child beginning in at least 2010 and continuing into 2012. This abandonment included an especially “inexcusable” period of neglect when her mother was hospitalized for months, hundreds of miles away, with a life-threatening illness. During this difficult time in his daughter’s life, Ryan lived nearby but never so much as visited her. To be sure, in 2012, near the time he filed the instant complaint, Ryan did attempt to reconcile with Jilanna; and the chancellor found that Jilanna, not Ryan, bears primary responsibility for their failure to reconcile. We do not question these findings, and we emphasize that we accept all of the chancellor’s findings of fact, which are supported by substantial evidence. However, we hold that Hambrick does not apply to the facts found by the chancellor. Where a father’s own neglect is the proximate cause of the erosion of his relationship with his child, the child’s resistance to belated efforts to reconcile will not relieve the father of obligations of support and to pay college expenses that he voluntarily assumed as part and parcel of his own comprehensive divorce settlement. Accordingly, the part of the judgment suspending and terminating Ryan’s support obligations, including his obligation to pay college expenses, is reversed, and the case is remanded for further proceedings consistent with this opinion. [Fn omitted].
I think it’s fair to say that most chancellors require pretty strong proof to justify termination of a child-support obligation based on estrangement. Many years ago I defended a case in which the daughter would have absolutely nothing to do with the father because he had literally walked out on the family in the dead of night, leaving them destitute and in a half-finished home. The father never made any bona fide effort to reconcile with the daughter. The chancellor refused his plea to terminate the support obligation based on his own conduct. I am sure many of you have had similar experiences.
To Defer or Not to Defer
October 20, 2015 § Leave a comment
It sometimes happens that the chancellor chooses not to defer to the findings and recommendations of a guardian ad litem (GAL). When she opts not to defer, how should it be handled in the court’s ruling? That was a question raised in a recent COA case.
Jennifer Lowry and Ryan Simmons were engaged in a child-support dispute in which Ryan claimed that his future college and child-support obligations should be terminated based on his daughter’s refusal to have anything to do with him. Jennifer blamed Ryan for the deterioration of the relationship, and Ryan blamed Jennifer.
The chancellor appointed a GAL to investigate the reasons behind the child’s refusal to visit with her father.
In his report, the GAL found Ryan’s fault greater than the child’s, and recommended modification to reduce Ryan’s college education support obligation conditioned on the child’s participation in counselling to rehabilitate the relationship, and, if the child refused or failed to participate, then complete termination of the obligation.
The chancellor did not follow the recommendation of the GAL, opting instead to terminate the college education obligation completely, based on the child’s lack of effort to reconcile with her father. Jennifer appealed. One of her several grounds for appeal was that the chancellor did not explain his reasons for rejecting the GAL’s recommendations.
In Lowrey v. Simmons, handed down September 29, 2015, the COA found that the chancellor had not erred in how he handled the GAL report. Judge Wilson, for the court, explained:
¶11. Jennifer next argues that the chancellor erred by not following the GAL’s recommendations.1 Jennifer asserts that the chancellor misstated the GAL’s recommendations and erroneously believed that he was following those recommendations. Jennifer further argues that because the chancellor was not following the GAL’s recommendations, he was obligated to explain why he had rejected the them. Jennifer relies on Floyd v. Floyd, 949 So. 2d 26, 29 (¶8) (Miss. 2007), in support of her argument. In Floyd, the Supreme Court stated, “if the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations.” Id. However, Jennifer fails to note the context of the Court’s statement. The Court wrote:
[A] chancellor shall at least include a summary review of the recommendations of the guardian in the court’s findings of fact when the appointment of a guardian is required by law. . . . While a chancellor is in no way bound by a guardian’s recommendations, a summary of these recommendations in addition to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law.
Id. (emphasis added).
¶12. The appointment of a GAL is mandatory where there are allegations of abuse or neglect of a minor or where there is a contested termination of parental rights. See Miss. Code Ann. § 93-5-23 (Supp. 2014); Miss. Code Ann. § 93-15-107(1) (Rev. 2013). Where the appointment of a GAL is discretionary, there is no requirement that the chancellor state his reasons for deviating from the GAL’s recommendations. Porter v. Porter, 23 So. 3d 438, 449 (¶28) (Miss. 2009); Tanner v. Tanner, 956 So. 2d 1106, 1109 (¶13) (Miss. Ct. App. 2007). Moreover, “there is no requirement that the chancellor defer to the findings of the [GAL].” S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (¶17) (Miss. 2000).
¶13. There was no allegation of abuse or neglect in the present case. Nor was this an action to terminate parental rights. Thus, the chancellor was under no obligation to appoint a GAL. Because the chancellor’s appointment of the GAL was discretionary, he was not obligated to detail his reasons for diverting from the GAL’s recommendations. Furthermore, in his order, the chancellor did discuss the recommendations of the GAL. Although the chancellor did not follow the GAL’s recommendations, chancellors are never required to adopt the GAL’s recommendations. Id. (“[T]here is no requirement that the chancellor defer to the findings of the [GAL]. . . . Such a rule would intrude on the authority of the chancellor to make findings of fact and to apply the law to those facts.”).
That does not require any elaboration.
Although she lost on this point, Jennifer prevailed on her argument that the court erred in terminating the college support obligation. That is a subject for another day.
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