BAH, Humbug
July 8, 2015 § 2 Comments
If you practice law in or around Biloxi, Columbus, Meridian, or any locale where military are among your clientele, you are no doubt acquainted with the concepts of BAH and BAS.
BAH is military-ese for Basic Allowance for Housing, and BAS is the acronym for Basic Allowance for Sustenance (i.e., groceries).
The question whether BAH and BAS should be included in income for calculation of child support has often percolated up in chancery court, and the answer has varied. Some of the confusion, perhaps has been due to the fact that BAH and BAS are not included in taxable income. The COA confronted the issue in a recent case.
In Price v. Snowden, Tim Snowden had agreed to pay 14% of his adjusted gross income (AGI) to Donna Price as child support for a child he had fathered outside marriage. When it came time to pay, Tim did not include BAH and BAS in his income for calculation of child support, apparently on advice of a CPA and after consultation with DHS. Donna sued for contempt based on underpayment. Tim took the position that BAH and BAS were not includable in his income for child support purposes.
In a decision handed down June 30, 2015, Judge Griffis wrote for the court:
¶10. Donna claims that Tim has underpaid his child-support obligation. The child-support order provides that “[Tim] will pay [Donna] child support based upon [f]ourteen [p]er[c]ent (14%) of his adjusted gross income pursuant to statutory guidelines.” The order also provides that this amount is to be adjusted annually.
¶11. We begin with the child-support guidelines. Mississippi Code Annotated section 43-19-101(3)(a) (Supp. 2014) provides that “gross income” includes the following:
[G]ross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self-employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; [the] absent parent’s portion of any joint income of both parents; workers’ compensation, disability, unemployment, annuity and retirement benefits, including an Individual Retirement Account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income; and gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent’s current spouse[.] (Emphasis added).
¶12. When the original order was entered in 2004, Tim was an officer of the United States Navy. Tim received nontaxable federal payments for basic allowable housing (BAH) and basic allowable subsistence (BAS). Tim testified that his attorneys told him to rely on his mother-in-law, acting as his tax accountant, to calculate his monthly child-support obligation. His mother-in-law claimed she read the statute and “double-checked” with social services to determine that child-support calculations were to be based solely on taxable income.
¶13. Here, Donna and Tim agreed to an escalation clause to determine the appropriate amount of child support. Previously, this Court noted that “[t]he parties may in fact agree of their own volition to do more than the law requires of them. Where such a valid agreement is made, it may be enforced just as any other contract.” Stigler v. Stigler, 48 So.3d 547, 551 (¶9) (Miss. Ct. App. 2009) (internal citations omitted). Here, Donna and Tim both agreed to the escalation clause as written. Tim has not contested the validity or enforceability of the clause in this action. Thus, it is a valid clause in their agreement.
¶14. In Bustin v. Bustin, 806 So. 2d 1136, 1139 (¶8) (Miss. Ct. App. 2001), this Court considered the language “any other form of earned income” in section 43-19-101(3)(a), containing the provisions commonly referred to as the child-support guidelines. Sue and William Bustin were divorced, and William was ordered to pay child support for two children at the statutory amount of twenty percent of his gross income. Id. at 1137 (¶2). After the divorce, William was promoted to be the pastor at his church, and was given a housing allowance of $1,500 per month. Id. William brought a motion to modify his child support obligation, for contempt, and for sanctions, while Sue responded with her own motion to modify. Id. at (¶3). The chancellor determined that William’s housing allowance should be included in the calculation of his gross income. Id. at (¶1). This Court held:
It appears from a plain reading of the text that the statute addresses the issue of income and what is included when tabulating child support. The phrase “any other form of earned income” would seem to include items in a person’s salary package. William is given that housing allowance as part of his salary from the church. If William went to a bank tomorrow and applied for a loan, he would most definitely list his housing allowance as income in order to show that he would be able to repay his loan. Salary from one’s employer is one of the key elements when estimating everything from income taxes to interest rates on a bank loan.
Moreover, computing one’s income for taxation is different than computing one’s income for child[-]support purposes. Our state must protect the best interests of the child. One of the ways Mississippi accomplishes that goal is child[-]support enforcement through statutes. Our statutes delineate what is to be considered as gross income for the purposes of computing child support. This issue is also without merit.
Id. at 1140 (¶¶10-11).
¶15. Quite frankly, this interpretation of section 43-19-101(3)(a) leads to a logical result. Uniform Chancery Court Rule 8.05(a) requires the parties to file a “detailed written statement of actual income and expenses.” The Rule 8.05 form provides for the detail of income and expense. Income is to be disclosed in section 2. Line 13, “Present Monthly Gross Income,” requires the disclosure of “[m]onthly reimbursed expenses and in-kind payments to the extent that they reduce personal living expenses such as cars, travel, gas, phone, etc.” This amount is included in the calculation for the chancellor to determine gross income. Similarly, the Rule 8.05 form provides for the expense to be deducted. Section 3, “Monthly Expenses,” requires a party to disclose “[m]onthly mortgage or rent payments.”
¶16. We find that Tim’s BAH and BAS payments are a “form of earned income” under section 43-19-101(3)(a). The United States Navy paid Tim additional income for his housing and subsistence, and these payments were earned by Tim and assisted him with the payment of his monthly expenses.
That settles that. BAH and BAS must be included in AGI for calculation of child support. That’s going to smart some for the payor, because BAH and BAS are gross sums from which no taxes are deducted. And it’s a nice development for the payee, because it’s going to result in a bigger sum of child support. For lawyers, it answers a question that has heretofore gone unanswered in Mississippi case law.
A few morsels for thought:
- At Meridian Naval Air Station, two student pilots, A and B, both apply for on-base housing the same day. Pilot A is assigned the last available base house; he gets no BAS or BAH. Pilot B has no choice but to live off-base due to the unavailability of base housing, and he receives BAS and BAH as a result. Both would pay substantially different amounts in child support. Fair?
- Pilot B does not pocket the BAH. He pays all of it and some from his own pocket to rent a house in Meridian. Yet he will be taxed 14% + in child support on that amount. It is a legitimate point that not everyone gets their housing paid by their employer, but the fact is that people enlisting in the military do so with the understanding that, in return for generally lower pay than in the private sector, they will be provided with amenities such as housing.
- Pilot A will receive free housing and meals, yet the value of that will not show up on his paycheck stub or on his tax return so it can be quantified for child support calculation. Fair?
- Both pilots A and B have their groceries subsidized at the base commissary. That benefit does not show up on a pay stub or tax return, yet it can amount to thousands of dollars a year, and it escapes child support calculation. Fair?
I don’t have any answers to those questions. I’m just laying the groundwork for someone else’s appeal, I guess.
Beware Vague Language in College Education Support Provisions
January 7, 2015 § 2 Comments
In the recent COA case of Wilson v. Stewart, handed down December 9, 2014, Jay Wilson argued that the chancellor erred in construing the provision in the original agreed divorce decree to include post-emancipation college education support for his two daughters, Henley and Anabel. He also claimed that Anabel forfeited her right to support due to poor academic performance.
Here’s how Judge Fair treated the point for the court:
¶17. Jay claims that the court should have terminated his obligation to pay Anabel’s and Henley’s college expenses at twenty-one, the age of emancipation. Jay also argues that the court should have terminated his obligation based on Henley’s poor academic performance. In support of his argument, Jay cites Nichols v. Tedder, 547 So. 2d 766, 770 (Miss. 1989), which states that a parent has no legal duty to support a child once that child is emancipated. However, that duty may be extended to post-emancipation care by agreement, whether it be a separate contract or included in the divorce decree. Crow, 622 So. 2d at 1230.
¶18. Here, the provision pertaining to the payment of college expenses is in the original agreed divorce decree: “Jay shall bear, and otherwise provide for the funding of, the full costs of all college education expenses of the minor children . . . .” In Boleware v. Boleware, 450 So. 2d 92, 92-93 (Miss. 1984), our supreme court dealt with a similar provision in a modified divorce decree. The father in that case contracted to “be responsible for the payment of all college education expenses of the minor children . . . .” Id. Similar to the instant case, the children were under twenty-one when the parties entered into the agreement. Id. at 93. The father argued that his obligation ceased when the children reached twenty-one. Id. The court disagreed, relying on the chancellor’s finding that, at the time of the agreement, the parties intended for the obligation to extend post-majority. Id. In Crow, the court likewise held that a father’s separate agreement to pay for all reasonable college expenses remained in effect post-majority. Crow, 622 So. 2d at 1229. And in Mottley v. Mottley, 729 So. 2d 1289, 1290 (¶¶4-7) (Miss. 1999), the court referred back to its decision in Crow when discerning a father’s agreement to pay half of his son’s educational expenses; the court ultimately found that the father was bound by contract to pay post-emancipation support.
¶19. The chancellor in the present case ruled as our supreme court did in Boleware, Crow, and Mottley, reasoning that vague college-support provisions have been routinely construed to include post-majority support. Further, Jay’s agreement to pay for the children’s college expenses was not dependent upon their academic performance. We find no error in the chancellor’s ruling. [Emphasis added]
A few crucial points:
- “Vague college-support provisions have been routinely construed to include post-majority support.” That’s critical. I think some lawyers often blur language in agreements in hopes that everyone will read into it what they want to be there, so as to induce an agreement. But that tactic can produce a result radically different from what your client really wanted. If you make it vague, it will be construed to include post-majority support, no matter what your client intended.
- Vague language is indefinite language. Don’t assume that the judge will find the language to be ambiguous, so as to open it to parol evidence for interpretation, especially in light of the cited cases.
- A good rule of practice is to make your agreements say exactly what you intend, and to be as specific as possible. If that hangs the agreement up, work through it by give and take, but don’t compromise by making the language less definite. A good example of the importance of drafting to the ultimate outcome is the case of Zweber v. Zweber, the college flying lessons case about which I previously posted.
In case after case, the lesson is inescapable that if you opt for indefiniteness, the outcome could seriously damage your client. A few other examples: when the alimony provision is unclear, it will be interpreted to be periodic alimony; the IRS considers that the custodial parent has the tax exemption when the PSA or judgment does not provide otherwise; and use of the term “family support” has been construed by the US Tax Court to create an alimony, and not a child support, obligation.
Equitable Estoppel and Enforcement of Child Support
December 18, 2014 § 5 Comments
Jay Wilson and Joy Stewart were engaged in a contempt action over Jay’s failure to pay child support, alimony, and expenses of the children, based on the parties’ 2003 divorce judgment.
The chancellor found Jay in contempt, awarded Joy a judgment, and Jay appealed. Among his grounds for appeal was the claim that Joy was equitably estopped from bringing the child-support-enforcement action, since she had waited several years to do so.
The COA, in Wilson v. Stewart, decided December 9, 2014, by Judge Fair, addressed his argument briefly:
¶14. Jay also argues that Joy is equitably estopped from bringing the contempt action. This Court has found equitable estoppel to be inappropriate in child-support matters. Durr v. Durr, 912 So. 2d 1033, 1038 (¶14) (Miss. Ct. App. 2005). “[C]hild support is for the benefit of the minor. The custodial parent is only a conduit for the support. Therefore, it follows that no action or inaction on the part of the custodial parent can relieve the defaulting parent of that parent’s obligation to pay support.” Id. This argument is without merit.
The Durr decision goes somewhat further:
¶ 13. [Mr.] Durr also argues that Hale is equitably estopped from bringing the contempt action. “Equitable estoppel,” as Durr points out in his brief, “is generally defined as the ‘principle by which a party is precluded from denying any material fact, induced by his words or conduct, upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was followed.’ ” Koval v. Koval, 576 So.2d 134, 137 (Miss.1991).
¶ 14. It is well settled law, as we discussed above, that child support is for the benefit of the minor. The custodial parent is only a conduit for the support. Therefore, it follows that no action or inaction on the part of the custodial parent can relieve the defaulting parent of that parent’s obligation to pay support. Moreover, even if we were to find, which we do not, that equitable estoppel might be appropriate in child support cases, we would likewise find that Durr failed to meet the requirements for its application in this case. He has not shown how he changed his position in such a way that he would suffer injury if Hale is allowed to assert his lack of compliance with the judgment of divorce. In a feeble attempt to show that all of the conditions for the application of the doctrine of equitable estoppel exist, Durr argues that he is facing jail time if the arrearage is not paid. This is hardly the type of injury that is contemplated as a condition for the application of “equitable estoppel.”
¶ 15. Further, Durr does not contend that Hale ever informed him that he did not have to pay for Waid’s private school. Rather, his argument, as we have already noted, is that she just waited too long to assert the claim for it. In other words, Durr’s position is that Hale’s inaction in timely pressing the private school tuition, justifiably led him to believe that he did not have to pay it notwithstanding the clear requirements of the judgment of divorce. Surely, Durr knew that any changes to, or modifications of, the judgment of divorce would have to be made by the court in order for them to be enforceable. Therefore, we find this issue lacks merit.
The court also rejected Durr’s claim that his inaction was justified by his ex’s “inaction, representations, and silence.”
So, from the foregoing, I think a proper conclusion is that claims of equitable estoppel are not favored in child-support cases, and that it would take an extreme case to apply it. An example is the fact situation in Varner v. Varner, where the mother informally induced the father to take one of the children back into his custody due to behavior and school problems. During his period of informal custody (i.e., without a court order), the father reduced his child support pro rata. After the father straightened the child out and returned him to the mother’s custody, she sued for the unpaid child support. Varner is not an equitable estoppel case, per se, but its fact situation would justify such a claim in my opinion.
A Double Nightmare for Counsel
December 16, 2014 § Leave a comment
Sometimes we assume something and it makes us say “Ouch.”
Gregory Dailey and his ex, Tracie McBeath, were entangled in child-support-contempt litigation. Hearing had been continued a time or two, and Gregory’s attorney had filed a motion to compel discovery, noticed for the most recent trial setting, and both counsel agreed that the case should be continued. That’s where things went haywire.
Here’s how Judge Barnes, in the COA case of Dailey v. McBeath, issued November 25, 2014, described the situation:
¶5. A hearing on the petition was held April 19, 2012. Tracie’s counsel asserted a motion to compel discovery, claiming that when she had finally received an answer from Gregory a week prior to the hearing, there was no proper documentation (tax returns, check stubs, etc.) included. She also claimed that Gregory had purposely eluded investigators, giving them false information, and that he was hiding assets. Gregory failed to appear at the hearing. His counsel, however, was present and acknowledged that Gregory had not filed tax returns for the last seven years. Gregory’s counsel complained that counsel opposite had not been communicating with him and that he had been unable to depose Tracie, even though he had been trying for months.
So, Gregory is a no-show, possibly because he and his attorney assumed that a simple order addressing the discovery issues with a resulting continuance would be the net result. But, that assumption proved to be painfully incorrect, as Judge Barnes went on to describe:
¶9. Gregory’s counsel made an appearance on his behalf at the April 19, 2012 hearing, evidently expecting that the chancery court was only going to address the motions for discovery and grant the parties’ motions for a continuance. However, the chancellor refused to continue the proceedings and denied both parties’ motions. Although counsel argued that Gregory was located three hours away in Madison, Mississippi, as were the attorney’s files for the case, the chancellor advised the parties to prepare for trial and to attempt to reach an agreement. He admonished:
I’m going to continue with the case and you have no authority to release your client. I have that trouble in other cases and it’s my policy to go forward. . . . And I’m not going to play games with discovery. . . . Y’all should have cooperated with each other. I’m going to try the case, so just get your stuff ready.
. . . .
Now, what I will do is give y’all a chance to visit to see if you can resolve the matter. And it may be that you can talk to your client by phone. I will not tolerate from either one of you all the failure to cooperate and discuss a case.
¶10. On appeal, Gregory argues that the chancellor’s denial of a continuance, which gave his counsel only seventeen minutes to prepare for trial, was “an inherent abuse of discretion” and that he was “ambushed” and “unable to defend himself.” A chancellor’s decision to deny a motion for a continuance is reviewed for abuse of discretion. Sizemore v. Pickett, 76 So. 3d 788, 794 (¶14) (Miss. Ct. App. 2011) (citing Robinson v. Brown, 58 So. 3d 38, 42 (¶10) (Miss. Ct. App. 2011)). Absent a finding of prejudice, we will not reverse the denial of a continuance. Robinson, 58 So. 3d at 42 (¶10). [Footnote omitted]
¶11. While the chancellor’s decision to proceed with the hearing without Gregory present may appear harsh, we find that it was not an abuse of discretion. Gregory and his counsel should have been prepared for the possibility that the motions for a continuance would be denied. Gregory was obviously aware of the hearing, as his counsel was in attendance to represent him. Gregory does not contend that he was unable to attend the hearing, and he knew that he owed the prior judgment to Tracie and that the hearing had been scheduled for several months. Furthermore, the record shows that the chancery court had previously granted a continuance on August 17, 2011, and the chancellor noted at the hearing that the case had been set since February 21, 2011.
¶12. Consequently, we find any prejudice suffered by Gregory due to the chancellor’s decision to proceed with the hearing was of Gregory’s own making, and the chancellor did not abuse his discretion in denying the motions for a continuance.
A few nuggets sifted from the ashes:
- Never wait until the day of trial to bring unresolved discovery disputes to the court’s attention.
- Never assume that you will be granted a continuance, even when both sides ask for it.
- Never, ever, excuse your client from being present for a matter set for hearing by court order.
- Never argue with a straight face that you are being “ambushed” when the case has been set for 14 months.
Remember two important principles:
- The older a case becomes, the less likely the chancellor will be to grant motions that would have the effect of prolonging it, and
- If you insist on assuming something, be prepared to deal with the consequences when your assumption proves to be incorrect.
TPR: It Takes More than Non-Payment of Support
September 24, 2014 § 2 Comments
The COA decision in Fuller v. Weidner, decided September 16, 2014, is a reminder of a couple of basic concepts in termination of parental rights (TPR) cases.
James Fuller and Rachel Weidner had a non-marital relationship out of which was born Remmy Fuller on February 13, 2009.
James and Rachel’s association was punctuated with domestic-violence and protective-order actions, and on April 14, 2010, James was ordered to have “no contact involving the child until chancery court establishes custody.”
On April 27, 2010, the chancery court entered a child support order in a DHS case it filed against James, including an assessment of past-due support.
In May, 2012, Rachel filed a TPR action against James. A GAL was appointed per the statute, and when the case finally reached trial in April, 2013, the chancellor found that James had abandoned Remmy, and terminated James’s parental rights. James appealed, arguing that the chancellor misapplied the law and erred in finding that he had abandoned his daughter.
The COA affirmed. Here is the pertinent part of Judge Lee’s opinion:
¶7. Fuller acknowledges his two issues are intertwined and addresses both together. So do we. Mississippi Code Annotated section 93-15-103 (Rev. 2013) lists several grounds for the termination of parental rights. Sections 93-15-103(3)(b) and (f) allow for the termination of parental rights if:
(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or
. . . .
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment . . . .
In this instance, the chancellor determined that Fuller had not contacted Remmy “for more than the six (6) months mandated by statute.” Fuller contends the chancellor misapplied the law because Remmy was three at the time Weidner filed the termination action; thus, the applicable time period should have been one year. However, the chancellor specifically found Fuller had not seen Remmy since April 2010, and had not attempted to establish any visitation with her. At the time of the hearing in April 2013, Fuller had not seen his daughter in three years.
¶8. Fuller admits he has not seen Remmy since April 2010, but states he was under the mistaken belief that he was not allowed to contact her until the chancery court established custody as required by the restraining order. Fuller acknowledges he did try to contact Weidner after the restraining order had expired but was unable to reach her and did not attempt to contact her directly again, even though he knew where Weidner and Remmy were living.
¶9. The chancellor further determined that Fuller had failed to pay any child support for approximately two years, and only began to pay once Weidner filed her termination action. We do recognize that “[f]ailure to pay child support without more is insufficient predicate for a finding of abandonment.” Carter v. Taylor, 611 So. 2d 874, 877 (Miss. 1992). We reiterate that at the time Weidner filed the termination action, Fuller had not seen Remmy in two years nor made any serious efforts to do so. “A finding of substantial erosion of the parent/child relationship necessarily involves a consideration of the relationship as it existed when the termination proceedings were initiated.” G.Q.A. v. Harrison Cnty. Dep’t of Human Res., 771 So. 2d 331, 338 (¶29) (Miss. 2000). A substantial erosion can be proved by showing a prolonged absence and lack of communication between the parent and the child. Ainsworth v. Natural Father, 414 So. 2d 417, 420 (Miss. 1982). In a similar case, this Court affirmed the chancellor’s decision to terminate a father’s parental rights since the father had admittedly not seen his child in two years and only started paying child support after the termination action was filed. R.L. v. G.F., 973 So. 2d 322, 324-25 (¶¶8-10) (Miss. Ct. App. 2008).
A couple of points from a fairly clear-cut case:
- Whichever side of the case you’re on, in my experience failure to have contact within the statutory time without serious mitigating factors is pretty much a slam-dunk when it comes to TPR.
- Failure to support is more of an aggravating circumstance that lends weight to the termination action, but, as the case cite says, it does not warrant TPR in and of itself.
If James had been serious about seeing and contacting his daughter, there are numerous ways that he could have documented his efforts and created substantiating testimony. The inescapable conclusion he left both the chancellor and the COA was that he had really made no effort because he had no proof other than his naked assertions.
If a James comes to your office complaining that he has had trouble contacting and visiting with his baby, advise him of the TPR law and help him document his efforts. Then file an action to establish or enforce his visitation rights. The sooner the better. Oh, and be sure to tell him that a dad who isn’t paying child support gets little or no sympathy from the chancellor.
Trying to Tie the Chancellor’s Hands
September 10, 2014 § 6 Comments
Lawyers frequently try to add language to PSA’s and agreed judgments to the effect that some event shall constitute a material change in circumstances warranting modification. In essence, it is an attempt to take that issue away from the judge — to tie her hands.
In the case of Frazier v. Frazier, 136 So.3d 1068 (Miss. App. 2013), the parties had agreed to language in a PSA that, if Paul Frazier lost his job, that would constitute a material change in circumstances justifying modification of his obligation. Judge Fair addressed the issue for the court:
¶ 14. The parties did concur in their pleadings and in the transcripts of hearings, which were made part of the record, that the property settlement provided that Paul’s loss of his job would be a “material change in circumstances” justifying, apparently in their minds, a possible modification in his contempt-enforceable obligations for monthly child support. Generally, for a modification of either ordered or contractual child support to be appropriate, there must have been an “unanticipated” change in circumstances of the paying parent that results in inability to honor his obligations toward his children, particularly those obligations he has voluntarily contracted to pay. See Evans v. Evans, 994 So.2d 765, 770 (¶¶ 16–17) (Miss.2008). However, contracts that anticipatorily mandate the effect of material changes in circumstances have been held unconscionable and void by the courts. See Houck v. Ousterhout, 861 So.2d 1000, 1001–02 (¶ 8) (Miss.2003).
In Frazier, the chancellor did not rely on the agreement, but rather made his own independent finding that Paul’s unemployment was a material change in circumstances. That saved the trial court’s ruling from reversal.
You can include language such as that in Frazier in your agreements if you like, but you have to understand, and should so advise your client, that the language is void; not voidable, but void. meaning that it is unenforceable. The proscription has been held to apply not only to child support, but also to alimony and child custody. You simply can’t pre-decide those issue — it’s for the judge to decide.
Child Support Deviation for Daycare
September 9, 2014 § 1 Comment
MCA 43-19-103 is an intriguing statute. For those of you who every now and then look at the Mississippi Code, you will find much there that will assist you in advising your clients in child support cases, whether original or modification.
Section 103 sets out the so-called “deviation criteria” upon which a chancellor may rely in finding that application of the statutory child support guidelines in MCA 43-19-101 would be unjust or inappropriate.
In particular, I want to call to your attention that the Mississippi Legislature in 2012 amended the statute to add subsection (i), which reads as follows:
Payment by the obligee of child care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
This subsection allows the judge to find that the child care expenses for employment or occasioned by disability skew the payee’s expenses to the extent that a deviation upward from the guidelines is justified.
I don’t know about you, but when I practiced I saw many cases where the chancellor awarded strictly guideline child support, which was barely enough to pay the custodial parent’s daycare expenses so that she could work in a low-paying job. There was nothing left over to pay other expenses of the child, which fell on the mother to bear.
The most recent case in which a chancellor’s deviation based on daycare expenses was upheld is Marin v. Stewart, a COA case decided September 24, 2013, about which I previously posted here. My earlier post focused on the point that the chancellor is not required to address each and every deviation factor if she concludes that deviation is appropriate, but only those that apply in the case.
Before you launch off into your next child support case — whether you represent the payor or payee — study Section 103 and see whether there is anything there that will help your case. As I have said many times here before: when you save your clients money, they love you; and when you cost your clients money, they hate you.
You Can Use Escalation Clauses Once Again
September 8, 2014 § Leave a comment
The landmark case of Tedford v. Dempsey, 437 So.2d 410 (Miss. 1983), is notable primarily as the case that firmly established the age of 21 as the ultimate age of emancipation in Mississippi.
Tedford is also the case that encouraged lawyers and judges to incorporate child support escalation clauses into their PSA’s and judgments. This is the specific language from the opinion:
Checklists, Checklists, Checklists
August 12, 2014 § 11 Comments
You can skip over this post if you’ve been paying attention to this blog for any appreciable length of time.
For you newcomers and oblivious long-timers, you need to know and appreciate that proving many kinds of cases in chancery court is a matter of proving certain factors mandated from on high by our appellate courts. I’ve referred to it as “trial by checklist.”
If you don’t put on proof to support findings of fact by the chancellor, your case will fail, and you will have wasted your time, the court’s time, your client’s money. You will have lost your client’s case and embarrassed yourself personally, professionally, and, perhaps, financially.
I suggest you copy these checklists and have them handy at trial. Build your outline of the case around them. In your trial preparation design your discovery to make sure that you will have proof at trial to support findings on the factors applicable in your case. Subpoena the witnesses who will provide the proof you need. Present the evidence at trial that will support the judge’s findings.
If the judge fails to address the applicable factors in his or her findings of fact, file a timely R59 motion asking the judge to do that. But remember — and this is critically important — if you did not put the proof in the record at trial to support those findings, all the R59 motions in the world will not cure that defect.
Here is an updated list of links to the checklists I’ve posted:
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
And here are two checklists that will help you in probate matters:
The Better Chancery Practice Blog 