Contending with Contempt
December 19, 2013 § 1 Comment
The ins and outs of contempt can get pretty confusing. There is civil contempt and there is criminal contempt, and there is direct criminal contempt, and there is constructive criminal contempt. There are different burdens of proof, and there are different due process requirements. In the heat of battle, it can be confusing.
The MSSC decision in Judicial Performance Commission v. Harris, handed down December 5, 2013, offers an opportunity to review the forms and requirements of contempt.
A previous post dealing with the subject is at this link.
Here it is in a nutshell:
- Civil contempt enforces the right of a private party to enforcement of a previous court judgment in his or her favor. It is triable in seven days via R81 summons. The burden of proof is by a preponderance of the evidence (although some cases say it is by clear and convincing evidence).
- Criminal contempt enforces the authority of the court. There are two categores: direct and constructive. The burden of proof is beyond a reasonable doubt.
- Direct criminal contempt occurs in the presense of or within the sensory perception of the judge, and is punished instantly by the offended judge.
- Constructive criminal contempt occurs outside the presence or sensory perception of the offended judge. It requires notice, an opportunity to defend, and other due process considerations, including the possibility of hearing before another judge.
The MSSC decision in In re Williamson, 838 So.2d 226, 228 (Miss. 2002), includes a helpful discussion.
As a judge I find some of these categories somewhat fluid. For example, when a party files a blatantly false and fraudulent document with the court, assuming the act is contemptuous, is it direct because it is presented to the judge as a pleading or evidence, or is it constructive because the act of filing took place outside the presence of the judge? Or, where a party in the course of testimony or in a pleading volunteers that he has done a clearly contemptuous act, is that direct or constructive? In my experience, it’s not always crystal clear when one is called upon to make the right decision.
As a lawyer, these distinctions may make a big difference to your client, whichever side you find yourself on. If all you’re seeking is to force compliance with a child support or alimony order, civil contempt is all you really need. If you try to get fancy and ask for criminal sanctions, you are propelling the case in a whole different direction with heightened burden of proof and more stringent due process requirements. If you are representing the alleged contemnor, you will want to be sure he or she is afforded all of the due process protection that applies. You might even want to argue for all due process protection in a direct criminal case simply because it would possibly allow the judge to cool down and the memory of your client’s reprehensible conduct to fade somewhat.
Maxims: No Interference with Court Orders
October 15, 2013 § Leave a comment
“Courts of equity will not tolerate interference with their orders, nor with their officers in the enforcement thereof.”
This maxim was born in the earliest days of equity courts, when dissatisfied litigants sought to evade duties imposed by the chancellors through contrary orders from law courts. Those days are long past, and the Constitution and statutes determine jurisdiction in the modern era.
Here is what Judge Griffith said about it (with paragraphing added):
… it became in time the established rule that while the chancellors would of their own accord refrain absolutely from interfering with the orders of the law courts and their enforcement thereof, except upon an established equitable ground, yet when a dominant equity so required, all persons, other than the law judges themselves, would be enjoined to give obedience to the decrees in equity as to all the matter comprised therein. For instance, when a receiver is appointed in chancery and all the property has been taken in charge by the receiver, as the officer of the court it is punishable as a contempt for any person to attempt to interfere, although he may have a writ from some other court.
The rule is that if any person suffer by reason of any order in chancery, whatever it may be, he must apply to chancery for a revocation or modification of that order: a resort to some other court will not avail, save only in those cases wherein the order in chancery was absolutely void. Griffith, § 46, p. 48-49.
To put it in more succinct terms: When chancery court enters an order, you can obey it, or you can appeal it.
Today, the maxim underscores the chancery court’s considerable power to enforce its orders and to punish those who thwart them or the officers charged with carrying them out.
The Case of the Illusory Agreement
September 11, 2013 § 3 Comments
How enforceable is an extra-judicial agreement to reduce child support? And just what constitutes an agreement?
Those questions were at the heart of the dispute between Donald Brewer and his ex-wife, Penny Holliday. Donald had agreed in a PSA for Penny to have custody of the children, and to pay her $1,185 per month in child support. That agreement was incorporated into a judgment of divorce entered June 7, 2005.
In August, 2005, Donald filed a contempt and modification action asking to change custody. Penny counterclaimed that Donald was unfit for custody. There were several continuances. In July, 2006, the parties engaged in voluntary mediation, at the conclusion of which they entered into an agreed order and memorandum of understanding that effected a change of custody of one of the children and reduced Donald’s child support to $600 a month.
The agreed order was never submitted to the chancellor, but Donald nonetheless reduced his child support to the agreed amount, and Penny responded with a contempt action immediately after the first reduced payment. Penny stated that she “withdrew from the agreed order” because Donald “rejected certain financial obligations” and harassed her.
Donald filed for bankruptcy, and Penny had to file a claim with the bankruptcy court to continue to pursue her action to recover the child-support arrearage.
In February, 2008, after he enlisted in the military, Donald filed yet another modification action, asking to reduce his child support from $1,185 to $737. His pleading made no mention of the mediation agreement.
In July, 2009, Donald filed a pleading seeking to have the agreed mediation order entered nunc pro tunc. He alleged that the order had not been entered due to inadvertence and oversight, and that it had been misplaced by one of the several attorneys who had represented him in this now-epic litigation. The chancellor overruled the motion on November 5, 2009.
At last, on June 14, 2011, nearly six years after the initial filing, the case went to trial. The chancellor found Donald in contempt and entered a judgment against him for $34,515 in child-support arrearage. Donald appealed, claiming that the chancellor erred in not entering the agreed mediation judgment.
The COA, in Brewer v. Holliday, affirmed on March 12, 2013.
In response to Donald’s argument that Penny should be held bound by her agreement, the court pointed out that Donald himself had filed pleadings that asked for a reduction from $1,185 to $737, indicating that the parties had not conformed to the agreement. Penny also filed claims in the bankruptcy, which the COA noted should have tipped Donald off that Penny did not consider the agreement to have taken effect.
As for Donald’s argument that he should not be found in contempt because he paid the amount he reasonably believed was due under the never-entered agreed mediation order, the court looked to the bankruptcy proceedings as an indication that he was aware of Penny’s claims and non-acquiescence in any agreement. Judge Griffis, for the court:
¶25. A party, such as Brewer, “who extra-judicially modifies or eliminates child support payments acts ‘at his peril.’” Rogers v. Rogers, 662 So. 2d 1111, 1115 (Miss. 1995) (quoting Varner v. Varner, 588 So. 2d 428, 434 (Miss. 1991)). “[C]ourt-ordered child support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid.” Varner, 588 So. 2d at 434. “[A] court cannot relieve the civil liability for support payments that have already accrued.” Thrift v. Thrift, 760 So. 2d 732, 737 (¶16) (Miss. 2000) (citation omitted).
¶26. Even after Holliday filed claims in Brewer’s bankruptcy action for child-support arrearages, Brewer continued to pay only $600, contrary to the only order that obligated him to pay child support. The fact of the matter is that Brewer paid only $600 when there was sufficient evidence to indicate that he was aware that his obligation had not been reduced. We find that there was substantial evidence before the chancellor to find Brewer in willful contempt.
So, to wrap this up:
- If you get an agreed judgment, get it signed by the judge and entered right away. It happens every day that parties agree to one thing at the court house and then have “buyer’s remorse” later, after talking to aunt Susie and every other legal scholar in the family, and want to back out.
- Good luck getting a judge to enforce an out-of-court agreement. The only exceptions off the top of my head are: (1) where the parties reached an agreement and it was undisputedly not entered by oversight, and the parties acted in accordance with the agreement, as in Wright v. Wright, 737 So.2d 408 (Miss. App. 1998); and (2) where the court treats unpaid child support as having been “paid” in the situation where one or more of the children has lived with the paying parent by agreement, as in Varner, cited above. In this case, I suppose the only reason that the trial court did not consider Donald’s situation to be within the holding in Varner is that he did not ask for that relief or raise that issue.
- In my opinion it helped Penny’s case to file a contempt action immediately when Donald first reduced his child support payments. That move was clear evidence to me that she did not consider that the parties had reached an agreement sufficient to submit it to the court for approval.
Children as Messengers
June 20, 2013 § 2 Comments
Robert Lyles and Christal Carpenter had a child together whom they named Emily Lyles. They entered into an agreed order under which Christal had custody of Emily. Robert was to have some specified visitation and telephone contact with the child. They also agreed to the following:
“[S]chool and extracurricular activities of the minor child shall be communicated to the other parent when the receiving parent first receives notice of the event and any associate[d] preparation dates, including date, time and place so as to allow both parties to attend when possible.”
Robert sued Christal for contempt claiming that she violated the agreed order by: (1) not allowing him alternating weekend visitation; (2) not notifying him of Emily’s extracurricular activities; and (3) not allowing him his telephone contact with the child.
In her defense to point (2), Christal averred that she had notfied Robert because Emily had her school backpack with her when she visited, in which were notes from the school about the extracurricular activities. She took the position that she was not in contempt because Robert had notice, if only he would take the trouble to look through Emily’s backpack.
The chancellor found Christal in contempt:
[T]he reason [the contenpt] is willful is because you assume that he should go through the backpack of your daughter … and find that document out, find that information out by himself. That [is not] what the Order says. It says as soon as you find out about that, you need to notify him. You [cannot] assume he got it from somewhere.
Christal appealed, and the COA, in Carpenter v. Lyles, decided May 28, 2013, affirmed.
I write to say that I, too, would have found Christal in contempt. As the chancellor said here, there is no question that Christal’s conduct violated not only the letter, but also the spirit and intent of the provision. It was her duty to communicate immediately and directly with Emily’s father, which she failed to do. I would have found an additional failure here, however.
My firm opinion is that parents may not discharge their responsibilities by shirking them off on the child. Christal was wrong, I would say, by leaving it up to Emily to be her messenger. There are several points here to consider:
- When parent A tasks the child to communicate information to parent B, parent A is putting the child squarely in the middle of what is quite often a conflict-ridden situation.
- What punishment should the child receive for garbling the message or confusing the reply?
- When the child is the messenger, parents are in a position to weigh the child down with adult, parental concerns that should be none of the child’s business or source of worry.
- A child used as a messenger is often used as a bearer of critical and demeaning communications between adults.
- Using the child as a messenger teaches the child that she is more important to the parents as a conduit of communiqués between combatants than she is as a beloved child.
- Using the child as a messenger enlists the child as an ally to one side or the other, usually to the more embittered, negative side that has more invested in the twisted process.
No parent should be allowed to discharge his or her parental duties by proxy through a child. It’s damaging to the child, and definitely not in her best interest.
I would encourage you to counsel with your clients to find ways to interact with opposing parents in an adult way that leaves children completely out of the conflict between them.
Oops … and a Further Oops in a Partition Suit
June 18, 2013 § 2 Comments
Sometimes in the euphoria of settlement, when the bright sunlight of concord and goodwill seems to dispel the gray clouds of discord and conflict, in our optimistic pursuit of a written agreement, we lose sight of the details, where devilment always lurks, and out of that inattention things can come dizzyingly unravelled, and then totally unhinged in a most discombobulating way.
That’s more or less what happened at the trial level in the case of Powell v. Gregory, decided by the COA on May 14, 2013.
Siblings Julia Powell, Mary Margaret Gregory, and Bennie Evans believed that they owned a “forty” that had been their parents’ property, and which they came to own via heirship. The “forty” actually consisted of 37.98 acres, or so they thought.
Julia had acquired fee simple title to 2.02 acres from her parents, located in the NW corner of the “forty,” where a home she occupied was located.
The three could not agree on how to divide the property, so the sisters sued Bennie, asking for partition in kind of the surface acreage only.
After suit was filed, the siblings learned that what they thought was a “short forty” of some 38 acres was actually a “long forty” of 47.64 acres, nearly ten acres more than they had anticipated.
[Author’s note: Notice how what everybody believes to be true keeps turning out not to be so?]
After some negotiation, the parties presented the chancellor with an agreed judgment that included the words, “This is a final judgment” (Note: for the uninitiated, that language is required by local rule in that district in any judgment finally adjudicating the ultimate issue). The judgment had attached a county ownership plat showing the general designation of division, with Julia and Mary Margaret to receive 5.94 acres each, and Bennie to receive the remaining 35.64 acres. The parties agreed also to division of taxes and survey expenses. Excepted from the agreement would be Julia’s separate two-acre tract.
The chancellor signed the agreed judgment. No one appealed.
When the surveyor went out, he discovered that Julia’s house was actually 20 feet west of the western border of her “excepted property,” amidst the “heir property,” and not located on her excepted parcel. Julia refused honor the agreement. A year after the original agreed judgment was entered, Mary Margaret filed an action for contempt, and Julia in response filed for relief under MRCP 60(b)(6).
The chancellor ruled that the original agreed judgment was contractual and enforceable. He ordered that the description to Julia’s 2.02 acres be amended by deed to be where she said it was, and directed that the remaining acreage be divided among the three by acreage as originally agreed. He denied Mary Margaret’s request to hold Julia in contempt. Julia filed a battery of motions under R59(a), 59(e) and 60, all of which were overruled. She appealed.
So, did the COA’s decision finally untangle the knot? Well, in a word, no.
Judge Fair’s opinion indicates that the court would have liked to, but for one dispositively complicating factor:
¶20. Based on the record before us, the chancellor would have been within his discretion in interpreting the intent of the parties in the agreed final judgment and fashioning a remedy to carry out that intent. However, we must reverse the second final judgment because of the issue of necessary parties. On November 4, 2010, Belissa, Julia’s daughter, recorded a warranty deed from Julia to herself dated November 3, with a description almost (because of what Julia claimed was a scrivener’s error creating a description that does not “close”) exactly matching that of the two acres described in her mother’s deed. So far as the record reveals, the court was not informed of the existence of Belissa’s deed until it was submitted into evidence at the hearing two months later.
So with a couple more runaway cars added to the trainwreck, back the parties go, now to bring Belissa aboard for Round Three of their unhappy saga that began more than five years ago with that hapless partition complaint. Unless something new is injected, my guess is that the outcome at ground level will be pretty much the same this next go-round as it has been up to now.
Clients always seem to be in such sure command of their facts, even when they have no legitimate basis therefor. When you take what they say at face value, especially in a matter as detail-and-fact dependent as a property case, you get what you pay for, so to speak.
MIXED ATTORNEY’S FEES
May 21, 2013 § 1 Comment
The COA decision in Tidmore v. Tidmore, decided May 14, 2013, underscores the mixed attorney’s fee, a fairly common phenomenon in chancery court. It happens when one brings an action combining two or more different causes of action. It could be a contempt and modification, or a divorce with an allegation of contempt of the temporary order, or a suit seeking injunctive relief and sanctions.
In reversing the chancellor’s award of attorney’s fees assessed against Nicole Tidmore in favor of her ex-husband, Michael, the COA, by Judge Irving, said this:
¶10. Nicole argues that the chancellor erred in awarding attorney’s fees to Michael since some of the attorney’s fees were incurred in pursuing a modification of custody. We note that “attorney’s fees are not normally awarded in child custody modification actions.” Mixon v. Sharp, 853 So. 2d 834, 841 (¶32) (Miss. Ct. App. 2003). However, it is well established that “[a] chancellor may award attorney’s fees as the result of a contempt action” in a domestic-relations case. Id. “One of the purposes for awarding attorney fees [in a contempt action] is to compensate the prevailing party for losses sustained by reason of the defendant’s noncompliance.” Durr v. Durr, 912 So. 2d 1033, 1040 (¶25) (Miss. Ct. App. 2005). Thus, “[n]o showing as to the McKee factors is required” where there is a finding of contempt. Patterson v. Patterson, 20 So. 3d 65, 73 (¶26) (Miss. Ct. App. 2009).
¶11. Additionally, Mississippi Code Annotated section 93-5-23 (Supp. 2012) requires the chancellor to impose attorney’s fees for unsubstantiated allegations of abuse:
If after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in responding to such allegation.
(Emphasis added).
¶12. In this case, the chancellor ordered Nicole to pay Michael’s attorney’s fees and the GAL fees as follows:
With regard to [Michael’s] claims for attorney’s fees, the [c]ourt finds that the allegations made by [Nicole] are without foundation and furthermore that she was found in contempt . . . . As such, all the [GAL] fees are hereby [assessed] to [Nicole]. [Nicole] shall pay the [GAL] her remaining fees in the amount of $1,200.00 along with reimbursing [Michael] the [GAL] fees he initially paid in the amount of $1,500.00 within sixty (60) days of September 26, 2011.
After examining the [McKee factors], the [c]ourt finds that [Michael] is entitled to attorney’s fees in the amount of $8,076.01[,] which the [c]ourt finds were reasonable and necessary in prosecuting the contempt case against [Nicole], and further in defending the unsubstantiated allegations of abuse and/or neglect[,] and a judgment is hereby entered for the same. As such[,] a total judgment is hereby entered against [Nicole] in the amount of $9,733.91 in favor of [Michael], which shall be paid within sixty (60) days of September 26, 2011[,] along with the remaining $1,200.00 in [GAL] fees[,] which shall be paid directly to the [GAL] within sixty (60) days of September 26, 2011[.]
¶13. We cannot say that the chancellor abused his discretion in awarding attorney’s fees to Michael for his successful prosecution of the contempt charges against Nicole or for his defense against the baseless allegations of abuse. We also find that the chancellor did not abuse his discretion in ordering Nicole to pay the GAL fees. The chancellor found Nicole in contempt for claiming the children as dependents on her 2008 tax return and for withholding one of the children from Michael on one occasion. The chancellor did not find Michael in contempt for any of the claims asserted by Nicole. Additionally, the chancellor determined that Nicole’s allegations of abuse against Michael were unsubstantiated. The chancellor’s order was clear that the fees were awarded because of the unsubstantiated abuse allegations and because of Nicole’s contemptuous conduct.
¶14. While Michael is certainly entitled to an award of attorney’s fees for the contempt and for his defense against the abuse allegations, it is not clear that the total amount of $8,076.11 is only for the contempt and defense against the abuse allegations. In fact, an exhibit shows that at least part of the fees awarded were for the modification-of-child-custody proceedings. As such, the court erred in awarding the full amount of the attorney’s bill. Although there may be difficulty in allocating the attorney’s fees, the chancellor should nonetheless make that determination. Therefore, the amount of the award of attorney’s fees is reversed and this issue is remanded to the chancellor for a determination of the amount of attorney’s fees that should be awarded to Michael for the contempt proceedings and defense against the baseless abuse allegations.
So another attorney’s fee award bites the dust for lack of an essential finding. It’s not clear from the opinion whether the chancellor had all the information he needed to make the allocation of fees as lucid as it could or should have been.
Remember to give the judge all the essential information he or she needs to make a decision that would stand up if there is an appeal. All the judge needed here was time records or testimony to show how the hours devoted to the case by the attorney were spent as to each issue. There is no one who knows that better than the attorney who did the work. Naturally, there will be some judgment calls as to how to categorize various activities, but that is what cross examination is for, isn’t it?
While we’re on the issue of attorney’s fees, the COA touched on Michael’s request for an appellate attorney’s fee:
¶15. Michael also asks this court to order Nicole to pay his attorney’s fees on appeal. “When allowed, this Court has generally granted attorney’s fees in the amount of one-half of what was awarded [by the chancellor].” Carroll v. Carroll, 98 So. 3d 476, 483 (¶26) (Miss. Ct. App. 2012) (citing Lauro v. Lauro, 924 So. 2d 584, 592 (¶33) (Miss. Ct. App. 2006)). However, because Nicole prevails on this issue, Michael is not entitled to attorney’s fees on appeal.
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.
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.
SOME THINGS YOU NEED TO KNOW ABOUT CHILD DEPENDENCY EXEMPTIONS
January 8, 2013 § 4 Comments
Many property settlement agreements (PSA) involving children have a provision like this:
Husband shall claim the minor children as dependents for tax purposes in even-numbered years, and Wife shall claim the minor children as dependents for tax purposes in odd-numbered years.
What happens, though, where, despite the language of the agreement, the mom claims the children in an even-numbered year, and the father does, too? Is the language above enough to satisfy the IRS that the dad, and not the mom, was entitled to claim the exemption in that year?
The answer is no.
IRS regs require that if you are trying to base a claim for exemption on a writing that is not an IRS-designated form, the writing must conform to the substance of the IRS form and must be a document executed for the sole purpose of serving as a written declaration within the meaning of the IRS regs. A court order, PSA, handwritten note or any other document not meeting those requirements will not suffice. The claiming party must attach to the tax return a completed IRS form 8332 or a document including every element of it.
In the case of Armstrong v. Commissioner of Internal Revenue, decided December 19, 2012, by the US Tax Court (I do not have a cite for you) involved the scenario above. The court said:
The IRS’s Form 8332 provides an effective and uniform way for a custodial parent to make the declaration required in section 152(e)(2)(A) for the benefit of the noncustodial parent. But a noncustodial parent like Mr. Armstrong may also rely on an alternative document, provided that it “conform[s] to the substance” of Form 8332.5 See 26 C.F.R. sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., supra. In particular, for tax years including the year at issue here, a court order that has been signed by the custodial parent may satisfy section 152(e)(2)(A) as the noncustodial parent’s declaration if the document “conform[s] to the substance” of Form 8332.6 See Briscoe v. Commissioner, T.C. Memo. 2011-165 (concluding that the court order attached with the return did not conform with the substance of Form 8332); cf. Boltinghouse v. Commissioner, T.C. Memo. 2003-134 (holding a separation agreement conformed with the substance of Form 8332).
A basic element necessary for satisfying section 152(e)(2)(A) is a custodial parent’s declaration that she “will not claim” the child as a dependent for a taxable year. A custodial parent accomplishes this on a Form 8332 with the following statement: “I agree not to claim * * * for the tax year”. This statement is unconditional; and in order for a document to comply with the substance of Form 8332 and ultimately section 152(e)(2)(A), the declaration on the document must also be unconditional. See Gessic v. Commissioner, T.C. Memo. 2010-88; Thomas v. Commissioner, T.C. Memo. 2010-11; Boltinghouse v. Commissioner, T.C. Memo. 2003-134; Horn v. Commissioner, T.C. Memo. 2002-290.
The opinion points out that there are four considerations in determining whether a party is entitled to claim the dependency exemption: (1) Whether the “child receives over one-half of the child’s support during the calendar year from the child’s parents … who are divorced … under a decree of divorce”, sec. 152(e)(1)(A); (2) whether the child was “in the custody of one or both of the child’s parents for more than one-half of the calendar year”, sec. 152(e)(1)(B); or (3) whether “the custodial parent signs a written declaration (in such a manner and form as the Secretary may by regulations prescribe) that such custodial parent will not claim such child as a dependent for any taxable year beginning in such calendar year”, sec. 152(e)(2)(A); and (4) whether “the noncustodial parent attaches such written declaration to the noncustodial parent’s return” for the appropriate taxable year, sec. 152(e)(2)(B).
To rub a little salt in the wound, the Tax Court held that, since Mr. Armstrong had been ruled not to be entitled to claim the dependency exemption, the children were not “qualifying” within the regulations, so he could not claim the child credit, either. Ouch.
For drafting purposes, at a minimum you should include language that the non-claiming parent will timely execute IRS form 8332 for every tax year covered in the agreement. At least in that way you can ask the court for relief under MRCP 70(a). I have no idea whether a form executed by another party per the rule would satisfy the IRS, but it’s better than nothing. It would have the added benefit of documenting that you have made your client aware of the requirement of the form.
If I were practicing today, I would confer with my favorite CPA for advice about how best to avoid problems with this situation. Can you get the other party to sign ten years’ worth of forms in advance, each for the specific year in which your client will be claiming the exemption? I don’t know, but a CPA will know.
Of course, Mr. Armstrong could seek relief via contempt from the fomer Mrs. Armstrong. Contempt is a dish best served cold, as they say. But it has the disadvantages that one has to hire an attorney and try to collect money that may no longer be there. Yes, you can put that ex in jail, which may provide a measure of comfort and satisfaction, but it may not make you whole financially.
NOTE: Armstrong involves tax returns filed before the above-cited regs were adopted, and the language of the parties’ divorce decree included a clause that made claiming the exemption conditional upon payment of child support, but I believe my interpretation of the law above is accurate.
THE ZWEBER ZIG-ZAG ON COLLEGE SUPPORT
January 3, 2013 § 3 Comments
You may recall my post back in February, 2012, about the COA decision in Zweber v. Zweber, in which that court adopted what I described as a rather expansive definition of college education support. This is the case, you may remember, where the daughter took flying lessons toward an aviation degree, and the mother balked at paying her part of the rather pricy tab. The chancellor ruled that she must, and the COA agreed, holding in essence that any expense in furtherance of the college degree is included.
Well, the MSSC reversed that COA decision on December 13, 2012. The MSSC decision in Zweber v. Zweber is one that all of you who prepare property settlement agreements (PSA) should study and take to heart.
The parties in Zweber had entered into a PSA that included the following language for college education support:
“The Husband and Wife shall each be required to pay for the cost of the minor children, with Husband paying two-thirds (2/3) of the expense and Wife paying one-third (1/3) of the expense, based on the cost of the child attending college at a four[-]year state[-]supported institution in such state as the child is a resident of. All costs are to be based on the average costs of meals, tuition, books and room, published in a state[-]supported catalog and not to exceed the cost of a four[-]year state[-]supported institution. This obligation shall continue even if the child is over twenty-one (21) years of age prior to the completion of college.” [Emphasis added]
At ¶ 15, Justice Dickinson’s opinion states: ” … the Court of Appeals correctly concluded that … in certain situations, parents may be required to pay for their children’s college educations and the extent of that obligation may go beyond payment for “meals, tuition, books, and room. But because the divorce decree in this case includes a specific provision addressing specific college expenses, it is distinguished” [from the cases cited by the COA].
This case highlights the critical importance of making sure that the PSA you offer for a particular client specifically meets the needs of that particular client. Don’t assume just because a provision got the desired results in one case that it will do the job an another case. One size does not fit all. In Zweber, if the provision had been drawn with less specificity, and possibly even made reference to the flying lessons, the result would likely have been different. Instead, the Supreme Court held that the unambiguous language of the parties’ contract governed. The specific, narrowly drafted language of the agreement saved Mrs. Zweber and cost Mr. Zweber.
As the MSSC said, in some cases, the covered costs may well go beyond, meals, tuition, books and room, but that depends on how the PSA is drafted.
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