Still No Retroactive Downward Modification of Child Support
July 1, 2013 § 1 Comment
Every now and then I hear testimony that the party wants me to extend downward modification of child support retroactively, either to the date of filing, or to the date of the event that warranted a reduction in child support.
The answer, as you probably know, is that Mississippi law has long barred retroactive downward modification in child support cases.
In the COA case of Frazier v. Frazier, handed down June 25, 2013, appellant Paul Frazier asked the appellate court to change the rule and allow retroactive reduction, although he apparently had not pled for it at the trial-court level, and he acknowledged his uphill climb on appeal. Judge Fair stated the unanimous court’s opinion:
¶19. Though he did not affirmatively seek retroactive modification of the child support that he did not pay in full, Paul asks this Court to deviate from both long-established case law and legislative mandate and grant him retroactive relief. He begins his brief on appeal by admitting:
This is a case about the retroactive modification of child support. A husband sought a change in support because he had lost his job and was making considerably less than at the time of divorce. The trial court modified the child support. However, it took well over a year to obtain the relief, and in the meantime the husband incurred heavy child support obligations he could not meet.
Despite ordering a modification, the trial court did not order a reduction in his past due child support, even though the husband . . . had timely filed and pursued the modification. In the interests of equity and public policy, the Court must fashion a remedy for good faith litigants who are forced into extreme situations like this one.
¶20. Recently, in A.M.L. v. J.W.L., 98 So. 3d 1001, 1016-17 (¶¶40-42) (Miss. 2012), the Supreme Court of Mississippi addressed that specific issue and manifested its intent to continue adherence to its prior line of cases as well as defer to the statutory provisions of Mississippi Code Annotated section 43-19-34(4) (Rev. 2009), which allows retroactive increases in child support but expressly prohibits retroactive decreases.
¶21. Paul asks us to essentially repeal that statute and overrule a long line of supreme court authority, or at the very least to carve out an exception for decisions unduly delayed through no fault of the obligor. He admits, however, that:
Over twenty years ago, the Supreme Court determined that it would not allow a retroactive modification in child support on public policy grounds. Cumberland v. Cumberland, 564 So. 2d 839, 847 (Miss. 1990). The essential point was that a judicial decree ordered the child support, and a parent should not simply ignore it without leave of court. Id. “The rationale behind this view is not difficult to divine,” the Court held, since it wished to prohibit “self help” when a parent might seek to “modify his or her obligation with impunity.” Id.
After Cumberland, the Legislature saw fit to constrain retroactive modification further. It decreed that “[a]ny 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.” Miss. Code Ann. § 43-19-34(4) (the same law allowed an upward retroactive modification).
Paul relies upon and quotes from the four-member special concurrence penned by Justice Pierce in A.M.L., which posits allowing retroactive downward modification at least sparingly and in cases of crowded dockets and dilatory tactics causing unreasonable delay. A.M.L., 98 So. 3d at 1024-25 (¶70). In this case a crowded docket is obvious, but there is no clear evidence of dilatory tactics on Sharon’s part. On the other hand, there is some indication Paul caused a significant delay by insisting on a subpoena before providing his military records. Moreover, dilatory tactics have been held as justifying other relief, including monetary relief, even in child support cases. That remedy was suggested in Cumberland and considered and declined by the chancellor in this case.
¶22. Downward retroactive modification of child support remains prohibited by both statute and stare decisis provided by our highest court, which we must follow.
The “monetary relief” mentioned by Judge Fair refers to footnote 6, at page 847, in Cumberland, which says: “Where the non-movant engages in dilatory tactics and causes unreasonable delay, the trial court should not hesitate to exercise its inherent powers and order sanctions as may be appropriate.” In a previous footnote, as well as in the body of its opinion, the court specifically ruled out retroactive reduction.
I might add that retroactive downward modification has another inherent impediment in that each installment of child support becomes vested and a judgment in favor of the payee as and when due, and may not be reduced or modified by the trial court. See, e.g., Brand v. Brand, 482 So.2d 236, 237 (Miss. 1996).
If Paul is to change the law, he will have to look to the MSSC to get that done, which will now require him to file for rehearing before the COA, and a subsequent petition for cert to the MSSC. He may be staking his chips on that four-member minority in A.M.L. and the hope that turnover in the meanwhile may produce a more favorable result. We’ll see.
IF ADULT DISABLED CHILDREN ARE TO RECEIVE POST-MAJORITY SUPPORT, THE LEGISLATURE WILL HAVE TO DO IT
June 7, 2013 § 6 Comments
The MSSC yesterday ruled in Hays v. Alexander that there is nothing in the common law that would empower the court to create a duty in parents to support adult disabled children. The court said at ¶ 15: “The power to grant the authority to require parents in Mississippi to support their adult children is confided to a separate magistry: the Legislature. Our courts are without the constitutional power to declare otherwise.”
A wrinkle in this case was that the case was brought as a modification action in chancery court by the mother acting as conservator of the child. The chancellor ruled that a modification action was not the proper vehicle, but he went beyond that and ruled that he had no authority to impose a post-majority obligation on the father. The supreme court affirmed on both points.
This is an issue that lawyers and judges have encountered and speculated about for many years, as long as I have been practicing. For a while the speculation was that the supreme court, given just the right set of facts, would impose that duty.
Yesterday’s decision would appear to lay that speculation to rest. If there is no common-law authority to draw on, and the court holds that there is a separation-of-powers impediment, that would be conclusive, in my opinion.
Justice King dissented, taking the position that the legislature has, indeed, given the courts all the authority they need in existing legislation. You can read his dissent and form your own conclusions. Dickinson, Kitchens, and Chandler joined his dissent.
There is an interesting footnote, number 5, on the eighth page of the opinion (¶ 13). Here’s the text:
The Legislature has created two exceptions to the common law. Post-majority maintenance is statutorily provided for in Mississippi Code Section 43-31-28. It provides that a county board of supervisors may require certain family members to provide care for a pauper who is unable to work, as follows, in relevant part:
The father and grandfather, the mother and grandmother, and brothers and sisters, and the descendants of any pauper not able to work, as the board of supervisors shall direct, shall, at their own charge, relieve and maintain such pauper; and, in case of refusal, shall forfeit and pay the county the sum of One Hundred Fifty Dollars ($150.00) per month, for each month they may so refuse, to be recovered in the name of the county; and shall be liable to any governmental entity who supplies such poor relative, if abandoned, with necessaries, not exceeding said sum per month . . . .
Miss. Code Ann. § 43-31-28 (Rev. 2004) (emphasis added). We have held that “this statutory liability can only be enforced in the manner provided by statute.” Wright[et al. v. Coleman], [137 Miss. 699,] 102 So. [774] at 777 [(1925)].
Post-majority support also is statutorily provided for in a Department of Human Services paternity case. A putative father who has acknowledged paternity and is responsible for making support payments for a minor child is required to continue making support payments if the child has a disability that continues into adulthood. Miss. Code Ann. § 43-19-33(3) (Rev. 2004) (“in the case of a child who, upon reaching the age of twenty-one (21) years, is mentally or physically incapable of self-support, the putative father shall not be relieved of the duty of support unless said child is a long-term patient in a facility owned or operated by the State of Mississippi.).
You might have known about those two provisions. I did not.
The issue of parental support for adult disabled children has many facets and ramifications. If it is to be addressed at all, it appears that the Mississippi Legislature, with all of its institutional wisdom and foresight, will be the body to do it.
WHEN FINANCIAL PROOF IS JUDGE ABUSE
May 22, 2013 § 10 Comments
The MSSC case of Collins v. Collins, decided May 9, 2013, includes a discussion of one of the most frustrating aspects of divorce trials from the viewpoint of the judge: the party who provides incomplete, incredible, and misleading financial information upon which the court is required to base a financial adjudication.
Perry Collins and his unhappy wife, Iretha, were locked in a divorce battle for more than four years. Perry, who changed lawyers almost as frequently as the wind changed, operated a sole proprietorship heating and air conditioning company. He admitted at trial that his 8.05 financial statement was “incorrect and contained omissions.” For example, he claimed that his business overhead was $300,000, which exceeded his receipts by more than $110,000. He also did not provide income tax returns because he had not filed any in the two years before trial. The opinion is silent as to why he could not provide copies of returns he had filed.
No doubt the chancellor was somewhat put out with Perry’s cavalier attitude toward the financial proof. She simply totaled his receipts, allocated half to overhead, and declared that one-half, or $94,459.57, was Perry’s adjusted gross income. She then socked him for $1,300 in child support.
In reversing on the point, the court said this about Perry’s less-than-adequate 8.05:
¶17. The chancellor’s concern with the document is justified. In fact, we have stated that failure to comply with Rule 8.05 constitutes a fraud on the court. See Trim v. Trim, 33 So. 3d 471 (Miss. 2010). However, if the chancellor makes such a finding, the appropriate remedy for such behavior is to hold Perry in contempt and enter appropriate sanctions – not to punish him by disregarding any other credible evidence provided by him to the court. See Uniform Chancery Court Rule 8.05 (“The failure to observe this rule, without just cause, shall constitute contempt of Court for which the Court shall impose appropriate sanctions and penalties”). Rule 8.05 allows evidentiary discovery in addition to the disclosure. Id. In short, errors or omissions in the form do not preclude consideration of other evidence presented to the chancellor. We therefore find that the chancellor was manifestly wrong when she arbitrarily determined Perry’s monthly income to the exclusion of the undisputed evidence he provided.
The “undisputed evidence” that Perry provided consisted of his 2009 “business bank records,” which the MSSC found had enough information for the judge to deduce that his overhead expenses were considerably more than the one-half that the judge found, so that his actual income was considerably less than what she concluded.
I am shooting from the hip here, but I believe I would have stopped the trial and told counsel to get busy and present the court with a truthful, accurate 8.05, using the business records, and I would not have let them go forward until they did so. In the alternative, I would have offered to appoint a CPA expert at Perry’s expense to do the job.
Dumping a pile of “business bank records” and an incomplete, discrepancy-riddled, incredible 8.05 on the court is judge abuse. It’s also malpractice, but that’s another story. I wish that the supreme court had said that, if you dump on the trial court like that, you get whatever you deserve. Instead, the court’s message is that the burden is on the judge. Knowing that, I don’t imagine chancellors will be so accommodating in the future as the chancellor was in this case. Pity.
CHANGE TO THE CHILD SUPPORT GUIDELINES
May 8, 2013 § 2 Comments
MCA 43-19-101(e) has been amended, effective July 1, 2013, to provide that:
“In cases in which the adjusted gross income as defined in this section is more than One Hundred Thousand Dollars ($100,000) or less than Ten Thousand Dollars ($10,000), the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.”
Right now the figures are $50,000 and $5,000.
This change is a recognition of changing economic realties. The original figures were established by the legislature in 1989 — 24 years ago.
HARD GARNISHMENT LESSON FOR A JOINT ACCOUNT OWNER
May 6, 2013 § Leave a comment
Dorothy Lang and Derrick Higgins were estranged husband and wife. Despite that they were living separate and apart, they maintained two joint bank accounts at the same bank, with Dorothy continuing to use the joint savings account, and Derrick continuing to use the joint checking account.
Derrick got behind in his child support payments to another woman — to the tune of $17,000 — and DHS in April, 2010, froze both joint accounts per MCA 43-19-48, imposing a lien on the deposits. When Dorothy discovered what had happened, her attorney sent a letter to DHS in May, 2010, advising them that the funds were Dorothy’s, not Derrick’s. DHS thoughtfully responded the next day with a letter pointing out that Dorothy was required by statute to file a petition with the court if she wished to challenge the lien.
Dorothy took no action immediately, and on June 17, 2010, DHS received $3,116.69 from the two accounts, no doubt causing Dorothy some economic distress. The date of the disbursement was more than 45 days after the freeze.
Finally, in September, 2010, Dorothy got around to filing a contest to the lien, and, at an evidentiary hearing, produced proof that most of the money seized was, indeed, hers, and not Derrick’s. The chancellor ordered DHS to refund Dorothy $2,000 of the money, and DHS appealed.
In DHS v. Lang, handed down by the COA on April 23, 2013, the COA reversed and rendered. Judge Fair’s opinion for a unanimous court, explained:
¶8. … [A]lthough the statute contemplates an account holder of interest challenging the encumbrance, it does not provide a method to do so. As written, the statute does not require DHS to send notice to joint account holders, and only the obligor is subject to any specific time for filing. Other states, such as Alabama and Texas, have specifically provided for the right of a joint account holder to challenge such an encumbrance and prove ownership of the funds. See Ala. Admin. Code r. 600-3-12-.06 (2011); Tex. Fam. Code Ann. § 157.326 (2001). We conclude that our Legislature intended to acknowledge an account holder of interest’s right to challenge a DHS encumbrance, but it did not create a new mechanism for such a challenge. Instead, the Legislature left that to independent actions, just as ordinary garnishment law does.
¶9. The Mississippi Supreme Court has considered the garnishment of joint accounts. In Delta Fertilizer, Inc. v. Weaver, 547 So. 2d 800 (Miss. 1989), Delta secured a judgment against Weaver, and the circuit clerk issued a writ of garnishment on a joint savings account in the names of Weaver, his sister, and his mother. Before the garnishment was awarded, the mother filed a motion with the court, claiming to be the sole owner of the account. Id. at 801. The mother testified that all the funds belonged to her and that her children’s names were on the account for convenience because she could not handle her own money anymore. Id. Citing Cupit v. Brooks, 237 Miss. 61, 112 So. 2d 813 (1959), the court noted that a joint checking or savings account was subject to garnishment but held that it “should be garnishable only in proportion to the debtor’s ownership of the funds.” Delta, 547 So. 2d at 802-03. The burden rests on each depositor to show what portion of the funds he actually owns, and parol evidence is admissible to show his contributions. Id. at 803.
¶10. Relying on the Mississippi Supreme Court’s decision in Delta, we agree that an account holder of interest may challenge a DHS encumbrance in an independent action and present evidence to prove her contribution to the funds. The depositors are in a much better position than DHS to know the pertinent facts regarding their joint account. And while the DHS Child Support Unit has a legislatively mandated charge to enforce child-support obligations, administratively and through litigation, we do not believe the Legislature intended to dismiss the interest of joint account holders. That being said, a joint account holder must file some formal pleading within a reasonable time. Otherwise, such funds obtained by DHS would always be subject to remittance, preventing the funds from being timely disbursed to impoverished children.
The court then turned to the question whether Dorothy’s letter to DHS or her petition filed nearly three months after the order disbursing funds was effective to regain her funds. The COA answered “no”:
¶12. This Court dealt with an analogous situation in Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMC Trucks, Inc., 812 So. 2d 1061 (Miss. Ct. App. 2001). There, a mother, Triplett, held an account with Union Planters and named her daughter as a joint account holder. Id. at 1063 (¶2). A garnishment was issued naming the daughter as the debtor. Id. Although Triplett admitted that she became aware of the attachment within two days of service of the writ of garnishment, but never intervened as a proper party. Id. at 1067 (¶13). After the funds were disbursed to the creditor, Triplett filed a complaint alleging Union Planters was negligent in its failure to notify Triplett that the funds were exempt. Id. at 1064 (¶4). On appeal, this Court explained that the garnishment statute “has been construed to mean that, in order to suspend the execution of the writ of garnishment, a sworn declaration must be filed in the court before the garnishee has answered and paid into court the funds caught by the garnishment.” Id. at 1067 (¶11) (citing Miss. Action for Cmty. Ed. v. Montgomery, 404 So. 2d 320, 322 (Miss. 1981)).
¶13. Here, DHS correctly presumed that all funds in the joint account belonged to Higgins and filed a notice of encumbrance [footnote omitted]. On May 27, DHS advised Lang to file a petition with the court pursuant to section 43-19-48 in order to object the encumbrance. While we disagree that Lang was required to file pursuant to section 43-19-48, she failed to file any petition to the court before the funds were disbursed. Further, Lang presents no reason for her delay. “A letter is not the equivalent to a sworn declaration filed according to the relevant statute. It is too little, too late.” Triplett, 812 So. 2d at 1067 (¶12) (internal citation omitted).
Parting thoughts …
- I wonder whether Dorothy now thinks it was worth the few extra bucks she saved to keep that joint account open with her n’er-do-well estranged husband. [Incidentally, the COA opinion points out that Derrick owed Dorothy back child support also. Ouch.].
- Don’t sit on a case like this. File something right away, even if it’s wrong. You can always amend later, and you can continue to negotiate and talk with pleadings filed. Here, the five-month delay was fatal to Dorothy’s claim.
- This may seem like a rare case, but I actually have had a couple of cases where the question was raised about the rights of joint-account owners. They were resolved, but you never know when yours will not be.
THE BITE OF PAST-DUE CHILD SUPPORT
April 16, 2013 § 1 Comment
MCA 85-3-4 deals with execution of garnishments in Mississippi. Most garnishments are limited to 25% of “disposible income,” as defined in federal law. But if the judgment is for past-due child support, the garnishment may be as much as 50-65% of disposible income. That’s quite a bite.
In the MSSC case of Reasor v. Jordan, decided April 4, 2013, Frankie Reasor had gotten custody of his daughter from his ex-wife, Rose Jordan, in a modification case. He was also tagged with a hefty $24,000 judgment for past-due child support and unpaid medical expenses of the child that predated the modification. The chancellor popped Frankie with a 55% garnishment, and, both impoverished and aggrieved, he appealed.
Here’s how Justice King’s majority opinion addressed the issue:
¶27. The Court has addressed this issue previously in Sorrell v. Borner, 593 So. 2d 986 (Miss. 1992). In Sorrell, the parents divorced, the mother was awarded custody, and the father was ordered to pay child support. Id. at 986. Later, the father sought a change in custody. Id. In response, the mother filed a counterclaim for past-due child support. Id. The chancellor awarded the father custody but held him in arrears, entering a judgment in favor of the mother for back child support. Id. The mother obtained a sixty-five percent garnishment on the father’s wages. Id. at 988. Aggrieved, the father filed a petition to modify the order (by offsetting his arrearage by the mother’s child-support obligation), and the chancellor denied his petition. Id. at 986-87.
¶28. On appeal, the father challenged the order, arguing that the garnishment should have been limited to twenty-five percent. Id. at 988. Although the father failed to attack the garnishment in his pleadings, the Court noted that the father made an oral objection at the hearing. Id. at 989. Reviewing the applicable statutes, the Court determined that:
The judgment awarded was for past due child-support, but [the mother] no longer had custody of the children. In our opinion, the legislature did not contemplate the exception language to be used in this situation, and [we] are of the opinion that the restriction listed in § 85-3-4(2)(a) should apply to the garnishment here.
Id. at 988. Accordingly, the court reversed and remanded the chancellor’s judgment. Id. at 988-89.
¶29. Applying the Court’s reasoning in Sorrell, the withholding restriction in Section 85-3-4(2)(a)(i) should apply to Reasor as well. Like Sorrell, Reasor complained about the amount of the garnishment during his hearing. Also, when the judgment was awarded for past-due child support, Jordan no longer had custody of the child. Thus, the chancellor erred by ordering a fifty-five-percent withholding. Instead, the garnishment should have been limited to twenty-five percent of Reasor’s disposable income. Accordingly, we vacate the order and remand for a proper determination of withholding.
The main thing to take from this case is to be aware of the generous garnishment provisions as they relate to unpaid support. As I read the statute, they would apply not only to child support, but also to alimony.
When you read this case, look also at the MRCP 81 issues raised by the way that the original chancellor handled the case. I agree with Justice Pierce’s concurrance/dissent on this issue. R81 requires notice. I don’t agree that Mr. Reasor got proper notice in this case. Chalk this up as another case added to the confusion over how R81 works.
THE MISCHIEF OF “FAMILY SUPPORT”
April 4, 2013 § 3 Comments
I’ve spoken here before about the mischief that can arise when one uses the ambiguous term “family support” instead of terms of art such as “child support,” “alimony,” and “property division” that are familiar to our courts. As I said in a previous post, the repercussions can be quite unexpected and unpleasant for your client.
In a decision handed down March 11, 2013, the US Tax Court in the case of DeLong v. Commissioner of Internal Revenue, ruled that the term “family support” creates an alimony obligation, and not a child support obligation.
You can read the decision for yourself, but it essentially turns on the point that since the obligation is not specifically denominated as child support the IRS will not consider it such.
This case arises out of a California divorce judgment. Note that the opinion states that the tax court will look to state law for how the state would treat the obligation. If this were a Mississippi case, the tax court would, to the best of my knowledge, find no helpful authority because the term “family support” is unknown under our law.
There are some serious side-effects from a case such as this. Child support is not deductible by the payer, and it is not income to the payee. Alimony is, however, deductible by the payer, and it most definitely is income to the payee. So, in this case, Mr. Delong got to deduct the payments under the divorce judgment, and the former Mrs. D. gets a bill for income taxes on the payments. If you had negotiated the settlement for Mrs. Delong and that is what she expected as an outcome, then you’re in good shape. If, on the other hand, she was not expecting a tax bill, you’d better look out.
And if the judge, in a comatose moment, injects that kind of language into a judgment, protect your client by filing a timely MRCP 59 motion to get the judge to correct the ambiguity.
In Mississippi, payments are either alimony, or child support, or property division. Denominate them as such, allocating the specific amounts under each. Never use combined language like “Husband shall pay to wife the sum of $2,500 each month as alimony and child support.” And never use ambiguous, non-legal language like “family support” when there are perfectly suitable, meaningful terms like “child support,” “alimony” and “property division” that do the job quite well.
Thanks to Justin Cobb, Esq.
… AND ANOTHER NON-SUPPORT WRINKLE
March 26, 2013 § Leave a comment
Picking up where we left off yesterday …
Another specie of non-support agreement presents itself when the parties agree that husband will support the child or children in his care, and wife will support the child or children in her care, with no child support changing hands.
In Roberts v, Roberts, decided March 19, 2013, by the COA, the court found no error in the chancellor’s decision modifying child support to eliminate the father’s duty to pay the mother, due to the fact that one child had come to live with the father, leaving one child behind with the mother, based on the parties’ extra-judicial agreement. The court stated that, “Because each parent had primary physical custody of one child, we do not find that the chancellor abused his discretion when he held that neither Scott nor Stephanie was obligated to pay child support.”
A similar situation arises when one parent has the child or children half the time. We see it every now and then in this district with oilfield workers, who work two-weeks out and two-weeks in, and there is a shared custody arrangement. Same with parents who rotate custodial periods.
The logic is almost irrefutable in those cases that it makes no sense to order the father to pay the mother child support, and the mother to send child support in turn to the father.
I say “almost irrefutable” because there are cases where there is such a disparity in income that I order the higher income parent to pay some support to the other parent, just so that the children will not have strikingly different standards of living in each household. In one case, the father worked offshore earning $70,000 a year, and the mother worked part-time in a convenience store. The parties wanted me to approve an agreement that each would support the child in his or her custody. I refused, because although each parent had one child living with him or her, it was only fair that the father pay child support so that the child with him would not live “in the lap of luxury,” while the other child with the mother would live near destitution.
The duty of the parent to support the child who is with him or her is distinguishable from the situation where the parties simply waive child support altogether. The former is allowed because the child is going to be supported; the latter is not allowed because there is no duty of support at all.
NON-SUPPORT AGREEMENTS
March 25, 2013 § 3 Comments
I am regularly presented PSA’s and agreed judgments that include a provision that the non-custodial parent will not pay any child support to the custodian. I don’t like it, for reasons that I have expounded on here before.
In my opinion, such agreements are not only undesirable, they are void.
The case of Houck v. Ousterhout, 861 So.2d 1000 (Miss. 2003) may be dispositive. Timothy James Houck and his former wife, Guyolyn Ousterhout, had been involved in various modifications and contempt actions as their children moved in varying numbers from household to household. In 1996, after several inconclusive skirmishes in court, they entered into an agreed judgment that recited that “[m]aterial changes ha[d] occurred in the life of Timothy … which prevent[ed] him from being able to pay his child support as directed. They agreed that Timothy would pay Guyolyn $1,500 in exchange for her waiver of any claim to “past, present and future child support payments,” and further that they agreed “to forever release one another from any obligation, now or in the future, of child support payments by or to either party.”
Notwithstanding the agreement, the parties found themselves yet again in litigation, in which Guyolyn asked, among other things, for nullification of the agreed order. The chancellor did void the agreed judgment as against public policy, and awarded Guyolyn a judgment against Timothy in the sum of $89,848.65. Timothy appealed.
The MSSC affirmed:
¶ 8. The modification relieving Houck of any obligation to pay child support to a custodial parent is null and void. Child support payments are made to the custodial parent for the benefit of the child. Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992); Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss.1991). The child’s right to his parent’s support cannot be bargained or contracted away by his parents. Tanner, 598 So.2d at 786; Calton v. Calton, 485 So.2d 309, 310-11 (Miss.1986).
¶ 9. We have consistently held that child support payments vest in the child as they accrue. Once they have become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts. Tanner, 598 So.2d at 786; Varner v. Varner, 588 So.2d 428, 432-33 (Miss.1991); Premeaux v. Smith, 569 So.2d 681, 685 (Miss.1990); Thurman v. Thurman, 559 So.2d 1014, 1016-17 (Miss.1990); Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990); Brand v. Brand, 482 So.2d 236, 237 (Miss.1986). Each payment that becomes due and remains unpaid “becomes ‘a judgment’ against the supporting parent.” Tanner, 598 So.2d at 786; Brand, 482 So.2d at 237; Cunliffe v. Swartzfager, 437 So.2d 43, 45-46 (Miss.1983); Howard v. Howard, 191 So.2d 528, 531 (Miss.1966). The only defense thereto is payment. Tanner, 598 So.2d at 786; Varner, 588 So.2d at 433. That two of the children are now emancipated does not preclude Ousterhout from seeking recovery of the arrearage from Houck. Tanner, 598 So.2d at 786; Varner, 588 So.2d at 433.
¶ 10. Accrued child support payments cannot be extinguished by a court: “A court cannot relieve the civil liability for support payments that have already accrued.” Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984) (citing Cunliffe, 437 So.2d at 43; Duncan v. Duncan, 417 So.2d 908 (Miss.1982); Howard, 191 So.2d at 528). We have found a chancellor to be in error for suspending execution on a judgment for past due child support. Brand, 482 So.2d at 238-39. We have likewise held that a chancellor erred in finding that payment of only that part of the past due child support which had accrued prior to the warring couple’s protracted child support litigation extinguished his liability. Cumberland, 564 So.2d at 847-48; see also Thurman, 559 So.2d at 1016-17 (Where a supporting parent had paid roughly half the amount owed under a prior decree for two months and none during the third month in question, the chancellor erred in finding that the parent was liable only for the difference between the unpaid amounts and the greatly reduced modified monthly obligation.). [Emphasis added]
To me, the principle is crystal clear: the chancellor can not approve an agreement that relieves a parent of the duty to support his or her child, either prospectively or retroactively.
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